The endurance of the Antarctic Treaty

Richard Rowe

Richard Rowe – a Tasmanian – is a former Senior Legal Adviser in the Australian Department of Foreign Affairs and Trade (DFAT).  During his long career with DFAT he was heavily engaged in Antarctic matters and attended many Antarctic meetings including as Head of the Australian Delegation to Antarctic Treaty Consultative Meetings. His latest meeting was  the most recent one held in the Czech Republic in July this year.  Richard was Chair of the Thirty-fifth ATCM which was held in Hobart in June 2012.  While in DFAT he also held senior positions overseas, including as Ambassador, in Australian Embassies, High Commissions and Missions to the United Nations. Although now retired, Richard continues to take an active interest in Polar issues, particular those relating to Antarctica.

Hawke’s Antarctic Legacy: The Madrid Protocol

Professor Donald R. Rothwell1

1ANU College of Law, Australian National University

In May 1989 Australia and France announced they would not sign the recently concluded 1988 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) and would instead promote an alternate Antarctic regime based on the prohibition of mining and environmental protection. The Australian-French initiative ultimately resulted in the adoption in 1991 of the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol) which changed the course of Antarctic environmental protection, management and governance. Australia’s 1989 policy change was actively promoted by then Prime Minister Bob Hawke (1983-1991), and following his death on 16 May 2019 there have been reflections on the role Hawke played in abandoning CRAMRA, halting mining in Antarctica, and promoting the Madrid Protocol. This paper reviews the events of 1989, the impact of the Protocol upon Antarctic governance, and the ongoing significance of the Protocol in 2019, 30 years after the Australian-French initiative.

Due Diligence in Antarctic Environmental Protection

Dr Caroline Foster

Due diligence is fast-becoming an established part of international environmental law.  But what might it mean in the Antarctic setting?  In 2010 Professor Rüdiger Wolfrum (Judge of the International Tribunal for the Law of the Sea from 1996 to 2017) expressed the view that the environmental protection obligations requiring State control of private activity under the Environmental Protocol to the Antarctic Treaty are not just obligations of due diligence but rather may be fuller obligations requiring assessment of the suitability and efficiency of the measures taken.  Almost 10 years later, it is time to revisit this question.  Is or should more than due diligence be required of States under the Environmental Protocol?  This paper addresses these questions in light of international legal developments since 2010, reviewing decisions in the International Court of Justice as well as under the United Nations Convention on the Law of the Sea.


Biography:

Dr Caroline Foster is Associate Professor at the Faculty of Law, University of Auckland, New Zealand. Caroline’s most recent monograph on international environmental disputes, scheduled for publication by Oxford University Press in 2020, focusses on “interstitial rubrics” in the sense of concepts brought into play in international courts and tribunals to help define the balance of legal interests between the parties implicit in the applicable legal rules.  Her prior work  Science, Proof and Precaution in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality (Cambridge University Press, 2011) was cited by Judges Simma and Al-Khasawneh in the International Court of Justice in the Case Concerning Pulp Mills (Argentina v Uruguay).

Towards a New System of International Trusteeship? The Critical Legal Issues on the Regulation of Antarctic Protected Areas

Professor Xueping Li

The system of international trusteeship under the Charter of United Nations inherits in the mandate of the Covenant of League of Nations which can be traced back to the appointment of the Ionian Islands to British protection at Vienna Conference in 1815. Under such a system, some independent and sovereign states can conclude agreements of management on the mandatory territories under the supervision of the United Nations and they are responsible for protecting those territories, because there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization. For the sake of protecting Antarctica, the ATCM seems to have essentially borrowed the paradigm of international trusteeship and made it to be a new system with Antarctic characteristics. Annex V of the Antarctic Environmental Protocol and the Guidelines for Implementation of the Framework for Protected Areas provide state parties of the Antarctic Treaty for the designation and delimitation of Antarctic specially protected areas (ASPA), Antarctic specially managed areas (ASMA) and historic sites and monuments (HSMs), legitimately accompanied with their management plans for those protected areas. The contents of protection have been expanded from the sole ecological value to a comprehensive value system. However, this new system of international trusteeship must settle a series of legal problems for regulating the protected areas: What is the intrinsic nature of the ATCM decisions on the establishment of protected areas? Do these decisions have legally binding force between the ATCM and the state parties of the protected areas? Can state parties extend their rights beyond that of scientific research in managing the protected areas? What is the duration and destination of protecting these protected areas in the case of lacking a clear legal status for the common heritage of mankind in Antarctica? Can the management of these protected areas be developed over time into preemption under international law for the purpose of independence?

