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Last Updated: 19 November 2007
A hole the size of a fishing vessel in Antarctic environmental protection?
Executive Summary
The Protocol on Environmental Protection to the Antarctic Treaty does not adequately regulate environmental impacts that might arise from the ancillary activities of fishing and whaling vessels in the Antarctic, such as the potential for such vessels to accidentally discharge fuel oil after suffering some kind of damage. Regulation under neither the Convention on the Conservation of Antarctic Marine Living Resources nor the International Convention for the Regulation of Whaling adequately makes up for this deficiency. In order for Parties to the Environmental Protocol to properly discharge the commitment they undertook in Article 2 of the Protocol for the comprehensive protection of the Antarctic environment and dependent and associated ecosystems, they are encumbered to address this deficiency.
In light of issues of effectiveness and political sensitivities, a starting point to address this deficiency might be for the Parties to CCAMLR and the Environmental Protocol to undertake a collaborative effort to regulate the ancillary activities of fishing and whaling vessels. Both CCAMLR and the Environmental Protocol already contain provisions envisaging such a collaborative approach to meet their respective objectives and purposes, and this mechanism could be exercised to ensure that a significant activity undertaken in the Antarctic Treaty area does not fall through the cracks and avoid adequate regulation. The details of such a collaborative approach are open for the Parties to the respective instruments to elaborate. What is certain is that, absent some kind of additional regulation, the Parties to the Environmental Protocol will fail in discharging their solemn promise to comprehensively protect the Antarctic environment.
By Michael Johnson[∗]
Introduction
The events in early 2007 involving the Japanese whaling vessel, the Nisshin Maru, in the waters of Antarctica highlighted a potential lacuna in the operation of the Antarctic Treaty system.
After suffering damage caused by a fire which broke out on 15 February, the Nisshin Maru floated for almost a week in the treacherous Southern Ocean without power.[1] In the end, the crew were able to restart the vessel’s engines, and it sailed out of the Southern Ocean and back towards Japan in late February. Despite media reports suggesting that oil might leak from the vessel, the ordeal finished without the Antarctic environment suffering any damage. But, what would have happened if a leak did occur?
At the time of the incident, several environmental non-government organizations pointed to Japan’s obligations under the Antarctic Treaty,[2] together with the Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol),[3] as a reason for Japan to do everything it could to prevent a possible oil leak. This was a logical assertion, particularly given that the objective of the Environmental Protocol is
‘the comprehensive protection of the Antarctic environment and its dependent and associated ecosystems.’[4] However, the true scope of the Protocol may defy this assertion.
The conservation of whales and fish are expressly excluded from the scope of the Environmental Protocol.[5] Whilst it makes sense to leave the conservation of these specific living resources to more specialised regimes, this deferral of responsibility from the Environmental Protocol has had the undesirable consequence of potentially leaving significant activities in the Antarctic Treaty area unregulated. This lacuna has arisen because the specialised regimes essentially only regulate the core activities associated with the exploitation of their target species—for example, the actual taking of the species. The Environmental Protocol, as well as excluding these core activities from its scope, arguably also fails to regulate the broader environmental impacts which might arise from associated or ancillary activities.
I intend for the term ‘ancillary activities’ to encompass every activity of a fishing or whaling vessel that is connected to the normal operation of the vessel, rather than being directly related to the taking of fish or whales. As these are activities that are undertaken by all vessels irrespective of their characterisation as fishing or whaling vessels, and would be covered by the Environmental Protocol when undertaken by other vessels, it is nonsensical for the application of the Protocol to cease simply when these activities are undertaken by fishing or whaling vessels. A prime example of an environmental impact which might arise from an ancillary activity of a fishing or whaling vessel, and one to which I will periodically refer to in this paper, is the potential for a fishing or whaling vessel to accidentally discharge fuel oil after suffering damage to itself or its equipment.
Is there a lacuna in the regulation of environmental impacts arising from the ancillary activities of fishing and whaling vessels? Does it create an unacceptable risk to the pristine Antarctic environment? What can be done about it? In this paper, I will review the provisions of the Environmental Protocol, together with other instruments applicable to activities in the Antarctic Treaty area, to ascertain whether fishing and whaling vessels are satisfactorily regulated.
In Part A, I will review the obligations in the Environmental Protocol to ascertain if they adequately regulate the ancillary activities of fishing and whaling vessels. Part A will address both the prima facie application of obligations in the Environmental Protocol and the possible exclusion of those obligations by virtue of the relationship established between the Protocol and other instruments. In Part B, I will then examine whether the more specialised regimes themselves adequately regulate ancillary activities. Finally in Part C, I will explore the options for addressing any deficiencies that may have arisen from the assessments in Parts A and B.
Part A—Regulation under the Environmental Protocol
1. Scope of the Environmental Protocol
Limitations on the scope
The provisions of the Environmental Protocol in general apply to the ‘Antarctic Treaty area’, being the area south of 60° South Latitude.[6] The Environmental Protocol’s relationship with other instruments is set out in Article 4, which provides:
1. This Protocol shall supplement the Antarctic Treaty and shall neither modify nor amend the Treaty.
2. Nothing in this Protocol shall derogate from the rights and obligations of the Parties to this Protocol under the other international instruments in force within the Antarctic Treaty system.
Given the relationship between the two, the scope of the Antarctic Treaty is relevant to the scope of the Environmental Protocol. To this end, Article VI of the Antarctic Treaty provides that:
... nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within [the Antarctic Treaty area].
The Antarctic Treaty system
The ‘Antarctic Treaty system’ is defined in Article 1(e) of the Environmental Protocol as ‘the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments.’ Whilst it might not be immediately apparent what the Antarctic Treaty’s ‘associated separate international instruments’ are, there is a general acceptance over the matter.
First, whilst the Environmental Protocol is generally not considered to be a separate instrument to the Treaty, it is clearly associated and is universally regarded as a component of the Antarctic Treaty system.[7] Although neither the Convention for the Conservation of Antarctic Seals (CCAS)[8] nor the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)[9] are connected to the Antarctic Treaty to the same extent as the Environmental Protocol,[10] there are sufficient linkages between the instruments to ensure that CCAS and CCAMLR are considered part of the Antarctic Treaty system. For instance, the preambles of both CCAS and CCAMLR recite the importance of the Antarctic Treaty as context,[11] and each imposes certain obligations from the Antarctic Treaty onto all of its Parties irrespective of joint membership.[12] As such, pursuant to its Article 4(2), the Environmental Protocol must not derogate from the rights and obligations of Parties under CCAS or CCAMLR.
Conversely, the International Convention for the Regulation of Whaling (Whaling Convention)[13] creates no formal relationship with the Antarctic Treaty or Environmental Protocol, nor does it make any provision for the special regime created by the Antarctic Treaty. Of course, this is because the Whaling Convention pre-dates the Treaty and Protocol, and it has not been subsequently amended to recognise the Antarctic Treaty system. As such, it would require an unnaturally broad interpretation of ‘associated separate international instruments’ to encompass the Whaling Convention within the Antarctic Treaty System. Indeed, Annex II to the Environmental Protocol, in its Article 7, expressly recognises the Whaling Convention as an agreement ‘outside the Antarctic Treaty system’.
