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Scott, Karen N --- "Marine Scientific Research and the Southern Ocean: Balancing Rights and Obligations in a Security-Related Context" [2008] NZYbkIntLaw 22; (2008) 6 New Zealand Yearbook of International Law 111

Last Updated: 7 February 2019

MARINE SCIENTIFIC RESEARCH AND THE SOUTHERN OCEAN: BALANCING RIGHTS AND OBLIGATIONS IN A SECURITY-RELATED CONTEXT

Karen N. Scott[•]

This paper focuses on the topic of marine scientific research taking place in the Southern Ocean and explores the associated rights and obligations of states undertaking research as well as non-researching states within a security-related context. The Southern Ocean is a region which is of particular importance for marine scientific research purposes, and the value of scientific research is enshrined in Article II of 1959 Antarctic Treaty.[1] However, on occasion Antarctic-focused marine scientific research has proven controversial.[2] For example, concerns have been expressed at both the regional and at the international level over research involving seismic surveys and the use of acoustic devices in the Antarctic, and the potentially negative impact of this research on marine mammals.[3] Moreover, the science behind iron fertilisation experiments taking place in the Southern Ocean – that seek to enhance the draw-down of carbon dioxide in the oceans and thereby mitigate climate change – is even more uncertain,[4] and some researchers have expressed concern that creating artificial plankton blooms may have detrimental effects on the fragile food chain in this region.[5] This issue has recently received considered attention by the parties to the 1972 London Convention[6] and the 1996 London Protocol,[7] and is due to be further addressed by the International Maritime Organisation (IMO) in 2010.[8] Both these examples raise security concerns relating to the environmental integrity of the region.
However, marine scientific research (MSR) may also raise other – more traditional – security concerns. For example, the extent to which biological prospecting can be categorised as either pure or applied scientific research has been discussed by states at recent Antarctic Treaty Consultative Meetings (ATCM) but the activity itself is not yet regulated on any level.[9] It is certainly possible to conceive of future disputes arising over access to, and rights in connection with, the exploitation of these biological resources. Indeed, the most confrontational dispute to date over scientific research taking place within the region in fact relates to biological resources: the legitimacy of Japanese scientific whaling taking place within the Australian Antarctic Territory (AAT).[10] Furthermore, the distinction between MSR and hydrographic surveying for military purposes is disputed[11] and, in the Antarctic region, this engages yet another layer of complexity through the application of Article I of the 1959 Antarctic Treaty.[12]
Marine scientific research has been designated a freedom of the high seas under Articles 87 and 238 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS),[13] but the exercise of this freedom is subject to limitations under the Convention (and indeed other international instruments),[14] and, to a limited degree of coastal state control where that research takes place within 200 nautical miles of land.[15] Coastal states have a clear interest in scientific research where it relates to the resources of their seas, the integrity of their marine environment and the security of that state and its interests. Within the coastal zone of any state, whether the research is permitted or not will depend upon a delicate balance of factors including the nature of the research due to be undertaken and the impact that the research is likely to have on the coastal state and its interests. In light of the fact that there are currently no detailed, globally binding guidelines of application to MSR activities beyond the general principles set out in UNCLOS, the controls imposed by coastal states on research taking place within their zones are significant. In the Southern Ocean this balance between the rights of coastal states and the rights of researching states is largely absent; as there are relatively few recognised coastal states within the region owing to the unusual political and legal status which is attached to the continent of Antarctica.[16] In this paper the regimes which currently regulate scientific research taking place within the Southern Ocean will be explored with a view to identifying where the regulatory balance lies between researching states and other states with interests in the region. This paper will conclude with a tentative evaluation of two alternative, imperfect regulatory mechanisms, which would – in this author’s opinion – improve the management of marine research and support the maintenance of environmental security within the region.

I. REGULATING SCIENTIFIC RESEARCH IN THE SOUTHERN OCEAN – THE APPLICATION OF INTERNATIONAL AND REGIONAL CONTROLS

Marine scientific research taking place within the Southern Ocean is subject to both international and regional regulation. At the international level the principal regime of application is Parts XII and XIII of 1982 UNCLOS. Although UNCLOS does not specially refer to the Antarctic, there is little doubt that its provisions (at least in respect of Parts XII and XIII) are intended to be comprehensive in scope and are of application to the Southern Ocean. The preamble to UNCLOS clearly states that the purpose of the Convention is to establish a global legal order or constitution for the seas and oceans, which ‘are closely interrelated and need to be considered as a whole’.[17] In contrast to Part XI of UNCLOS (discussion of which is beyond the parameters of this paper) there would appear to be few difficulties in applying Parts XII and XIII of UNCLOS to the Antarctic region in a manner which is consistent with and, indeed, supportive of, the 1959 Antarctic Treaty and 1991 Environmental Protocol. It should be further noted that other international instruments are of potential relevance to research activities taking place in the Southern Ocean. For example, the International Whaling Commission established under the 1946 International Convention on the Regulation of Whaling (ICRW)[18] has a mandate to regulate scientific research on whales although its control over whaling taking place pursuant to Article VIII of the Convention is limited.[19] As noted above, the parties to the 1972 London Convention and the 1996 Protocol decided in 2008 that the IMO provides an appropriate forum for the regulation and management of iron fertilisation experiments.[20] Nevertheless, for the purposes of this paper the discussion will be largely confined to an examination of the application of UNCLOS to the Antarctic region.
At the regional level it is of course the 1959 Antarctic Treaty and its associated instruments – in particular the 1991 Environmental Protocol – which are of principal application to research activities taking place within the Antarctic Treaty area (ATA).[21] In the past the application of the Antarctic Treaty to the seas surrounding the continent has been the subject of a certain amount of historical debate. Article VI of the 1959 Treaty stipulates that

[t]he provisions of the present Treaty shall apply to the area south of 60° South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.

