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The Antarctic Minerals Negotiating Process

Published online by Cambridge University Press:  27 February 2017

Christopher C. Joyner
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Extract

Since 1982, a select group of states has been engaged in a series of multilateral negotiations to fashion a regime governing the exploration and exploitation of minerals in the Antarctic region. Because of the controversy in the United Nations over whether Antarctica constitutes a portion of the “common heritage of mankind,” these negotiations have attracted increasing publicity, but their modus operandi has been left largely unexamined. The chief purpose of this paper is to analyze the process by which this group of concerned states has pursued national priorities within the decision-making framework and context of the Antarctic minerals negotiations.

Type
Research Article
Information
American Journal of International Law , Volume 81 , Issue 4 , October 1987 , pp. 888 - 905
Copyright
Copyright © American Society of International Law 1987

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Footnotes

*

Senior Research Fellow, Marine Policy Center, Woods Hole Oceanographic Institution; Associate Professor of Political Science and member of the School of International Affairs, The George Washington University (on leave 1986–1987). This study originated in the author’s participation in the Processes of International Negotiation Task Group on Environment and Natural Resources, sponsored by the American Academy of Arts and Sciences. The author wishes to thank R. Tucker Scully, Lee A. Kimball, Thomas L. Laughlin, Scott Hajost, James A. Barnes, Arthur Watts and Rüdiger Wolfrum for their many helpful comments and suggestions in the preparation of this article. Responsibility for any errors of commission or omission is solely that of the author. Research supported by the J. N. Pew, Jr. Charitable Trust and the Marine Policy Center of the Woods Hole Oceanographic Institution. Woods Hole Contribution No. 6550.

References

1 The notion of a “common heritage of mankind,” as applied to Antarctica, would have the region declared part of the global commons, i.e., those areas which purportedly belong to everyone and in whose benefits all people are entitled to share. Though the concept is espoused widely in connection with treaty making on the deep seabed and celestial bodies, especially the moon, its international legal foundations and acceptability are as yet unclear and little recognized in state practice. For a critique of the notion, see Remarks of Christopher, C. Joyner, 79 ASIL Proc. 62 (1985)Google Scholar; and Joyner, , Legal Implications of the Common Heritage of Mankind, 35 Int’l & Comp. L.Q. 190 (1986)CrossRefGoogle Scholar. For a discussion of U.S. national interests and the common heritage approach, see oyner, & Theis, , The United States and Antarctica: Rethinking the Interplay of Law and Interests, 20 Cornell Int’l L. J. 65, 93–102 (1987)Google Scholar.

2 12 UST 794, TIAS No. 4780, 402 UNTS 71.

3 Article IX, paragraph 1 of the Treaty, id., provides:

Representatives of the Contracting Parties . . .meet. . . for the purpose of exchanging information, consulting together on matters of common interest pertaining to Antarctica, and formulating and considering, and recommending to their Governments, measures in furtherance of the principles and objectives of the Treaty, including measures regarding:

  • (a)

    (a) use of Antarctica for peaceful purposes only;

  • (b)

    (b) facilitation of scientific research in Antarctica;

  • (c)

    (c) facilitation of international scientific cooperation in Antarctica;

  • (d)

    (d) facilitation of the exercise of the rights of inspection provided for in Article VII of the Treaty;

  • (e)

    (e) questions relating to the exercise of jurisdiction in Antarctica;

  • (f)

    (f) preservation and conservation of living resources in Antarctica.

Interestingly, because of their relative unimportance and lack of prominence at that time, matters related to resources in general and mineral resources in particular were not specifically considered in the Treaty.

4 Id., Art. IX, para. 2.

5 As of mid-1987, those states that have acceded to the Antarctic Treaty but do not enjoy the status of Consultative Parties include the following: Bulgaria, Cuba, Czechoslovakia, Denmark, Finland, the German Democratic Republic, Greece, Hungary, Italy, the Netherlands, North Korea, Papua New Guinea, Peru, Romania, South Korea, Spain and Sweden.

6 For a discussion of this relationship’s effect on the Antarctic minerals negotiations, see generally Joyner, , The Evolving Minerals Regime for Antarctica, in The Antarctic Legal Regime (Joyner, C. & Chopra, S. eds. 1987)Google Scholar.

7 Recommendation VII-6, Seventh Antarctic Treaty Consultative Party Meeting, Wellington, New Zealand (1972), reprinted in 1 Antarctica and International Law: A Collection of Inter-State and National Documents 275–76 (Bush, W. ed. 1982)Google Scholar. For an excellent assessment of early developments leading to the present Antarctic minerals negotiations, see Colson, , The Antarctic Treaty System: The Mineral Issue, 12 L. & Pol’y Int’l Bus. 841 (1980)Google Scholar.

8 Recommendation VIII-14, Eighth Antarctic Treaty Consultative Party Meeting, Oslo (1975), reprinted in Bush (ed.), supra note 7, at 328–29.

9 Recommendation IX-1, para. 8, Ninth Antarctic Treaty Consultative Party Meeting, London (1977), reprinted in Bush (ed.), supra note 7, at 343, 345.

