Increasing Diversity and the Legal Criteria for Authorization
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This article was published in the 2003 of the New Zealand Journal of Environmental Law. For quotation-purposes, please use the published version: C.J. Bastmeijer, 'Tourism in Antarctica: Increasing Diversity and the Legal Criteria for Authorization', 7 New Zealand Journal of Environmental Law (2003), pp. 85-118.
Tourism in Antarctica: Increasing diversity and the legal criteria for authorization
Kees Bastmeijer*
Abstract Both the intensity and the diversity of tourist activities in Antarctica are increasing. Activities conducted in the Antarctic today include ski-expeditions, mountain climbing, marathons, long-distance swimming and scuba diving. In this article the question is discussed whether the Protocol on Environmental Protection to the Antarctic Treaty and the domestic implementing legislation of the Contracting Parties provide a system of clear normative criteria for authorizing Antarctic tourist activities. This question is answered in the negative. Although the Annexes to the Protocol have been incorporated into domestic law, most of the requirements and prohibitions are in fact 'conditions' for conducting activities in the Antarctic and do not provide clear guidance for the 'go-no go' decision. Article 3 provides more fundamental principles, but not all Contracting Parties consider this Article legally binding. Furthermore, the wording of this Article is not very clear, and in particular the consequences of Article 3(2)(b) in relation to tourist activities appear to differ from state to state. The laws of the various Contracting Parties seem to exclude the possibility of refusing authorisation for any activity that will not cause 'more than a minor or transitory impact'. Based on these findings, combined with the expectation that in the future the diversity of tourist activities will further increase, the author questions whether, in the longer term, the current legal system is strong enough to safeguard the Antarctic as a ‘natural reserve, devoted to peace and science’.
1. Introduction1
* C.J. (Kees) Bastmeijer is Senior Researcher and Lecturer Environmental Law at the Faculty of Law, Tilburg University, the Netherlands ([email protected]). This contribution is based on Chapters 6 and 8 of his dissertation The Antarctic Environmental Protocol and Its Domestic Legal Implementation, Kluwer Law International, IELP Series, Volume 65, The Hague, 2003 (ISBN 90 411 2064 5).
1 For a comprehensive discussion of the Antarctic Treaty System (ATS), see, amongst others, L.M. Elliott, 'International Environmental Politics, Protecting the Antarctic', St. Martin's Press, New York, 1994 and O.S. Stokke and D. Vidas (eds.), 'Governing the Antarctic', the Effectiveness and Legitimacy of the Antarctic Treaty System', Cambridge University Press, 1996. See also the ‘Handbook of the Antarctic Treaty System’, edited by John Heap and published by the US Department of State. The ninth edition of the Handbook is electronically available at
With the Protocol on Environmental Protection to the Antarctic Treaty, thirty Contracting Parties "commit themselves to the comprehensive protection of the Antarctic environment and dependent and associated ecosystems and (…) designate Antarctica as a natural reserve, devoted to peace and science".2 Since the adoption of this Protocol in 1991, the diversity of human activities has been increasing substantially. In this article the question is discussed whether the Protocol and the domestic implementing legislation of the Contracting Parties provide a system of clear normative criteria for authorizing human activities in the Antarctic. In discussing this question, attention is focused on the development of tourist activities, although it is noted that other types of Antarctic activities, such as scientific research activities, also increase.3 In Section 2, a brief introduction is presented to the Antarctic Treaty System and the protection of the Antarctic environment. In Section 3, the development of human activities in Antarctica since 1991 is discussed, followed in Section 4 by a discussion of the sub-questions: Are the different types of Antarctic tourism considered legitimate activities in Antarctica? Does the Protocol explicitly oblige the Contracting Parties to include in their domestic legislation a general permit requirement for conducting Antarctic activities and - if so - what are the criteria that constitute the legal framework for governments in making a ‘go - no go’ decision? What is the legal status of Article 3 and what are the consequences of its paragraphs for Antarctic tourism? To find answers to these questions, the relevant provisions of the Protocol as well as the domestic implementing legislation of a number of selected Contracting Parties have been analysed. The legislation of New Zealand, the United Kingdom and the Netherlands has been studied in detail, while the domestic legislation of several other Contracting Parties has been studied more generally.4 The main conclusions of this article are presented in Section 5.
2. Introduction to the Antarctic Treaty System and the protection of the Antarctic environment
Many of the important natural areas in the world receive the status of protected area from the state or states in whose territory these areas are situated. Based on the principle of territoriality, the state may subject all visitors to the area to domestic legislation in order to prevent any adverse impacts on the natural values. For example, all visitors to the Galapagos archipelago must comply with the relevant legislation of Ecuador.5 This
2 See Article 2 of the Protocol. 3 For example, more states may have the aim to conduct scientific research in Antarctica. See the Report 'Scientific Committee on Antarctic Research, Preparing SCAR for the 21st Century Science in Antarctica', 15 April 2000 (Introduction): "At the dawn of the 21st Century, there are more nations with increasing research capacity, and some of these will seek out opportunities to conduct research in Antarctica." The relevance of this quotation is underlined by recent plans of the Czech Republic and Estonia to build new research stations in Antarctica. 4 These Contracting Parties are: Australia, Finland, Germany, Japan, Norway, Sweden and the United States of America. 5 See B. Marks Clark and K. Perry, 'The Protection of Special Areas in Antarctica', in: F. Francioni and T. 3 is also the foundation for most international agreements on the protection of natural areas, as most of these agreements require the State Parties to take measures - including the adoption of legislation - to protect particular natural areas or species within their territory.6 This approach could not be followed with regard to Antarctica. Although during the first half of the 20th century, 7 states laid territorial claims to parts of the continent, the legitimacy of these claims was disputed. In 1959 the 7 claimant states and 5 other states involved in Antarctic research signed the Antarctic Treaty and in 1961 the Treaty entered into force. A central element of the Treaty is the 'agreement to disagree' with regard to the legitimacy of the sovereignty claims:7 The positions of all states in respect of the legal status of Antarctica are reserved and the Contracting Parties agreed to manage Antarctica collectively. Since 1961 other States succeeded in showing a substantial scientific interest in Antarctica and today 27 'Consultative Parties' are involved in the Antarctic decision-making process which is based on consensus. With the adoption of the Protocol on Environmental Protection to the Antarctic Treaty in 1991, the protection of the Antarctic environment forms – parallel to safeguarding peace and ensuring the freedom of scientific research – the third pillar of the Antarctic Treaty System (ATS). The Protocol establishes a comprehensive system of obligations and prohibitions, addressing most types of activities in the region south of 60 degrees South latitude. The conduct of mineral resource activities for other than scientific purposes is forbidden and all other activities must be subjected to a prior assessment of the environmental impacts. Fundamental environmental principles are laid down in Article 3 of the Protocol and permit requirements must be in place for taking or harmful interference with Antarctic flora and fauna, for introduction of non- native species in Antarctica and for entering Antarctic Specially Protected Areas (ASPAs). Furthermore, provisions on waste management must be respected and it is prohibited to damage any historic site or monument. A Committee for Environmental Protection (CEP) is established to advise the Antarctic Treaty Consultative Meetings (ATCMs) on the implementation of the Protocol and the further improvement of the protection of the Antarctic environment.8 Based on a advice from the CEP or on its own initiative, the ATCM may adopt additional measures (recommendations) in accordance with Article IX of the Antarctic Treaty.9 With the ratification of the Protocol by Japan in mid-December 1997, all 26 states that had consultative status at the time the Protocol was signed (1991) had ratified the Protocol. Consequently, the Protocol entered into force on 15 January 1998.10 As Greece, a non-consultative Contracting Party to the Antarctic Treaty, has also signed
Scovazzi (eds.), 'International Law for Antarctica', 2nd edn, Kluwer Law International, The Hague, 1996, pp. 293-318. Marks and Perry briefly describe some models of protected area systems in various parts of the world, including the Galapagos archipelago. 6 See, for example, Articles 3 and 4 of the UNESCO Convention for the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972. 7 Article IV of the Antarctic Treaty. 8 The CEP is established by Article 11. Its functions are set out in Article 12. 9 See Article 10, paragraph 1, under b) of the Protocol. 10 See Article 23 of the Protocol. 4 and ratified the Protocol and in a later stage Bulgaria, Ukraine and Romania have acceded to it, at present 30 states are Contracting Parties to the Protocol.11 Because Antarctica is not the subject of undisputed state sovereignty, the legal protection of the Antarctic environment depends on the collective efforts of these 30 Contracting Parties to the Protocol. Each state must take measures to ensure that activities in the Antarctic - initiated by persons under its jurisdiction - are carried out in accordance with the provisions of the Protocol.
