Foreign Relations of the United States, 1961–1963, Volume XXV, Organization of Foreign Policy; Information Policy; United Nations; Scientific Matters

476. Memorandum From Richard Bilder of the Office of the Legal Adviser to the Officer in Charge of International Scientific Organizations, Bureau of International Organization Affairs (Simsarian)¹

Washington, June 25, 1963.

SUBJECT

• Appropriate Subjects for Observation in Antarctica Inspection

In connection with the proposed United States inspection in Antarctica during the coming austral summer, you have asked our views as to what the observers should seek in particular to observe.

As we previously discussed, it seems important that the observers simply observe and report their observations, and not attempt in the course of their inspection to draw any definitive legal conclusions as to whether any of the facts or activities observed constitute a violation of the treaty. The judgment whether a violation may be involved and whether an international complaint is justified should only be reached subsequently by the appropriate United States Government agencies on the basis of the observers’ report.

Nevertheless, the observers will need a general idea of what to look for in their inspection and what facts or activities merit report or comment. This memorandum therefore gives some general guidance as to what legal obligations the Treaty imposes on parties. It is impossible, however, to completely catalogue or list the acts or failures to act which might constitute violations of these obligations. While principal guidelines can be given, and technical instructions will be required, the subjects to which the observers direct particular attention may in the last analysis have to be dictated by their good judgment in the light of what they see during the inspection.

DISCUSSION

Article VII of the treaty sets forth the purposes and describes the general procedures and scope of inspection.² The purpose of inspection is stated in the first clause of Article VII to be “to promote the objectives and ensure the observance of the provisions of the present Treaty.” It may be noted that the purpose of the inspection is in terms broader than simply checking for treaty violations; it is designed also to promote the treaty’s objectives. Since the Treaty’s objectives are very broad, the appropriate scope of concern of the observers would appear likewise extremely broad, and it would not be technically necessary to justify particular desired observations in terms of specific treaty obligations. However, for all practical purposes, the observers will be primarily concerned with matters linked with express treaty obligations. It may therefore be useful to examine these obligations seriatim.

1. Peaceful Purposes.

Article I of the Treaty provides that Antarctica shall be used for peaceful purposes only and that there shall be prohibited inter alia any measures of a military nature such as the establishment of military stations and fortification, the carrying out of military maneuvers, or the testing of any type of weapons. It is expressly provided, however, that military personnel and equipment may be used for scientific research or for any other peaceful purposes.

The observers should therefore pay particular attention to any indications of the following:

(a) The establishment of military bases and fortifications;

(b) The carrying out of military maneuvers;

(c) The testing of any type of weapons;

(d) Any other measure which might be construed as one of a military nature.

If military personnel or equipment are in use, the purpose and scope of their use should be carefully noted, and, if possible, the reason for the use of military instead of civilian personnel or equipment enquired into.

2. Exchange of Scientific Information.

Article III provides, inter alia, that to the greatest extent feasible and practicable, information regarding plans for scientific programs in Antarctica shall be exchanged and scientific observations and results from Antarctica should be exchanged and made freely available.

The observers should, therefore, pay particular attention to the following:

(a) What scientific programs are being carried on?

(b) What scientific observations and results are being obtained?

Of course, the observers will not be in a position to verify whether information regarding the programs, observations, and results has in fact been exchanged and made freely available; this will have to be doneby comparing information from their report with information previously or subsequently made available by the foreign government. However, the observers should attempt to obtain as detailed a sense of the scope of scientific activity as feasible in order that an evaluation can be later made in this respect.

3. Nuclear Ban.

Article V of the Treaty prohibits any nuclear explosions in Antarctica or the disposal there of any radioactive waste material.

The observers should, therefore, look for any indications either of:

(a) the carrying on of nuclear explosions, or

(b) the disposal of radioactive waste material.

4. Advance Notification concerning Expeditions, Stations, Personnel and Equipment.

Article VII(5) provides that each Contracting Party will inform the other Contracting Parties and give them advance notice of all expeditions to and within Antarctica, all stations in Antarctica occupied by its nationals, and any military personnel or equipment intended to be introduced by it into Antarctica. Paragraph I–VI of the 1961 Canberra Recommendations, which were approved by all the Contracting Parties (TIAS 5094), recommends a more detailed list of such information which should be furnished.

The observers should observe and record information regarding the detailed matters specified in Paragraph I–VI, in order to permit subsequent verification as to whether the provisions for advance notification have been in fact complied with.

5. Preservation and Conservation of Living Resources and Protection of Historical and other Monuments and Objects.

Article IX provides that the Parties may, in Consultative Meeting, recommend to their governments measures in furtherance of the principles and objectives of the Treaty, including measures regarding the preservation and conservation of living resources in Antarctica. These measures are to become effective when approved by all the Contracting Parties.

The Contracting Parties, at the 1961 Canberra meeting, recommended that, as an interim measure, and to the extent possible under national legislation and binding international convention, they issue general rules of conduct for the preservation and conservation of living resources in Antarctica on the lines of the 1960 SCAR recommendations, annexed to the recommendation. This recommendation, inter alia, was approved by the United States and the other parties (see paragraph I–VIII of TIAS 5094) and was subsequently reaffirmed and reapproved at the 1962 Buenos Aires meeting (see para II–II of TIAS 5274). The Canberra meeting also recommended that governments adopt all adequate measures to protect tombs, buildings or objects of historical interest from damage and destruction (I–IX of TIAS 5094), and this was similarly approved by governments.

While the acceptance of these recommendations appears technically to create only an obligation to issue such general rules, and then only to the extent possible under national legislation, it may be argued that acceptance in practical effect comes close to importing an obligation to conform with the standards. Matters covered by the rules therefore seem an entirely appropriate subject of observation.

The observers should accordingly note whether there are any activities being engaged in inconsistent with the general rules set forth in the Canberra meeting, and in particular: (a) whether indigenous animals or plants are being unnecessarily destroyed or disturbed or injured except as provided in the general rules; (b) whether alien forms of flora and fauna are being deliberately introduced except when rigidly controlled; and (c) whether the activities specified in paragraph 3 of the general rules and conduct are being regulated with a view to preventing serious harm to wildlife (e.g. allowing dogs to run free, discharge of oil from ships, etc.).

6. Facilitation of Observation.

Article VII, as previously noted, provides in extremely broad terms for the scope of inspection. Article VIII provides that there will be no exercise of jurisdiction over the observers making the inspection.

The observers should pay particular note to any restrictions on their freedom of movement or observation or to any attempts to exercise jurisdiction over them, and should include any such activities in their report.

7. General Exchanges of Information.

The recommendations of the 1961 Canberra Consultative Meeting, accepted by all the Contracting Parties, recommended that Governments undertake to exchange information on logistic problems (para I–VIII) and that governments exchange by all means deemed advisable information on the application of nuclear equipment and techniques in the Treaty area (para I–III).

Matters relating to these subjects would therefore also be appropriate subjects for observation.

1. Source: National Archives and Records Administration, RG 59, IO Files: Lot 69 D 169, Antarctica Files, U.S. Activities, Legal, 1963. Secret.
2. In a previous memorandum from L/UNA-Mr. Schwebel to OES-Mr. William Mills on the subject of “Scope of Inspection under the Antarctic Treaty”, dated April 25, 1963, we express the opinion that the physical scope of such an inspection is virtually unlimited, except as regards documents. [Footnote in the source text.]