The statute incorporated in this regard the terms of the Agreement on the Trust Territory and the Pacific Islands, Apr. 18, 1969, United States-Japan, 20 U.S.T. 2654, TIAS No. 6724 ("Agreement on Trust Territory"). Black's Law Dictionary 660 (4th ed. 1957), defines ex gratia as "[o]ut of grace.... A term applied to anything accorded as a favor; as distinguished from that which may be demanded ex debito, as a matter of right." See M. Whiteman, Damages in International Law 745-746 (1937).

2 "By the terms of the bill, the Commission is authorized to receive, examine, adjudicate, and render final decisions respecting Micronesian claims, in accordance with the laws of the Trust Territory of the Pacific Islands and international law. Under customary international law, civilians in a war zone . . . are not entitled as a matter of law to compensation for death or physical or property damage which results from the lawful conduct of hostilities. That rule is not intended to come into play in respect to these claims, which will be governed by the agreement with Japan and by this resolution. The purpose of compensating Micronesians for wartime claims is to meet their claims whether they arose as a result of the lawful conduct of hostilities or otherwise. Hence, payments are an ex gratia contributions to the Micronesians. No Micronesian claimant could be debarred on the ground that his or her claim fails to meet the test of customary international law. A reference in the bill to international law is useful in furnishing guidance to the Commission on the measure of damages to be applied in meeting claims. . . ." H.R. Rep. No. 92-226, 92d Cong., 1st Sess. 4 (May 25, 1971) (emphasis added).

350 U.S.C. App. § 2019c (a) (Supp. II 1972) provides that "[t]he Commission shall have authority to receive, examine, adjudicate, and render final decisions, in accordance with the laws of the Trust Territory of the Pacific Islands and international law" all claims under the Act (emphasis added). .

"The principle that, for injuries to or destruction of private property in necessary military operations... the government is not responsible, is thus considered established. Compensation has been made in several such cases, it is true; but it has generally been . . . 'a matter of bounty rather than of strict legal right."" Juragua Iron Co. v. United States, 212 U.S. 297, 303, . . . (1909). quoting United States v. Pacific R.R. Co., 120 U.S. 227, 239, (1887). See Assistant Legal Adviser for International Claims, Letter of Sept. 17, 1957, quoted in 8 Whiteman, Digest of International Law 825 (1967) ("it is a generally accepted principle of international law that a state is not liable for losses and damages caused by military operations against opposing forces (such as shelling and bombing), unless they resulted from wanton acts or operations which were unnecessary from a military standpoint"). Cf. United States v. Caltex, Inc., 344 U.S. 149, . . . (1952). See generally 5 G. Hackworth, Digest of International Law § 536 at 693–706 (1943).

U.S. App. D.C. 76–1201, pp. 3-12.

.

87

Other Subjects of International Law

Antarctica

At the Ninth Consultative Meeting under the Antarctic Treaty (TIAS 4780; 12 UST 794; entered into force for the United States June 23, 1961), held at London from September 19 to October 7, 1977. the principal items on the agenda were the questions of Antarctic marine living and mineral resources. The treaty contains no specific reference to resource activities, and the treaty parties attending consultative meetings have shown an increasing concern with these issues.

Ambassador Robert C. Brewster, in his opening statement on September 19, 1977, stressed the importance of Antarctica to the Earth's oceans and atmosphere and the need for preservation of its environment, and summarized the preliminary views of the United States on the resource issues as follows:

The possibility of activities directed toward Antarctic living and nonliving resources are the key issues. The challenge such activities could pose to our common commitment to the preservation of the Antarctic environment and to the treaty itself, is, in the view of my delegation, the prime issue facing this consultative meeting.

In the case of living resources found within the Treaty area, the question is not so much whether harvesting will occur, but how it can be ensured that utilization of living resources will take place in accord with our commitment to the Antarctic environment. My delegation believes that development of a conservation arrangement covering Antarctic marine living resources is required, and urgently. The discussions at the July preparatory meeting suggest that we are substantially agreed on this. My delegation believes that a conservation regime should incorporate the following elements:

-First, it should be directed to fishery resources and not directly apply to species already regulated pursuant to existing international agreements (whales and seals), provided that it take account of the relationship of target species to such other species and to the Antarctic ecosystem as a whole..

-Second, it should provide for effective conservation of the species covered throughout their entire range.

-Third, it should provide for and encourage participation by all interested states.

-Fourth, it should provide for a separate institutional mechanism to perform two basic functions: 1) the development and implementation of conservation measures themselves; 2) the collection and analysis of the data necessary for the development of effective conservation enforcement.

-Fifth, it should provide for effective enforcement arrangements to ensure compliance with conservation measures.

In our view, these principles provide a sound basis for an initiative by the consultative parties on living resources in Antarctic waters, an initiative which would not only reflect the vitality of the Antarctic treaty system, but also accommodate the legitimate inerests of the international community at large.

The commitment we share to the preservation of the Antarctic environment is a touchstone of our approach to the equally important issue of possible mineral resource development in the Treaty area. Unlike living resources, Antarctic mineral resources have not yet been the object of commercial exploration and exploitation activities. Nonetheless, we believe it essential that there be an agreed arrangement to determine whether mineral resource activities would be compatible with the objective of preserving the Antarctic environment and to ensure the effective management of such activities, if undertaken. An important contribution to understanding the mineral resource issues can be made by the work of the technical experts included on our delegations. We hope that the nations participating in this meeting will bring their extensive knowledge and experience to bear in elaborating a workable and open arrangement for dealing with Antarctic mineral resources which can be in place prior to whatever mineral resource activities may occur.

Opening statement by Robert C. Brewster, U.S. Representative, Ninth Antarctic Treaty Consultative Meeting, Sept. 19, 1977.