Notwithstanding the result that arises from this analysis, the Parties to the Environmental Protocol decided to clarify the situation in the Final Act of the Eleventh Antarctic Treaty Special Consultative Meeting (Madrid Final Act),[14] which was adopted at the same time as the Environmental Protocol. The seventh paragraph of which provides:
The Meeting noted that nothing in the Protocol shall derogate from the rights and obligations of Parties under the Convention on the Conservation of Antarctic Marine Living Resources, the Convention for the Conservation of Antarctic Seals and the International Convention for the Regulation of Whaling.
This declaration reinforces the effect of Article 4(2) of the Environmental Protocol, noting that there will be no derogation from the rights or obligations of Parties under CCAS or CCAMLR. However, the declaration arguably also extends the effect of Article 4(2) with respect to the Whaling Convention. That is, as the Madrid Final Act was the product of consensus, it arguably constitutes an agreement made by all of the parties in connection with the conclusion of a treaty. Pursuant to Article 31(2) of the Vienna Convention on the Law of Treaties (VCLT),[15] this declaration would therefore contribute to the context in which the Environmental Protocol is to be interpreted. As such, any interpretation of the substantive provisions of the Environmental Protocol should at least take into account the object of not derogating from the rights and obligations under the Whaling Convention.
Due to the different circumstances relating to seal exploitation and conservation, I will focus in this paper on the regulation of fishing and whaling activities. As such, I will only address the relationship of the Environmental Protocol with CCAMLR and the Whaling Convention.
2. Non-derogation
As noted, Article 4(2) of the Environmental Protocol ensures that the operation of the Protocol will not derogate from the rights and obligations of Parties under CCAMLR, and the declaration set out in the Madrid Final Act suggests that the operation of the Protocol should not derogate from the rights and obligations of Parties under the Whaling Convention.
It is important to note that both Article 4(2) and the Madrid Final Act use the term ‘derogate’. The Oxford English Dictionary defines derogate as meaning ‘to curtail or deprive a person of any part of their rights’ or ‘to take away something from a thing so as to lessen or impair it’. Nothing in the context or the object and purpose of the Environmental Protocol requires anything other than this natural meaning to be given to the term ‘derogate’.
As such, the Environmental Protocol will only derogate from the rights and obligations under CCAMLR or the Whaling Convention if it deprives or impairs any part of those rights and obligations. Article 4(2) and the Madrid Final Act therefore do not prohibit parallel regulation—there is no legal impediment to the Environmental Protocol regulating subject matter within the scope of either CCAMLR or the Whaling Convention, provided the former does not impair the rights and obligations arising under the latter.
I will explore whether regulation by the Environmental Protocol of the ancillary activities of fishing and whaling vessels, and the environmental impacts that might arise from those activities, would derogate from the rights and obligations under CCAMLR and the Whaling Convention in turn.
CCAMLR
CCAMLR has a two-tiered system of membership. All States that have ratified, acceded to or otherwise agreed to be bound by the Convention are its Contracting Parties. The original signatories of CCAMLR together with acceding Contracting Parties that are engaged in research or harvesting activities covered by the Convention are also Members of the CCAMLR Commission.[16] Additional rights and obligations fall on Commission Members compared to ordinary Contracting Parties.
The major obligations arising from CCAMLR require Commission Members to comply with conservation measures set by the Commission[17] and all Contracting Parties to comply with the system of observation and inspection.[18] As the Environmental Protocol does not give a right to take marine living resources, it is difficult to imagine how the Protocol might derogate from the obligations under CCAMLR.
Rather than creating an actual right to undertake fishing activities, CCAMLR regulates the otherwise freedom of fishing on the high seas provided for by the United Nations Convention on the Law of the Sea (UNCLOS).[19] Saying this, the ability to fish that remains after regulation by CCAMLR is arguably itself a ‘right’. If this is accepted, then any regulation of core fishing activities by the Environmental Protocol, such as limiting the amount of catch permitted and prescribing the equipment to be used, might arguably derogate from that right to fish.
However, reasonable regulation by the Environmental Protocol of the ancillary activities of fishing vessels, and the environmental impacts that might arise from those activities, will not derogate from any right to fish that might exist under CCAMLR. Such regulation would not deprive States of the right to fish, nor would it lessen or impair that right—the ability to fish would remain, but merely ancillary activities would have to be conducted in a certain way. Of course, excessive regulation of such ancillary activities could well have the consequential effect of impairing the right to fish. Take, for instance, a prohibition on a class of vessels that included fishing vessels from entering the Antarctic Treaty area. However, the regulation of the ancillary activities of fishing vessels to a reasonable level will not derogate from the right to fish.
As the Environmental Protocol ‘supplements’ the Antarctic Treaty,[20] and the two instruments are inextricably linked,[21] Article VI of the Treaty also applies to the Protocol (as provisions in the Protocol are, in effect, ‘in the Treaty’). As such, the Protocol must also not ‘prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas’.
Again, should the Environmental Protocol regulate core fishing activities, there would be a strong argument that this would affect the exercise of the freedom of fishing on the high seas. However, reasonable regulation of ancillary activities would not affect the right to fish—the act of fishing would not be at all restricted, but again ancillary activities would have to be conducted in a certain way.
It must be borne in mind that UNCLOS itself also provides specific obligations regarding the protection of the marine environment.[22] As such, UNCLOS recognizes that the freedom to fish on the high seas merely ensures an ability to undertake fishing activities, and does not provide immunity from environmental obligations that regulate either the core or ancillary activities of fishing.
It is clear therefore that reasonable regulation of the ancillary activities of fishing vessels would neither derogate from rights arising under CCAMLR nor affect the exercise of the right to fish under UNCLOS. Such regulation would not deprive States of the right or ability to fish, nor would it lessen or impair that right. As such, neither Article 4(2) of the Environmental Protocol nor Article VI of the Antarctic Treaty can operate to prevent the Environmental Protocol from applying to ancillary activities of fishing vessels.
Whaling Convention
As with CCAMLR, the Whaling Convention regulates the otherwise freedom to take whales on the high seas. However, the Whaling Convention arguably contains an effective ‘right’ to undertake scientific whaling activities, as set out in Article VIII:
1. Notwithstanding anything contained in this Convention, any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take, and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention....
Should the Environmental Protocol regulate the killing, taking or treating of whales, this would arguably affect, or even derogate from, the ability to undertake scientific whaling provided for under the Whaling Convention. What is again clear, however, is that reasonable regulation of the ancillary activities of whaling vessels will not derogate from, or even affect the exercise of, any right to undertake scientific whaling activities which might exist. This means that neither the declaration in the Madrid Final Act nor Article VI of the Antarctic Treaty can operate to prevent the Environmental Protocol from applying to ancillary activities of whaling vessels.
