and other participants in similar situations to accept inclusion in the Convention area of the waters around the islands in question. This solution took the form of a statement by the Chairman of the Canberra Conference regarding how the Convention would apply to such islands. This statement was included in the Final Act of the Conference without objection.

Territorial Sovereignty and Maritime Jurisdiction in Antarctica.-Under the Antarctic Treaty, the U.S. neither asserts nor recognizes claims to territorial sovereignty in Antarctica. Five other Consultative Parties share the U.S. view; the remaining seven Consultative Parties, however, assert such claims to territorial sovereignty in Antarctica. Because the claimant states consider that jurisdiction over marine resources derives from territorial sovereignty, the participants in the negotiation had to deal with their basic differences of view over the existence and nature of maritime jurisdiction in the Convention area.

The participants recognized that the Convention, like the Antarctic Treaty, could not finally resolve differences over sovereignty and related maritime jurisdiction. Basing their efforts upon the Antarctic Treaty, they were able to structure the Convention and future activities under it in such fashion that all participants can cooperate in creating and implementing an effective management system without prejudice to their legal views. The specific formulation of this accommodation is found in Article IV of the Convention which, to meet the legitimate concerns of those countries with uncontested sovereignty over islands within the Convention area north of 60 degrees South Latitude, includes a reference to coastal state jurisdiction.

Decisionmaking. From the outset the participants in the negotiations looked to the Convention to establish organizational machinery for conserving the resources of the Antarctic marine ecosystem. The question of how management decisions would be made within this organization was obviously of basic importance. In approaching this question, means had to be found to balance not only potentially varying interests regarding the harvest of resources themselves but also the differing perceptions over sovereignty and jurisdiction in the Convention area. After considering a variety of possible decisionmaking systems it became clear that the only generally acceptable solution was to provide for decisions on matters of substance by consensus. The consensus-or objection-procedure is a process which is designed to produce genuinely negotiated decisions. In choosing a consensus system the participants in the negotiations explicitly drew upon the practice of the Antarctic Treaty system in which consensus has provided an effective means of decisionmaking over the twenty years of the system's existence. Agreement on consensus as the decisionmaking principle represented a key element (along with the conservation standard and juridical formulation) in the overall accommodation necessary to develop an agreed regime.

The Convention's Links to the Antarctic Treaty.-The relationship between the Convention on the Conservation of Antarctic Marine Living Resources and the Antarctic Treaty was also an important question in the negotiations. As the Antarctic marine

ecosystem covers an area larger than the area of the Antarctic Treaty and because it was anticipated that there could be different Parties to the new Convention, it was recognized early on that the Convention on the Conservation of Antarctic Marine Living Resources should be a treaty distinct from and independent of the Antarctic Treaty. However, it was also recognized that the new Convention would complement the Antarctic Treaty and that the two should be closely linked.

The negotiation of provisions which would extend relevant obligations of the Antarctic Treaty to Parties to the new Convention without creating legal difficulties or obstacles to participation was a continuing and complex issue. The final result-which incorporates in the Convention the basic principles found in the Antarctic Treaty of using Antarctica exclusively for peaceful purposes and of the responsibilities of the Consultative Parties for protecting the environment of Antarctica-represents a reasonable balance between the concerns and interests of the Consultative Parties and those of non-Consultative Parties who may become Parties to the new Convention.

Participation by the European Community.-Four of the countries participating in the Canberra Conference-Belgium, France, the Federal Republic of Germany, and the United Kingdom-are members of the European Community (EC). Under the Community's common fisheries policy these countries have transferred certain legal competences to the Community on some of the matters covered by the Convention. This fact made it necessary that the Community as an institution, along with the four member countries, all become Parties to the Convention and participate in the work of the conservation institutions which it would create. Negotiation of the manner in which this shared competence would be reflected in the Convention-particularly in the decisionmaking system of the conservation institutions-was a complex and difficult matter.

An accommodation on the question of EC participation was reached in the final days of the Canberra Conference. It provides for participation in the Convention by both the EC and its member countries and their representation in the Commission to be established provided that there is no multiple or double voting on any issue.

Interim Measures.-The U.S. took the lead in the negotiations in seeking the agreement of the participants to take steps for the conservation of Antarctic marine living resources in the interim period after signature of the Convention but prior to its entry into force. These steps were designed to facilitate early ratification of the Convention and its effective operation once in force. Though there were reservations to the concept of interim measures, the Canberra Conference adopted two conference resolutions which essentially satisfied U.S. objectives for the interim period. The resolutions include:

-a commitment by the signatories to ratify the Convention as quickly as possible;

-a commitment by the signatories to show the greatest con

cern and care in any harvesting during the interim period,

bearing in mind the conservation objectives set forth in the Convention;

-a commitment to the greatest extent practicable and feasible, to cooperate in development and sharing of scientific and fisheries data necessary for the effective operations of the Convention;

-a commitment to compile and distribute such data and share it among the Contracting Parties to the Convention upon its entry into force (prior to the first meeting of the Commission and Scientific Committee); and

-a commitment by Australia, as the depositary government, to convene a meeting during the interim period to facilitate early and effective operation of the institutions to be established by the Convention.

