Monday, July 8, 2013

Antarctica: It's Treaty and Legal Framework

By Tia Rose MSc. 

     In 1959, the Antarctic Treaty was signed and in 1961 it was entered into force as a unique treaty devoted strictly to peace and science. In keeping with the peace on the ice military use is restricted, nuclear testing and waste is prohibited, and freedom of scientific research and cooperation is upheld.  Since the original 12 countries signed the Treaty the number of signatures has increased to 46, showing an ever growing interest in Antarctica and the surrounding southern ocean. The treaty, however, is not legally binding, is voluntary, and serves little else than to regulate international relations.  This delicate legal regime faces serious challenges to continued collaboration between invested parties as well as the challenge for any one nation to enforce their laws on another.

     Article 4 of the Antarctic Treaty outlines territory allocation, stating there are no recognized territorial sovereign claims to the area, although 9 countries have made claims to certain areas or their right to do so (1).  Australia claims the Australian Antarctic Territory, the largest land mass area. Attention has been brought up regarding whaling in Antarctic waters.  As the largest stake holder in Antarctica what legal controls then apply internationally and within Australia to whaling generally and to fishing in Antarctic waters?  

      Set up in 1946 by the terms of the International Convention on the Regulations of Whaling (ICRW), ‘whaling is regulated at international law through’ (7) the International Whaling Commission (IWC). Initially established to monitor commercial whaling, over the years, it has evolved to be more conservation minded. In 1986 the IWC adopted a memorandum to ban commercial whaling. However, under the jurisdiction of the IWC, countries such as Japan (a signatory of the IWC) are allowed to apply and have been granted scientific permits to kill whales. With these permits Japan has killed over 9,000 whales in the Northern Pacific and the Southern Hemisphere between the years of 1987-2008, as reported by the IWC (3). (This is what has been reported and may not represent the true take by Japan.) Ample controversy has erupted over Japans continuous harvests of whales from the Australian Whale Sanctuary off the Australian Antarctic Territory in the Southern Hemisphere. By hiding behind the voluntary aspect of the treaty to respect national territory claims, Japan continues killing cetaceans, disputing Australia’s Exclusive Economic Zone (EEZ-Article 57 of UNCLOS) of the Australian Antarctic Territory. Continuous requests by the IWC to restructure their ‘research programme to achieve objectives by non-lethal means’ (5) have failed.

     To further complicate the matter, Norway and Iceland have openly objected to the IWC’s policy of the zero take on commercial whaling and so are not held to it, as participation in the IWC is voluntary. ‘In April 1992, the North Atlantic Marine Mammal Commission (NAMMCO) was established by the Faroe Islands, Greenland, Iceland and Norway’(2), which allows a so called, harvesting of a sustainable quota of  marine mammals. ‘Established in part out of dissatisfaction with the IWC's zero-catch quota’ (2), this international organization ’challenges the legitimacy of the IWC’ (2).  Japan has threatened to leave the IWC, like Greenland, and join NAMMCO, should the memorandum on whale hunting not be lifted.

     Regrettably, it seems Japan is using the IWC and other international treaties to hide their nefarious agenda and further their own commercial domain on the sea. The IWC lacks the legal controls in which to enforce a conservation program and relies on the voluntary compliance of participating countries instead.

     The closest legal control Australia has for the Australian Antarctic Territory is the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act) of the commonwealth. The EPBC Act allows interested third parties to legislate its laws where it sees an infraction, circumventing the problem of involving the government over an international issue. Starting in 2004, Humane Society International, acting as an ‘interested person’, began proceedings against Kyodo Senpaku Kaisha Ltd (the fishing company contracted by the Japanese government) alleging they had killed, harassed, and been in possession of cetaceans in the Australian Whale Sanctuary. Under the EPBC Act these actions are prohibited. Japans response was less than surprising as they refused to acknowledge Australia’s sovereign rights of the Antarctic Territory and its accompanying EEZ, thus refusing to validate the claim against them. The case dragged through the courts every year since. In 2008 when a legal injunction was filed against the respondents to stop whaling in the Australian Whale Sanctuary.  This ‘Litigation is not only the first real test for Australia’s anti-whaling provisions; it is also the first real challenge to Australia’s Antarctic legal regime’ (7).  

