Foreign Relations of the United States, 1958–1960, United Nations and General International Matters, Volume II

290. Memorandum of Discussion at the 48th Meeting of the Informal Working Group on Antarctica, Department of State, Washington, July 23, 1959¹

Washington, July 23, 1959

SUBJECT

• Antarctic Conference Preparations (48th Meeting Informal Working Group at Department of State, Room 5104)

THOSE PRESENT

• Argentina—Santos Goni
• Australia—Malcolm Booker
• Belgium—Ivan Gennotte
• Chile—Manuel Bianchi
• France—Marcel Barthelemy
• Japan—S. Sugihara
• New Zealand—Thomas P. Davin, D. G. Harper
• Norway—Odd G. Jakobsen, Nils Vogt
• South Africa—Derek Franklin
• U.S.S.R—Yuri V. Filippov, Vladimir S. Polyakov
• United Kingdom (Chairman)—David Muirhead, D. L. Benest
• U.S.A.—Paul C. Daniels, George H. Owen, Wayne W. Fisher

Summary:

A general discussion of the provisions of the contemplated treaty was held, affording an opportunity for the various representatives to express current attitudes of their Governments and also be brought up to date on the views of others. The discussion was both helpful and timely, since nearly two months had elapsed since the last meeting of the working group on May 26.²

It was agreed to hold the next meeting on Tuesday, July 28.³

In opening the meeting the Chairman stated there was no formal agenda and suggested that the group discuss any supplemental or revised draft working papers.

The United States representative referred to the revised U.S. draft working papers dated June 1959, copies of which he had distributed to the other eleven representatives since the last meeting of the working group on May 26. He briefly reviewed the new draft working papers and summarized the changes that had been made from the draft working papers which were distributed to the working group last November,⁴ adding that he thought a mutual exchange of views at this time would be beneficial to all. Running over various articles, he said that while the second paragraph of Article I had been shortened, the intent to prevent nonmilitary activity in Antarctica remained the same, while the use of military personnel as observers to insure peaceful use, which was not specifically covered in the November draft working paper, would be permitted. Article II was unchanged and Article III was essentially the same, with the addition of a paragraph regarding plans and programs of international organizations. Commenting on Article IV, he said some countries had raised points on drafting, but there now seemed to be quite general agreement on the objectives of this article as set forth in the November draft. He had no comments on the inspection provision (Article V, formerly VI) except to say it was desirable to add a provision for adequate juridical protection of observers. The zone of application of the treaty (Article VI, formerly IX), he admitted, was a difficult point. Although there is no precise definition of the high seas, it would be presumptuous for any country or group of countries to presume to infringe on the freedom of the seas by including large sea areas within the zone of application.

As to the provision relating to settlement of disputes (Article VII, formerly X), he said he understood some Governments objected to disputes being referred to the International Court of Justice at the request of only one party. Some orderly method should be provided, however, for settling problems arising under the treaty. Under the article on administrative measures (Article VIII, formerly VII), he said the new draft made it clear that the treaty would become effective when it was approved, whether or not any administrative measures had been adopted. Referring to the relationship of the treaty to nonparties (Article IX, formerly VIII), he said several divergent views had been expressed, but he believed the treaty was fair and nonmonopolistic and should stand up well before world opinion without the need for an accession clause. He stated the U.S. position on this point was still under consideration and this article had, therefore, been left blank. He said he favored agreement on a modus vivendi (new) to provide an official channel for representatives of the various countries to meet and discuss matters of mutual interest prior to ratification of the treaty, which in the light of experience with other treaties might take some time.

The United Kingdom representative said he had listened with interest to the United States representative’s remarks on the zone of application and drew attention to the United Kingdom draft on this point (submitted March 10)⁵ which he felt represented the best solution to the problem by referring only to the land and ice shelves together with the waters and submarine areas appurtenant thereto. As for nonmilitarization measures, he called attention to the draft submitted by the United Kingdom (February 17 meeting)⁶ which would provide for a Committee of Inspection and Control. Regarding third parties, he said the United Kingdom had submitted a protocol (February 24 meeting)⁷ which it considered was fair to all other countries. His Government also believed it was necessary to have an article on jurisdiction, even though it might be difficult to draft, and that this matter should be tackled before the conference convenes. He agreed to a modus vivendi. As Chairman, he then asked for comments of other representatives.

The United States representative said that time was drawing short and urged all representatives to attempt to get instructions from their Governments on the points under discussion as soon as possible.

The Chairman agreed that the time was becoming very short and pointed out that both the British Embassy and the Foreign Office in London would be understaffed during August due to the holiday period, leaving only September and part of October for discussions.

