This paper was written a long time ago. Was more of a jotting than a essay.
Antarctica, India and China.
The 20th century is arguably the re-birth of Asia after a hiatus of more than 200 years; And at the vanguard of this Asian renewal are the regional behemoths India and China. Combined they hold within themselves 1/3rd of the world’s population. Except for the brief period of time when the European nations subdued and overtook them, for a major period of the known history they have been acknowledged polarities in a co-existing multi-polar world. And this status of power was maintained by wide ranging trade relations and a robust economy. After the end of the era of colonialism these countries are again looking at reclaiming their rightful status as global leaders.
To do this India and China must face and successfully challenge a number of issues primary among which is providing and maintaining a stable and prosperous living standard for a majority of their populations. To achieve this in the present consumption driven economies requires an enormous amount of resources in all forms. Primary among which are human capital, investment, technology and raw materials. Considering their sizes human capital is a non-issue, investment is outside the scope of this discussion while technology has to be home grown. Raw materials are the crucial issue for both these nations for though both have been blessed with a wide variety of natural resources within their national boundaries, technological considerations as well as requirements makes it imperative to scout for resources in other regions. This is evident from the rush and competition between the two nations to curry favour in the continent of Africa to secure mineral resources primarily Oil; As well as the attempts at playing their own version of the ‘Great Game’ in East Asia. Within this perspective Antarctica gains vital importance for India and China as:
1. It is the last piece of virgin land on Earth and as nations aspiring to world leadership they each desire their share.
2. Taking into account the Gondwana theory as well as research carried out in the Antarctic, the white continent is supposed to be very rich in mineral resources. Coupled with the fact that there is no indigenous population in the Antarctic, the continent becomes too tempting an area to be ignored.
3. The vital importance of the Polar Regions to global environment.
4. Research opportunities and suitability as a testing base for technological innovations.
5. With the melting of polar ice, control of emerging sea routes becomes an issue.
This paper attempts to understand the importance of Antarctic to India and China, while looking at the most beneficial system of governance for the Antarctic taking into account the interests of both the nations. Accordingly we first look briefly at the present systems governing the Antarctic, we then look at their relative merits-demerits vis-à-vis Indian and Chinese interests and finally we try to deal with various alternatives.
1. ATS and the Mineral Resources Convention.
Antarctica has been a site of peace and scientific exploration for the last fifty years, largely due to a series of agreements known collectively as the Antarctic Treaty System (ATS). One of the most crucial features of this system has been the freezing of all territorial claims to the landmass of Antarctic. Preceding the establishment of such an organization, seven territorial claims had been made to the landmass of Antarctic. These were: Britain in 1908, New Zealand in 1923, followed by France in 1924, Australia in 1933, Norway in 1939, Chile in 1940 and Argentina in 1927 where it made a series of claims up till 1957 . These claims came to a head in the early to mid 1950’s along with rising cold war tensions between USA and USSR. Involvement of non-claimant states USA and USSR due to their super-power status raised the specter of hostilities occurring on and for Antarctic. Also increasing tensions between Chile, Argentina and Britain over territorial claims raised the possibility of USA having to choose sides; when all these three nations were its allies To alleviate the conflict, all nine of the claimant countries, along with USA and USSR and three other non-claimant nations Belgium, Japan, and South Africa, negotiated the Antarctic Treaty in Washington, D.C. on December 1, 1959. This treaty came into force in the June of 1961. The most salient feature of this treaty was the “freeze” it had put on all territorial claims of all ratifying members. That is it did not destroy any claims, nor prohibit there continuance, it just created a system of status quo, whereby claims were all put in suspended animation and no activity could be undertaken to further such a claim or make a new claim by member states through the duration of the treaty.
