Getting to the heart of the Antarctic negotiations
The 46th Antarctic Treaty Consultative Meeting has come to a close in Kochi, India. Negotiations focused, among other things, on the regulation of scientific and tourist activities, at a time of new questions raised by the emergence of the avian flu epidemic. The press and media were not allowed to attend, a fact that has been criticised on several occasions. We felt it was important to understand why these annual meetings maintain this limited degree of transparency.
So we turned to Luis Valentín Ferrada, head of the international law department at the University of Chile’s law faculty and senior researcher at the BASE Millennium Institute. He forged his status as a specialist in Antarctic law by working in several Chilean ministries before 2015, and has since dedicated himself to an academic approach to this branch of international law.
We also met Anne Choquet, President of the French National Committee for Arctic and Antarctic Research (CNFRAA), who is a professor of international law at the Institut Universitaire Européen de la Mer in France. She also sits on the Polar Environment Committee, a French decision-making body that examines applications for activities in the Antarctic.
Both have taken part in the negotiations and are following developments in the Treaty. Interview.
Why are the annual meetings of the Treaty closed to the media, except for the opening speech?
Luis Valentín Ferrada: In general, at the consultative meetings of the Antarctic Treaty, which is part of the large family of international bodies that exist in the world, there has been a major effort over the years to move forward as openly as possible. A series of communication channels have been set up, and there is a concern to open up the archives to the interested community, on the Treaty Secretariat page.
But when it comes to the Treaty’s consultative meetings, as in all diplomatic negotiations, we need space to create trust between the persons who have come to negotiate. If negotiations have to take place in front of a television camera and with the impression that they are being filmed, there are many issues that cannot be discussed or on which it will be more difficult to give your positions.
The people who take part in this type of meeting receive a series of instructions from their respective state. They know to what extent they can give in, what points they have to defend and what objectives they have to achieve. Rather like a game of chess, the negotiators advance their pieces over the course of ten days of meetings in the best possible form. There are several parallel meetings, and things are sometimes settled outside the plenary sessions, over a coffee. All the interplay that goes on there, which is typical of diplomatic activity, requires a certain degree of reserve.
Anne Choquet: International negotiations are all about trust between states. It’s better to look at it over the medium and long term, to understand the positions of each State. The originality of the Treaty is that, whatever the decision, it is taken on the basis of consensus. At present, we have 57 States – with the recent arrival of Saudi Arabia – 29 of which have the right to vote, whether for a decision on the functioning of the Treaty or a simple recommendation. All it takes is for one State to say ‘no’ for the decision not to be adopted. The advantage of consensus is that once an agreement has been reached, it is normally easier to implement a decision, unlike a majority system, where a rule can be imposed.
It is therefore very important to take a long-term view of the decision-making process and not necessarily see a negotiation that ends in a ‘no’ as a failure. We saw this in the press about marine protected areas. It’s true that it wasn’t adopted, but it’s better to say that we need to be more ambitious, by extending negotiations and trying to go all the way, i.e. reach this famous consensus. If we don’t do that, we run the risk of taking a more flexible decision.
LVF: With a certain degree of trust, it is possible to discuss and put this or that subject on the table, to settle certain existing disagreements or misunderstandings. Transparency and openness to the public put a lot of pressure on the behaviour of diplomats. In a way, there are more possibilities without this pressure.
But how can we follow Antarctic affairs if we don’t have access to the negotiations?
LVF: The inaugural session is open to the public, and the speeches are sometimes broadcast live. After that, the working sessions are accessible only to accredited representatives of States, but also to a series of international organisations and NGOs working on Antarctica. There are also organisations representing the tourism and fishing industries. The States make the decisions, but the number of people involved is growing all the time.
AC: The Treaty is based on the opinions of scientists represented by the International Committee for Antarctic Research (SCAR). In France, for example, the CNFRAA represents science on SCAR. Each country then organises its own delegation, made up of scientists, diplomats and representatives of internal state institutions and the relevant national authorities, who take decisions on authorising activities for their country. Each delegation works throughout the year.
International law establishes common rules. But on the basis of the common foundation, the scientific elements and the warnings issued during the Treaty meeting, there is nothing to prevent States from taking additional measures without waiting for a consensus. In this way, they can adopt a stance that is in line with what has been negotiated, typically following what happened with avian flu. The competent national authorities can give advice and authorisations to those who want to go to Antarctica. States can take measures to prohibit certain places and certain behaviours.
