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.

Arctic Challenge for Sustainability – Intergenerational Everyday Life Perspective on Traditional Livelihoods and Climate Change

Dr Tanja Joona1

1Arctic Centre, University Of Lapland, Rovaniemi, Finland

The Arctic is often described as vulnerable, cold and exotic place with stereotypical images of indigenous and non-indigenous communities, where people live in peace and harmony with the environment. Arctic is also equal to climate change. No stories go without connecting the vulnerability of the Arctic to the survival of our whole globe. However, the Arctic is not a homogenous area or territory but there are many different states and actors living in the area. According to Flavia Schlegel, Arctic indigenous peoples are considered “resilient”: “They respond, innovate and adapt to this changing context, and this source of resilience is deeply rooted in their lifestyles and social solidarity”.

This presentation focuses on everyday life in the Arctic, specifically in Finnish Lapland. Lapland as a region has strong potentialities, as well as specific problems.

In the northern communities, cultural growth takes place in a social environment where family and family relationships are important. Traditional knowledge is forwarded naturally, utilizing the words and meanings associated with nature and animals. Throughout the centuries, nature, lands and waters, their origins and their sustainable use have been an integral part of the indigenous Sámi culture, and they are still today. Culture lives in everyday life.


Biography:

Doctor of Social Sciences, Tanja Joona is working as an Associate Professor of Public International Law at the Faculty of Law of the University of Lapland. Joona’s main research interests focus on comparative legal and political aspects of Sámi society and especially issues dealing with traditional livelihoods, international human rights law and identity questions. She has been working with several national and international projects eg. on Sámi children and youth and she has several positions of trust at the University of Lapland. She is also a reindeer herder herself.

The importance of effective compliance and enforcement to long-term resilience of the ATS

Ms Jill Barrett1,2

1Queen Mary University of London, London, United Kingdom, 2Associate Member 6 Pump Court Chambers, London, United Kingdom

Effective compliance with and enforcement of treaty obligations are essential to the credibility of the Antarctic Treaty System (ATS), a crucial ingredient of long-term resilience. The ATS faces more enforcement challenges than most treaties due to the continent’s physical characteristics. Moreover, at the heart of the unique relationship between international law and national legal systems in the Antarctic area lie two fundamental issues: territorial sovereignty disputes and ambiguities in the ATS treaties on jurisdictional nexus between treaty obligations and persons who undertake activities in Antarctica. Parties have chosen inconsistent jurisdictional bases in their national laws to implement treaty provisions, resulting in enforcement gaps. Sensitivities over sovereignty issues inhibit Parties from addressing these gaps, even when they result in violations going unprosecuted.

As tourism, fishing and other non-governmental activities in Antarctica increase, the need for new modes of practical co-operation on domestic law enforcement is intensifying. The effectiveness of ATS inspection regimes demonstrates that Parties can co-operate at the international level despite the challenges. To secure future ATS resilience, co-operation needs to extend into areas where domestic law penetrates. The Parties also need to develop new ways to engage with third States and non-State actors to secure respect for ATS values.


Biography:

Jill Barrett is Visiting Reader in Law, Queen Mary London University, where she introduced a new LLM module ‘International Law and Governance of the Polar Regions’. Other areas of expertise include treaties, international environmental law and law of the sea. She is a Barrister at 6 Pump Court Chambers and also works independently as international law consultant.

She was previously Legal Counsellor, Foreign & Commonwealth Office. During her 20-year FCO career she represented the UK at the UN and many international conferences including ATCM and CCAMLR. Later, she attended ATCMs as Secretariat staff member and then legal adviser to ASOC.