An exchange between New Zealand and Japan at the recent Thirtieth Antarctic Treaty Consultative Meeting highlights this distinction between regulating whaling issues per se and regulating environmental impacts that happen to result from a whaling vessel. As part of discussion following the presentation by New Zealand of its Information Paper describing the incident involving the Nisshin Maru,[23] Japan raised a concern that further discussion of the incident might risk encroaching into whaling issues that were both contentious and beyond the competence of the Antarctic Treaty Consultative Meeting. In response, New Zealand noted that the Meeting needed to address serious maritime incidents occurring in the Antarctic Treaty area, and that this did not amount to addressing the substance of undertaking whaling activities.[24] This same distinction ought to be borne in mind when assessing the extent to which the Environmental Protocol should regulate the ancillary activities of whaling vessels.
3. Obligations in the Environmental Protocol
The Environmental Protocol sets out a variety of specific obligations in pursuance of its objective of the comprehensive protection of the Antarctic environment and dependent and associated ecosystems. In this section, I will look at the extent that each of these obligations might be applicable to the ancillary activities of fishing and whaling vessels operating within the Antarctic Treaty area.
The Antarctic Treaty, and therefore also the Environmental Protocol, also has a two- tiered system of membership. Whilst every State that has agreed to be bound by the Environmental Protocol is a Contracting Party, only the original signatories of the Antarctic Treaty and acceding States that conduct substantial research activity in Antarctica are Consultative Parties. Whilst all of the original obligations in both the Antarctic Treaty and the Environmental Protocol bind the respective Contracting Parties of each instrument, Measures, amendments, protocols and additional annexes may enter into force without the acceptance of a non-Consultative Party. As such, whilst all Consultative Parties of the Antarctic Treaty are by definition bound by the Environmental Protocol, every Measure and every annex to the Protocol (as any such ‘new’ obligation will not enter into force until all Consultative Parties have accepted it), non-Consultative Parties are effectively able to pick and choose which additional obligations are binding on them.
Article VII(5) of the Antarctic Treaty
Before I look at the specific obligations in the Environmental Protocol, it is first necessary to address a particular phrase which is used to set the scope of many of the obligations. That is, several obligations apply only to ‘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’. In this paper, I will refer to this as the ‘Article VII(5) formulation’, and to its content as ‘Article VII(5) activities’. Article VII(5) of the Antarctic Treaty provides:
Each Contracting Party shall, at the time when the present Treaty enters into force for it, inform the other Contracting Parties, and thereafter shall give them notice in advance, of:
b. all stations in Antarctica occupied by its nationals; and
The Article VII(5) formulation therefore covers five categories of activities: science, tourism, expeditions to and within Antarctica, occupation of stations, and use of military personnel and equipment for peaceful purposes.
Any argument that the reference to activities undertaken ‘pursuant to scientific research programmes’ could cover scientific whaling would be difficult to maintain. First, given that the facilitation of cooperative, scientific research is one of the primary functions of the Antarctic Treaty system,[25] the reference to scientific research programmes is, pursuant to State practice, limited to those undertaken under the auspices of the Antarctic Treaty system. Given that whaling countries do not share plans of, or results from, scientific whaling under Article III of the Antarctic Treaty (noting that this is more or less obliged by Article VIII(3) of the Whaling Convention itself), it is difficult to see how the phrase ‘scientific research programmes’ in the Environmental Protocol was intended to apply to scientific activities undertaken under other auspices.
Second, regulation of scientific whaling as a scientific research programme would apply to the killing, taking and treating of whales, and would therefore risk derogating from rights under the Whaling Convention, contrary to the intention set out in the Madrid Final Act and to Article VI of the Antarctic Treaty.[26] In any event, it is difficult to see how the ancillary activities of a scientific whaling vessel would qualify as scientific activities themselves. Therefore, although acknowledging that the argument exists, I will presume that scientific whaling is not an activity pursuant to a ‘scientific research programme’ as that phrase is used in the Article VII(5) formulation in the Environmental Protocol.
The ancillary activities of fishing and whaling vessels clearly do not constitute tourism, occupation of a station or use of military equipment. The only other category is ‘expeditions to and within Antarctica’. Whilst the meaning of ‘expedition’, and therefore also the scope of the Article VII(5) formulation, has never been defined, the practice of Antarctic Treaty parties is that fishing and whaling activities are not considered expeditions and therefore are not notified under Article VII(5).
A working paper introduced at the Thirtieth Antarctic Treaty Consultative Meeting in May 2007 sought to clarify the activities covered by Article VII(5).[27] There was only luke warm response to this proposal, with Parties unwilling to commit resources to clarifying the scope of Article VII(5).[28] This hesitation was fuelled in part by concern that opening up the interpretation of one part of the Protocol might risk opening up other parts of the Protocol or Treaty for renegotiation. We are therefore left with an uncertain provision and State practice that leans away from its application to fishing and whaling vessels. As such, again whilst acknowledging the existence of arguments to the contrary, I will presume that the ancillary activities of fishing and whaling vessels are not covered by the Article VII(5) formulation.
Article 3—General principles
Article 3 of the Environmental Protocol sets out the general environmental principles that are to apply to activities in the Antarctic Treaty area. There is a difference in scope evident within Article 3, with paragraphs 1 to 3 applying to ‘the planning and conduct of all activities in the Antarctic Treaty area’ (my emphasis) and paragraph 4 applying only to Article VII(5) activities.
As a result of paragraphs 1 and 2, the protection of the Antarctic environment and dependent and associated ecosystems is to be a ‘fundamental consideration’ in the planning and conduct of activities, and activities are to be planned and conducted so as to limit adverse environmental impacts and avoid certain significant adverse impacts. Paragraph 3 addresses the priority to be given to scientific research, and is not relevant for our purposes.
Paragraph 4 requires that all Article VII(5) activities take place in a manner consistent with the principles in the rest of Article 3, and imposes an additional obligation that such activities be modified, suspended or cancelled if impacts inconsistent with those principles result or threaten to result. In light of my conclusion above that the ancillary activities of fishing and whaling vessels are not covered by the Article VII(5) formulation, paragraph 4 is inapplicable for our purposes.
It is clear, however, that the narrower scope of paragraph 4 does not limit the scope of the rest of Article 3. As such, all activities in the Antarctic Treaty area are to be planned and conducted consistently with the principles elaborated. On its face, therefore, Article 3 will cover the ancillary activities of fishing and whaling vessels undertaken in the Antarctic Treaty area. In line with the discussion above, the application of Article 3 to such ancillary activities would in no instance derogate from rights under CCAMLR or the Whaling Convention—fishing and whaling would still be possible to the same extent, but merely additional safeguards would need to be implemented with respect to the ancillary activities.
Notwithstanding this application, the effect of Article 3 on the ancillary activities of fishing and whaling vessels considered by this paper will likely be limited. In prescribing ‘fundamental considerations’ and how activities are to be ‘planned and conducted’, Article 3 incorporates a standard of due diligence. That is, provided that activities are planned and conducted with the fundamental considerations in mind, and so to limit and avoid the relevant adverse effects, a Party will comply with Article 3. Should an adverse effect result notwithstanding the fact that the activity was planned and conducted with all due diligence, Article 3 will impose no obligations on the relevant Party. Adverse effects that might result from the ancillary activities of fishing and whaling vessels will most likely be the ‘reasonably unexpected effects’ that fall outside of Article 3. It will only be a limited circumstance, such as bringing inherently dangerous or faulty equipment into the Antarctic Treaty area, that will see an ancillary activity of a fishing or whaling vessel breach Article 3.