3. Development of human activities in Antarctica since 1991
At the time the Protocol was signed in October 1991, most of those were travelling to the Antarctic Treaty area did so to conduct scientific research; however, since 1991 the number of non-scientific expeditions has been increasing fast. From the start of Antarctic tourism in 1956 until 1989/1990, approximately 1000 to 2000 tourists visited Antarctica each season. In the 1993-1994 season the tourists visiting Antarctica outnumbered the scientists for the first time. In the last three seasons (1999-2003), between 12,000 and 15,000 tourists visited the Antarctic.12 As well as the intensity, also the diversity of these non-governmental activities is increasing. Besides ship-based tourism, other types of human activities have been initiated. Activities conducted in the Antarctic Treaty area today are listed below. The list is not exclusive and the quotations are just examples:13 - Fly-Sail or Fly-Cruise operations: tourists are brought to the Antarctic area by aircraft where they will make excursions on a yacht or cruising vessel: “Antarctica XXI, is proud to offer the first Antarctic cruise that perfectly combines flying and sailing, all in one trip, to this fascinating end of the planet.”14 - Antarctic cruises by large ships: "At least eight large cruise ships with passenger capacities in excess of 500 are now expected to conduct operations in the Antarctic Peninsula region during the 2003-04 austral summer." 15 - Antarctic overflights: "Four overflights of East Antarctica are currently planned for the 2003-04 austral summer by the Australia-based tour company Croydon Travel."16
11 For an overview of the Contracting Parties to the Protocol and dates of signature and ratification of the Protocol, see
- Eclipse viewing flights: "US-based tour company Travel Quest International (TQI) is offering eclipse chasers the opportunity to observe this year's total eclipse of the sun from a jet aircraft high above the interior of Antarctica in November."17 - Ski expeditions: "'Ski to the South Pole with Peter Hillary".18 - Mountain climbing and snow board adventures: "US adventurer Doug Stoup has scheduled an attempt to climb and snowboard 4,852-m high Mount Tyree in Ellsworth Land for November 2003."19 - Kayaking: "Kayakers (…) completed their five week, 700 km self-supported kayaking journey down the western side of the Antarctic Peninsula when they reached the northern tip of Adelaide Island on 19 February."20 - Marathons: “The next Antarctica Marathon will be February 26, 2005. We are now SOLD OUT. We are accepting deposits for a waitlist.”21 - Cross continent expeditions: "A UK athlete who has spent the last seven years running across six continents as part of an 'around-the-world' journey, has announced that he intends to "run across Antarctica in 2004".22 - Long distance swimming: "US long-distance swimmer Lynne Cox made two swims from a tourist ship in Antarctic Peninsula waters last month. […] Cox's stated goal was to become the first person to swim a mile in Antarctic waters".23 - Scuba diving: "We are the only company in the world to offer camping, mountaineering, glacier walks, iceberg climbing, sea kayaking and scuba diving on an Antarctic ship-based expedition."24 - Helicopter over flights25 and other uses of helicopter(s) for tourist activities;26 - Photography, film and art projects;27 - Testing of new products: "The Antarctic Ice Prowler, a bicycle specially designed at The Art Institute of Pittsburgh for the extreme climate of Antarctica, was tested at the South Pole last winter."28 - Management trainings for companies;29
17 See ANAN 95, 26 March 2003: Second Eclipse viewing flight includes SGP sightseeing'. 18 See the 2000-2001 brochure of Aurora Expeditions, an Australian tour operator. 19 See ANAN 96, 9 April 2003: 'Mount Tyree attempt scheduled for November.' 20 See ANAN 42: 'Kayakers Reach Adelaide Island, Complete Journey'. 21 See, the website of ‘Marathons Tours and Travel’, - Scientific research for commercial purposes, e.g., 'biological prospecting';30 - Iceberg expeditions,31 and - Expeditions to collect meteorites for non-scientific purposes.32 It is likely that in the future the number and diversity of activities in Antarctica will further increase. As far as tourism is concerned, many persons seem to be in search of new challenges and the 'tourist market' will continue to react to that. Ten years ago, participation in an Antarctic cruise was special in itself; however, today, organisers must show their particular added value in relation to all the other operators. Consider the following phrase on the website of a tourist organisation:33 "No other trip offers so much of an itinerary and so much time ashore with so many leaders for this low of a price! JOIN US for 28 days in the Falklands, South Georgia and the Antarctic Peninsula (…)." Another touroperator developed a new 'product' to satisfy the tourist who finds the 'normal' cruises not adventurous any more. For 29,000 US dollars per person, an Australian operator offered for the 2000-2001 season a ski expedition to the South Pole. The brochure states:34 "We will fly in an Adventure Network International Hercules C130 aircraft from the southern Chilean city of Punta Arenas to a 'base camp' at 80 degrees South. After checking our equipment, a ski equipped aircraft will fly us to a point 200 kilometres from the Pole. Watching the plane fly away as you stand in the middle of the Polar Plateau will be a very powerful 'out-of-this-world' sensation (...). (...) We hope to ski 15-20 kilometres per day, and our aircraft will collect us at the Pole for the flights back to base camp and then Punta Arenas." The aim of including this quotation is not to give a value judgement on this particular expedition or company. The aim is just to show the trend that people are searching for new adventure and 'out-of-this-world' sensations. The first tourist travelling to outer space in 2001 illustrates this trend even more literally. One commentator describes how human activities may develop until 2010, "a look in the (ice) crystal ball":35 "there will be pressures to move to larger, less specialised Antarctica. The Mission is to assist Robert Swan in making waste-management in Antarctica sustainable and to apply these key leadership and management principles in the workplace and communities back home.” 30 See A. Jackson (ed.), 'On the Antarctic Horizon’, Proceedings of the International Symposium on the Future of the Antarctic Treaty System, Ushuaia, Argentina, 20 - 24 March 1995, p. 94: "In the last few months we have seen a proposal for a new commercial use of Antarctica which will be to take microbial samples from Antarctic soils." See more recently doc. XXV ATCM/WP 43, 'Biological prospecting in Antarctica', United Kingdom, 2002: "Antarctica is far from immune to the considerable expansion in bioprospecting". 31 See, for example, ANAN 39: 'B15 Iceberg Expedition Faces Challenging Pack Ice Conditions'. 32 Meteorites are also collected for scientific purposes. See, for example, the site of the Japanese National Institute of Polar Research: "Existing industries established in the region continue expansion. Tourism continues to grow and diversify. Over the period, tourist numbers rise to hundreds of thousands annually. (…) The increasing scale of activities is accompanied by establishment of infrastructure ashore in Antarctica and some subantarctic islands, and longer residence time, including winter stays, for a subset of tourists and support staff. Most tourists are flown into the Antarctic. (…) There is decay of the direct linkage of tourism with place – second and third generation tourism includes 'anywhere' activities such as casinos, high- grade restaurants, shopping and other vicarious experiences." Except for tourism, other types of non-governmental activities may also developed further. For example, research for commercial purposes - in particular bioprospecting - is in development. Someone might have the idea to build a conference centre and fly in the participants in management courses and in-company training.40 The exploitation of icebergs as a source of drinking water has also been identified as a possible future activity.41 These current developments and possible future developments underline the importance of the question of which criteria must be respected in deciding on the authorization of proposed Antarctic activities. 36 Ibid., pp. 38-39. Hemmings also discussed developments in fisheries in the southern oceans and global threats like climate change. 37 Ibid. 38 J. Hummel, 'Kiezen voor bepaalde categorieën ecotoeristen’, 9 Circumpolar Journal, (1994), 3-4, pp. 17- 21. 39 Draft UNEP Global Environment Outlook (GEO-3), June 2001. This phrase is not included in the final version of GEO-3. See: 4. The increasing diversity of tourism activities: relevant provisions of the Protocol 4.1 Legitimacy of Antarctic tourism under the Protocol The Protocol42 As far as the legitimacy of tourism in Antarctica is concerned, the Protocol does not establish any value judgements regarding these activities. Antarctica appears to be open for anyone, regardless of his or her interests in Antarctica, as long as the standards of the Protocol (in particular Article 3 and the Annexes to the Protocol) are respected.43 Whether an Antarctic activity is organised or sponsored by a government or a non- governmental entity in principle does not determine whether that activity may proceed. The report by Working Group II of the first Madrid session of the XIth Special Antarctic Treaty Consultative Meeting (SATCM, 1991), states:44 "Working Group II agreed that the provisions of the Environmental Protocol and its Annexes would apply equally to Governmental and non-governmental activities." However, this should not give the impression that while negotiating the Protocol, Consultative Parties were not concerned about the development of tourism and other non-governmental activities in Antarctica.45 For example, the report by Working Group II of the Chile session of the XIth SATCM (1990), states: "Consideration was also given to the convenience of carrying out tourist activities by maritime means. This would avoid the proliferation of terrestrial support infrastructure in Antarctica. It also considered the possibility of establishing duly monitored special tourist interest areas, in order to determine the impact of human presence on the environment and its feasibility as a management scheme." These considerations did not result in specific provisions on tourism in the text of the Protocol: "the prevailing view was that the Protocol and its Annexes should be designed to address generically all activities in Antarctica".46 42 For a detailed discussion on the "history of the regulation of tourism within the ATS", and the effectiveness of the Protocol for regulation Antarctic tourism, see M.G. Richardson, 'Regulating Tourism in the Antarctic: Issues of Environment and Jurisdiction', in: D. Vidas (ed.), 'Implementing the Environmental Protection Regime for the Antarctic', Kluwer Academic Publishers, Dordrecht, 2000, pp. 71-90. For a comprehensive overview of the "ATCM Papers, discussions, and Recommendations relating to tourism and non-governmental activities", see doc. XXV ATCM/IP 102, submitted by ASOC, 2002. 