10 Recommendation X-1, Tenth Antarctic Treaty Consultative Party Meeting, Washington, D.C. (1979), reprinted in Bush (ed.), supra note 7, at 365.

11 Recommendation XI-1, Eleventh Antarctic Treaty Consultative Party Meeting, Buenos Aires (1981), reprinted in Bush (ed.), supra note 7, at 441–43.

12 Id., para. 5.

13 Id., para. 6.

14 The term belongs to Arthur Watts. Watts, , Lessons to Be Learned from the Mineral Resources Negotiations, in Antarctic Challenge III: Conflicting Interests, Cooperation, Environmental Protection, Economic Development (Proceedings of an Interdisciplinary Symposium, July 7–12, 1987) (Rüdiger, Wolfrum ed., forthcoming)Google Scholar.

15 For drafts of the first two Beeby texts, see The Antarctic Minerals Regime: The Beeby Draft, reprinted in Greenpeace International, The Future of the Antarctic: Background for a U.N. Debate, App. 8 (1983); and Beeby Draft II, reprinted in Greenpeace International, The Future of the Antarctic: Background for a Second U.N. Debate, App.8 (1984). Beeby III was discussed at the negotiating session in Tokyo in October 1986; see MR/17 REVISION II Annex to Chairman’s Informal Personal Report Antarctic Mineral Resources Convention: Draft Articles (September 1986) (mimeo.). Though neither yet published nor widely available, the most recent draft, “Beeby IV,” was the working draft for the negotiating session in Montevideo in May 1987. See Antarctic Mineral Resources Chairman’s Informal Personal Report: MR/17 REV III Annex to Chairman’s Informal Personal Report(April 1987) (mimeo.) [hereinafter Beeby IV Text]. References hereinafter to draft provisionsare to the Beeby IV document.

16 Beeby IV Text, supra note 15, Arts. 19–23.

17 Id., Arts. 28 and 38(2).

18 Id., Arts. 29–49.

19 Id., Arts. 24–27.

20 Id., Art. 33.

21 Id., Arts. 35–36.

22 Id., Arts. 37–43.

23 Id., Arts. 44–47.

24 Id., Arts. 50–51.

25 Antarctica: Measures in Furtherance of Principles and Objectives of the Antarctic Treaty, adopted June 2–13, 1964, Agreed Measures for the Conservation of Antarctic Fauna and Flora,17 UST 991, 996, TIAS No. 6058; Convention for the Conservation of Antarctic Seals, opened for signature June 1, 1972, 29 UST 441, TIAS No. 8826 (entered into force Mar. 11, 1978),reprinted in 11 ILM 251 (1972); Convention on the Conservation of Antarctic Marine Living Resources, done May 20, 1980, TIAS No. 10240 (entered into force Apr. 7, 1982), reprinted in19 ILM 837 (1980).

26 Antarctic Treaty, supra note 2, Art. I.

27 Id., Art. V.

28 Id., Art. I.

29 Id., Arts. II and III.

30 Id., Art. VII.

31 Id., Art. XI.

32 See Joyner & Theis, supra note 1, at 28–33. See generally Colson, , The United States Position on Antarctica, 19 Cornell Int’l L.J. 291 (1986)Google Scholar.

33 See generally Joyner, , Protection of the Antarctic Environment: Rethinking the Problems and Prospects, 19 Cornell Int’l L.J. 259 (1986)Google Scholar; Joyner, , The Southern Ocean and Marine Pollution: Problems and Prospects, 17 Case W. Res. J. Int’l L. 165 (1985)Google Scholar; and Joyner, supra note 6.

34 See, e.g., Action Now on the French Airstrip, ECO, No. 1, Apr. 22–26, 1985, at 1 (Greenpeace Newsletter); Antarctic EPA Debated, ECO, No. 3, May 22–31, 1984, at 1; and Beeby III Analysis: The Biodegradable Convention, ECO, No. 3, Oct. 27–Nov. 12, 1986, at 1–2.

35 See note 1 supra.

36 See note 15 supra.

37 For more extensive commentary, see Antarctica Project, Antarctic Briefing No. 8, Status of Antarctic Minerals Negotiations 1–5 (1986); Antarctica Project, Antarctic Briefing No. 13, Status of Antarctic Minerals Negotiations 3–9(1987); and Joyner, & Lipperman, , Conflicting Jurisdictions in the Southern Ocean: The Case of an Antarctic Minerals Regime, 27 Va. J. Int’l L. 1 (1986)Google Scholar.

38 Antarctic Briefing No. 8, supra note 37, at 2–4; Antarctic Briefing No. 13, supra note 37, at 3–4.

39 The less-developed ATCPs include Argentina, Brazil, Chile, China, India and Uruguay; the developed states are led by the United States, France, the United Kingdom, West Germany and Japan. See Joyner, supra note 6, text at notes 78–86.

40 Antarctic Briefing No. 8, supra note 37, at 2–3; Antarctic Briefing No. 13, supra note 37, at 5.

41 See Joyner, , Security Issues and the Law of the Sea: The Southern Ocean, 15 Ocean Dev. & Int’l L. 171, 182–86 (1985)Google Scholar.