Ice

Dr Tas van Ommen1

1Australian Antarctic Division

The polar regions are virtually defined in physical terms by ice: regions where the dominant form of fresh water is as a solid. Polar ice sheets hold just under 70% the Earth’s fresh water: enough to raise the world’s oceans by some 66 metres. Polar oceans are largely covered in winter by ice, the formation of which drives deep ocean circulation on a global scale. This sea-ice reflects sunlight, modulates exchanges of heat and water between ocean and atmosphere, and sustains ecosystems. Polar ice in all its forms plays a crucial role in global climate, and the deep ice in the ice sheets also records the march of climate over millennia. This presentation will provide an overview of the remarkable importance of polar ice for the globe and its place in polar science.


Biography:

Dr Tas van Ommen is Senior Principal Research Scientist with the Australian Antarctic Division, where he has worked as a glaciologist for the past 25 years. Tas has made six research expeditions to Antarctica for ice core drilling and airborne surveys, mapping the thickness of the icesheet. His research specialty is in ice core palaeoclimate and he is leader of the new Australian project to drill for an ice core in excess of a million years. Tas is also co-leader of the International Partnerships in Ice Core Sciences, a peak planning and advisory body consisting of 23 member nations.

Legal implications of Chinese Kunlun Station at Dome A and its ASMA/code of conduct proposals

Sakiko Hataya and Akiho Shibata

Built in 2009, Chinese Kunlun Station is China’s third research station. It is located in the Dome A region about 4,000 meters above the sea level at the hinterland of the East Antarctica plateau and situating at the middle section of the ice divide of the East Antarctic Ice Sheet, near the center of East Antarctica. The station is used only during the summer and comprises some 250 square meter of living and working space. In addition, Kunlun station can accommodate up to 25 research and logistics personnel. It is assumed that projects such as astronomical research, meteorological observation, radar sounding, and ice coring are done at this station. With particular reference to astronomical research, with its extremely thin and stable atmosphere, very dry air, absence of pollution, and low background radiation is one of the best locations on Earth for astronomical observation, and in January 2012, the first of three remotely steerable 50 cm Antarctic Survey Telescopes was installed.

In terms of location and scientific activities, Japanese Dome Fuji Station shares similarities with Kunlun Station. In 1995, the Station was established for a deep ice drilling program and atmospheric observations. It is located at 1,000 km inland on the Antarctic Continent at 3,810 m above sea level. It is also one of the major domes of the Antarctic ice sheet. Like Kunlun station, the climate conditions around Dome Fuji are harsh with extreme low temperature, so it is difficult to access the area. The Japanese astronomy community identified the station as a potential candidate for the future astronomical observatory because of the suitable conditions and environment, and now Japan plans to construct an astronomical observatory, including infrared telescopes, in the New Dome Fuji Station near the Dome Fuji Station. With those similarities, Dome Fuji Station can provide a comparative model to examine some of the legal issues involved in establishing and maintaining such stations, as well as setting up potential area protection and/or environmental code of conduct surrounding such dome stations.

In 2013 at the 36th Antarctic Treaty Consultative Meeting (ATCM), China proposed the establishment of a new Antarctic Specially Managed Area (ASMA) in Dome A area, and prepared a draft management plan that aimed to enhance a better protection of its scientific, environmental and logistical values, in order to make Kunlun Station play a key role in supporting scientific activities as an important international cooperation platform. Also, in 2017, China submitted a “Code of Conduct” as the first possible management option for Dome A as the scientific and environmental values of the Dome A area and its potential for more scientific research. However, several Members of ATCM questioned the justification of designating a new ASMA at Dome A, and some Members inquired whether the proposal made by China was aligned with the purposes of ASMAs as defined by the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).

This presentation will examine the international legal implications of establishing an ASMA and/or a code of conduct around a scientific base such as Kunlun Station by examining the ATCM debates in light of the purpose, objective and utilities of area protection systems/environmental protection schemes under the Madrid Protocol.


Biography:

Sakiko Hataya is a PhD student in law, Graduate School of International Cooperation Studies (GSICS), Kobe University, Japan, and a research fellow of Japan Society for the Promotion of Science. Her recent publications include: Environmental Impacts of Antarctic Scientific Research Activities: Discussion on Footprint (Japan Polar Research Association, 2019) (in Japanese) and The Arctic Council, co-author with Dr. Osamu Inagaki (Hokkaido University Press, 2019) (in Japanese).

Akiho Shibata is a professor of international law and Director of Polar Cooperation Research Centre (PCRC), Kobe University, Japan. He is leading several international research projects including: The Resilience of the Antarctic Treaty System to Future Challenges (with Julia Jabour) and Policy-Law-Science-Nexus (PoLSciNex) in Antarctica Action Group under SCAR Standing Committee on Humanities and Social Sciences (SCHASS) (with Luis Valentin Ferrada).

