4. RESULTADOS Y DISCUSIÓN
4.4 Validación y estimación de la incertidumbre de medida
95. Scientific observations and results are to be exchanged and made freely available, although to whom is not specified.
72
It also articulates the consensus, or unanimity, rule which has become a fundamental norm of the Treaty system (discussed in section
in
below).Under paragraph 1 the original Contracting Parties, are to meet in Canberra within two months of entry into force of the Treaty, and thereafter at suitable intervals and places
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) use of Antarctica for peaceful purposes only; (b) facilitation of scientific research in Antarctica;
(c) facilitation of international scientific cooperation in Antarctica;
(d) facilitation of the exercise of the rights of inspection provided for in Article VII of the Treaty;
(e) questions relating to the exercise of jurisdiction in Antarctica; (f) preservation and conservation of living resources in Antarctica.
The Treaty parties have argued that this is not an exclusive list. They suggest that any issue which relates to the principles and objectives of the Treaty (which is open to interpretation given that the principles and objectives of the Treaty are not defined) and which meet the test of a peaceful purpose, is a valid matter for the consultative agenda.
No voting rules are established in the Treaty itself. Article LX does provide that "the measures referred to ... shall become effective when approved by all the Contracting Parties whose representatives were entitled to participate in the meetings held to consider those measures". Article IX thus provides an effective veto for consultative governments and ensures that neither the claimants, nor the non-claimants, can be outvoted. The requirement for consensus is implicit. The rule that consultative recommendations be adopted by consensus was made explicit in the Rules of Procedure drawn up prior to the first consultative meeting. Bush (1982:82) argues that the "weak administrative arrangement is consistent with the limited objects which states, especially those claimant states which particularly feared erosion of their claimed sovereign rights, envisaged for the treaty".
Area o f application
The area of application of the Treaty proved to be a contentious issue in the negotiations. Article VI establishes the rule that
the provisions of the present Treaty shall apply to the area south o f 60* South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or exercise of the rights, of any state under international law with regard to the high seas within that area".96
96. The lines of delimitation of four of the claims stretch to 60*S at their northernmost and thus technically encompass areas of high seas. The Chilean and Norwegian claims have no northern
This does not provide a definition of Antarctica which is not defined in the Treaty (even though it is used 40 times) except that where the term is interpreted by the Treaty parties to mean the continent, it includes all ice-shelves.97 Ice-shelves, therefore, are not high seas, even though they are not grounded on land. This was particularly important for New Zealand, much of whose claimed territory encompasses the Ross Ice Shelf.98
Article VI was drafted "so as to leave indefmite the question of what was the high seas" (Phleger cited in Bush 1982:144). It provides no assistance as to whether the continental shelf or territorial waters are high seas or not. In this respect it is linked with the ambiguities of article IV. For the claimants, the continental shelf and territorial waters are pan of sovereign territory (and therefore under national jurisdiction): for the non-claimants they were not. Oxman (1986:225) observes that a "difficult question is whether the prohibition on new claims or enlargement of existing claims [in article IV] applies to coastal state jurisdiction".
Article VI is also ambiguous on whether any high seas rights are to be restricted under the Treaty. It could be argued that military activity and the disposal of radioactive waste are high seas freedoms and that the Treaty rules which prohibit those practices do not apply when they are conducted on the high seas within the Treaty Area. In practice those high seas freedoms which are not explicitly the subject of any other article of the Treaty may be exercised freely (on the high seas) as long as they meet the test of a peaceful purpose.99
Compliance rules
Compliance is an important feature in the development of a regime (an aspect discussed below in section ID of this chapter). There are no explicit rules in the Treaty to enforce compliance.
The Treaty does include inspection rules "to promote the objectives and ensure the observance of the provisions o f the present Treaty". Article VII sets out rules about what may be inspected, by whom and under what conditions but provides no guidance on what procedures are to be followed if an inspection reveals violations of the
boundary, and the British claim is set at 50*S and 58*S, although the area of the British claim between that and 60*S was separated after the Treaty was signed to become the Falkland Islands Dependencies (Beck 1986b:68). The limits of the Tripartite Naval Agreement were set at 60*S. 97. Shapley (1985:95) notes that the British were charged with the task of drafting this article, and
came up with 15 definitions o f ice.
98. Although New Zealand was a reluctant claimant, and even offered at the Washington Conference to relinquish its claim, if all other claimants did likewise.
74
Treaty.100 All areas o f Antarctica, including all stations, installations and equipment within those areas, and all ships and aircraft at points o f discharging and embarking cargoes or personnel, are to be open at all times to inspection. 101 Inspection is therefore intended to be continent-based, rather than covering activities on the high seas. 102
However inspection may be conducted only on a unilateral basis: no agreement could be reached on multilateral inspection or the establishment o f an independent inspectorate. 103 Thus the rules are limited. Only consultative parties may conduct inspections. This article is nevertheless significant in that it represents the first agreement by the Soviet Union and the United States on mutual inspection, although not on their territory. 104
The parties are also required, under article X, to "exert appropriate efforts, consistent with the Charter o f the United Nations, to the end that no one engages in any activity in Antarctica contrary to the principles and purposes o f the present Treaty". However this is a general exhortation which adds little to the already weak compliance rules. 105
Amendment o f the Treaty
Under the amendment procedures elaborated in Article XII amendments or modifications to the Treaty may be made at any time after entry into force by unanimous agreement, and ratification, by the consultative parties. The consensus requirement is thus reinforced. 106
100. Peterson (1988:44) suggests that the rules for prior notice of scientific programs and the exchange of scientists (article III) also contribute to ensuring compliance with Treaty rules. 101. Article VII also provides for aerial observation. For those states which denied the validity of the
claims this reinforces the argument that there is no territorial airspace in the Antarctic. The claimants, however, can permit overflight of their territory by accepting it as a specific provision of the Treaty and as a concession to the principles of scientific cooperation. US President Eisenhower was apparently particularly pleased with this provision which he saw as an echo of his ‘Open Skies’ proposal (Shapley 1988:315).
102. However, given that Antarctica is not defined, and that the provisions of the Treaty apply south of 60*South, the question might be raised whether inspection of installations and equipment that are not ships, for example, drilling rigs, are covered by this provision, or whether this would be an infringement of high seas freedoms.
103. Soviet fears of setting a precedent for inspection in arms reduction agreements precluded collective inspection or the establishment of an independent inspectorate.
104. The inspection provision had initially been linked to the demilitarisation provision, but the provisions were delinked in the face of opposition by the superpowers.
105. This articles raises a general question of treaty law: to what extent are non-signatories bound by either the provisions or sentiments of an agreement to which they are not party. For example, are non-Treaty parties bound to refrain from making the Antarctic the scene or object of international discord. Shapley (1985:98-99) notes that a draft article on the rights of non-parties was drafted, but later dropped. See also Bush (1982:99-103).
106. Non-consultative parties then have a period of two years from the date of entry into force to also accept any amendments, which become effective for that NCP at the time of the notification of ratification. If no such ratification is deposited within two years, then that NCP is deemed to have withdrawn from the Treaty.