New Zealand Journal of Environmental Law
Last Updated: 21 January 2023
The Urgent Need for a New
Comprehensive Regulatory Regime
Steven (BoHao) Li*
Antarctica is the Earth’s southernmost continent. The perceived wilderness nature of Antarctica, while increasingly drawing visitors interested in its outstanding natural values may, paradoxically, lead to the continent’s destruction. The growth of tourism interest has focused academics, non-governmental organisations and Antarctic Treaty Parties’ attention on the effectiveness and legitimacy of the current Antarctic Treaty System on the management of tourist visitation in Antarctica. This article will examine the effectiveness of the current legal framework regulating Antarctic tourist activities. To the extent that the existing legal framework may be ineffective, the article will also explore potential avenues of addressing these inefficiencies.
Antarctica is among the world’s last tourism frontiers. The continent’s geographic isolation has helped to preserve a relatively pristine environment.1 However, this pristine environment is increasingly under threat from a rapidly growing Antarctic tourism industry.
As selfappointed stewards of Antarctica, the Antarctic Treaty Parties2 have claimed for themselves the responsibility of regulating all human activities in
*LLB (Hons) Victoria University of Wellington. The author is currently working as a law graduate at Chapman Tripp, Wellington office: firstname.lastname@example.org.
Antarctica, including tourism, through the Antarctic Treaty System.3 In 1991, to protect the Antarctic environment from human impact, the Parties signed the Protocol on Environmental Protection to the Antarctic Treaty 1991.4 At the 1992 Antarctic Treaty Consultative Meeting (ATCM) the United States and New Zealand governments hailed the Protocol as comprehensive and effective tourism regulation.5
Twenty years after signing the Protocol, this article will examine if the Protocol continues to meet its original policy goal. Under this broad question, the article will identify the legal, political and economic factors that are currently influencing the effectiveness of the Protocol. The ultimate question is what can the Treaty Parties do to improve the regime’s effectiveness?
2. HISTORY OF ANTARCTIC TOURISM
2.1 Number and Trends
Commercial tourism began in the 1950s when farepaying passengers travelled aboard Chilean and Argentinian naval vessels to Antarctica.6 The last two decades have seen a rapid increase in tourist numbers and a diversifying supply of transport and activities.7 Tourism season coincides with scientific exploration and the peak breeding season for most Antarctic species.8 From a base of 4,698 tourists in the 1990/1991 season, tourist numbers have risen to 26,519 over the 2011/2012 season.9 Tourist numbers for the 2012/2013 season are projected to be around 35,000.10
2.2. Forms of Tourism
Today, shipborne tourism landing in Antarctica remains the foremost type of tourism activity.11 Shipborne tourism usually involves passengers embarking at a port in Argentina or Chile.12 Once in Antarctic waters, landings are conducted each day.13 Although a landing period is usually short, they are concentrated into a small number of landing sites.14 These sites are vital areas for animal breeding and plant life.15 Landings normally encompass a wide range of activ ities, including seeing wildlife ( penguins and seabirds) colonies, and visiting historical sites and active scientific stations.16
2.3 Past Incidents
Tourism in Antarctica has not been without incident. The largest single oil spill event in Antarctica occurred when 600,000 litres of diesel oil was spilt during the grounding and sinking of the Bahia Paraiso.17 The spill killed seals, penguins, krill and other marine life near the United States Palmer Station. In the process several of the United States’ scientific marine projects were also ruined.18 This incident highlighted that travelling in Antarctic waters is inherently hazardous.
2.4 Environmental Impacts
The International Association of Antarctica Tour Operators (IAATO)19
consistently claims that in the 40 years of organised tourism to Antarctica,
May 2012) <www.iaato.org>; World Tourism Organisation Tourism 2020 Vision: Global Forecasts and Profiles of Market Segments (World Tourism Organisation, Madrid, 2001).