For the most part, therefore, Article 3 does not adequately regulate the ancillary activities of fishing and whaling vessels.
Article 8—Environmental impact assessment
Article 8 of the Environmental Protocol provides an obligation to undertake an environmental impact assessment pursuant to the procedures set out in Annex I prior to undertaking all Article VII(5) activities. In light of my conclusion above on the scope of this formulation, there will be no obligation to undertake an environmental impact assessment for the ancillary activities of fishing and whaling vessels.
Further, the eighth paragraph of the Madrid Final Act reads:[29]
With respect to the activities referred to in Article 8, the Meeting noted that it was not intended that those activities should include activities undertaken in the Antarctic Treaty area pursuant to the Convention on the Conservation of Antarctic Marine Living Resources or the Convention for the Conservation of Antarctic Seals.
In addition to this paragraph reinforcing my conclusion that the environmental impact assessment obligation in the Environmental Protocol does not apply to activities under CCAMLR, it is interesting to note the absence of a reference to the Whaling Convention. Its absence is particularly noticeable when it is recalled that the previous paragraph in the Madrid Final Act did refer to the Whaling Convention when noting that nothing in the Protocol will derogate from other instruments.[30] However, this absence of reference to the Whaling Convention in the Madrid Final Act is insufficient to override the conclusion that Article 8 does not apply to whaling activities.
The actual effect of Article 8 should also be noted. It merely obliges an environmental impact assessment to be conducted—that the ‘procedures set out in Annex I are applied in the planning process leading up to decisions about any’ science, tourism or Article VII(5) activities. Where a comprehensive environmental evaluation is required to be undertaken,[31] a decision on proceeding with the activity must be ‘based on’ that evaluation.[32] However, even where the evaluation shows that there is a risk of environmental damage, this obligation will not necessarily always prohibit the activity from proceeding or oblige that sufficient safeguards are to be put in place.
As such, Article 8 does not adequately regulate the ancillary activities of fishing and whaling vessels.
Article 15—response to environmental emergencies
Article 15 of the Environmental Protocol provides:
1. In order to respond to environmental emergencies in the Antarctic Treaty area, each Party agrees to:
(a) provide for prompt and effective response action to such emergencies which might arise in the performance of scientific research programmes, tourism and all other governmental and non- governmental activities in the Antarctic Treaty area for which advance notice is required under Article VII(5) of the Antarctic Treaty, including associated logistic support activities; and
(b) establish contingency plans for response to incidents with potential adverse effects on the Antarctic environment or dependent and associated ecosystems.
Article 15 therefore encompasses two distinct obligations—to provide prompt and effective response action once an emergency occurs, and to establish contingency plans ahead of time. The obligation in sub-paragraph 15(1)(a) to provide for prompt and effective response action to environmental emergencies is expressly limited to emergencies arising from Article VII(5) activities. Again, in light of my conclusion above about the scope of this formulation, environmental emergencies arising from the ancillary activities of fishing and whaling vessels will not be covered by sub- paragraph 15(1)(a).
However, the scope of the obligation in sub-paragraph 15(1)(b) is not limited to Article VII(5) activities. As such, Parties are obliged to establish contingency plans for responding to incidents with potential adverse environmental effects arising from all activities covered by the Protocol, including the ancillary activities of fishing and whaling vessels in the Antarctic Treaty area. Obliging contingency plans for adverse environmental effects that might arise from ancillary activities in no way affects the ability of Parties to undertake fishing or whaling. As such, neither Article 4(2) of the Environmental Protocol nor Article VI of the Antarctic Treaty prevents the application of sub-paragraph 15(1)(b) to ancillary activities.
Some Parties to the Environmental Protocol might disagree with my conclusion that sub-paragraph 15(1)(b) applies to the ancillary activities of fishing and whaling vessels. One obvious argument in favour of limiting its scope is that paragraph 15(1) as a whole is directed towards responding to environmental emergencies, and it would be unusual for its two sub-paragraphs to have different scopes. The limited scope of sub-paragraph (a) might therefore be transposed into sub-paragraph (b). However, neither the terms of sub-paragraph (b) nor the remainder of paragraph (1) create the impression that this was the intention. As such, sub-paragraph 15(1)(b) must apply to the ancillary activities of fishing and whaling vessels.
The substance of the two obligations in Article 15 is important, as it goes directly to the core of what I am attempting to address in this paper. That is, what can be done to address environmental impacts arising from the ancillary activities of fishing and whaling vessels, both proactively and reactively. Sub-paragraph 15(1)(b) addresses the proactive side of this enquiry, in obliging contingency plans. As this obligation applies to the ancillary activities of fishing and whaling vessels, the proactive side is adequately addressed. Sub-paragraph 15(1)(a) addresses the reactive side, obliging prompt and effective response action. However, as it excludes environmental emergencies arising from the ancillary activities of fishing and whaling vessels, the reactive side is not adequately regulated.
Article 16—obligation to ‘elaborate rules and procedures relating to liability for damage ...’
Article 16 of the Environmental Protocol obliges the Parties to ‘elaborate rules and procedures relating to liability for damage arising from activities taking place in the Antarctic Treaty area and covered by this Protocol’, to be included in one or more Annexes. In the Madrid Final Act, the Parties ‘underlined’ this commitment in Article 16 to elaborate legally binding rules on liability and clarified that it would cover liability for damage to the Antarctic environment.[33]
Liability relates to the consequences of an act, and is therefore reactive. The terms of Article 16, ‘rules and procedures relating to liability for damage’, is broad enough however to encompass a wider scope should the Parties wish their elaboration to do so. In contrast to sub-paragraph 15(1)(a), Article 16 applies to all activities ‘taking place in the Antarctic Treaty area and covered by this Protocol’. As the ancillary activities of fishing and whaling vessels in the Antarctic Treaty area are covered by the Environmental Protocol, and specifically are not excluded by Article 4(2) of the Protocol or Article VI of the Antarctic Treaty, the elaboration of rules and procedures relating to liability for damage obliged by Article 16 must include environmental impacts arising from such ancillary activities.
The collective fulfilment of this obligation in Article 16 by the Parties to the Environmental Protocol is proving to be a protracted and difficult process.[34] A compromise to take a step-by-step approach, whereby more contentious issues were left to future negotiations and additional Annexes, ultimately allowed the Parties to
adopt Annex VI to the Environmental Protocol[35] in 2005 as the ‘first step’ in fulfilling their obligation.
Annex VI essentially acts as an elaboration of the obligations in Article 15, obliging preventative measures and contingency plans for possible environmental emergencies, and prompt and effective response action once an emergency occurs. It also imposes financial liability for any failure to undertake prompt and effective response action. In light of its connection with Article 15, the Parties (some reluctantly) agreed to restrict the scope of Annex VI to Article VII(5) activities. As such, Annex VI will not apply to the ancillary activities of fishing and whaling vessels. This result is confirmed by the Final Report of the Twenty-Eighth Antarctic Treaty Consultative Meeting,[36] at which Annex VI was adopted. Annex VI will not enter into force until it is approved by all twenty-eight Consultative Parties. The Parties are currently working towards implementing its provisions, and it is unlikely that Annex VI will enter into force anytime soon.[37]
In light of the experienced difficulties in negotiating Annex VI, and the expected difficulties in bringing it into force, it will be understandable if Parties do not rush to complete the step-by-step process of fulfilling their obligation under Article 16 of the Environmental Protocol. Even so, the Parties remain obliged to elaborate a comprehensive liability regime and, as discussed, this must cover damage arising from the ancillary activities of fishing and whaling vessels.
