Antarctica not secure yet

Forest and Bird, Volume 23, Issue 2, 1 May 1992, Unnumbered Page

Antarctica not secure yet

ALAN HEMMINGS

Antanctica has moved out of the news since the signing of the historic Environmental Protocol in Madrid last October. Many people think that the long struggle to protect the continent is over, the goals of the past decade achieved and

Antarctica saved. But, as

explains,

it is too early yet to celebrate.

* ANTARCTICA ° HILE THE Environmental Protocol is certainly an important step on the road to protecting the world’s last continental wilderness, it is far from the end of the matter. It may be signed, but it is not even completed, far less a binding international agreement. Signing simply puts the protocol in the same position as the Minerals Convention back in 1988, when it too was signed. Its entry into force is not guaranteed. For the protocol to become a binding international obligation it must be ratified by all 26 consultative parties to the Ant-’ arctic Treaty. That alone will take several years. Furthermore, we have not even started negotiation, let alone drafting, of rules on liability in the event of damage to the environment there. This is no minor issue. It took six years to negotiate, and a further two years to abandon, the Minerals Convention, yet the liability provisions in that regime were never completed. The goal of protecting Antarctica as a World Park, sought by Forest and Bird and others in the international Antarctic and Southern Ocean Coalition, has not yet been attained. So why the complacency about Antarctica since October? A major factor is the hype surrounding the signing. For the states of the Antarctic Treaty system it was an important testimonial to their claim to be acting in an internationally responsible manner towards Antarctica in the lead up to UNCED next month. It also restored some appearance of cohesion within the Antarctic Treaty system after the fiasco of the original June signing ceremony, aborted when the United States refused to sign. And, for environmental organisations, buffeted by both recession and

personnel burn-out, it could be seen as the light at the end of the tunnel. Everybody, it seems, wanted to project it as a victory. Greenpeace, the most prominent group in the campaign, followed the protocol signing by announcing removal of its World Park station from Antarctica — although clearly the decision predated the signing. At the same time, it substan-

tially cut the staff and resources available to its high-profile Antarctic campaign world-wide. Greenpeace’s US magazine declared that "few environmental campaigns constitute as great and unequivocal a victory as the successful decade-long struggle to protect Antarctica." Whether intended or not, it read like a valedictory. Antarctica disappeared as a media issue. HERE CAN BE little doubt that the protocol is a substantial advance on the Minerals Convention. Its 27 articles set out principles for the protection of Antarctica’s environment, rather than its exploitation. Attached to the protocol are a -number of technical annexes. At present there are five, dealing with environmental impact assessment, conservation of fauna and flora, waste disposal, marine pollution and protected areas. Further annexes can be added. States commit themselves to comprehensive protection of the Antarctic environment and its dependent and associated ecosystems. Antarctica is designated a natural reserve, devoted to peace and science. Science remains the priority Antarctic activity, but all human activities must undergo prior environmental impact assessment. Mineral resource activities, other than scientific research, are specifically prohibited, for a minimum of 50 years. A Committee for Environmental Protection is established in an advisory role and the Antarctic Treaty Consultative Meeting (the decision-making forum) will now convene annually.

The protocol has some weaknesses. It leaves individual states as the final judges of their own activities in most situations. Although the Committee for Environmental Protection may evolve into a stronger body, on paper at least it looks pretty weak. It is not the Antarctic environmental protection agency we had hoped for. Once the protocol has entered into force it cannot, for all intents and purposes, be reviewed for 50 years. However, after 50 years any nation can call for a review conference to consider, for example, lifting the mining ban. The US insisted on weakening the review process agreed in Madrid in April 1991, which required agreement of all consultative parties before any modification to the protocol could occur. Now, if the 26 consultative states have not ratified a future mining regime within three years, a state can simply give two years’ notice and walk out of the protocol. It can then mine in Antarctica outside any controls by the Antarctic Treaty system.

