New Zealand Yearbook of International Law
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Trevor Hughes[*]
Important advances in the regulation, under the Antarctic Treaty System, of the two main economic activities in the Antarctic Treaty area, tourism and fishing were seen in 2004. New Zealand played a leading role in efforts to bring these changes about.
Two meetings during the Yearbook period warrant discussion on the issue of tourism in Antarctica: the Antarctic Treaty Meeting of Experts at Tromso in March 2004; and the 27th Antarctic Treaty Consultative Meeting at Cape Town in May/June 2004.
An Antarctic Treaty Meeting of Experts (ATME) on Tourism and Non-Governmental Activities in Antarctica was held in Tromso, Norway, from 22 to 25 March 2004. The decision to convene the ATME had been taken at the XXVIth Antarctic Treaty Consultative Meeting (ATCM) held in Madrid in June 2003.[1] Twenty-one Consultative Parties were represented, including New Zealand. A number of invited experts also participated, including representatives of the International Association of Antarctica Tour Operators (IAATO) and the Antarctic and Southern Ocean Coalition (ASOC).
The meeting was held against the backdrop of increasing concern about the expansion and diversification of tourism in Antarctica. For example in the 2003-2004 season the number of tourists landing in Antarctica increased by 45 percent over previous years to more than 19,500, according to figures presented by IAATO. Among the topics agreed to by ATCM XXVI to be examined by the ATME[2] were so-called “adventure tourism”, safety, jurisdiction, the sufficiency of the existing legal framework and the measurement of cumulative environmental impacts.
The ATME agreed that establishing the regulatory basis for the tourism industry in Antarctica was the primary responsibility of the Consultative Parties (as opposed to leaving matters largely to self-regulation by industry). The Meeting provided a number of findings and advice for the Antarctic Treaty Consultative Parties to consider.[2] Recommendations included the need for non-governmental expeditions to provide evidence they had obtained sufficient insurance for search and rescue, medical care and evacuation from Antarctica, and the necessary contractual agreement for back-up and contingency support before the proposed activity might proceed.
The ATME also recommended that the question of an industry accreditation scheme be further elaborated at ATCM XXVII and that the ATCM should establish a framework for having observers on board tourist vessels. New Zealand was tasked to further develop the latter topic.
In addition, the ATME agreed that the Committee for Environmental Protection (CEP) should address the monitoring of cumulative environmental impacts and provide the ATCM with recommendations on the coordinated monitoring of activities in Antarctica, including the establishment of a consistent methodology and data collection process.
New Zealand initiated a discussion during the ATME of “land-based tourism”, in particular the creation ashore of permanent or semi-permanent infrastructure to support or promote tourism. It drew attention to not only the environmental but also the potential political and legal ramifications and proposed a prohibition on the development of land-based tourism facilities.
The Cape Town ATCM, held from 24 May to 4 June 2004, saw the establishment of a new Working Group on Tourism and Non-Governmental Activities, of which M. Michel Trinquier of France was elected Chair. There was a wide-ranging discussion on the regulation of tourism in Antarctica and the consequences of tourism for the environment and for national programmes.
New Zealand, together with France, Norway and South Africa, cosponsored a draft Measure on Insurance and Contingency Planning for Tourism and Non-Governmental Activities in the Antarctic Treaty Area.[3].Under the Measure those organising or conducting tourist or other non-governmental activities in the Antarctic Treaty Area are required to demonstrate that appropriate contingency plans and arrangements for health and safety, search and rescue and medical care and evacuation are in place, along with adequate insurance or other arrangements to cover any associated costs. The Measure states that contingency plans shall not be reliant on support from other operators or national programmes without their express written agreement. One of the aims of the Measure, acknowledged in the preamble, is to address the potential impacts of tourist and other non-governmental activities on national programmes including the risks to the safety of those involved in search and rescue.
The Consultative Parties also adopted a Resolution[4] on Guidelines on Contingency Planning, Insurance and Other Matters for Tourist and Other Non-Governmental Activities in the Antarctic Treaty Area. This Resolution aims to promote the objectives of Measure 4 before it enters into effect (which requires the Measure must be ratified by all the Antarctic Treaty Consultative Parties) and recommends further guidelines to be followed by those organising or conducting activities without the supervision or support in the field of another operator or national programme.
Another Resolution on Tourism and Non-Governmental Activities, Resolution 3[5] adopted to promote enhanced cooperation among the Parties in respect of information-sharing. This arose from awareness that some individuals may circumvent national legislation by seeking approval for their activities from more than one national authority. Parties agreed to exchange information about tourism and non-governmental activities when they are notified, particularly when there are potential implications for other parties.