4. Summation
Whilst the ancillary activities of fishing and whaling vessels are not excluded from the scope of the Environmental Protocol, the application of the obligations in the Protocol to such activities is limited. Most significantly, this is due to the scope of many obligations being limited to Article VII(5) activities; a formulation that does not encompass the ancillary activities of fishing and whaling vessels.
Two obligations that do apply to the ancillary activities of fishing and whaling vessels are the general principles in Article 3 and the requirement to establish contingency plans in sub-paragraph (1)(b) of Article 15. These two obligations are directed towards the proactive side of addressing the environmental impacts of ancillary activities. What the Environmental Protocol fails to adequately regulate is the reactive side—what happens when an environmental impact actually occurs.
Arguably, the Protocol already contains the appropriate mechanisms to adequately address the reactive side of environmental impacts. Sub-paragraph (1)(a) of Article 15 obliges prompt and effective response action to environmental emergencies, with Annex VI elaborating this obligation and providing for financial liability in the case of failure to act. The deficiency is the limitation of the scope of these mechanisms to Article VII(5) activities. Although this formulation is no doubt appropriate in a great many instances in the Protocol, I submit that it is wholly inappropriate in Article 15.
As noted in the chapeau to its paragraph (1), Article 15 is aimed at responding to environmental emergencies in the Antarctic Treaty area. In light of the overarching objective of the Environmental Protocol for the comprehensive protection of the Antarctic environment and dependent and associated ecosystems, there can be no justification whatsoever for limiting the scope of Article 15 to responding to only some environmental emergencies arising in the Antarctic Treaty area. To allow such limitation implicitly condones the creation of other environmental emergencies in Antarctica, and thereby puts at grave risk the comprehensive protection towards which the Environmental Protocol is aimed. The Parties to the Environmental Protocol are therefore morally encumbered to address this deficiency.
Part B—Regulation under other regimes
Several Parties will argue that the Environmental Protocol should not regulate the ancillary activities of fishing and whaling vessels, not because they are comfortable with the risk posed by such activities going unregulated, but because, they say, they are more appropriately regulated by other regimes. For example, in arguing for a limited scope for Annex VI to the Environmental Protocol:
... several delegations proposed that the Annex should not be applied to the activities of fishing vessels, expressing the view that the relationship between the Protocol and activities covered by CCAMLR was regulated by the Protocol together with the Madrid Final Act, and that the issue was better addressed in that context.[38]
In order to determine whether this lacuna indeed exists, I will explore the extent to which other regimes might already adequately regulate the ancillary activities of fishing and whaling vessels.
1. CCAMLR
Obligations
The objective of CCAMLR is ‘the conservation of Antarctic marine living resources’.[39] As noted above, the major obligations created by CCAMLR are in Article IX for Commission Members to comply with conservation measures set by the Commission and in Article XXIV for all Contracting Parties to comply with the system of observation and inspection. This latter obligation relates to permitting access to fishing vessels, with a view to checking compliance with the obligations under the Convention. Although this might prove a useful mechanism for ensuring compliance should CCAMLR provide adequate regulation of the ancillary activities of fishing vessels, it does not create that regulation itself.
The matters to be covered by conservation measures are set out in paragraph IX(2) of CCAMLR. Although these largely refer to regulating the quantity, species, location, timing and method of catch permitted, sub-paragraph (i) provides that the power to adopt conservation measures also includes:
the taking of such other conservation measures as the Commission considers necessary for the fulfilment of the objective of this Convention, including measures concerning the effects of harvesting and associated activities on components of the marine ecosystem other than the harvested populations.
In referring to the effects of ‘associated activities’ on components ‘other than the harvested population’, this provision might be seen as giving the Commission power to pass conservation measures relating to the environmental impacts of the ancillary activities of fishing vessels. However, the conservation measure must still be ‘for the fulfilment of the objective of the Convention’, being the conservation of marine living resources. Further, the effects contemplated by the provision are only those on components of the marine ecosystem. As such, environmental impacts on the terrestrial ecosystem, such as oil leaking from a fishing vessel accumulating onshore, would be outside of the scope of this sub-paragraph.
Paragraph IX(2) of CCAMLR is a non-exhaustive list and, as such, its sub-paragraphs do not limit the potential scope of CCAMLR conservation measures—the Commission is therefore not prevented from adopting broader conservation measures. Rather, the words of sub-paragraph IX(2)(i) reveal the philosophy behind conservation measures, and thereby behind CCAMLR more broadly. That is, CCAMLR is aimed towards the conservation, including sustainable use, of the living components of the Antarctic marine ecosystem. It focuses on harvesting activities, as well as the impacts of ‘associated’ activities on other living components of the marine ecosystem—this would, for example, encompass the by-catch of non-target species from fishing activities.[40] However, CCAMLR is for the most part not directed towards broader environmental impacts that might arise from ancillary activities.
Even though the Commission is able to adopt conservation measures covering broader environmental impacts, the philosophy discussed above is evident in the fact that the Commission has only acted to regulate such impacts to a very limited extent.
Conservation Measure 26-01 (2006), entitled ‘General environmental protection during fishing’, is aimed towards minimising ‘possible effects on the marine environment arising from fishing-related activities in the context of mitigating incidental mortality of non-target species and protecting the marine environment’.[41]
The operative part of the Measure does three things. First, it prohibits the use of certain plastic packaging bands, primarily to prevent the incidental mortality of Antarctic fur seals. Second, it prohibits the dumping or discharge of certain substances from vessels, including oil and fuel products, garbage and sewage. However, the discharge of oil and fuel is not prohibited if it is permitted by Annex I to MARPOL 73/78[42]—Regulation 11 of Annex I to MARPOL 73/78 provides that a discharge of oil resulting from damage to a ship or its equipment is not prohibited provided all reasonable precautions are taken to prevent or minimise the discharge. As such, Conservation Measure 26-01 does not prohibit the discharge of oil resulting from damage to a vessel. Third and finally, the Conservation Measure places restrictions on bringing poultry into the Antarctic Treaty area.
Similarly, the non-binding Resolution 20/XXII on ‘Ice-strengthening standards in high latitude fisheries’ recommends a minimum standard for ice-strengthening of fishing vessels for the dual purposes of ensuring the safety of vessels and crew[43] and protecting the Antarctic environment from oil spills.[44]
Both Conservation Measure 26-01 and Resolution 20/XXII are significant—they go beyond the traditional philosophy of CCAMLR to show that it is possible for conservation measures to regulate broader environmental impacts of fishing activities. However, these examples are isolated and, in themselves, are insufficient to adequately regulate the ancillary activities of fishing vessels. Take the scenario I cited at the beginning of this paper—an accidental oil leak resulting from damage to a vessel. Whilst ice-strengthening might reduce the risk of this happening, Conservation Measure 26-01 does not prohibit such an event due to the carve-out in Annex I of MARPOL 73/78. Even if an oil discharge was prohibited by Conservation Measure 26-01, it would not oblige prompt and effective response action to curtail it once it occurs. Improved regulation is clearly required.
