The law, politics and science in the Consultative Party
acknowledgement process: A worrisome precedent at Kochi
Session 33 on Antarctic governance

Akiho Shibata

Professor of International Law and Director
Polar Cooperation Research Centre (PCRC),
Kobe University, Japan
SCAR Open Science Conference
Pucon, Chile, August 19-23, 2024

August 2024

AfricaConsultative Parties(29)

SouthAfrica

Western Europe and others

Australia Belgium

France New Zealand

NorwayUKUSA

Germany

Italy

Spain

SwedenNon-Consultative Parties(28)

Finland Netherlands

Denmark

Austria

GreeceCanada

Switzerland

MonacoPortugal

Iceland

San Marino

Asia-PacificEastern EuropeJapan

Russian FederationIndia

Latin America and Caribbean

Argentina

ChileChina

PolandBulgaria

BrazilUruguay

Korea, Repulic of

UkraineCzechia

PeruEcuador

PapuaNG Korea (DPRK) Romania

Hungary

Slovakia

Cuba

Colombia

Türkiye

Belarus

Slovenia

Venezuela

Costa Rica

Malaysia

Pakistan Kazakhstan

Mongolia Saudi Arabia

Estonia

Guatemala1. What happened at 46 ATCM in Kochi?
Belarus and Canada’s bit for CP: no consensus again
ü Of course, the politics!
ü For the institutional legitimacy of the ATS, what has
been recorded in the Final Report (as agreed by allCPs) has important precedential significance.
ü Belarus case recorded “politics” and “quality ofscience” for not acknowledging its CP status.
ü Canada’s case recorded lack of “national activities
reported in EIES” for negative response.

Photo: May 30 final plenary: How to record the“secret” meeting discussion on Belarus andCanada’s requests to become CP.

46 ATCM Final Report language (as adopted by consensus):
Outright political reason: “Many Parties further noted that under current political circumstances, discussed at ATCM 45 andATCM 46, they did not consider that an agreement on this issue could be reached.”
Quality of science: “Other Parties stated they did not consider Belarus had fulfilled the requirements contained in Article IX (2)of the Treaty as well as in Decision 2 (2017) noting concerns regarding the quality of its science and diversity of its programmeof Belarus’s application remained.”
Activities reported in EIES: “Some Parties noted that although Canada demonstrated a commitment and support of science,
they did not consider it had met the requirement in Article IX (2) for the need to have conducted substantial scientific research
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activity in Antarctica, with few scientific and national operational activities provided in EIES or IPs presented.”1. What happened at 46 ATCM in Kochi?
How shall we understand these Report languages?
→ Lawyer’s responsibility: interpretation based on rules and practice

Required science criteria under Art. IX (2) and/or Decision 2 (2017):
ü In-situ science (Art. IX (2): substantial scientific research activity there)ü National (governmental) scientific and logistical activities on EIESvs
ü Criteria based on scientists’ outcome (Dec. 2 (2017)).
ü Scientific papers in peer-reviewed journals, etc. Dec. 2 (2017) as “a major deviation”?

“Current political situation”:
ü Pure politics? OR any legal justification attempted? YES! “discussed at 45 and 46ATCM”
ü Ukraine (and informally some European CPs) tries to justify such reasoning based
4on Art. X of the Antarctic Treaty.

2. The law on Consultative Party (CP) status
Legal nature of CP acknowledgment procedureü Art. IX (2): “entitlement” =legal right= of Treaty Party tobecome CP once substantive science criteria (nothingelse) is factually satisfied.
ü Big discussion in 1977 (first case on Poland): Admission(UK) or Acknowledgement (US)? US’s view prevailed,
but the acknowledgment of facts will be made by theagreement of all CPs.
Photo: May 20 CEP: Delegation of Belarusü Reference to Art. X (in 1977 up to now): The authorityintervening.
(even obligation) of CPs to “urge” candidate party toapprove all previous measures in effect.
ü Why this additional condition, which is not reflected in Art. IX (2), can be urged?
① Level (legal) playing field in Antarctica for all CPs, existing and newcomers.
② Measures are adopted “in furtherance of the principles and objectives of the Treaty”.
③ Art.X obliges CPs not to allow “any activity in Antarctica contrary to the principles
5and purposes of the Treaty”→ all CPs must be bound by such measures in effect.