It has been argued that this provision excludes the application of the Antarctic Treaty to the marine environment and confines it to the continent and associated ice-shelves.[22] However, as has been pointed out by commentators such as Auburn, this interpretation would appear to be contrary to the natural language of Article VI.[23] It would not be necessary to include a provision designed to safeguard the freedoms of the high seas if the Treaty were not itself of more general application to the high seas.[24] Moreover, state practice arguably supports the interpretation that the Antarctic Treaty is of maritime as well as terrestrial application. For example, the prohibition on nuclear waste disposal under Article V of the Antarctic Treaty has been interpreted as applying to the sea as well as to the terrestrial environment.
Nevertheless, it has been convincingly argued that the provisions of the Antarctic Treaty were, and indeed are, of no application to activities which could be categorised as high seas freedoms. It is therefore appropriate to ask whether marine scientific research was categorised as a freedom of the seas in 1959. The answer is not entirely clear. The 1958 Geneva Convention on the High Seas[25] listed four high seas freedoms: navigation; fishing; laying submarine cables and pipelines; and over-flight.[26] On the one hand it may be argued that excluded from this list, scientific research was not considered a high seas freedom and, as such, within the Antarctic Treaty area, research activities were subject to the control of the Antarctic Treaty. The Antarctic Treaty itself seeks to impose a number of controls on research taking place within the Antarctic Treaty Area, notably in relation to the sharing and dissemination of research data and results[27] and in requiring that parties participate in the international inspection scheme established under Article VII of the Treaty. On the other hand, it has been argued that the listed freedoms do not represent an exhaustive list, and, unless an activity is actually prohibited or excluded, it should be regarded a freedom of the seas.[28] As such, it might be claimed that marine scientific research (in contrast to terrestrial research) in fact, fell outside of the regulatory parameters of the Antarctic Treaty. Of course marine scientific research was officially designated as a freedom of the seas under Article 87 of UNCLOS in 1982.
In subsequent instruments the parties to the Antarctic Treaty agreed as between themselves to restrict their exercise of high seas freedoms within the Antarctic Treaty area, particularly in relation to the exploitation of biological resources. An early restriction occurred in 1964 with the conclusion of the Agreed Measures,[29] then again in 1972 with the conclusion of the Convention for the Conservation of Antarctic Seals[30] and in 1980 with the adoption of the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).[31] The 1988 Convention on the Regulation of Antarctic Minerals Resource Activities (CRAMRA)[32] was also designed to be of application to the marine environment. Under Article 5(2) of the Convention, its area of application is defined as including the seabed and subsoil of offshore areas up to the deep seabed. For the purpose of CRAMRA this geographic area essentially constitutes the continental shelf surrounding Antarctica.[33] Finally, the 1991 Environmental Protocol is also of application to the marine environment. The Protocol applies to the Antarctic Treaty Area[34] and it is stipulated that it neither amends nor modifies the Antarctic Treaty.[35] Thus the freedoms of the high seas are arguably preserved. Nevertheless, there is little doubt that its provisions are of no less application to the marine environment as they are to the terrestrial environment. For example, there are express references to the marine environment in Article 3(2)(b) of the Protocol, which identifies the factors and issues that should be considered when planning activities taking place within the Antarctic Treaty area. Moreover, Annex IV of the Protocol is dedicated to the protection of the marine environment and focuses on the problem of vessel-source pollution. Finally, Annex V, which was adopted separately from, but contemporaneously with, the Protocol provides for the designation of areas, which must be specially protected or specially managed in order to preserve their unique, vulnerable or representative features. Article 3 of Annex V expressly stipulates that marine areas may be designated as Antarctic Specially Protected Areas (ASPAS) or Antarctic Specially Managed Areas (ASMAs).

II. SOUTHERN OCEAN MARINE SCIENTIFIC RESEARCH & THE 1982 UNCLOS

The freedom to carry out marine scientific research is not only provided for in the list of high seas freedoms under Article 87 of UNCLOS, but is also further confirmed by Article 238 of the Convention.[36] Moreover, a number of the provisions in Part XIII of UNCLOS seek to promote the facilitation of research,[37] research co-operation[38] as well as the publication and dissemination of knowledge resulting from marine research.[39] Nevertheless, the freedom to research is in no way absolute. Research activities are subject to Parts XII and XIII of the Convention and, where they take place within 200 nautical miles of the coast (or thereabouts), such activities are subject to a degree of coastal state control.
The general provisions of UNCLOS as they relate to the conduct of scientific research are clearly applicable to research taking place anywhere in the ocean, including the Southern Ocean. These general principles are set out in Article 240 of Part XIII of the Convention. Research must: be exclusively peaceful; be conducted with appropriate scientific methods and means compatible with UNCLOS; not unjustifiably interfere with other legitimate uses of the sea compatible with UNCLOS and shall be duly respected in the course of such uses; and be conducted in compliance with all relevant regulations adopted in conformity with this Convention including those for the protection and preservation of the marine environment. These principles are of application to research carried out by states party to UNCLOS and arguably, they are of application to states not party to UNCLOS, such as the United States, by virtue of their incorporation into customary international law.[40] This notwithstanding, these principles are extremely broad in terms of the actual obligations they impose on researching states. For example, Part XIII of UNCLOS does not specify whether there are research activities that are unacceptable or indeed how research should be conducted beyond the basic principles outlined in Article 240.

Further restrictions on research can be derived from Part XII of UNCLOS, which seeks to protect the marine environment. Arguably, researching states are under an obligation to refrain from polluting the marine environment through their research activities.[41] In particular, states must take steps to reduce and control the intentional or accidental introduction of alien species into the marine environment.[42] This obligation is particularly pertinent from the perspective of the Southern Ocean iron fertilisation experiments, which are designed to promote algal blooms.[43] Moreover, Article 194(5) of UNCLOS requires states to take special measures necessary to protect and preserve rare and fragile ecosystems. Furthermore, Part XII of UNCLOS introduces a number of procedural obligations in connection with monitoring the effects of polluting activities[44] and assessing the potential impacts of planned activities.[45] It should be noted however, that the environmental impact assessment requirements under Article 206 of UNCLOS are only initiated in the event that a state has ‘reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment’.[46] And even then an environmental impact assessment is only necessary in so far as it is practicable. It is likely that this high threshold would probably have the effect of excluding most proposed scientific research experiments from the obligation to carry out such an assessment.
Finally, it is worth noting that Part XI of UNCLOS addresses research activities taking place on or under the deep seabed; the Area. All research taking place within the Area must be carried out for the benefit of mankind as a whole.[47] There are additional provisions which seek to ensure environmental protection[48] and the obligations in connection with the publication and dissemination of research are re-enforced.[49] The Area is defined as ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.’[50] Given the uncertain sovereign status of Antarctica, Part XI of UNCLOS is of at least potential application to most of the seafloor in the Southern Ocean, including the areas immediately adjacent to the Antarctic continent.[51]
These broad controls derived from Parts XII and XIII and, to a lesser extent, XI of UNCLOS apply to research taking place (arguably) in any part of the oceans. However, where research is taking place within the jurisdiction of a coastal state, that research may be subject to additional controls as devised by that coastal state. In particular, the coastal state is able to regulate all research taking place under its jurisdiction in order to protect the marine environment.[52] Within the territorial sea for example, the coastal state has the exclusive right to authorise and attach conditions to research activities undertaken by foreign vessels.[53] Consequently, the coastal state is able to prohibit research if they so choose or to attach conditions to its conduct such as those related to marine environmental protection. Arguably, in order to implement its obligations under Part XII of UNCLOS, a coastal state must impose conditions on researchers where their research is likely to impact negatively on the marine environment.
The coastal state’s right within their exclusive economic zone (EEZ) to consent to research is similarly exclusive but is subject to the presumption that in normal circumstances consent will be given where research is for peaceful purposes and will benefit mankind.[54] Article 246 of UNCLOS outlines a number of instances where consent may be refused by the coastal state. Principally, these relate to situations where the research is likely to be of direct significance to the exploration and exploitation of natural resources whether living or non-living,[55] or where it is likely to involve significant environmental harm (such as the drilling onto the continental shelf or the introduction of harmful substances into the environment or the use of explosives),[56] or where the researching state has provided inaccurate information to the coastal state or is the subject of outstanding obligations owed to the coastal state.[57] In contrast to Article 245 of UNCLOS, Article 246 does not expressly stipulate that the coastal state may attach conditions to the conduct of research taking place within their EEZ. Part XIII of UNCLOS nevertheless, provides the coastal state with relatively extensive rights to participate in any research being conducted within their EEZ or on their continental shelf and/ or to be provided with data or an assessment of the data obtained from such research.[58] Evidently Part XIII of UNCLOS envisages that conditions relating to participation and / or dissemination of data may be attached to research projects being undertaken within a coastal state’s EEZ. However, it is suggested that a coastal state is not confined to these issues when attaching conditions to researchers. Paragraph 1 of Article 246 stipulates that ‘[c]oastal states, in the exercise of their jurisdiction, have the right to regulate, authorise and conduct marine scientific research in their Exclusive Economic Zone and on their continental shelf in accordance with the relevant provisions of this Convention.’[59] If a coastal state were unable to attach conditions to research activities then arguably they would be deprived of their rights to regulate such research in favour of mere authorisation. Moreover, as with the territorial sea, a coastal state is subject to various obligations connected to environmental protection within its EEZ under Part XII of UNCLOS. Arguably, it is only able to meet those obligations if it is able to attach conditions to research due to be undertaken within its EEZ, which will ensure the protection of the marine environment.
Undoubtedly therefore, where research is designed to be undertaken within 200 nautical miles of the coast, the rights given to coastal states to authorise and – more importantly – to regulate research, potentially provide an important means of ensuring that the research undertaken does not impact negatively on the marine environment. It is significant therefore that these rights are largely absent in connection with research taking place within the Southern Ocean. Nevertheless, the rights of coastal states to regulate research are not wholly irrelevant. In particular, coastal states may seek to exercise these rights over research taking place within their maritime zones associated with territories located within the sub-Antarctic. More, controversially, claimant states could at least in theory (if not in practice) seek to exercise these rights within maritime zones associated with their claims to the Antarctic continent.

