INTRODUCTION
Imagine a pristine continent, cold as ice, extremely windy and dry, almost 
as giant as Latin America and clearly larger than Europe, but with little or neg-
ligible human activities, yet a continent in which states, some explorers, and sci-
entists are taking an increasing interest. Imagine that, outlandish as it may seem, 
this continent was about to become a scene of international discord and that you 
had to solve the problem. What would you do? It is clear that you would need 
a political and a legal solution, a solution that would last and that everybody 
could live with. There is no room for one winner; there is no room for any loser. 
There is only room for numerous winners.
This was the situation that a number of particularly concerned states faced 
in the 1940s when they needed to address how Antarctica should be managed. 
Their challenges were 
?	 to find a solution that would be accepted domestically,
?	 to settle the issue among the most concerned states (internal accommodation), 
?	 to meet the challenges of states not involved in the discussions, the nonstate 
parties (external accommodation), and
?	 to meet the challenges of nonstate actors (public opinion).
This article will address the development of a legal framework for Antarc-
tica, not only the 50 years of the Antarctic Treaty but also the decades preceding 
the treaty. These are phases of developments that mirrored, mirror, and will 
continue to mirror international and domestic political developments, including 
the expectations of civil society.1
THE DEVELOPMENT OF THE LEGAL FRAMEWORK  
FOR ANTARCTICA
The necessity for a new power structure was already apparent during the 
Second World War and so was the need for new principles of law and politics to 
Building the International Legal  
Framework for Antarctica
Marie Jacobsson
Marie Jacobsson, Swedish Ministry for For-
eign Affairs, Department of International Law, 
Human Rights and Treaty Law, SE- 103 39 
Stockholm, Sweden. Correspondence: marie.
jacobsson@foreign.ministry.se; marie.jacobsson 
@swipnet.se.
2   ?   S C I E N C E  D I P L O M A C Y
be inaugurated and upheld.2 The post?Second World War 
political discussions on Antarctica were no doubt influ-
enced by the adoption of the United Nations (UN) Charter 
in San Francisco in 1945. ?Regional? solutions became a 
sanctioned and encouraged means of conflict moderation, 
explicitly addressed in Article 52 of the UN Charter. At 
least the two Latin American claimants have endeavoured 
to regard Antarctica as a regional matter. The United States 
regarded Antarctica as a sphere of interest among a group 
of powers friendly to the United States. It was not until 
the Soviet Union claimed the right to participate in the 
political discussions on the future of Antarctica that the 
question of Antarctica developed into one of global inter-
est, or rather, Antarctica became a pawn in global politics. 
The MosT IMporTanT sTeps
Before I recount what took place at the intergovern-
mental level, let me state that the interest in Antarctic 
issues has never been limited to governmental interests 
alone. On the contrary, popular interest in the polar re-
gions has always been considerable. The post?Second 
World War situation stimulated individuals as well as in-
ternational organizations to bring forward ideas pertain-
ing to the administration of the polar areas. The role of the 
newborn United Nations seemed self- evident to many. So, 
for instance, the Women?s International League for Peace 
and Freedom favoured control and administration of the 
uninhabited polar areas by one or two mandate commis-
sions under the Trusteeship Council of the United Nations. 
Such administration was expected to result in, inter alia, 
equal and free access to raw materials (including to min-
eral resources), organized and adequate scientific research, 
and surveys whose results should be available to all those 
interested. The organization also argued for equitable ar-
rangements regarding fishing and whaling rights, as well 
as prevention of ?destructive methods in connection with 
whaling and sealing?.3 This proposal was brought to the 
attention of the UN Trusteeship Council, which, how-
ever, decided to take no action. A similar proposal was 
made in 1947 by the Commission to Study the Organi-
zation of the Peace. Dr. Julian Huxley, the first Director- 
General of the UN Educational, Scientific and Cultural 
Organization (UNESCO), wished to see UNESCO set up 
an ?International Antarctic Research Institute.? A mem-
ber of the British parliament, Lord Edward Shackleton, 
son of the explorer Ernest Shackleton, argued in favour 
of involvement by the United Nations in the settlement of 
the Antarctic question. Others, such as Dr. Dana Coman, 
president of the American Polar Society, proposed, in an 
internal discussion at the State Department, that Antarc-
tica should be made the first ?international park.? 
There was, in short, a newly awoken interest in Ant-
arctic political affairs that presumably stemmed from 
reading press reports on the growing friction in Antarctica 
and, furthermore, mirrored a confidence in the newly es-
tablished United Nations.
Although the Second World War had brought with it 
a decrease in scientific activities in Antarctica, the political 
predicament with respect to Antarctica and, in particular, 
to the question of sovereignty over Antarctic territory had 
become more and more tense as British, U.S., Argentine, 
and Chilean activities during and after the ending of WWII 
clearly showed. It is often forgotten that all these states 
had sent military expeditions to Antarctica and undertook 
military operations there between 1943 and 1948. 
The obviously increasing tension in Antarctica, to-
gether with the growing embarrassment to the United 
States of having three of its allies, namely, Chile, Argen-
tina, and the United Kingdom, as antagonists with respect 
to sovereignty disputes in Antarctica, no doubt contrib-
uted to a conviction in the State Department that there 
was a compelling need for a more vigorous solution to 
the question of Antarctica.4 There was also a fear that the 
Soviet Union would exploit the situation.5 
The United States had to come up with a proposal 
that not only struck a balance between the United States? 
interest in Antarctica and the claimant states? interests but, 
at the same time, circumvented the perceived risk of Soviet 
involvement. The United States therefore became a key 
player in initiating the consultations on Antarctica in the 
late 1940s. But the United States was not alone.
The proposals for a soluTIon, 1939?1959
In fact, the suggestions and initiatives related to the 
future management of Antarctica were numerous, and 
it is not possible to address all of them in this paper. I 
will focus on only a few initiatives while asking readers 
to bear in mind that discussions were ongoing throughout 
the period from 1939 onward, with the exception of the 
WWII period.6
In sum, one can say that the first post- WWII initiative 
came from Chile and the action that led to the Antarctic 
Treaty came from the United Kingdom.
In October 1947, Chile, in reference to an initiative by 
the United States in 1939, asked the United States about 
its view on a possible convocation of an Antarctic Con-
ference and of the likelihood of a territorial claim by the 
United States.7 The background to the Chilean query is 
J A C O B S S O N  /  L E G A L  F R A M E W O R K  F O R  A N TA R C T I C A   ?   3
that in late 1939, the United States had put forward the 
idea of a common inter- American policy with regard to 
the Antarctic. This policy consisted, inter alia, of an ar-
rangement should the investigations and surveys show 
that natural resources might be developed and utilized. 
According to the U.S. proposal, all these governments 
should enjoy equal opportunities to participate in such de-
velopment and utilization.8 The 1939 initiative was clearly 
related to the claims and the issue of enjoying equal rights 
in possible development and utilisation. 
Argentina had also put forward the idea of a confer-
ence on Antarctica in 1940 in proposing that an interna-
tional conference among states claiming rights and interests 
in Antarctica should be assembled, with the objective of 
determining the ?juridico- political status of that region?.9 
The United States? initiative in 1939?1941 on a 
common inter- American policy on Antarctica was un-
successful. For obvious reasons, the Second World War 
overshadowed the Antarctic question, and it was tempo-
rarily set aside. In the meantime, the global geopolitical 
map changed. When Chile chose to resurrect the U.S. idea 
in 1947, the United States was already in the process of 
reconsidering its Antarctic policy. The U.S. response there-
fore conveyed the message that the time was not then op-
portune for such a conference, while also assuring that 
the ?United States attitude remains essentially the same 
as it was at that time?.10 While the internal discussion in 
the United States went on, the tension between the United 
Kingdom, Argentina, and Chile sharpened, and the United 
Kingdom contemplated taking the Antarctic controversy 
to the International Court of Justice. 
DrafT agreeMenT on anTarcTIca, 1948
During the early months of 1948 the Draft Agreement 
on Antarctica was prepared in the State Department. It 
should be noted that the draft recommended the estab-
lishment of an international status for Antarctica and also 
that the United States should make official claim to areas 
in the Antarctic, so as to place the United States ?on an 
equal footing with the other seven powers.? The claim was 
not to be announced until after an international settlement 
had been obtained.11 The draft contained a proposal for 
the establishment of a trusteeship under the United Na-
tions and joint sovereignty over the continent among eight 
countries, namely, Argentina, Australia, Chile, France, 
Norway, New Zealand, the United Kingdom, and the 
United States. 
In reality, the United States? draft was a combina-
tion of a trusteeship proposal and a condominium. Not 
surprisingly, the idea of ?pooling claims? did not to ap-
peal to the claimant states,12 irrespective of the U.S. ambi-
tions to blur this by the attempts to launch the proposal as 
a ?trusteeship proposal.?13
Although the draft agreement contains no explicit ref-
erence to the freedom of scientific research in the area, it 
was ?intended to provide for complete liberty of bona fide 
scientific research.?14 This ambition was underlined by the 
obligation on the parties to foster free access to and free-
dom of transit through or over the area, although under 
rules prescribed by the commission that was proposed to 
be set up. It should be noted that, at that time, it was not a 
U.S. objective to declare Antarctica a demilitarised area,15 
notwithstanding the major objective to lower the tensions 
in the area.16
The basic postulates that resulted in the proposal 
were an identified need to solve territorial disputes and 
a belief that a collective solution to the question of Ant-
arctica would best prevent disturbances between the cur-
rent claimant states, particularly since it was judged that 
such disturbances could be exploited by the Soviet Union. 
