Resource Sharing in Antarctica:

V. Does the Minerals Regime take into Account the Interests of the International Community in Antarctic Resources?

This question presents two distinct aspects. The first is the relationship between the mineral regime, as a product of the restricted system of the Antarctic Treaty, and the United Nations, as the universal institution representing the general interests of the international community. As is known, the Antarctic minerals negotiations have produced sharp criticism within the UN General Assembly both on the ground of the alleged lack of legitimation for a restricted group of states to dispose of common resources - which some states feel should be subject to the common heritage of mankind - and because of the continuing presence in the Antarctic system of a state such as South Africa whose policy of apartheid has caused its exclusion from the General Assembly meetings.

The second aspect concerns whether the minerals regime, regardless of its lack of a formal relationship with the United Nations, is nevertheless capable of contributing to the general interest of mankind in terms of economic benefits, cooperation and progress.

On the first point, it is fair to say that the minerals negotiations hardly made any concession to the United Nations demand for wider participation in Antarctic politics. The Secretary-General was not invited to participate in the negotiations, and the Consultative Parties consistently rejected the request made by a group of non-aligned countries to adopt a moratorium on minerals negotiations in view of wider involvement of the international community in Antarctica. The Consultative Parties' position is that the Antarctic system, with its pluralistic composition and the participation of the most directly interested states, both from the point of view of territorial claims and of commitment to scientific activities in Antarctica, represents the best forum for resolving the tension between special (claimants) and general interests in Antarctica, especially when new issues, such as that of mineral resource activities, arise. Transferring the forum to the United Nations, they argue, would unduly expose Antarctic politics to the risk of ideological confrontation and would hardly be conducive to a workable regime for peaceful use of Antarctic resources.

Is the Consultative Parties' position self-serving? And is there really a problem of legitimacy in the Antarctic Treaty Parties' claim to extend their competence to the management and exploitation of Antarctic mineral resources? The answer here must be subtle. First of all, one must recognize that although divergence of opinion still exists, the recent cooperation in the Antarctic system of major actors in the Third World camp - such as India, China and Brazil - undoubtedly has reduced the intensity of the original movement in the General Assembly. Secondly, with regard to the issue of legitimacy, one must judge the Antarctic system not so much in terms of numeric participation but in terms of effective contribution to the global interests of the international community in Antarctica. In this perspective, it is hard to deny that so far the Antarctic Treaty participants have acted as the trustees of the world community interests in Antarctica: they have preserved the continent for peaceful use, they have promoted and guaranteed access to it for scientific research, they have preserved the environment and developed international cooperation. Most important, they have prevented Antarctica from becoming the object of international conflicts because of the competing territorial claims. Far from being incompatible with the United Nations, the Antarctic Treaty System presents itself as a specialized arrangement whose strength is in its capacity for ever expanding and adjusting to the new demands of the international community. The sole criterion for admission to the system is the demonstrated capacity of any state to engage in substantial scientific activities in Antarctica and to respect the fundamental principles of the Antarctic Treaty including disarmament, freezing of claims and mutual inspection. Looked at in this realistic perspective, the issue of legitimacy does not revolve so much around whether the regulation and management of Antarctic mineral activities is formally provided by the United Nations or by the Consultative Parties, but rather around whether the actual mineral regime, as adopted by the Antarctic Treaty Parties is substantively capable of satisfying the interests and of gaining the support of the outside world in terms of access to resources, sharing of benefits, information and decision-making powers.

This is the second aspect of the question raised above. In addressing it, one must recognize at the outset that the Minerals Convention does not make any formal concession to the idea of the common heritage of mankind. This notion haunted the Consultative Parties' meetings throughout the minerals negotiations: at times to evoke the specter of the unmanageable bureaucracy of the International Seabed Authority; at times to provide the bargaining chip to recall that - were things to turn out for the worst in the negotiations - the option to go back to the UN was still open. In the end, not only was the mention of the common heritage accurately avoided, but even the faint reference to the need that the mineral regime should be for the "benefit of mankind", a reference that surfaced in the early drafts of the negotiating text, disappeared from the language of the Convention.

In spite of this, several aspects of the Convention are notable for their attempt to incorporate some general interests of the international community in the minerals regime in order to make it acceptable to the wider world. These aspects concern:

1) international cooperation and information,

2) participation in the decision-making of the institutions,

3) participation in mineral resources activities and equitable sharing of benefits.

