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Regulating Antarctic Tourism and the Precautionary Principle

Published online by Cambridge University Press:  27 February 2017

Kees Bastmeijer  and
Ricardo Roma
Kees Bastmeijer
Affiliation:
Tilburg University, the Netherlands; c.j.bastmeijer@uvt.nl
Ricardo Roma
Affiliation:
Stichting Antarctica Network—ASOC, Amsterdam; ricardo.roura@worldonline.nl
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Extract

Antarctic tourism is a rapidly growing industry. From 1958 until 1987, an average of fewer than 1000 tourists visited Antarctica each season. In the 1993-1994 season, the tourists visiting Antarctica outnumbered the scientists for the first time. In recent years (1999-2003), between 13,000 and 15,000 tourists made landings in Antarctica, and during the last season (2003-2004) this number increased by 45 percent to more than 19,500 (see figure 1, p. 764). The estimate of total passengers for the 2003-2004 season, including those not landing, is over 27,000.

Type
Current Developments
Information
American Journal of International Law , Volume 98 , Issue 4 , October 2004 , pp. 763 - 781
Copyright
Copyright © American Society of International Law 2004

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References

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3 IAATO Overview of Antarctic Tourism: 2003–2004 Antarctic Season, Doc. XXVII ATCM/IP 63 (2004), available at <http://www.iaato.org/info.html>>Google Scholar .

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5 See the Web site of Antarctica XXI (“The First Air Cruise to Antarctica”), at <http://www.antarcticaxxi.com/> . It has been noted that the establishment of air links to Antarctica introduces new tourism opportunities. See, e.g., Norway, Report of the 2001 Norwegian Antarctic Inspection Under Article VII of the Antarctic Treaty and Article 14 of the Protocol on Environmental Protection to the Antarctic Treaty, [Committee for Environmental Protection] Doc. IV CEP ATCM XXIV/WP 25, at 2 (2001), available at <http://www.cep.aq/>>Google Scholar .

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7 See, e.g., Doc. XXVII ATCM/IP 63, supra note 3.

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18 This is the definition used by the International Association for Impact Assessment, taken from Environmental and Social Impact Assessment (Frank Varclay & Daniel A. Bronstein eds., 1995).

19 Cumulative Environmental Impacts in Antarctica: Minimisation and Management, Proceedings of IUCN Workshop on Cumulative Impacts in Antarctica, Washington, D.C. (Sept. 18–21, 1996) (M. de Poorter & J. C. Dalziell eds., 1996). The Protocol on Environmental Protection to the Antarctic Treaty, infra note 31, refers only to “cumulative impacts in the light of existing and known planned activities,” see Annex I, Arts. 2(1)(b), 3(2)(f), but the ATCM Guidelines for EIA in Antarctica, available at <http://www.cep.aq/> , state: “A cumulative impact is the combined impact of past, present, and reasonably foreseeable activities. These activities may occur over time and space and can be additive or interactive/synergistic . . . .” Id. at 11 (visited Sept. 23, 2004).

20 See, e.g., Assessment of the Possible Cumulative Environmental Impacts of Commercial Ship–Based Tourism in the Antarctic Peninsula Area (Robert J. Hofman & Joyce Jatko eds., 2001), available at <http://www.nsf.gov/pubs/2002/nsf02201/nsf02201.pdf> [hereinafter Assessment of Possible Impacts].

21 See IAATO, Chairman’s Report from the Aspen Meeting on Antarctic Tourism, Doc. ATCM XXV ATCM/IP 30 4 (2002), available at <http://www.iaato.org>>Google Scholar (“There was emphasis on the importance of addressing the possible cumulative impacts of ship–borne tourism, particularly at sites where there are regular landings.”).