The Argentine representative assured the group that his Government was carefully considering both the November and June draft working papers submitted by the United States representative, as well as all other drafts submitted by other countries, and said his Government had set up a special committee to give full consideration to the proposed treaty. He pointed out that the Argentine Government had been going through a series of domestic difficulties recently which had delayed policy making on the treaty to a certain extent, but he expected to receive his Government’s views on the treaty soon.

The Australian representative recalled that he had put forward his Government’s position on the treaty many times and that it remained essentially the same. Australia basically reaffirmed its position regarding the zone of application, although he said he understood no Government was irrevocably committed to any particular position and that his Government would undoubtedly be prepared to adjust its position and hoped that others would do the same in the interest of getting a satisfactory treaty.

The Belgian representative said he had nothing new to add at this time except that the newly appointed Belgian Ambassador was due to arrive next week and would preside over the Belgian delegation.

The Chilean representative said he had made his Government’s position clear on many occasions and had little to add at this time. His Government had carefully considered the November draft working papers submitted by the United States and found them fair and acceptable for consideration at the conference. His Government had not yet commented on the June draft working papers, but he felt sure it would also find them acceptable. He recalled that he had previously made Chile’s position on inspection clear, i.e., inspection should not be directed by a supranational authority. Although favoring 60° as a conventional limit since other definitions involved difficulties, Chile maintained a flexible position regarding inclusion of sea areas and would probably be willing to go along with the majority. The question of jurisdiction, he said, was difficult and it might require a long time to draft an article that would satisfy all countries concerned. Since this is not a fundamental question or one that is vital to the treaty, Chile would prefer to see it postponed, but is open-minded and willing to discuss it. He said the reaction of his Government to the United Kingdom and Australian proposals on the zone of application (submitted March 10)⁸ had not been very satisfactory. Chile, he said, visualizes the treaty as one of a series of accords on Antarctica and does not consider it necessary that it solve all questions.

The French representative, who was attending his first meeting, said his Embassy was still awaiting instructions and that he would request that they be sent as soon as possible.

The United States representative recalled that the French representatives had previously expressed certain reservations on the wording of Article IV, which he hoped could be ironed out prior to the conference since there now seemed to be general agreement on the substance of this article.

The Japanese representative said his Government is preparing a summary of its position, which is not yet completed. Japanese policy, he said, remains the same regarding the treatment of third parties (March 3 meeting)⁹ and the zone of application; on the latter point Japan agrees with the United Kingdom draft.

The New Zealand representative, who was also attending his first meeting, said his Government was preparing position papers on the treaty and he was not able to add anything new at this time.

The Norwegian representative said his Government was in the middle of the holiday season and the Norwegian Embassy had not received any instructions from Oslo regarding the treaty recently.

The South African representative said that Parliament was now recessed in his country and he likewise had nothing to add at this time.

The Soviet representative said his Government had considered carefully both the November and June draft working papers, and that he would like to comment on certain articles. The Soviet Government, he said, would like to enlarge paragraph 1 of Article I of the June draft to include a specific prohibition against military bases or fortifications, military maneuvers, and weapons testing. He said his Government could agree to paragraph 2 since it appeared that some countries, including the United States, Argentina, and Chile, could not carry out their scientific programs in Antarctica without the use of military support; it preferred the November draft of this paragraph. His Government was in perfect agreement with Articles II and III of the June draft. Article IV, he said, was in the Soviet view the most controversial article in the draft working paper. However, his Government was now prepared to agree to inclusion of an article on rights and claims in view of its policy of seeking to conclude a treaty and since it agreed with the objectives of the article. However, a somewhat shorter article would have been preferable. He said his Government was in agreement with the June draft of Article V on inspection. As to Article VI, he said his Government favored having the treaty apply to the zone South of 60°, omitting wording that would delete the high seas from this zone, since it would be difficult to determine the boundaries of the high seas and the Soviets did not think their inclusion would lead to difficulties with nonparties. His Government did not agree with the last sentence of Article VII and considered disputes should be referred to the International Court of Justice (ICJ) only when all parties to the dispute agreed. He said his Government could agree to either the November or June drafts of the article on administrative measures. Referring to Article IX, he said his Government was not happy that the provision for the relationship of the treaty to nonparties was not yet drafted. He agreed the treaty must seek to avoid the impression of being monopolistic. Therefore, in order to be as fair as possible, all countries should be allowed to join the treaty. He recalled that India has already brought the question of Antarctica before the United Nations, and he strongly believed India had consented to remove this item in the expectation that a treaty would be worked out which would give all countries a chance to join it. As to a period of validity for the treaty, he said his Government favored as lengthy a period as possible. He said he had had no official word from his Government regarding the suggested modus vivendi, but he personally shared the United States view that it would be desirable.

