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Hemmings, Alan D --- "The Antarctic Treaty System" [2010] NZYbkIntLaw 14; (2010) 8 New Zealand Yearbook of International Law 238

Last Updated: 10 August 2015

THE ANTARCTIC TREATY SYSTEM

The key Antarctic Treaty System1 (ATS) events of 2010 were: the two annual diplomatic meetings, the Antarctic Treaty Consultative Meeting and the Meeting of the Commission for the Conservation of Antarctic Marine Living Resources; the convening of an Antarctic Treaty Meeting of Experts on Climate Change; and the signing of an Headquarters Agreement between the Chair pro tem of the Antarctic Treaty Consultative Meeting (ATCM) and the Minister of Foreign Affairs of Argentina, concerning the Antarctic Treaty Secretariat. Whilst the report of the Meeting of Experts was presented at the Antarctic Treaty Consultative Meeting, and the Headquarters Agreement was also signed at a special ceremony at this meeting, the events are sufficiently novel to warrant separate consideration in this review. Whilst no significant New Zealand legislative activity relating to ATS obligations occurred during 2010, this was unexpected given that an Antarctic Bill is presently before the New Zealand Parliament. Since this has not been noted in earlier reviews, some brief observations are made here.

The picture that emerges in relation to New Zealand in the fora of the ATS is of an active participant, whose contributions appear substantial, in terms of papers tabled and the apparent influence of those papers on the outcomes of the meetings.

I. 1959 Antarctic Treaty2

The 33rd ATCM3 was convened in Punta del Este, Uruguay from 3-14 May 2010. In comparison with previous meetings, the profile and outcomes of this ATCM may appear limited, with all 15 of the Measures adopted relating to management of existing Protected Areas. No legally binding obligations were entered into on any other matter before the ATCM, and no major new item for attention was evident. However, some further progress was made in relation to work on marine pollution risks and maritime safety, particularly in relation to ship-borne tourism, which has been a significant area of attention for ATCMs over the past five years.

New Zealand tabled ten Working and seven Information Papers,4 including its report on the Antarctic Treaty Meeting of Experts on the Management of Ship-borne Tourism in the Antarctic Treaty Area, held in Wellington in December 2009.5 The conclusions of that meeting contributed to the substantial ongoing work on tourism management and, particularly, maritime safety issues around Antarctic tourism. This report was one of seven New Zealand papers that addressed issues of human impact and maritime risks associated with Antarctic tourism. No legally binding Measures in relation to these matters were adopted at the 33rd ATCM, although three hortatory Resolutions were, and these show the influence of New Zealand’s papers. Substantial work on a polar shipping code and in relation to fuel carriage in the Antarctic, is currently underway under the auspices of the International Maritime Organisation (IMO) with the support of Antarctic Treaty Consultative Parties. Accordingly, the ATCM adopted Resolution 5 (2010) Coordination among Antarctic Treaty Parties on Antarctic proposals under consideration in the IMO which welcomed, inter alia, “the adoption by the IMO of a ban on the use and carriage by vessels of heavy grades of oil in the Antarctic Treaty area, following requests by the ATCM” dating to 2005.6 That prohibition was adopted at the 60th Session of the IMO’s Marine Environment Protection Committee (MEPC) in March 2010.7

Resolution 6 (2010) Improving the co-ordination of maritime search and rescue in the Antarctic Treaty area and Resolution 7 (2010) Enhancement of port State control for passenger vessels bound for the Antarctic Treaty area were also adopted.

Five New Zealand Working Papers concerned revised Management Plans for Antarctic Specially Protected Areas for which New Zealand has taken a leadership role. All five were included in the 14 Management Plans adopted by the meeting as Measures.

II. 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)8

The 29th Meeting of the Commission for the Conservation of Antarctic Marine Living Resources was held at the CCAMLR Secretariat in Hobart, Tasmania, Australia, from 25 October to 5 November 2010. Ambassador Don MacKay of New Zealand was Chair of the Commission.9

New Zealand again submitted a notification for exploratory fisheries for toothfish (Dissostichus spp.) in the Convention Area.