22 Id. at 5–7.

23 Id. at 8.

24 Id.

25 See World Wildlife Fund (WWF), Cruise Tourism in the Arctic, at <http://www.panda.org/about_wwf/where_we_work/arctic/what_we_do/tourism/index.cfm>>Google Scholar (last modified May 28, 2004) (“WWF is concerned about the overall impacts on die marine and coastal environments of the Arctic caused by the increased traffic of all types of vessels, and die variability in tour operator and tourist conduct on die voyages.”). For a detailed report, see, for example, Herz, Michael & Davis, Joseph, Cruise Control: A Report on How Cruise Ships Affect The Marine Environment (2002), at; available at <http://www.oceanconservancy.org/site/DocServer/cruisecontrol.pdf?docID=141>Google Scholar . Awareness about the effects of cruising in the Antarctic marine environment may be increasing. See IAATO, supra note 21, at 5 (“It was pointed out that cumulative impacts upon the marine environment are an issue that may also warrant attention.”).

26 Antarctic Treaty, Dec. 1, 1959, 12 UST 794, 402 UNTS 71.

27 Id., Art. IX(2).

28 At the twenty–seventh ATCM, May 23–June 4, 2004,Google Scholar Ukraine became the twenty–ninth Antarctic Treaty Consultative Party. Draft Final Report of XXVII ATCM, para. 25 (2004) [hereinafter Draft XXVII ATCM Report].

29 ATCMs are hosted by the consultative parties in alphabetical order in English. At present, the ATCMs are held annually and last two weeks. At ATCMs, business is conducted in four official languages and by means of working groups, of which there are currently four: Liability, Legal & Institutional Matters, Tourism, and Operational Matters.

30 For a comprehensive discussion of the ATS, see, among others, F.M. Auburn, Antarctic Law and Policy (1982)Google Scholar. For a discussion of recent institutional developments in the ATS, see Scott, Karen, Institutional Developments Within the Antarctic Treaty System, 52 Int’l & Comp. L.Q. 473 (2003)Google Scholar. For a discussion of the Convention on the Conservation of Antarctic Marine Living Resources, see Erik Molenaar, Jaap, CCAMLR and Southern Ocean Fisheries, 16 Int’l J. Marine & Coastal L. 465 (2001)Google Scholar.

31 Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, 30 ILM 1455 (1991)Google Scholar [hereinafter Protocol].

32 Id., Art. 2. To date, thirty–two states have become contracting parties to the Protocol: all twenty–nine consultative parties, plus three contracting parties to the Antarctic Treaty that do not have consultative status (Canada, Greece, and Romania).

33 Id., Art. 3(1).

34 Id., Art. 7.

35 Id., Art. 8 & Annex I.

36 Id., Annexes II, V.

37 Id., Annexes III, IV.

38 Id., Annex V, Art. 8.

39 Obligations as regards a liability annex are laid down in Article 16 of the Protocol. Negotiations on a liability annex started in 1992 and agreement is expected to be reached within the next two years. The chairman of the working group on liability stated that it was his “aim to conclude negotiations on the Annex by the ATCM in Stockholm” (to be held June 6–17, 2005). Draft XXVII ATCM Report, supra note 28, para. 72.

40 The CEP was established by Article 11 of the Protocol. Its functions are stated in Article 12.

41 Protocol, supra note 31, Art. 10(1)(b).

42 In 1997 the total land area that was protected was 790 square kilometers, equivalent to approximately 0.007% of the continental area of Antarctica. See Hansom, James D.. &Gordon, John E.. Antarctic Environments and Resources: A Geographical Perspective 270 (1998)Google Scholar. This area will have increased somewhat since the entry into force of the Protocol in 1998.

43 At the Antarctic Tourism Workshop held by Antarctica New Zealand on June 23, 2000, two teams debated the statement that “Market Forces and Environmental Impact Assessment are enough to manage tourism.” The chair declared the negative team the winner by a narrow margin. Antarctica New Zealand, Proceedings of The Antarctic Tourism Workshop 3 (2000)Google Scholar (on file with authors).

44 See, e.g., Protocol, supra note 31, Art. 3(2)(e).

45 Article 8(2) of the Protocol provides:

Each Party shall ensure that the assessment procedures set out in Annex I are applied in the planning processes leading to decisions about any 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 under Article VII(5) of the Antarctic Treaty, including associated logistic support activities.

46 Richardson, Mike G.. Regulating Tourism in the Antarctic: Issues of Environment and Jurisdiction, in Implementing The Environmental Protection Regime For The Antarctic 71, 75 (Davor Vidas ed., 2000)CrossRefGoogle Scholar [hereinafter Implementing Environmental Protection].

