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Year in Review

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New Zealand Yearbook of International  Law [Vol 9, 2011]

THE ANTARCTIC TREATY SYSTEM

I. Introduction

The key Antarctic Treaty System1  (ATS) events of 2011 were the two annual diplomatic meetings, the Antarctic Treaty Consultative Meeting (ATCM) and the Meeting of the Commission established under the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).  These diplomatic  meetings  include  the  main  sessions of the advisory bodies,  the Committee for Environmental Protection (CEP) and the Scientific Committee for the Conservation of Antarctic Marine Living Resources (SC-CAMLR), established under the relevant international instruments.2  Although four Intersessional Contact Groups operated between the  33rd   and 34th   ATCMs,3    these  operated through electronic communications  and no Meeting of Experts was held in 2011. Five intersessional meetings of SC-CAMLR were held during 2011.4  No significant  New Zealand legislative activity relating to ATS obligations occurred during 2011, but this Year in Review reports advice received from the Minister of Foreign Affairs in relation to New Zealand’s implementing legislation for Annex VI of the Madrid Protocol on Liability Arising from Environmental Emergencies.

New Zealand continues to appear as a substantially engaged state within the fora of the ATS. Increasingly, maritime activities occupy its diplomatic attention, reflecting both the increasing  levels of activity in the Antarctic marine environment and the pressures these are seen as imposing  on both the natural environment and the regulatory structure and capacities of the ATS and New Zealand.

II. 1959 Antarctic Treaty5

The  34th  ATCM6  was  convened in  Buenos  Aires,  Argentina from 20 June to 1 July 2011. The previous  Year in Review7 reported that “[i]n comparison with previous meetings, the profile and outcomes of this ATCM may appear limited, with all 15 of the Measures8   adopted relating to the management of existing Protected Areas.” The same picture presents itself in relation to the 34th  ATCM, with all 12 of the Measures adopted relating to Protected Areas or Historic  Sites and Monuments. Whilst Area Protection and Management Plans (mediated by the CEP) form an important part of the business of the ATCM, it is but one of 16 items on the agenda of the CEP, and the entire report of the CEP is but one of 22 agenda items of the ATCM itself. Amongst  other 34th  ATCM agenda items attracting particular attention were: operation of the ATS, liability (implementation of Annex VI), tourism and non-governmental  activities (attention to safety and search and rescue are ongoing foci), inspections under the Antarctic Treaty and Madrid Protocol, science, implications of climate change and biological prospecting. These appear under-represented in the outputs of the meeting.9  Three administrative Decisions (Measures no longer current; Revised Rules of Procedure; and Secretariat Reports,  Programmes  and Budgets) and six hortatory Resolutions (strengthening support for the Madrid Protocol; revised guides on Management Plans and Working Papers relating to these (essentially administrative in focus); General and Site Guidelines for Visitors; and Non-native Species) were adopted. As the meeting occurred 50 years after the entry into force of the Antarctic Treaty there were 21 statements at a session commemorating  this event.10

New Zealand was involved in eight Working Papers (WP), four of which it tabled alone, the others with other Consultative  Parties, but only one Information Paper (IP).11 Generally, New Zealand tables similar numbers of WPs and IPs, but again contributed to a relatively high proportion of the WPs, which can only be tabled by Consultative Parties (28) or Observers (3). Three New Zealand WPs (one with the United States) concerned Management Plans for Protected Areas and a fourth with the United States concerned site guidelines for the “Taylor Valley Visitor Zone”, all in the Ross Sea region (the area claimed by New Zealand as the Ross Dependency) which is the focus of New Zealand Antarctic activity. New Zealand joined the United States, France, Germany and The Netherlands in a “Review of Tourism Rules and Regulations”, and with Australia and France in a “Proposed new approach to the handling of Information Papers”. New Zealand’s seventh WP concerned “Understanding concepts of footprint and wilderness related to protection of the Antarctic environment”. Finally, New Zealand tabled WP 34 in its capacity as convenor of the Intersessional Contact Group on Non-Native Species which recommended  further development of the Non-Native Species Manual and led to the adoption of Resolution 6, Non-Native Species, with the Manual attached as an Annex.12