Networking Regional and National Arctic Science Programs into a Joint Program of Scientific Research and Monitoring for the Central Arctic Ocean (CAO)

Dr Betsy Baker1

1North Pacific Research Board, Anchorage, United States

Networking Arctic marine research initiatives can efficiently provide much of the science needed to launch the Joint Program of Scientific Research and Monitoring required under the 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, Article 4. ArCS research on marine ecosystems intersects productively with other national and regional marine research programs and institutions active in the Arctic, including CAFF, DBO, PAG. Properly networked, these and other research entities and programs have the potential to provide a model for the Joint Program and to leverage financial and in-kind resources for a sum that is greater than its parts. A strong and flexible Arctic fisheries and ecosystem science network could evolve into a more formal science body should one be desired.  This paper builds upon the work of groups like the FisCAO (Scientific experts on Fish Stocks in the CAO) and ICES/PICES PAME Working Group on Integrated Ecosystem Assessment for the CAO that are already focused on how to build a science program for the region. It contributes the author’s additional perspective as director of a regional marine science funding organization that supports collaborative research on pressing fishery management and ecosystem information needs.


Biography:

Prior to joining the North Pacific Research Board as Executive Director in 2016, Dr. Baker was professor of international, ocean, and environmental law at Vermont Law School.  In her decade at VLS, she served as Visiting Scholar, U.S. State Department, inter-agency Extended Continental Shelf Task Force, and  Fellow at the Dartmouth College Arctic Studies Institute. Her research has included projects for the Alaska Arctic Policy Commission, Inuit Circumpolar Council-Alaska, NOAA’s National Marine Fisheries Service Alaska, Ocean Conservancy, Arctic Council PAME working group, and Statoil/DNV. She currently serves on the Polar Research Board, US National Academy of Sciences.

IS ARTICLE IV OF THE ANTARCTIC TREATY STILL SUITABLE FOR THE GOVERNANCE OF THE ANTARCTIC SEAS?

Dr Patrizia Vigni1

1University Of Siena, Siena, Italy

Is art. IV AT still workable to protect the Antarctic seas in a world of competing interests?

Art. VI AT safeguards States’ rights in high seas according to international law. However, the “bifocal approach”, adopted by art. IV AT, freezes the prerogatives of Claimant States without denying their rights to claim. Besides, non-Claimant States, can apply the provisions of the AT so as if sovereignty claims do not exist.

Although the conservation of Antarctic seas also affects the interest of the international community, the existence of sovereignty claims over Antarctica has precluded the establishment of an international regime disregarding State sovereignty, such as the UNCLOS that recognises the status of the deep seabed as common heritage of humankind.

Most of ATS norms adopt the criterion of nationality rather than the principle of territoriality to enforce substantive obligations and, thus, seem to be apparently unsuitable to govern the activities of third States and their nationals in Antarctic seas.

Therefore, internal and external challenges to the ATS require identifying further grounds of jurisdiction of ATS States to enforce substantive obligations.

Similarly, common goals and principles must be categorised to compel both ATS and non-ATS States to ensure the conservation of Antarctic seas.


Biography:

Senior Lecturer of International Law at the University of Siena (Italy) since 2001: currently, Department of Business and Law; up to 2018, Law Department.

Degree in Law, Siena, 1992.

LLM M.Jur., Oxford (UK), 1996.

Doctorate in International Law, Siena, 1998.

Lecturer of several courses since 2001, such as EU Law, International Organizations, International Dispute Settlement.

Main research fields: Antarctic Treaty System, law of treaties, international dispute settlement, law of the sea, diplomatic and consular protection, cultural heritage.

Since 1998, legal advisor to the Italian Ministry of Foreign Affairs with regard to the Antarctic Treaty System.

For further information: https://docenti.unisi.it/en/vigni

Post-ArCS Arctic Law and Policy Research: Agendas for 2020-2025

A/Prof. Kentaro Nishimoto1

1Tohoku University, Sendai, Japan

Paralleling the development of a distinctive legal and governance regime for the Arctic, the importance of Arctic law and research has steadily gained recognition within Japan’s overall research efforts in the Arctic. Building on the previous GRENE program (2011-2016), the Arctic Challenge for Sustainability (ArCS) program (2015-2020) incorporated research in the field of humanities and social sciences, and sought to establish interdisciplinary collaboration. To achieve Japan’s stated policy of contributing to the sustainable development of the Arctic through its capabilities in the field of science and technology, mere accumulation of scientific knowledge will not suffice. As the impact of climate change is increasingly felt in the Arctic, it is imperative that Arctic law and policy research in the post-ArCS phase continue to address efforts at the international level to respond to the changes, and also to effectively channel scientific knowledge into rule-making processes. In this regard, Post-ArCS research should include not only already well-discussed issues such as the regulation of Arctic shipping and Central Arctic Ocean high seas fisheries, but also issues that have hitherto received less attention in Japan such as the rights of the indigenous peoples in the Arctic.