47 Protocol, supra note 31, Art. 3(2)(c) & Annex I, Arts. 2(1), 3(2)(f). For an analysis of its application to tourism, see Hemmings, Alan D.. & Roura, Ricardo, A Square Peg in a Round Hole: Fitting Impact Assessment Under the Antarctic Environmental Protocol to Antarctic Tourism, Impact Assessment & Project Appraisal, Mar. 2003, at 13CrossRefGoogle Scholar; Kriwoken, Lome K.. & Rootes, David, Tourism on Ice: Environmental Impact Assessment of Antarctic Tourism, Impact Assessment & Project Appraisal, June 2000, at 138CrossRefGoogle Scholar.

48 International Association for Impact Assessment, Home Page, at <http://www.iaia.org>>Google Scholar .

49 Cooper, Lourdes M.. & Sheate, William R.. Integrating Cumulative Effects Assessment into UK Strategic Planning: Implications of the European Union SEA Directive, Impact Assessment & Project Appraisal, Mar. 2004, at 5, 6CrossRefGoogle Scholar.

50 Id. at 6.

51 Bush, William, Means and Methods of Implementation of Antarctic Environmental Regimes and National Environmental Instruments: An Exercise in Comparison, in Implementing Environmental Protection Google Scholar, supra note 46, at 21, 25.

52 Hemmings & Roura, supra note 47. A similar concept was expressed by Argentina at the seventh CEP meeting and twenty–seventh ATCM. Interim Final Report of the Committee for Environmental Protection (CEP VII), paras. 74, 75 (2004), available at <http://www.cep.aq/>>Google Scholar [hereinafter Interim CEP VII Report].

53 Hemmings & Roura, supra note 47, at 17.

54 Gee, Dianne, EIA and the Antarctic Tourism Industry, Whose Business Is It? Impact Assessment For Industrial Development: Abstracts Volume 27–28 (2004)Google Scholar (poster presented at IAIA 24th Annual Conference).

55 Hemmings & Roura, supra note 47, at 19.

56 See, e.g., ASOC, Antarctic Strategic Environmental Assessment: Application to the Growing Antarctic Tourism Industry, Doc. XII Special ATCM/IP 10 (2000), available at <http://www.cep.aq/>>Google Scholar ; Kriwoken & Rootes, supra note 47.

57 Kriwoken & Rootes, supra note 47, at 145–46.

58 Conceptually, both ex ante assessment and ex post monitoring of impact are indeed part of the EIA process. In the Antarctic context, somewhat confusingly, mere are monitoring initiatives that take place independently of EIA processes, and some EIA processes that do not include a monitoring component.

59 See, e.g., Giese, Melissa, Guidelines for People Approaching Breeding Groups of Adélie Penguins (Pygoscelis adeliae), 34 Polar Rec. 287 (1998)Google Scholar; Patterson, Donna L.. Easter-Pilcher, Andrea L.. & Fraser, William R.. The Effects of Human Activity and Environmental Variability on Long– Term Changes in Adélie Penguin Populations at Palmer Station, Antarctica, in Antarctic Biology in A Global Context 301, 306 (A. H. L. Huiskes et al. eds., 2003)Google Scholar.

60 See United States, Monitoring and Assessment of Activities: Approaches Taken by the Antarctic Site Inventory, Doc. XXVIIATCM WP 11 (2004), available at <http://www.ats.org.ar/27atcrn/>>Google Scholar (“In ten seasons of fieldwork, beginning in November 1994, the Antarctic Site Inventory has demonstrated an ability to reach Antarctic Peninsula visitor sites frequently and cost–effectively. Through February 2004, Inventory researchers have made 570 visits to 89 Peninsula locations.”).

61 See United Kingdom, Proposed Amendment of Recommendation XVIII–1 (1994)Google Scholar: “Site Guidelines” for Sites Visited by Tourists, Doc. XXVII ATCM/WP 26 (2004), available at <http://www.ats.org.ar/27atcm/>>Google Scholar .