43 The general view is that fishery, whaling and sealing are not covered by the scope of application of the Protocol as these activities are subjected to separate international regimes. See Bastmeijer 2003, ‘The Antarctic Environmental Protocol and its Domestic Legal Implementation’, Kluwer Law International, IELP Series, Volume 65, The Hague, 2003, Chapter 4, Sections B.4 and C.4. 44 See the Final Report of the XIth SATCM, Madrid, Spain, 1991, p. 23. During various sessions of the SATCM in Viña del Mar, Chile (19 Nov. - 6 Dec. 1990) and Madrid, Spain (22-30 April, 17-22 June and 3-4 October 1991), the Consultative Parties drafted the text of the Protocol. 45 For an overview of the discussions on tourism within the ATS in the period before the Protocol was negotiated, see Richardson 2000, supra note 42, pp. 73-74. 46 Ibid, p. 75. 9 At the XVIth (1991) and XVIIth (1992) ATCM, the need for additional measures in relation to Antarctic tourism received substantial attention. At the XVIIth ATCM (1992) Chile, France, Germany, Italy and Spain tabled a draft Annex to the Protocol on tourism,47 however, the informal meeting prior to the XVIIth ATCM (9 and 10 November 1992) as well as the formal discussions at that ATCM showed that Consultative Parties had different views on the need for a separate Annex on tourism. 48 Various authors provide more information on this discussion and the arguments that were exchanged.49 In brief, one of the crucial arguments against a separate annex on tourism at that stage was that the Protocol already applies to all human activities, including tourist activities, and that a separate annex on tourism would adversely affect the adequate implementation and ratification of the Protocol. Nonetheless, several states "maintained that more precise regulation having legally binding force was required for such activities".50 At the XVIIIth ATCM (1994), consensus was reached on an approach that is not legally binding:51 The Meeting adopted Recommendation XVIII-1, which included a set of guidelines for visitors to the Antarctic as well as a set of guidelines for the organisers of non-governmental expeditions.52 Since 1994, the item of tourism and non- governmental activities has been discussed at each ATCM, but no substantial additional legal instruments to regulate Antarctic tourism were adopted.53 Since 2001, the need to take such additional measures has been receiving more substantial attention during the ATCMs.54 At the XXIVth ATCM (2001), "ASOC argued that the time had come for Antarctic Treaty Parties seriously to debate future moderation, and practical management, of Antarctic tourism".55 The ATCM "noted that there is an increase in the diversity of tourism activities, which may present new management challenges",56 and "agreed the importance of appropriate management of Antarctic tourism" and "agreed that the issue of tourism should be the subject of 47 Doc. XVII ATCM/WP 1, Draft Annex to the Protocol, 'Regulation concerning tourism and non- governmental activities'. See Richardson 2000, supra note 42, p. 77. 48 See the Antarctic Treaty System Handbook, eighth edition, pp. 2298-2300. 49 See, among others, Richardson 2000, supra note 42, p. 77 and G. Tanja, 'Bindende regulering van Antarctisch toerisme thans ongewenst', 9 Circumpolar Journal, (1994), 3-4, pp. 27-33. 50 Final Report of the XVIIth ATCM, 1992. 51 Final Report of the XVIIIth ATCM, 1994, paragraph 59: "(…) There was agreement that the objective at this Meeting was not to create new rules and regulations but to provide guidance to those visiting Antarctica and those organising and conducting tourism and non-governmental activities there." 52 Ibid., pp. 35-45. 53 Additional measures were adopted with regard to the issue of advanced notice and post-visit reporting: see Resolution 3(1995) and the Final Report of the XIXth ATCM, 1995, paragraphs 55-58. See also the Final Report of the XXth ATCM, 1996, paragraph 76. See also Richardson 2000, supra note 42, pp. 79-82. 54 Example of discussions at the ATCM on the legitimacy of other types of Antarctic activity than tourism are the discussions on the exploitation of Antarctic meteorites for non-scientific purposes and bioprospecting in Antarctica. See, for example, doc. XXV ATCM/WP 43, 'Biological prospecting in Antarctica', submitted by the United Kingdom, 2002. 55 See the Final Report of the XXIVth ATCM, 2001, paragraph 104. 56 See Ibid., paragraph 106. 10 detailed discussion at XXV ATCM".57 At the XXVth and XXVIth ATCM (2002 and 2003), several Contracting Parties and observers submitted papers on management of Antarctic tourism.58 Issues discussed during the last ATCM include the need to establish a tourism database, the safety aspects of Antarctic tourism (including navigation safety) and the development of site specific guidelines.59 For the issue of this article, it is interesting to note that the Final Report of the XXVIth includes one paragraph that provide a value judgement with regard to “adventure tourism”:60 “Several delegations agreed on the need of discouraging and not giving support to these risky activities even in the framework of the ATS. It would be necessary to make the difference between responsible and irresponsible tourist activities, discouraging the later.” The question whether future additional measures should be legally binding also received attention. Certain Contracting Parties argued that additional legally binding rules should be adopted to manage Antarctic tourism. For example, France proposed the development of a separate Annex to the Protocol on tourism.61 However, others expressed the opinion that there is no need to subject Antarctic tourism to additional legally binding regulations. The discussions will be continued at the XXVIIth ATCM (Cape Town, April-May 2004). To prepare these discussions, various contact groups have been established and for March 2004, an expert meeting on Antarctic tourism is planned.62 One of the reasons that certain Contracting Parties are reluctant to adopt additional legal instruments to regulate Antarctic tourism may be the success of the International Association of Antarctic Touroperators (IAATO), an impressive self-regulation initiative of the Antarctic tourism branch.63 IAATO was founded in 1991 by seven tour operators, and according to the IAATO website, part of the objective is "(t)o advocate, promote and practice safe and environmentally responsible travel to the Antarctic".64 Currently more than 50 organisations are (associated or full) members of IAATO.65 IAATO undertakes many initiatives to increase the environmental awareness of its 57 See the Final Report of the XXIVth ATCM, 2001, paragraph 112. See also doc. XXV ATCM/IP 108, 'Management of Antarctic Non-Government Activities – Australian comments'. 58 For the discussion on tourism at the XXVth ATCM (2002), see the paragraphs 101-114 of the Final Report. 59 For the discussion on tourism at the XXVIth ATCM (2003), see the paragraphs 129-152 of the Final Report. 60 Ibid, paragraph 149. 61 Doc. XXV ATCM/WP 02. See also doc. XXV ATCM/IP 108, 'Management of Antarctic Non- Government Activities – Australian comments'. 62 See the Final Report of the XXVIth ATCM (2003), paragraph 151. 63 For a discussion on the development of IAATO, see J. Splettstoesser, 'IAATO’s Stewardship of the Antarctic Environment: a History of Tour Operator’s Concern for a Vulnerable Part of the World', 2 International Journal of Tourism Research, (2000), pp. 47-55. 64 See Article II, section B) of the IAATO Bylaws, The domestic implementing legislation The implementing legislation of all Contracting Parties studied does not prohibit any type of human activity, other than those explicitly prohibited in the Antarctic Treaty and the Protocol (e.g., mineral resource activities for non-scientific purposes). Without giving any value judgements on the different types of Antarctic activities, in most Contracting Parties all activities seem to be subjected to the same complex of legal provisions (e.g., EIA requirements, requirements on the protection of flora and fauna, etc.). Apparently, and this is in line with the Protocol, the Contracting Parties did not want to close Antarctica to certain types of tourist activities. This is probably not due to a lack of awareness by the Contracting Parties of the developments in human activities in Antarctica. Also in the stage of developing the implementing legislation, there were concerns about the increasing pressure on the continent. For example, the discussion in the House of Commons in the United Kingdom (1994), it was stated: "I understand the attractions of tourism, but all visitors are a potential threat to the territory. However good the rules that are laid down for tourists, experience shows that the greater the number of visits, the greater the threat to wildlife. (…) Price alone at the moment may ration the flow of tourists to Antarctica, but in these days of increasingly cheap travel, we cannot assume that mass tourism will not turn its attention to Antarctica, if allowed to do so."68 Similar discussions took place in other parliaments when discussing Antarctica bills.69 However, these and comparable concerns did not result in decisions to adopt provisions in the implementing legislation that go beyond the Protocol. 66 See Article III (Membership), Section B of the IAATO Bylaws. 67 See, for example, the Final Report of the XXth ATCM, 1996, paragraph 84. 