There was, furthermore, an assumption that no significant 
exploitable resources existed in Antarctica and that the 
value of Antarctica was primarily scientific. 
The U.S. proposal was designed to legitimise the col-
lective administration of Antarctica and to prevent certain 
?external interference? (read: the Soviet Union and its so- 
called ?satellite states?).17 The proposal foresaw the possi-
bility of admitting states other than the eight original states 
that had a ?legitimate interest? in Antarctica. It was in this 
context that the idea of a retrospective ?activity criteria? as 
a key to admittance surfaced.18 The draft was also designed 
to meet possible criticism of ?by- passing and weakening 
the United Nations? since it was considered important for 
the United States to fully support the United Nations.19 
During the course of developing the proposal, the 
United States consulted few other governments. The con-
sultations with the United Kingdom, and later with Chile, 
were, however, crucial to the development.20 The British 
reaction caused the State Department to elaborate a re-
vised draft agreement ?to provide for a condominium.?21
The escuDero proposal, 1948
A few months later, in July 1948, a representative of 
the State Department arrived in Santiago and thereafter in 
Buenos Aires to discuss the Antarctic question. It was dur-
ing the discussion in Santiago that the Chilean representa-
tive, Professor Escudero, expressed doubts as to whether 
the trusteeship would be applicable under the UN Charter 
4   ?   S C I E N C E  D I P L O M A C Y
and voiced the idea of a joint declaration by a limited group 
of states, which would freeze the current legal rights and 
interests in Antarctica for a period of 5 or 10 years. Dur-
ing that period, actions in Antarctica by the states party to 
the declaration would have no legal effects on their rights. 
This was the so- called modus vivendi proposal and the 
embryonic form of ?the Escudero proposal?22 presented 
later and designed to be a means of conflict moderation as 
well as to prevent any interpretation that Chile (or other 
claimants) would relinquish claims to sovereignty. 
new u.s. proposal
At this early stage the United States neglected the 
Chilean idea of a modus vivendi agreement and decided 
instead to present the new version of its previous proposal 
to a wider circle of interested states, which included Chile 
and also Argentina, Australia, France, New Zealand, Nor-
way, and the United Kingdom. This version was built on 
the comments made by the United Kingdom.23 The trust-
eeship idea was abandoned and turned into a pure pro-
posal for a condominium.24
The obligation to cooperate with the specialised 
agencies of the United Nations now constituted the only 
connection with the United Nations. Furthermore, the 
commission was to constitute ?the actual government? 
with ?full executive and administrative powers,? and de-
cisions on matters of substance were to be taken by a two- 
thirds majority. 
Not surprisingly, the proposal was not embraced 
wholeheartedly by the recipients, most of whom neither 
seemed to have had much idea about what was going on, 
nor had seen the proposal in advance. Hence, the responses 
varied on a scale from disapproval to sceptical consent. 
Argentina declared a clearly negative view to any inter-
national regime. Chile disapproved of the condominium 
solution but underlined a favourable attitude to a modus 
vivendi solution. Norway considered the establishment of 
an international administration ?unnecessary.? Having 
taken an initially unfavourable view, Australia and New 
Zealand declared their willingness to ?go along,? but New 
Zealand underlined that a closer relationship with the 
United Nations was preferable. France was reluctant and 
asked for clarification. The United Kingdom cautiously 
advised its acceptance ?in principle and as a basis for dis-
cussion?.25 None of the claimants were prepared to waive 
their claim and turn it into a ?pooled? sovereignty.
However, the United States made its initiative public 
on 28 August 1948.26 According to the press release, the 
suggested solution (?some form of internationalization?) 
should best be such as to promote scientific investigation 
and research. The question of cooperation in scientific re-
search as such was not addressed.27 Reactions from states 
that had not been consulted did not fail to appear. South 
Africa and Belgium declared that they considered them-
selves entitled to participate in an Antarctic  settlement.28
Chile was, as mentioned, still in favour of an interna-
tional ?understanding? in the form of a declaration. Chile 
had formally rejected the U.S. proposal. Instead, Chile 
proposed an agreement to exchange scientific data and 
including nonstrengthened claims by activity. Chile came 
back to the idea voiced by Escudero in the earlier bilateral 
discussions.
The negative responses to the specific proposal by the 
United States, together with the positive views expressed 
on an international solution to parts of the Antarctic ques-
tion, such as scientific cooperation, led the United States to 
reconsider its proposal. It was concluded that the Chilean 
proposal offered the best prospect if it were modified on 
certain points29 since it was considered to be too tempo-
rary and declaratory in nature. 
The u.s. DrafT DeclaraTIon on anTarcTIca, 1950
A new blueprint entitled Draft Declaration on Antarc-
tica was therefore elaborated by the Department of State 
in early 1950. Prior to the new outline, the United King-
dom had been consulted, and its suggestions were incor-
porated in the United States? draft.30 The new proposal 
now contained the Chilean idea of ?freezing of claims.?
Irrespective of the fact that the new draft was la-
belled ?declaration? and not ?agreement,? its content re-
sembled more an agreement than a declaration, although 
it had entirely left out the ideas on pooling of sovereign 
claims and collective governance. Instead, the Draft Dec-
laration was an agreement on cooperation, to the benefit 
of all individual participants. Conscientiously drafted, it 
contained a provision that the parties to the declaration 
were disposed to discuss territorial problems in Antarc-
tica and to freeze the claims. The area of application was 
identified as the territory south of 60?S latitude. Freedom 
of scientific research among the parties and its nationals 
and the exchange of scientific information were corner-
stones of the declaration. A committee should be created, 
to which governments should report, but it would have 
no decision- making power. The question of third states? 
activities in Antarctica was cautiously addressed by stating 
that the committee could make recommendations in rela-
tion to third states wishing to conduct scientific research. 
If such expeditions were carried out, they would not be 
J A C O B S S O N  /  L E G A L  F R A M E W O R K  F O R  A N TA R C T I C A   ?   5
recognised as a basis for territorial claims. The declara-
tion was of limited duration (5 or 10 years was proposed) 
but foresaw a possible future Antarctic Conference and, 
hence, an in- built opportunity to prolong the agreement.31 
sovIeT reacTIons
The State Department had calculated in 1948 that its 
first motion would prevent Soviet intervention in the pro-
cess.32 The exclusion of the Soviet Union from any future 
Antarctic solution remained a paramount objective. 
The first indication that this was not a procedure that 
the Soviet government would observe in silence came via 
articles in Pravda and Izvestiya on 11 February 1949. The 
articles reported of a meeting of the All- Union Geographic 
Society, during which the president of the society, Lev 
Semyonovich Berg, declared that the Soviet Union had a 
valid claim to Antarctic territory based on the discoveries 
of the ?Russian? navigators Bellingshausen and Lazarev.33 
Furthermore, the states that had an interest in Antarctica 
should be those that formed an Antarctic regime. A resolu-
tion with such content was adopted by the meeting of the 
society.34 The wording of the resolution is almost identi-
cal to that of the Soviet diplomatic note to be delivered 
later. These news articles were observed, inter alia, in the 
United States and the United Kingdom but elicited no for-
mal reactions on the part of the countries involved in the 
Antarctica discussions.
On 8 June 1950, the Soviet Union sent a memoran-
dum to the United States, the United Kingdom, France, 
Norway, New Zealand, Australia, and Argentina stating 
that ?the Soviet Government cannot recognize as legal any 
decision regarding the regime of the Antarctic taken with-
out its participation.?35 
u.s. proposal on a MoDus vIvenDI, 1951
It has been maintained that ?the negotiations ceased? 
after ?the Soviet Note of June 1950 and the outbreak of 
the Korean War? on 25 June 1950. This belief does not 
seem to be correct. Despite the Korean conflict, Chile and 
the United States continued to exchange revised versions 
of the modus vivendi proposal during 1950 and 1951. 
However, the Korean situation no doubt put a damper on 
the discussions.36 
The State Department sent a new draft, now labelled 
Modus Vivendi, to the Chilean Embassy on 14 Novem-
ber 1951.37 It differed little from the previous proposal. 
The United States stated that the only substantive change 
was that it addressed the collection of fees, so as to meet 
Chile?s concern. Under the new proposal, the collection 
of fees would not prejudice the right of any other party. 