62 Interim CEP VII Report, supra note 52, Annex 6.

63 Presentation by Oceanites Inc. at the ATME, Norway (Mar. 22–25, 2004).

64 See Antarctica New Zealand, supra note 43, at 13. According to one of the opponents, “[EIA] simply evaluates impacts from single projects or expeditions. It is rarely good at assessing cumulative impacts and does not ask relevant public policy questions about alternatives and the desirability or otherwise of a proposal.” Id.

65 For discussions on the precautionary principle, see Reinterpreting The Precautionary Principle (Tim O’Riordan, James Cameron, & Andrew Jordan eds., 2001); Verschuuren, Jonathan, Principles of Environmental Law: The Ideal of Sustainable Development and The Role of Principles of International, European, and National Environmental Law (2003)Google Scholar. See also Scott, Shirley V.. How Cautious is Precautious?: Antarctic Tourism and the Precautionary Principle, 50 Int’l & Comp. L.Q. 963 (2001)Google Scholar (discussing the different approaches of the ATS members to managing mining and managing tourism and concluding: “Tourism is covered by only a very weak application of the precautionary principle while the application of the precautionary principle to the issue of mining has been ‘extreme’. The principal factor behind this anomaly appears to be political opportunism.” Id.).

66 On the status of the precautionary principle under the Protocol, see Bastmeijer, Kees, the Antarctic Environmental Protocol and Its Domestic Legal Implementation 293–98 (2003)Google Scholar; Scott, supra note 65.

67 See Scott, supra note 65, at 966.

68 See Verschuuren, supra note 65; see also Cameron, James, The Precautionary Principle as International Law, in Reinterpreting The Precautionary Principle, supra note 65, at 121, 133 Google Scholar.

69 Personal communication to authors from Alan Hemmings (May 2001)Google Scholar. For the conventions, see Convention on the Conservation of Antarctic Seals, June 1, 1972, 29 UST 441; Convention on the Regulation of Antarctic Mineral Resource Activities, June 2, 1988, 27 ILM 859 (1988)Google Scholar (Cramra has not entered into force, see Bastmeijer, supra note 66, at 44–46).

70 See Scott, supra note 65.

71 See, e.g., Cameron, James, The Precautionary Principle: Core Meaning, Constitutional Framework and Procedures for Implementation, paper presented at the Institute of Environmental Studies, University of New South Wales (Sept. 20–21, 1993)Google Scholar.

72 See Verschuuren, supra note 65, at 37–41; Scott, supra note 65, at 965.

73 Cameron defines risk as an “amalgam of the probability of an event occurring and the seriousness of the consequences should it occur. Thus, a high–risk strategy is one that either combines a relatively high probability with relatively innocuous consequences or one that combines a relatively low probability with relatively serious consequences.” Cameron, supra note 71, at 7.

74 It has been suggested that some penguin species may habituate to human presence and that “[f]or this reason, managers may suggest that visits be conducted in areas that have consistently received some level of tourism, rather than concentrating on ‘expedition touring’, in which the focus is to visit new colonies and retreat into areas rarely visited.” Patterson, Easter–Pilcher, & Fraser, supra note 59, at 306.

75 See Scott, supra note 65, at 965 (stating that “it is now clearly recognised that the precautionary principle does not have to be applied in an absolutist fashion”); see also Laws, Richard, Unacceptable Threats to Antarctic Science, New Scientist, Mar. 30, 1991 Google Scholar, at 4, 4 (holding that “[i]n view of the facts, one unrealistic proposal—that all activities be considered high risk until proven not to be—is quite unacceptable”).

76 This may include the use of Strategic Environmental Assessment approaches. See, e.g., ASOC, supra note 56; see also Chairman’s Report from Antarctic Treaty Meeting of Experts on Tourism and Non–governmental Activities in Antarctica, Doc. XXVIIATCM/WP 4, para. 12 (2004), available at <http://www.ats.org.ar/27atcm/>>Google Scholar [hereinafter ATME Report].