The advantages of the Antarctic Treaty System have been summarized as follows :
(a) It is open to accession by any Member State of the United Nations, or any country which may be invited to accede with the consent of the Consultative Parties--it is thus as universal as the interest of States in Antarctica;
(b) It is of unlimited duration and establishes Antarctica as a region of unparalleled international co-operation in the interests of all mankind;
(c) It is based on the Charter of the United Nations, promotes its purposes and principles and confirms Antarctica as a zone of peace; it is, in fact, the only effective, functioning nuclear weapons-free zone in the world today;
(d) It excludes Antarctica from the arms race by prohibiting any measures of a military nature, such as the establishment of military bases and installations, the carrying out of military maneuvers or the testing of any types of weapons, including nuclear weapons, and forbids the dumping of nuclear waste;
(e) It encourages and facilitates scientific co-operation and the exchange of scientific information, which is made available for the benefit of all states;
(f) It protects the natural environment of Antarctica, including the Antarctic ecosystem;
(g) It provides for a comprehensive system of on-site inspections by observers to promote the objectives and to ensure compliance with the provisions of the Treaty;
The immediate and the most important use however has been the averting of international strife and conflict over Antarctica; by putting aside the question of claims to sovereignty in Antarctica, thereby removing the potential for dispute. However it should be noted that the original seven claimants still continue to hold their territorial claims on the Antarctic. Further among the original five non-claimant nations USA and USSR reserved the right the right to make claims in the future. This was acknowledged and sanctified in Article IV of the treaty. The USA and USSR assume a unique place among the treaty members, for they follow a ‘no claims’ policy whereby they assert no claims and acknowledge no claims by others, while still reserving the right to make future claims. The other non-claimant states have to agree to the frozen claims while not acknowledging the claims of the of claimant nations, however not having the equivalent right of USA and USSR (now Russia) to make future claims. India and China ratified the treaty and became members in 1983. By ratifying the Treaty, these countries agreed to the compromise in Article IV to freeze past territorial claims and also agreed not to advance any new claims of their own. Over the years, this compromise of disallowing anyone to make claims on the Antarctic has spawned a variety of theories in support of keeping the continent unclaimed. These theories range from the idea of ‘global commons’ whereby all the nations have a say, to the idea of an ‘environmental park’ to the idea of a UN trust administered territories. All these theories have as their core shifting the focus of no claims from a compromise to other philosophical and practical ideas.
From the time of its creation the Antarctic Treaty has grown to have 26 consultative parties and 17 contracting parties . Over the years the Antarctic Treaty mechanism has included the recommendations and policies which have been passed at the yearly meetings by the member states. The treaty thus now encompasses the original article and the subsequent policies and resolutions and is hence known as the Antarctic Treaty system. Special conferences were held over the years to develop various Protocols, some of which the Consultative parties eventually ratified. So long as all Consultative parties ratify a protocol, these measures become part of the ATS.
The first successful, large-scale addition to the Antarctic Treaty was the 1964 Agreed Measures for the Conservation of Antarctic Flora and Fauna. Next was the 1972 Convention for the Conservation of Antarctic Seals (Seals Convention). After the Seals Convention entered into force in 1978, the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) was discussed in 1980 and was ratified in 1982.
One of the most recent measures to deal with an Antarctic issue was the Convention on the Regulation of Antarctic Mineral Resources (CRAMRA) which took six years of negotiations to finalise; from 1982 to 1988. With increasing access to the continent and advances in technology, access to mineral resources seems to be the issue that might disturb the status quo of the ATS. The member states have placed a lot of emphasis on creation of the Antarctic Minerals Convention. There primary concerns were:
To protect the Antarctic environment and
To preserve the Antarctic Treaty regime.
Accordingly the member states of ATS developed several principles for the creation of a governance system regarding mineral exploitation.
As summarized by Christopher Joyner, a noted commentator in this area, the principles are as follows:
(1) The [Consultative Parties] should continue to play an active and responsible role in dealing with the question of Antarctic mineral resources.
(2) The protection of the unique Antarctic environment and its dependent ecosystems should be a basic consideration.
