(1) Introduction This report provides an overview of the legal and policy developments in 2016 relating to Antarctica and focuses on the thirty-ninth Antarctic Treaty Consultative Meeting (ATCM), held in Santiago, Chile, from 23 May to 1 June; the nineteenth meeting of the Committee on Environmental Protection (CEP), held in Santiago, Chile, on 23–7 May; and the thirty-fifth meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), held in Hobart, Australia, on 17–28 October. After a discussion of general developments, the report focuses on a number of selected issues that were discussed at those meetings: safety and operational matters; environmental protection; tourism; climate change; bioprospecting; liability; managing fish stocks and illegal, unregulated, and unreported (IUU) fishing; and marine protected areas (MPAs). The Antarctica reports in the previous volumes of this Yearbook provide more comprehensive background information on the issues discussed (all reports and documents relating to the thirty-ninth ATCM can be found at < http://www.ats.aq/index_e.htm>; all reports and documents relating to the thirty-fifth CCAMLR meeting can be found at <https://www.ccamlr.org/>). (2) General Developments (A) 1959 Antarctic Treaty In 2016, no new states acceded to the 1959 Antarctic Treaty, and the number of consultative parties to the treaty remained at twenty-nine, with twenty-four additional non-consultative parties. Venezuela formally submitted a request for consultative status, noting that it had been a party to the Antarctic Treaty since 1999 and had engaged in regular scientific activity in the Antarctic since 2008 (2016 ATCM Report, para. 92). Japan and Ecuador supported the request (2016 ATCM Report, para. 93), and the ATCM more generally encouraged Venezuela to continue developing plans and strategies for attaining consultative status in the future (2016 ATCM Report, para. 94). As a consequence of this request, the ATCM decided to establish an inter-sessional contact group (ICG) with a mandate to review the existing criteria and procedures (including notification) relating to the grant of consultative party status. Chile, New Zealand, and Uruguay are the co-convenors of the ICG, and only consultative parties will be invited to provide input to the group (2016 ATCM Report, paras 97–8). The past year marked the twenty-fifth anniversary of the signing of the 1991 Environmental Protocol to the 1959 Antarctic Treaty, and the occasion was marked by a symposium held to celebrate and discuss its achievements (2016 ATCM Report, paras. 285–305). The protocol now has thirty-eight parties with the accession of Malaysia on 14 September 2016. Revised rules of procedure for the ATCM were adopted in Decision 2 (2016) at the thirty-ninth meeting and set out in an annex to Decision 2 (2016). The revised rules replace those adopted in 2015 (Decision 1 (2015)) and, in particular, provide additional clear guidance relating to the nomination of contact persons during formal inter-sessional consultation, the timely publication of ATCM reports in order to promote public awareness of its work, and clarity around the submission of papers to both the ATCM and the CEP. Additionally, the ATCM confirmed that seven organizations have observer status at meetings of the CEP (Decision 1 (2016)): the United Nations Environment Program; the Antarctic and Southern Ocean Coalition; the International Association of Antarctic Tour Operators (IAATO); the International Hydrographic Office; the Intergovernmental Panel on Climate Change (IPCC); the International Union for Conservation of Nature; and the World Meteorological Organization. The ATCM adopted a revised multi-year strategic work plan for the meeting (Decision 6 (2016), replacing the plan adopted in 2015 (Decision 4 (2015) (see Antarctica’s 2015 edition of this Yearbook). The plan identifies sixteen priority areas for the ATCM. The new priority items added in 2016 comprise: the implementation of the CEP’s Climate Change Response Work Programme; joint inspections; modernization of Antarctic stations in the context of climate change; hydrographic surveying; and visitor site monitoring (2016 ATCM Report, para. 159). Finally, the ATCM adopted Decision 5 (2016), setting out a revised consolidated list of the information that must be exchanged between the parties pursuant to the obligations set out under Articles III(1)(a) and VII(5) of the 1959 Antarctic Treaty. The Annex to this decision replaces the Annex to Decision 6 (2015) on information exchange. Specific changes relate to information associated with contingency plans for oil spills and other emergencies as well as information exchange relating to initial environmental evaluations and comprehensive environmental evaluations. (B) 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) In 2016, no state acceded to the CAMLR Convention. The CAMLR Commission (CCAMLR) currently comprises twenty-four member states plus the European Union, with eleven additional states having acceded to the convention. At the 2016 meeting, the commission noted that Ukraine was more than two years in arrears in respect of its budgetary contributions to the commission and, while it was permitted to participate in discussions, the commission agreed that Ukraine would not be entitled to block a consensus decision of other members in 2016 (2016 CCAMLR Report, para. 1.11). In a significant general development, the CCAMLR agreed to the terms of reference and supporting processes for a second performance review of the convention, due to commence in 2017 (2016 CCAMLR Report, paras. 