A. Sovereign Seas within the Southern Ocean


First, although often overlooked there are pockets of seas within the Southern Ocean that are subject to the sovereign jurisdiction of states. These include the maritime zones associated with: the Auckland Islands and Campbell Island (New Zealand); Heard and McDonald Islands, Macquarie Island (Australia); Kerguelen and Crozet Islands (France); Bouvetoya Island (Norway); Prince Edward Island (South Africa) and South Georgia and the South Shetland Islands (United Kingdom, disputed by Argentina). Where scientific research activities take place within these zones, prior permission must be sought from the coastal state and that state has the right to impose conditions on the research activities or even refuse consent in accordance with the 1982 UNCLOS. Moreover, these coastal states also have a right to participate in such research if they so choose under Part XIII of UNCLOS. It should be noted that, as will be discussed further below, where these states are also party to the Antarctic Treaty and its associated instruments, they may well be subject to additional obligations under that Treaty and its associated instruments where their maritime zones extend south of 60˚ South Latitude.

B. Maritime Zones Associated with the Antarctic Continent


The second area where these rights are of potential relevance, relates to the Antarctic continent itself. As noted above, seven states maintain historical claims to the continent of Antarctica: Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom. The three claims to the Antarctic Peninsula (Argentina, Chile and the United Kingdom) are largely overlapping and one area of Antarctica remains unclaimed. All of these claims include a portion of the marine environment, and are not generally recognised by non-claimant states. As noted above, cooperation between both claimant and non-claimant states has been made possible by virtue of Article IV of the 1959 Antarctic Treaty, which “freezes” or sets to one side the thorny issue of disputed sovereignty. Article IV of the Treaty effectively provides that no action undertaken by any state party since entry into force of the 1959 Treaty can serve to deny or augment a sovereignty claim, and that no new claim or enlargement of an existing claim may be made. The extent to which a claim to an EEZ can be supported by the Antarctic Treaty is thus unclear. As a maritime zone not generally recognised in 1959[60] any claim to an EEZ could be categorised as a new claim or as an enlargement of an existing claim and consequently, regarded as incompatible with the Antarctic Treaty.[61] Alternatively, such a claim might be regarded as simply updating or delimiting an existing claim and as such, is consistent with Article IV of the Antarctic Treaty.[62] In any case, there would appear to be a strong argument in favour of regarding the original claims as including a territorial sea, although whether this is a 3, 6 or 12 nautical mile territorial sea is debatable.
Unsurprisingly it does not appear to be the practice of researchers to seek the permission of so-called coastal states in order to undertake research in the offshore area off the Antarctic continent, in contrast with their practice in seas where sovereignty is undisputed. Nor does it appear to be the practice of the claimant states to require researchers to take measures for the protection of the environment or the sharing of data beyond those already required by the 1959 Antarctic Treaty and 1991 Environmental Protocol.[63]
In practice therefore, for the most part the Southern Ocean is comprised of high seas for the purpose of regulating scientific research activities. Thus, whilst the general principles as established in Parts XII and XIII of UNCLOS will apply, states which have a particular interest in the region on account of their territorial claims to the continent, have no right to prevent research taking place within the region, even where that research may impact on resource exploitation or impact negatively on the environment. Moreover, these so-called coastal states are not able to impose conditions on research in order to protect the marine environment, where that research takes place outside of their undisputed (i.e. sub-Antarctic) sovereign jurisdiction.

III. SOUTHERN OCEAN MARINE SCIENTIFIC RESEARCH AND THE ANTARCTIC TREATY SYSTEM


The regional regulatory regime of application to marine scientific research taking place within the Southern Ocean (or at least parts thereof) has been developed under the auspices of the 1959 Antarctic Treaty. The development and adoption of regional regimes for the protection of the marine environment is encouraged and supported by the 1982 UNCLOS.[64] Moreover, Article 311 of the Convention makes it clear that UNCLOS will not alter the rights and obligations of parties which arise under other agreements compatible with the Convention, and nor will it prevent parties from concluding agreements modifying relations between them provided that such agreements are not inconsistent with the objects and purposes of the Convention. Arguably the provisions of the Antarctic Treaty and its associated instruments as they relate to the regulation of scientific research are not incompatible with UNCLOS and, indeed, are supportive of the global regime.
Although the promotion of peaceful scientific research is a fundamental aim of the 1959 Antarctic Treaty, the Treaty itself provides for relatively minimal controls on research. In general, its obligations are limited to requirements related to: information exchange and transfer; the exchange of personnel between stations and projects and; the publication of scientific observations and data.[65] Other obligations relate to participation in the inspection schemes and the provision of advance notice in connection with all expeditions to and within Antarctica.[66] The latter obligation is of particular relevance to marine research.
However, the most important instrument to date in connection with the regulation of scientific research is the 1991 Environmental Protocol to the 1959 Antarctic Treaty. This instrument seeks to regulate all activities taking place within the Antarctic Treaty Area and, in contrast to the 1982 UNCLOS, regulation is very detailed. It is beyond the scope of this paper to provide an in-depth survey of the controls on research under this instrument,[67] but its regulatory scope can be divided into three broad categories of control. First, the requirement that all activities are planned so as to minimise any adverse effects on the environment.[68] Second, that in appropriate circumstances, relevant permits are obtained where, for example, interference with Antarctic wildlife is necessary or entry into a specially protected area is required.[69] Third, researchers must obtain appropriate insurance and undertake emergency response action in the event that their research causes environmental damage to the Antarctic environment.[70] Due to space considerations only the first two categories of control will be addressed.[71]