The sole New Zealand IP was a joint paper with Norway and the United States concerned with events surrounding the Norwegian yacht Berserk in the southern  Ross Sea in February 2011,13 which had inter alia raised questions of whether it had been properly authorised by Norwegian authorities, alleged inadequate preparations prior to final departure from New Zealand and deficiencies in regard to information about the yacht’s intended locations and activities. The yacht landed a party of two who used all-terrain vehicles to drive to the South Pole and return to Scott Base before being flown back to New Zealand on a US Air Force aircraft. Meanwhile, on 22 February, a signal from an emergency beacon registered to the yacht was detected by New Zealand’s Regional Rescue Coordination Centre. A week long multinational search  and rescue  operation found only wreckage. The resulting  search attracted substantial media coverage.14 Debris, but no survivors, were found.

The Information Paper raised both specific and generic issues around the conduct of “unauthorised  expeditions in the Antarctic Treaty area”.15  The paper suggested these arose in relation to Measure 4 (2004) Insurance and contingency planning  for tourism  and non-governmental activities  in the Antarctic Treaty Area, Resolution  7 (2009) General principles of Antarctic tourism and Resolution 6 (2010) Improving the co-ordination of maritime search  and rescue  in the Antarctic  Treaty  area. It was suggested  that there “could be merit in exploring at the ATCM, possibly through the Tourism Working Group, guidelines for yachts and their related activities operating in Antarctica.”16 Norway also tabled an IP on the Berserk,17   and alongside consideration of a French WP concerned with an unauthorised French yacht within the Antarctic Treaty area, supporting discussion under Agenda item 10 Tourism and Non-Governmental Activities.18

This issue reinforces several points. First, that whatever formal obligations have been adopted by Parties at ATCMs, ensuring compliance prior to departure by some  non-governmental operators,  particularly operators  of individual vessels, continues  to pose challenges and may in fact require jurisdictional cooperation after the event to pursue alleged breaches of duty.19 Second, that conducting SAR in the circumstances of Antarctica is operationally  complex, inherently dangerous for those involved and invariably ties up already scarce multinational resources. Finally, that substantive discussion at ATCMs  is now as likely to proceed on the basis of un-translated Information Papers as translated Working Papers, reflecting both the de facto English language default within the system and an increasing informality in relation to at least those papers (howsoever categorised) tabled by Consultative Parties.

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

The 30th  Meeting of the Commission for the Conservation of Antarctic Marine Living Resources was held at the CCAMLR Secretariat in Hobart, Tasmania, Australia from 24 October to 4 November 2011.20
New Zealand again submitted a notification for exploratory fishing for Toothfish (Dissostichus spp.) in the Convention Area.21 New Zealand’s primary area of fisheries interest  is of course the Ross Sea, divided between CCAMLR Statistical Subareas 88.1 and 88.2. In the former, the precautionary catch limit (PCL) for the 2011/12 season was set at 3,282 tonnes across a maximum of four New Zealand, one Japanese, four South Korean, one Norwegian, five Russian, one Spanish and two United Kingdom flagged vessels.22  For Subarea 88.2, a PCL of 530 tonnes was set across a maximum of four New Zealand, three South Korean, one Norwegian, five Russian, one Spanish and two United Kingdom flagged  vessels.23   New Zealand vessels were also  included in the Dissostichus  allocations  in Statistical  Divisions 58.4.1 (off Wilkes Land): three of the ten vessels up to a PCL of 201 tonnes and 58.4.2 (Prydz Bay): one of five vessels up to a PCL of 70 tonnes.

New Zealand and the United States jointly tabled a proposal to amend an existing Conservation  Measure to report marine casualties to CCAMLR.24  In Commission discussion, the United States argued that the proposal was “consistent with art 94(7) of the UN Convention on the Law of the Sea (UNCLOS)  as  it applies  to  fishing  vessels operating under CCAMLR’s jurisdiction in the Southern Ocean.”25  The proposal  was supported  in an amended form (to address some CCAMLR Members’ concerns that maritime safety was not solely within the competence of CCAMLR) by the Standing Committee on Implementation and Compliance (SCIC) and reflected in a revised Conservation Measure 10-02 (2011) adopted at the meeting.26
Amongst the Background Papers tabled were two by New Zealand acting as CCAMLR’s Observer to two Regional Fisheries Management Organisation (RFMO) sessions in which it was anyway a leading participant.27