9.5–9.11). (3) Safety and Operational Matters in Antarctica Search and rescue (SAR) was discussed as a regular agenda item at the 2016 ATCM with the United States, in particular, highlighting four SAR initiatives of relevance to Antarctica: the International Code for Ships Operating in Polar Waters, which is due to enter into force on 1 January 2017; the Global Aeronautical Distress and Safety System; the Medium Earth Orbit Search and Rescue System; and the Antarctic SAR Workshop, due to be held in 2016 (Information Paper 37 (2016)). The International Hydrographic Office reported that 90 percent of Antarctic waters are unsurveyed, and this poses a significant risk for vessels. Parties were urged to ensure that all their vessels use depth sensors and that they make this information available for hydrographic offices to improve hydrographic mapping (2016 ATCM Report, para. 27). Finally, the operation of unmanned aerial vehicles (UAVs), which had generated significant discussion in 2015 (see Antarctica’s 2015 edition of this Yearbook), were similarly subject to debate within the ATCM in 2016. Importantly, non-binding guidelines for the use of UAVs developed by the Council of Managers of National Antarctic Programmes Unmanned Aerial Systems Working Group (Working Paper 014 (2016)) were endorsed by the ATCM (2016 ATCM Report, para. 53). The system of open inspection was discussed at the 2016 ATCM with papers being presented by China (Working Paper 22 (2016), Argentina and Chile (Working Paper 44 (2016) and an Information Paper 72 (2016)), as well as Korea (Information Paper 102 (2016)). States not only noted the importance of the inspection scheme but also commented that stations in close proximity to one another were repeatedly inspected, and this created a burden on those stations (2016 ATCM Report, para. 192). The ATCM agreed to establish an ICG to consider inspections with a particular focus on exchanging information on good practice and promoting cooperation (2016 ATCM Report, para. 198). The ICG will be co-convened by the Netherlands, Korea, and the United States (2016 ATCM Report, para. 199). (4) Environmental Protection in Antarctica The most high-profile instrument adopted in 2016 was Resolution 6 (2016), confirming the ongoing commitment to the prohibition of Antarctic mineral resource activities other than for scientific research and support for the Antarctic mining ban. The ATCM, on the twenty-fifth anniversary of the signing of the 1991 Environmental Protocol, adopted Resolution 6 (2016) in order to reaffirm its commitment to Article 7 of the protocol (the ‘minerals ban’) to acknowledge the benefits to the Antarctic environment that have resulted from the ban and to ‘declare their firm commitment to retain and continue to implement this provision as a matter of highest priority to achieve the comprehensive protection of the Antarctic environment and dependent and associated ecosystems.’ The resolution was also motivated by desire to correct the regular misreporting in the media that the protocol comes to an end in 2048 (2016 ATCM Report, paras. 107–9). In more typical business, the 2016 ATCM adopted eight measures revising Antarctic specially protected areas management plans (Measures 1–8 (2016)). Measure 9 (2016) was adopted in order to amend the description of Historic Site and Monument no. 60 (Corvette Uruguay Cairn) to include a historic wooden pole. Furthermore, the ATCM adopted site guidelines with respect to Point Wild, Elephant Island, and Yalour Islands and the Wilhelm Archipelago (Resolution 2 (2016)). Two proposals for additions to the List of Historic Sites and Monuments were deferred pending the adoption of further guidance on approaches to heritage protection in Antarctica (2016 ATCM Report, paras. 69–71). An ICG was established by the CEP to work on this issue during the 2016–17 and 2017–18 inter-sessional periods (2016 ATCM Report, para. 72). Finally, additional clarity around the development of working papers containing proposals for the designation of Antarctic specially protected areas, Antarctic specially managed areas (ASMAs), and historic sites and monuments has been provided for in the guidelines set out in Resolution 6 (2016). Within the CEP, the most extensive discussion around protected area designation focused on China’s proposal to designate an ASMA at the Chinese Antarcic Kunlun Station, Dome A (Working Paper 29 (2016), 2016 CEP Report, paras. 