A. Planning Marine Scientific Research Activities

All activities taking place within the Antarctic Treaty area must be planned in order to minimise their adverse affects on the environment.[72] At the heart of these planning obligations are the Protocol requirements relating to the assessment of the prior impact of activities, which must be carried out at the start of the planning stage.[73] All activities likely to have a minor or a transitory impact on the environment must undergo an initial environmental evaluation (IEE).[74] Detailed requirements are outlined in Annex I to the Protocol and revised guidelines were adopted by the ATCM in 2005.[75] In brief, the activity must be described, direct and indirect impacts considered, and any gaps in relevant knowledge should be identified. Importantly and perhaps unusually (when compared to other locations), the assessment must extend to the impact that the expedition or the scientists themselves have or are likely to have on the environment, in addition to the impact that the science itself may have on the environment. The terms ‘minor’ and ‘transitory’ are not defined in the Environmental Protocol and the 2005 Guidelines note that they are context dependent and will vary according to activity and site.[76] It is apparent that state parties do, at times, differ in their environmental impact assessment requirements with regard to similar activities. For example, in a 2002 report, the Scientific Council on Antarctic Research (SCAR) noted that not all states subject research involving acoustic emissions to the same level of impact assessment.[77] A perusal of the list of initial environmental evaluations (IEE) available on the Antarctic Treaty Secretariat’s website would suggest that not all of the iron fertilisation experiments which have taken place in the Southern Ocean have been preceded by a prior impact assessment.[78]
In the event that a preliminary evaluation or the IEE indicates that an activity is likely to have more than a minor or transitory impact, that activity must undergo a comprehensive environmental evaluation (CEE) pursuant to Article 8 and Annex I of the Protocol. In contrast to the initial environmental evaluation, the draft CEE must be publicly circulated (and may be commented upon by other parties) and is put before the Committee on Environmental Protection[79] for appropriate consideration.[80] No final decision to proceed with the proposed activity may be taken unless there has been an opportunity for consideration of the draft CEE by the ATCM on the advice of the CEP.[81] However, the decision to proceed must not be delayed for longer than 15 months from the date of the circulation of the draft CEE.[82] The final CEE must include or summarise comments received on the draft CEE,[83] and it plus any decisions relating thereto must be circulated to all parties at least 60 days before the commencement of the proposed activity.[84] Any decision to proceed must be based on the CEE as well as other relevant considerations.[85] Nevertheless the Antarctic Treaty Consultative Meeting does not have the power to veto activities or to impose mandatory conditions on research to be carried out within the Antarctic Treaty area.[86]
Between 1988 and the end of 2008 711 initial environmental evaluations were carried out by states party to the protocol. The first IEE which evaluated the impacts of a marine focused research programme took place in 1998 and was undertaken by New Zealand in connection with a research voyage designed to research the relationship between iron and phytoplankton growth in the Southern Ocean.[87] A total of 35 IEEs undertaken during this period have specifically focused on the potential impacts of marine scientific research on the Southern Ocean. Research projects have ranged from an assessment of benthic communities and the marine geology of the Pacific Continental margin, tectonic sedimentary investigations, seal biology, ecology, the migratory patterns of marine species and hydrography.[88] To date, although 32 comprehensive environmental evaluations have been carried out since 1988 none relate to marine scientific research projects.

B. Permits – MSR & The Interference with Native Species

Having planned an expedition and indeed carried out an environmental impact assessment (where appropriate), it may be necessary for researchers to obtain a permit under Annex II[89] of the Environmental Protocol where, for example, research will interfere with native flora and fauna. Article 3(2)(a) of Annex II expressly provides for the issue of a permit authorising the taking of or interference with specimens for the purpose of scientific study. Permits may also be obtained where the taking or interference with a species is an unavoidable consequence of scientific activities.[90] The issue of permits must be limited in order to ensure that specimens taken can normally be replaced by natural reproduction in the following season, and that the diversity of species and habitats is maintained.[91] Nevertheless, in the context of marine scientific research it should be noted that Annex II is of limited application to marine species. For example, fish do not benefit from general protection under the Annex and the definition of harmful interference focuses on disturbance to seals and birds rather than marine mammals more generally.[92]
Where a species is specially protected (only the Ommatophoca rossii, Ross Seal, is currently entitled to special protection) a permit will not be issued unless the taking is for a compelling scientific purpose and will not jeopardise the survival or recovery of the species or local population and that non-lethal techniques are used where appropriate.[93] Where native mammals and birds are taken or interfered with, pain and suffering must be minimised as far as is practicable.[94] Finally, it is worth noting that Annex II also contains a prohibition on the introduction of non-native species into the Antarctic Treaty area without a permit,[95] although the obligation to prevent accidental introduction of non-native species – a risk associated particularly with iron fertilization experiments – is weak, and the revised 2009 text does little to strengthen it.[96]

C. Permits – Marine Scientific Research within ASPAs and ASMAs

The second area where permits are relevant is connected to activities which are designed to take place within locations that have been designated Antarctic Specially Protected Areas (ASPAs) or Antarctic Specially Managed Areas (ASMAs) under Annex V of the Environmental Protocol. Areas (which may include marine areas) may be so designated in order to protect areas of outstanding environmental, scientific, historic, aesthetic or wilderness values.[97] Notably, they may also be established in order to protect ongoing or planned scientific research.[98] ASPAs may therefore be of relevance from two perspectives. First, their designation may prevent scientific research being carried out within the area or subject it to more onerous conditions than those which apply more generally in Antarctica. It should be noted that mere entry into an ASPA is subject to the issue of a permit.[99] However, a permit will be issued where entry is connected to a compelling scientific purpose, which cannot be served elsewhere and which will not jeopardise the natural ecological system in that area.[100] Second, an ASPA may actually be designated in order to protect research that is planned and on-going. Thus within the Antarctic Treaty area the protection of scientific research may essentially be given priority over all other activities.