A significant concern at the 29th CCAMLR Commission meeting was, as previously in this forum, Illegal, Unregulated and Unreported (IUU) fishing activity in the Convention area. The Commission was advised that seven vessels had been reported as engaged in IUU fishing in the Convention area during the 2009/10 reporting period, and all were believed to be using gillnets rather than longlines. The Commission noted that estimates of IUU catches had risen since 2009. New Zealand tabled a paper on combating IUU fishing in the Convention area,10 and a Resolution to this effect.11 The Commission adopted Resolution 32/X XIX (Prevention, deterrence and elimination of IUU fishing).

In the krill fishery, harvesting occurred within three statistical sub-areas, but most of the catch in the reporting period 2009/10 was from one sub-area (48.1) and this was closed when the catch reached 99.8% of the trigger level (set at 155,000 tonnes). This was the highest ever krill catch in this sub-area, and the first time that any sub-area has been closed following the adoption of trigger levels.

The CCAMLR Convention defines “conservation” as including “rational use”,12 in distinction to the unqualified use of “conservation” in other Antarctic Treaty system instruments. At the 29th CCAMLR Commission meeting, in the context of discussions around marine protected areas that had occurred within CCAMLR’s Scientific Committee, the Commission noted that “discussion of how rational use can best be incorporated into MPA planning has relevance to the Scientific Committee, but that discussions of what types of activities constitute rational use and how to measure success in balancing rational use and conservation was primarily a Commission issue”,13 indicating the sensitive politico-legal aspects of a determination of a key Convention term.

III. Antarctic Treaty Meeting of Experts

An Antarctic Treaty Meeting of Experts on Climate Change was held in Svolvær, Norway from 6-9 April. It was mandated by the 32nd ATCM to consider the following matters:

1) Key scientific aspects of climate change and the consequences of such change to the Antarctic terrestrial and marine environment;

2) Implications of climate change to the management of Antarctic activities;

3) The need for monitoring, scenario-planning and risk assessments;

4) Outcomes of the UNFCCC Copenhagen negotiations relevant to the Antarctic; and

5) The need for further consideration of any of the above issues and manners in which this can be achieved.

Fifteen Consultative Parties and four Expert organisations participated at the meeting, tabling 16 papers. New Zealand tabled two papers, one prepared in conjunction with the United States14 and the other alone.15

The results of this ATME, as with the ATME on tourism, were reported to the 33rd ATCM.16 Amongst the recommendations of the ATME adopted by the ATCM were the addition of separate agenda items on climate change to future Committee for Environmental Protection (CEP) and ATCM agendas,17 and the recognition of climate change as a “high priority” issue on the agenda of the CEP.

IV. Headquarters Agreement for the Antarctic Treaty Secretariat

The Secretariat of the Antarctic Treaty is located in the Argentine capital, Buenos Aires, following Measure 1 (2003) and has in fact been operational since 2004. The Headquarters Agreement for the Secretariat was however, only signed between the Chair pro tem of the ATCM and Mr Jorge Taiana, the Minister of Foreign Affairs of Argentina, in a special ceremony during the 33rd ATCM in Punta del Este on Wednesday 12 May 2010. Mr Taiana used the occasion to express the usual pleasantries and reiterated that “Argentina has always been committed to the principles and goals of the Antarctic Treaty”. He noted that Argentina was “proud to have worked for more than 106 years at the oldest scientific station in Antarctica: Orcadas. Founded in 1904, it was the only permanent station in Antarctica for decades”. He went on to say that “I consider the choice of Buenos Aires as the Secretariat’s headquarters as an acknowledgement of this commitment, and I am here today to express my appreciation to you for choosing us”.18 One sees here the perfect encapsulation of Antarctic claimant interest in acquiring an institution of the Antarctic Treaty system.

