Prof Akiho Shibata responds to an article by Dr Alan Hemmings published on The Polar Connection on 18 March 2022: Does the Antarctic Treaty System have a moral duty to respond to Russia’s invasion of Ukraine
As of today, 20 March, what Alan Hemmings has described as “silence” and “no responses whatsoever” from the Antarctic Treaty System (ATS) continues, while the Parties to the Antarctic Treaty are busy preparing for the Working Papers/Information Papers for the upcoming 44th Meeting of the Antarctic Treaty Consultative Parties (ATCM) to be held in Berlin, Germany, from 23 May to 2 June 2022. In fact, ATS is an awkward “system” with limited means to have one voice as a collective entity. Unless the ATCM is physically meeting, what it can do to “respond” to an urgent issue, if indeed necessary, would be:
(1) The Executive Secretary of the Antarctic Treaty Secretariat in Buenos Aires, Argentina, delivers a statement after “intersessional consultations” as provided in Rule 46 of the ATCM Rules of Procedure, “when the exigencies of the circumstances require action to be taken before the opening of the next ATCM”;
(2) A joint statement of the like-minded Parties of the Antarctic Treaty, similar to the one issued by the Arctic seven members of the Arctic Council on March 3, 2022; and/or
(3) A unilateral statement by the host government regarding the convening of the 44th Meeting, after careful consultations amongst the Antarctic Treaty Parties but not necessarily based on the consensus of all the Parties.
Option (1) above would be unrealistic as any such statement will require an affirmative consent of all Consultative Parties, including the Russian Federation, according to Rule 46. Option (2) would not be an ATS response, both in its formality as well as in its substance. Formally speaking, the ATS has no procedural means to issue a politically sensitive statement without the consensus of at least all the Consultative Parties of the Antarctic Treaty (at the moment, 29 Parties out of 54). Substantively, as Alan Hemmings correctly observed, the like-minded Parties may not be “all minus Russia” in the case of the Antarctic Treaty, unlike the case in the Arctic Council. In this context, an observation by Timo Koivurova is pertinent in comparing the different legal contexts of the Arctic Council being an international forum established by a non-legally binding resolution, whereas ATCM being a treaty-based Meeting (Art. IX of the Antarctic Treaty) involving rights and obligations of the Parties under international law.
What Alan Hemmings suggested was (3) above, using the host government’s authority to postpone/suspend/cancel a ATCM as “the least-worst option” for the ATS to fulfill its moral duty in face of the Russian invasion of Ukraine. In fact, in 2020, Finland as the expected host of the 43rd Meeting decided to cancel it because of the COVID-19 pandemic. Of course, for that occasion, I assume there were prior consultations amongst the Parties, and its decision was agreed upon by all the Consultative Parties, including the consequences of such cancellation. Alan Hemmings seems to assimilate this option with the decision of the Arctic seven not to send delegates to the Arctic Council meetings held in the Russian Federation as the Chair of those meetings and to suspend their participation in all subsidiary bodies of the Arctic Council wherever they may be held. The factual effect might be the same that those meetings will not be convened, but the legal authorities to achieve the same result as well as their legal consequences are very much different.
The policy as well as legal justifications for the German government to take such a decision, if it were to take such action in response to the Ukraine situation, would have profound significance for the future of the ATS. Here, I disagree with many of the points raised by Alan Hemmings. First, Alan Hemmings stated that “the opportunity-cost of not being able to have an ATCM may not be that high in terms of actual Antarctic outcome”, and gave examples of legally binding Measures not being adopted in the last 12 years. He also mentions there would be no “prospects of breakthrough on any significant Antarctic issue”. Being a regular participant himself, Alan Hemmings knows very well the significance and value of having annual meetings of the ATCM, where Parties exchange information and have intimate discussions as regards their Antarctic activities in light of their obligations under the Treaty and the Madrid Protocol, one such obligation being the peaceful use of the Antarctic and the prohibition of any measures of a military nature (Art. I). It is true that the ATCM can only proceed with the consensus of all the Consultative Parties, but, because it is consensus-based, a continuous and tireless effort by all involved to obtain such consensus through face-to-face discussions is so crucial, particularly in the context of the Antarctic Treaty System.