77 For a summary of the tourism debate since 1991, see ASOC, ATCM Papers, Discussions, & Recommendations Relating to Tourism and Non–governmental Activities, Doc. XXV ATCM/IP 52/Rev. 1 (2002), available at <http://www.cep.aq/>>Google Scholar ; Bastmeijer, supra note 66; Richardson, supra note 46.

78 Chile, France, Germany, Italy, Spain, Draft Annex to the Protocol, Regulation Concerning Tourism and Non–governmental Activities, Doc. XVIIATCM/WP 1 (1992)Google Scholar; see Richardson, supra note 46, at 77.

79 Final Report of The Eighteenth Antarctic Treaty Consultative Meeting, para. 59 (1994)Google Scholar.

80 Richardson, supra note 46, at 79–82.

81 Final Report of the Twenty–Fourth Antarctic Treaty Consultative Meeting, para. 106 (2001)Google Scholar.

82 Final Report of the Twenty–Sixth Antarctic Treaty Consultative Meeting, paras. 129–52 (2003), available at <http://www.ats.org.ar/27atcm/>>Google Scholar .

83 Splettstoesser, John, IAATO’s Stewardship of the Antarctic Environment: A History of Tour Operator’s Concern for a Vulnerable Part of the World, 2 Int’l J. Tourism Res. 47 (2000)Google Scholar.

84 About IAATO: Objectives, at <http://www.iaato.org/objectives.html> (visited Sept. 24, 2004).

85 Report of the International Association of Antarctica Tour Operators 2003–2004, Doc. XXVII ATCM/IP 68 (2004), available at <http://www.iaato.org/info.html>>Google Scholar .

86 IAATO bylaws, May 2, 2004, available at <http://www.iaato.org/bylaws.html>>Google Scholar .

87 IAATO, Marine Wildlife Watching Guidelines, available at <http://www.iaato.org/wildlife.html>>Google Scholar (last modified Jan. 2003).

88 This section includes references to the Draft XXVII ATCM Report, supra note 28. The final report will be made available at the Web site of the twenty–seventh ATCM, <http://www.ats.org.ar/27atcm/> .

89 Antarctic Treaty Meeting of Experts on Tourism and Non–Governmental Activities in Antarctica (2004), at <http://www.npolar.no/atme2004/>>Google Scholar ; ATME Report, supra note 76. This report and the papers submitted to die twenty–seventh ATCM by consultative parties and experts constituted the basis for die discussions on Antarctic tourism in Cape Town and are available at <http://www.ats.org.ar/27atcm/> .

90 The Tourism Working Group established at the twenty–seventh ATCM held a four–day meeting during the second week of the ATCM (May 31–June 3, 2004).

91 According to nongovernmental organization experts at the ATCM, “[t]he most obvious aspect to the Cape Town debate was that nobody now disputes that tourism (and non–governmental activity—in the ATCM these are always conjoined twins) is increasing, may pose problems and needs regulation.” ASOC, Report on the XXVII Antarctic Treaty Consultative Meeting, para. 59 (2004), available at <http://www.asoc.org>>Google Scholar .

92 All measures, decisions, and resolutions that were adopted by the twenty–seventh ATCM are available at <http://www.ats.org.ar/27atcm/> .

93 Final Report of the Twenty–Sixth Antarctic Treaty Consultative Meeting, supra note 82, para. 130.

94 See IAATO bylaws, supra note 86.

95 See Assessment of Possible Impacts, supra note 20, at 10. The workshop determined nine possible impact avoidance and mitigation measures, only a few of which could be considered precautionary.

96 See, for example, ASOC, Regulating Antarctic Tourism, Doc. XXV ATCM/IP 83, at 5 (2002), available at <http://www.asoc.org>>Google Scholar , which states:

The present [tourism] industry—and its association—has particular historic roots in the small, owner/ operated, ship–based, polar–specific companies of the late 80s . . . .

As the industry diversifies, however, the viability of this sort of association comes into question. It faces difficulties whichever way it turns. Hold onto existing small–ship terms of membership, and newer and larger operators cannot join—and the association loses influence Jettison problematical entry requirements to encourage new operators to join, and you maintain the influence, but invariably lower standards.