V. New Zealand Legislative Activity

The Antarctica (Environmental Protection: Liability Annex) Amendment Bill 2009 is the means through which New Zealand seeks to implement its obligations in relation to Annex VI of the Madrid Protocol – Liability Arising from Environmental Emergencies – adopted in 2005.19 The international negotiations resulting in Annex VI were chaired by a senior New Zealand diplomat, Don MacKay. The Bill was introduced into the New Zealand Parliament on 24 June 2009, received its First Reading on 20 August and was referred to the Foreign Affairs, Defence and Trade Committee. The Committee’s report of 26 November 2009 supported the Bill and made no recommendation for any amendments.20 However, no further action on this Bill occurred during 2010, and it still awaits its Second Reading.21


Alan D Hemmings
Gateway Antarctica, University of Canterbury



1 “‘Antarctic Treaty system’ means the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments”: Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), art 1 (opened for signature 4 October 1991, entered into force 14 January 1998).
2 Antarctic Treaty (opened for signature 1 December 1959, entered into force 23 June 1961).
3 ATCMs address the full range of obligations under both the Antarctic Treaty and the Madrid Protocol, and the presently more limited reporting obligations under the Convention on the Conservation of Antarctic Seals (opened for signature 1 June 1972, entered into force 11 March 1978).
4 All papers submitted to the meeting are available at the Antarctic Treaty Secretariat website at <http://www.ats.aq/devAS/ats_meetings_documents.aspx?lang=e> . A total of 68 Working Papers and 130 Information Papers were tabled at the ATCM.
5 New Zealand “Chair’s Report – Antarctic Treaty Meeting of Experts on the Management of Ship-borne Tourism in the Antarctic Treaty Area” (2010) (Working Paper 1, XXXIII ATCM). On the hosting of this meeting, see Trevor Hughes “Year in Review: The Antarctic Treaty System” [2009] NZYbkIntLaw 18; (2009) 7 NZYIL 343-344.
6 Decision 8 (2005) Use of Heavy Fuel Oil in Antarctica.
7 See also Joanna Mossop “Year in Review: Law of the Sea and Fisheries” (2010) 8 NZYIL.
8 Convention on the Conservation of Antarctic Marine Living Resources (opened for signature 5 May 1980, entered into force 7 April 1982).
9 The Commission’s Final Report and other documents are available at the CCAMLR Secretariat website at <http://www.ccamlr.org/> .
10 New Zealand “Combating illegal, unregulated and unreported (IUU) fishing in the CCAMLR Convention Area: Proposal for additional action with respect to seeking non- Contracting Parties cooperation” UN Doc CCAMLR-X XIX/37 Rev. 1 (2010).
11 New Zealand “Proposed resolution on illegal, unreported and unregulated (IUU) fishing in the CCAMLR Convention Area” UN Doc CCAMLR-X XIX/36 Rev. 2 (2010).
12 Art II(2).
13 SC-CAMLR-X XIX at [5.18].
14 New Zealand and United States “Ross Island Wind Energy Project: Sustainability through collaboration” (Information Paper 11).
15 New Zealand “Antarctica and Global Change – keeping up with the Science” (Information Paper 13).
16 Norway and United Kingdom “Report from Antarctic Treaty Meeting of Experts on Implications of Climate Change for Antarctic Management and Governance: Co-Chairs’ Executive Summary with Advice for Actions” (2010) (Working Paper 63, XXXIII ATCM).
17 The Provisional Agenda for the 34th ATCM shows an agenda item 13: “Implications of Climate Change for Management of the Antarctic Treaty Area”.
18 Jorge Taiana “Speech at the Signature of the Headquarters agreement of the Antarctic Treaty Secretariat between Argentina and the Antarctic Treaty Consultative Meeting” (Final Report of the Thirty-Third ATCM, Punta del Este, 12 May 2010 at 229).
19 Measure 1 (2005) Annex VI to the Protocol on Environmental Protection.
20 Foreign Affairs, Defence and Trade Committee Antarctica (Environmental Protection: Liability Annex) Amendment Bill: Report of the Foreign Affairs, Defence and Trade Committee (New Zealand House of Representatives, Wellington, 2010). Available at: <www. parliament.nz>.
21 International Treaties List July 2011 (2011) Ministry of Foreign Affairs and Trade <www. mfat.govt.nz>.