(3) The Antarctic Treaty must be maintained in its entirety.
(4) The interests of all mankind should not be prejudiced.
(5) The balance of interests embodied in Article IV of the Antarctic Treaty [freezing claims of territorial sovereignty to Antarctica] should not be endangered.
A careful study of these principles shows that more than resolving the issue of mineral exploitation the members are concerned more about the survival of their interests and claims in the region.
The convention was never brought into force as it was never ratified. Consensus was never achieved for this convention and with the withdrawal of support of ‘France and Australia’ ostensibly for environmental reasons, the convention did not become a part of the ATS.
The failure raises various questions regarding the Antarctic treaty system and the impact and need for a convention on mineral resource exploitation.
More generally, it has raised questions of whether the treaty regime, which has worked successfully for 25 years, can survive. Some of these questions go to the very root of the principles that the member nations had evolved to guide the mineral exploitation convention.
It creates doubt about the ability of the members to establish a mineral exploitation regime, which satisfies both the ATS members as well as the UN general body. It also casts a doubt on whether territorial claims, international community claims and environmental concerns can be dealt with effectively within the ATS structure.
After the failure of the Convention on Mineral Resource exploitation, a new protocol was negotiated in Madrid, which proposed that instead of regulating mineral resources in the Antarctic, the ATS would outright place a moratorium of 50 years on all mineral resource exploration and exploitation. This ban could be overturned or modified if the ATS members felt the need to do so. Such a move placed the issue of mineral resource exploitation on the back burner, thereby allowing a breather to the member states. Such an action of postponement of the issue is generic to the ATS, whose survival is dependent on the avoidance of all sources of conflict.
2. Chin-India perspective of the ATS and the region.
Antarctic problems are going to assume greater significance in the Indian Ocean region with the focusing of world opinion in the UN, NAM and other fora. Mineral and living resources on the Antarctic are attracting the attention of the world as probably being the last great land rush on our planet. Until the 1980’s the ATS was largely insulated from the world and was quietly managed by the 14 Antarctic Treaty members. As argued above this was a compromise system among the various claimants and led to a creation of a two tier system. A nation could get a consultative status if it had undertaken substantive scientific research on the continent. Due to the remoteness and hostile climate technological sophistry and significant financial expenditure became de facto requirements, prohibiting a number of countries from participating in the ATS. This exclusivity drew increasing amounts of criticism from the developing world, who demanded internationalization of the continent on the principle of ‘common heritage of mankind’. Increasing demand in the 1980’s caused concern to the ATS member states.
It was in such an atmosphere that the first Indian scientific expedition reached the Antarctic in 1981-82. While the Indian government maintained that its expedition was purely scientific, the members of the ATS grew apprehensive. Indian observers themselves believed that India would challenge the dominance of Antarctic by a few nations and take up the cause of internationalizing the continent according to principles of ‘common heritage of mankind’. There was therefore wide spread disbelief in India itself when it was immediately granted consultative status .
The treaty powers were keen to deflect criticism of the treaty and expand the participation to include at least those countries that could not be excluded for too long. Thus both Brazil and India were granted consultative status followed by China. India and China by joining the ATS have placed themselves in a delicate situation with regard to their claims to be representatives of the Third World. This is especially true for India, who leads regional and multi-lateral third world agencies such as NAM and SAARC as well as the BRIC nations and other coalitions.
However looking at the general behavior of India and China in the ATS and their respective agencies as well as the UN, it seems that they are both pursuing to an extent identical policies of not actively supporting oppositions to the ATS while at the same time attempting to maintain their moral high ground as representatives of the Third World.
For example the PRC supports the existing Treaty system because over the years the Treaty has demonstrated “the validity of its purpose and principles,” as noted by a PRC representative to the UN. A similar sentiment is echoed by the Indian side as evidenced from the continued and active participation in the treaty system. India is in the process of setting up its second research system while China is establishing its third station .