Commenting on the Soviet representative’s remarks, the United Kingdom representative observed that his Government had approached the question of delimiting the zone of application from the point of view of working outwards from the land rather than inwards from the sea, and he hoped for further exchanges of views on this matter before the conference convened. Referring to the Soviet position on submission of disputes to the ICJ, he said the United Kingdom had always believed all parties to a dispute should agree on referral to another authority for settlement in order for the results to be effective. The United Kingdom, therefore, might be willing to review its position and accept something such as a conciliation commission. As to the period of validity of the treaty, the United Kingdom favored no mention of any period of time.

The Soviet representative said that his Government was supporting 60° as the boundary of the zone of application because it understood most other countries favored it. He said he could not comment any further at this time regarding submission of disputes to the ICJ. Personally, he said he agreed with the United Kingdom representative that it would be best not to mention any period of time for validity of the treaty. He then suggested that since August seemed to be a month for vacations, perhaps the group could meet again in July to work out the provisions of some articles which were not yet clear, having in mind that the conference should be as short as possible, which was what he understood the other representatives also wanted.

The United States representative said it was certainly desirable that the conference be both short and successful. He was encouraged that the discussion had indicated wide areas of agreement and believed it would be useful to have another discussion, perhaps in early August, of the articles on the zone of application, jurisdiction, accession and relationship of the treaty to third parties, and rights and claims, with the objective of trying to narrow down the remaining points of difference.

The Australian representative said he welcomed the Soviet representative’s comments on Article IV, and that it was encouraging to know that there is now basic unanimity on this point. The most difficult question, he said, seemed to be the one concerning nonparties and the means of providing for those countries with a genuine and active interest in Antarctica, particularly the form that this provision should take. His Government believed that only countries who have a genuine and demonstrable interest in Antarctica should join the treaty, since to admit up to 81 countries would be unwieldy and also inject political problems into the Antarctica area, which the treaty sought to avoid. He asked the Soviet representative if he planned to make a specific proposal on this point in the near future.

The Soviet representative said he thought this would be possible to do within the next week or two.

A suggestion by the Chairman that there be another meeting before October to discuss procedural arrangements for the conference met with the agreement of the United States representative, who suggested that such a meeting should take place in September.

The Chilean representative also agreed on the desirability of having the procedural meeting in September and suggested that translations of the provisional agenda and set of rules be furnished in the four official languages of the conference for submission to the Governments concerned before the conference convened.

The United States representative said there were a number of details to be worked out, and that the representatives would undoubtedly, among other things, wish to exchange information about the composition of their delegations later. He said he had no information to announce on the composition of the United States delegation, but probably would have by September.

After some discussion it was agreed to hold the next meeting on Tuesday, July 28, at 11:00 a.m.

In taking leave of the group in view of his departure for London on transfer within a few days, the Chairman, Mr. Muirhead, who had attended the meetings since their inception in June 1958, said he thought the group had made great progress in preparing for a successful conference during the past year, and that he would continue to follow developments on Antarctica, particularly the conference, with great interest.

Enclosure

DRAFT WORKING PAPER

Article I

1. Antarctica shall be used for peaceful purposes only.

2. Nothing in the present Treaty shall prevent the use of military personnel or equipment for peaceful purposes.

Article II

There shall be freedom of scientific investigation in Antarctica in conformity with the provisions of the present Treaty.

Article III

1. There shall be international cooperation in scientific investigation in Antarctica.

2. To this end, to the greatest extent feasible and practical:

(a) Information regarding plans for scientific programs in Antarctica shall be exchanged to permit maximum economy and efficiency of operations.

(b) Scientific personnel shall be exchanged in Antarctica between expeditions and stations of different countries.

(c) Scientific observations and results from Antarctica shall be exchanged and made freely available.

3. In implementing the present Article, consideration shall be given whenever practicable to the plans and programs proposed by international organizations having a scientific or technical interest in Antarctica.

Article IV

1. Nothing contained in the present Treaty shall be interpreted as:

(a) A renunciation by any High Contracting Party of any right to territory or claim to territorial sovereignty in Antarctica which it may have asserted;

(b) A renunciation or diminution by any High Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have as a result of its activities or those of its nationals in Antarctica;

(c) Recognition by any High Contracting Party of all or any part of any other country’s right to territory or claim or basis of claim to territorial sovereignty in Antarctica.

2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting or supporting a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.

Article V

1. In order to promote the objectives and assure the observance of Article I of the present Treaty, each of the observers designated in accordance with paragraph 3 of the present Article shall have complete freedom of access at any time to any or all areas of Antarctica.