Second, Alan Hemmings seems to suggest that the stake is too high – that the postponement of ATCM should be accepted as an “inconvenience in the course of repudiating a crime”. He indicates (a) participation of Russian and Belarusian delegations in the Meeting; (b) possibility of the Ukraine delegation being absent due to the war; and (c) the place of the Meeting (Berlin) being only 900 km from the war theatre; are unthinkable.
As to (b) and (c), I think it is crucial for the German host government to ensure that all delegations, including the Ukraine delegation, are logistically and physically able to attend the Meeting in Berlin. I concur with Alan Hemmings that, if Ukraine delegation cannot participate in the Meeting due to the current situation, the Meeting should be postponed and/or re-arranged so as to make sure that the Ukraine delegation can fully participate in the Meeting. As was the case in 2020 during COVID-19, if travelling to Berlin would pose serious safety risks for certain delegations and/or, for other delegations and expert organisations (including NGOs), tremendous financial costs due to restricted flights into Europe, I concur with Alan Hemmings that the Meeting should be postponed/re-arranged, with a concrete proposal for such a postponed/re-arranged meeting in the near future. We have historical precedent to take into account political sensitivities in deciding the place of an ATCM – for example, during the apartheid era, some Consultative Parties did not have diplomatic relations with each other, making it difficult to hold the meeting in such countries.
The gist of Alan Hemmings argument is actually on point (a) above – that is, whether the ATS as a collective entity or the German host government could legally and appropriately disallow the Russian (and Belarusian) delegations to attend the next ATCM in Berlin, and, if that is not possible, his suggestion was to cancel or postpone the entire Meeting. This reasoning must be carefully examined: first, from a legal perspective, and then from the perspective of, within the legally permitted actions, what would be the best policy option for the ATS as a whole.
The legal issue here is not whether Germany can disallow the members of the Russian delegation to enter the territory of Germany, which can be done relatively easily, based on, for example, security reasons. The Antarctic Treaty Secretariat Headquarters’ Agreement provides for privileges and immunities of ATCM delegates only towards the Argentinian government as the host of the Secretariat (Art.15). Unlike the delegation to the United Nations or those meetings convened under it, with its privileges and immunities provided under the relevant Convention (see in particular Art. 4 on Representative of Members), the delegations to the Antarctic Treaty Consultative Meetings would not have such immunities from immigration restrictions, unless they try to enter the country as accredited diplomats to be posted at or return to the Russian Embassy/Consul in Germany. However, such immigration restrictions by the German host would not prevent the Russian diplomats already in Germany to attend the ATCM in Berlin. It is very common that many delegations to the ATCM include Ambassadors and diplomats posted at the embassies of the host country, especially when the Meeting is held at the capital of that country, where many embassies are located.
Thus, what Alan Hemmings suggests was to disallow the Russian (and Belarusian) delegations to participate in the ATCM itself. This measure, if enforced, will infringe an internationally protected right of the Russian Federation under Article IX of the Antarctic Treaty to attend the ATCM. Art. IX provides that “Representatives of the Contracting Parties named in the preamble to the present Treaty shall meet … at suitable intervals and places, for the purposes of…consulting together on matters of common interests pertaining to Antarctica, and formulating…measures in furtherance of the principles and objectives of the Treaty” (emphasis added). The Russian Federation as a successor state of the former Soviet Union is indeed one of the 12 original Parties to the Treaty named in the preamble, and the use of the term “shall meet” indicates it is a legally protected right to be invited and to participate in such consultation and formulation of the measures. It is also correct, as Alan Hemmings has suggested, that a delegation can voluntarily decide not to attend the meeting or participate in the specific decision-making. In such cases, if the quorum for the Meeting under the Rule of Procedure is satisfied, the Meeting is duly constituted, and any measures, decisions and recommendations adopted by “the Representatives of all Consultative Parties present” without the votes of those voluntarily absent will have their designated legal effects. There could be cases where, through established internal rules of the organisations or meetings, the voting right of a certain member/party may be suspended. Many organisations have internal rules providing for non-payment of dues as reasons for temporary suspension of voting rights. No such rules are currently established under the ATCM Rules of Procedure.