There was, however, another substantial change. The arti-
cle on the right to perform scientific research in Antarctica 
had been redrafted. Chile returned to the proposal in the 
autumn of 1953.38 
In the meantime, the U.S. policy on Antarctica was 
under continuous assessment, and it was therefore any-
thing but clear and consistent.39 The interest focused 
primarily on the pro et contra arguments in relation to 
a pronouncement of a U.S. claim, the forthcoming U.S. 
expedition, and the emerging plans for an International 
Geophysical Year (IGY).40 The idea of a modus vivendi 
was not entirely abandoned, but in view of the fact that 
the United States had had no official activity in Antarc-
tica since 1948, the character of the argumentation was 
modified.41 President Eisenhower accentuated the option 
of focusing the politics on a reaffirmation of U.S. rights 
and claims, rather than announcing a claim.42 Documents 
from 1954 indicate that the United States had now de-
serted the idea of an internationalisation of Antarctica 
while ?still being in favour of a standstill agreement be-
tween friendly powers.?43 The primary objectives, laid 
down by the National Security Council, were a solution 
to the territorial problems of Antarctica so as to ?en-
sure maintenance of control by United States [sic] and 
friendly powers and exclude our most probable enemies? 
and freedom of scientific research and exchange of scien-
tific data ?for nationals of the United States and friendly 
powers.?44 
Antarctica surfaced as a global political factor?an el-
ement in the politics of containment. 
polITIcal DevelopMenT In The MID- 1950s
In 1955, the United Kingdom filed the Antarctica 
Case at the International Court of Justice, but the case 
was removed from the court?s list since the court found 
that it did not have any acceptance by Argentina to deal 
with the dispute.45
In January 1956, the New Zealand prime minister, the 
former Labour leader of the opposition Walter Nash, pro-
posed that Antarctica should be a UN trusteeship.46 Nash 
also proposed the abandonment of claims in Antarctica.47 
Allegedly inspired by Nash,48 India proposed in early 1956 
that the question of Antarctica be included in the agenda 
of the UN General Assembly. According to an explanatory 
memorandum, the reason for the initiative was that India 
wanted ?to affirm that the area will be utilised entirely for 
peaceful purposes and for the general welfare.? Another 
6   ?   S C I E N C E  D I P L O M A C Y
objective was to secure ?the development of Antarctica?s 
resources for peaceful purposes?.49 
The Indian request was evidently caused by a concern 
that Antarctica would be utilised for nuclear testing. There 
was no attempt to transfer the issue of territorial claims to 
the UN agenda, but rather, the attempt was to secure the 
peaceful use of Antarctica, a concern that the United States 
tried to meet by assuring that the United States had no in-
tention in using Antarctica as a nuclear site.50 Documents 
disclose U.S. concern that the Indian move was inspired by 
the Soviet Union and that it would attract ?neutral states.? 
The claimant states were also clearly negative to the Indian 
proposal, and Argentina and Chile argued that it would be 
contrary to Article 2, paragraph 7, of the UN Charter.51 The 
Indian proposal was withdrawn by 4  December 1956.52
a revIval of The u.s. conDoMInIuM proposal, 1957
The United States became more and more aware of the 
urgent need to revise (or rather to formulate) an Antarctic 
policy before the IGY, not least in light of the controversy 
among the United Kingdom, Chile, and Argentina and the 
Indian proposal to include the question of Antarctica at the 
UN. The U.S. fear of a UN involvement seems to have been 
related to anxiety about getting the Soviet Union involved. 
A condominium was considered preferable to a trust-
eeship. By the spring of 1957 the U.S. plans for proposing 
a condominium had come to fruition.53 It was considered 
that a condominium would be consistent with the asser-
tion of claims, which was the only way to persuade most 
of the claimants to accept the idea. A condominium, it was 
argued, could be designed ?to facilitate the further devel-
opment of the area in the interest of all mankind.? The idea 
of a condominium could ?be presented as a dramatic Free 
World initiative.? Although the idea was not a watertight 
way of keeping the Soviet Union outside the condominium, 
it was assessed that such ambitions on the part of the So-
viet Union could be curbed.54 This assessment was wrong.
The unITeD KIngDoM?s proposal
Before the United States had formulated a policy on 
the future of Antarctica and decided on how to proceed 
however, the United Kingdom proposed quadripartite 
talks among the United States, Australia, New Zealand, 
and the United Kingdom. These quadripartite talks were 
apparently preceded by talks in London between Aus-
tralia, New Zealand, South Africa, and the United King-
dom.55 A major difference between the British and U.S. 
perspectives at the time was the view on Soviet partici-
pation. The United Kingdom?s more realistic view of the 
situation apparently presupposed that the Soviet Union 
could not be left outside an agreement and hence calcu-
lated that it would be included, whereas the United States 
remained negative to such inclusion.56 The British initia-
tive is yet another example of the role the United Kingdom 
played in setting in motion the negotiations of the Antarc-
tic Treaty. The four- power talks prepared the ground for 
entering into the more formal Preparatory Meeting.
On 15 July 1958, a new attempt to include the question 
of Antarctica on the UN agenda was made by India. The at-
tempt was unsuccessful.57 At that time, the IGY was in full 
progress, the United States had convened a Conference on 
Antarctica, and the Preparatory Meeting had commenced.
eleMenTs ThaT Bore fruIT froM The early proposals
Several elements in the Antarctic Treaty can be traced 
back to the earlier proposals. A brief recounting gives the 
following list.
1. The removal of Antarctica from the arena of in-
ternational disputes. The objective survived, although the 
motives did not, namely, the fear that the Soviet Union 
might exploit the potential conflict and that the United 
States did not benefit from such friction.
2. Safeguarding individual interests; limited partici-
pation by states with special interests. During the course 
of discussions on the proposals, no one seems to have 
proposed an open- ended group of participants. From the 
outset, and from the U.S. perspective, there was a clearly 
identified group of states with so- called special interests. 
No other state claimed the right to participate, nor was 
there a discussion on the ?legitimacy? of the states to reg-
ulate. Those states that claimed the right to participate in 
an Antarctic solution later became original signatories to 
the Antarctic Treaty. 
3. Obligation to cooperate with the United Nations 
and other organisations. The obligation to cooperate with 
the United Nations underwent a negative transition during 
the discussions from a clear trusteeship proposal, under 
which an Antarctic trusteeship would have been a UN- 
sanctioned administration, or a condominium, possibly 
sanctioned by the UN, to an obligation to cooperate with 
specialised agencies of the UN.
4. Freedom of scientific research, freedom of move-
ment, and cooperation. The question of ?freedom of 
scientific research? was directly related to the identified 
group of participants, or ?friendly powers.? Freedom 
of scientific research on the high seas would still prevail 
under international law. However, the idea of cooperation 
in other areas as well and the obligation to cooperate de-
veloped in the Antarctic Treaty. 
J A C O B S S O N  /  L E G A L  F R A M E W O R K  F O R  A N TA R C T I C A   ?   7
5. Public interest and the benefit of scientific progress 
to ?people.? Public interest in Antarctica is well docu-
mented, and it had the benefit of bringing in funds and 
economic support for the poorly funded scientific com-
munity. The general assertion that mankind would benefit 
from scientific progress was considered a fact rather than 
a matter to be debated. 
6. Demilitarisation; peaceful use. Even if the propos-
als were aimed at preventing Antarctica from becoming 
an arena for international conflicts, there was no direct 
proposal with respect to a demilitarisation of the area.
7. Exploitation and conservation of resources. At 
the time, it was judged that there were no economically 
exploitable resources in Antarctica, with the possible ex-
ception of marine living resources, which were considered 
not to be included in an agreement because fishing activi-
ties were subject to the freedom of the high seas. Regula-
tion and conservation of resources (except whaling) were 
therefore not an issue. 
8. Territorial scope: south of 60?S Latitude. A clear 
distinction is made between the continent and the water 
areas south of 60?S latitude. This distinction is less clear 
in the Antarctic Treaty. It was clear throughout the discus-
sions that the high- seas freedoms south of 60?S latitude 
could not be limited.
9. Consensus. Attempts to have a decision- making 
procedure by majority rule failed. The claimant states 
were not prepared to accept any decision- making proce-
dure that would not have given them a veto. The consen-
sus principle was a prerequisite.
10. Duration. The discussions on the duration of the 
agreement mirrored, at an early stage, the tension between 
the wish to have a stable agreement and the concern on the 
part of the claimant states not to give the impression that 
they were relinquishing their claims. It was important to 
find a formula that satisfied the two aspects. 
It is therefore maintained that most elements in the 
Antarctic Treaty can be traced back to the previous pro-
posals, especially to those based on the so- called Escudero 
proposal in 1948, which despite its ambiguity, would have 
been constructive enough to serve as a foundation for a 
stable agreement. The political ambitions alone did not 
lead to a result until 1957, when help came from a seem-
ingly nonpolitical arrangement, namely, the IGY. 
The InTernaTIonal geophysIcal year
The IGY exercise helped transfer the question of Ant-
arctica from the table of diplomacy to the table of science, 
which was, indeed, a fortunate catalytic process for future 
legal and political development.
The agreement and achievements of the IGY are also 
of relevance to lawyers.58 One of the most important steps 
was the move by French Colonel (later General) Georges 
Laclav?re to not allow political controversies to prevail 
over scientific efforts. From the very outset, namely, at 
the first Antarctic Conference in Paris in 1955, Georges 
Laclav?re, the conference chairman, stated that there was 
no room for political considerations and underlined, in his 
opening address, the technical character of the conference. 
Political questions were not the concern of the conference 
since it was a conference about science.59 This declaration 
led to the conference unanimously adopting a resolution 
that ensured that ?the objectives of the conference are ex-
clusively of a scientific nature.?60 The political innovations 
of the IGY, such as the gentlemen?s agreement, ?some in-
ternational administration,? and the exchange of scien-
tists between bases, were ?political? elements that were 
later sanctioned and given a legal meaning in the Antarctic 
Treaty. 
The primary reason why the IGY remains relevant 
in the Antarctic context is that Article II of the Antarctic 
Treaty contains a cross- reference to the IGY. This cross- 
reference is one component of the two prerequisites for the 
material application of the very fundamental provision in 
the Antarctic Treaty that deals with the right to perform 
scientific research in Antarctica. According to this article, 
?freedom of scientific investigation and co- operation to-
ward that end, as applied during the International Geo-
physical Year, shall continue, subject to the provisions of 
the Antarctic Treaty? (my emphasis). This formulation is 
the result of a compromise. In order to understand the 
meaning of the wording of Article II of the Antarctic 
Treaty, it is necessary to examine what the relevant fea-
tures of the IGY were.