2. All areas of Antarctica, including all stations, installations and equipment in Antarctica, and all ships and planes at points of discharging or embarking cargoes or personnel in Antarctica, shall be open at all times to inspection by any observers designated in accordance with paragraph 3 of the present Article.

3. Each High Contracting Party shall have the right to appoint observers to carry out any inspection provided for by the present Article.

4. Aerial observation may be carried out at any time by any of the High Contracting Parties over any or all areas of Antarctica.

Article VI

The zone of application of the present Treaty shall be the area south of 60° South Latitude, with the exception of the high seas.

Article VII

In the event that any dispute arises between two or more of the High Contracting Parties concerning the interpretation or application of the present Treaty, the High Contracting Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, or other peaceful means. Any dispute of this character not so resolved shall, at the request of any party to the dispute, be referred to the International Court of Justice for settlement.

Article VIII

1. Representatives of the High Contracting Parties shall meet at the city of _______ within two months of the coming into force of the present Treaty and thereafter at suitable intervals and places, as determined by them, for the purpose of formulating and considering, and recommending to their Governments, administrative measures in furtherance of the principles and objectives of the present Treaty, including measures regarding:

(a) Use of Antarctica for peaceful purposes only.

(b) Facilitation of scientific research in Antarctica.

(c) Facilitation of international scientific cooperation in Antarctica.

(d) Facilitation of the exercise of the rights of inspection provided for in Article V of the present Treaty.

(e) The formulation of principles and rules relating to the exercise of criminal and civil jurisdiction in Antarctica.

(f) Other matters not inconsistent with the purposes of the present Treaty.

2. The representatives of the High Contracting Parties shall receive reports from the observers referred to in Article V.

3. The administrative measures referred to in the present Article shall become effective when approved by all of the High Contracting Parties.

4. Any or all of the rights established in the present Treaty may be exercised upon the coming into force of the Treaty whether or not any administrative measures facilitating the exercise of such rights have been proposed, considered or approved as provided in the present Article.

Article IX

(Relationship of Treaty to nonparties.)

Article X

1. The present Treaty shall be subject to ratification by the signatory States in accordance with their respective constitutional processes. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.

2. The present Treaty shall enter into force upon the deposit of instruments of ratification by all the signatory States named in the preamble hereto.

(Note: Preamble not included in draft.)

Done at ____, this ___ day of_______ 19_____, in the____ languages, each being equally authentic, the original of which shall be deposited with the Secretary-General of the United Nations who shall transmit certified copies thereof to each of the signatory States.

MODUS VIVENDI

Pending the entry into force of the Treaty on Antarctica signed today, the Governments of Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, Union of South Africa, Union of Soviet Socialist Republics, United Kingdom, and the United States of America have agreed to set in motion the consultative procedure established therein.

To this end, representatives of the signatory states shall meet at the City of ______ ______, two months after the date of signature of the Treaty, to constitute a Preparatory Committee. Each signatory State shall be represented by one representative on the Preparatory Committee, who may be accompanied by such alternate representatives, technical advisers and staff as his respective Government may determine.

The Preparatory Committee shall meet periodically thereafter, not less frequently than once every year, at such times and places as may be determined by the Committee itself.

The Preparatory Committee shall have no power to commit any Government to any action whatsoever. Its functions shall be of a consultative character and any recommendations it may formulate shall be subject to the approval of all twelve Governments to become effective.

The Preparatory Committee shall consider the formulation, in a preliminary manner, of recommendations on the administrative measures provided for in Article VIII of the Treaty on Antarctica.

The Preparatory Committee shall remain in existence until the Treaty on Antarctica enters into force, and shall thereupon terminate automatically.

Signed___________

1. Source: Department of State, Central Files, 702.022/7–2359. Confidential. Drafted by Fisher.
2. A memorandum of discussion at the 47th meeting, May 26 is ibid., 702.022/5–2659.
3. A memorandum of discussion at the 49th meeting, July 28, is ibid., 702.022/7–2859.
4. See footnote 2, Document 288.
5. A copy of this draft is attached to the memorandum of discussion at the 38th meeting. (Department of State, Central Files, 702.022/3–1059)
6. A copy of this draft is attached to the memorandum of discussion at the 35th meeting. (Ibid., 702.022/2–1759)
7. A copy of this draft is attached to the memorandum of discussion at the 36th meeting. (Ibid., 702.022/2–2459)
8. A copy of this draft is attached to the memorandum of discussion at the 38th meeting. (Ibid., 702.022/3–1059)
9. A copy of this draft is attached to the memorandum of discussion at the 37th meeting. (Ibid., 702.022/3–359)