67. Position Paper for the Special Preparatory Meeting for the Ninth Antarctic Treaty Consultative Meeting1 2
SPECIAL PREPARATORY MEETING FOR THE NINTH ANTARCTIC TREATY CONSULTATIVE MEETING
Paris, France—June 28 - July 10, 1976
Recommendation VIII-14 (Tab 1) of the Eighth Antarctic Treaty Consultative Meeting recommends to the Consultative Parties that, inter alia, the subject “Antarctic Resources— The Question of Mineral Exploration and Exploitation” be the subject of consultation among them with a view to convening a special preparatory meeting during 1976, the terms of reference to be determined precisely through diplomatic channels. The meeting will be held in Paris, France, from June 28 - July 10 1976. The terms of reference for this meeting are at Tab 2.
The special preparatory meeting will report to the Ninth Antarctic Treaty Consultative Meeting to be held in London in 1977. The same subject will undoubtedly be on the agenda. It may also be discussed informally at regular preparatory meetings before then.
The 1959 Antarctic Treaty established a unique legal regime as between the twelve States that conducted activities in Antarctica during the International Geophysical Year. The Treaty has worked to the satisfaction of the twelve with respect to all activities undertaken in Antarctica to this date, and has fulfilled its primary purpose of ensuring that Antarctica shall be used for peaceful purposes only and shall not become the object of international discord among the twelve.
The treaty is, however, only a partial de facto settlement of the underlying disputes over territorial sovereignty in Antarctia. The Treaty sets aside the issues arising from claims to territorial sovereignty, insofar as activities provided for in the Treaty are concerned. Since the treaty does not refer to the exploration or exploitation of mineral or living resources, however, it cannot be expected to avoid any international discord that may result from such activities. In the absence of new [Page 2] internationally agreed approaches to resource exploration and exploitation activities, each nation can be expected to respond to any such activities in accordance with its underlying juridical position and any relevant political factors. Any resulting conflict could not but impair the full range of U.S. interests in Antarctica, as well as the interests of our Antarctic Treaty partners.
The question of mineral resource activities was discussed informally at the Sixth and Seventh Consultative Meetings. The Seventh Meeting adopted a recommendation that governments study the effects of mineral exploration, and that the subject “Antarctic Resources—Effects of Exploration” be placed on the agenda of the Eighth Meeting.
A study of the question within the U.S. Government resulted in NSDM 263, which continues to form the basis for U.S. policy in this area. NSDM 263 provided that it is the objective of the United States to ensure that, if undertaken, commercial exploration and exploitation in Antarctica does not disrupt the implementation of the Antarctic Treaty or become a cause for significant international discord; to ensure that any exploitation is compatible with environmental considerations and with United States obligations under the Treaty; and to gain acceptance of an internationally agreed approach to commercial resource activities that would (a) permit free access to the Antarctic Treaty area; (b) be without prejudice to, and appropriately compatible with, U.S. law of the sea interests; -(c) provide for the protection of the Antarctic environment; and (d) to preserve rights under the Treaty of scientific research. It also provided that while the United States is seeking an internationally agreed approach, it should oppose actions by any nation with the purpose of commercial exploration and exploitation in Antarctica, and urge other nations to join the United States in this interim policy.
A more detailed study called for by NSDM 263 resulted in a Presidential decision reflected in an NSC memorandum dated May 20, 1975. This memorandum affirmed that the United States would seek an internationally agreed arrangement based on the principles established in NSDM 263 and indicated that we should explore possible mechanisms, including consideration of a new decision-making procedure that, inter alia, avoids the [Page 3] rule of unanimity. The underlying study indicated that such a new agreement would recognize the right of the United States and others to undertake mineral resource activity in Antarctica, subject to a special mineral resource arrangement. Issues such as the mechanism for acquiring rights to the resources, resolving competing claims, managing the common pool problem, and establishing and enforcing standards to protect the environment would be addressed by the new decision-making procedure.