First, the IGY was a decision made by scientists, 
which was supported by an understanding by govern-
ments, to put aside political and legal struggles?the 
gentlemen?s agreement?and to concentrate on the over-
all scientific aim. The gentlemen?s agreement survived in 
essence and is now reflected in Article IV of the Antarc-
tic Treaty. Second, it featured participation and openness. 
Third, it outlined the importance of presence and activities 
in Antarctica. The ?activity requirement? is reflected in 
Article IX, paragraph 2, but had precedents in earlier U.S. 
proposals. Fourth, it specified access to scientific data and 
cooperation. Also, the exchange of data and scientists be-
tween stations commenced with the IGY.61 This practice is 
reflected in Articles II and III of the Antarctic Treaty. Fifth, 
it required unanimity in decision making. The IGY confer-
ences could make decisions for their own organisation of 
work. On such occasions the conferences worked under 
8   ?   S C I E N C E  D I P L O M A C Y
?the rule of unanimity.? This procedural rule is codified in 
the Antarctic Treaty, Articles IX, XII, and XIII.
In conclusion, most of the provisions in the Antarctic 
Treaty that relate to the performance of scientific research 
in Antarctica have their origin in the IGY. They were, as 
will be shown, taken up during the preparatory meetings 
before the Washington Conference, and from there, they 
found their way into the Antarctic Treaty. The treaty itself 
elaborated science as part of the requirement for accep-
tance of the treaty.
THE DEVELOPMENT FROM ONE SINGLE 
TREATY, THE ANTARCTIC TREATY, TO  
THE ANTARCTIC TREATY SYSTEM
The anTarcTIc TreaTy
It is not my intention to go through the provisions of 
the Antarctic Treaty but, rather, to shed light on what is 
not there, namely, resource management and administra-
tive structures, despite attempts to regulate them in the 
treaty. Many, if not all, articles of the Antarctic Treaty 
are, of course, of utmost importance, but the heart of the 
treaty is Article IV (the article that deals with the claims). 
However, for the issue of building a legal regime for Ant-
arctica, Article IX is of paramount importance since it is 
the legal basis for the administration of Antarctica. Article 
IX is structured around two basic components. The first 
relates to the meetings under the Antarctic Treaty (when, 
where, and how they can be held) and who can partici-
pate in those meetings. The second component relates to 
the mandate for these meetings and what measures can be 
taken during such meetings and by whom.
It is on the basis of this article that the entire legal man-
agement of the Antarctic region has been built. In short, 
Article IX is the foundation of the Antarctic Treaty System.
The agreeD Measures for The conservaTIon  
of anTarcTIc fauna anD flora
The Agreed Measures for the Conservation of Ant-
arctic Fauna and Flora (AMCAFF), adopted by the Con-
sultative Parties at Antarctic Treaty Consultative Meeting 
(ATCM) III (1964), was the first more- ambitious attempt 
to adopt elaborate conservation measures for Antarc-
tica. The potential need for measures with respect to the 
preservation and conservation of living resources in Ant-
arctica was foreseen in the Antarctic Treaty. The First 
Consultative Meeting had already addressed the issue 
in Recommendation I- VIII, and it could be said that 
 AMCAFF grew out of that recommendation. The Agreed 
Measures for the Conservation of Antarctic Fauna and 
Flora was not labelled a convention, but its form indirectly 
indicates its status as a treaty under the Antarctic Treaty. 
The Agreed Measures for the Conservation of Antarctic 
Fauna and Flora is considered by the Treaty Parties and by 
some authors as a comprehensive successful international 
instrument for wildlife conservation. It foreshadows a de-
velopment within the treaty system with respect to envi-
ronmental protection, transparency, information sharing, 
and the role of international organisations, namely, the 
Scientific Committee on Antarctic Research (SCAR). 
The convenTIon on The conservaTIon  
of anTarcTIc seals
The next step was to regulate Antarctic seals, proba-
bly not so much because seals were threatened but because 
this step was part of a much- larger objective, namely, to 
accustom reluctant parties to the Antarctic Treaty to the 
idea that it was appropriate to deal with matters or con-
servation. The parties to the Antarctic Treaty took it upon 
themselves to regulate their potential activities in the high- 
seas area. In this respect, the convention resembles a tradi-
tional fishery- conservation agreement.
New and important features of the Antarctic Treaty 
System62 were introduced by the negotiations on, and con-
clusion (in 1972) of, the Convention on the Conservation 
of Antarctic Seals (CCAS). First of all, the negotiations 
were held parallel to the ATCM and outside the Antarc-
tic Treaty. The negotiating Antarctic Treaty Parties recog-
nised that negotiation of the matters dealt with under the 
CCAS did not fall within the framework of the Antarctic 
Treaty. They further recognised that states, not parties to 
the Antarctic Treaty, could have a legitimate interest in the 
conservation and commercial exploitation of seals. The 
view that management of resources in the maritime areas 
south of 60?S latitude was outside the frame of the Ant-
arctic Treaty was later to be modified. The Treaty Parties 
had obvious problems in tackling the question of whether 
the Antarctic Treaty was applicable to sea areas or not, 
hence the issue of high- seas rights. 
Second, the CCAS was the first treaty to address how 
to manage the economic exploitation of an Antarctic re-
source and also the management of a resource not yet eco-
nomically exploited. 
Third, the CCAS introduced an ?open accession for-
mula.? There is no formal requirement that parties in spe 
be parties to the Antarctic Treaty. The CCAS strengthened 
J A C O B S S O N  /  L E G A L  F R A M E W O R K  F O R  A N TA R C T I C A   ?   9
the role of SCAR, and the participation in 1972 of repre-
sentatives from a specialised agency of the UN as observers 
and their de facto liberty to circulate documents were new 
instruments in opening up the system. Today, nongovern-
mental organizations and UN specialised agencies definitely 
have a role of their own within the Antarctic Treaty System. 
Wolfrum claims that the CCAS is interesting from a 
?Rechtssystematisch? (systematic) perspective, in that 
Consultative Parties as ?selbstbestellte Sachwalter? (self- 
appointed guardians) for the Antarctic environment are 
established.63 Although I agree with such a conclusion, it 
is important to stress that such a situation was, indeed, 
facilitated by neglect of the issue on the part of the remain-
ing international community. The Antarctic Treaty Par-
ties were later to learn that being a self- appointed trustee 
is not easily recognised. Yet it should be stressed that if 
 AMCAFF is regarded as a treaty, this development had 
been started by the conclusion of AMCAFF.
The convenTIon on The conservaTIon of  
anTarcTIc MarIne lIvIng resources
Despite the lack of enthusiasm for addressing the issue 
of the preservation and conservation of marine living re-
sources at the Washington Conference, this convention 
only lasted until the first Antarctic Treaty Consultative 
Meeting (1961), when four proposals were presented with 
respect to the conservation of living resources in the treaty 
area. The Scientific Committee on Antarctic Research also 
recommended that conservation measures be taken.64
The Antarctic Treaty Parties decided in 1977 to com-
mence negotiations. The participants included the 12 sig-
natories to the Antarctic Treaty and states that had acceded 
to the treaty, namely, the German Democratic Republic, 
the Federal Republic of Germany, and Poland. A number 
of international organisations participated as observers: 
the European Community, the UN Food and Agriculture 
Organization (FAO), the International Whaling Commis-
sion, the Intergovernmental Oceanographic Commission, 
the International Union for Conservation of Nature, the 
Scientific Committee on Oceanic Research, and SCAR. 
Signals from the FAO and UN Development Pro-
gramme for the need to exploit resources were met with 
strong reactions from the Treaty Parties.65 Other UN 
representatives spoke with a slightly different, more con-
servationist, voice. The UN Environment Programme sug-
gested that it should be ?involved in the protection of the 
Antarctic environment and the establishment of ecologi-
cally sound guidelines for exploration and exploitation 
of resources.?66 Nontreaty parties were also interested in 
exploitation. It was time for the Treaty Parties to secure 
control, and the CCAS had opened the door for the regu-
lation of resources in international waters.
The aim of the Treaty Parties was to conclude a treaty 
before the end of 1978. As was the case with AMCAFF 
and the CCAS, the discussions had revealed that the area 
of application of such regulation was not self- evident, nor 
were the contents, nor the form of agreement. Questions 
were also raised as to who should participate in the devel-
opment of a regime, what kind of institutional arrange-
ments were needed, if any, how conservation measures 
could be enforced, and whether a dispute settlement pro-
cedure was needed. Yet the negotiations were fruitful. By 
agreeing to the Convention on the Conservation of Ant-
arctic Marine Living Resources (CCAMLR), the parties to 
the Antarctic Treaty recognized among themselves a func-
tional, efficient, regional treaty that applies both to areas 
that have the legal status of high seas and to areas that are, 
or are claimed to be, the territorial seas and exclusive eco-
nomic zones of claimant states. It is a treaty that applies to 
areas that third parties clearly have rights to and interests 
in, as well as certain obligations, for example, under the 
UN Convention on the Law of the Sea. In addition, the 
CCAMLR brought about the first ?institutionalisation? of 
Antarctica through the establishment of the commission 
and the Scientific Committee under the commission. Since 
the conclusion of the treaty, the CCAMLR has shown that 
it is capable of developing and adjusting to the require-
ments of the time.