S. Ex. X, 96th Cong., 2d sess. (1980), pp. v-ix.

Secretary Muskie's letter summarized the text of the Convention as follows:

The Convention consists of thirty-three articles. Article I provides that the Convention apply to the Antarctic marine living resources found south of the Antarctic Convergence. The location of the Convergence, for the purposes of the Convention, is defined by specific geographic coordinates. The article makes clear that the Convention applies to all species of living organisms south of the Convergence.

Article II establishes as the objective of the Convention the conservation (including rational use) of Antarctic marine living resources. To this end the Article sets forth a conservation standard in accordance with which all harvesting and associated activities must take place. The conservation standard (paragraph 3 of Article II) establishes three important principles to ensure that any harvesting of Antarctic marine living resources take place in a manner designed to afford the greatest protection possible to the Antarctic marine ecosystem. These principles provide for:

-prevention of decrease in the size of any harvested population to levels below those which ensure its stable recruitment (below a level close to that which ensures that greatest net annual increment).

-maintenance of the relationships between harvested, dependent and related populations; and

-prevention of irreversible changes in the Antarctic marine ecosystem.

These principles are to be applied as an interrelated whole. As such, they constitute a strict ecosystem standard which all harvesting and associated activities under the Convention must meet.

Article III extends to Contracting Parties which are not parties to the Antarctic Treaty the obligations contained in Articles I and V of the Antarctic Treaty. Those articles provide that Antarctica shall be used exclusively for peaceful purposes and prohibit military activities, nuclear explosions and the disposal of radioactive waste in Antarctica. This article of the Convention is designed to ensure that all Contracting Parties, active in the seas surrounding Antarctica, will be bound by the same obligations.

Article IV of the Convention is the important juridical article which makes clear that the Convention, as well as actions and activities thereunder, do not prejudice the basic position of the Contracting Parties on claims to territorial sovereignty and related maritime jurisdiction in the Convention area. Therefore, the Convention in no way affects the position of the U.S. under the Antarctic Treaty with regard to territorial sovereignty in Antarctica. It is the U.S. position under the Antarctic Treaty neither to assert nor to recognize claims to territorial sovereignty in Antarctica. As a corollary of this position, the U.S. does not recognize that a claim to territorial sovereignty in Antarctica is capable of creating any sort of maritime jurisdiction. In our view, for instance, the reference to coastal state jurisdiction in Article IV is understood to refer only to waters around islands within the Convention area north of 60 degrees South Latitude.

Article V establishes an additional link between the Convention and the Antarctic Treaty. Under the Antarctic Treaty system, the Antarctic Treaty Consultative

Parties are bound by obligations to preserve and protect the Antarctic environment, including the native fauna and flora of Antarctica. Article V provides that Contracting Parties to the Convention, which are not Antarctic Treaty Consultative Parties, will observe, as and when appropriate, such obligations undertaken by the Consultative Parties.

Article VI provides that the Convention does not derogate from the rights and obligations of Contracting Parties under the International Whaling Convention or the Convention for the Conservation of Antarctic Seals. The effect of this article is to recognize that direct regulation of the whales and seals covered by those conventions will not be undertaken by the new Convention. However, those species are covered by the new Convention specifically in the application of its conservation standard. In other words, the role of these species in the Antarctic marine ecosystem and the impact upon them of any harvesting of other species has to be taken into account in development of conservation measures under the Convention.

Articles VII through XIV relate to the creation, functions, and institutional make-up of the Commission and Scientific Committee to be established by the Convention.

The Convention provides for the establishment of the Commission for the Conservation of Antarctic Marine Living Resources to give effect to the principles and objective of the Convention. Its headquarters will be located in Hobart, Tasmania. The functions of the Commission are set out in Article IX. Its primary function is to give effect to the objectives and principles set forth in Article II (which defines the Convention's conservation standard). To this end, the Commission is charged with:

--facilitation of research and comprehensive studies of Antarctic marine living resources and of the Antarctic marine ecosystem;

-compilation of data relating to populations of Antarctic marine living

resources;

-acquisition of catch-and-effort statistics on harvested populatiors; -analysis and publication of such data and statistics;

-identification of conservation needs and analysis of the effectiveness of conservation measures;

-formulation, adoption and revision of conservation measures;

-implementation of the Convention's system of observation and inspection; -carrying out such other activities as are necessary to fulfill the objective of the Convention.