* ANTARCTICA*

The Antarctic Treaty system

NTARCTICA is controlled by the members of the Antarctic Treaty. This treaty, signed in 1959, came into force in 1961 and covers the area south of 60°S. It is usually credited with keeping the continent free of military and nuclear activities. It has also kept in check the issue of territorial claims. Seven nations claim sovereignty over parts of the continent (see map). Some of the claims overlap. Neither the United States nor the Soviet Union has recognised the seven claims, but both have reserved the right to make their own claims (and there is no reason to suppose the breakup of the Soviet Union will alter this). The remaining 150 plus nations in the world do not recognise anybody as having a legitimate claim in Antarctica. These conflicting positions are managed, under the treaty, through various devices, including consensus decision-making, free access to all parts of Antarctica and the fostering of science as the legitimate expression of national interest on the continent. From the original 12 signatories in 1959, the membership has now climbed to around 40. There are two classes of membership. The top tier are the "consultative parties" — nations active in Antarctica which usually have a station there. "Non-consultative parties" are states which have acceded to the treaty, but are not active in Antarctica — or states which have only just begun operations there, and will later become consultative parties. There

are currently about 26 consultative parties — the uncertainty relates to which of the states of the former Soviet Union will inherit its place — a "who’s who" of the developed world and major developing nations. There are 13 non-consultative parties. New Zealand is one of the onginal 12 consultative parties. Various subsidiary agreements have been added to the Antarctic Treaty. The expression "Antarctic Treaty system" has been coined to describe this developing body of agreements around the 1959 treaty. In addition to various "rules" agreed at Antarctic Treaty Consultative Meetings, major issues have been addressed through negotiation of conventions linked to the treaty. In this manner, the Antarctic nations agreed a Convention for the Conservation of Antarctic Seals and a Convention on the Conservation of Antarctic Marine Living Resources. During the 1980s, a minerals convention was negotiated under New Zealand chairing. Opposed on environmental grounds, it was nevertheless signed in Wellington in 1988. Opposition continued and during 1989 it was abandoned by first France and Australia, then Italy, Belgium and (in 1990) by New Zealand. Its rejection by these countries and others prevented the convention entering into force. The past two years have seen the negotiation, in its place, of an Environmental Protocol to the Antarctic Treaty, which includes a prohibition on minerals activities.

In practical terms this means that mining can occur in Antarctica 55 years after the entry into force of the protocol — with obviously serious environmental impacts. But the possibility of mining has more immediate implications too. It makes the ridiculous sovereignty claims in Antarctica far less resolvable and encourages states to continue staking their claims with more stations. Environmental protection and the quality of Antarctic research would have been better served by final resolution of the minerals issue. An unequivocal decision to prohibit Antarctic minerals exploitation in perpetuity would also have signalled a willingness to address the present unrestrained use of non-renewable resources worldwide. There are also omissions. As a protocol to the Antarctic Treaty, it applies to the same area as that treaty, the land and fastice areas south of 60°S. It does not have jurisdiction over the marine environment which supports the animals and plants of Antarctica. This is left to the Convention on the Conservation of Antarctic Marine Living Resources and the International Whaling Commission, neither of which have an impressive record. As Greenpeace film from Antarctica last summer shows, the serious issues of overfishing and continued whaling in Antarctic waters remain. Deep seabed mining is not specifically dealt with under the protocol. Quite where the deep seabed begins and ends in Antarctica is a contentious issue. With deep-water drilling technology developing apace, the seas around Antarctica are becoming more accessible. The supposed prohibition on mining under the protocol will be meaningless if it does not apply to the sedimentary basins below the sea floor around the continent. HE PROTOCOL is still not complete. The main body of the protocol includes reference to liability for damage caused by activities in Antarctica, but the rules and procedures are to be developed in a further annex. The issue is complex, involving decisions about what level of damage triggers the provisions, who is liable, what form liability takes, the extent of the liability, whether it is absolute and unlimited or limited in some way, and what happens if the liable party is unable to meet its obligations. In practical terms, we should expect the provisions to act as a real incentive to avoid environmentally risky behaviour in Antarctica. If, nonetheless, damage is inflicted somebody must clean it up and restore the environment to its