When the Antarctic Treaty Consultative Parties 
(ATCPs) took control of the situation and decided to tackle 
the question of marine living resources, they acted pre-
emptively. Any attempts by third states to exploit marine 
living resources in a claimed area would most likely have 
disturbed peaceful Antarctic cooperation; to use the word-
ing of the Antarctic Treaty, they would have threatened to 
make Antarctica a scene or object of international discord. 
convenTIon on The regulaTIon of  
anTarcTIc MIneral resources
The decision to start negotiations on a minerals re-
gime had had a long prelude. Many states realised at the 
time of the Washington Conference that there was a need 
to reach agreement on living and nonliving resources, but 
the issue was, at the time, far too complicated to even at-
tempt accomplishing.
New Zealand raised the question of Antarctic min-
eral resources at a Preparatory Meeting before ATCM VI 
(1970), and there were many countries that saw the need 
1 0   ?   S C I E N C E  D I P L O M A C Y
for raising this issue, not least the United Kingdom. The 
decision to commence negotiations on a minerals con-
vention was underlined by the aspiration to negotiate a 
minerals regime before any commercial exploitation had 
commenced. Only the Consultative Parties were initially 
allowed to attend the session of that meeting. That re-
striction changed after ATCM XII (1983), when Non- 
Consultative Parties (NCPs) were invited for the first time 
to attend a Consultative Meeting. As a result, NCPs were 
also invited to attend the mineral negotiations. There is 
little doubt that the parallel development at the UN Gen-
eral Assembly (that is, an increasing criticism of the al-
leged ?closed and secret nature? of the Antarctic Treaty) 
inspired the Consultative Parties to make that decision.
The Convention on the Regulation of Antarctic Min-
eral Resource Activities (CRAMRA) was adopted in Wel-
lington on 2 June 1988, but it never entered into force, 
although not because of the external criticism stemming 
from the UN General Assembly. Instead, a revolution 
from within the Treaty Parties posed a great challenge. 
The treaty process was interrupted by Australian and 
French political turnabout. Belgium and Italy soon sided 
with France and Australia.67
The Convention on the Regulation of Antarctic Min-
eral Resource Activities is an interesting legal conception 
since it was negotiated as a regime for the management of 
resources that were known or believed to exist, but with-
out any evidence that they would become economically 
exploitable. The negotiation of CRAMRA was not so 
much about the exploitation of resources as it was a tool to 
prevent disharmony and conflict in Antarctica. Hence, the 
Treaty Parties were obliged to address this delicate issue, 
although that was not how the nontreaty parties saw it. 
On the contrary, one of the main criticisms against the 
Antarctic Treaty Parties was the alleged lack of a mandate 
to negotiate a minerals regime since the Antarctic Treaty 
lacks any reference to mineral resources.
From a political perspective, CRAMRA is, at present, 
of marginal interest. However, the legal constructions in 
CRAMRA, the balance of interests between claimant and 
nonclaimant states, might serve as an example when the 
time is right to address other resource issues. 
proTocol on envIronMenTal proTecTIon  
To The anTarcTIc TreaTy
As has been shown, the initiatives to protect the Ant-
arctic environment did not start with the Environmental 
Protocol. At the Preparatory Meeting (1989) to ATCM 
XV, Chile suggested that the question of ?comprehensive 
measures? for the protection of the Antarctic environ-
ment ought to be addressed.68 Behind the choice of ob-
scure words was the diplomatic insight that the time 
was not right for discussions on yet another convention, 
particularly in light of a situation in which the future of 
CRAMRA was at stake. A series of formal meetings were 
held, and the negotiations resulted in a proposal on a pro-
tocol to the Antarctic Treaty that was adopted in Madrid 
in 1991 and entered into force in 1998.
With the Environmental Protocol, the Treaty Parties 
took a step toward more- modern management of the Ant-
arctic environment. In short, the protocol institutionalised 
the protection of the Antarctic environment, not only by 
requiring environmental impact assessments before activi-
ties take place but also by establishing the Committee on 
Environmental Protection. 
The lIaBIlITy annex
The Environmental Protocol, Article 16, foresees the 
adoption of a liability regime to elaborate rules and pro-
cedures relating to liability for damage arising from activi-
ties taking place in the Antarctic Treaty area and covered 
by the protocol. The first step in that direction was taken 
by the adoption of the so- called Liability Annex, at ATCM 
XXVII in Stockholm in 2005.69 Despite the fact that this 
annex is not yet in force, its conclusion meant that the 
Treaty Parties showed their preparedness to tackle difficult 
and serious issues relating to the prevention and restora-
tion of the Antarctic environment.
CONCLUDING REMARKS AND A  
LOOK INTO THE CRYSTAL BALL
Article IV is clearly the heart of the Antarctic Treaty 
and the Antarctic Treaty System.70 However, Article IX, 
the article that allows for management of the continent, 
is an absolute legal and political necessity for stable co-
operation and the peaceful use of Antarctica. No progress 
would have been possible without the so- called ?mea-
sures? taken, according to the article.71 The establishment 
of a secretariat serves to facilitate the interactions of the 
claimants; the decision- making power remains with the 
ATCPs operating through the ATCM. In the meantime, 
the ATCPs have considerably developed, strengthened, 
and adapted the Antarctic Treaty System. 
After more than 20 years of debate, the Question of 
Antarctica was effectively taken off the agenda of the UN 
General Assembly in 200572; at that time, the assembly did 
J A C O B S S O N  /  L E G A L  F R A M E W O R K  F O R  A N TA R C T I C A   ?   1 1
not request the secretary- general to submit a report to a 
forthcoming session and did not include it on the agenda 
of forthcoming sessions but only wished to ?remain sized 
of the matter.? This decision can be seen as an important 
recognition of the successful management of Antarctica 
under and within the Antarctic Treaty System. The present 
secretary- general of the United Nations, Ban Ki- moon, was 
the first sitting UN secretary- general to visit Antarctica.73
It is sometimes claimed that it is the issue of illegal, 
unregulated, and unreported (IUU) fishing or tourism that 
constitutes the challenges to the Antarctic Treaty System. I 
do not share that view. The IUU fishing is certainly a threat 
to the Antarctic marine ecosystem, but not to the Antarctic 
Treaty System as such. The issue of IUU fishing is well taken 
care of within the context of CCAMLR,74 and management 
by CCAMLR has not been politically challenged by nonstate 
parties, nor has there been a proposal that the management 
of marine living resources would be better handled elsewhere.
The same goes for the issue of tourism. Tourism is a 
legitimate use of Antarctica, and tourists and individual 
explorers bring about a greater interest in the Antarctic 
region. The tourism industry has, in fact, helped to but-
tress the legitimacy of the Antarctic Treaty System, and the 
tourism industry is now a natural ?party? to the system, 
though not legally, of course.
However, other issues are likely to pose more of a 
challenge, such as the continental shelf issue and the is-
sues of bioprospecting and genetic resources. The reason is 
that these issues are so closely related to Article IV and the 
issue of claims. These issues are further complicated by the 
fact that we are discussing not only shelf areas stemming 
from the Antarctic continent but also shelf areas extending 
from north of 60?S latitude into the Antarctic Treaty Area.
I believe that these issues need to be more effectively 
and preemptively addressed by all the Antarctic Treaty 
Parties. The continental shelf issue is not an issue solely 
for those countries that have expressed claims or poten-
tial claims to the continent. This issue is, indeed, related 
to ensuring that the Antarctic will not become the scene 
of international discord. The Antarctic Treaty is a model 
for international cooperation at its best. It shows that co-
operation is possible even in situations when sovereignty, 
the fight for resources, and different political aims are at 
stake. It is a heritage that needs to be nurtured. 
NOTES
1. This article is based on the research I did for my doctoral thesis 
?The Antarctic Treaty System: Erga Omnes or Inter Partes?? which was 
presented at the University of Lund, Sweden, on 31 January 1998. The 
dissertation is available through a few Swedish libraries and from the 
author. It is accepted for publication. The original text is, for obvious 
reasons, overloaded with footnotes. For the benefit of the reader I have 
only retained a selected number of footnotes.
2. The contents of what was to come were already foreshadowed by 
the famous joint declaration by President Roosevelt and Prime Minister 
Churchill in 1941. The declaration put forth eight basic principles for 
the conduct of states in their international relations. Declaration of Prin-
ciples issued by the President of the United States and the Prime Minister 
of the United Kingdom, released to the press by the White House on 14 
August 1941, reprinted in American Journal of International Law 35 
(official supplement) (1941): 191?192. 
3. Emily Greene Balch, 1948, ?The Polar Regions as Part of One 
World,? Survey Graphic 37(9): 392?393. Professor Balch had become a 
Nobel Peace Prize Laureate in 1946. The International Executive Com-
mittee of the Women?s International League for Peace and Freedom voted 
in favour of the appointment of an ad hoc committee to consider and 
report on the proposal to internationalise all uninhabited polar areas at 
a meeting in May 1947 in Geneva. 
4. The development was closely followed by the U.S. press, which 
took an active interest in the matter and thereby put a certain pressure 
on the government, for instance, by asking about the U.S. view on an 
international conference for the settlement of the claims to Antarctica. 
The Secretary of State to the Embassy in London, Telegram, Washington, 
January 30, 1947, in Foreign Relations of the United States, 1947, vol. I 
(Washington, D.C.: U.S. Government Printing Office, 1971), p. 1050.
5. Paper Prepared by the Policy Planning Staff, [Washington,] June 
9, 1948, in Foreign Relations, 1948, vol. I, pt. 2, p. 979; and The Depart-
ment of State to the British Embassy, Aide- M?moire, Washington, June 
25, 1948, in Foreign Relations, 1948, vol. I, pt. 2, p. 988.