3. Politics engaged in legal framework:
How can one argue (legally) “current political circumstance” asjustifiable reason for not acknowledging Belarus’ CP status?
Ø End of the Rule of Law in ATS? “If politics requires so, the law must be subdued”.
Luckily, not heard (at least formally in the open discussion) during the Kochi ATCM.
Ø (Potential) legal arguments mentioned during 45 and 46 ATCM:
a. Compliance with UN Charter as requirement of all Treaty Parties (Ukraine, 2023).
b. Art. X and preamble of the Treaty (Ukraine and some European CPs, 2024): potential
logic: The Treaty embodies the non-use of force principle of UN Charter (4th preamb.),and violation of such principle (even outside of Antarctica) also threatens peacefuluse in Antarctica. Art.X requires CPs to exert efforts that no one engage in activity in
Antarctica contrary to the principle of peaceful use; and the CP acknowledgement
procedure explicitly refers to Art. X as the legal authority of such efforts.
[c. Suspension of right as a countermeasure under the law of state responsibility.]
Legally convincing? Politically appropriate?

64. Conclusion: dangerous legal precedent contained by politics
For the continuing resilience of the Antarctic Treaty System, the legal andprecedential consideration should effectively inform a policy decision that will
avoid the worst-case scenario.
Ø Legal reasoning: extremely tenuous. What would be the systemic cost of taking suchtenuous legal reasoning?
ü The end of Antarctic special regime strength (Antarctic legal exceptionalism):
Consultative Party acknowledgment procedure is at the core of the Antarctic special
regime: the balance between openness and effectiveness, based on actual scientificinterest in Antarctica.
ü A dangerous precedent: any future candidate with “alleged” or even “accomplice to”
violation of principles of UN Charter (cf., protection of human rights, sovereign equality,etc) might face an objection from CP arguing that it threaten “international harmony inAntarctica” and, based on Art.X, justifying the denial of the CP status.
ü Untenable unfairness between existing CPs and candidate NCP: Worst-case legal
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precedent-setting must be politically contained. How?

4. Conclusion: dangerous legal precedent contained by politics
For the continuing resilience of the Antarctic Treaty System, a political wisdomshould effectively inform a (recorded) legal reasoning to avoid setting adevastating precedent.
ü The legal relevance of AT Art.X in CP acknowledgement procedure should bepolitically contained in the context of urging candidates to approve effective ATCM
Measures. Keep the current interpretation and practice.
ü The legal relevance of AT preamble referring to UN Charter should be politicallycontained as urging the peace and harmony in the region of Antarctica which
hopefully will lead to world peace pursued by the UN, and not vice-versa.
ü The reference to “current political circumstances” should be politically contained in thevery specific and concrete context of one CP’s aggression against another CP, with
the Non Consultative Party seeking CP status actively assisting such aggression.
[Ukraine being a victim of such aggression may lawfully take countermeasures against Belarus as responsible
state, and such measures may include non-performance of treaty obligation towards the responsible state. OtherCPs in the case of breach of jus cogens are required to cooperate with the victim State to end such breach
8through “lawful means”. ILC Articles on Responsibility of States (2001). ]Referenceü ATCM Final Reports: 14th (1987, Rio de Janeiro); 45th (2023, Helsinki); 46th (2024, Kochi: not yet publicly available)
ü ATCM Documents:• UK proposal (1977). ANT/SCM/1.
• US explanatory note (1977). ANT/SCM/4.
• Decision 2 (1997): Consultative Party.
• Decision 7 (2017): Guidelines on the procedure to be followed with respect to Consultative Party status
ü Generally on Consultative Party status, criteria and procedures:• Auburn (1974). Consultative Status under the Antarctic Treaty, ICLQ 28 (3).
• Watts (1992). International Law and Antarctic Treaty System: pp.15-16.
”This provision confers a right to attend Consultative Meetings if the conditions are satisfied….it would be equally
inappropriate for the Consultative Parties to establish an admission procedure which might derogate from a right conferred by
the Treaty…. In effect, therefore, the Consultative Parties do not engage in a process whereby they admit an acceding State to
the status of a Consultative Party, but simply “acknowledge” that it has met the prescribed requirements and, as sconsequence, has the right to appoint representative to participate in Consultative Meeting”.
• Pannatier (1994). Acquisition of Consultative status under the Antarctic Treaty, Polar Record 30 (173).
• Jabour (2015). Why there has been a long peace, The Yearbook of Polar Law 8.
• Molenaar (2021). Participation in the Antarctic Treaty, Polar Journal 11 (2).
ü Generally on Art. X of Antarctic Treaty (not much!)• Brunner (1987 and 1996). Article 10 of the Antarctic Treaty Revisited, International Law for Antarctica (1st and 2nd ed).
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Looking towards 2026 ATCM in Japan
Thank you for listening, andlook forward to welcoming you in Hiroshima ATCM in May 2026

Photo： January 2017
Adelie penguins atJapanese penguin
research field,
Mizukukuriura,
East Antarctica
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