“Sea State Verification System” – a Tool (under development) applying real time Oceanography to Marine Operations from Tender to Construction

Frans Schlack

Pilbara Ports Authority

Abstract

The Pilbara Ports Authority (PPA) recently completed the last phase of its Channel Risk & Optimisation Project (CROP) utilising a Dredging Spread consisting of a large Cutter Suction Dredge and two Split Hopper Barges in a near ‘Open Ocean’ environment. The Project experienced long bouts of ‘Inclement Sea State’ in which the Dredging Spread could not operate which in turn led to significant ‘Stand By’ costs. Despite the Dredging Contractor specifying the sea state parameters its equipment could operate up to in the Contract, most of the time those parameters were not reached whilst the Dredging Spread genuinely could not operate to avoid significant damage. This situation led to the development of the prototype of the Sea State Verification System to determine in which sea state conditions Marine Equipment can work up to. Once fully developed, it is expected this System can be applied at the tender stage to ensure both Proponent and Contractor will have a system against which ‘Stand By’ claims can be evaluated and contractually managed.

DROMLAN and the Antarctic Treaty System

Osamu Inagaki 1, Gen Hashida 2

1 Polar Cooperation Research Centre (PCRC), Kobe University, Japan, 2 National Institute of Polar Research (NIPR), Japan

Abstract

Air transportation is becoming increasingly important for efficient research and other activities in the Antarctic. The contracting parties to the Antarctic Treaty have developed several inter-continental air routes to and from Antarctica (e.g. between Christchurch, New Zealand and McMurd Airfield; between Punta Arenas, Chile and West Antarctica; “Airlink” between Hobart, Australia and Wilkins Aerodrome etc). Among them, the air routes between Cape Town and Droning Mode Land (DML) are particularly noticeable in its systematic operations through the international collaboration among 11 national Antarctic programs. This collaboration is called Droning Mode Land Air Network (DROMLAN). The purpose of this presentation is to examine the legal complexities behind the operation of DROMLAN under the Antarctic Treaty System.

DROMLAN was established during the COMNAP meeting in 2002 by 11 national Antarctic programs that have conducted research activities in DML: Belgium, Finland, Germany, India, Japan, the Netherlands, Norway, Russia, South Africa, Sweden and the United Kingdom. DROMLAN provides intercontinental flight services between Cape Town and Russian Novolazarevskaya runway (Novo Runway) and Norwegian Troll runway using Ilyushin-76 DT (IL-76) and intra-Antarctica flight services between these two runways and research stations located in DMN using Basler BT-67 and Twin Otter DHC-6. From season 2002-5 to season 2015-16, more than 150 round trip flights were made between Cape Town and Novo and Troll runway.

One of the features of DROMLAN is that different actors with different nationalities are involved in its operations. First, DROMLAN’s air operations are arranged by Antarctic Logistics Centre International (ALCI), a South African private company based in Cape Town. Second, the aircraft used for intercontinental flights IL-76 is registered in Russia and is operated by Russian airline Volga-Dnepr and the aircrafts for intra-Antarctica flights Basler BT-67 and Twin Otter DHC-6 are registered in Canada and are operated by Canadian Airline Kenn Borek Air. Third, DROMLAN’s air services and facilities are used not only by members of national Antarctic programs (priority user) but also by private expeditions, including tourists if vacant seats are available. Services for private expeditions are provided by The Antarctic Company (TAC), a sister company of ALCI and an IAATO member.

Based on the recent discussion within the ATCM, this presentation will examine the legal complexities behind the operations of DROMLAN particularly in relation to the obligation of advanced notification under Article VII (5) of the Antarctic Treaty. Although Article VII (5) itself is a procedural obligation, this article is also referred to in several substantive provisions under the Environmental Protocol and its Annexes, including obligation of environmental impact assessment (EIA). This presentation will show that the involvement of different actors in DROMLAN makes it a legal challenge for states parties to comply with the obligations of advanced notification and EIA regarding DROMLAN’s operations.


Biography:

Osamu Inagaki is researcher at Polar Cooperation Research Centre (PCRC), Graduate School of International Cooperation Studies (GSICS), Kobe University, Japan. His research interest includes treaty law and international polar law, in particular the function of the Arctic Council and the development of the ecosystem approach in the Polar Regions. His recent publication is Towards an International Legal Order for the Arctic: Science, Environment and Ocean (Toshindo, 2018) co-edited with Prof. Akiho Shibata (written in Japanese).

Gen Hashida is the Deputy Director of Center for Antarctic Programs, NIPR. He takes a role in coordination of science programs and operations as well as co-chair of the DROMLAN.