Relationship with Antarctic Treaty
CCAMLR contains provisions relating to complementarity between Measures under the Antarctic Treaty and its own conservation measures. Article V(2) obliges Contracting Parties that are not Parties to the Antarctic Treaty to observe Measures under the Antarctic Treaty ‘as and when appropriate’. Further, Article IX(5) obliges the Commission to ‘take full account’ of Antarctic Treaty Measures, to ensure there is no inconsistency with CCAMLR conservation measures.
The Environmental Protocol takes a similar approach, with Article 5 providing:
The Parties shall consult and cooperate with the Contracting Parties to the other international instruments in force within the Antarctic Treaty system and their respective institutions with a view to ensuring the achievement of the objectives and principles of this Protocol and avoiding any interference with the achievement of the objectives and principles of those instruments or any inconsistency between the implementation of those instruments and of this Protocol.
Both CCAMLR and the Environmental Protocol therefore envisage a collaborative and cooperative approach. Given that neither regime currently adequately regulates the ancillary activities of fishing vessels, there is scope for a collaborative response to the problem.
2. Whaling Convention
The substantive provisions of the Whaling Convention are set out in its Schedule, which forms an integral part of the Convention.[45] Article V(1) provides that the Commission may amend the provisions of the Schedule by adopting regulations with respect to the conservation and utilisation of whale resources. These regulations may only do one of a fixed list of things, namely fixing:
(a) protected and unprotected species;
(b) open and closed seasons;
(c) open and closed waters, including the designation of sanctuary areas;
(d) size limits for each species;
(e) time, methods, and intensity of whaling (including the maximum catch of whales to be taken in any one season);
(f) types and specifications of gear and apparatus and appliances which may be used;
(g) methods of measurement;
(h) catch returns and other statistical and biological records; and
(i) methods of inspection.
Article V of the Whaling Convention therefore does not permit amendments to the Schedule relating to regulation of the ancillary activities of whaling vessels. As the Schedule currently contains no regulation of this type, it is clear that the Whaling Convention is not capable of providing adequate regulation of the ancillary activities of whaling vessels.
Article VI permits the Commission to make recommendations, by simple majority, on any matters which relate to whales or whaling and the objectives and purposes of the Convention. Even if this mechanism could be used with respect to the ancillary activities of whaling vessels, the product would be non-binding and therefore would not amount to adequate regulation.
Part C—The way forward
Although the Environmental Protocol regulates the ancillary activities of fishing and whaling vessels to a limited extent, this regulation is not adequate to achieve the comprehensive protection of the Antarctic environment and dependent and associated ecosystems to which the Parties have committed themselves. Likewise, CCAMLR conservation measures address some of the broader environmental effects of fishing activities, but this does not result in adequate regulation of the ancillary activities of fishing vessels. The Whaling Convention fails completely to regulate any ancillary activities of whaling vessels, thereby leaving it up to the deficient regulation under the Environmental Protocol. If the Antarctic environment is going to be comprehensively protected against all environmental emergencies, irrespective of their source, something must be done.
1. The options
There are several means open to the Parties to either the Environmental Protocol or CCAMLR to address the current deficiency in the regulation of the ancillary activities of fishing and whaling vessels. These include:
(i) Article 15 of the Environmental Protocol can be amended to expand its scope beyond Article VII(5) activities;
(ii) Annex VI to the Environmental Protocol can be amended to likewise remove the limitation to the Article VII(5) formulation;
(iii) The ‘next step’ in fulfilling the obligation under Article 16 can be used to create an obligation to prevent and respond to environmental impacts arising from the ancillary activities of fishing and whaling vessels;
(iv) The Antarctic Treaty Consultative Meeting can adopt a Measure obliging the extension of the obligation in Article 15 to the ancillary activities of fishing and whaling vessels; or
(v) The CCAMLR Commission can adopt a conservation measure covering the broad environmental impacts which might arise from the ancillary activities of fishing vessels.
I will examine the pros and cons of each of these options in-turn.
Amending Article 15
As noted above, sub-paragraph (1)(a) of Article 15 of the Environmental Protocol obliges prompt and effective response action to environmental emergencies in the Antarctic Treaty area. Although this obligation currently extends only to Article VII(5) activities, it represents an ideal mechanism to make up the deficiency over regulation of the ancillary activities of fishing and whaling vessels. As also discussed above, the restriction of this obligation to Article VII(5) activities is wholly inappropriate. Article 15 could therefore be amended to remove this restriction from sub-paragraph (1)(a).
Were Article 15 to be amended in this way, the obligation to undertake prompt and effective response action would apply to environmental emergencies arising from all activities covered by the Environmental Protocol. The obligation would not apply to any activity that is excluded from the scope of the Protocol by virtue of its Article 4(2) or Article VI of the Antarctic Treaty, such as the actual taking of fish or whales. However, the obligation would certainly apply to the ancillary activities of fishing and whaling vessels, and would therefore oblige response action when a fishing or whaling vessel caused an environmental emergency. Although Article 15 does not elaborate what prompt and effective response action entails, this amendment would go a long way to addressing the inadequate regulation of the ancillary activities of fishing and whaling vessels.
Amendments to the Environmental Protocol are to be effected in the same way as amendments to the Antarctic Treaty.[46] That is, an amendment must be adopted by consensus by the Consultative Parties, and will not enter into force until all Consultative Parties have entered their ratifications to it.[47] This requirement for all Consultative Parties to agree to an amendment could serve as a significant hurdle. Even if all Consultative Parties are willing, or can be persuaded, the time to reach consensus and achieve entry into force could be considerable. As such, although amendment of Article 15 is an appropriate response to the identified deficiency in the Environmental Protocol, it will not be easy to effect.
Amending Annex VI
As noted above, Article 15 of the Environmental Protocol only provides for a vague obligation to undertake prompt and effective response action. It is the recently adopted Annex VI to the Environmental Protocol that elaborates this obligation. Removing the limitation to Article VII(5) activities found in Annex VI would complement the proposed amendment to Article 15 discussed above by ensuring that the details of what constitutes prompt and effective response action will also apply to the ancillary activities of fishing and whaling vessels. This proposal would go even further in addressing the inadequate regulation currently present in the regime.
Amendments to Annex VI are to be effected by the adoption of a Measure at an Antarctic Treaty Consultative Meeting,[48] which therefore requires the consensus of all Consultative Parties.[49] Although an accelerated entry into force mechanism is provided for in Annex VI, whereby an amendment will automatically enter into force one year after adoption, the Measure adopting an amendment may specify that the approval of all Consultative Parties is required for entry into force.[50]
In addition to the hurdle created by the consensus requirement discussed above, several Consultative Parties undertook concerted efforts to ensure that the scope of Annex VI to the Environmental Protocol was restricted to Article VII(5) activities.[51] These Consultative Parties are highly unlikely to change their view on their preferred scope of Annex VI so recently after its adoption. Further, given the already present difficulties in bringing Annex VI into force,[52] even Consultative Parties that favoured a broader scope for Annex VI might be reluctant to expand its scope now, lest such a move further delays the Annex’s entry into force.