68 Parliamentary debates on the Antarctic Bill 1994, House of Commons, Second Reading, Hansard Debates, 25 February 1994, column 557-606, colum 573, statement by J. Ward. 69 See, for example, a statement by J. McLauchlan, Parliamentary debates on the New Zealand Antarctica (Environmental Protection) Bill, 23 November 1994, p. 5023: "When I came back to New Zealand I sat down and thought we needed to analyse what to do and our responsibility to this awesome place. We could deny people access to it, but I do not believe that that is right." 12 4.2 The decision whether an activity may proceed The Protocol The Protocol does not explicitly oblige the Contracting Parties to include in their domestic legislation a general permit requirement for conducting Antarctic activities.70 This raises the question whether Antarctic activities, such as Antarctic tourism activities, must be subjected to an explicit governmental decision on the authorization of the activity. For activities that proceed following the conduct of a Comprehensive Environmental Evaluation (CEE), Article 4 of Annex I to the Protocol states that "any decision on whether a proposed activity (...) should proceed, and, if so, whether in its original or in a modified form, shall be based on the CEE as well as other relevant considerations". This provision clearly implies that the Contracting Parties must ensure that, following the CEE, a governmental authority will take an explicit decision whether the proposed activity may proceed.71 This decision may take the form of a permit or any other type of written authorisation (e.g., certificate) or of the refusal of such an authorisation.72 With regard to activities that must be subjected to a Preliminary Assessment (PA) or Initial Environmental Evaluation (IEE), it is less clear whether these assessments should in all situations be followed by an explicit governmental decision to authorize or prohibit the proposed activity. On the one hand Article 8, paragraph 2 of the Protocol states that the EIA provisions of Annex I "are applied in the planning processes leading to decisions about any activities undertaken in the Antarctic Treaty area (…)". This wording indeed assumes that the EIA process will be followed by a 'decision'. Furthermore, Article 6, paragraph 1, under b) of Annex I to the Protocol requires the circulation of "an annual list of any Initial Environmental Evaluation prepared in accordance with Article 2 and any decisions taken in consequence thereof". The last phrase of this provision also implies a decision after each IEE.73 70 More specific permit requirements are laid down in Annex II on the protection of native flora and fauna and Annex V on the protection of special areas. 71 See also W. Polk, 'Welcome to the Hotel Antarctica: The EPA’s Interim Rule on Environmental Impact Assessment of Tourism in Antarctica', Emory International Law Review, Fall 1998, an internet publication, On the other hand, Article 1, paragraph 2, and Article 2, paragraph 2 of Annex I to the Protocol, state that if an activity is determined as having not more than a minor or transitory impact, the activity "may proceed". Based on this wording, it may be argued that the Protocol leaves room for a domestic system that requires no explicit governmental decision following a PA or IEE: as long as the likely impacts do not exceed the level of 'minor or transitory', the activity may proceed.74 This makes it questionable whether for PA and IEE activities an explicit governmental decision is required. The domestic implementing legislation Under the legislation of all selected Contracting Parties, all proposals for Antarctic activities and expeditions that fall within the jurisdictional scope of the legislation are subjected to an explicit decision by the government. Not only CEE activities but also activities subjected to (only) a PA and/or IEE require an explicit governmental authorisation. The Antarctica Act 1994 of the United Kingdom includes several explicit permit requirements for the conduct of Antarctic activities.75 The most essential permit requirement is included in Section 3, subsection 1, of the Act, stating that "(n)o person who is on a British expedition may enter or remain in Antarctica except in accordance with a permit granted under this section". In addition, Section 4 includes a permit requirement for any person that proposes to remain on a British station in Antarctica and Section 5 includes a permit requirement for British vessels or British aircraft that will enter Antarctica. Consequently, in theory, each Antarctic expedition that requires a permit under one or more of these provisions will first be subjected to an EIA in accordance with the Regulations and this EIA will be followed by a decision whether the expedition may proceed. The Protection of Antarctica Act 1998 of the Netherlands includes an explicit requirement to obtain a permit for an Antarctic activity if this activity is organised in the Netherlands. Section 8, paragraph 1, of the Act states that "(a)n organiser may not conduct an activity without a permit issued by Our Ministers." For the application of this permit requirement, it is not relevant whether the activity is likely to cause more than a minor or transitory impact or not. Formally, two Ministers are together competent to take the decision (the Minister of Housing, Spatial Planning and the Environment and the Minister of Agriculture, Nature Protection and Fishery), but these Ministers have mandated Bureau LASER to process the permit applications and to take the final decision on their behalf.76 Although the New Zealand legislation does not include an explicit permit requirement for conducting Antarctic activities as laid down in the legislation of the United Kingdom, the Netherlands and other Contracting Parties, in practice the EIA requirement to submit activities to EIA without linking this requirement to a permit system even though neither Article 8 of the Protocol nor Annex I make mention of permits." 74 See also Polk 1998, supra note 71. 75 See Bastmeijer 2003, supra note 43, subsection C.3.1 of Chapter 4. 76 See Bastmeijer 2003, supra note 43, subsection 6.5, under b) of Chapter 3. 14 process for all Antarctic activities to which the New Zealand legislation applies, is followed by a formal authorisation by the Minister of Foreign Affairs and Trade. For activities that were subjected to a Preliminary Environmental Evaluation (PEE), Section 17, subsection 4, of the Act states: "If the Minister determines that the activity is likely to have less than a minor or transitory impact on the Antarctic environment, the Minister shall notify the person that the activity may be carried out."77 Section 18, subsection 3, includes a similar provision on IEE activities and with regard to CEE activities, section 20, subsection 3, states: "The Minister shall, after considering the final environmental evaluation, notify the applicant- a) Whether or not the activity may be carried out; and b) Of any directions made by the Minister pursuant to section 10 of this Act." The Minister will take the decisions on the basis of the advice by an advisory panel, the Environmental Assessment and Review Panel (EARP). If the Minister decides to approve the proposed activity, he or she sends a letter that includes the following standard formulation:78 "I am pleased to advise that the proposed activities may proceed under the Antarctic (Environmental Protection) Act 1994, since they are likely to have less than a minor or transitory impact on the Antarctic Environment, so long as the following specific directions are met: (...)"79 Such directions are based on Section 10 of the Act, which Article also forms the basis for other directions, including, for example, the direction "to refrain from carrying out an activity" or "to modify, suspend or cancel the activity" in certain situations. Several other Contracting Parties also introduced systems according to which the government decides whether proposed activities may proceed. For example, the legislation of Japan requires that activities be part of an 'Antarctic Activity Plan' that has been certified by the Director General of the Environmental Agency of Japan.80 The 77 See also the document 'Preliminary Environmental Evaluation (PEE) Requirements, Information for Antarctica New Zealand Supported Activities', available via the website of ANZ: "The Minister of Foreign Affairs and Trade is finally responsible for authorising your proposal, and may also require you to follow directions under section 10 of the Act." 78 The standard formulation is a quotation from a number of authorisations that were issued by the Minister of Foreign Affairs and Trade for the 2000-2001 season. 79 The government of New Zealand provides an overview of the ‘authorisations’ for Antarctic expeditions in its Annual Report under Article 17 of the Protocol. See, for example, doc. XXV ATCM/IP 31, 'Annual Report of New Zealand Pursuant to Article 17 of the Protocol on Environmental Protection to the Antarctic Treaty', Annex I (overview of permits for the 2001-2002 season). 80 Article 5 of the Japanese Antarctica Act. 15 legislation of Germany,81 Finland82 and Sweden83 includes explicit requirements to obtain a permit, although the Swedish Act also includes the option to "grant exemptions (…) with respect to visits and activities having an insignificant impact with respect to environmental protection".84 The Norwegian system is comparable to the system of New Zealand: the Antarctic Regulations require proponents to give advance notice of Antarctic activities,85 and give the competent authority the right to change, postpone or prohibit an activity.86 An exceptional position is taken by the United States of America. Focusing on non- governmental activities the Final Rule on EIA of nongovernmental activities in Antarctica includes requirements for EIA, but no requirement to apply for an authorisation or permit. Furthermore, by contrast with the systems of New Zealand and Norway, the Final Rule provides no legal instruments for the U.S. government to prohibit an Antarctic activity as long as the specific prohibitions and requirements of U.S. law implementing Article 7 of the Protocol and the Annexes, are taken into account: "Under the Act, the U.S. government does not have any authority to prevent activities for which proper environmental assessments have been undertaken provided the proposed activities are not otherwise in conflict with U.S. law.”87 The Final Report of the XXVIth ATCM (2003) indicates that also other Contracting Parties may be in this position. In relation to adventure tourism, the Final Report (paragraph 150) states: “The issue of permits was discussed. It was noted that for some Delegations permits were not compulsory for these adventure expeditions.” 