The secrecy of the minerals regime negotiations and the scarce publicity concerning Indian and Chinese Antarctic activities makes a reliable examination of their respective positions difficult. However taking into account the context of their accession to the Treaty and subsequent practices some assumptions might be made about the merits and demerits of the ATS to the interests of India and China.
Merits of the ATS:
That it creates a common territory, disallowing any territorial claims to be made or built upon; while at the same time restricting these benefits to an exclusive club of members. It also creates a free zone for the enjoyment of any future benefits gained through negotiations or conciliation.
As for being a member, one requires substantial investment, a high entry barrier is automatically created, whereby only nations having considerable economic, technological prowess become members. This achieves two purposes:
• Creates an exclusive club, while maintaining the façade of equality of access.
• Due to the high entry barrier, only strong political, economic powers would become members, thus augmenting the capacity of the ATS to resist third world challenges.
Creates an arena for the participation of non-claimant states like India-China on par with original claimant states like Britain, Australia. Passing resolutions on the basis of consensus is one example of this.
By imposing and maintaining a status quo, provides crucial time to India and China, to increase participation in Antarctic and create basis for an eventual territorial claim.
Demerits:
The inherent inequality of Article IV, whereby territorial claims are frozen not destroyed. Also though territorial claims cannot be utilized neither can they be prejudiced.
China and India might be placed in a disadvantageous situation for, due to the exclusiveness of the ATS, they might have to primarily deal with claimant states or their allies.
Problem of addressing the dilemma of being leaders of third world nation conglomerates, while seeking to strengthen claim in an exclusive club.
Accordingly we can categorise Antarctic interests of India and China as follows:
Political.
Resource Considerations.
Environmental, Scientific Interests.
Within these interests would be included areas such as ensuring access to all of Antarctica, especially in areas where mineral resources might be present. Attempt to create a basis of territorial claims, while preventing the manifestation of existing ones. Prevent the continent from becoming a center of discord and ensuring its use for peaceful purposes. Continue the present structure for scientific research and increase co-operation in data sharing. Safeguard the role of Antarctic in maintaining global environment
Above discussions show that the ATS is at least partially an exclusive club, which has an impressive record of maintaining and governing the Antarctic for over 40 years now. India and China have been included within this organization more to buy their acquiescence rather than any recognised claim. Existence of such claim and ability to act upon it has been the primary consideration for membership when the ATS was founded. Even today lack of a territorial claim acts as an added disadvantage when negotiating about aspects of the continent. This is especially so when the issue concerns mineral resources and commercial exploitation. Keeping this in mind let us look at the alternatives that are open to India and China. For the purpose of this article whereby possibility of exploitation is a necessary requirement, there are three options:
1. Create and assert a territorial claim in the Antarctic.
2. Support earlier models of treating Antarctic as ‘common heritage of mankind’, or as a world park, or bring it under the auspices of the UN trust administered territories or
3. Look for solutions within the existing framework of ATS.
The first option of asserting territorial claims is the most aggressive and one which can if successfully concluded promises to give substantial and immediate benefits. However for it to be successful there has to be taken into consideration:
1. Competing territorial claims which have been existing before the claims of India-China.
2. Lack of existence of any territorial continuity, early expedition or even of any continental shelf or of pre-existing rights passed on to the present states. Even the sector principle is not of much use as it does not enjoy a wide recognition in international law.
3. Opposition of the other nations besides the Treaty members, to such an action.
Such an action by India and china would open veritably the Pandora’s Box as all competing claims that have been exiting before the assertion by India-China would be brought forth. The status quo would be destroyed and we would be back in the 1950’s when tensions’ regarding Antarctic territories was leading to war. Most importantly such an action would require that both the nation’s first withdraw from the ATS, this would not only leave them without a support base but would also be of limited benefit, as under international law, discovery without effective occupation at beast creates inchoate land and would be ineffective when other claimants have already exercised their claims to sovereignty. Though exceptions to this rule exist in international law in the cases of “the Clipperton Island Award ; The Palmas Island Case ; the Legal status of the coast of Eastern Greenland ”. These cases stand for the proposition that while sovereignty is generally exercised over people, there is no valid reason for requiring actual settlement and possession of territory in uninhabited areas. Rather, effective administration is all that is reasonably necessary to establish occupation. Assuming a state that effectively administers a territory, establishes legal order, and protection over it, physical possession of every portion of that territory should not be required. Such a theory would give a legal basis for the assertion of territorial claim by India-China.
However the negative results of such a claim in the present situation are far too many. As one U.S. Government analysis stated:
“A U.S. claim could take one of several forms. Delineation of a U.S. claim to full sovereignty, even if we could identify our major interests at this time, might prove to be an abortive effort because of the lack of internationally agreed rules for acquiring sovereignty in the Antarctic. It would also be a sharp break with our past policy of refusing to recognize claims to sovereignty when not accompanied by occupation. More important, the principles underlying any selection of the precise areas of superior U.S. 'rights' would be applied elsewhere as a yardstick of comparison by other powers, possibly to our disadvantage. Inferior U.S. 'rights' outside the area of a 'sovereignty' claim would be impaired, at least by implication, even though they might eventually acquire significance as the result of further U.S. activities, or through default by other powers.”
This same analysis could be extrapolated to the situation if India or China made territorial claims. Thus, assertion of a territorial claim in Antarctica by India and china would not be a cost-effective method to protect their interests on the continent. The historical inaction in this area has created, if not by some theory of equitable estoppel then by passage of time, a situation in which India and china have put themselves in a zero sum game. They cannot therefore in the present scenario assert a territorial claim without jeopardizing overall national interests
With regard to the second option of converting the present Antarctic governance system to either a nature park or into a UN trust administered territory, these were the claims of India and to an extent China before they became consultative members of the ATS. Such a move would be very useful as it would provide an equitable representation to all the states of the world, however if there are pressures on world resources be they food or mineral, such a nature park becomes unrealistic. Also the relative control that India or China exercised in the ATS would be drastically reduced as other non-members states demand and exercise their own powers. Though representational problems would be solved, negotiations would be so much more problematic. There are however benefits of such a conversion, as it would destroy all territorial claims of all parties and ensure a more equitable distribution of resources and attendant benefits. Consequently such a move would never be supported by any of the original seven claimant nations.
We thus see that continuation of the Antarctic Treaty regime, with appropriate modifications, is the best option that India and china have to protect their extensive interests in Antarctica now and in the future. Though it is true that the overall problem of mineral resource exploitation exits, looking at how the treaty has dealt with other issues like environmental and living resources, proves the usefulness of staying with a proven governance structure. The "good faith" administration by the Antarctic Treaty regime has to be acknowledged; and its present success cannot be denied. The consultative parties have vested interests in the maintenance of the Treaty regime, but political reality dictates that these interests will not be exercised exclusively for the benefit of Treaty members. The Antarctic Treaty system has been described as:
"a pragmatic formulation deprived of ideological connotations of any sort which enables it to sustain a continued process of compromise and adaption to the changing realities relevant to the Antarctic."
This lack of an ideological bias and focus on avoiding conflicts between the super-power members has managed the show till the present. So long as the will to co-operate and negotiate exists among the members, non-claimant states like India and china should not find it impossible to get around their claim related disadvantage to secure a reasonable share of Antarctic resources. This essay would have concluded differently if the nations were some other third world nations, but looking at the growth of India and china in the recent past their value to the ATS is only growing to increase and their interests cannot be ignored. Conversely unless India and china build a sustained campaign and create wide support base, they cannot individually with their present strengths build an alternative to the ATS.
The ATS is therefore one of the only practical organizations for these Asian nations in the present times.
