300. Memorandum of a Conversation Between the Head of the Delegation to the Conference on Antarctica (Phleger) and the Head of the Soviet Delegation (Tunkin), Metropolitan Club, Washington, October 28, 19591
In the morning Mr. Tunkin approached Mr. Phleger and suggested that he would like to have a general talk with him regarding the Conference. Mr. Phleger responded by inviting Mr. Tunkin to lunch.
During the lunch Mr. Tunkin said that he would like to discuss the two United States proposals.
[Page 593]One, COM.I/P10,2 provides that any benefits of the treaty shall apply to parties and other members of the UN and its specialized agencies and that nothing in the treaty shall create obligations on the part of the party other than to other parties.
With respect to this, Tunkin said that he did not see how the parties could take the position that they were granting benefits to third parties and then in a limited way. He said that the legal situation was that nothing in the treaty could limit the right of non-parties nor should the treaty create benefits for non-parties, adding that it was obvious that by the treaty the parties were only bound to each other. Therefore, he thought the provision was undesirable as granting benefits to non-parties as well as attempting a discriminatory application to non-parties. I pointed out the object of the United States in proposing this section; namely, to make it clear that the U.S. was not bound to anyone other than parties and that the benefit of the treaty would not be open to states which the U.S. did not recognize or have diplomatic relations with. Mr. Tunkin said he had not understood that this was the objective but if it was, he thought it could be reached by dropping the provision entirely. He said that as a matter of law, third parties were not entitled to any benefit under the treaty and that the parties were only bound to other parties. Therefore, there could be no claim by any non-party that it was entitled to any benefits under the treaty. He said this was perfectly clear as a matter of law and no one would deny this legal position.
I pointed out that other parties to the treaty had desired to extend its benefits to non-parties and if this were so the U.S. could not accept any provision which extended the benefits to non-parties except members of the UN and its specialized agencies, thus exluding non-recognized countries. Tunkin replied that he thought that the benefits of the treaty should be confined to the parties and that under such circumstances no provision was necessary in order to create a legal situation where treaty benefits were confined to parties and party obligations were limited to parties.
Mr. Tunkin also questioned U.S. proposal, COM.I/P9,2 which provides that parties will exert appropriate efforts consistent with the UN Charter to it and that no one engages in any activity in Antarctica contrary to the treaty principles. He said he thought this was a large undertaking when one realizes that the treaty parties have not under international law the jurisdictional control of Antarctica.
I pointed out that the purpose of the provision was to make clear that no party should assist a non-party to do things in Antarctica that parties had agreed they would not do. For instance, no party should [Page 594] assist a non-party in non-peaceful use nor in laying the basis of a territorial claim. Tunkin agreed with this objective and said that he would like to study the language further. He expressed agreement in principle with the UN Charter provision under which parties undertake to see that the non-parties observe the principles of the UN Charter. He said there was no reason why the same principle might not be applied in Antarctica.
Throughout the discussion, Tunkin reiterated the position that benefits and obligations under the treaty were exclusively for treaty members. Also that treaty members could not by the treaty affect the rights of non-parties.
Tunkin further intimated, although in a very guarded way, that his delegation might accept an accession clause limited to UN members and members of its specialized agencies and, with some modification, a zone of application eliminating the high seas.