IV. THE BALANCE SHEET: SCIENTIFIC RESEARCH VERSUS ENVIRONMENTAL SECURITY

The essential question identified at the outset of this paper focuses on the balance of rights and duties with respect to marine scientific research taking place within the context of environmental security in the Southern Ocean. Positively – in the credit column – states party to the 1991 Environmental Protocol must regulate research activities undertaken by national expeditions within the Antarctic Treaty area in order to comply with the Treaty. Detailed environmental impact assessments must be carried out in connection with any activity or expedition that has a minor or transitory impact on the environment. Permits must be obtained where research is likely to interfere with Antarctic wildlife or where it will impact on a protected area. In the event that marine scientific research is likely to have more than a minor or transitory impact on the environment, the comprehensive evaluation must be circulated among the Antarctic Treaty Consultative Parties (ATCP), sent to the CEP and put before the ATCM. Additionally, all states will also have to comply with Parts XII and XIII of UNCLOS, although its provisions add relatively little to the sophisticated and highly regulated regional regime developed under the auspices of the Antarctic Treaty.
Less positively – in the debit column – these requirements apply only within the Antarctic Treaty Area and not to the whole of the Southern Ocean or even the entire Antarctic ecosystem. Whilst the 1991 Environmental Protocol has as its aim the protection of the Antarctic environment and its dependant and associated ecosystems[101] its scope in practice appears to be limited to the Antarctic Treaty area.[102] Moreover, it is unlikely that these standards could be imposed on those states not party to the Environmental Protocol. Although the Protocol allows the ATCM to draw the attention of any state not party to the Protocol to any activity undertaken by that state that affects the implementation of the objectives and principles of the Protocol,[103] the ATCM lacks the mandate to prohibit such activities. Whilst states not party to the 1959 Antarctic Treaty are of course subject to the principles provided for under Parts XII and XIII of UNCLOS, these are expressed (in contrast to the ATS requirements) at a relatively general level.
Moreover, the ATCM is unable to veto research projects proposed by parties to the Environmental Protocol although the various planning and permitting requirements must be complied with and the plans must be circulated and may be commented upon.[104] Outside of areas where sovereignty is undisputed, coastal state jurisdiction is generally not recognised. The sea, right up to the Antarctic coast is therefore, for practical purposes subject to the regime of the high seas. This means that research which is potentially damaging to the environment, or research which impacts on the exploitation of marine biological resources may be undertaken without obtaining the consent of interested states, which, in contrast to undisputed coastal states, are not entitled to participate in coastal research activities.

V. RE-DEFINING THE BALANCE


In light of the above conclusions it is appropriate to examine as to whether the balance between researching states and other interested states can be re-defined in the Southern Ocean in order to better protect the environmental security and integrity of the region. Two imperfect re-balancing options can be identified.
The first option seeks to revise the mandate of the Antarctic Treaty Consultative Meeting and suggests that this institution be granted the power to veto or to attach mandatory conditions to research projects designed to be undertaken within the Southern Ocean or, more restrictively, within the Antarctic Treaty Area. The ATCM is already able to review and pass comment on all comprehensive environmental evaluations. Giving it the power to attach mandatory conditions or even veto proposals is arguably a perfectly logical next step to take. The ATCM could also be given the power to impose conditions on researching states with a view to ensuring that all Antarctic Treaty parties can participate in research undertaken if they so choose and/ or that the data and results from such research is distributed to all parties. In effect, the parties to the Antarctic Treaty or collectively, the ATCM as an institution, is designated the coastal state for the purposes of authorising and managing research taking place within the Antarctic Treaty area.
There are though some serious and obvious problems with this option. In the first place, whilst such a regime would be of application to parties to the Antarctic Treaty, it is not clear that it would be of broader application. In other words, whilst this proposal solves the problem that the ATCM has no ultimate control over parties to the Antarctic Treaty, it does not address the challenges presented by states not party to the Treaty. There are also some practical difficulties which would need to be resolved. For example, should the regulatory control of the ATCM extend to a maximum of 200 nautical miles from the coast[105] or should it be applied to the whole Antarctic Treaty area? If the latter option were chosen the jurisdiction of the ATCM to regulate scientific research would effectively extend into the high seas. From a procedural perspective it would need to be determined how many ATCPs would need to vote against a proposed project in order to implement the veto? Decisions are normally taken by consensus at Antarctic meetings but should this practice be maintained, then presumably the party wishing to undertake the research could always veto the veto!
The second imperfect option approaches the problem from a rather different perspective. The planning and permitting provisions of the Environmental Protocol arguably provide for some of the most stringent controls on marine scientific research currently imposed on states. It might be suggested that they represent current best practice in this context and should be adopted at the international level – perhaps in the form of a “Marine Science Research Code” – in the form of a protocol or agreement negotiated under the auspices of UNCLOS.[106] Of course, the standards as applied to the Antarctic may not be necessarily applicable to all other parts of the oceans, but there is no reason why research standards could not be applied globally or differentially, with the most stringent standards of application to the Southern Ocean should this be deemed appropriate. Under this option, all states party to a “Marine Science Research Code Protocol” would be required to comply with its standards when operating in the Southern Ocean, irrespective of whether they are also party to the Antarctic Treaty. Moreover, its scope could be defined so as to encompass the whole of the Southern Ocean and not just the Antarctic Treaty area. Thus those states party to the Antarctic Treaty would be legally bound by Environmental Protocol standards in respect of research activities taking place beyond the boundaries of the Antarctic Treaty area. The obvious disadvantage of this option is that it fails to provide a mechanism for the ultimate control (and veto) of research proposals taking place within 200 nm of the coast of Antarctica.

VI. CONCLUDING REMARKS


This paper began by identifying the various interests of states that need to be balanced in the context of scientific research: freedom to undertake research and to utilise the results of that research accordingly; freedom to protect resources, the environment and the security interests of coastal and indeed other states. Often these interests are categorised as being of relevance to either researching states or to coastal states. This division of interests, wherever the research takes place, is too simplistic. The coastal state will often have an interest in the results of research, particularly where the results serve to enhance oceanographic or environmental knowledge or provide a cure or treatment for serious diseases. Likewise, the researching state often has a strong interest in the protection of the environment. In the Antarctic region however, the relationship and tension between these interests is particularly complex owing to the uncertain political and territorial status of the continent. As research interest in the Southern Ocean (particularly within the context of bioprospecting) continues to grow, it is likely that the balance between all of these interests – research, resource ownership and environmental protection – will need to be further addressed.
In the penultimate section of this paper two potential imperfect alternative regulatory mechanisms through which the balance between these rights might be re-adjusted were briefly sketched. Although these options were presented as alternative to one-another, this is somewhat misleading as both mechanisms address rather different interests. Under the first option – which would give the ATCM a veto over what it considers to be inappropriate and/ or risky research proposals submitted by parties to the Antarctic Treaty – the focus is on the balance between the right to research and the interests of the Antarctic Treaty parties in relation to the resources and security of the region. Of course, projects might be vetoed on account of environmental concerns, but the sophistication of the Protocol requirements currently applicable should filter out projects which present a grave risk to the environment. The second option on the other hand – the “Marine Science Research Code Protocol” – is focused much more on environmental protection rather than on issues connected to access or resource security. Such an instrument would aim to ensure that all states in effect comply with the standards of the 1991 Environmental Protocol irrespective of whether they are party to that instrument. It is unlikely that an instrument such as the proposed “Marine Science Research Code Protocol” would resolve problems associated with access to and utilisation of marine resources for scientific purposes.
Reconciling the competing interests that arise from marine scientific research activities within the Southern Ocean to general, indeed global satisfaction, will call for a sophisticated balancing act indeed. Irrespective of whether further regulatory controls are developed at the regional or at the international level, any such instrument will need to develop and maintain equilibrium between a range of competing and contested interests including the sovereignty disputes within the region.


