El caso de Chile

Between 1961 and 1980 there were only nine new signatories to the Treaty.146 The decision-making club did not expand until 1977 when Poland became a consultative party. In the 1980s, however, the number of treaty signatories and the number of consultative parties expanded dramatically. This expansion was not unconnected with the debate about mineral resource exploitation.

Since 1980 twenty more states have acceded to the Treaty, and the number of consultative parties has increased by fourteen.147 The new consultative parties include countries such as India, China, Brazil, Uruguay and the Republic of Korea. This increase in the number of consultative parties was not unconnected with the process of strengthening the Treaty system to resist outside challenges. The existing consultative parties sought to co-opt developing states to counter criticisms of the Treaty system as a club for western, industrialised states.148

The involvement of non-traditional Antarctic states such as India and China has altered the balance of interests within the system, although their involvement has not subdued the perceived need to maintain the political compromise on sovereignty. Indeed the newer states have become rapidly socialised into the traditional norms o f the Treaty system and have become staunch supporters of the Treaty system. Nevertheless, as Beeby observes (1991:14) "it is [now] much less easy to generate a dynamic that will

146. See appendix 3 for a list of contracting parties to the Treaty.

147. This would make the total number of signatories 41 including 27 consultative parties - except that the reunification of Germany changes the numbers to 40 and 26 respectively, as both the FRG and GDR had been consultative parties.

148. The rules on substantial scientific activity were relaxed to accommodate some o f the newer Antarctic Treaty parties as part of the process of ensuring their participation in the system.

90 lead to a consensus acceptable to all". If the numbers continue to increase, he suggests, "there might need to be a search for new methods of arriving at a consensus".

That states have acceded to the Treaty and sought to attain consultative party status provides one measure of the legitimacy (and the strength) of the Treaty system. States have acceded for a combination of motives including the chance to participate in scientific investigation (and the prestige that accompanies that), to participate in decision-making and discussions on the future of the Treaty system, and the potential for access to resources.149 They benefit from access to decision-making on an equal basis and from the scientific expertise of the more experienced Antarctic countries.150

The external dimension

The 1980s heralded a growing international interest in the Antarctic which was fostered especially by the debate over mineral resources. Third-world countries led the challenge in the UN General Assembly, where they accused the consultative parties of constituting an exclusive, secretive club managing the Antarctic for their own ends. Environmental non-governmental organisations became increasingly and publicly critical of consultative parties’ record in protecting the Antarctic environment, a criticism which was located in a growing public awareness of the importance of environmental protection. These external demands are explored in greater detail in subsequent chapters.

Response to demands fo r change

In the context of internal and external pressures for change in the 1980s, it was not surprising that, with reluctance on the part of some, a cautious reassessment of the procedural framework of the Treaty system began to take place. The normative framework, however, was little affected.

The issue of the operation of the Treaty system, including the ‘openness’ of the system came back onto, and this time stayed on, the agenda.151 The vexed question of administrative arrangements and the establishment o f a secretariat should once again be raised. However this question has still not been settled in the face of opposition from

149. See, for example, Mansukoski (1987:15) on Finland, Joyner (1990b:53) on India, Lee (1990b:581) on China.

150. The national Antarctic programs o f consultative parties have often provided assistance to the newer Treaty parties in the conduct of their scientific work.

151. As a general issue the wider circulation of information about the treaty system, such as Final Reports, had been first considered in 1977 although little was done until 1983. By the 1980s reports were more fulsome and often used to contain decisions and set out further programs for action which were not the subject of recommendations.

Argentina with the support of some o f the newer consultative parties such as India and East Germany.152

As the numbers of acceding states increased, non-consultative parties (NCPs) became increasingly dissatisfied at being excluded from the decision-making process. From 1983 they were invited to attend consultative meeting (as observers only), a decision which Kimball (1983a:5) called a "major departure from prior practice".153

The new openness extended to making publicly (although not easily) available documents tabled at consultative m eetings.154 During the 1980s the Final Reports of the consultative meetings became increasingly detailed and often contained the substance o f agreements and programs o f further action which were not incorporated into recommendations.