This decision-making-procedure would be competent to make such decisions as necessary as the need arises and as better information than exists today becomes available. The agreement establishing it would be designed to accommodate the conflicting juridical positions of claimants and non-claimants, through a mutually acceptable framework for mineral resource activities in Antarctica. It should also assure to the United States sufficient protection in the making of future resource decisions to protect our interests.
The United States delegation sought three specific goals at the Eighth Antarctic Treaty Consultative Meeting. First, the Delegation sought to develop sufficient information upon which to base an assessment of the prospects for reaching an acceptable agreement. Second, the Delegation sought to obtain an agreed recommendation setting forth the principles upon which an internationally agreed resource regime would be based. Third, a Delegation objective was to convene, an experts meeting to begin work on such a regime.
The Delegation reported that the political will on the part of all participants to seek an agreed approach among the twelve was striking. However, the Delegation was unable to predict whether agreement on a resource regime will be obtainable since many delegations were unprepared to discuss the basic questions of access to the resources, a regime for mineral resource activities, and participation by others. Moreover, a number of delegations insisted that discussions on legal and political aspects of the question be without prejudice to the underlying view of some that no mineral resource activities should be undertaken unless the twelve are satisfied that they can be undertaken in an environmentally safe manner. Recommendation VIII-14 accommodates this position, as well as the view of others that mineral resource activities may proceed under the existing regime and that the twelve must explore [Page 4] seriously whether a new regime can be established that could, inter alia, provide necessary environmental controls so that resources could be exploited safely.
The United States Delegation should continue its efforts to gain acceptance of the concept that there should be an internationally agreed approach to any mineral exploration and exploitation activities that may be undertaken in Antarctica, based upon the principles adopted by NSDM 263 and the May 20 Memorandum. Efforts to delay discussion of a regime should be resisted. Any move to reopen the question of a moratorium on such activities must be opposed. The Delegation may indicate that the United States will continue its policy of voluntary restraint for the time being and so long as timely progress is made toward an agreed solution, as that policy is set forth in the preamble to Recommendation VIII-14 and the Final Report of the Eight Antarctic Treaty Consultative Meeting.
The Delegation should explore what the contents of an internationally agreed arrangement might be without, however, make any commitments or proposals. These explorations should focus initially on the issues that must be addressed, drawing on the underlying accommodation reached at the Eighth Meeting, such explorations should be without prejudice to the question whether mineral resources exploration and exploitation will, or should, occur.
The Delegation should participate actively in discussions relating to environmental and economic concerns in particular. This is primarily to broaden, insofar as possible, the data base on which the twelve may make decisions, as well as to sustain the pressure to reach timely agreed solutions.
The Delegation should also insist on the production of a final written report indicating agreed substantive conclusions of the meeting, if any, and containing a detailed agenda on the mineral resource question to provoke thorough consideration of the issues entailed in a regime by all governments in preparation for the Ninth Meeting. The Delegation should seek a recommendation to the Ninth Meeting, on procedural means to expedite consideration of the issues, such as a standing or annual meeting of experts pursuant to Recommendation III-24.[Page 5]
The Delegation will consider the meeting to be confined to mineral resource questions. We may informally indicate that the United States is studying questions related to living resources and is, at this point, favorably disposed to early serious consideration of the issues by the twelve.
A. SUBSTANTIVE ISSUES
Many of the Consultative Parties place their primary emphasis on the need to defer any mineral resources activities until it is determined that they may be undertaken in an environmentally sound manner. For some, underlying this attitude may be a desire to prevent exploration and exploitation on environmental grounds for political or commercial reasons. For others, there is a genuine concern for the environment and a desire to hold open the options of prohibiting exploitation because of possibly unacceptable environmental risks, or imposing environmental controls so that exploitation and exploration may be undertaken safely. All agree that further information is needed on the environmental impact of possible mineral exploration and exploitation.
In the context of discussions on the need for acquiring a better understanding of the environmental aspects, the Delegation should reiterate that we see no international legal prohibition to the commencement of commercial exploration and exploitation, although we continue to support the need for restraint in such matters as provided by the decisions of the Eighth Meeting. The Delegation may also wish to explain that a decision to begin such activities would be made by the firms, in the United States, and that we have no legislative authorization to prevent them from going ahead when they so decide.