An Inter-sessional Contact Group (ICG), coordinated by the United Kingdom, was established to consider Australia’s proposal for an accreditation scheme for Antarctic tour operators. The Committee for Environmental Protection also established an ICG, coordinated by France, to examine the issue of environmental monitoring in Antarctica, noting the Report of the ATME. In addition, the Consultative Parties adopted Decision 4[5] on Guidelines for Ships Operating in Arctic and Antarctic Ice-Covered Waters, taking into account the increasing levels of shipping including tourist vessels operating in the waters of the Antarctic Treaty Area. These guidelines were transmitted to the Secretary-General of the International Maritime Organisation (IMO) with a request from the ATCM that they be considered by the IMO at the earliest opportunity.
New Zealand also submitted an information paper[6] (as agreed at the ATME) regarding the framework for placing observers on board tourist vessels It pointed out that the framework already exists through Article 13 of the Protocol on Environmental Protection which makes clear that each party has an obligation “to take appropriate measures within its competence, including the adoption of laws and regulations, administrative and enforcement measures, to ensure compliance” with the Protocol. In New Zealand’s case observers – or “National Representatives” as they are called – are designated by the Minister of Foreign Affairs and are also appointed by the Minister under the Antarctica (Environmental Protection) Act 1994 which implements the Protocol in New Zealand law. The role of the National Representatives is to report to the Minister on compliance with the provisions of the Act.
New Zealand and the United States took a lead in protected area development and management with the approval at Cape Town of an Antarctic Specially Managed Area (ASMA) for the McMurdo Dry Valleys. The ASMA management plan establishes three types of managed zones within the area including a tourism zone which specifies the areas where tourism may occur. It is intended that tourism activities should be restricted to this zone which is located in an area where access and movement can be reasonably assured with minimal impact on science activities and the environment.
Finally, the issue of land-based tourism was discussed. It was noted that the construction of any structure would require submission of a Comprehensive Environmental Evaluation (CEE) to the Committee for Environmental Protection by the relevant national authority and its review by the CEP. In addition to environmental impact other concerns raised included the protection of wilderness values and consistency with Antarctica’s designation as a “natural reserve, devoted to peace and science”, possible issues around jurisdiction, and the possible assertion of private property or usufructuary rights. There was an interest in pursuing the issue further at ATCM XXVIII.
The discussions during the initial meeting of the Working Group on Tourism and Non-Governmental Activities were therefore substantive and led to a number of outcomes for the improved management of these activities. The ATME made an invaluable contribution to the development of thinking around the issues posed by the expansion and diversification of tourism and non-governmental activities. New Zealand was able to play a leading role in both meetings and will continue to give a high priority to this work in line with the Government’s Policy Statement on Tourism and Non-Governmental Activities in Antarctica of May 2003.[7]
The twenty-third annual meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) XXIII at Hobart[8] was notable for several important advances in CCAMLR’s ability to manage the fisheries in the Southern Ocean for which it has responsibility, including combating illegal, unregulated and unreported (IUU) fishing.
A proposal cosponsored by Australia, New Zealand and the United States to require all vessels licensed to fish in CCAMLR’s exploratory longline toothfish (Dissostichus spp.) fisheries to be equipped with a satellite-linked vessel monitoring device to provide continuous reporting of their position to the Flag State and the CCAMLR Secretariat in Hobart was finally adopted at this meeting,[9] after two previous failed attempts in 2002 and 2003.New Zealand had made an important contribution to setting up a trial centralised Vessel Monitoring System (cVMS) in Hobart in the period leading up to the meeting by providing expertise from the Ministry of Fisheries. In addition, three New Zealand vessels had voluntarily taken part in the trial.
The adoption of cVMS by CCAMLR was an important step in the fight against IUU fishing. The system will enable CCAMLR to verify independently and validate fishing vessels’ positions and movements against a common standard of monitoring and will help in particular to ensure the robustness of CCAMLR’s Catch Documentation Scheme (CDS). Members such as New Zealand who undertake extensive surveillance in the CCAMLR Area in support of the CCAMLR System of Inspection will, by reporting observed vessel positions to the Secretariat, be able to assist in corroborating the accuracy of cVMS data being received.