previous condition. Should restoration not be possible there may be a case for financial or other penalties. Decent liability provisions are the "teeth" of the new regime. No judicial system devoid of penalties would have any credibility. Similarly, untl this element is built into the Environmental Protocol it is not worth the paper it is written on. But it is not lability that officials and their governments want to tackle next. Remarkably, they are content to leave even discussion of what may be required until the next Treaty meeting in November. Their perennial bogey is tourism, or perhaps it is non-governmental expeditions — they never quite seem to know. In New Zealand, environmental groups have argued for the past two years that the best way of addressing any impacts of tourism is through rigorous regulations applying to all human activites. Bear in mind that every environmental horror story that has come out of Antarctica has been due to government-supported expeditions, not tourists. The protocol does apply to all activities, and provides the basis for regulating tourism. What we need now are not

further discriminatory rules for some visitors to Antarctica, but urgent work on the liability provisions and development of a strong Committee for Environmental Protection. These are the steps necessary to turn the protocol into something which really makes a difference in Antarctica. The protocol will not have legal effect until every consultative party has ratified it. This entails each state passing domestic legislation to make the protocol binding upon its own citizens. For some states — for example the United States, where the Senate must ratify any foreign treaty — this will take several years. The joker in the pack, unfortunately, remains the possibility that one or more states will decide not to ratify the protocol. What happens in regard to the states of the former Soviet Union is unclear. Even if Russia alone inherits the USSR’s consultative party status, ratification of an Antarctic protocol may not have any great prionity there at present. In New Zealand, the process could be finished by the end of the year if the Government gives the legislation some pnonity. One way to expedite the process is to re-introduce the Protected Areas (Prohibition on Mining) Bill, drawn up by the previous Labour Government.

What you can do

HE TWO PRIORITIES for New Zealand in 1992 must be domestic ratification of the protocol and leadership in the negotiation of the Annex on Liability. Please write to your MP and to the Ministers of Conservation, Environment and External Relations or the Prime Minister, calling on them to support the passage of the Protected Areas Bill and to direct their officials to begin work on liability rules as a matter of urgency. The Antarctic and Southern Ocean Coalition, of which Forest and Bird is a member, also needs your financial support. Donations towards the costs of protecting Antarctica may be sent to ASOC(NZ), PO Box 11-057, Wellington.

ANTARC TICA

This sought to prohibit mining in both Antarctica and New Zealand’s major conservation areas. Although both the Minister of External Relations and the Minister of Conservation have said they would support its reintroduction, there has been no progress to date. The domestic mining provisions seem to alarm some in government. Since ratification requires New Zealand to prohibit mining in Antarctica

anyway in what it calls a New Zealand dependency (the Ross Dependency), it would seem somewhat incongruous not to do the same in the protected areas at home. Although ensuring the protocol enters into force is important, it will only lead to a commitment on paper. There are numerous agreements, solemnly entered into, which we see flouted every day somewhere in the world. Indeed, Antarctica became an international issue, in part, precisely because the Antarctic Treaty states were breaching even their own rules. Ensuring that all this effort actually results in improved behaviour in Antarctica will be essential. This requires positive interpretation of the letter and spirit of the protocol, which like other parts of the Antarctic Treaty system has its share of deliberately ambiguous and woolly "obligations". New Zealand has an international responsibility, therefore, to establish strong precedents in the interpretation of the protocol and good models in its own Antarctic activities. OW CLOSE ARE WE toa World Park? Right now the protocol falls far short of the expectations for such a park. It is

not completed, not in force, does not address all the problems and seems to have a fixed lifetime. This does not mean that it cannot become an important instrument for attaining that World Park, if properly completed, interpreted and complied with. Fifty years should also be long enough to establish a no-mining use of Antarctica as a norm, to be extended in perpetuity. But, that will not happen if we wait 49 years before we do anything more. Antarctica is one part of the world where New Zealanders are particularly well placed to make a major contribution to an issue of international importance. It also offers a rare opportunity to safeguard the environment over a huge area, in a world where we are so often faced with a scramble to preserve just fragments.

Alan Hemmings is Forest and Bird’s newly appointed northern field officer. He has been a research fellow with the Antarctic Policy Group in Environmental Science at

the University of Auckland and a member of the Antarctic and Southem Ocean Coalition for the past four years. He spent two and a half years in Antarctica with the British Antarctic Survey.