Biography:

Kentaro Nishimoto is Associate Professor of International Law at the School of Law, Tohoku University, Japan. His research focuses on the international law of the sea, including issues such as the sustainable development of ocean resources and the governance of the Arctic Ocean. He is advisor to the Japanese delegation to the intergovernmental conference on marine biodiversity of areas beyond national jurisdiction (BBNJ). His recent publications in English include “The Rights and Interests of Japan in regard to Arctic Shipping” in Robert C. Beckman et al. (eds.), Governance of Arctic Shipping (Brill, 2017),

The Next Phase for Arctic Governance?: Implications of a new treaty on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction

Prof. Jacqueline Espenilla1

1University Of The Philippines Institute For Maritime Affairs And Law Of The Sea, Quezon City, Philippines

In November 2017, the UN General assembly issued Resolution 72/249 and agreed to convene an intergovernmental conference to deliberate the text of an international legally binding instrument (ILBI) under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). A BBNJ ILBI will potentially have significant implications on the governance regime of the Artic Ocean, in view of the fact that approximately 2.8 million sq km of the Arctic Ocean lie beyond the national jurisdiction of any coastal State. This development presents a number of complex legal questions relating to how the ILBI will interface with the already fragmented legal framework that applies to the Arctic. This paper attempts to examine the question: should the Arctic even be covered by the new instrument? The argument against its inclusion centers around the area’s unique and fragile ecosystem and climate, and the corresponding need to refer to a sui generis regime. On the other hand, the proposed ILBI may be able to fill in existing gaps in Arctic governance. In particular, it could address important questions concerning the conduct of environmental impact assessments and the use of area-based management tools.


Biography:

Jacqueline is a Senior Researcher at the University of the Philippines Institute for Maritime Affairs and Law of the Sea. She is also a Professorial Lecturer of Public International Law at the University of the Philippines College of Law. She has completed legal research fellowships focusing on Law of the Sea and marine environment at the UN Division of Ocean Affairs and Law of the Sea, Columbia Law School, and the University of Tokyo Faculty of Law. She received her LL.M. from Harvard Law School at her J.D. and B.A. from the University of the Philippines.

Third States’ Presence in the 7th Continent: Implications for International Law of the Antarctic

Dr Zia Madani1

1Iranian National Institute For Oceanography And Atmospheric Science, Tehran, Iran

In recent years, it is observed that a significant rise in the number of third states, i.e. ones that were neither an original signatory nor acceded thereto until recently, willing to explore the so called “7th Continent” and participate in activities therein is occurring. This includes a tangible number of Asian states which currently expressed their willingness and intention to involve in Antarctic science and research through namely affiliation in the ATS or Antarctic related scientific entities. This process has been underway despite a number of primary strong oppositions made to the ATS by a few of them. There are currently 10 Asian states out of 53 states parties to the Antarctic Treaty Four of which have acceded after 2011. Besides, some of the aforementioned States have had active engagement and significant role in the Antarctic science as well as its legal regime in recent years. Accordingly, this evolution calls for a reexamination and comprehensive investigation into the possible legal implications of such globally rising participation in various activities in Antarctica as to what extent the presence of third states in the Antarctic could affect the existing legal regime; a key question that will be investigated in this paper.


Biography:

Zia MADANI is an early career faculty in Public International Law with a focus on Law of the Sea. He has been a Assistant Professor in INIOAS and was the 2018 Visiting Scholar to the University of Tasmania. He also has worked as the UNESCO-IOC Expert on Marine Scientific Research for Special Arbitration under Annex VIII of UNCLOS, as well as member to the UNESCO-IOC Intersessional Working Group on issues related to the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). He has been following legal and policy developments in Polar Law since 2013.

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