The most sensitive issue on which New Zealand tabled a paper at the 30th Meeting of the Commission  was around Marine Protected Areas (MPA) in the Ross Sea. For the last several years, a live public debate has been underway about the case for, and modalities of, increased area protection of the marine environment of the Ross Sea.28 This debate has seen New Zealand domestic and international environmental non governmental organisations, and a large number of Antarctic marine scientists, call for the placement of a large part of the Ross Sea in a no-take MPA.29 The substantive discussion of MPAs in the Commission focussed on separate proposals in New Zealand and United States’ papers which had been presented to SC-CCAMLR.30

New Zealand sought Members’ views on “appropriate protection targets for different objectives and on appropriate trade-offs between protection and rational use”.31  Indeed, much of the ensuing discussion appears to have been around the term “rational use”.32 New Zealand and the United States undertook to continue consultations and return to the Commission with proposals for the establishment of an MPA in 2012. Notwithstanding evident concerns on the part of key fishing states that harvesting not be adversely affected by any MPA, and some others that biodiversity be recognised  as a significant value, there appear to be some signs of convergence amongst Commission Members towards some sort of politically acceptable Ross Sea MPA. Clearly time will tell whether this is actually possible. Perhaps the harder task for New Zealand in particular will be persuading a wider extra-CCAMLR constituency, including parts of public opinion within New Zealand and international environmental and scientific communities,  that any resulting Ross Sea MPA will materially improve environmental protection in the Ross Sea, given deepening concerns.33

IV. New Zealand Legislative Activity

As for 2010,34  there was no further Parliamentary  progress during 2011 in relation to the Antarctica (Environmental Protection: Liability Annex) Amendment Bill 2009. In response to a letter from the author of this review concerning the present  status  of the Bill and whether the Government intended to progress it further,35  the Minister of Foreign Affairs was kind enough to respond as follows:

“It is regrettable that there has been no further progress on the Bill since November 2008, especially in light of New Zealand’s leadership in the negotiation of the Liability Annex.
Delays in the passage of this and other bills giving effect to international instruments have led me to ask officials to explore alternative  ways to expedite the passage of such bills. In the meantime I have elevated the priority of this bill from category 4 to category 3 which means that it is to be passed if possible this year.”36