This may also be the case for others and, of course, there is always the possibility of non-parties engaging in resource activities. The Delegation, therefore, should point out that since resource activities may occur, a resource settlement needs to be in place not only to ensure adequate protection for the environment, but also the interests of the Consultative Parties. Thus, a prompt settlement of the resource issue is necessary, even though all the desirable environmental [Page 6] data may not be available—such judgments must always be made on the best available scientific evidence, and this is normally less than complete.
The United States is apparently ahead of the others in assessing the environmental aspects of the question and should endeavor to share this knowledge in order to expedite consideration of the issue. Recommendation VIII-14 called for governmental studies of the environmental aspects and we should press others for progress reports on their studies as well. The delegation may point out that the conscientious implementation of this aspect of the recommendation is a key if the timely agreed solutions called for by Recommendation VIII-14 are to be found.
While the twelve speak of the need for consultations on the economic aspects of the question, little discussion has yet occurred. It is assumed that the focus of attention will be on the economic feasibility of commercially exploiting offshore hydrocarbons in Antarctica. The United States should, of course, oppose any effort to construe economic aspects as “economic implications” has been construed in other negotiations (i.e., production controls for the protection of existing market patterns). The Delegation may participate in discussions of the relative commercial attractiveness of Antarctic oil, subject to the usual caveat concerning the speculative nature of the subject, drawing on the recent NPC report and other available reports.
In doing so, the Delegation should bear in mind that our tactical stance on the question whether, and when, commercial activities will occur can have a significant effect on the pacing of deliberations among the twelve. That is, to the extent others believe exploitation is imminent, they can be expected to feel that a solution is urgently needed. While this can work to our advantage, the Delegation should also bear in mind that overemphasizing the possibility that mineral exploitation may commence soon could strengthen positions in favor of moratoria and provide incentives for support of other measures to control the timing of commercial activities, possibly including [Page 7] delay in the adoption of a resources regime. The point could also lose its credibility over time if such activities do not occur when the expectations we might create suggest they should. Accordingly, the delegation should treat the question of economic feasibility in a straightforward and factual manner. It should be noted that the political and environmental issues of greatest concern do not arise only upon the commencement of exploitation, but upon the commencement of some types of commercial exploration and, more particularly, exploratory drilling. Exploration could occur at almost any time with little forewarning. It may also be noted if explorations prove the commercial attractiveness of Antarctic minerals, especially hydrocarbons, it would seem inevitable that exploitation will occur, even if we cannot predict when it will occur.
Based solely on publicly available information, the Delegation may enter into discussions of the state of the art of offshore exploitation technology. This should be a straightforward and factual discussion of world technology—not solely United States. In any event, the Delegation should seek to avoid creating the impression that exploitation will commence immediately after a settlement is reached—those lacking the technology otherwise may seek to delay a settlement until they develop the technology, or to include in a settlement unreasonable conditions that would delay exploitation until they are ready to undertake it.
The United States has a clear-cut position with respect to non-recognition of territorial claims in Antarctica. This position is elaborated at Tab 4 as it relates to mineral resources. The delegation should bear in mind in particular that there is no international legal prohibition on the commencement of mineral exploration or exploitation of Antarctica and that we do not consider that any State exercises offshore jurisdiction with respect to the adjacent waters or continental shelf of Antarctica.[Page 8]
Other delegations may raise questions relating to the form and structure of a new legal regime for mineral resource activities. Our attitude should be that we should have the elements of an agreement in principle in view first, and leave questions of form for later.
With respect to the Law of the Sea Conference, the twelve reached an informal understanding at the February, 1975 Prepcom, that each of the twelve would refrain from raising issues relating to Antarctica at the LOS Conference and would consult immediately if others raised them. The United States will continue this approach.
