299. Memorandum From the Head of the Delegation to the Conference on Antarctica (Phleger) to the Secretary of State1
Committee I met at 11 a.m. and began discussion of Article VI (zone of application of the treaty). The U.S. spoke in favor of the working paper draft, which includes the area south of 60° with the exception of the high seas, pointing out that the Conference was called to deal with Antarctica and not with the regime of the high seas.
Argentina spoke in favor of its proposal, quoted below, but said its position was flexible:
“For the purposes of the present Treaty, Antarctica shall include all the lands, waters, and atmospheric space within the zone south of 60° South Latitude.”
Japan suggested that there may be a need to include those parts of the sea adjacent to Antarctica covered by ice at any time of the year. France also favored some form of definition based on the limit of permanent ice. The Soviet Union favored including the entire area south of 60°, claiming that the use of the high seas within this area for peaceful purposes would not contradict the regime of the high seas.
The Committee also opened discussion of Article IX (relationship of treaty to non-parties). New Zealand favored permitting accession on a wide basis to avoid giving the impression that the treaty is monopolistic, and to permit accession of countries having a genuine interest in Antarctica, provided they are members of the UN or its specialized agencies.
Speaking in favor of its proposal, quoted below, the Soviet Union favored opening accession to all countries carrying out scientific investigation in Antarctica, whether members of the UN or not:
“The present Treaty shall be open to the adherence of any state carrying out scientific investigation in Antarctica.”
The Soviet Union insisted that the formula of restricting accession to members of the UN was designed to keep out certain socialist states such as the People’s Republic of China, East Germany, etc., and was being relentlessly put forward as a consequence of the cold war, which the Soviet Union wanted to liquidate as soon as possible in accordance with its policy of coexistence and strengthening peace. It said the [Page 591] objection that the Soviet proposal would permit the accession of states not recognized by some signatories is without weight since participation in a multilateral international agreement does not constitute recognition and, therefore, entails no legal difficulties under international law.
Australia strongly supported the New Zealand proposal as a fair and reasonable one and stated that restriction of accession to members of the UN would exclude from Antarctica the conflicts of the cold war, which was one of the objectives of the treaty.
Committee II met at 3 o’clock and continued discussion of Article VIII (administrative measures). The discussion culminated in an agreement to send the Article, together with all proposals relating to it that have been submitted, to the Drafting Committee.
It was agreed to postpone discussion of the provision on jurisdiction until tomorrow, pending submission of a revised UK proposal.
Chile, supported by Argentina, proposed that the treaty include a time limit of ten years’ duration. Australia, the UK, and Belgium opposed any period of duration for the treaty, arguing that it would create a bad psychological effect to suggest that the treaty was temporary in nature, and pointing out that the contemplated Administrative Committee would be able to make recommendations for changes in the treaty when considered necessary.
Ambassador Phleger met Professor Gros, Legal Adviser of the French Foreign Office; Sir Gerald Fitzmaurice, Legal Adviser of the British Foreign Office; and Ambassador Grigory I. Tunkin, Head of the USSR Delegation, at the French Embassy at breakfast at the invitation of Professor Gros.
Professor Gros expounded at length on the difficulty the French were having in accepting the draft of Article IV 1(c) which is designed to protect the rights of countries which do not recognize territorial claims. He admitted that it was appropriate that such claims should be protected by an appropriate provision. He said that his problem would be made much easier if the entire paragraph 1 of Article IV were put in a protocol. He agreed that the legal effect of putting the provision in the protocol would have to be exactly the same as if it were retained in the treaty.
The British representative produced a reformulation of subparagraph (c) which the French legal adviser thought was much more acceptable although it did not change the meaning. It was agreed that the British representative would draft a form of protocol to carry into effect the French proposal and circulate it. This was done and the draft follows:
[Page 592]“At the moment of signing the Treaty of this day ( date ) respecting (Antarctica), the undersigned plenipotentiaries duly authorized to that effect by their respective Governments, have agreed on the following Declaration, which shall have the same legal effect as the provisions of the Treaty:
“Nothing etc. …2
“a—without modification
“b—without modification
“c—prejudicing the position of any High Contracting Party as regards its recognition or non-recognition of any other country’s right to territory or claim or basis of claim to territorial sovereignty in Antarctica.”
Later, in response to inquiry, the French, British and Soviet delegates agreed that if a protocol as suggested were to be used, the treaty itself should provide that the treaty and the attached protocol which is an integral part thereof shall become effective when the treaty and protocol are ratified in accordance with the constitutional requirements, thus making the protocol and the treaty one and inseparable.
For the U.S. Representative:
Secretary