Article IX also includes an illustrative listing of the types of action that might be included in conservation measures taken by the Commission. The listing makes clear that the Commission may draw on the full range of such measures in pursuing the objective of the Convention.

Conservation measures adopted by the Commission become effective upon all its members 180 days after their adoption, unless within 90 days of adoption there is objection by a government of a member of the Commission. In that case the conservation measure in question would remain in force for other members of the Commission unless they too decide not to implement the measures. There is also provision for the Commission to convene in special session to review any conservation measure to which an objection has been made.

Article XII deals with the important issue of decisionmaking in the Commission. It provides that decisions on all matters of substance be taken by consensus. The article also provides the terms by which a regional economic integration organization, which is a member of the Commission, would participate in the decisionmaking process. (The provisions of the article incorporate a key element of the compromise on EC participation in the Convention).

Article XIV provides for the establishment of the Scientific Committee for the Conservation of Antarctic Marine Living Resources as a consultative body to the Commission. Each member of the Commission is to be represented on the Scientific Committee, whose role is to provide expert and independent advice to the Commission. The specific functions of the Scientific Committee, set forth in Article XV, include establishment of criteria and methods for determining conservation needs with regard to Antarctic marine living resources; assessment of their populations; analysis of data and other scientific information relating to these resources; transmission of assessments, analyses, reports and recommendations to the Commission; and formulation of proposals regarding needed research on Antarctic marine living

resources.

Article XVII provides for the appointment of an Executive Secretary, along with a permanent secretariat staff, to serve the Commission and Scientific Committee.

The Convention provides (Article XVIII) that the official languages of the Commission shall be English, French, Spanish and Russian.

Article XIX establishes that the budget of the Commission for the first five years of its operation shall be based upon equal contributions from the members of the Commission. Thereafter, a formula is to be developed which will include the levels of harvesting of Antarctic marine living resources by Commission members as a factor in the budget contribution formula. Such new formula, anticipated after the first five years of Commission operation, is to be developed by the Commission. Article XX imposes the obligation upon members of the Commission to provide necessary scientific data to the Commission, including information about their harvesting activities. It provides that members of the Commission keep the Commission informed of their efforts to implement conservation measures in force. Each member of the Commission is also obligated to take advantage of all opportunities, including harvesting activities, to collect data necessary for informed decisions on conservation measures.

Article XXI requires each Contracting Party to take all appropriate steps within its competence, including enactment of legislation if necessary, to ensure_compliance with the Convention and measures taken thereunder. Article XXII also requires Contracting Parties to take steps consistent with the United Nations Charter to ensure that no one engages in activities contrary to the objective of the Convention.

Article XXIII provides for close cooperation between the Commission for the Conservation of Antarctic Marine Living Resources and the Scientific Committee, on the one hand, and relevant intergovernmental and non-governmental organizations on the other. These organizations include FAO, SCAR, SCOR and the IWC [the United Nations Food and Agriculture Organization; the Scientific Committee on Antarctic Research of the International Council of Scientific Unions; the Scientific Committee on Oceanic Research of the same Council; and the International Whaling Commission].

Article XXIV provides for the establishment by the Commission of a system of observation and inspection to promote the objective and ensure observance of the provisions of the Convention. The article sets forth general principles upon which the system of observation and inspection is to be based and provides for the establishment of interim inspection and observation arrangements pending establishment of the formal system by the Commission.

Article XXV provides for a non-binding dispute settlement procedure similar to that contained in the Antarctic Treaty.

Articles XXVI through XXXIII relate to participation in, and entry into force of, the Convention. The Convention is open from August 1 to December 31, 1980 for signature by those States participating in the diplomatic conference. The Convention will enter into force on the 30th day following the deposit of the eighth instrument of ratification, acceptance, or approval. The Convention is open to accession by states interested in research or harvesting activities in relation to Antarctic marine living resources. Regional economic integration organizations which (a) include among their members a state member of the Commission and (b) to which member states have transferred in whole or in part legal competence covered by the Convention, may also accede to the Convention.

The Convention provides for amendment upon agreement by all members of the Commission. It also includes a withdrawal provision.

Ibid.,
pp. ix-xiii.

Hearings were held on the Convention Oct. 27, 1981. In response to a request from Senator Larry Pressler to describe the conservation standard embodied in the Convention and how it differed from other conservation agreements, R. Tucker Scully, Director of the Department of State's Office of Oceans and Polar Affairs (of its Bureau of Oceans and International Environmental and Scientific Affairs), replied:

In general terms, the negotiations on this Convention drew from the lessons that we have learned in other international resource management instruments which deal with living resources, many of which at least started upon a single species management basis.

In other words, they were directed toward the development of management objectives and management criteria which applied only to target species which were themselves the subject of harvesting. Many of these other agreements obviously have witnessed difficulties both in terms of being ineffective in protecting the species to which they were directed, but also in having unexpected side effects.