6. A brief account of the background history is found in John Han-
essian, ?The Antarctic Treaty 1959,? International and Comparative 
Law Quarterly 9 (1960): 436?480. (Hereinafter Hanessian, ICLQ 1960.)
7. The Chilean Embassy to the Department of State, 13 October 
1947, in Foreign Relations, 1947, vol. I, p. 1052.
8. See ?United States Instructions to Diplomatic Officers of the 
United States in the American Republics Proposing a Common Inter- 
American Policy with Reference to the Antarctic,? extracts reprinted as 
US11121939 in W. M. Bush, Antarctica and International Law. A Col-
lection of Inter- state and National Documents (London: Oceana Publica-
tions Inc., 1988), vol. 3, pp. 446?447. This document was preceded by, 
inter alia, an instruction of 8 August 1939 to diplomatic officers of the 
United States in the 21 American republics to give notice of the United 
States Antarctic Service expedition (The Acting Secretary of State to 
Diplomatic Officers in the American Republics, Washington, August 8, 
1939, in Foreign Relations, 1939, vol. II, pp. 9?10). The instruction is an 
indicator of (or at least leaves open) the possibility of a future U.S. claim. 
Simultaneously, President Roosevelt instructed Admiral Byrd, who was 
the commanding officer of the United States Antarctic Service, to take ap-
propriate steps ?which might assist in supporting a sovereignty claim by 
the United States Government? (President Roosevelt to the Commanding 
Officer of the United States Antarctic Service (Byrd) Washington, No-
vember 25, 1939, in Foreign Relations, 1939, vol. II, p. 13). As to the 
development at the Second Meeting of Ministers of Foreign Affairs of 
the American Republics in Havana in 1940, see Bush, Antarctica and 
International Law, vol. 1, p. 604. See also United Nations Treaty Series, 
vol. 161, p. 253, Article XVIII, which excluded Antarctica from any part 
of trusteeship. 
1 2   ?   S C I E N C E  D I P L O M A C Y
9. Argentinean Memorandum to the United Kingdom proposing 
a Conference to determine the juridico- political status of the Antarctic, 
reprinted in translation as AR11091940 in Bush, Antarctica and Interna-
tional Law, vol. 1, p. 605. The proposal was reiterated on several occa-
sions (Bush, Antarctica and International Law, vol. 1, p. 606).
10. Department of State to the Chilean Embassy, Memorandum, 
Washington, November 3, 1947, in Foreign Relations, 1947, vol. I, 
p. 1052. The same message was also conveyed by the president at a press 
conference on 7 January 1947 (The Secretary of State to the Embassy in 
the United Kingdom, Telegram, Washington, January 30, 1947, in For-
eign Relations, 1947, vol. I, p. 1050). At the same time, the internal 
discussions in the United States were intense. Although the United States 
at first favoured a trusteeship solution, other alternatives were contem-
plated, primarily an international administration in the form of a con-
dominium. The initial attention given to a trusteeship solution under the 
UN Charter foresaw an identified group of especially interested countries 
as primarily responsible and who would ?safe- guard special interests of 
certain countries by giving them permanent control of trusteeship admin-
istration?; see The Acting Secretary of State to the Embassy in the United 
Kingdom, Telegram, Washington, September 22, 1947, in Foreign Rela-
tions, 1947, vol. I, p. 1051.
11. Draft Agreement Prepared by the Department of State, [Wash-
ington, n.d.], in Foreign Relations, 1948, vol. I, pt. 2, p. 984. This 
document was circulated together with a Paper Prepared by the Policy 
Planning Staff [Washington], June 9, 1948 [PPS- 31] (hereinafter PPS- 31), 
which, in turn, was the result of a series of internal consultations dur-
ing the spring of 1948; see Editorial Note, in Foreign Relations, 1948, 
vol. I, pt. 2, pp. 976?977. The paper was also submitted to the National 
Security Council (Editorial Note, p. 977, note 1). See also Editorial Note 
(p. 982) for reference to an international status. In addition, Hanessian 
(ICLQ 1960, p. 437, note 4) refers to a ?Draft Communication Regard-
ing the Antarctic,? Department of State, February 19, 1948.
12. R. E. Guyer, ?The Antarctic System,? Recueil des cours 139, 
no. II (1973): 171. 
13. The draft text proposed that the eight states were to be ?des-
ignated jointly as the administering authority of the trust territory? and 
that a commission, also consisting of the eight states, should be created 
and decisions be taken by a two- thirds majority. There was a prescribed 
duty for the commission to cooperate with appropriate specialised agen-
cies of the United Nations and international scientific bodies. The tasks 
for the commission were to draw up plans for, inter alia, scientific re-
search as well as to prescribe appropriate procedures under which states 
and private expeditions might be granted permission to conduct scientific 
investigations, develop resources, or carry out other activities consistent 
with the purposes of the agreement. 
14. Department of States to the French Embassy, Aide- M?moire, 
Washington, September 28, 1948, in Foreign Relations, 1948, vol. I, 
pt. 2, p. 1005.
15. The Secretary of Defense (Forrestal) to the Secretary of State, 
Washington, 12 April 1948, in Foreign Relations, 1948, vol. I, pt. 2, 
p. 973. Cf. Hanessian, ICLQ 1960, p. 439 and note 12, who refers to a 
Department of State Memorandum (EUR) of 25 February 1948, Wash-
ington, D.C. Hanessian asserts that an ?important new element, pro-
viding for the demilitarisation of the area,? was also included. Such an 
element cannot be found in the documents from this period reprinted in 
Foreign Relations.
16. The draft agreement provided for accession by other states. The 
proposed territorial scope of the agreement was ?the Antarctic continent 
and all islands south of 60? South latitude except the South Shetland 
and South Orkney groups.? The area of application did not include the 
sea areas, the reason being that the United States did not wish to involve 
these areas for reasons of defence, security, and whaling.
17. This was by no means only a U.S. interest. Lord Shackleton 
claims that the proposals for a solution on the Antarctic question that 
had a UN involvement were not popular because such a solution could 
have attracted the Soviet Union to Antarctica. Shackleton in House of 
Lords Debate (1960), p. 167.
18. The Secretary of the Interior (Krug) to the Acting Secretary of 
State, Washington, January 8, 1948, in Foreign Relations, 1948, vol. I, 
pt. 2, p. 962. See note 22. 
19. It is difficult to see how the Soviet Union could have been 
kept outside the regime proposed in the draft agreement since Article 
86, paragraphs 1a and 1b, of the UN Charter (together with Article 23) 
would have provided for the Soviet Union to be a member of the Trustee-
ship Council.
20. The United Kingdom, which was the first country to be in-
formed, indicated that an eight- power condominium was preferable to a 
trusteeship under the United Nations since a trusteeship solution would 
allow for the Soviet Union to interfere. The role of the United Kingdom, 
and in particular of the legendary Brian B. Roberts, in these early stages 
of the development is still hidden in the closed archives of the Foreign 
and Commonwealth Office. 
21. Editorial Note, in Foreign Relations, 1948, vol. I, pt. 2, p. 992. 
Cf. F. M. Auburn, British Yearbook of International Law 43 (1971), who 
asserts that ?the very word condominium brought shivers to the Foreign 
Office? (p. 86), ?presumably due to the intractable problems detailed 
in D. P. Connell, ?The Condominium of the New Hebrides? ? (note 12). 
Auburn?s conclusion is difficult to reconcile with the information in For-
eign Relations that the United Kingdom preferred a condominium to a 
trusteeship; see, e.g., Position Paper Prepared in the Office of the United 
Nations Political and Security Affairs, in Foreign Relations, 1955?1957, 
p. 647; and the observation of Hanessian, ICLQ 1960, p. 440. 
22. The Ambassador in Chile (Bowers) to the Secretary of State, 
Telegram, Santiago, July 19, 1948, Foreign Relations, 1948, vol. I, 
pt. 2, p. 995. Professor Escudero was an acknowledged Chilean expert 
on Antarctic matters. He had, inter alia, in 1939 been appointed to 
study Antarctic questions and their bearing on Chilean interests; see 
Bush, ?CH07091939,? in Antarctica and International Law, vol. 2, pp. 
307?308. It should be noted that the discussions in Argentina did not 
lead to a continuing discussion between the United States and Argentina 
like the meeting in Chile did between the United States and Chile. The 
prime concern voiced by the Argentine representative was that it was 
inadmissible that countries outside the Western Hemisphere should be 
given a voice within the American quadrant; see The Charg? in Argen-
tina (Ray) to the Secretary of State, Telegram, Buenos Aires, July 21, 
1948, Foreign Relations, 1948, vol. 1, pp. 995?996. This was a shift in 
attitude; cf. note 18.
23. Foreign Relations, 1948, vol. I, pt. 2, p. 997, note 2.
24. The Department of State to the French Embassy, Aide- M?moire, 
Washington, September 28, 1948, in Foreign Relations, 1948, vol. I, 
pt. 2, p. 1005. See also, Bush, Antarctica and International Law, vol. 2, 
pp. 2, 165.