138–45). Some states expressed reservations as to the necessity of an ASMA since proposed international science programs at Dome A had yet to be realized and there were no overlapping activities between multiple operators in the area at this stage (2016 CEP Report, para. 143). China agreed to lead informal inter-sessional discussions with a view to revisiting the proposal at the 2017 ATCM, due to be held in Beijing (2016 CEP Report, para. 145). More generally, the ATCM adopted revised guidelines for environmental impact assessment in Antarctica (Resolution 1 (2016)), replacing the guidelines set out in Resolution 4 (2005). Specifically, the CEP formally advised the ATCM that the draft CEE prepared by Italy with respect to the proposed construction and operation of a gravel runway close to Mario Zucchelli Station, Terra Nova Bay, Victoria Land generally conformed to the requirements of the 1991 Environmental Protocol (2016 ATCM Report, para. 52), and the impacts of the proposed runway were likely to be minor and transitory (see Working Paper 021 (2016)). Revised guidelines relating to the management of non-native species were also adopted at the 2016 ATCM in Resolution 4 (2016). The Annex to Resolution 4 (2016) sets out the revised Non-Native Species Manual, which has the overall aim ‘to protect Antarctic biodiversity and intrinsic biodiversity and intrinsic values by preventing the unintended introduction to the Antarctic region of species not native to that region, and the movement of species within Antarctica from one biogeographic zone to any other’ (Resolution 4 (2016), Annex para. 1(a)). The revised guidelines set out principles and detailed guidance to all operators designed to minimize the accidental introduction of non-invasive species to Antarctica. Finally, the ATCM endorsed the Scientific Council on Antarctic Research Code of Conduct for Activity within Terrestrial Geothermal Environments in Antarctica (Resolution 3 (2016)). The code recognizes the importance of terrestrial geothermal environments to a wide range of scientific disciplines and their vulnerability to human activity including disturbance and the introduction of non-native species. The code advocates the importance of responsible stewardship of these sites and sets out principles that should be considered during activities taking place within and around terrestrial geothermal environments as well as during related environmental impact assessment processes. (5) Tourism in Antarctica Preliminary estimates of the number of tourists visiting Antarctica during the 2015–16 season were approximately 5 percent higher than the 2014–15 season, with a total of 38,478 tourist visits as reported by the IAATO (2016 ATCM Report, para. 32). The IAATO noted that all but one of the commercial passenger operators under the Convention for the Safety of Life at Sea were members of the IAATO for the 2015–16 season. The exception was a Japanese-flagged vessel operating in the Antarctic peninsula without landing passengers (2016 ATCM Report, para. 32). However, less than half of the yachts identified as intending to sail to Antarctica were IAATO members (2016 ATCM Report, para. 265). Tourism remains a key priority for the ATCM, and, in 2016, New Zealand and India reported on the outcomes of the ICG set up in 2015 to develop a strategic approach to environmentally managed tourism and non-governmental activities (Working Paper 28 (2016)). Although the report encourages parties to work towards developing a common vision for tourism, the discussion within the ATCM in 2016 revealed that parties held a variety of positions on future regulation, ranging from full implementation of the existing provisions to developing new instruments and introducing a taxation system for tourists (2016 ATCM Report, paras. 242–56). The relatively new innovation of combined air and cruise tourism and its implications for both environmental impact and safety was the particular focus of the discussion (2016 ATCM Report, paras. 249–53). (6) Climate Change and Antarctica Climate change, which has been a regular ATCM agenda item since 2009, was once again the subject of designated discussion. The Scientific Committee on Antarctic Research presented Information Paper 35 (2016) on Antarctic Climate Change and the Environment: 2016 Update, which provides details on the biological and ecological impacts of climate change in Antarctica. Information was also presented by the IPCC (Information Paper 116 (2016)) and the World Meteorological Organization (Information Paper 12 (2016)). The ATCM reviewed the progress to date of the Climate Change Response Work Programme, which was established in Resolution 4 (2015) (see Antarctica’s 2015 report of this Yearbook) and, in order to facilitate work in this area, formally endorsed the admission of the IPCC as an observer to the CEP (Decision 1 (2016)) (2016 ATCM Report, paras. 