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] (opened for signature 4 October 1991, entered into force 14 January 1998), art 1.
2     Madrid Protocol, arts 11 and 12; and Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR)  (opened for signature 5 May 1980, entered into force 7 April 1982), arts XIV and XV respectively.
3    Addressing Review of ATCM Recommendations,  Revision of Environmental Elements of Recommendation XVIII-1, Supervision of Antarctic Tourism, and Non-Native Species – the last convened by New Zealand.
4     Report of the Thirtieth Meeting of the Commission (Final report, Buenos Aires, Argentina, 2011) at [4.3] [“Final Report”]. The Final Report and other documents are available at the CCAMLR Secretariat website at <http://www.ccamlr.org/>.
5     Antarctic Treaty (opened for signature 1 December 1959, entered into force 23 June 1961).
6     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).
7     A D Hemmings  “Year in Review: The Antarctic Treaty System” (2010) 8 NZYIL 238.
8     Measures become legally binding. On Measures, Decisions and Resolutions  generally, see Decision 1 (1995).
9      That is, as a Measure, Decision or Resolution, although the discussion is of course recorded in the Final Report, above n 4.
10   All reproduced  in the Final Report, above n 4.
11   All papers submitted to the meeting are available at the Antarctic Treaty Secretariat website <http://www.ats.aq/devAS/ats_meetings_meeting.aspx?lang=e>. A total of 61 Working Papers, 137 Information Papers, 7 Secretariat papers and 1 Background Paper were tabled at the ATCM. Working Papers are the basis for substantive discussion at the ATCM, and translated by the Secretariat into the four official treaty languages. Information Papers are not ordinarily translated unless so requested by Parties or the Chair of the Working Group considering it.
12    Available at <http://www.ats.aq/devAS/ats_meetings_meeting_measure.aspx?lang=e>.
13    New Zealand, Norway, United States  “The Berserk  Incident, Ross  Sea, February 2011” (Information Paper 18, Buenos Aires, Argentina, 2011) [“Information Paper”].
14    “Search resumes for missing yacht” New Zealand Herald (New Zealand, 26 February 2011).
15    Information Paper 18, above n 13, at 4.
16    Information Paper 18, above n 13, at 5.
17    Norway “The legal aspects of the Berserk Expedition” (Information Paper 75, Buenos Aires, Argentina, 2011).
18    Final Report, above n 4, at 53-72.
19    Further in particular cases, issues in relation to particular individuals may recur in subsequent operating seasons. The organiser of the Berserk voyage, again attracted the interest of Norwegian and New Zealand authorities in the Draft Report of the Thirty-fifth Antarctic Treaty Consultative  Meeting (Antarctic operating season  2011-2012, Hobart,  Australia, 2011).
20    The Final Report, above n 4, and other documents are available at the CCAMLR Secretariat website at <http://www.ccamlr.org>.
21    New Zealand “Notifications of New Zealand’s  intention to conduct exploratory longline fisheries for Dissostichus spp. In 2011/12” UN Doc CCAMLR-X X X/16 (2011).
22    Conservation Measure 41-09 (2011) Limits on the exploratory fishery for Dissostichus spp. In Statistical Subarea 88.1 in the 2011/12 season.
23    Conservation Measure 41-10 (2011) Limits on the exploratory fishery for Dissostichus spp. In Statistical Subarea 88.2 in the 2011/12 season.
24   United States, New Zealand “A proposal to report marine casualties to CCAMLR” UN Doc CCAMLR-X X X/24 (2011).
25   Final Report, above n 4, at [2.55].
26   Conservation  Measure 10-02 (2011) Licensing and inspection obligations of Contracting Parties with regard to their flag vessels operating  in the Convention Area.
27   New Zealand “Observer’s report from the Second Preparatory Conference of the South Pacific Regional Fisheries Management Organisation” UN Doc CCAMLR-X X X/BG/41 (2011); and “Observer’s Report from the Seventh Session of the Commission for the Conservation and management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean” UN Doc CCAMLR-X X X/BG/42 (2011).
28   See The Last Ocean at <http://www.lastocean.co.nz/>, the Antarctic and Southern Ocean Coalition at <http://www.asoc.org/issues-and-advocacy/ross-sea-preservation> and the Antarctic Ocean Alliance at <http://www.antarcticocean.org/pdf/new/AOA-Ross-Sea-Report- ENGLISH.pdf>.
29   See for example, the argument and references in D Ainley and C Brooks “Exploiting the Southern Ocean; Rational Use or Reversion  to Tragedy of the Commons?”  in Daniela Liggett and Alan D Hemmings (eds) Exploring Antarctic Values (Gateway Antarctica Special Publication 1201, Christchurch, 2012).
30   United States “An MPA scenario for the Ross Sea region” UN Doc SC-CAMLR-X X X/9 (2011) and New Zealand “A Marine Protected Area scenario by New Zealand for the Ross Sea Region” UN Doc SC-CAMLR-X X X/10 (2011). A further New Zealand paper seems also pertinent in relation to concerns about environmental sustainability of fisheries action in the region, “Proposal for a CCAMLR-sponsored  research survey to monitor abundance of pre- recruit Antarctic toothfish in the southern  Ross Sea” UN Doc SC-CAMLR-X X X/7 (2011).
31   Final Report, above n 4, at [7.12].
32   Final Report, above n 4, at [7.10-7.23]. The sensitivities around the term “rational use” were earlier noted in Hemmings, above n 7, at 240.
33   See for example, S L Chown et al “Challenges to the future conservation of the Antarctic” (2012) 337 Science 158.
34   Hemmings, above n 7, at 242.
35   Letter to Murray McCully (Minister  of Foreign Affairs)  from Dr  Alan D  Hemmings, Canberra (3 April 2012) (on file with author).
36   The operative paragraphs of a letter to Dr Alan D Hemmings from the Murray McCully (Minister of Foreign Affairs) (28 May 2012). Full correspondence on file with author and International Law Group, University of Canterbury.