From ATCM XIV (1987) the consultative parties invited experts from appropriate international organisations to assist with deliberations at regular consultative

152. It was raised briefly at the 11th Meeting in 1981, possibly motivated by the recent conclusion of CCAMLR under which a small secretariat was to be established, and discussed more fully at the 12th Meeting (1983) where it was agreed that "the establishment of a more permanent infrastructure ... would be premature at the present time" (Final Report 1985:14). Discussion was again widened at the 14th Meeting (1987) to include the possibility of cost-sharing in respect of consultative meetings The financial burden of each individual consultative meeting fell on the host government. Some delegations expressed the view that there may be no alternative to the creation of a permanent secretariat which should, nevertheless, be "proportional to real needs, which in the immediate future called only for something modest in scope and cost" (Final Report 1987:12). Predictably this was again deferred for further consideration. The Final Report of the 15th Meeting sets out in some detail the arguments on this matter, with the observation that "in view of the differing arguments that had been expressed, the Meeting was unable to reach a consensus on this issue".

153. The question of observers at consultative meetings had been raised at the 11th Meeting in 1981 where the view was expressed that this issue required careful thought before any conclusion could be reached. In 1983 NCPs were invited for the fust time (on a one-off basis). An invitation was extended to NCPs to attend the 13th meeting (including the preparatory meeting) in 1985 where the consultative parties decided that the invitation to NCPs should be on a permanent basis, subject to new rules of procedure. NCP delegations may attend all formal w ak in g group and committee meetings and speak, unless a consultative party delegation requests otherwise but may not participate in the decision. Draft rules of procedure were adopted to incorporate this change. In a further development of the decision-making process, the report of the 12th Meeting notes that the draft rules would be circulated to governments for their consideration and any government which had not indicated its views by 1 April 1984 would be taken to have accepted the text.

154. At the 13th meeting (1985) documents from the fust three consultative meetings (1961, 1962 and 1964) were made publicly available, unless any party objected. Things moved quickly after that. The 14th Meeting ‘released’ documents from the 4th to the 7th Meetings, and the 15th Meeting did so f a all subsequent meetings, including any documents from that 15th meeting not otherwise designated. At the 12th Meeting in 1983 the circulation of the Final Reports was widened to include the UN Secretary General, no doubt a response to the inscription of the Question of Antarctica on the General Assembly agenda that year.

92 m eetings.155 Organisations invited to that meeting included the WMO, IUCN and SCAR.156 At the 15th Meeting, the organisations from which experts were invited to attend was widened considerably.157.

Thus the Antarctic Treaty system at the end o f the 1980s was, to some extent, procedurally different from the system o f the 1960s. There was, however, no change in the hierarchy o f values or in the dominance o f sovereignty norms. That change was to come with the overturning o f the Minerals Convention and the negotiation of the Madrid Protocol (discussed in chapter seven).

Conclusion

The Antarctic Treaty o f 1959 is a negotiated rather than a hegemonic agreement, with limited objectives. Its primary focus was the avoidance o f conflict between claimant states (especially Argentina, Britain and Chile whose claims overlapped), between claimants and non-claimants (over the validity o f the claims) and between the superpowers (both o f whom maintained a presence in the Antarctic). Thus the hierarchy o f values implicit in the Treaty and the regime ultimately places political and security concerns before economic or environmental ones where those interests are seen to be in conflict. The fundamental principle o f the Antarctic regime is the protection of the compromise on sovereignty. Only if this political bargain is maintained can other interests be met. In this regard, the consensus rule, and the exercise o f mutual restraint on the sovereignty question, have become foundational norms o f the Treaty system.

155. The issue was first raised at the 12 consultative meeting. At the 13th Meeting some delegations expressed concern that disadvantages (unspecified) might flow from premature invitations if these were made without a careful study (Final Report 1985:26). A decision on inviting experts was not made until the 14th consultative meeting. It was decided that such decisions should be made as part of the preparatory process for each meeting. The Rules of Procedure were amended accordingly. At the preparatory meeting for the 14th ATCM there was an attempt to include UNEP as one of the bodies to be invited as an observer but this was blocked by nations opposed to the inclusion of UN bodies. The Chair of the working group considering the agenda item for which the expert has been invited may "with the agreement of all the Consultative Parties" invite an expert to speak. Experts do not participate in decision-making and may participate only in those discussions for which they have been specifically invited.