[•] Senior Lecturer in Law, University of Canterbury, Co-convenor of the Responding to Contemporary Challenges and Threats to Antarctic Security: Legal and Policy Perspectives Project (2008-2009). This paper develops the presentation under the same title delivered at the Colloquium Responding to Contemporary Challenges and Threats to Antarctic Security: Legal and Policy Perspectives, held at the School of Law, University of Canterbury, 5-7 July 2009.

[1] Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961).
[2] It should be noted that terrestrial research-focused activities, such as drilling into Lake Vostok, have also on occasion proven equally controversial. See further Karen N Scott, ‘Regulating Subglacial Aquatic Research under the Antarctic Treaty System’ (2008) 23 New Zealand Universities Law Review 134.
[3] The use of acoustic devices in the Antarctic has been discussed at Antarctic Treaty Consultative Meetings (ATCM) on a regular basis since the year 2000. In particular, see the Final Report of the Committee on Environmental Protection (CEP X) (New Delhi 30 April – 11 May 2007), [255]–[264]; Germany, International Workshop ‘Impacts of Seismic Survey Activities on Whales and other Marine Biota’ (IP 4) (2007) submitted to the XXX ATCM (New Delhi 30 April – 11 May 2007); New Zealand, Marine Acoustics in Antarctic Waters: Report of an International Whaling Commission Workshop (IP 42) (2007) submitted to the XXX ATCM (New Delhi 30 April – 11 May 2007); Germany, Strategic Assessment of the Risk Posed to Marine Mammals by the use of Airguns in the Antarctic Treaty Area (IP 51) (2009) submitted to the XXXII ATCM (Baltimore 6 – 17 April 2009). All papers and reports are available on the Antarctic Treaty Secretariat Webpage, online: <http://www.ats.aq/index_e.htm> at 23 November 2009. See more generally: Philip E O’Brien et al, ‘Risks Posed to the Antarctic Marine Environment by Acoustic Instruments: A Structured Analysis’ (2005) 17 Antarctic Science 533; Karen N Scott, ‘Sound and Cetaceans: A Regional Response to Regulating Acoustic Marine Pollution’ (2007) 10 Journal of International Wildlife Law and Policy 175.
[4] Ken O Buesseler et al, ‘The Effects of Iron Fertilization on Carbon Sequestration in the Southern Ocean’ (2004) 304 Science 414; Rex Dalton, ‘Ocean Tests Raise Doubts over Use of Algae as Carbon Sink’ (2002) 420 Nature 722; Eli Kintisch, ‘Should Oceanographers Pump Iron?’ (2007) 318 Science 1368. See more generally a symposium on the ‘Implications of Large-scale Iron Fertilization of the Oceans’ in (2008) 364 Marine Ecology Progress Series 213.
[5] Philip Boyd, ‘Ironing out Algal Issues in the Southern Ocean’ (2004) 304 Science 396, 396 – 397; Sallie W Chrisholm, Paul G Falkowski and John J Cullen et al, ‘Dis-crediting Ocean Fertilization’ (2001) 294 Science 309. See more generally Rosemary Rayfuse, Mark Lawrence and Kristina Gjerde, ‘Ocean Fertilisation and Climate Change: The Need to Regulate Emerging High Seas Uses’ (2008) 23 International Journal of Marine and Coastal Law 297; Karen N Scott, ‘The Day after Tomorrow: Ocean CO2 Sequestration and the Future of Climate Change (2005) 18 Georgetown International Environmental Law Review 57, 93 – 104.
[6] Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, opened for signature 29 December 1972, 1046 UNTS 138 (entered into force 30 August 1975).
[7] Protocol of 1996 to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, opened for signature 7 November 1996, (1997) 36 ILM 7 (entered into force 24 March 2006).
[8] Having issued a Statement of Concern Regarding Iron Fertilization of the Oceans to Sequester CO2 in 2007 (LC-LP.1/Circ.14, 13 July 2007), the parties to the London Convention / London Protocol adopted, in 2008, Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilization. This Resolution asserted that ocean fertilization activities fell within the scope of the London Convention and Protocol and urged parties to proceed with caution and to authorise only legitimate research activities. An Ocean Fertilization Working Group was established (LC-LP.1/Circ.14, 13 July 2007) and produced a draft assessment framework for scientific research involving ocean fertilization (LC/SG 32/WP. 7, 28 May 2009); see also the Report of the Thirty-Second Meeting of the Scientific Group to the London Convention and the Third Meeting of the Scientific Group of the London Protocol (LC/SG 32/15 29 June 2009), [2.1]– [2.29] and annex 2. The legal and policy implications of ocean fertilization were explored in the Report of the 1st Meeting of the LP Intersession Legal and Related Issues Working Group on Ocean Fertilization (LP/CO2 2/5 20 February 2009). Both reports were discussed extensively at the Thirty-first meeting of the parties to the London Convention in October 2009 and the issue is due to be revisited in 2010 once the risk assessment has been completed. See the Report of the Thirty-First Meeting of the Parties to the London Convention and the Fourth Meeting of the Parties to the London Protocol (LC31 WP.5, 29 October 2009) [4.1]-[4.43]. It should also be noted that iron fertilization activities are in the process of being considered by the parties to the Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) and the parties initiated a review in 2008 in order to compile and synthesise available information on the potential impacts of iron fertilization (Decision IX/20 Marine and Coastal Biodiversity (2008), [3]; see also Decision IX/16 Biodiversity and Climate Change (2008), Part C. The draft Scientific Synthesis on the Impacts of Ocean Fertilization on Marine Biodiversity is available online at <http://www.cbd.int/marine/doc/scientific-synthesis-marine-peerreview-en.doc> at 23 November 2009.
[9] Resolution 9 (2009) Collection and Use of Antarctic Biological Material adopted at the XXXII ATCM affirms that the principles of the 1959 Antarctic Treaty and 1991 Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4 October 1991, 30 ILM 1455 (entered into force 14 January 1998) apply to prospecting activities and that the Antarctic Treaty System (ATS) is the appropriate system for regulating such activities. See further Alan Hemmings and Michelle Rogan-Finnemore (eds), Antarctic Bioprospecting (2005); Julia Jabour-Green and Dianne Nicol, ‘Bioprospecting in Areas Outside National Jurisdiction: Antarctica and the Southern Ocean’ [2003] MelbJlIntLaw 15; (2003) 4 Melbourne Journal of International Law 76.
[10] This dispute culminated in, but was by no means resolved by, domestic litigation within Australia. See Humane Society International Inc. v Kyodo Senpaku Kaisha Ltd [2008] FCA 3 and Joanna Mossop, ‘Opposing Japanese Whaling in the Southern Ocean: the International Law Implications of Contrasting Approaches’ (2008) 11(3 & 4) Asia Pacific Journal of Environmental Law 221.
[11] For a succinct introduction to the relationship (or lack thereof) between the concepts of MSR, military research and hydrographic surveying see Sam Bateman, ‘Hydrographic Surveying in the EEZ: Differences and Overlaps with Marine Scientific Research’ (2005) 29 Marine Policy 163.
[12] Article I of the Antarctic Treaty stipulates that:

1. Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military manoeuvres, as well as the testing of any type of weapons.