46–50). In order to foster collaboration between the CEP and the CCAMLR in the area of climate change, a joint CEP–Scientific Committee–CAMLR workshop on climate change and monitoring was held in Punta Arenas, Chile, on 19–20 May. The workshop was designed to enhance information and sharing and cooperation between the two bodies in the context of the ATCM Strategic Plan (2016 ATCM Report, para. 41). The most important measure taken in 2016 in relation to climate change was the adoption by the CCAMLR of CCAMLR Conservation Measure 24-04 (2016) Establishing time-limited special areas for scientific study in newly exposed marine areas following ice-shelf retreat or collapse in Statistical Subareas 48.1, 48.5 and 88.3. The measure permits newly exposed areas of the seabed and water column following ice-shelf retreat or collapse located in selected areas in the Antarctic peninsula to be designated scientific special areas. Ice-shelf retreat is defined as the landward move of the ice front of more than 10 percent of the areal extent of an individual ice shelf, glacier, or ice tongue within any ten-year period from 2016 onwards. The collapse of an ice shelf is defined as the break up of an ice shelf, glacier, or ice tongue over a period that may be shorter than ten years. Special areas for scientific study may be established in two stages: the first of up to two years and the second stage for a period of ten years. Fishing within the special areas may be carried out for research purposes, subject to the terms of CCAMLR Conservation Measure 24-01 (2013) and the application of conservation measures to scientific research. The CCAMLR more generally discussed the impact of climate change on the Southern Ocean ecosystem and identified it as an important priority for the Scientific Committee (2016 CCAMLR Report, paras. 7.1–7.14). (7) Bioprospecting and Antarctica Bioprospecting was subject to minimal discussion in 2016. The issue was raised by Belgium at the ATCM, and, recalling previous resolutions relating to bioprospecting (Resolution 7 (2005), Resolution 9 (2009), and Resolution 6 (2013)), Belgium merely encouraged parties to report their activities relating to bioprospecting in Antarctica and reminded them that as bioprospecting was being addressed in other international forums, including the United Nations, it was important to make collective progress in the ATCM on this issue (2016 ATCM Report, para. 137). (8) Liability for Environmental Emergencies in Antarctica The slow progress of entry into force of Annex VI of the 1991 Environmental Protocol to the 1959 Antarctic Treaty (on liability arising from environmental emergencies) was again noted by the ATCM (2016 ATCM Report, para. 131), and it was reported that thirteen consultative parties had approved Annex VI (2016 ATCM Report, para. 129): Australia, Finland, Italy, the Netherlands, New Zealand, Norway, Peru, Poland, the Russian Federation, South African, Spain, Sweden, and the United Kingdom. Only five of those parties were applying domestic legislation implementing Annex VI pending its entry into force: Finland, the Netherlands, Norway, the Russian Federation, and Sweden. (9) Managing Fish Stocks and Regulating IUU Fishing in the Antarctic An important focus of discussion at the 2016 CCAMLR meeting was the meaning of the term ‘conservation’ in the context of Article II of the convention. Australia and the United States presented a joint paper arguing that ‘the singular objective of the Convention is the conservation of Antarctic marine living resources and that rational use must be consistent with this objective’ (2016 CCAMLR Report, para. 9.12). They argued strongly that the CCAMLR, as part of the Antarctic Treaty system, is explicitly different from most regional fisheries management organizations (RFMOs) and that this distinction was intended by the original parties that negotiated the convention. While other members agreed with this interpretation, Ukraine, Russia, and China argued that rational use is nevertheless central to the CCAMLR definition of conservation and that most RFMOs now adopt a precautionary approach towards fisheries management, reducing the distinction between the CCAMLR and RFMOs (2016 CCAMLR Report, paras. 9.12–9.21). IUU fishing continues to be an important item on the agenda of the CAMLR Commission. Various proposals designed to address aspects of IUU fishing were discussed in 2016. First was a proposal to revise CCAMLR Conservation Measure 10-09 to create a CCAMLR Record of Carrier Vessels and to create a new requirement prohibiting vessels registered to CCAMLR parties from using a vessel not on the CCAMLR Record of Carrier Vessels for trans-shipping purposes inside the convention area. The proposal was not successful but will be taken forward by the United States and by Australia for further work and will be re-presented at the thrity-sixth CCAMLR meeting (2016 CCAMLR Report, paras. 