25. For the views of the consulted states, see Foreign Relations, 
1948, vol. I, pt. 2: Chile, p. 997, note 2, and Memorandum of Conver-
sation, by the Under Secretary of State (Lovett), [Washington,] August 
16, 1948, p. 1002; Argentina, p. 997, note 2, and The Ambassador in 
Argentina (Bruce) to the Secretary of State, Telegram, Buenos Aires, No-
vember 1, 1948, p. 1011; Australia, Memorandum of Conversation, by 
J A C O B S S O N  /  L E G A L  F R A M E W O R K  F O R  A N TA R C T I C A   ?   1 3
the Secretary of State, [Washington,] August 17, 1948, p. 1003, and The 
Ambassador in the United Kingdom (Douglas) to the Secretary of State, 
p. 1014; New Zealand, The Minister in New Zealand (Scotten) to the 
Secretary of State, Telegram, Wellington, September 7, 1948, p. 1005; 
United Kingdom, The Ambassador in the United Kingdom (Douglas) to 
the Secretary of State, Telegram, London, November 24, 1948, p. 1014; 
France, p. 1005, note 1; Norway, The Norwegian Ambassador (Mor-
genstierne) to the Acting Secretary of State, Washington, November 15, 
1948, pp. 1011?1013; United Kingdom, p. 997, note 2, and Editorial 
Note, p. 1015; and a summary of views in Paper Prepared in the Depart-
ment of State, [Washington, n.d.], in Foreign Relations, 1949, vol. I, pp. 
800?801. See also Hanessian, ICLQ 1960, p. 445 (Argentina).
26. Editorial Note, in Foreign Relations, 1948, vol. I, pt. 2, p. 1004. 
The press release can be found in the File on Antarctica, Swedish Minis-
try for Foreign Affairs, Doss. HP 53 P (1), containing the Department of 
State Press Release, August 28, 1948, No. 689. Apparently, the British 
Foreign Office and the Chilean Ministry for Foreign Affairs had already 
issued statements regarding the discussions on Antarctica. See also De-
partment of State Bulletin 19, No. 479 (5 Sept. 1948). 
27. Chile explicitly stated an interest in scientific cooperation, Han-
essian, ICLQ 1960, p. 441.
28. Memorandum of Conversation by the Chief, Division of North-
ern European Affairs (Hulley), [Washington,] October 1, 1948, in For-
eign Relations, 1948, vol. I, pt. 2, pp. 1007?1010. The notes from which 
the South African charg? d?affaires spoke are reprinted as an annex. It 
is worth noticing that parallel to this, consultations between the United 
Kingdom, Argentina, and Chile had commenced, so as to avoid ?naval 
displays? in the southern latitudes. These consultations resulted in a tri-
partite declaration on 18 January 1949 not to send warships south of 
60?S latitude, apart from customary routine movements.
29. Paper prepared in the Department of State, [Washington, n.d.], 
in Foreign Relations, 1949, vol. I, pp. 800?803; and Memorandum by 
the Secretary of State for the Executive Secretary of the National Security 
Council (Souers), Washington, August 29, 1949, in Foreign Relations, 
1949, vol. I, p. 805. See also Memorandum of Conversation, by the 
Chief of the Division of Northern European Affairs (Hulley), [Washing-
ton,] March 23, 1949, in Foreign Relations, 1949, vol. I, p. 795.
30. Draft Declaration on Antarctica Prepared by the Department 
of State, [Washington, n.d.], in Foreign Relations, 1950, vol. I, pp. 
905?906. The Chileans were apparently not informed about the British 
involvement. Memorandum of Conversation, by the Chief of the Divi-
sion of Northern European Affairs, Washington, September 13, 1949, in 
Foreign Relations, 1949, vol. I, p. 806. For a similar vein of handling the 
matter, see Foreign Relations, 1950, vol. I, p. 907, note 2; and Memoran-
dum by the Officer in Charge of British Commonwealth and Northern 
European Affairs (Hulley) to the Director of the Officer of North and 
West Coast Affairs (Mills) [Washington,] January 4, 1950, in Foreign 
Relations, 1950, vol. I, p. 905.
31. Draft Declaration on Antarctica Prepared by the Department of 
State, [Washington, n.d.], in Foreign Relations, 1950, vol. I, p. 905?906.
32. PPS- 31, Washington, June 9, 1948, in Foreign Relations, 1948, 
vol. I, pt. 2, p. 982.
33. Foreign Relations, 1949, vol. I, p. 794, note 1. Bellingshausen 
was, however, Estonian, rather than Russian, although he sailed a Rus-
sian ship. He was received with lukewarm interest when he returned to 
Russia, but his achievement has, in recent times, been described as ?sec-
ond only to that of Cook.? G. E. Foggs and David Smith, The Explora-
tions of Antarctica (London: Cassell Publishers Limited, 1990), p. 28. 
See Headland (Chronology), p. 115, index no. 433.
34. The Embassy in Moscow to the Minister for Foreign Affairs, 22 
February 1947, Swedish Ministry for Foreign Affairs, File on Antarctica, 
Doss. HP 53 P. See also Department of State Policy Statement, [Washing-
ton,] July 1, 1951, Foreign Relations, 1951, vol. I, p. 1727.
35. The Embassy of the Soviet Union to the Department of State, 
Memorandum Washington, June 8, 1950, in Foreign Relations, 1950, 
vol. I, pp. 911?913. Chile and the Soviet Union had no diplomatic rela-
tions, Klotz (America), p. 24.
36. F. M. Auburn, Antarctic Law and Politics (Bloomington: Indi-
ana University Press, 1982), p. 86; Philip W. Quigg, A Pole Apart: The 
Emerging Issue of Antarctica (New York: McGraw- Hill Book Company, 
1983), p. 136; and Bush, Antarctica and International Law, vol. 1, p. 57. 
But cf. Memorandum of Conversation, by the Officer in Charge of British 
Commonwealth and Northern European Affairs (Hulley), [Washington,] 
September 7, 1950, in Foreign Relations, 1950, vol. I, pp. 917?919, and 
Memorandum of Conversation, by Mr .Grant G. Hilliker of the Office of 
British Commonwealth and Northern European Affairs, [Washington,] 
March 5, 1951, in Foreign Relations, 1951, vol. I, pp. 1717?1718. See 
also Hanessian, ICLQ 1960, p. 447.
37. Draft Declaration on Antarctica, Prepared in the Department of 
State, [Washington, November 14, 1951], Foreign Relations, 1951, vol. 
I, pp. 1734?1736.
38. Hanessian, ICLQ 1960, p. 447.
39. Foreign Relations, 1952?1954, vol. X, p. 1738, note 5.
40. See the documents in Foreign Relations, 1952?1954, in particu-
lar, Draft Statement of Policy Proposal by the National Security Council, 
[Washington,] June 28, 1954, pp. 1744?1756, but also see Quigg, A Pole 
Apart, pp. 137?138.
41. Draft Statement of Policy Proposed by the National Security 
Council, [Washington,] June 28, 1954, in Foreign Relations, 1952?1954, 
vol. I, pp. 1754?1761. The debate was, to a large extent, a budgetary 
discussion; it is costly to fulfil and maintain a claim.
42. Memorandum of Discussion at the 206th Meeting of the Na-
tional Security Council on Thursday, July 15, 1954, in Foreign Relations 
1952?1954, vol. I, p. 1758. President Eisenhower is quoted as having 
said that he ?would rather offend the British than our Latin American 
friends regarding issues in Antarctica.? See also, Klotz, America, p. 25. 
43. Statement of Policy by the National Security Council, [Wash-
ington,] July 16, 1954, in Foreign Relations, 1951?1954, vol. I, p. 1761 
(approved by the president; see p. 1760). 
44. Statement of Policy by the National Security Council, [Wash-
ington,] July 16, 1954, in Foreign Relations, 1951?1954, vol. I, p. 1761 
(approved by the president; see p. 1760). 
45. Antarctica Case, United Kingdom v. Argentina, ICJ Report of 
Judgment, Advisory Opinions and Orders 1956, Order 16, March 1956, 
p. 14.
46. John Hanessian Jr., New Zealand and the Antarctic. Part II: 
International Political Aspects, in Polar Area Series, vol. II, No.3, (Ant-
arctica) American Universities Field Staff. Report Service, (New York?) 
1962, especially pp. 3?8. As Labour leader of the opposition, Nash had 
proposed international control over Antarctica. His ideas did not receive 
support from the New Zealand government, but when back in power, 
he pursued the idea of international control of the area and also that 
the United Nations should approve of, but not necessarily administer, 
such a regime. Nash had previously in 1948, as acting foreign minister, 
expressed a positive attitude to the U.S. proposal on a condominium 
(Hanessian, New Zealand and the Antarctic, p. 3).
47. New Zealand orally maintained this idea up to the stage of the 
commencement of the Washington Conference. See Opening Statement 
1 4   ?   S C I E N C E  D I P L O M A C Y
by the New Zealand representative A. D. McIntosh, C.M.G. in Doc. 6 
at the Washington Conference. It is stated that New Zealand had been 
?prepared to consider the relinquishment of national rights and claims 
in Antarctica if such a step towards the establishment of a wider regime 
were generally agreed? (p. 1). ?This is why my Prime Minister has put 
forward the view that the establishment of a completely international 
regime for Antarctica would require countries to forego their national 
claims . . . only on this basis that a fully effective administration of the 
whole of Antarctica could be achieved?an administration that could 
coordinate all activities and ensure the permanent neutralization of the 
area. Such an international regime could prepare for the eventual use of 
resources of Antarctica in a regulated and orderly manner? (p. 2). 