2. The present Treaty shall not prevent the use of military personnel or equipment for scientific research or for any other peaceful purpose.
[13] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). See generally, Florian Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and Other Platforms in International Law (2005).
[14] Article 240 of 1982 UNCLOS set out four basic principles for the conduct of scientific research, which must be: exclusively peaceful; conducted with appropriate scientific methods and means compatible with UNCLOS; not unjustifiably interfere with other legitimate uses of the sea; and comply with all relevant environmental provisions of UNCLOS. Further details are set out in Parts XIII (Marine Scientific Research), XII (Protection and Preservation of the Marine Environment) and XI (The Area) of UNCLOS. Depending on the nature and the impact of research activities other instruments of application to environmental or security matters may also be relevant. For example, it was noted above that state-parties to the 1972 London Convention and the 1992 Biodiversity Convention are in the process of considering scientific research activities relating to iron fertilization experiments.
[15] Limited coastal state control over foreign research vessels is provided for in Part XIII of UNCLOS and is discussed further below.
[16] Although seven states (Argentina, Australia, Chile, France, Norway, New Zealand and the United Kingdom) maintain historical claims to the continent of Antarctica and associated maritime zones, these claims have been effectively set aside by art IV of the 1959 Antarctic Treaty.
[17] Preamble, 1982 UNCLOS, emphasis added. See further Christopher Joyner, ‘The Antarctic Treaty System and the Law of the Sea – Competing Regimes in the Southern Ocean?’ (1995) 10 International Journal of Marine and Coastal Law 301; Bernard Oxman, ‘Antarctica and the New Law of the Sea’ (1986) 19 Cornell International Law Journal 211.
[18] International Convention for the Regulation of Whaling, opened for signature 2 December 1946, 161 UNTS 74 (entered into force 10 November 1948).
[19] Article VIII of the ICRW permits states to issue permits in respect of scientific whaling and although it obliges such states to provide the Scientific Committee with the results of that research, the Committee lacks a meaningful mandate to regulate the issue of scientific whaling permits.
[20] See the documents cited in n 8, above.
[21] The Antarctic Treaty area is defined as the area south of 60˚ south Latitude including all ice-shelves in art VI of the Treaty.
[22] R E Guyer, ‘The Antarctic System (1973) 139 Hague Recueil 149, 163; John Hanessian, ‘The Antarctic Treaty 1959’ (1960) 9 International and Comparative Law Quarterly 436, 471.
[23] F M Auburn, Antarctic Law and Politics (1982), 130.
[24] Ibid.
[25] 1958 Geneva Convention on the High Seas, opened for signature 29 April 1958, 450 UNTS 82, entered into force 30 September 1962.
[26] Article 2, Ibid.
[27] 1959 Antarctic Treaty, Art III(1).
[28] R R Churchill and A V Lowe, The Law of the Sea (3rd ed, 1999), 206.
[29] Agreed Measures for the Conservation of Antarctic Flora and Fauna, reprinted in W M Bush, Antarctica and International Law: A Collection of Inter-State Documents (1982) vol 1, 146-169.
[30] Convention for the Conservation of Antarctic Seals, opened for signature 1 June 1972, (1972) 11 ILM 251 (entered into force 11 March 1978).
[31] Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 20 May 1980, 1329 UNTS 47 (entered into force 7 April 1982).
[32] Convention on the Regulation of Antarctic Mineral Resource Activities, opened for signature 2 June 1988, 27 ILM 868 (not in force).
[33] 1989 CRAMRA, art 5(3).
[34] 1991 Environmental Protocol, art 1(b).
[35] 1991 Environmental Protocol, art 4(1).
[36] Article 238 of 1982 UNCLOS stipulates that ‘[a]ll States, irrespective of their geographical location, and competent international organizations have the right to conduct marine scientific research subject to the rights and duties of other States as provided for in this Convention.’
[37] 1982 UNCLOS, art 239.
[38] 1982 UNCLOS, arts 242 and 243.
[39] 1982 UNCLOS, art 244.
[40] R R Churchill and A V Lowe, above n 28, 24.
[41] 1982 UNCLOS, arts 192, 193 and 194.
[42] 1982 UNCLOS, art 196.
[43] See the discussion above at n 4 and n 5.
[44] 1982 UNCLOS, art 204.
[45] 1982 UNCLOS, art 206.
[46] Emphasis added.
[47] 1982 UNCLOS arts 140(1) and 143(1).
[48] 1982 UNCLOS, art 145.
[49] 1982 UNCLOS, art 143(3)(c).
[50] 1982 UNCLOS, art 1(1).
[51] For further discussion of the dispute relating to the status of the continental shelf surrounding Antarctica see: Stuart Kaye, ‘The Outer Continental Shelf in the Antarctic’ in A Elferink & D Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (2001) 125; P Vigni, ‘Antarctic Maritime Claims: “Frozen Sovereignty” and the Law of the Sea’ in A Elferink & D Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (2001) 85.
[52] 1982 UNCLOS, arts 2, 21 and 56.
[53] 1982 UNCLOS, art 245.
[54] 1982 UNCLOS, arts 246(2) and 246(3).
[55] 1982 UNCLOS, art 246(5)(a).
[56] 1982 UNCLOS, art 246(5)(b).
[57] 1982 UNCLOS, art 246(5)(d).
[58] 1982 UNCLOS, art 249.
[59] Emphasis added.
[60] Although EEZ or exclusive fishing zone (EFZ) claims were made as early as 1947 (Chile) this zone was not fully developed under international law until the late 1970s and arguably not universally accepted until the adoption of the UNCLOS in 1982. See further J C Phillips, ‘The Exclusive Economic Zone as a Concept in International Law’ (1977) 26 International and Comparative Law Quarterly 585.
[61] P Vigni, above note 51, 96.
[62] Ibid 95; Donald Rothwell and Stuart Kaye, ‘Law of the Sea and the Polar Regions: Reconsidering the Traditional Norms’ (1994) 18 Marine Policy 41, 49.
[63] See for example the Antarctic Treaty (Environmental Protection) Act 1980 (Australia) and the Antarctica (Environmental Protection) Act 1994 (New Zealand).
[64] 1982 UNCLOS, arts 194(1) and 197.
[65] 1959 Antarctic Treaty, art III.
[66] 1959 Antarctic Treaty, art VII.
[67] See further, Catherine Redgwell, ‘Environmental Protection in Antarctica: The 1991 Protocol’ (1994) 43 International and Comparative Law Quarterly 599; Davor Vidas (ed), Implementing the Environmental Protection Regime for the Antarctic (2000).
[68] 1991 Environmental Protocol, arts 3 and 8 and Annex I.
[69] 1991Environmental Protocol, art 3 and Annexes II and V.
[70] 1991 Environmental Protocol, art 16 and Annex VI (not in force).