New Zealand also took the lead role in urging the Ukraine to withdraw the vessel Simeiz, which it had notified for CCAMLR’s exploratory fisheries for the 2004/2005 season including the Ross Sea. In December 2003 an inspection of the vessel inside New Zealand’s EEZ by Fisheries Officers supported by HMNZS Te Kaha revealed that it was the former Russian-flagged Florens-1 which was suspected of involvement in IUU fishing activities. At CCAMLR XXII in October 2003 CCAMLR Members were recommended to note the names of a number of vessels including the Florens-1 and pay particular attention to their future activities because of information that had been submitted to CCAMLR’s Standing Committee on Implementation and Compliance (SCIC). An RNZAF P3K patrol in the Ross Sea region in January 2004 also obtained evidence on another Ukrainian vessel, Mellas, which led to its identification as the former Russian-flagged vessel Eva-1 (which was also on this list).
New Zealand worked closely with a number of other CCAMLR Members including the European Community, France, South Africa, Norway, the United Kingdom, the United States and Australia in presenting the arguments against participation by the vessel Simeiz in CCAMLR’s exploratory fisheries. Following the Commission meeting, the Ukraine notified the Secretariat of its withdrawal from participation in the fisheries concerned in 2004/2005 including the Ross Sea Region.
The circumstances around the vessels Simeiz and Mellas, which New Zealand had played a key role in bringing to light, contributed to the development of a proposal by the European Community to strengthen the ability of members to scrutinise the suitability of vessels notified for CCAMLR’s exploratory fisheries. The proposal[10] which was adopted requires the provision three months before the annual meeting of the Commission of additional information including the details of the beneficial owner, previous flag and previous names, as well as colour photographs of the vessel.
The Commission also adopted amendments to the Conservation Measure[11] that governs the establishment of the IUU Vessel List for Contracting Parties in order to clarify the procedures and to ensure evidence is not rejected because of technicalities. In addition, a significant weakness that saw vessels which supported or re-supplied listed IUU vessels being themselves ineligible for inclusion on the IUU list was remedied. For the 2003/2004 fishing season the total estimated IUU catch in the CCAMLR Area was 2622 tonnes, about one quarter of the 2002/2003 estimate of 10070 tonnes. While this reduction was pleasing it may also represent negative factors including inadequacy of surveillance.
Good progress was also made on a number of other matters of importance to New Zealand including marine protected areas and seabird by-catch mitigation. New Zealand scientists now also chair the Scientific Committee’s Working Group on Fish Stock Assessment (WG-FSA) and (as co-convenor) the Working Group on Incidental Mortality of Mammals and Seabirds Arising from Fishing (WG-IMAF).
[*] Head, Antarctic Policy Unit, New Zealand Ministry of Foreign Affairs and Trade.
[1] For a commentary on the 26th Meeting, see Trevor Hughes, ‘New Zealand’s Policy Statement on Tourism and Other Non-Governmental Activities in Antarctica’ [2004] NZYbkIntLaw 12; (2004) 1 New Zealand Yearbook of International Law 207.
[2] ATCM XXVI (2003), Madrid Spain, Decision 5 ‘Meeting of Experts on Tourism and Non-Governmental Activities’.
2 These are set out in the Chairman’s Report which was submitted as ATCM XXVII (2004) Working Paper-4, Norway, ‘Chairman’s Report from Antarctic Treaty meeting of Experts on tourism and non-governmental activities in Antarctica’.
[3] ATCM XXVII (2004), Cape Town South Africa, Measure 4 ‘Insurance and Contingency Planning for Tourism and Non-Governmental activities in the Antarctic Treaty Area’.
[4] ATCM XXVII (2004), Resolution 4 ‘Guidelines on Contingency Planning, Insurance and other matters for Tourist and other Non-Governmental activities in the Antarctic Treaty Area’.
6 ATCM XXVII (2004), Resolution 3 ‘Tourism and non-Governmental activities: enhanced co-operation amongst Parties’.
5 ATCM XXVII (2004), Decision 4 ‘Guidelines for ships operating in Arctic and Antarctic ice-covered Waters’.
[6] ATCM XXVII (2004) Information Paper-23, New Zealand, ‘Tourism and Non-Governmental activities in Antarctica: Monitoring compliance and environmental impact’.
[7] Above, n 1.
[8] Held from 25 October to 5 November 2004.
[9] CCAMLR Conservation Measure 10-04 (2004) ‘Automated satellite-linked Vessel Monitoring Systems (VMS)’.
[10] CCAMLR Conservation Measure 10-02 (2004) ‘Licensing and inspection obligations of Contracting Parties with regard to their flag vessels operating in the Convention Area’.
[11] CCAMLR Conservation Measure 10-06 (2004) ‘Scheme to promote compliance by Contracting Party vessels with CCAMLR conservation measures’.
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URL: http://www.nzlii.org/nz/journals/NZYbkIntLaw/2005/12.html