With regard to the first point, Article 5, concerning the area of application of the Convention, requires that the Antarctic minerals regime remain limited to the Antarctic margin without intruding into the deep seabed which is supposed to be left to the jurisdiction of the International Seabed Authority. This provision is complemented by Article 34(2) which requires cooperation between the Commission and the UN, including the possibility of an "... international organization which may have competence in respect of mineral resources in areas adjacent to those covered by this Convention." Similarly, Article 34(3) mandates the Commission to cooperate with the International Union for the Conservation of Nature and Natural Resources and with other international organizations, governmental and non-governmental, that have a special interest and expertise in Antarctica. With regard to transparency, the provisions on Institutions require that international organizations having an interest in Antarctica may have access as observers to meetings of the Commission and of the Advisory Committee. The Commission must keep a public record of its meetings, decisions, reports submitted to it, as well as notifications of requests to identify an areas for exploration and development with all relevant information attached to it (Article 21(4)). Similarly, the Regulatory Committees must maintain a public record of decisions and of management schemes adopted, as well as of regulations and measures relating to the monitoring of relevant mineral activities. These provisions are quite positive and are complemented by the requirement that the Commission give public notice of matters upon which it is requesting the advice of the Advisory Committee (Article 21(1)(g)), and that the Advisory Committee give advance public notice of its meetings and of its agenda so as to enable interested organizations to obtain pertinent information and submit their views for considerations (Article 25(3)).

With regard to the second point, concerning participation in the decision-making organs, the record of the Convention seems less satisfactory. The institutions of the mineral regime are structured following the two-tiered system of the Antarctic Treaty, so that a state which is a Party to the minerals Convention does not automatically become a member of the Commission or of the Regulatory Committee. Full membership in these organs depends on the "substantial activity" criterion that forms the basis of the Consultative Party status. To overcome this obstacle - which may be overwhelming for many states that do not have sufficient financial resources to engage in substantial scientific activities in Antarctica - a proposal had been made during the negotiations for the setting up of a plenary organ, the Special Meeting of Parties, which would have had limited decision-making competence in some significant matters such as the opening of an area for mineral resource activities. The final text of the Convention has retained the organ (Article 28), but its competence has been reduced to an advisory role. On the other hand, all Parties to the Convention, both Consultative and non-Consultative, are full members of the Advisory Committee. Non-Consultative Parties also take part as observers in the meetings of the Commission and of Regulatory Committees, but a non-Consultative Party can become a temporary member of the Commission only for the time in which it is "actively engaged" in substantial research in the area, or as long as it performs the role of sponsoring state in relation to a management scheme in force (Article 18(2)).

A group of norms on the institutional structure introduces a form of affirmative action with regard to developing countries by requiring that in the composition of Regulatory Committees "adequate and equitable representation" must be given to these countries in such a way as to guarantee them at least three seats in each Committee (Article 29(3)(b)). This may sound generous; but in fact the only developing countries that may benefit from such provision are those which already enjoy a privileged status as members of the Commission. Further, Article 29(3)(b) does not specify to which of the two Regulatory Committee chambers - claimants and non-claimants - this obligatory quota of three seats must be referred. Thus one must conclude that, in the calculation of the three seats reserved to developing countries, the two developing claimants, Argentina and Chile, must be included although they are already entitled to seats in Regulatory Committees in their own right.

If we come to consider the third aspect of the "external" accommodation, i.e., access and participation of less developed countries in mineral resource activities and benefits, the record of the mineral regime becomes even less satisfactory. The Convention, it is true, provides a series of incentives and opportunities for less developed countries that can be summarized as follows:

1) joint ventures and other similar forms of international participation involving developing countries are given preferential treatment in view of access to mineral activities and on the basis of criteria to be specified by the Commission at the time of the opening of an area for exploration and development (Articles 6, 41(1)(d), 44(2)(e));

2) in case of competing applications for exploration and development with regard to the same site, priority must be given to the applicants presenting the "broadest participation" particularly of developing countries (Article 43(2)(e));

3) the Advisory Committee is encharged with a consulting role in favour of developing countries regarding scientific and technological problems having a relevance for mineral activities and for the opportunities of international cooperation at a commercial level. Despite the unquestionable potential for expansive implementation of these criteria, it is certain that they fall short of satisfying the original demands made by developing countries participating in the minerals negotiations. These demands included the allocation of a reserved quota of mineral concessions for the benefit of less developed countries only, and the application of an automatic criterion of priority in favour of those requests for exploration permits presented by joint ventures characterized by international participation with developing countries. These automatic mechanisms were ultimately found to be incompatible with the general philosophy of the mineral regime, which is inspired by the primacy of environmental protection and by the efficient use of resources, especially in view of the conspicuous investments that Antarctic mineral activities will require. Faced with these hard realities, developing countries will hardly find consolation in the Final Act clause stating that with regard to Regulatory Committee decisions, the two-thirds majority required under Article 32 "should include at least one developing country"!

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