If others seek to discuss the LOS/Antarctica relationship in public or in private, the delegation should maintain its essentially passive position on the issue for tactical reasons. In such discussions, the delegation should leave the impression with others that the United States is not unmindful that there may be a concerted effort by developing countries on the issue and that this could put the Twelve in a difficult position. The Delegation should further indicate that depending upon the progress we make within the treaty framework, the need may arise to re-examine our position with regard to Antarctic mineral resources and the law of the sea and other global fora.
A difficult political question that will be raised relates to the participation in a mineral resources regime by acceding states and others not party to the treaty. The delegation should keep our options open on this point, but should express its skepticism as to the value of a regime in which all nations of the world participate in the governing mechanism. The delegation state that we are considering a regime administered by the twelve, or the twelve plus X, where X represents interested states according to objective criteria in a manner analogous to the Treaty approach to consultative status. We should indicate that we are thinking in terms of access for exploitation [Page 9] for a larger, perhaps unlimited, number of states subject to reasonable terms and conditions, possibly including revenue sharing.
A second political question involves the possibility of consideration by the UNGA of Antarctic questions. Chile and Argentina have reported that Sri Lanka will raise the issue at the non-aligned conference this August, and Sri Lanka has indicated it will seek to place the item on the UNGA agenda this fall.
All twelve prefer to address resource interests within the Antarctic Treaty framework and to avoid UNGA consideration. Argentina, Chile and Australia seem most concerned over this possibility, while it is unclear how firmly the Soviet Union is committed to the position. The United States has adopted a tactical stance of supporting the consensus without leading the opposition to UNGA involvement.
The delegation should continue to support the principle of avoiding UNGA involvement in Antarctic matters, while indicating that our perception is that the best means of doing so is to demonstrate that the twelve have the matter well in hand. This requires concrete evidence of timely progress at least. We believe the Antarctic Treaty has served not only the parties, but the international community as a whole very well. Assuming the parties are able to avoid dissension over issues that remain unresolved among them, there is an excellent basis for defending the pattern of cooperation under the Treaty as a servant of international community interests in furtherance of the purposes and principles of the United Nations Charter. We assume new questions will be addressed in the same spirit.
Specific proposals may be put forward on diplomatic steps to avoid prejudice to these objectives at the non-aligned conference or the UNGA. The delegation may explore what could be done, but must request guidance from the Department before undertaking to support such diplomatic steps.
Detailed Agenda and Expedited Procedures
The delegation’s efforts to incorporate in the report of the special preparatory meeting a proposed detailed agenda for the Ninth Consultative Meeting should be subordinated [Page 10] in the early phases of the meeting to the comprehensive consultations on substantive issues. However, agreement on a proposed agenda would be tangible evidence of progress and should be strongly encouraged. The delegation should seek agreement along the lines of the draft detailed agenda at Tab 3, and should propose that agenda. We should avoid negotiating an agenda so bland as to provide little guidance to governments for preparations for the Ninth Meeting. It should focus on the central issues that must be addressed, such as rights to resources, resolving competing claims, new decision-making procedures, environmental standards and enforcement, etc., and not solely general categories of issues such as environmental aspects, technological aspects, legal aspects, political aspects, etc.
It is apparent that timely progress requires more frequent, and less formal, meetings than the bi-annual consultative meetings, and that the ad hoc arrangements (i.e., TOR through diplomatic channels) for this special preparatory meeting were unnecessarily awkward to complete. Accordingly, the delegation should seek to include in the report of the special preparatory meeting to establish a suitable mechanism for more frequent meetings. One possibility is a standing or annual meeting of experts as provided for in Recommendation 111–24, and the delegation may make such a proposal.
- Source: National Archives, RG 59, L/OES Files: Lot 98 D 419, Antarctica, 1976 Paris spec. prep. Confidential. Drafted by S. J. Burton; and cleared in OES, DOD, EPA, NSF, Interior, Commerce, CEQ, Treasury, FEA, and ACDA. Tab 1 has not been found. The underlined sections and other handwritten comments appear in the original text. In the margin of page 9, third full paragraph, second sentence, is written in an unknown hand, “demonstrable progress is required.”↩
- The paper identified general objectives and elucidated positions on environmental, economic, technological, legal, and political issues for the U.S. delegation.↩