Foreign Relations of the United States, 1961–1963, Volume XXV, Organization of Foreign Policy; Information Policy; United Nations; Scientific Matters

474. Memorandum From Richard Bilder of the Office of the Legal Adviser to the Officer in Charge of International Scientific Organizations, Bureau of International Organization Affairs (Simsarian)¹

Washington, June 21, 1963.

SUBJECT

• Control of United States Nationals in Antarctica

Mr. Owen’s memorandum of November 28, 1961 on “Privately Sponsored Activities in Antarctica”,² which you have transmitted to me for my information, asks whether authority exists under United States law to control the conduct of United States nationals in Antarctica, and if not, whether legislation to accomplish this result is desirable. I understand that these questions have not as yet been explored.

As you know, I have not yet had time to become thoroughly acquainted with Antarctic problems, or to research such questions in depth. However, as a basis for further discussion, some preliminary thoughts and comments on the questions raised by Mr. Owen may be useful.

1. U.S. International Legal Obligations Respecting the Conduct of Individuals in Antarctica.

As a Party to the Antarctic Treaty, the United States has an obligation to ensure that the provisions of the Treaty are not violated either by the United States Government or by United States nationals. Article X of the Treaty casts this obligation in the broadest possible terms:

Each of the Contracting Parties undertakes to exert appropriate efforts, consistent with the Charter of the United Nations, to the end that no one engages in any activity in Antarctica contrary to the principles or purposes of the present Treaty.

Article X appears to impose an obligation on each Party not only to prevent violations by its own citizens, but also to prevent violations by other Parties or their citizens and even by non-Parties or their citizens.

In fact, few provisions of the Treaty appear to be presently capable of violation by individuals, as opposed to Governments. Thus, it is difficult to conceive of individuals carrying on military or nuclear activities in Antarctica. The principal provisions which might relate primarily to conduct by individuals are those of Article IX(1)(f), concerning the preservation and conservation of living resources in Antarctica. Though these do not in terms impose any positive obligations on individuals, it may be noted that the First Consultative Meeting under the Treaty recommended the issuance of specified general rules of conduct to protect living resources, as well as the adoption of adequate measures to protect tombs, buildings and objects of historic interest from damage or destruction (see pages 8 and 9 of Report of the meeting).³ A Convention to Protect Living Resources in Antarctica is currently under consideration by the Preparatory Committee for the Third Consultative Meeting. The adoption of such a Convention will doubtless require the assumption by the United States of specific obligations to forbid certain types of conduct or activities by United States nationals.

2. Practical Need for Authority to Control Conduct of United States Nationals.

Authority to control the conduct of United States nationals in Antarctica may as a practical matter be desirable in at least three areas:

(a) If the United States becomes party to a Convention to Protect Living Resources in Antarctica, we will probably need legal authority to ensure that United States nationals do not violate its provisions;

(b) Substantial numbers of United States nationals, both military and civilian, are currently present in Antarctica as part of our Antarctic expeditions. Some measure of regulation of personnel on such expeditions seems highly desirable. Especially in view of the strains of Antarctic life, it is not unlikely that serious criminal conduct may occasionally occur;

(c) It is not impossible that non-Governmental expeditions, financed by private United States individuals or institutions, may in the future attempt to go to the Antarctic. In the absence of any governmental regulation of entry into Antarctica by such expeditions, or control of them while there, they could conceivably interfere with or constitute a burden upon our governmental efforts in this field (e.g. by requiring diversion of official expedition resources for rescue efforts).

Since foreign nationals usually accompany our expeditions as observers or exchange scientists, or may otherwise operate with or in the vicinity of our own personnel, authority to control their conduct might also be desirable. However, measures to control foreign nationals appear to raise substantially more serious problems than measures to control United States nationals, and are probably of a lower order of priority.