Even though it would clearly be desirable to expand the scope of Annex VI to the Environmental Protocol beyond Article VII(5) activities, the reality is that such an expansion would be extremely difficult to achieve in the foreseeable future. Saying this, the scope provision of the Annex actually makes explicit reference to the possibility of its expansion in the future.[53] Although this reference merely restates what is already possible under the amendment mechanism of Annex VI, it was included to recognise the significant opposing view that the scope should not be so limited[54]—many States, including Australia, fought long and hard during the negotiations of Annex VI in seeking to expand its scope to cover the ancillary activities of fishing activities. As I have previously stated,[55] the inclusion of these words in the scope provision provides some political justification to maintain pressure for expanding the scope in the future.
Next step under Article 16
As noted above, Article 16 of the Environmental Protocol applies to all activities ‘taking place in the Antarctic Treaty area and covered by this Protocol’. As the ancillary activities of fishing and whaling activities are not excluded by Article 4(2) of the Protocol or Article VI of the Antarctic Treaty, the elaboration of a liability regime under Article 16 must include environmental impacts arising from such ancillary activities.
Whilst the first step towards fulfilling the obligation in Article 16 manifested in Annex VI to the Environmental Protocol applies only to Article VII(5) activities, the subsequent steps must therefore cover all activities covered by the Protocol. Although the next step to fulfilling Article 16 must cover the ancillary activities of fishing and whaling vessels, the type of liability that such a next step is to cover is not prescribed by Article 16. For example, although such a move would be prudent in light of the Parties’ commitment to the comprehensive protection of the Antarctic environment, the extension of an obligation to undertake prompt and effective response action to environmental emergencies arising from the ancillary activities of fishing and whaling vessels is not necessarily required by Article 16.
As such, whilst Article 16 obliges some kind of liability regime to be established with respect to the environmental impacts of all activities covered by the Environmental Protocol, including the ancillary activities of fishing and whaling activities, there is no guarantee that such a regime will adequately regulate such ancillary activities. Further, whatever substance the next step to fulfilling Article 16 will contain, the efforts already exerted in negotiating Annex VI to the Environmental Protocol and the difficulties in bringing it into force make it very unlikely that Parties will embark on this next step anytime soon.
ATCM Measure
Article 10(1)(b) of the Environmental Protocol permits Antarctic Treaty Consultative Meetings to ‘adopt measures under Article IX of the Antarctic Treaty for the implementation of the Protocol’. As a Measure is binding on all Consultative Parties (and non-Consultative Parties that have accepted it) once it becomes effective, it is possible for an Antarctic Treaty Consultative Meeting to adopt a Measure obliging certain action with respect to the ancillary activities of fishing and whaling vessels. For example, a Measure might complement the current obligation in Article 15 of the Protocol by obliging prompt and effective response action to environmental emergencies arising from such ancillary activities. The effect of such a Measure would be the same as an amendment to Article 15 discussed above.
Measures adopted at Antarctic Treaty Consultative Meetings require the consensus of all Consultative Parties,[56] and do not enter into force until approved by all Consultative Parties.[57] This is the same requirement imposed by Article XII of the Antarctic Treaty for amendments to the Environmental Protocol. Therefore, bringing a Measure into force will meet the same difficulties as bringing an amendment to the Protocol into force—there is no procedural advantage of proceeding with a Measure rather than an amendment to the Protocol to extend the obligation to take prompt and effective response action to environmental emergencies arising from the ancillary activities of fishing and whaling vessels. There may be a political advantage in proceeding with a Measure, however, as Parties might be reluctant to pursue an amendment lest it induces proposals for amendments of other parts of the Protocol or the Treaty.
CCAMLR conservation measure
I have shown above that the CCAMLR Commission is capable of adopting a conservation measure applying to the ancillary activities of fishing vessels. Adopting a conservation measure that obliges certain action to be taken when a significant environmental impact arises from an ancillary activity of a fishing vessel would also go a long way to making up the deficiency in current regulation. Undertaking such regulation within the auspices of CCAMLR should appease the concerns of several States about the Environmental Protocol encroaching into the area of responsibility of CCAMLR. Of course, it is possible that at least some of these States do not want this type of regulation applying to fishing vessels at all, and they will devise a new argument as to why CCAMLR should not take this action. However, raising this proposal in CCAMLR will at least bring any such arguments to light and will allow States wanting to pursue this type of regulation the opportunity to counter them.
The adoption of a conservation measure by the CCAMLR Commission must be by consensus.[58] The measure will enter into force for all Commission Members 180 days after its adoption has been notified, except that a Member may notify within 90 days of notification that it will not be bound by the measure.[59] As with Measures under the Antarctic Treaty and the Environmental Protocol, the agreement of all Commission Members is therefore required to adopt a CCAMLR conservation measure and a conservation measure will not enter into force for a Member without its at least tacit consent. However, the entry into force of a CCAMLR conservation measure does not need to wait for the approval of all Members, and the inability of any one Member to accept a conservation measure does not prevent it entering into force for all other Members. On this basis, a CCAMLR conservation measure is easier to bring into force than a Measure under the Antarctic Treaty.
Of course, any conservation measure adopted by the CCAMLR Commission will apply only to the activities of fishing vessels—it will do nothing to improve the regulation of whaling vessels. Additionally, leaving this kind of regulation to CCAMLR alone effectively amounts to an abandonment by the Parties to the Environmental Protocol of their commitment to the comprehensive protection of the Antarctic environment and dependent and associated ecosystems. It is not ideal, therefore, to leave this type of regulation to CCAMLR alone.
2. A collaborative approach
To ensure that the ancillary activities of both fishing and whaling vessels are regulated, that the environmental impacts arising from the ancillary activities of fishing vessels are regulated consistently with impacts from all other sources and that the Parties to the Environmental Protocol properly fulfil their commitment to the protection of the Antarctic environment, it is important that this kind of regulation is not left to CCAMLR alone. At the same time, there are definite advantages from CCAMLR undertaking this regulation itself. An ideal approach, therefore, might be for both CCAMLR and the Environmental Protocol to collaboratively regulate the ancillary activities of fishing and whaling vessels—the CCAMLR regulation would permit ‘control’ to be exercised by CCAMLR Parties to ensure broader CCAMLR objectives are not undermined, and Environmental Protocol regulation would ensure application to the ancillary activities of whaling vessels and that this aspect of environmental protection is not arbitrarily separated from the broader protection of the Antarctic environment.
With respect to the Environmental Protocol, the Parties could, either through an amendment to Article 15 or the adoption of a Measure, extend the obligation to undertake prompt and effective response action to all environmental emergencies arising from activities within the scope of the Protocol, which would of course include the ancillary activities of fishing and whaling vessels. If, due to the absence of elaboration of this obligation in Article 15, this approach proves insufficient, the Parties may later contemplate applying the elaborated rules contained in Annex VI to the Environmental Protocol to this broader category of environmental emergencies. This could be achieved either through an amendment to the scope of Annex VI or as part of the ‘next step’ to fulfilling the obligation in Article 16 of the Protocol.