97 IAATO, Report of the International Association of Antarctica Tour Operators (IAATO) Under Article III(2) of the Antarctic Treaty, para. 2.2.4 (2001), available at <http://www.iaato.org/info.html>>Google Scholar (stating that “IAATO has embraced the changing nature of Antarctic tourism and would encourage support amongst Antarctic Treaty Parties as a possible way forward. Under the above categories of Membership, IAATO has been inclusive yet taken die precautionary approach until further scientific or aesthetic evidence proves otherwise.”).

98 On The Antarctic Horizon: Proceedings of the International Symposium on the Future of the Antarctic Treaty System 96 (Andrew Jackson ed., 1995).

99 ATME Report, supra note 76, para. 12.

100 The United Kingdom stated in a working paper in 2004:

The collection of data at many of these sites continues. It is anticipated that such long–term information may assist the Parties ultimately in determining whether management plans under Annex V to the Protocol may be required for a number of these sites.

In the interim, we believe that the behavioural code set out in Recommendation XVIII–1 could be significantly enhanced by incorporating into it a set of Site–specific Guidelines.

United Kingdom, supra note 61 (emphasis added).

101 Interim CEP VII Report, supra note 52, para. 175.

102 The proposed time limits were of six to eight hours per day, depending on the environmental sensitivity of the sites. In practice, these time limits would have an effect on tourist landing sites only if the number of tourists exceeded several times current numbers.

103 Personal communication from Bernard Oxman to authors (July 19, 2004).

104 See Bastmeijer, supra note 66, at 434–38, 455–56.

105 Provision is made only with regard to “Antarctic officials” under Article VIII(1) of the Treaty. The possibility under Article IX(1)(e) of die Treaty of adopting further measures regarding “questions relating to die exercise of jurisdiction in Antarctica” has never been acted upon. See Bush, William, Australian Implementation of the Environmental Protocol, in Implementing Environmental Protection, supra note 46, at 309, 312 Google Scholar (observing that “[t]he Protocol thus leaves unstated those for whom each party to the Protocol is responsible with regard to ensuring compliance; national legal systems cannot afford to allow such vagueness”); see also Bastmeijer, supra note 66, at 104–22 (stating that there are strong arguments for the interpretation that each contracting party is to ensure that its measures to implement the relevant provisions of the Protocol address all activities identified in Article VII(5)(a).

106 See Bastmeijer, supra note 66, at 132–53, 455–56.

107 ATME Report, supra note 76, para. 30.

108 Protocol, supra note 31, Arts. 3(4)(a), 8(2), 15(1)(a) & Annex III, Art. 1. For a comprehensive discussion of this issue, see Bastmeijer, supra note 66, at 115–18.

109 The case of Pendulum Cove on Deception Island is an example of the assertion of the right to use a site. This is one of file sites most visited by tourists in the whole Antarctic Peninsula, where they swim in volcanically heated waters. Tourist activity may in some instances interfere with the functioning of highly sensitive instruments used to measure volcanic activity. Indeed, it is the different manifestations of the same volcanic activity that draw both scientists and tourists to the site. During the discussions concerning the establishment of an Antarctic Specially Managed Area at Deception Island, tour operators stated that they have been visiting this site for over thirty years and that they should not be excluded from doing so in the future.

110 See, for example, ATME Report, supra note 76, para. 35: “Germany . . . suggested that permanent land-based tourism was not consistent with either the Antarctic Treaty or the Environmental Protocol and was also not in line with German domestic law because all permits must be restricted to a specific period.”; and id., para. 36: “Norway expressed support for the New Zealand view that the issue of land–based tourism activities has not only environmental ramifications drat need to be taken into account, but the matter was also a policy related [one] and raised issues such as sovereignty and jurisdiction.”

111 See Hansom & Gordon, supra note 42, at 253.

112 ATME Report, supra note 76, para. 37.

113 Overview of Antarctic Tourism: 2003–2004 Antarctic Season, supra note 3, at 17; Hemmings & Roura, supra note 47. Note that the estimate of total passengers for the 2003–2004 season, including those not landing, amounts to over 27,000. Overview of Antarctic Tourism: 2003–2004 Antarctic Season, supra, at 17.