3.32–3.37). Second was a proposal to increase observer coverage for the krill fishery with the aim of achieving 100 percent observer coverage by 2020–21 (2016 CCAMLR Report, para. 6.6). A proposal to amend CCAMLR Conservation Measure 32-18 to prohibit the finning of all sharks caught in the CAMLR Convention area was also defeated notwithstanding a high level of support from commission members. Conservation Measure 32-18 prohibits directed fishing for sharks for their fins, but the proposed amendment would have prohibited the removal of fins from sharks caught incidentally. China argued that such an amendment would not contribute to the conservation of sharks in the convention area and would promote wasteful practices. Japan also expressed a lack of support for the proposed amendment and questioned whether shark finning actually occurred in the convention area (2016 CCAMLR Report, paras. 3.26–3.30). (10) MPAs Arguably the most important conservation measure adopted in the Antarctic in 2016 was the designation of the Ross Sea MPA by the CCAMLR Commission in CCAMLR Conservation Measure 91-05 (2016). The Ross Sea MPA has been subject to protracted and, at times, divisive debate within the commission, but, when it enters into force on 1 December 2017, it will comprise the largest MPA located in international waters. The Ross Sea is regarded as one of the most productive parts of the ocean and is one of the few locations remaining with a full community of top predators. The Ross Sea MPA is intended to provide opportunities to understand the ecosystem impacts of climate change distinct from fishing, and it has the following objectives: the conservation of the natural ecological structure, dynamics, and function of the Ross Sea region; the provision of reference areas for monitoring natural variability and long-term change; the conservation of areas of ecological importance, including foraging areas for land-based top predators, areas of significance to toothfish, and benthic communities; and the promotion of research and scientific understanding of krill (Conservation Measure 91-05 (2016) ). The MPA is divided into the General Protection Zone, the Special Research Zone, and the Krill Research Zone (Conservation Measure 91-05 (2016), para. 5). The provisions of Conservation Measure 24-01 apply to fishing in the research zones (other than for krill), and additional measures are set out to manage toothfish fishing within the MPA. The MPA will be reviewed every ten years (Conservation Measure 91-05 (2016), paras. 17–18), and Conservation Measure 91-05 (2016) has a designation period of thirty-five years, after which it will lapse if the commission does not reach consensus to reaffirm, modify, or adopt a new MPA (Conservation Measure 91-05 (2016), para. 20). Russia, which vociferously objected to the designation of the Ross Sea MPA until 2016, noted that ‘[i]n our view, this version takes full account of the balance between the MPA’s environmental goals and the legal rights and interests of States that conduct fishing in this region’ (2016 CCAMLR Report, para. 8.40). In other areas, progress was made on the development of a MPA network in the East Antarctica planning domain (EARSMPA), led by Australia. Significant concessions were made at the 2016 meeting whereby the seven proposed MPAs were reduced to three, the proposed closed system where multiple activities required commission approval was abandoned in favour of an open system allowing activities until a decision is made otherwise by the commission, and specific management provisions were removed in favour of the reliance on existing conservation measures. Nevertheless, the EARSMPA did not achieve the necessary consensus for adoption (2016 CCAMLR Report, paras. 8.74–8.84). The proposed Weddell Sea MPA, as supported by Germany, is at an earlier stage of development but appears to be benefiting from a more positive reception within the Commission (2016 CCAMLR Report, paras. 8.85–8.94). Nevertheless, Russia remains generally sceptical with respect to MPA designation, notwithstanding its concession in relation to the Ross Sea MPA, highlighting that there is no clear definition of what constitutes an effective MPA (2016 CCAMLR Report, para. 5.78). In relation to the South Orkney Islands southern shelf MPA adopted in 2009 (CCAMLR Conservation Measure 91-03), Russia and China expressed criticism in the context of the 2016 review that it was not regulated under CCAMLR Conservation Measure 91-04 (general framework for the establishment of CCAMLR MPAs), adopted in 2011 (2016 CCAMLR Report, paras. 5.81–5.83). Despite the success of the Ross Sea MPA in 2016, there is clearly some way to go before the CCAMLR achieves its objectives of establishing a representative network of Southern Ocean MPAs. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: email@example.com
Yearbook of International Environmental Law – Oxford University Press
Published: Dec 28, 2017
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