4.3. Article 3 of the Protocol It was concluded in the previous subsections that the Protocol and the domestic implementing legislation do not provide clear value judgements in relation to the different types of tourist activities in Antarctica. In principle, Antarctica appears to be open to everyone, regardless of his or her interests in Antarctica, as long as the standards of the Protocol are respected. Consequently, the question whether proposed Antarctic activities are in conformity with the provisions of the Protocol must in principle be answered on a case-by-case basis. To ensure this, most Contracting Parties 81 Article 3 of the German Antarctica Act. 82 Section 5 of the Finnish Antarctica Act. 83 Section 16 of the Swedish Antarctica Act. 84 Section 16, subsection 2, of the Swedish Antarctica Act. 85 Paragraph 9 of the Norwegian Antarctic Regulations. 86 Contracting Parties that incorporated the provisions of the Protocol through 'declaration' (e.g., Argentina, Chile and Italy) probably did not introduce a legal requirement of governmental approval of Antarctic activities, although these Contracting Parties may have introduced procedures in practice that ensure strong governmental involvement in proposed Antarctic activities, particularly with regard to scientific research activities. 87 Draft EIS for the Proposed Rule on EIA of Nongovernmental Activities in Antarctica, 2001, footnote 16 on page vii of the summary. See also pp. 4-17, second paragraph, of the draft EIS. 16 introduced permit systems or other systems according to which the government decides whether proposed activities may proceed. This raises the question of which normative criteria should be taken into account by the competent authorities in order to make this decision. In addressing this question, attention is focused on Article 3 of the Protocol. This provision includes principles that must be considered in the planning and conduct of all Antarctic activities: "(…) the provisions in Article 3 of the Protocol are comprehensive in the proper sense; they introduce a basis for a uniform standard to assess all human activity on the continent (…)".88 The specific prohibitions laid down in the Annexes to the Protocol are not discussed, although it is noted that also these provisions may have consequences for the question whether a proposed activity may proceed. For example, organising an expedition to cross Antarctica by using dog-sledges may not be permitted as Annex II to the Protocol prohibits the introduction of dogs into the Antarctic Treaty area. However, the primary purpose of most of the provisions in the Annexes to the Protocol appears to be setting requirements that must be taken into account when planning and conducting Antarctic activities, rather than prohibiting types of activities.89 First, the legal status of Article 3 is discussed. Did the signatory states, with the adoption of Article 3, intend to create a legally binding framework for Antarctic activities? The consequences of the most substantial paragraph of Article 3 - paragraph 2, sub b - for tourist activities are discussed next. The most relevant paragraphs of Article 3 are reproduced in the text box below. 88 See Blay 1992, p. 389. 89 This general characterisation of the provisions of the Annexes does not apply to the system of Antarctic Specially Protected Area (ASPA), established by Annex V. Article 3, paragraph 1 of this Annex provide for the possibility to designate any area as an ASPA "to protect outstanding environmental, scientific, historic, aesthetic or wilderness values, any combination of those values, or ongoing or planned scientific research". The ASPA system requires Contracting Parties to develop a management plan that regulates human activities in that area in detail. For example, the plan may prohibit any activity in a particular zone of the area or activities during the breeding season or even may prohibit a particular type of activity, such as tourism, in the whole area. Furthermore, the content of the plan will have legal status through the permit systems that must be incorporated into the domestic laws of the Contracting Parties (see Article 7, paragraph 1, of Annex V). For a discussion on the ASPA system, see Marks Clark and Perry 1996, supra note 5 and Bastmeijer 2003, supra note 43. 17 Article 3 of the Protocol: 1) The protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic values and its value as an area for the conduct of scientific research, in particular research essential to understanding the global environment, shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area. 2 2) To this end: 3 (a) activities in the Antarctic Treaty area shall be planned and conducted so as to limit adverse impacts on the Antarctic environment and dependent and associated ecosystems; (b) activities in the Antarctic Treaty area shall be planned and conducted so as to avoid: (i) adverse effects on climate or weather patterns; (ii) significant adverse effects on air or water quality; (iii) significant changes in the atmospheric, terrestrial (including aquatic), glacial or marine environments; (iv) detrimental changes in the distribution, abundance or productivity of species or populations of species of fauna and flora; (v) further jeopardy to endangered or threatened species or populations of such species; or (vi) degradation of, or substantial risk to, areas of biological, scientific, historic, aesthetic or wilderness significance; (…) 4) Activities undertaken in the Antarctic Treaty area pursuant to scientific research programmes, tourism and all other governmental and non-governmental activities in the Antarctic Treaty area for which advance notice is required in accordance with Article VII(5) of the Antarctic treaty, including associated logistic support activities, shall: a) take place in a manner consistent with the principles in this Article; and b) be modified, suspended or cancelled if they result in or threaten to result in impacts upon the Antarctic environment or dependent or associated ecosystems inconsistent with those principles. 4.3.1 The legal status of Article 3 of the Protocol The Protocol An important question for the issue of this contribution is whether the signatory states, with the adoption of Article 3, intended to create a legally binding framework for Antarctic activities. The title of Article 3 – 'environmental principles' - may be used as an argument for a negative answer. The vague wording of certain paragraphs of Article 3 (e.g., paragraph 1) may also support the interpretation that the principles are only meant to be general guidelines for the interpretation of the other provisions of the Protocol and its Annexes.90 90 An additional argument in favour of the interpretation that Article 3 does not create a legally binding framework for Antarctic activities may be that Article 3 of the Protocol is not mentioned in Articles 19 and 20 18 However, the text of several other paragraphs is much more concrete, in particular the wording of Article 3, paragraph 2, under b). Furthermore, paragraph 4 explicitly states that all activities "shall take place in a manner consistent with the principles in this Article". This formulation in relation to the wording of paragraph 2, under b)), makes it unlikely that all elements of Article 3 only aim to be guiding principles. In the literature, most authors take the view that the principles of Article 3 are meant to be legally binding. For example: "Although there has been some debate regarding whether the Article III principles are substantive in effect, the language certainly appears definite enough to conclude that the Parties intended the principles to impose legal obligations."91 Other authors also take the view that Article 3 imposes legally binding obligations,92and use the wording "binding environmental principles"93 or "legally binding principles".94 In addition to the use of clear and compelling wording, the history of Article 3 may also provide an argument for the interpretation that at least some of the paragraphs of Article 3 aim to have legally binding effect. Several authors95 have stated that Article 3 "is borrowed from Article 4" of the Convention for the Regulation of Antarctic Mineral Resource Activities (CRAMRA, Wellington, 2 July 1988). Paragraph 2 of that Article includes a very clear prohibition on undertaking an Antarctic mineral resource activity "until it is judged (…) that the activity in question would not cause" one of the effects listed in that paragraph 2. This list of adverse impacts is now included in paragraph 2, under b) of Article 3 of the Protocol. This Article 4 of CRAMRA has the title 'Principles Concerning Judgements on Antarctic Mineral Resource Activities'. This may explain why Article 3 got the title 'Environmental Principles': not because it was the intention to relating to the dispute settlement procedure. However, a counter argument is that Articles 19 and 20 only determine which disputes will be subjected to the (compulsory) dispute settlement procedures and do not intend to clarify the legal status of the provisions of the Protocol. See Bastmeijer 2003, supra note 43. See also Polk 1998, supra note 71, p. 8: "During the negotiations, the Bush Administration persuaded other nations to exempt Article III from the Protocol's compulsory dispute settlement procedures by asserting that the Article's principles were legally binding and should be enforced by each party against its nationals through domestic legislation." 91 Polk 1998, supra note 71, p. 7. 92 L. Pineshi, 'The Madrid Protocol on the Protection of the Antarctic Environment and its Effectiveness', in: F. Francioni and T. Scovazzi (eds.), 'International Law for Antarctica', 2nd edn, Kluwer Law International, The Hague, 1996, pp. 261-293, p. 277. 