Most recently New Zealand joined the fight, as reported by The Times July 8, 2013, New Zealand has 'rejected Japan's claim to be legally whaling in the Antarctic as an attempt to reduce the global whaling treaty to an industry cartel' 

     The Antarctic fisheries and the legal controls of Australia to govern them are a different story. In 1982 the Convention on the Conservation of Antarctica Marine Living Resources (CCAMLR) came into force, to which Australia is a signator. This Convention, in pursuance of the provisions of Article IX of the Antarctic Treaty (9), is to manage the fisheries in the southern ocean.  Major concerns over what effect larger krill harvesting was having on related populations in the ecosystem (which depends on krill) precipitated the establishment of CCAMLR.  The Antarctic Marine Living Resources Conservation Act 1981 (AMLRC) was implemented by Australia under their obligation of the CCAMLR. This Act however is hampered by the fact that fisheries law does not ‘apply to the waters around the Australian Antarctic Territory’ (7).   In order to legally fish Antarctic waters, as an Australian national, you must first comply with the AMLRC and then with CCAMLR regulations. Essentially Australia has no legal control to enforce illegal fishing activities in the southern ocean; such matters are left to CCAMLR.  Australia also has the Australian Antarctic Territory Act 1954 and the Antarctic Treaty Act 1960, which simply reiterates the boundaries of the Antarctic Treaty and states that Australians in Antarctica are held by Australian law. Considering this ‘it has been the Australian government’s practice not to enforce Australian laws in Antarctica against non-nationals’ (7).

     Given the limited legal controls Australia has in the Antarctic, to what extent are international treaties and the Antarctic Treaty regime a suitable vehicle for the conservation and management of natural resources in Antarctica and the Southern Ocean? Known as the Antarctic Treaty System (ATS), several international treaties on the Antarctic zone have been put into place and serve as a guide for international relations on the ice.  The guidelines established within the treaties and conventions deal with appropriate use of land, and outlines, as well as it can, behavior to limit man’s impact on the environment in a negative way.

     The Antarctic Treaty, since coming into force in 1961, has continued to be the main treaty. Establishing the region for peaceful purposes only, where no weapons testing will be allowed and military use is exclusively restricted for scientific endeavors and to continuing the freedom of scientific research, information exchange, and ‘cooperation with the United Nations and other international agencies’ (1).  All parties of the treaty have agreed that there are no recognized or ‘establish[ed] territorial sovereignty claims and no new claims shall be asserted while the treaty is in force’ (1).  The treaty prohibits Antarctica from becoming a nuclear test site or a land fill for nuclear waste. It clearly outlines the specific area under the treaty as ‘all land and ice shelves south of 60 degrees 00 minutes south’ (1).  (It’s important to note that this geographic boundary is observed and used in the subsequent literature pertaining to the Antarctic Treaty System.) It gives free access, of all observed parties, to any area and ‘allows for jurisdiction over observers and scientists by their own states ‘(1). The treaty calls for regular meetings of observed parties, peaceful settlements of disputes between parties, and discourages activities that are contrary to the treaty.  

Following the Antarctic Treaty, the Agreed Measures for the Conservation of Antarctic Fauna and Flora was formed in Brussels 2 June 1964 and entered into force 1 November 1982, and was the first steps in establishing the treaty system. The agreed measures were taken to further protect Antarctica's delicate and unique ecosystem. The agreement prohibits killing, harming, harvesting, or destroying flora and fauna unless done so under the guidelines of the Agreed Measures. Restrictions such as where helicopters or planes may fly, where vehicles can drive, location proximity to discharge of firearms or detonation of explosions so as to not disrupt bird, seal, or other protected wildlife populations have also been put into place. Reiteration here that 'each Participating Government shall take all reasonable steps towards the alleviation of pollution of the waters adjacent to the coast and ice shelves'(12).