3. Existing Legal Authority to Control Conduct of United States Nationals.

I have found no United States legislation by its terms specifically applicable to Antarctica. Moreover, since federal legislation is usually construed to apply only to conduct taking place within the territory of the United States, our criminal and other laws would not, in general, be regarded as applicable in Antarctica unless they specifically so provided. As a general rule, therefore, United States law does not apply in Antarctica.

There are, however, several important exceptions to the above rule.

(a) The Uniform Code of Military Justice (UCMJ) is applicable to all military personnel wherever they may be. Thus, all naval and other military personnel in Antarctica are presently subject to a complete code of United States disciplinary and criminal law. However, a series of Supreme Court decisions has severely limited the reach of provisions of the Code purporting to extend it to civilians accompanying our armed forces in peacetime. It seems virtually certain that the Code could not be regarded as applicable to civilians in Antarctica.

(b) 18 U.S.C. Section 7 defines the “Special Maritime and Territorial Jurisdiction” of the United States to include:

(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

(5) Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Territory, district, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

Other provisions of the Criminal Code provide that certain types of conduct within this special jurisdiction as so defined shall constitute crimes. See e.g. 18 USC 81 (arson); 18 USC 113 (assault); 18 USC 2111 (burglary); 18 USC 791 (espionage); 18 USC 2032 (carnal knowledge); 18 USC 661 (larceny); 18 USC 114 (maiming); 18 USC 1363 (malicious mischief); and 18 USC 2031 (rape); and 18 USC 2111 (robbery). The District courts of the United States have jurisdiction over such offenses (18 USC 3231); under 18 USC 3238, “The trial of offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular state or district, shall be in the district where the offender is found, or into which he is first brought”.

These provisions may be applicable to such part of the Antarctic Treaty Area as may be considered to constitute part of “the high seas” or “any land reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof”. Since we do not recognize any territorial sea in Antarctica, the “high seas” can probably be regarded as extending at least to the edge of the ice. It could even be argued that the “high seas” within the meaning of the statute reached even onto the ice, so long as it was definitely sea ice; certainly this would not appear to do violence to the purpose of the statute. It is also conceivable that paragraph (3) of 18 USC 7 might conceivably be construed to include an Antarctic base; this point may warrant further research.

(c) A few statutes, of relatively minor importance to the question of control of conduct in Antarctica, are applicable to United States nationals wherever they may be, including Antarctica. This is the case, for instance, respecting the treason law (18 USC 2381), the income tax law (See Int. Rev. Code of 1954, Sec. 911, 2001), and the Universal Military Training Act (50 USC 453).

The legal situation respecting United States nationals in Antarctica would in summary, therefore, appear to be as follows:

All naval and military personnel are fully covered by the UCMJ, and there is no special need for further legislation controlling the conduct of such persons;

United States civilian nationals in Antarctica and aliens accompanying United States expeditions are in general not covered by the United States criminal laws or other United States statutes, except when they are within the limited “special maritime and territorial jurisdiction of the United States”, in which case they are subject to laws proscribing only the most serious crimes.

There does not appear to be any general authority to prohibit or control travel of United States nationals to Antarctica. While in certain circumstances the Government might conceivably seek injunctions to prevent private citizens from journeying to Antarctica for the purpose of conducting activities violating the Treaty (on the analogy of the injunctions successfully obtained against persons intending to sail into prohibited atomic testing zones), this remedy would seem limited.

4. Consistency of United States Legislation Controlling Conduct of United States Nationals in Antarctica with International Law and the Antarctica Treaty.

The principal Article of the Antarctic Treaty dealing with the question of jurisdiction is Article VIII, which provides:

1. In order to facilitate the exercise of their functions under the present Treaty, and without prejudice to the respective positions of the Contracting Parties relating to jurisdiction over all other persons in Antarctica, observers designated under paragraph 1 of Article VII and scientific personnel exchanged under subparagraph 1(b) of Article III of the Treaty, and members of the staffs accompanying any such persons, shall be subject only to the jurisdiction of the Contracting Party of which they are nationals in respect of all acts or omissions occurring while they are in Antarctica for the purpose of exercising their functions.