no noticeable environmental impact has been observed.20 However, as early as 1982, scientists expressed their concern for the environment based on the increase in tourist numbers.21 For example, according to the United Nations Environment Programme Report, the 50 per cent reduction in the Adélie penguin’s breeding population over a sixyear period was attributable to stress from repeated tourist visits.22 Furthermore, substantial alterations in the soil surface were evident even at the less frequently visited tourist sites. This alteration is likely to reduce water availability in soil, which is known to be an important control on Antarctic invertebrate distribution.23
In sum, unregulated tourism in Antarctica would cause significant consequences to an environment which is already extremely vulnerable to the impacts associated with human activities.24
3. LEGAL FRAMEWORK
3.1 History of Antarctic Legal Framework
Antarctica is the only landmass on Earth without a sovereign government.25 In the first half of the 20th century, disputes over sovereignty dominated the Antarctic scene.26 This raging conflict became gradually détente in the 1940s and most notably during the International Geophysical Year (1957– 1958). This success promoted the idea of continuous international scientific research cooperation in the Antarctic, as a mode of shelving the sovereignty controversies27 and to manage the continent collectively.28 However, art IV of
the Treaty does not solve the sovereignty dispute.29 The sovereignty problem will resurface whenever the management of economic activity is concerned.30 The Antarctic Treaty 195931 laid down two basic principles: freedom of scientific research32 and safeguarding peace.33
There are currently 50 Treaty members. Twentyeight Treaty members have been recognised as Antarctic Treaty Consultative Parties (ATCPs). Only the Consultative Parties can participate in the decisionmaking process at the annual Antarctic Treaty Consultative Meeting (ATCM). Recommendations adopted at the ATCM, which are hortatory texts, are not legally binding. In contrast, Measures are legally binding once they have been approved by all Consultative Parties.34
Since the Treaty was promulgated, several other conventions and recommendations have been adopted. Jointly, this set of legal instruments is referred to as the Antarctic Treaty System (ATS).35 The Madrid Protocol is the most relevant ATS instrument that regulates tourism.
3.2 Principle of Environmental Protection
The third principal value of environmental protection emerged gradually up to its codification in the Protocol.36 The importance of environmental protection in connection with the Antarctic can be divided into three time periods: pre1991; 1991 to 1998; and post1998.
Tourism existed prior to the Treaty,37 and yet it did not form part of the subject matter of the Treaty. Moreover, this period of regulatory laissez faire was to last nearly a decade from the beginning of commercial tourism until the ATCPs
formally turned their attention to tourism in 1966.38 Even then the responsibility of tourism regulation was left to individual states. The principal gateway states’ (Chile and Argentina) supportive attitude allowed commercial tourism to establish a niche for itself in Antarctica.39 In comparison, Australia and New Zealand have traditionally adopted a restrictive attitude towards commercial Antarctic tourism.40 Therefore the Treaty Parties’ diverging attitudes towards the merits of Antarctic tourism resulted in different domestic tourism regulation standards.
Tourism was not subject to direct regime regulation because the Parties’ primary interests were that of regime effectiveness. The gain from extended regulatory involvement was too small compared to the great risk of internal division.41
Finally, all five tourism recommendations adopted at the ATCMs42 were concerned more with safeguarding the Treaty’s science values rather than on an intrinsic concern for the environment.43 In sum, before 1991, tourism policies were formulated on an ad hoc basis and no tourism regulation existed at the regime level during the first 30 years of the Treaty’s operation.44
3.2.2 1991 to 1998
During the late 1980s, the shift of emphasis from scientific values to environmental protection was largely spurred by criticism from third parties. For example, before the United Nations, Malaysia45 highlighted that the ATS’s weak tourism regulations provided inadequate environmental protection for Antarctica.46 Under such pressure, Treaty Parties attempted to rebuild
confidence in the ATS by providing a regime that guaranteed environmental protection.
In the gathering together of issues to ensure comprehensive environmental protection, for the first time, Treaty Parties led by Chile47 proposed that the ATS should embrace responsibility for tourism regulation at the regime level. First, a comprehensive legal framework for regulating tourism would allow states at national levels to enact homogeneous regulations thereby avoiding serious inconsistencies. Second, tourism regulations would have indisputable legally binding force, much stronger than the current hortatory recommendations.48 Both propositions aimed to address the previous shortcomings in the ATS. However, Chile’s proposition failed to gain support from other ATCPs, particularly the United States and New Zealand.49 Both governments argued that the Protocol, in particular the Environmental Impact Assessment (EIA) Annex, provides a comprehensive and effective legal framework for regulating tourism impacts in Antarctica.50 The idea of a separate tourism Annex to the Protocol has since been abandoned by Chile.51
The Protocol finally came into force in 1998. Many ATCPs did not ensure an interim application of the Protocol to and by their tour operators during the sixyear gap between signing and adoption of the Protocol. This sixyear gap coincided with the greatest phase of expansion in the Antarctic tourist industry.52 Even to the degree that EIA has been implemented by tour operators, the industry often adopted a minimal interpretation of EIA obligations.53
The principal tool employed to meet the environmental protection principle of the Protocol54 is the prior EIA process under art 8 and the EIA Annex to the Protocol. Hemmings described the EIA as the sole “gatekeeper” for overseeing access to Antarctica.55 An Initial Environmental Examination (IEE) is required
for all activities covered by the Protocol, including tourism.56 An IEE must be prepared unless it is determined that activities will have “less than a minor or transitory impact” or a Comprehensive Environmental Evaluation (CEE) has been prepared. A CEE must be circulated to all Treaty Parties and the Committee for Environmental Protection (CEP)57 for comment at least 120 days prior to the next ATCM.58 To date, no CEE has ever been prepared for a tourism activity.59 Furthermore, a recent survey of tourism EIAs suggests that “key aspects of EIA are either poorly developed or absent”.60
Since 1991, the Protocol is paralleled by IAATO’s nonlegally binding voluntary industry selfregulations. The IAATO has been proactively abiding by the hortatory ATCM recommendations.61 The IAATO requires its members to comply with the EIA even if their state does not impose EIA obligations on them.62 Furthermore, in some cases, IAATO’s regulations have been developed ahead of any similar ATCM recommendations.63
PostMadrid, while the ATCPs have agreed that “Antarctic tourism needs further regulation”,64 the provisions of the Protocol remain the only legally binding mechanism that manage tourismrelated activities. All other “regulatory mechanisms” are of a hortatory nature.65 Furthermore, there is no certainty that a separate tourism regime will ever emerge.66 Thus, with the rapid commercial tourism growth in the last two decades, this article will examine whether the
EIA has achieved its original environmental protection aim. If it has not, this article concludes that the ATS has returned to its prior Protocol position where no “effective” Antarctic tourism regulations existed.
4. PROTOCOL EFFECTIVENESS AND ANTARCTIC TOURISM
The answer to the question of whether the Protocol been effective with regards to tourism depends on what it initially tried to achieve. The Protocol aimed to be an effective mechanism that detects, minimises and manages the environmental impacts that are associated with tourism. In the last two decades, many inconsistencies, limitations and loopholes have been identified in the EIA.
The first barrier to the effective regulation of Antarctic tourism is the ambiguous language employed in some of the terms used in the Protocol. For example, the repeated use of the phrases “to the maximum extent practicable” and “exert appropriate efforts” leaves parties to interpret measures as they see fit.67
The key threshold term “minor or transitory impacts” in art 8 is left undefined. So far no agreement on the definition of this term has been reached. Furthermore, the preliminary stage for assessing the environmental impact of the proposed activity is determined in accordance with “appropriate national procedures”.68 This leaves abundant scope for varying translation and interpretation among Treaty Parties.69 Two years after the Protocol entered into force, Kriwoken and Rootes highlighted that there are considerable differences in the requirements and levels of EIA applied among the Treaty Parties.70 More recently, the authors’ observations have been confirmed by others.71 As a result, there is currently no coherent set of rules at the domestic level governing tourists given the vagueness of the Protocol language.
Academic writers have strongly critiqued that the EIA process does not count for all aspects of tourist activities.72 For example, Hemmings and Roura highlighted that the EIA structure had primarily evolved to deal with national scientific programmes.73 EIA obligations were largely predicated on isolated, fixed-point, long-term, science and support activities at a few sites, where there was a reasonable likelihood of having or acquiring data to determine the initial reference state and thereafter being able to monitor the actual effects of the activity. In contrast, tourism operators generally carry out quite different sorts of activities at multiple sites where often no systematic data are available and where the prospects for monitoring are negligible. Therefore, the EIA processes enshrined in the Protocol were drawn from a more narrow range of activities than they are now expected to apply to.
More recently, academics have argued that environmental impacts that are less than observable, such as cumulative impacts,74 damage to the marine environment75and greenhouse emissions as a result of tourist transport,76 have been omitted from the EIA. As a result, not all environmental impacts associated with tourism activities are currently being taken into account under the EIA.
The ultimate limitation on the Protocol’s effectiveness is the unresolved Antarctica sovereignty issue.77 For example, South American claimant countries view the claimed Antarctic area as a direct extension of their national boundaries. This will strongly influence the negotiators who hold such views.78 As a result, consensus on tourism issues is likely to be hindered by deeprooted
territorial notions.79 Furthermore, Annex IV does not apply to ships flying flags of a thirdparty state, a category which approximately 50 per cent of the tourist ships operating in the ATS area fall under.80 Many of the thirdparty states have either no financial means or political incentive to regulate tour ships carrying their flags.81 This creates a potential for freeriding, resulting in the loss of effective control by the ATS.82
In 2004 New Zealand identified a major loophole in the EIA.83 The EIA does not specify that tourist ships need to be icestrengthened.84 Vessels that are not icestrengthened are considered to be unsuitable for navigation in polar waters.85 This type of vessel has now established itself in Antarctica and IAATO has projected its numbers will increase for the 2012/2013 season.86
The most stinging criticism on the ineffectiveness of the EIA came from the New Zealand Government, which originally had vigorously defended the EIA as a “comprehensive and effective regulation” mechanism. In 2004 New Zealand acknowledged that its confidence of 20 years earlier was misplaced.87 Furthermore, New Zealand urged other ATCPs to construct “a
more comprehensive response to, and establish the necessary regulatory responsibility for, the management of tourism”.88
In sum, while the ATS has created some form of tourism regulation, it is currently failing to achieve its original aim. From the Treaty Parties’ perspective, it is in their long-term interest to ensure that the EIA is a sufficient environmental protection “gatekeeper” before the issue of the effectiveness of the ATS, which in large part underpins its legitimacy, is once again subjected to international scrutiny before the United Nations.
Striking the right balance between the competing issues of external acceptance by tourism industry group and nonTreaty parties, preserving the sensitive modus vivendi on the sovereignty issue, economic use (tourism) and environmental protection,89 will be the precondition to an effective and legitimate tourism regulation regime.90
5. POSSIBLE REGULATION MEASURES
The Treaty Parties could adopt either the longterm policy aims of prohibition or tougher restrictions on tourism. This article favours any policy directions that preserve art IV of the Treaty. This is because containment of the territorial dispute, which is so central to the political stability of Antarctica, is essential to the successful and unified management of Antarctic affairs.91 The prospect of steadily increasing tension amongst the original Treaty Parties, in regard to the deepseated sovereignty disputes, should never be underestimated, particularly in light of the tensions which existed in the years immediately before the Treaty was concluded.92
A tourism ban is unlikely to be entertained by the original Treaty Parties. For example, Argentina, Australia and Chile are currently using tourism to support their territorial claims.93 Furthermore, tourism is unambiguously permitted under the ATS.94
94 Kees Bastmeijer, Machiel Lamers and Juan Hacha “Permanent LandBased Facilities for Tourism in Antarctica: The Need for Regulation” (2008) 17 RECIEL 84.
With tourism and science operations largely operating in the same area, this situation has led to conflict in terms of infrastructure use, site and stations visits, and scientific value.95 The recognition of “priority” for scientific research96 and environmental protection97 implies that economic interest (tourism) is inferior to those expressed interests. Therefore, environmental and scientific values should be viewed as fundamental conditions for any type of development in Antarctica.98 An Antarcticwide restriction on tourism, based on the twin primacy of science and environment, could be explored by the ATCPs in future. There is currently insufficient scientific evidence to either prove or disprove adverse environmental impacts caused by Antarctic tourism.99 Furthermore, cumulative impacts of tourism are not well understood.100 As a consequence of these uncertainties and gaps in knowledge, academics have argued that Treaty Parties should adopt a precautionary approach to tourism.101 Arguably, art 3(2)
(c) of the Protocol already accommodates the precautionary principle in the EIA:
... (emphasis added)
Furthermore, the precautionary principle has already been codified in other ATS instruments.102 Historically, due to political opportunism, most Consultative Parties have staunchly rejected a precautionary approach to tourism.103
This article strongly recommends that Treaty Parties adopt a new “comprehensive and effective” tourism regulation scheme within the existing
ATS framework.104 The 1992 tourism Annex proposed by Chile should be revisited here. To avoid continuing the slow decisionmaking process due to political differences amongst the original Treaty Parties, the current consensus voting rule at the ATCM should be lowered to a twothirds or majority voting rule.105 Furthermore, nonconsultative parties should be given the right to vote at the annual ATCM. The CEP should be transformed into a Treaty institution. It should have the powers to make legally binding tourism regulations106 after consultation with nongovernmental organisations. Furthermore, to overcome the current conflicting domestic EIA standards, the CEP should oversee all EIA applications.
In the late 1980s unregulated Antarctic tourism drew international criticism of the ATS’s inability to provide for effective environmental protection of Antarctica’s pristine and fragile environment. This criticism united the Treaty Parties’ desire to regulate tourism. Twenty years later, the New Zealand Government, an original supporter of the Madrid Protocol, has admitted that the Protocol has failed in its attempt to be an effective tourism regulatory regime. Therefore, a new coordinated ATS response at the regime level is urgently needed. Unfortunately, there currently appears to be no unified political will to do so.107