93 J.E. Meilke and M.A. Browne, 'Antarctica: Environmental Protection, Research and Conservation of Resources', a Congressional Research Service Report, 5 April 1995, The domestic implementing legislation A very indirect and implicit way of giving Article 3 legal meaning for Antarctic activities can be found in the legislation of the United Kingdom. According to Section 15, the Secretary of State shall have regard to the provisions of the Protocol in considering in any case whether to grant a permit, in considering the possible conditions to be attached to the permit and in exercising his power to make certain regulations. During the parliamentary debates it was stated that this section includes the obligation to have regard to the principles laid down in the Protocol:97 "The clause speaks of 'provisions'. That is a broad term covering everything in the protocol. For instance, it covers the principles set out in article 3, the specific obligations in the annexes or in articles such as article 10 - under which the parties to the protocol will define the general policy for the comprehensive protection of the Antarctic environment and adopt measures under the Antarctic treaty for the implementation of the protocol." The Netherlands has chosen a comparable approach to that of the United Kingdom: The environmental principles must be taken into account by the competent authorities, although the link with Article 3 of the Protocol is more explicit in the Dutch legislation. Article 4, under (g) states: "In exercising their powers pursuant to this Act, our Ministers shall take account of the fact that the importance of protecting the Antarctic environment in any event requires that (…) (g) activities are not carried out in a manner that is otherwise in conflict with the principles laid down in article 3 of the Protocol." Under Section 9, subsection 2, of the New Zealand Act, the competent authorities as well as any person undertaking Antarctic activities must respect the environmental principles: 96 For a discussion on the question to whom Article 3 should be addressed, see Bastmeijer 2003, supra note 43, p. 289-291. 97 Statement by M. Jopling, Parliamentary debates on the Antarctic Bill, 23 March 1994, p. 33. That the principles are not transposed in the Antarctic Act 1994 in a more explicit way is not surprising as also in other UK environmental legislation sections on principles or purposes are not included. According to B. Jones, "one suspect that the absence of general aims and principles in legislation is largely because in the United Kingdom the law is not an instrument by which Parliament dictates to government the fundamental principles which must characterize the latter's policies and acts and decisions". See B. Jones, 'Public Environmental Law in the United Kingdom', in: R. Seerden and M. Heldeweg (eds), 'Comparative Environmental Law in Europe, An Introduction to Public Environmental Law in the EU Member States', MAKLU Uitgevers, Antwerpen - Apeldoorn, 1996, pp. 395-423, pp. 403-404. 20 "'In achieving the purpose of this Act, persons exercising functions under this Act, and persons planning or carrying out activities in Antarctica, shall act in a manner consistent with the environmental principles set out in Article 3 of the Protocol." However, the Act does not state that the person who commits an offence against this provision will be liable, on conviction to imprisonment or to a fine. Concrete sanctions on violation are not available. Consequently, the primary responsibility to ensure compliance with the principles appears to be in the hands of the competent authority. Article 10 of the New Zealand Act provides instruments for this purpose. According to the first paragraph of this Article, "The Minister may direct any person carrying out, or proposing to carry out, any activity in Antarctica (…) c) To refrain from carrying out an activity in Antarctica if the Minister is not satisfied that the effects of the activity on the Antarctic environment will be consistent with the purpose and principles in section 9 of this Act. d) (…) e) To modify, suspend, or cancel the activity in order to avoid effects on the Antarctic environment which are inconsistent with the purpose and principles in section 9 of this Act;" The principles in Section 9 are the principles set out in Article 3 of the Protocol. The more general review of the legislation of other Contracting Parties provides a diverse picture with regard to the place of the environmental principles of Article 3 in the domestic legislation. Certain Contracting Parties make the competent authority responsible for application of the principles of Article 3. For example, Section 7A of the Australian Antarctic Treaty (Environmental Protection) Act 1980, states: "In exercising powers and performing duties under this Act, the Minister must act in a manner that is consistent with the basic environmental principles." Section 3(1) of the Act defines the term 'basic environmental principles' as "the environmental principles set out in Article 3 of the Madrid Protocol".98 Several other Contracting Parties decided to incorporate Article 3, paragraph 2, under b) almost literally in their domestic implementing legislation. For example, paragraph 4 of the Antarctic Regulations of Norway states:99 "Activities in the Antarctic shall be planned and conducted so as to have the least possible effect on the environment in Antarctica and dependent and associated ecosystems, and so as to preserve the value of the regions to research. In this connection, the activity must be prevented from leading to: - effects on climate or weather patterns, - effects on air or water quality, - changes in the atmospheric, terrestrial, glacial, limnetic or marine environment, 98 The Act includes other provisions that develop this general obligation in more detail. See, for example, Section 12J, subsection (2) of the Act. See also Bush 2000, pp. 326-327. 99 See also paragraph 1 of the Norwegian Antarctic Regulations, which provision describes the purpose of the Regulations based on the text of Article 3, paragraph 1 of the Protocol. 21 - changes in the distribution, occurrence or productivity of species or populations of animals or plants, - risks to endangered or threatened species or populations of such species, - risk of damage to areas of biological, scientific, historical or ethnic importance, or of significance to the region's characteristics as a wilderness, or - damage or other degradation of historical sites and cultural monuments." Paragraph 32 of the Regulations states that deliberate or negligent violation of this para- graph is punishable by fines or imprisonment. Another example of implementing legis- lation that codifies the content of Article 3, paragraph 2, under b) of the Protocol is the Antarctica Act of Germany. However, by contrast with the Norwegian legislation, under German law the competent authority is responsible for the application of this provision. Article 3, paragraph 4, of this Act states that "(a) permit may only be issued if the activ- ity in the Antarctic does not give cause to suspect any” of the impacts listed in that para- graph. This list is almost identical to the list of impacts of Article 3, paragraph 2, under b) of the Protocol. The legislation of Finland includes a similar provision. The above discussion shows that many Contracting Parties recognise Article 3 as a provision that should have legal effect for Antarctic activities. However, the legislation of the United States of America also shows that there is no consensus on this. The U.S. does not consider Article 3 to be a legally binding provision. Consequently, Article 3 was not addressed in the Antarctic Science, Tourism, and Conservation Act of 1996, which Act "amends the Antarctic Conservation Act of 1978 to implement the Protocol".100 The Final Rule on Environmental Impact Assessment of non- governmental activities in Antarctica, does not address the principles either: "In the view of the US administration, the principles of Article 3 reflect a statement of US policy rather than a set of integral legal obligations in the legislation. Although these environmental principles will be considered in the planning of US Antarctic activities, they will not be construed as legally binding obligations."101 The incorporation of Article 3 into domestic law was explicitly considered when developing the Proposed Rule on Environmental Impact Assessment of non- governmental activities in Antarctica.102 These regulations were subjected to an EIA and the Environmental Impact Statement described several alternatives. One of the alternatives (alternative 4) was characterised by the following element:103 "add a 100 The Antarctic Science, Tourism, and Conservation Act of 1996, Public Law 104-227, 2 October 1996, 110 Stat. 3034 (amending the Antarctic Conservation Act of 1978; Title 16 ('Conservation') of the U.S. Code, sections 2401, et seq.). See information paper XXII ATCM/IP 73, 'Report of the United States of America with respect to Article 13(1) of the Protocol on Environmental Protection tot he Antarctic Treaty)', May 1998. 101 C.C. Joyner, 'The United States: Legislation and Practice in Implementing the Protocol', in: D. Vidas (ed.), 'Implementing the Environmental Protection Regime for the Antarctic', Kluwer Academic Publishers, Dordrecht, 2000, pp. 417-437, p. 421. 102 USA Proposed Rule on EIA of Nongovernmental Activities in Antarctica, 2001. 103 Draft EIS for the Proposed Rule on EIA of Nongovernmental Activities in Antarctica, 2001, p. vii of the summary. 