     The Convention for the Conservation of Antarctic Seals of 1978 was to ‘promote and achieve the objectives of protection, scientific study and rational use of Antarctic seals, and to maintain a satisfactory balance within the ecological system’ (11). The convention protects all species of seals in Antarctica and ‘although there has been no attempt to exploit Antarctic seals commercially since 1964, the SCAR Group of Specialists on Antarctic Seals continues to monitor the take of seals for scientific purposes’ (11).  It’s interesting to note that the permits to kill or capture seals is not only for scientific research but in Article 4 1a) ‘to provide indispensable food for men or dogs’ (11).  Later in the Agreed Measures for the Conservation of Antarctic Fauna and Flora Annex II Article 4.2 it’s stated ‘dogs shall not be introduced onto land or ice shelves and dogs currently in those areas shall be removed by 1 April 1994’for the protection of seals on the ice. (12)

     The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) came into force in 1982 and has become an increasingly effective part of the Treaty System in monitoring and protecting Antarctic fisheries since its inception. The Convention established a commission that’s provided a number of tools to achieve their goals,’ the Scientific Committee – to provide scientific advice; regular meetings; [&] the Secretariat – to provide administrative support; and an annual budget.’(9A Catch Documentation Scheme (CDS), put into place in 2000 through the CCAMLR, is a binding conservation measure of all members to assess toothfish populations. Illegal, Unregulated, and Unreported (IUU) fishing has raised serious concerns to the long term viability of this species as well as the bird populations that depend on them. ‘This [Scheme] should enable the Commission to identify the origin of toothfish entering the markets of all Parties to the Scheme, and help determine whether toothfish taken in the Convention Area are caught in a manner consistent with CCAMLR's conservation measures.’(9)

     The Convention on the Regulation of Antarctic Mineral Resource Activities of 1988 never entered into force and has been replaced by The Protocol on Environmental Protection to the Antarctic Treaty, more commonly known as the Madrid Protocol, and adopted in 1991. The Protocol was brought about when interest in open mining production in the Antarctic region arose. Against this, Australia refused to sign a convention allowing it, stating ‘it was both desirable and possible to seek stronger protection for Antarctica’ (10) the last great wilderness on earth. Several nations agreed and moved to adopt a convention for the protection of the region. The Madrid Protocol ‘designates Antarctica as a 'natural reserve, devoted to peace and science'; establishes environmental principles for the conduct of all activities; prohibits mining; subjects all activities to prior assessment of their environmental impacts; provides for the establishment of a Committee for Environmental Protection, to advise the Antarctic Treaty Consultative Meetings (ATCM) ; requires the development of contingency plans to respond to environmental emergencies; provides for the elaboration of rules relating to liability for environmental damage.’(10) The prime purpose of which is to ensure that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international conflict.

     Between April 6 & 17 2009, the US hosted the 32nd Antarctic Treaty Consultative meeting in Baltimore, Maryland. Marking the 50th anniversary of the Antarctic Treaty and following on the heels of the International Polar Year ‘nearly 400 diplomats, Antarctic program managers and logistics experts and polar scientists from 47 countries, including 28 Consultative Parties with a scientific presence in the Antarctic’ (14) attended. ‘The Parties agreed by consensus to binding rules related to tourism, including a prohibition on landings by tourists from ships carrying more than 500 passengers, and a requirement that ships land no more than 100 passengers at a time. These rules will become binding once approved by all 28 Consultative Parties. The Parties also agreed to support efforts at the International Maritime Organization to promote safety of Antarctic shipping, including stronger lifeboat protections for tourist vessels. In addition, they agreed to work toward protection of the entire Antarctic ecosystem.’ (14)  Every year the Antarctic Treaty Consulative meeting happens, this year it returned to Brussels, Belgium and concluded on 29 May 2013.  Draft reports from that meeting are still being drawn up and will be available here when ready. The next meeting is scheduled for May 12-21, 2014 in Brasilia, Brazil.

     Defying boundaries, Antarctica has never been singularly controlled or governed by one nation and is the only continent shared peacefully by many. It has never seen war, never been commercially developed, and continues to share a value of scientific research, conservation and peace by all parties. The Antarctic Treaty ‘was the first arms control agreement established during the Cold War’(1), illustrating this uniqueness. This 54 year history was not easily achieved and may prove even harder to maintain.  In 2048 the Madrid Protocol will be up for review on the banning of mining on the ice, possibly opening it up for commercial use for the first time ever. Continued IUU fishing possesses serious threats to not only the fish population but of the many various animals and ecosystems that depend on them.  The disinclination of countries, such as Japan, to respect Antarctic Territories of other nations threatens to tear the cohesive fabric of ATS apart. The importance of continued dedication of peace and the pursuit of credible scientific research in Antarctica is now more important than ever. 

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