2. Without prejudice to the provisions of paragraph 1 of this Article, and pending the adoption of measures in pursuance of subparagraph 1(e) of Article IX, the Contracting Parties concerned in any case of dispute with regard to the exercise of jurisdiction in Antarctica shall immediately consult together with a view to reaching a mutually acceptable solution.

Article IX(1)(e) requires the parties to consider measures concerning “questions relating to the exercise of jurisdiction in Antarctica”. It is apparent from these articles that the question of jurisdiction was a troublesome one on which no clear decision was reached in the negotiations, and that it was the intent of the drafters that any problems which might arise be dealt with subsequently by mutual accommodation.

There would appear to be no legal barrier, however, under either international law or the Antarctic Treaty, to United States legislation aimed at controlling the conduct solely of United States nationals in Antarctica so long as such legislation is based upon such United States nationality. It is a recognized principle of international law that every state has the right to control the conduct of its own nationals wherever they may be, and the Antarctic Treaty in no way restricts this principle.

The case would be otherwise were we to attempt to base legislation aimed at controlling particular conduct by our nationals or foreign nationals on a claim of territorial jurisdiction. Any such attempt on our part would be inconsistent with what I understand to be our policy of refraining from making any territorial claim in Antarctica. Moreover, such legislation might be interpreted as a “new claim … to territorial sovereignty” inconsistent with Article IV of the Treaty, and, under Article IV, need not in any case be recognized by other states.

The right of each state to control its own nationals in Antarctica was expressly stated by Mr. Phleger during the Senate Hearings as follows:

Mr. Phleger. By virtue of recognizing that there is no sovereignty over Antarctica we retain jurisdiction over our citizens who go down there and we would deny the rights of the other claimants to try that citizen. (Hearings, p. 62)

This right is also implicit in the provisions of Article VIII(1) of the Treaty, which makes it clear that observers and scientific personnel of one country present with another country’s expedition are to be subject only to the jurisdiction of their national state.

As Mr. Phleger’s statement indicates, there is always the possibility of a conflict of jurisdictional claims, e.g. where one nation asserts jurisdiction on the basis of nationality and another asserts jurisdiction on the basis that the act occurred in its territory. Theoretically, both claims may be legally valid and the question simply one of priority of concurrent jurisdictions. However, given the confused situation as to territorial claims in the Antarctic, and the clear recognition of this problem and intent to create a moratorium respecting it in Article IV of the Antarctic Treaty, it seems most likely that states will in practice permit the exercise of jurisdiction by a state over its own nationals on the undisputed basis of nationality, without asserting possible conflicting claims to exercise jurisdiction over such persons based solely on claims to territorial jurisdiction.

A more difficult question is the right to control the conduct of persons who are not nationals of the United States accompanying a United States expedition. It is clear under Article VIII(1) that if such persons are either foreign observers or exchange scientists or their staffs, the United States cannot exercise jurisdiction over them, and that they are subject only to the jurisdiction of their own states. Since aliens present with United States expeditions will ordinarily fall into one of the above specified categories, the scope of the problem insofar as we have authority to deal with it seems minimal and perhaps best ignored.

5. Possible form of United States legislation.

I would think that legislation to control serious criminal conduct by United States nationals in the Antarctic could be reasonably brief and simple. One possibility would be to incorporate by reference into an Antarctic criminal statute crimes already so defined for the purposes of the “Special Maritime and Territorial Jurisdiction of the United States”. The statute might provide, for instance, that:

Any national of the United States who commits within the area south of 60° South Latitude an act which would constitute (as defined in 18 USC 81, 113, 2111, 791, 2032, 661, 114, 1363, 2031, and 2111) a crime if committed within the special maritime and territorial jurisdiction of the United States (18 USC 7), shall be subject to the same penalties provided for such act if committed with the special maritime and territorial jurisdiction of the United States.