22 substantive requirement that compliance with the provisions of Article 3 of the Protocol be demonstrated in EIA documentation”.104 However, the U.S. government did not consider this alternative as a good option. The EIS states: “Article 3 of the Protocol is implemented through the Annexes to the Protocol and is not capable of direct implementation. Thus, it in and of itself does not impose mandatory requirements."105 The EIS does not provide any arguments for this statement.106 4.3.2 The consequences of Article 3(2)(b) for tourist activities The Protocol Compared to the other paragraphs of Article 3, paragraph 2, under b) uses more concrete and compelling wording. Although several elements may raise interpretation difficulties, this subparagraph appears to set the limits past which impacts on the Antarctic environment must be considered to be unacceptable. The consequence of Article 3, paragraph 2, under b) for CEE activities is quite clear: the authority that is competent to take the final decision in accordance with Article 4 of Annex I must take account of Article 3 and should refuse the permit or authorisation if it is expected (based on the CEE or otherwise) that the activity will have effects that must be avoided in accordance with Article 3, paragraph 2, under b). For activities subjected to a PA or IEE, the question with regard to the consequences of Article 3, paragraph 2, under b) is more complicated. Article 1, paragraph 2 and Article 2, paragraph 2 of Annex I to the Protocol explicitly state that activities 'may proceed' if it is determined that these activities are not likely to cause 'more than a minor or transitory impact'.107 On the basis of this wording, it may be argued that the Protocol gives any person the right to undertake an Antarctic activity, as long as the likely impacts are not more than minor or transitory and as long as the more specific prohibitions and requirements of the Annexes are respected. How does this interpretation relate to the clear prohibition on causing the effects listed in Article Article 3, paragraph 2, under b) of the Protocol? A close look at Article 3, paragraph 2, under b) shows that the provision deals with categories of serious impacts. Therefore, these impacts should all be considered as 'more than minor or transitory' impacts.108 Hence, if an activity is likely to cause impacts 104 ASOC had advocated this option in 1997; see Appendix 20-11 of the draft EIS for the Proposed Rule on EIA of Nongovernmental Activities in Antarctica, 2001 105 Draft EIS for the Proposed Rule on EIA of Nongovernmental Activities in Antarctica, 2001, footnote 16 on page vii of the summary. See also pp. 4-17, second paragraph, of the draft EIS. 106 For a discussion on this U.S. position on the status of Article 3 in relation to the "right of international travel", see Polk 1998, supra note 71, pp. 14-15. 107 Polk 1998, , supra note 71, p. 8. 108 First of all, 'adverse effects on climate or weather patterns' is clearly an impact that falls within the category of 'more than a minor or transitory'. Within the context of the EIA instrument, the term 'significant' was - because of its vagueness - replaced by the term 'more than a minor or transitory impact (Bastmeijer 2003, , supra note 43, Chapter 5). Therefore, 'significant adverse effects on air or water quality' and 'significant changes in the atmospheric, terrestrial (including aquatic), glacial or marine environments' must also be considered 'more than minor or transitory impacts'. Although less clear, the focus on (endangered) species and populations and wording such as 'degradation of, or substantial risk to' imply that the other three categories of 23 identified in Article 3, paragraph 2, under b), the activity should be subjected to a CEE. Consequently, in the decision-making phase, Article 3, paragraph 2, under b) cannot form the basis for prohibiting activities that were only subjected to a PA or IEE and this would make Article 3, paragraph 2, under b consistent with the wording ('may proceed') used in Article 1(2) and 2(2) of Annex I. But here the problem of cumulative impacts arises. Most of the consequences identified in Article 3, paragraph 2, under b), may result from the cumulative impacts of a complex of activities. In particular "detrimental changes in the distribution, abundance or productivity of species or populations of species of fauna and flora", "further jeopardy to endangered or threatened species or populations of such species" as well as "degradation of, or substantial risk to, areas of biological, scientific, historic, aesthetic or wilderness significance", may derive from a complex of activities undertaken in the same area within a certain period of time. Given the difficulties concerning the assessment of cumulative impacts (e.g., lack of information, lack of knowledge on the long term impacts),109 it is realistic to believe that a concrete activity that as such appears to have only minor or transitory impacts, will not be subjected to a CEE only because of the fact that the cumulative impacts of many of these activities may have serious ('more than minor or transitory') impacts on the Antarctic environment. The consequence for the decision-making process then is quite clear: it is determined that the individual activity is not likely to have more than a minor or transitory impact, the activity will cause no impacts that should be avoided on the basis of Article 3, paragraph 2, under b), and therefore, the activity 'may proceed' in accordance with Article 1, paragraph 2 and Article 2, paragraph 2 of Annex I to the Protocol. In particular given the increase in non-scientific activities, this mechanism in the Protocol may weaken the system of the Protocol substantially. If the implementation legislation of Contracting Parties indeed states that all activities 'may proceed' as long as the impacts are not 'more than minor or transitory', it may be very difficult or even impossible to prohibit types of activities that may cause serious cumulative impacts in the shorter or longer term. The domestic implementing legislation The domestic implementing legislation of the Contracting Parties studied requires the competent authorities to prevent Antarctic activities from causing impacts that would violate Article 3 and in particular Article 3, paragraph 2, under b) of the Protocol. As far as CEE activities are concerned, the consequence is that if such impacts can not be prevented through the attachment of conditions to the permit or authorisation, the competent authority must refuse the authorisation to proceed with that activity.110 As explained above, the legislation of the United States of America is different: the impacts, mentioned in Article 3, paragraph 2 under b), also increase the level of 'minor or transitory'. 109 See Bastmeijer 2003, supra note 43, subsection B.3.4 of Chapter 5. 110 This consequence in relation to CEE activities has been codified more explicitly in the legislation of Australia. Section 12L, subsection 5 in conjunction with Section 12L, subsection 2 states that if the Minister is not satisfied that the activity can be carried on in a manner consistent with the basic environmental principles, "the Minister must not authorise the carrying on of the activity". For another example, see Article 12, paragraph 2, of the German Antarctica Act. 24 consequence of not recognizing the legal status of Article 3 explains why the U.S. Government does not have the possibility to say 'no', regardless of whether impacts identified in Article 3, paragraph 2, under b) will be the result of this project. This system has been criticized in the literature.111 As discussed above, the consequences of Article 3(2)(b) for activities subjected to a PA or IEE are not so clear. The legislation of the United Kingdom and the Netherlands did not copy the 'may proceed' approach of Article 1, paragraph 2 and Article 2, paragraph 2 of Annex I. Instead, the legislation of these countries gave the competent authority the discretionary power to decide whether to allow the conduct of the activity.112 For example, Sections 3 to 6 and Section 12 of the United Kingdom Antarctic Act 1994 state that "the Secretary of State may on the application of any person grant to him a permit." Although the Secretary of State must take account of certain provisions,113 the legislation does not oblige him or her to issue permits and an exhaustive list of grounds for refusal is not part of the legislation either. By contrast with the United Kingdom and the Netherlands, several other Contracting Parties did not introduce a permit system that gives the competent authority a discretionary power to decide on the authorization of Antarctic activities. The legislation of these Contracting Parties states explicitly that if a PA or an IEE determines that a proposed activity is not likely to have more than a minor or transitory effect, the activity may proceed or is to be permitted. For example, the legislation of New Zealand follows the wording of Article 1, paragraph 2 and Article 2, paragraph 2 of Annex I. quite literally: "(i)f the Minister determines that the activity is likely to have less than a minor or transitory impact on the Antarctic environment, the Minister shall notify the person that the activity may be carried out."114 In relation to activities subjected to an IEE, Section 18, subsection 3, provide for a comparable formulation: "If the Minister, after such consultation as he or she considers necessary, is satisfied that the initial environmental evaluation indicates that the activity is likely to have no more than a minor or transitory effect on the Antarctic environment, then the Minister shall notify the applicant that the activity may, subject to any directions made pursuant to section 10 of this Act, be carried out." 111 See Polk 1998, supra note 71: "Accordingly, the United States should (…) give the Protocol's key provisions their intended effect by not permitting operators to proceed with an expedition if a CEE indicates that an activity is likely to have more than a minor or transitory impact on the Antarctic environment. Even assuming that the principles in Article III are merely precatory, the United States can, and should, make the Article III principles binding on those who file EIAs here, whether through the Final Rule or by amending the Act." 112 The existence of discretionary power in these legal systems does not mean that the process of assessing permit applications may become the subject of arbitrariness. For example, Section 7 and Section 8, subsection 2 of the UK Antarctic Regulations state that "if the Secretary of State decides not to grant a permit (…), he shall so inform the applicant in writing giving his reasons". Section 13 of the Dutch Act states that "a permit may be refused in the interests of protection of the Antarctic environment." 113 For example, Article 15 provides for an obligation for the Secretary of State to have regard to the provisions of the Protocol in considering in any case whether to grand a permit under section 3, 4, 5 or 12. 