Thus, the legal question is: Can Germany as the host country or the Treaty Parties collectively disallow the Russian delegation against its will to participate in the Meeting and its decision-making and still claim the Meeting is duly constituted and its decision has legal force? Some scholars may invoke Article 60, paragraph 2 of the Vienna Convention on the Law of Treaties (VCLT) as a possible legal means to suspend the operation of the Antarctic Treaty in relation with Russia (more specifically, the operation of the right of Russian Federation to participate in the ATCM as per Art. IX of the Treaty) as a consequence of its material breach of the Treaty either (a) by a unanimous agreement of the Treaty Parties other than those in breach; (b) by a party specifically affected by the breach (probably by Ukraine); and (c) any party if the Treaty is of such a character that a material breach changes the position of every party with respect to the further performance of its obligations under the Treaty. This provision is rarely invoked in practice and the scholarly work is limited.
However, in the present case, the Russian aggression against Ukraine may be a flagrant violation of the United Nations Charter, but to claim that such action is concurrently a material breach of the Antarctic Treaty so as to justify a suspension of Russian right under the Treaty is, to say the least, very tenuous. This discreet interpretation comes from the strict reading of the geographical scope of the Antarctic Treaty as provided in Art. VI: “[T]he present Treaty shall apply to the area south of 60 South Latitude, including ice shelves”. This provision has worked well in insulating the Antarctic Treaty System from extraneous considerations. Military operations/aggression conducted outside of this area will not by themselves violate any provisions of the Treaty.
A more relevant, but still tenuous, legal justification not to invite Russian Federation to the ATCM is to invoke the international law of state responsibility, particularly the law relating to countermeasures as a circumstance precluding its wrongfulness and in accordance with the criteria set by the International Law Commission’s Articles on State Responsibility (2001). Countermeasures may be taken against a responsible state – that is, a state that is in breach of international obligation – so as to justify the non-performance of its obligation towards that responsible state. In this case, Germany or other Antarctic Treaty Parties may suspend the participatory right of the Russian Federation under the Antarctic Treaty as a countermeasure against Russia for its violation of UN Charter as well as customary international law on the prohibition of use of force against territorial integrity of another state. According to the ILC’s Articles, the countermeasures are to be taken by the “injured state” – in the present case, by Ukraine.
Article 54 of the ILC’s Articles, however, provides that these provisions do not prejudice the right of any state other than the injured states to take “lawful measures against that [responsible] state to ensure cessation of the breach” when the obligations being breached are owed to the international community as a whole. The prohibition of the use of force against territorial integrity or political independence of another state is considered as jus cogens and indeed an obligation owed to the international community as a whole. Article 54, however, is ambiguous and leaves all options open, reflecting the divergent views of states and scholars. There is a legal risk in invoking such an argument in the present context.
Considering the tenuous nature of legal arguments in justifying the suspension of participatory right of the Russian Federation in the present case, a hasty decision not to allow the Russian delegation in the Meeting room, which of course would be physically enforceable by the German government, may jeopardise the whole Meeting and all of its decisions. What Alan Hemmings indicated as “the most obvious option, if the ATCM is to proceed, is to prevent Russia and Belarus attending” is, according to my evaluation, the most legally risky option for the Germany and the Antarctic Treaty Parties to consider.
The policy implications of taking such a course of action by the German government in consultation with the like-minded Parties, which could be considered by the opposing Parties as a unilateral suspension of one provision of the Antarctic Treaty in relation to a few Treaty Parties, could also be devastating for the whole of the Antarctic Treaty System. Such a course of action, with tenuous legal basis, may instigate counter-unilateral suspension by other Parties of more significant provisions of the Antarctic Treaty – for example, the obligations to accept inspectors to their Antarctic stations as per Article VII (3) of the Antarctic Treaty and Article 14 (3) of the Madrid Protocol. These exchanges of temporary suspensions of Treaty provisions may well be the beginning of a permanent dysfunction of the Antarctic Treaty System as a whole.
The silence of the Antarctic Treaty Parties so far must be read as the significant time necessary for discreet consultations amongst the Consultative Parties to achieve one of the most difficult decisions, packaged with plausible reasons and foreseeable consequences of such decision, in its 60 years of history.
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