This draft is, of course, suggestive only, and would require much more work. It would be easier from a drafting standpoint to define the Special Maritime and Territorial Jurisdiction of the United States as including Antarctica; however, this would not seem practical since such action by the U.S. might be interpreted as an exercise of territorial jurisdiction on our part. As a possible alternative, the crimes defined with respect to the Special Maritime and Territorial Jurisdiction of the United States could be completely spelled out with respect to U.S. nationals in Antarctica, though this would, of course, mean a more lengthy statute. In either case, no special legislation would appear required to either make such offenses triable by United States District Courts (18 USC 3231) or to permit trial in the court of the District into which the accused is brought (18 USC 3238).

The drafting of legislation to implement any Convention on the Protection of Living Resources in Antarctica must obviously await the final form of such a Convention and the defining of U.S. obligations therein. It may be noted, however, that conservation legislation of this general sort already exists in U.S. law (see 16 USC 715 [Migrating birds] and 16 USC 631 [seals])⁴ and should not pose any special problems. Even in the absence of such a Convention, unilateral legislation to implement the recommendations of the First Consultative Meeting and protect these resources from harm by United States nationals might be desirable.

More generally, some thought might be given to the seeking of legislation vesting a general power in the Secretary of Interior generally to administer United States bases and expeditions in Antarctica and to make such rules and regulations as may be required for the government of U.S. nationals in the Treaty area. (See e.g. 48 USC 1661 [American Samoa] and 48 USC 1681 [Trust Territory of the Pacific] and Exec. Orders 10264 and 10265). Any such general grant of authority would, of course, have to be cast in a form consistent with the Treaty provisions creating a moratorium on territorial claims so as not to raise any disputes with our Treaty partners.

6. Concluding Comments.

A decision whether actively to seek legislation to control United States nationals in Antarctica will need to take into account the fact that no significant problems in this respect have as yet arisen and the possibility that any attempt to seek such legislation may conceivably give rise to some controversy in Congress and with our Treaty partners.

On the other hand, account must be taken of the possibility that sooner or later a United States national in Antarctica may commit a serious crime not punishable under present law. If this occurs, the Department and other Government agencies concerned might be subject to criticism if steps have not been taken to anticipate and deal with this situation. Moreover, if a Convention to Protect Living Resources in Antarctica is drawn up in the near future, and if we have in any case to seek legislation to implement its provisions, it would not be much more arduous or difficult to at the same time seek additional legislation dealing with related jurisdictional problems. Mr. Phleger’s testimony to the Senate indicates that this problem was anticipated, and no reason is apparent why Congress would resist granting such legislation. I would think it at least desirable that this matter be further explored by a small group consisting of representatives of State, Navy, Interior, and Justice.

1. Source: National Archives and Records Administration, RG 59, Central Files 1960–63, SCI 11–1 ANT. Limited Official Use.
2. In this memorandum, Owens wrote that private activities in Antarctica had to be coordinated with government operations, if only to avoid duplication of or interference with scientific activities. This in turn raised the question of jurisdiction over economic activities or crimes committed in what was “a terra nullius as far as the U.S. is concerned.” He therefore sought the views of the Legal Adviser and the Justice Department about what legal authority presently existed for “(1) some reasonable control of private activities in Antarctica as well as for (2) the exercise of criminal jurisdiction,” and whether legislative action would be necessary. (Ibid., 702.022/11–2861)
3. These recommendations were approved by the U.S. as well as by all other treaty parties. (See para. I–VIII, TIAS 5094.) They were reaffirmed in the recommendations of the 1962 Buenos Aires Meeting which were similarly approved. (See para. II–II of TIAS 5274.) Such approval by the U.S. probably comes close to an international commitment to ensure compliance with these general rules. [Footnote in the source text.]
4. All brackets in the source text.