The operative pars. of the recommendation on marine living and mineral resources adopted by the Ninth Consultative Meeting and referred to the Consultative Governments for their approval follow:

Recommendation IX-1

Antarctic Mineral Resources

Recommend to their governments that:

1. They reaffirm the basic principles set forth in Recommendation VIII-14 of the Eighth Antarctic Treaty Consultative Meeting;

2. They take note with appreciation of the Report of the Group of Experts on Mineral Exploration and Exploitation annexed to the Report of the Ninth Consultative Meeting and make the best possible use of its conclusions and guidelines;

3. They continue to study the environmental implications of mineral resource activities in the Antarctic Treaty Area and hold at a time and place to be arranged through diplomatic channels a meeting of ecological, technological and other related experts, in accordance with Recommendation IV-24, with a view to developing scientific programs aimed at: (i) improving predictions of the impact of possible technologies for mineral exploration and exploitation in the Antarctic, as outlined in Seciton IIB of the Report of the Group of Experts, and in Section 5 of the SCAR EAMREA Group Report; (ii) developing measures for the prevention of damage to the environment or for its rehabilitation, in accordance with Section IIC of the Report of the Group of Experts;

4. They endorse the following principles elaborated at the Special Preparatory Meeting held in Paris from June 28 to July 10, 1976:

(i) The Consultative Parties will continue to play an active and responsible role in dealing with the question of the mineral resources of Antarctica; (ii) the Antarctic Treaty must be maintained in its entirety.

Recommendation IX-2

Antarctic Marine Living Resources

Recommend to their governments that:

I

Scientific Research

1. To the greatest extent feasible, they cooperate broadly and comprehensively in scientific investigations, and in the exchange of information thereon, relating to the Antarctic marine environment and that they intensify as far as possible scientific research related to Antarctic marine living resources;

2. In planning their marine activities in the Antarctic, they have regard to the advantages that will accrue from coordination by them of their scientific investigations contributing to the BIOMASS program;

3. They give sympathetic consideration to the provision of practical measures (such as ships, ship time, personnel and finance) in support of the implementation of the BIOMASS program or other similar programs;

4. They examine the possibility of integrating, insofar as is practicable, research vessel programs with the activities of other vessels, and make available on vessels operating in the Antarctic, other than research vessels contributing directly to the BIOMASS program, time and facilities for routine observations aimed at extending the data base for the program.

II

Interim Guidelines for the Conservation of Antarctic Marine Living Resources 1. They observe the following interim guidelines pending entry into force of the deitive regime for Antarctic Marine Living Resources:

(a) they cooperate as broadly and comprehensively as possible in the mutual exchange of statistics relating to catch of Antarctic Marine Living Resources;

(b) they should show the greatest possible concern and care in the harvesting of Antarctic Marine Living Resources so that it does not result in the depletion of stocks of Antarctic marine species or jeopardizing the Antarctic marine ecosystem as a whole;

(c) they urge those governments which are not parties to the Antarctic Treaty and which engage in activities involving the use of the marine living resources of Antarctica to take account of these guidelines;

2. They review these interim guidelines as and when necessary and in any event following the conclusion of the definitive regime with a view to their future elaboration in the light of the provisions of the definitive regime.

III

Establishment of a Definitive Conservation Regime

1. A definitive regime for the Conservation of Antarctic Marine Living Resources should be concluded before the end of 1978.

2. A special Consultative Meeting [should] be convened in order to elaborate a draft definitive regime, and in particular:

(a) to determine the form of the definitive regime, including the question as to whether an international instrument such as a convention is necessary; (b) to prepare, if necessary, draft rules of procedure for a subsequent decisive meeting for the establishment of the definitive regime;

(c) to decide on participation in such a meeting by states other than Consultative Parties which are actively engaged in research and exploitation of Antarctic Marine Living Resources and the participation, on an observer basis, of appropriate international organizations;

(d) to finalize the date and place of the decisive meeting;

(e) to take any other steps in order to facilitate the work of the decisive meeting referred to above.

3. The Special Consultative Meeting shall base its work on this recommendation and take account of the discussions at the Ninth Consultative Meeting, its report and the documents presented to it, and, in the elaboration of a draft definitive regime, shall take into account, inter alia, the following elements:

(a) the regime should explicitly recognize the prime responsibilities of the Consultative Parties in relation to the protection and conservation of the environment in the Antarctic Treaty area and the importance of the measures recommended by the Consultative Parties to this end;

(b) the provisions of Article 4 of the Antarctic Treaty shall not be affected by the regime. It should ensure that the principles embodied in Article 4 are safeguarded in application to the marine areas south of 60° South latitude; (c) the regime should provide for the effective conservation of the marine living resources of the Antarctic ecosystem as a whole;

(d) the regime should cover the area of specific competence of the Antarctic Treaty ;

(e) the regime should, however, extend north of 60° South latitude where that is necessary for the effective conservation of species of the Antarctic ecosystem, without prejudice to coastal state jurisdiction in that area;

(f) the regime should not apply to species already regulated pursuant to existing international agreements but should take into account the relationship of such species to those species covered by the regime.

The Antarctic Treaty was signed on Dec. 1, 1959. As of Dec. 1977, states which were parties included Argentina, Australia, Belgium, Brazil, Chile, Czechoslovakia, Denmark, France, German Democratic Republic, Japan, Netherlands, New Zealand, Norway, Poland, Romania, South Africa, Union of Soviet Socialist Republics, United Kingdom, and United States.

For the text of art. 4 of the Antarctic Treaty, see ante, Ch. 6, § 2, pp. 455–456. For further information concerning Antarctica, see the 1975 Digest, Ch. 2, § 7, pp. 104-111.