156. It is extraordinary that after 24 or more years of providing scientific advice to the consultative process and essentially being responsible for the substance of a number of environmentally related aspects of the system it was only now that SCAR was to be invited to send an observer to the consultative process. What is more extraordinary is that the item SCAR was asked to assist with was that on air safety in Antarctica, at a meeting where its report on the Protected Area system was also under consideration. Note also that this process differs from that by which a SCAR observer (as opposed to expert) presents a general report to the Meeting on SCAR activities.

157. This did not extend to representatives from non-governmental environmental organisations generally although three consultative party delegations (Australia, New Zealand and the United States) had begun to include such representatives. The role of non-govemmental organisations is addressed in later chapters of this thesis.

Although Finlayson and Zacher suggest (1981:564) that some degree of commitment to interdependence norms is required for the development of a regime, in that parties forego a degree of independent decision-making, the Antarctic Treaty system is nevertheless characterised by a continuing substantive commitment to sovereignty norms.

The key actors in the development and maintenance of the regime were the diplomats and (to a lesser degree) the scientists who made national Antarctic policies and were also the international decision-makers on Antarctic issues. The principles and norms inherent in the Antarctic Treaty dictated the nature of the decision-making process and informed standards of behaviour which became both valued and expected by the key actors as the Treaty system developed. Similarly, as that decision-making process was seen to work over time in protecting interests and preventing conflict, its value was reinforced. Thus a learning process underpinned the development and strengthening of the regime. Reciprocity, that is a shared expectation that all parties would adhere to the norms of the Treaty, served to build and reinforce confidence in the Treaty system as a guarantor of states’ interests.

The procedural framework which was based on those values resisted institutionalisation and reinforced the consensus rule and the authority of the consultative parties (and the bureaucratic elite) over Antarctic decision-making. In the 1980s there was a limited opening up of the Treaty system in response both to internal and external demands for change. However this change was incremental and limited. It was within this framework that the Treaty parties addressed environmental issues - a process explored in the next chapter.

Chapter three

THE ANTARCTIC ENVIRONMENT: POLITICS AND OUTCOMES 94

Introduction

The Antarctic Treaty is not an environmental treaty. Protection of the environment is barely mentioned. Only the preservation and conservation of living resources is referred to and that was as much to do with economic sustainability as it was to do with the intrinsic protection of Antarctic species. However, inter-state cooperation on the Antarctic has been marked by the development, through the adoption of consultative recommendations and other instruments, of an environmental regime nested within the Antarctic Treaty system.

This chapter traces the development of that nested regime showing how its form was conditioned by the procedural and normative dimensions of the Treaty system which were examined in chapter two. The first part of this chapter describes the Antarctic environment that the rules and procedures were intended to protect. The chapter then discusses the actors involved in the environmental debate - the bureaucratic actors within the Treaty system, the scientists and non-governmental organisations.

Finally the chapter exposes the general environmental principles and norms, as well as the specific rules and procedures adopted on a range of environmental issues. The specific issues explored here are the conservation of fauna and flora, the development of the protected area system in the Antarctic, the conduct of scientific expeditions, waste disposal, environmental impact assessment and the question of tourism and non­ governmental expeditions.

There are three themes in this analysis. First, the decision-making process and the norms that guided it were, in the final analysis, flawed with respect to environmental issues. Second, as a result, the set of rules and procedures adopted was limited. Third, the implementation of those rules was erratic.

The discussion in this chapter provides the context for the analysis in subsequent chapters of the events surrounding the minerals conventions, the Australian/French proposal for a comprehensive environmental protection convention and subsequent changes in the environmental regime. The analysis here is necessarily selective. Numerous documents on a wide variety of environmental issues have been tabled at consultative meetings over a period of thirty years - this chapter cannot incorporate discussion of them all.