[71] On the topic of emergency response and liability see further Louisa De la Fayette, ‘Responding to Environmental Damage in Antarctica’ in Gillian Triggs (ed), Antarctica: Legal and Environmental Challenges for the Future (2007) 109; Karen N Scott, ‘Liability for Environmental Damage in Antarctica: Annex VI to the Environmental Protocol on Liability Arising from Emergencies’ (2006) 14 Environmental Liability 87.
[72] 1991 Environmental Protocol, art 3.
[73] 1991 Environmental Protocol, art 8 and Annex I.
[74] 1991 Environmental Protocol, art 2 and Annex I.
[75] Resolution 2 (2005) Guidelines for Environmental Monitoring online: <http://www.ats.aq/
devAS/ats_meetings_meeting_measure.aspx?lang=e> at 23 November 2009.
[76] Ibid. Antarctic Treaty parties have from time-to-time made an attempt to define and elaborate these terms. See New Zealand: IP8 (XX ATCM, Utrecht, 1996), WP35 (XXI ATCM, Christchurch, 1997); Argentina: IP55 (XXI ATCM, Christchurch 1997); Russia: IP66 (XXII ATCM, Tromso, 1998); and Australia: WP19 (XXII ATCM, Tromso, 1998). All available through the Antarctic Treaty Secretariat website at <www.ats.aq> at 23 November 2009).
[77] SCAR, Marine Acoustic Technology and the Environment (WP 23) (XXV ATCM, Warsaw 2002), [4] <http://www.ats.aq/documents/ATCM25/wp/ATCM25_wp023_e.pdf> at 23 November 2009.
[78] Only one IEE has been carried out to date in connection with iron fertilization experiments. An IEE was undertaken by New Zealand in 1998 in respect of the voyage of the Tangarora in 1999, which supported research into the impact of iron on phytoplankton growth.
[79] The Committee on Environmental Protection (CEP) was established under art 11 of the 1991 Environmental Protocol.
[80]1991 Environmental Protocol, Annex I, art 3(4). Since 2007 all CEEs are reviewed by an intersessional contact group, which provides advice to the CEP.
[81] 1991 Environmental Protocol, Annex I, art 3(5).
[82] Ibid.
[83] 1991 Environmental Protocol, Annex I, art 3(6).
[84] 1991 Environmental Protocol, Annex I, art 3(6).
[85] 1991 Environmental Protocol, Annex I, art 4.
[86] For further discussion on this point, albeit in the context of terrestrial scientific research see Scott, n 2, 145 – 146.
[87] A bare description of this project can be found on the environmental impact assessment (EIA) database supported by the Antarctic Treaty Secretariat: <http://www.ats.aq/devAS/ep_eia
_list.aspx?lang=e> at 23 November 2009.
[88] These projects are noted and, in some cases, described in detail on the EIA database noted ibid.
[89] Annex II of the 1991 Environmental Protocol was revised at the XXXII ATCM held in Baltimore in 2009 (Measure 16 (2009) Amendment of Annex II to the 1991 Environmental Protocol). The revised text is not yet in force. Unless otherwise specified all references to Annex II relate to the original text. Revised text: Measure 16 (2009) Attachment, Annex II to the Protocol on Environmental Protection to the Antarctic treaty: Conservation of Antarctic Fauna and Flora, <http://www.ats.aq/documents/recatt/att432_e.pdf> at 23 November 2009.
[90] 1991 Environmental Protocol, Annex II, art 3(2)(c).
[91] 1991 Environmental Protocol, Annex II, art 3(3).
[92] Although early negotiations in connection with the revision of Annex II contemplated a broader Annex with greater application to the marine species, most of these proposals were not included in the final revised text. See for example the bold revisions proposed by the United Kingdom in 2006: UK, Review of Annex II of the Environmental Protocol (WP 44) (2006) (XXIX ATCM, Edinburgh 2006) <http://www.ats.aq/documents/ATCM29/att/ATCM29_att065
_e.doc> at 23 November 2009.
[93] 1991 Environmental Protocol, Annex II, art 3(5).
[94] 1991 Environmental Protocol, Annex II, art 3(6). See also the SCAR Code of Conduct for the Use of Animals for Scientific Purposes in Antarctica, <http://www.scar.org/about/constitution/animalconduct.html> at 23 November 2009.
[95] 1991 Environmental Protocol, Annex II, art 4.
[96] The revised art 4(7) of Annex II to the 1991 Environmental Protocol merely stipulates that ‘[e]ach Party shall require that precautions are taken to prevent the accidental introduction of micro-organisms (e.g., viruses, bacteria, yeasts, fungi) not present naturally in the Antarctic Treaty area.’
[97] 1991 Environmental Protocol, Annex V, art 3.
[98] Ibid.
[99] 1991 Environmental Protocol, Annex v, art 3(4).
[100] 1991 Environmental Protocol, Annex V, art 7(2).
[101] 1991 Environmental Protocol, art 2.
[102] Notwithstanding the reference to ‘dependent and associated ecosystems’ in art 2 (and indeed other articles) of the Protocol, state parties are required to regulate activities taking place within the Antarctic Treaty area (see for example art 3 of the Protocol). The scope of the Protocol’s application was discussed at the XXXII ATCM held in Baltimore in 2009 and the adopted Resolution 1 (2009) Enhancement of Environmental Protection up to the Antarctic Convergence, <http://www.ats.aq/devAS/ats_meetings_meeting_measure.aspx?lang=e> at 23 November 2009. The resolution recommends that parties cooperate in order to enhance the protection of the entire Antarctic marine ecosystem.
[103] 1991 Environmental Protocol, art 13(5). This provision is consistent with, and supportive of, art X of the 1959 Antarctic Treaty.
[104] It should be noted that art 3(4) of the Environmental Protocol requires parties to modify, suspend or cancel research and other programmes should they threaten to result in impacts on the Antarctic environment and its dependent and associated ecosystems which are inconsistent with the principles of the Antarctic Treaty system.

[105] A further challenge in the Antarctic is the presence of ice which makes the identification of the ‘coast’ and determination of baselines difficult. See further Donald Rothwell, ‘Antarctic Baselines: Flexing the Law for Ice-Covered Coastlines’ in A O Elferinki and D Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (2001), 49.
[106] The desirability of adopting a global code for marine scientific research has been suggested by other authors. See for example Katharina Bork et al, ‘The Legal Regulation of Floats and Gliders – In Quest of a New Regime?’ (2008) 39 Ocean Development and International Law 298; Philoméne Verlaan, ‘Experimental Activities that Intentionally Perturb the Marine Environment: Implications for the Marine Environmental Protection and the Marine Scientific Research Provisions of the 1982 United Nations Convention on the Law of the Sea’ (2007) 31 Marine Policy 210.

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