48. Hanessian, New Zealand and the Antarctic, p. 3. 
49. S. Chaturvedi, The Dawning of Antarctica (New Delhi: Segment 
Books, 1990), p. 72. See also Memorandum From the Assistant Secre-
tary of State for European Affairs (Merchant) to the Under- Secretary 
of State (Hoover), Washington, February 24, 1956 and Telegram From 
the Department of State to the Mission at the United Nations, Wash-
ington, September 3, 1956, in Foreign Relations, 1955?1957, vol. XI, 
pt. II, pp. 643?645. The date of the request was 19 February 1956, 
and the explanatory memorandum was presented to the U.S. mission 
on 3  September. 
50. Memorandum From the Assistant Secretary of State for Euro-
pean Affairs (Merchant) to the Under- Secretary of State (Hoover), Wash-
ington, February 24, 1956 and Telegram From the Department of State 
to the Mission at the United Nations, Washington September 3, 1956, in 
Foreign Relations, 1955?1957, vol. XI, pt. II, pp. 643?645. 
51. See the document ?Question of Antarctica? attached to a Po-
sition Paper Prepared in the Office of the United Nations Political and 
Security Affairs, in turn attached to a Memorandum From the Director of 
the Office of the United Nations Political and Security Affairs (Adams) to 
the Assistant Secretary of 1956, in Foreign Relations, 1955?1957, p. 648. 
52. Memorandum From the Acting Assistant Secretary of State for 
Inter- American Affairs (Rubottom) to the Secretary of State, Washing-
ton, December 4, 1956, in Foreign Relations, 1955?1957, p. 652. 
53. Memorandum From the Director of the National Security 
Council Secretariat (Boggs) to the National Security Council Planning 
Board, including enclosures, among others a Draft Statement of Policy 
by the National Security Council on Antarctica, in Foreign Relations, 
1955?1957, vol. XI, pp. 675?689. 
54. Paper Prepared in the Department of State [n.d.], Subject: 
Establishment of a Condominium of Antarctica, in Foreign Relations, 
1955?1957, pp. 681?682. It was perceived that this ?would not preclude 
the Soviets from claiming the right to participate in the administration of 
the area based on such claims as it might make, and while it would not 
force or necessarily bring about the withdrawal of Soviet personnel from 
the area, it would provide a basis for the U.S. and the present claimant 
powers to question its [sic] validity of Soviet presence in the area.? 
55. Telegram from the Department of State to the Embassy in the 
United Kingdom, Washington, August 23, 1957, in Foreign Relations, 
1955?1957, vol. XI, pp. 710?711. The United States informs London, 
Canberra, and Wellington that it is prepared to participate in such quad-
ripartite talks. The telegram also reveals the U.S. plan to gradually es-
tablish and expand a condominium over Antarctica and that these plans 
were to remain secret until after the IGY. 
56. Telegram from the Department of State to the Embassy in the 
United Kingdom, Washington, August 23, 1957, in Foreign Relations, 
1955?1957, vol. XI, pp. 710?711. When the United States advised that 
it was prepared to participate in such quadripartite talks, it declared 
that [the State Department?s] ?first reaction to British suggestion is that 
creation of condominium including USSR would not best serve inter-
ests and security free world and would be inconsistent with present U.S. 
policy.? See also Hanessian, ICLQ 1960, p. 452. As to the British role, 
see Ivo Meisner, ?Evolution of the Antarctic Treaty System: Respond-
ing to Special Interests? (doctoral thesis, Scott Polar Research Institute, 
Cambridge, 1986). The contents of and comprehensiveness of the British 
role remains to be examined. 
57. Chaturvedi, The Dawning, p. 72.
58. For a historic perspective of the IGY, see Cornelia L?decke, 
?Parallel Precedents for the Antarctic Treaty,? in Science Diplomacy: 
Antarctica, Science, and the Governance of International Spaces, ed. Paul 
A. Berkman, Michael A. Lang, David W. H. Walton, and Oran R. Young 
(Washington, D.C.: Smithsonian Institution Scholarly Press, 2011, this 
volume), pp. 253?263.
59. This took place at the First International Geophysical Year 
Antarctic Conference in Paris on 6?10 July 1955; see Marjorie M. 
Whiteman, Digest of International Law, vol. 2, Department of State 
Publication 7553 (Washington, D.C.: U.S. Department of State, 1963), 
p. 1242. Also at a meeting of the Comit? Special de l?Ann?e Geophysique 
Internationale (CSAGI) in Brussels, 8?14 September 1955, the president 
of CSAGI, Dr. Chapman, emphasised that CSAGI was a strictly nonpolit-
ical organisation; Sullivan (Assault) p. 277. In this light, it is particularly 
interesting that the (unofficial) ?U.S. programs in Antarctica in connec-
tion with the IGY? should be designed in support of a policy designed to 
protect the U.S. national interest; see Memorandum of Discussion at the 
272nd Meeting of the National Security Council, Washington, January 
12, 1956, in Foreign Relations, 1955?1957, vol. XI, p. 642.
60. Resolution 1 approved by the conference on 10 July 1955, re-
printed in Bush, ?GE10071955,? in Antarctica and International Law, 
vol. I, p. 501. For the text of the Argentine and Chilean statements, see 
Whiteman, Digest, pp. 1242?1243. 
61. As to coordination of scientific observations, see T. Nagata, pp. 
73?74, Shapley, p. 88. A scientist from the U.S. Weather Bureau wintered 
at Mirny Base, and a group of scientists, including a Soviet meteorolo-
gist, wintered at a U.S. base.
62. The notion of the Antarctic Treaty System had not yet been 
conceived by the time of the negotiations of CCAS.
63. R?diger Wolfrum, Die Internationalisierung (Location: Pub-
lisher, 1984), pp. 80?81.
64. Sec. paper/8, 10 July 1961, Suggested Form of Measures to Pro-
mote Conservation of Nature in the Antarctic, SCAR document. David 
W. H. Walton, ?The Scientific Committee on Antarctic Research and 
the Antarctic Treaty,? in Science Diplomacy: Antarctica, Science, and 
the Governance of International Spaces, ed. Paul A. Berkman, Michael 
A. Lang, David W. H. Walton, and Oran R. Young (Washington, D.C.: 
Smithsonian Institution Scholarly Press, 2011, this volume), pp. 75?88.
65. James N. Barnes, ?The Emerging Convention on the Conserva-
tion of Antarctic Marine Living Resources: An Attempt to Meet New 
Realities of Resource Exploitation in the Southern Ocean,? in The New 
Nationalism and the Use of Common Spaces, ed. Jonathan I. Charney 
(Totowa, N.J.: Allanheld, Osmun & Co. Publishers Inc., 1982), p. 278, 
note 35.
66. Matthew Howard, ?The Convention on the Conservation of 
Antarctic Marine Living Resources: A Five- Year Review,? International 
and Comparative Law Quarterly 38 (1989), p. 111.
67. For a more detailed analysis, see T. Scully, ?The Development 
of the Antarctic Treaty System,? in Science Diplomacy: Antarctica, Sci-
ence, and the Governance of International Spaces, ed. Paul A. Berkman, 
J A C O B S S O N  /  L E G A L  F R A M E W O R K  F O R  A N TA R C T I C A   ?   1 5
Michael A. Lang, David W. H. Walton, and Oran R. Young (Washing-
ton, D.C.: Smithsonian Institution Scholarly Press, 2011, this volume), 
pp. 29?38.
68. Information paper, presented by the Delegation of Chile, PREP/
WP/1 and attachment, both are undated. On file with the author.
69. Annex VI to the Protocol on Environmental Protection to the 
Antarctic Treaty Liability Arising From Environmental Emergencies. 
70. Its importance has been stressed by Gillian Triggs; see Gil-
lian Triggs, ?The Antarctic Treaty System: A Model of Legal Creativity 
and Cooperation,? in Science Diplomacy: Antarctica, Science, and the 
Governance of International Spaces, ed. Paul A. Berkman, Michael A. 
Lang, David W. H. Walton, and Oran R. Young (Washington, D.C.: 
Smithsonian Institution Scholarly Press, 2011, this volume), pp. 39?49. 
For an analysis of Article IV, see G. Triggs, International Law and Aus-
tralian Sovereignty in Antarctic (Sydney: Legal Books PTY, 1986), pp. 
137?150.
71. They were initially called recommendations but were sub-
sequently renamed to decisions, measures, or resolutions, depending 
on their legal character. The importance of governance through the 
decisions, measures, and resolutions is dealt with in other contributions 
to this volume (e.g., Scully, this volume).
72. See UN General Assembly, Sixtieth Session, A/60/PV.61 GA 
Resolution 60/47, adopted without a vote on 8 December 2005 on the 
basis of a Report of the First Committee (A/60/454).
73. He returned to the UN and declared (at a briefing to an infor-
mal meeting of the General Assembly, New York, 21 November 2007) 
that ?in the ice shelves of Antarctica, the glaciers of Torres del Paine 
and the rainforests of the Amazon, I saw up- close how some of the most 
delicate and precious treasures of our planet are being threatened by the 
actions of our own species. Antarctica?s message was chillingly simple: 
the continent?s glaciers are melting, far faster than we used to think. If 
large quantities of Antarctica?s ice were to vanish, sea levels could rise 
catastrophically.?
74. Denzil Miller, ?Sustainable Management in the Southern Ocean: 
CCAMLR Science,? in Science Diplomacy: Antarctica, Science, and the 
Governance of International Spaces, ed. Paul A. Berkman, Michael A. 
Lang, David W. H. Walton, and Oran R. Young (Washington, D.C.: 
Smithsonian Institution Scholarly Press, 2011, this volume), pp. 103?121.