Antarctica as Top Tourist Destination: Testing the Resilience of the Antarctic Treaty System

Kees Bastmeijer

In 1992, shortly after the adoption of the Madrid Protocol in 1991, France and four other Consultative Parties to the Antarctic Treaty tabled a proposal for a separate annex to the Protocol on the ‘Regulation Concerning Tourism and Non-Governmental Activities’. Discussions during an informal tourism meeting, organised prior to the XVIIth ATCM (Venice, 1992), and the formal discussions at that ATCM made clear that no consensus could be reached on the need for such a separate annex. An important argument against such a separate tourism annex was that the Protocol already applies to all human activities, including tourist activities. More than 25 years later, the number of tourists visiting Antarctica has increased from 6.495 in the 1991-92 season to more than 56,000 tourists in the 2018-19 season and the estimates for 2019-20 exceed 78,000 tourists (doc. ATCM 42/IP140 (IAATO)). In this time period, also the diversity of tourist activities in Antarctica has substantially increased. The ATCM has discussed tourism developments and related concerns each year, but when it comes to additional legally binding instruments, the ATCM has adopted only two Measures (in 2004 and 2009) that both have not yet entered into force.

These developments raise interesting questions regarding the resilience of the Antarctic Treaty System. In this context, resilience is understood as ‘robustness’ of a system due to the ability to adapt to change and to address related challenges to safeguard the fundamental aims and protected values of the system. This contribution studies the resilience of the Antarctic Treaty System, taking Antarctic tourism management as a case study. Questions that receive attention include:

  • What are the main developments in Antarctic tourism since the adoption of the Madrid Protocol and what have been/are the main challenges from the perspective of the fundamental aims and protected values of the Antarctic Treaty System?
  • What have been the responses of the ATCM to address these challenges? How do these responses relate to the self-management efforts of the International Association of Antarctic Tour Operators (IAATO)?
  • Have the ATCM responses been successful or are there any remaining threats to the fundamental aims and protected values of the ATS? What are the future prospects?
  • What observations can be made in relation to the role of the Committee for Environmental Protection and the characteristics of the ATS, such as the consensus rule?
  • In view of the answers to these questions, what can be learned from ATCM’s Antarctic tourism management for the broader question of whether the ATS may be considered ‘resilient’ to future challenges?

In discussing these questions, the 1992 proposal for a tourism annex and the many other proposals discussed at the ATCMs will be revisited. Special attention will be paid to the recent debates during the international workshop on Antarctic Tourism (Rotterdam, 3-5 April 2019) and the 42nd ATCM (Prague, 1-11 July 2019).


Biography:

Kees Bastmeijer is Professor of Nature Conservation and Water Law at Tilburg University (The Netherlands) and Visiting Scholar at the University of Tasmania (Nov-Dec 2019). His research focuses on the role of international, European, and domestic law in protecting nature. He has a special interest in legal governance issues in the Polar Regions. As an advisor to the Dutch government, he has participated in the ATCM since 1992.

Polar Policy in Practice: Tour Guiding in Antarctica

Hanne Nielsen, Gabriela Roldan

Each year, decisions on the management of Antarctic tourism take place at high-level meetings within the Antarctic Treaty System; these guidelines and recommendations inform the activities of those who travel to the Antarctic Region on commercially organized voyages and expeditions. In addition, the International Association of Antarctica Tour Operators (IAATO), promotes advocacy and responsible tourism management within its membership, providing guidelines and resources to ensure safe visitor management. This paper examines the role of the Antarctic tour guide as the front-line actor in interpreting and enforcing these directives before Antarctic visitors, and asks how guides interpret Antarctic governance in the cruise setting.

Referencing the IAATO Field Guide mandatory assessment, we ask how guides see themselves positioned within the existing structures of Antarctic governance, and how they act as mediators between theory and practice. Guests undergo mandatory IAATO briefings and biosecurity checks prior to any landings, but how is this contextualised within the wider Antarctic governance framework? And to what extent do guides see providing this context as their responsibility? Through focussed interviews with Antarctic tourism guides with a range of experience in the industry, we investigate the connections between policy decisions and on-the-ground practice and reflect on the end-user side of tourism governance decisions.


Biography:

Dr Hanne Nielsen is a Lecturer at the University of Tasmania. She specialises in representations of Antarctica in cultural production, with a focus on advertising material and how Antarctica is delivered as a product. Hanne is on the executive committee of the SCAR Standing Committee on Humanities and Social Sciences (SC-HASS), book review editor for The Polar Journal, and a past president of the Association of Polar Early Career Scientists (APECS). She has spent 5 seasons working as a tour guide on ships in the Southern Ocean. hanne.nielsen@utas.edu.au

Gabriela Roldan is a specialist researcher at Gateway Antarctica, University of Canterbury (NZ). Her academic interests range from Antarctic gateway cities and geopolitics, polar policy and management, Antarctic tourism, and polar education and outreach. Gabriela is a COMNAP Fellow and current Vice President of the Association of Polar Early Career Scientists (APECS). Gabriela has visited Antarctica over 50 times working as a tour guide.  gabriela.roldan@canterbury.ac.nz

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