With respect to CCAMLR, the Commission could adopt a conservation measure obliging equivalent action to be taken when a significant environmental impact arises from an ancillary activity of a fishing vessel.
The Parties to the respective instruments could utilise the cooperation provisions, found in Article 5 of the Environmental Protocol and Article IX(5) of CCAMLR, to ensure that regulatory measures taken under each are consistent and appropriately pursue the respective objectives and principles of each instrument. For example, if determined to be necessary to take account of any special circumstances or particular concerns in the CCAMLR context, the details of the obligation in Article 15 of the Environmental Protocol could be modified to the extent that the obligation applies to fishing and whaling vessels. Undertaking a collaborative approach is an ideal means to, on one hand, ensure that the ancillary activities of fishing and whaling vessels are adequately regulated and, on the other hand, take account of political sensitivities with respect to the regulation of fishing activities under the auspices of the Environmental Protocol.
[∗] Michael Johnson works as
a Senior Legal Officer in the Office of International Law in Australia’s
Attorney-General’s
Department. The views expressed in this paper are the
author’s own, and do not necessarily represent the views of the Australian
Government.
[1] See Information
Paper 40, ‘Fire on Board the Japanese Whaling Vessel Nisshin Maru’,
submitted by New Zealand to the 30th Antarctic Treaty Consultative
Meeting (2007) (ATCM XXX); available at:
http://30atcm.ats.aq/30atcm/Documents/Docs/ip/Atcm30_ip040_e.doc.
[2]
[1961] ATS 12.
[3] [1998] ATS
6.
[4] Article 2 of the
Environmental Protocol.
[5] See
Article 4(2) of the Environmental Protocol, and discussion below in Part
A–1.
[6] Article 1(b) of the
Environmental Protocol, Article VI of the Antarctic
Treaty
[7] This status is
established by the Protocol in the terms of its preamble, the identical area of
coverage provided for in Article 1(b),
the relationship with the Treaty provided
for in Article 4(1) and the requirement for joint membership in Articles 21 and
22.
[8] [1987] ATS
11.
[9] [1982] ATS
9.
[10] Each has a different
depositary (CCAS Article 11, CCAMLR Article XXVII) and no requirement for joint
membership. CCAMLR explicitly
envisages separate membership (Articles
III–V) and has a broader territorial scope (Article
I).
[11] See first recital of the
preamble to CCAS, and fifth to eighth recitals of the preamble to
CCAMLR.
[12] Article 1 of CCAS
‘affirms’ Article IV of the Treaty; Articles III–V of CCAMLR
oblige Parties to comply with Article
I and Articles IV–VI of the Treaty,
and certain Measures of the Antarctic Treaty Consultative
Parties.
[13] [1948] ATS
18.
[14] 30 ILM
1460.
[15] [1974] ATS
2
[16] Article VII(2) of
CCAMLR.
[17] Article IX of
CCAMLR.
[18] Article XXIV of
CCAMLR.
[19] [1994] ATS 31; see
Articles 87 and 116.
[20] Article
4(1) of the Environmental
Protocol.
[21] See Articles 1(b),
21 and 22 of the Environmental
Protocol.
[22] See Articles 192
and 194 of UNCLOS, and particularly sub-paragraph 194(3)(b) on pollution from
vessels and paragraph 194(5) on protecting
rare or fragile
ecosystems.
[23] See Information
Paper 40, supra n.1.
[24]
Final Report of the Thirtieth Antarctic Treaty Consultative Meeting
(2007) (Final Report of ATCM XXX), at paragraphs 229–230; available
at:
http://30atcm.ats.aq/30atcm/Documents/Docs/fr/Atcm30_fr001_e.doc.
[25]
See the third and fourth recitals to the preamble of the Antarctic Treaty, and
its Articles II and III; and the sixth recital to
the preamble of the
Environmental Protocol and its Articles 3(3) and
6.
[26] Depending on the type of
regulation, this may also be contrary to Article 7 of Annex II to the
Environmental Protocol.
[27]
Working Paper 34, ‘Identification of Activities Covered by Article VII.5
of the Antarctic Treaty’, submitted by the Netherlands
to ATCM XXX (2007);
available at:
http://30atcm.ats.aq/30atcm/Documents/Docs/wp/Atcm30_wp034_e.doc.
[28]
Final Report of ATCM XXX (2007), supra n.24, at paragraph
51.
[29] Supra,
n.14.
[30] See supra n.14 and
associated text.
[31] See Article
3 of Annex I to the Environmental
Protocol.
[32] Article 4 of Annex
I to the Environmental
Protocol.
[33] Supra n.14, ninth
paragraph.
[34] For a discussion
on the elaboration of the liability regime, see Johnson, ‘Liability for
Environmental Damage in Antarctica—the
Adoption of Annex VI to the
Antarctic Environmental Protocol’ 19 Geo Int’l Envtl L Rev
33.
[35] Annex VI to the
Protocol on Environmental Protection to the Antarctic Treaty – Liability
Arising from Environmental Emergencies, available at
http://www.ats.aq/uploaded/ANNEXVI.pdf.
[36]
Final Report of the Twenty-Eighth Consultative Meeting (2005) (Final
Report of ATCM XXVIII), at paragraph 101 – available at:
http://www.ats.aq/Atcm/atcm28/fr/atcm28_fr001_e.doc.
[37]
On the difficulties of effecting entry into force, see Johnson, supra n.34, at
pp 52–53.
[38] Final Report
of ATCM XXVIII (2005), supra n.36, at paragraph
101.
[39] Article II(1) of
CCAMLR.
[40] See CCAMLR
Conservation Measures 25-02 (2005) relating to seabird by-catch and 25-03 (2003)
relating to seabird and marine mammal
by-catch.
[41] Final recital of
the preamble to CCAMLR Conservation Measure 26-01
(2006).
[42] International
Convention for the Prevention of Pollution from Ships 1973, as modified by
the Protocol of 1978 relating to the International Convention for the
Prevention of Pollution from Ships [1988] ATS
29.
[43] Second recital of the
preamble to CCAMLR Resolution
20/XXII.
[44] Ibid, fourth
recital.
[45] Article I(1) of the
Whaling Convention.
[46] Article
25(1) of the Environmental
Protocol.
[47] Article XII(1)(a)
of the Antarctic Treaty.
[48]
Article 13(1) of Annex VI to the Environmental
Protocol.
[49] Article IX(1) of
the Antarctic Treaty.
[50]
Article 13(2) of Annex VI to the Environmental
Protocol.
[51] See supra n.36 and
associated text; see also Johnson, supra n.34, at pp
42–44.
[52] Supra
n.37.
[53] Article 1 of Annex VI
to the Environmental
Protocol.
[54] See Final Report
of ATCM XXVIII (2005), supra n.36, at paragraph
101.
[55] See Johnson, supra.
n.34, at p 44.
[56] Article IX(1)
of the Antarctic Treaty.
[57]
Article IX(4) of the Antarctic
Treaty
[58] Article XII(1) of
CCAMLR.
[59] Article IX(6) of
CCAMLR.
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