LVF: It is possible to monitor the negotiations in other ways, particularly at national level. You have to ask them and they will answer, because these are not super-secret private discussions. Sometimes these are sensitive issues, for example when they are discussing the establishment of a new environmental protection area. If a country has reservations, which may be legitimate, it will present its reasons. Of course, it doesn’t want to be nailed down as the guilty party, so to keep the negotiations going, it will present the points on which it could give way.
What is the timeframe for the negotiations?
LVF: Like any diplomatic negotiation, the States make concessions to each other, and even if on certain points some countries say ‘I support you 100%’, you often have to produce a major quantity of evidence and arguments based on texts, showing the type of scientific research you are carrying out. Sometimes you have to let the idea mature and discuss it in more detail. But these things don’t happen overnight.
AC: A text can come back to the fore, as France has done several times. We propose something, we see that there is no consensus, we may leave it for two or three years and come back to it later. Or we could come back every year with a working document that allows us to relaunch the discussion and come up with something new. There is an organised agenda, over four or five years, with subjects and deadlines for conducting these negotiations.
LVF: Once the meetings are over, the declaration, which is given to the press and the public, shows the agreements that have been reached. Then the work of editing the drafts and translating them begins, in the four official languages of the Treaty: English, French, Russian and Spanish. This takes… I don’t know, at least twenty days, and all the background information appears, all the documents submitted by the countries for discussion are published.
We use them here at the university to work with the students. Of course, it’s easier for those who are dedicated to this type of work, in academia or at government level, to know how to access them, but the database is fabulous.
What are these documents and are they easy to consult?
AC: The information documents and working documents are the proposals from the States. They present draft resolutions, draft measures and, in general, draft decisions. These documents describe the starting point for discussions, and show a certain position adopted by the Member States. These documents are traditionally open to all at the end of the decision-making process, i.e. once the meeting is over, everyone has access to them, journalists, individuals and associations. They come out with a press release setting out the results of the negotiations.
It’s true that the Antarctic Treaty system and the consultative meetings can be a bit confusing, it’s a huge discussion during which several hundred papers are put forward. For me, the job of journalism is not to focus on this time strictly speaking, but to follow the negotiation process throughout the year, the adoption of papers, the published reports, the working documents and information.
LVF: The press has a huge responsibility in this area, but how many journalists specialise in these subjects and follow them over the long term? Because we also need good communicators, who provide accurate information and are not sensationalists, grabbing a news item to catch the minute of fame, and the trending topic on Twitter. Everyone has a responsibility and the Antarctic issue needs to be taken very seriously.
Is the Antarctic system working well?
LVF: I don’t want to say that the consultative meetings necessarily work well – I’ve already written several criticisms of the way it works – but I think it’s an organisation that works rather well compared with the other organisations that everyone knows about. Frankly, the Antarctic system is much more successful than the United Nations system. I know it may sound a bit exaggerated, but the Antarctic Treaty is by far the most successful to date: it’s the only one that has managed for over sixty years to keep a continent in absolute peace.
AC: In international law, it is THE treaty. It was adopted in 1959 with Russia and the United States, with the starting point of freezing territorial claims, in other words a non-agreement, thanks to which we cooperate. That’s what makes it so extraordinary. There is an inspection mechanism, and any State can visit any station or ship to check that the Treaty is being complied with.
LVF: For this to work well – and I think this is the crux of the matter – we need representatives of the States in whom we have real confidence, and we need to be concerned to have the best possible people through the respective democratic mechanisms. Not just intellectually, but also morally, to guarantee the well-being of our countries and humanity. And once we have these good representatives, we must also give them the space to carry out their functions.
This is the critical point facing democracies in our countries: a lack of confidence in our authorities. We are not sure that the people we send to meetings are actually the ones who are going to do or will be able to do what we want. We need to overcome this lack of trust, and train our negotiators as well as possible, so that we have the best academics, the best diplomats, the best logistics operators… We need a system and a mechanism that enable the best possible people to come together to negotiate for the well-being of our countries, our peoples, and the international system in general.
Interview by Camille Lin
Find out more about this topic:
