New Zealand Yearbook of International Law
The 26th Antarctic Treaty Consultative Meeting (ATCM XXVI) was held in Madrid, Spain (9 – 21 June, 2003). The ATCM was preceded by the 6th meeting of the Committee for Environmental Protection (CEP VI). Notably, the meetings were held in the 12th anniversary year of the adoption of the Protocol on Environmental Protection to the Antarctic Treaty (the Protocol), which was also agreed in Madrid on 4 October 1991.
All 27 Antarctic Treaty Consultative Parties and 11 non-Consultative Parties attended ATCM XXVI. Malaysia was also invited to observe the meeting. All 30 Members (ie the 27 Consultative Parties plus Greece, Romania and Ukraine) attended CEP VI.1 Three official Observers also attended both meetings: the Council of Managers of National Antarctic Programmes (COMNAP), Scientific Committee on Antarctic Research (SCAR) and the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). Also in attendance were the invited experts including those from the Antarctic and Southern Ocean Coalition (ASOC), the International Association of Antarctica Tour Operators (IAATO), the International Hydrographic Organization (IHO), the International Union for the Conservation of Nature (IUCN) and the United Nations Environment Programme (UNEP).
This paper begins by reporting on the 2003 CEP meeting, highlighting the important issues of discussion. It then follows on to cover the significant issues covered by the ATCM Working Groups and outcomes of the 2003 ATCM.
Dr Tony Press (Director of the Australian Antarctic Division) chaired the CEP for the first time, following his election at CEP V. The Committee had a broad and busy agenda which included: three Comprehensive Environmental Evaluations (CEEs), the issue of bioprospecting in Antarctica, the ongoing review of Annex II (Conservation of Antarctic Flora and Fauna) to the Protocol, state of the Antarctic environment reporting, and several new and revised draft management plans for protected areas.
The three CEEs circulated under the provisions of Annex I (Environmental Impact Assessment) to the Protocol, covered the penetration of sub-glacial Lake Vostok (submitted by Russia), the international geological drilling project ANDRILL (submitted by New Zealand), and the construction of a new research facility (submitted by the Czech Republic).
In advising the ATCM on these environmental impact assessments the Committee noted several concerns over the Lake Vostok CEE, and made a series of recommendations for further refinement of the document. The Committee made relatively minor observations in respect of the ANDRILL CEE and noted that it had provided an appropriate assessment of the impacts of the proposed project. The Committee felt unable to address the CEE submitted by the Czech Republic, as it had not been circulated in accordance with the procedures set out in Annex I to the Protocol. The Czech Republic agreed to re-table the CEE at CEP VII in 2004.
The CEP also considered the environmental consequences of biological prospecting in Antarctica. Discussions were based on several Working Papers including a paper submitted by New Zealand reporting the outcomes of a Workshop on Antarctic Bioprospecting organised by the University of Canterbury. Whilst agreeing to keep a watching brief on the issue, the CEP concluded that the critical issues relating to bioprospecting in Antarctica were largely of a political or legal nature, and agreed to refer the issues raised to the ATCM.
The Committee gave further consideration to amending Annex II to the Protocol (on the Conservation of Antarctic Fauna and Flora) under the amendment provisions of Article 9 of the Annex. This programme of work commenced at CEP V (Poland, September 2002) stimulated by the need to update the specially protected species provisions of the Annex. CEP V established an intersessional contact group to provide recommendations on how the Annex may need updating. CEP VI was able to agree to several of the amendments suggested by the contact group and requested that the group continue its work with the aim of completing the amendments at CEP VII.
CEP VI also addressed the issue of developing a state of the environment reporting system based on a Working Paper submitted jointly by Australia and New Zealand. The Committee agreed to establish an intersessional contact group, to be convened by Australia and New Zealand, with the aim of further developing the initiative by CEP VII.
The Committee recommended that the ATCM adopt 11 new or revised Antarctic Specially Protected Area (ASPA) management plans (see Measure 2 (2003) below), including ASPAs 105, 118, 154 and 156 prepared or updated by New Zealand. Six plans, including two new draft Antarctic Specially Managed Area (ASMA) plans, were referred to intersessional review by means of four separate contact groups to be led by Australia, France, New Zealand (for the ASMA covering the McMurdo Dry Valleys) and the US. One plan, submitted by India, was deferred for further consideration at CEP VII.
The New Zealand paper on Systematic Environmental Protection in Antarctica (prepared and presented by the Department of Conservation) was very well received by the Committee. Several members praised the trial environmental domains analysis being prepared by New Zealand and saw significant virtue in its further development. The CEP’s Final Report noted the potential benefits of the system beyond application to protected areas and specially protected species.
The two Vice Chair positions were due for re-election at CEP VI. Tito Acero (Environmental Manager, Argentine Antarctic Institute) was re-elected for a second two-year term. The Committee elected Anna Carin Thomer (Swedish Environment Ministry) as second Vice Chair.
The 2003 Antarctic Treaty Consultative Meeting was a busy one, which was divided into several working groups:
• Working Group on liability (Chaired by Ambassador Don Mackay, New Zealand).
• Working Group on the Antarctic Treaty Secretariat (Chaired by Professor Francesco Francioni, Italy).
• Working Group on Legal and Institutional matters — including elements of the Treaty Secretariat (Chaired by Mr Jan Huber, the Netherlands).
• Working Group on Operational matters (Chaired by Ambassador Jose Manuel Ovalle, Chile).
• Working Group on Tourism (Chaired by M. Michelle Brumeaux, France).
The key issue on the agenda for the ATCM was agreement on the modalities of the Antarctic Treaty Secretariat, following the agreement reached at ATCM XXV (Russia, July 2001) for the Secretariat to be located in Buenos Aires, Argentina.
ATCM XXVI adopted Measure 1 (2003) by means of which the Antarctic Treaty Secretariat is formally established. This Measure also sets out the various functions of the Secretariat. However, Measure 1 (2003) requires approval by all Consultative Parties in accordance with Article IX of the Antarctic Treaty before it enters into force. As this may take some time (previous Measures have taken up to 10 or more years to enter into force) ATCM XXVI also adopted Decision 2 (2003), which takes effect immediately, and which provisionally applies elements of Measure 1 (2003) until such time as that Measure enters into force. In this way the Secretariat can be set up and begin its work in the interim period.
Decision 2 (2003) also provides for the appointment of the first Executive Secretary subject to the recruitment and selection procedures, which were also agreed by the Meeting. The appointment of the first Executive Secretary will take place at ATCM XXVII (2004) in Cape Town, South Africa. Decision 2 (2003) also provides for voluntary financial contributions to be made to the Treaty Secretariat (again until Measure 1 (2003) enters into force) and requires these to be paid by 1 April 2004 into an account to be overseen by the CCAMLR Secretariat. Once the Antarctic Treaty Secretariat has established its own account (following the appointment of the first Executive Secretary) CCAMLR will handover the voluntarily contributed funds.
Finally Decision 2 (2003) accepts the Argentine government’s offer to provisionally apply the Headquarters Agreement of the Secretariat until such time as Measure 1 (2003) enters into force. The Headquarters Agreement, which was also concluded during the Madrid ATCM, sets out the financial and legal understandings by which the Secretariat can be located in Buenos Aires. And it is to Argentina’s great credit that they managed to obtain a signed letter of commitment from their government (provisionally accepting the terms of the Headquarters Agreement) during the Madrid ATCM.
The financial contributions to the Secretariat’s budget were agreed by means of Decision 1 (2003). This states that all Consultative Parties shall contribute equally to one half of the Secretariat’s budget. The other half of the budget is made up from variable contributions based on Consultative Parties elected ability to pay. Parties select from one of five categories (A to E) with A being the highest contribution. By way of example, on the basis of an initial budget for the Secretariat of just over US$1 million, all 27 Consultative Parties will pay a fixed sum of approximately US$18,500. Category A Parties will then pay an additional US$28,800, whilst Category E Parties will only pay an additional US$8,000.
At ATCM XXVI Parties allocated themselves to the various categories as follows:
Parties can elect to move to a higher category at any time. But Parties can only elect to move to a lower category after a minimum period of three years and only after prior notification to the ATCM.
Finally, by means of Decision 3 (2003) and Decision 4 (2003) ATCM XXVI was able to agree on the Staff Regulations (duties, privileges, salaries, leave etc) and the Financial Regulations for the Secretariat respectively. Both shall apply fully once Measure 1 (2003) has entered into force.
Also on the agenda of the ATCM was the issue of liability for environmental damage. Article 16 of the Protocol provides for a further Annex to the Protocol to be negotiated setting out rules and procedures relating to liability for environmental damage arising from activities taking place in the Antarctic Treaty area and which are covered by the Protocol. The ATCM’s sub-group on liability, chaired by New Zealand, made further progress on the draft text currently before it. There is some anticipation that the liability discussions can be concluded within the next two ATCMs.
ATCM XXVI spent two full days considering the issue of tourism and non-governmental activities in Antarctica. The expansion and diversification of tourism is a concern to many Treaty Parties. Whilst there was general agreement on the need to improve the regulation of tourism in Antarctica, there were differing views as to the priorities or the means by which these might be addressed. Discussions focussed on three matters; the establishment of a centralised database; the adoption of site-specific tourism guidelines, and the issue of tourism safety.
On the issue of a database, there was broad (though not consensus) agreement on the concept and Australia offered to lead a formal intersessional contact group to further develop the initiative.
In respect of site-specific guidelines, the meeting was unable to agree on the UK’s proposal to append site-specific guidelines to a slightly modified version of Recommendation XVIII-1 (the tourism code of conduct). Instead the UK Working Paper was referred to the Working Group on Legal and Institutional matters (at ATCM XXVII) for advice on the most appropriate (legal) means of introducing such guidelines, as well as to the CEP for advice on the format and scope of such guidelines and the means for prioritising sites.
On the issue of tourism safety, initial discussions centred on the concept of “adventure” or “extreme” tourism, though it proved difficult to define what was meant by these terms. However, it was generally agreed that Parties lacked the necessary means to enforce what are essentially “safety” issues (eg the requirement for tour operators or expeditions to carry insurance) under existing “environmental” legislation designed largely around implementing the Protocol.
By the conclusion of the second day of discussions a sufficiently broad and demanding range of issues had been exposed to convince the Consultative Parties that further intersessional work, as New Zealand had initially suggested, was required. Norway proposed that an Antarctic Treaty meeting of Experts be convened and offered to host it. The ATCM adopted Decision 5 (2003) setting out the terms of reference for the meeting.
Whilst not wholly a tourism-related matter, the ATCM was able to agree to the concept of adopting Antarctic shipping guidelines based on the Arctic shipping guidelines adopted by the International Maritime Organisation (IMO) in December 2002. COMNAP agreed to undertake a further assessment of the IMO guidelines and to advise ATCM XXVII as to how these may need to be amended so as to be relevant to Antarctica.
Measure 1 (2003) Establishment of the Secretariat of the Antarctic Treaty.
Measure 2 (2003) Antarctic protected area system: management plans for Antarctic Specially Protected
ASPA No 105, Beaufort Island, Ross Sea;
ASPA No 114, Northern Coronation Island, South Orkney Islands;
ASPA No 118, Summit of Mt Melbourne, North Victoria Land;
ASPA No 135, North-East Bailey Peninsula, Budd Coast, Wilkes Land;
ASPA No 143, Marine Plain, Mule Peninsula, Vestfold Hills, Princess Elizabeth Land;
ASPA No 152, Western Bransfield Strait, Antarctic Peninsula;
ASPA No 153, Eastern Dallmann Bay, Antarctic Peninsula;
ASPA No 154, Botany Bay, Cape Geology, Victoria Land;
ASPA No 156, Lewis Bay, Mount Erebus, Ross Island, Ross Sea;
ASPA No 160, Frazier Islands, Wilkes Land; and
ASPA No 161, Terra Nova Bay, Ross Sea.
Measure 3 (2003) Antarctic Protected Areas System: Revised List of Historic Sites and Monuments.
Decision 1 (2003) Apportioning Contributions to the Secretariat of the Antarctic Treaty.
Decision 2 (2003) Provisional application of Measure 1 (2003).
Decision 3 (2003) Staff Regulations for the Secretariat of the Antarctic Treaty.
Decision 4 (2003) Financial Regulations for the Secretariat of the Antarctic Treaty.
Decision 5 (2003) Meeting of Experts on Tourism and Non–Governmental Activities.
Resolution 1 (2003) Notices to Mariners.
Resolution 2 (2003) Support of the ATCM for the International Polar Year 2007/8.
Resolution 3 (2003) Co-operation in Hydrographic Survey and Charting of Antarctic Waters.
Resolution 4 (2003) Support for the Conservation of Albatrosses and Petrels.
The 2003 ATCM was a busy and productive meeting, the highlight of which was the adoption of a series of measures to bring the Antarctic Treaty Secretariat into being. This will significantly strengthen the Antarctic Treaty System and provide a much-needed centralised administrative support process for the Parties.
South Africa confirmed its willingness to host ATCM XXVII in Cape Town and confirmed the dates of the next meeting as 24 May to 4 June 2004.
* Dr Neil Gilbert is the Environmental Manager for Antarctica New Zealand.
1 For a full list of Parties to the Antarctic Treaty and the Protocol see <http://www.ats.org.ar/index.htm> .
26th Antarctic Treaty Consultative Meeting
New Zealand Yearbook of International Law
Australia, France, Japan, New Zealand, Norway, UK, US
Argentina, Germany, Italy
Chile, China, India, Netherlands, South Africa, Spain, Sweden
Belgium, Finland, Korea, Poland, Russia, Uruguay
Brazil, Bulgaria, Ecuador, Peru