114 Section 17, subsection 4, of the Antarctica (Environmental Protection) Act 1994 of New Zealand 25 The wording "subject to any directions made pursuant to section 10 of this Act" is of special interest as this Section 10 also includes the option of prohibiting the activity. However, given the use of the terminology 'shall notify' in the above quoted subsections, it is likely that the intention of the New Zealand legislator was to establish a system in which activities 'may proceed' as long as these activities will not cause more than a minor or transitory impact. The link with Section 10 probably aims to ensure that conditions may be attached to the authorisation in order to limit adverse impacts. Several other Contracting Parties chose the same approach as New Zealand. For example, Article 4, paragraph 3, in combination with Article 4, paragraph 4, of the German Act Implementing the Environmental Protection Protocol, states that if the Federal Environmental Agency judges on the basis of a PA that the activity gives cause to suspect a less than a minor or transitory impact, the Agency "shall issue a permit within six weeks without an Initial Environmental Evaluation or Comprehensive Environmental Evaluation being carried out."115 A similar provision is included in Article 7, paragraph 2, for activities subjected to an IEE.116 Comparable wording may be found in the Antarctica (Environmental Protection) Act of Australia. With regard to activities that were subjected to a PA, Section 12F, subsection 1, of this Act states that "if the Minister determines that the activity is likely to have no more than a negligible impact on the environment, the Minister must, by notice in writing, authorise the proponent of the activity to carry on the activity."117 The same provision is included for 'IEE activities' in Section 12 J, subsection 1 of the Act.118 With the draft regulations under the Antarctic Treaties Act 1996, South Africa appears to introduce a comparable system. As far as IEE activities are concerned, Section 12, subsection 1, of the draft regulations uses almost identical wording as the New Zealand legislation. Section 16 of the Finnish Act states that "a permit for an activity (…) shall be granted if the activity does not cause" one or more of the impacts listed in this Section 16. These impacts are 115 See also doc. XXIII ATCM/IP 16, Annual Report of the Federal Republic of Germany pursuant to Article 17 of the Protocol, March 1999: "Activities with less than minor or transitory impacts will be licensed without any additional environmental evaluation. The licence may specify the conditions which the applicant will have to comply with." 116 See doc. XXIII ATCM/IP 16, Annual Report of the Federal Republic of Germany pursuant to Article 17 of the Protocol, March 1999. On page 2, the Report gives the impression that the competent agency has the option to refuse authorisation for an IEE activity: "In the case of category 2 activities ('minor or transitory impacts'), the Federal Environmental Agency has discretionary powers to grant the licence as requested, to grant it subject to specific conditions, or to deny it. It will have to give the reasons for its decision." However, the above quoted legal provision seems not to permit this option of denying a licence. 117 See also the document 'Process for handling Initial and Comprehensive Environmental Evaluations for which the Australian Antarctic Division is the proponent', Appendix A to the Australian EIA Guidelines, 5. Conclusions The discussions in this article show that: - the Protocol and domestic implementing legislation do not establish clear value judgements regarding the various types of tourist activities. Antarctica appears to be open for anyone, regardless of his or her interests in Antarctica, as long as the standards of the Protocol (in particular Article 3 and the Annexes to the Protocol) are respected; - the Protocol does not clearly require a system of prior governmental authorisation for conducting Antarctic activities (except for some activities identified in Annexes II and V) and at least one Contracting Party does not have such a system; - it is not fully clear whether the principles in Article 3 should be recognised as legally binding provisions and - again - one Contracting Party denies that Article 3 is legally binding; 27 - even if all Contracting Parties were to recognise the legally binding status of Article 3, the wording of Article 3 is not very clear and the interpretation of the elements of paragraph 2(b) in particular may differ from state to state; - furthermore, the consequences of Article 3, paragraph 2(b) in relation to activities subjected to PAs and IEEs are not clear. The legislation of New Zealand, South Africa and several other Contracting Parties (e.g., Australia, Finland, Germany) states explicitly that if a PA or an IEE determines that a proposed activity is not likely to have more than a minor or transitory effect, the activity may proceed or is to be permitted. Although this approach seems to be in compliance with Article 1, paragraph 2, and Article 2, paragraph 2 of Annex I to the Protocol, such a system seems to exclude the option to refuse authorisation for any PA or IEE activity. This causes a serious concern, in particular where such activities may have significant cumulative impacts, including the impacts identified in Article 3, paragraph 2(b). In the view of the present author, these findings justify the conclusion that the Protocol and the domestic implementing legislation do not provide a strong normative system which can be used by competent authorities to determine whether Antarctic tourist activities and other types of human may proceed. At the same time, the diversity of human activities in the Antarctic is increasing. Today, everyone seems to be used to the idea that ship-based tourism, kayaking, ski-expeditions and mountain climbing take place in Antarctica. Concern has been expressed about the potential cumulative impacts of these activities, but it seems that the legitimacy of most of these types of tourism is not being questioned. However, what should the competent authority decide when confronted with an application for an Antarctic motorcross event, weddings, survival courses for managers, film festivals, establishing structural facilities for tourism such as hotels or casinos,119 research for commercial purposes, structural testing facilities for prototype cars or other products? The Protocol and the implementing legislation of the Contracting Parties do not provide clear answers. On the one hand, this is a difficult discussion because of the subjective component: "beauty is in the eye of the beholder", one might say;120 on the other hand, the diversity of human activities in the Antarctic will probably increase further and the question is whether all these different types of activities are compatible with the purpose of the Protocol. Consider the following: "Corporations, not governments, now play a large role in Antarctic endeavour. At first glance one might shrug one's shoulders and say that this is a global phenomenon and one had better get used to it. I think one can still ask whether this needs to be the case in Antarctica, and what we might lose by going down this track. At the very least, we must 119 Example borrowed from A. Hemmings, personal communication, May 2001. 120 Personal communication from M. Betts, Australian Antarctic Division (2001). See also Pineschi 1996, supra note 91, pp. 273-274: "It can be illusory to provide a definitive solution by means of the adoption of temporal targets, or the establishment of lists of 'approved' or 'forbidden' activities or substances, since information and conditions can change in different times and places." 28 make informed decisions rather than just standing back and letting money carve up the territory." 121 One might argue that the purpose of an activity should not play a role in the decision- making process and that all proposed activities should be assessed on the basis of the environmental impacts expected. However, this is not so easy. First of all, with regard to several of these activities, uncertainties may exist about the impacts that will occur. Moreover, in view of Article 3, the potential impacts on the wilderness values of Antarctica should also be taken into account. But what does this mean? For example, will the above-mentioned activities cause an unacceptable adverse impact on the wilderness values? The Protocol and the implementing legislation of the Contracting Parties studied do not provide clear definitions of these values. Although Antarctica is often described as "the last great wilderness",122 there is no common understanding of what the consequences will be of the obligation to respect wilderness values for managing Antarctic activities.123 Here we touch upon the designation of Antarctica as a natural reserve.124 Instead of accepting a 'burden of proof' on the competent authority with regard to the significance of the likely impacts of proposed activities, one might argue that prohibiting certain types of activities is justified by the 'natural reserve' status of Antarctica, if only because: "Unlimited access to a reserve (…) constitutes a contradiction in terms."125 Indeed, in many countries in the world it is common policy to prohibit those activities in natural reserves that are considered to be incompatible with the natural reserve status of the area, without the government being obliged to prove the seriousness of the expected impacts of the proposed activity. For example, in a Commonwealth Reserve such as Kakadu National Park in Australia, it is prohibited to "take an action for commercial purposes",126 and in Salmonier Nature Park in Canada, it is prohibited to "operate any motorized vehicle" or to "build or erect any structure or set up for use without a permit, any tent or camp".127 To visit the Pulau Payar Marine Park 121 Hemmings 2000, supra note 35, p. 30. See also M. Manzoni, 'Environmental Hazards in Antarctica and Man’s Impacts on the Antarctic Environment', in: F. Francioni (ed.), 'International Environmental Law for Antarctica', Giuffrè, Milan, 1992, pp. 53-92, pp. 86-87: "Possibly, some discrimination might be introduced with regard to the different rationales for human presence in Antarctica, for example, by differentiating between performing essential scientific tasks, or carrying out activities of an optional nature such as tourism." 122 See C. Redgwell, 'Environmental Protection in Antarctica: The 1991 Protocol', 43 International and Comparative Law Quarterly (1994), pp. 599-634, p. 606, note 42. 123 The United Kingdom took the initiative to clarify the meaning of 'wilderness values' by tabling an information paper by R. Codling at the XXIIth ATCM, 1998. See doc. XXII ATCM/IP 2). Unfortunately, this initiative was not pursued. See also R. Codling, 'Wilderness and aesthetic values in the Antarctic', 37 Polar Record (2001) pp. 337-352. 124 See Article 2 of the Protocol and subsection 4.3 above. 125 Manzoni 1992, supra note 121, p. 88. 126 See Section 354 of the Australian Environmental Protection and Biodiversity Conservation Act 1999, 128 See