Sea-borne tourism in antarctica: Avenues for further intergovernmental regulation

International Journal of Marine and Coastal Law

Volumn 20, Issue 2, 2005, Pages 247-295

  Molenaar, Erik Jaap ^a,b  

^a UTRECHT UNIVERSITY   (Netherlands)

^b UNIVERSITY OF TASMANIA   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

REGULATORY FRAMEWORK; TOURISM;

ANTARCTICA;

EID: 33846474963     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180805775094454     Document Type: Article

References (253)

1. Cf. Tourism and Biodiversity. Mapping Tourism's Global Footprint (Conservation International: 2003; text at 〈www.conservation.org〉), at pp. v and 1.
2. Progress and Priorities 2004/05, at p. 15; text at 〈www.wttc.org〉.
3. Ibidem.
4. Cf. Tourism and Biodiversity, note 1, at p. 31.
5. Cf. D. Johnson, "Environmentally Sustainable Cruise Tourism: A Reality Check", 26 Marine Policy 261-270 (2002), at p. 262 and the info at the website of the International Council of Cruise Lines (ICCL) at 〈www.iccl.org〉.
6. Based on P.J. Tracey, Managing Antarctic Tourism, unpublished PhD thesis (University of Tasmania, Institute of Antarctic and Southern Ocean Studies: April. 2001), at p. 48.
7. Based on Tracey, note 6, at p. 48 and on Doc. ATCM XXVII/P/63 (2004) 'IAATO Overview of Antarctic Tourism. 2003-2004 Antarctic Season', at p. 4. These numbers do not include tourists on government vessels, those participating in government-sponsored tourism and tourists on yachts.
8. Doc. ATCM XXVII/IP/63, note 7, at p. 17.
9. Doc. ATCM XXVIII/IP/82 (2005) 'IAATO Overview of Antarctic Tourism, 2004-2005 Antarctic Season', at pp. 3 and 23.
10. The Antarctic Treaty, Washington. D.C., 1 December 1959. In force 23 June 1961, 402 United Nations Treaty Series 71 ; 〈www.antdiv.gov. au〉.
11. Territorial jurisdiction would not even, be an option for the unclaimed sector of the Antarctic continent.
12. Cf. Arts 87-92 of the LOS Convention (United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force 16 November 1994, 1833 United Nations Treaty Series 396; 〈www.un.org/Depts/los〉).
13. See inter alia Doc. ATME 2004 (Antarctic Treaty Meeting of Experts on Tourism and Non-Governmental Activities in Antarctica, Tromsø- Trondheim, March 2004) No. 7 'An Analysis of the Existing Legal Framework for the Management of Tourism and Non-Governmental Activities in Antarctica. Issues, Some Proposals and Comments. Paper submitted by New Zealand', at p. 3, where it is also claimed that these vessels do not have crews with the necessary skills for ice-navigation. However, the cruise vessels operated by the Holland America Line (HAL) always use ice-pilots during navigation in Antarctic waters. The time spent in Antarctic waters is limited to 2-3 days per cruise (information provided by C. Deelstra, HAL, April 2004).
14. See also Doc. ATCM XXVI/WP/23 (2003) 'Proposals to Improve the Management and Regulation of Antarctic Tourism. Submitted by the United Kingdom', at p. 6, where it is also observed that larger vessels are "more likely to be fuelled by heavy bunker fuel, oil carried in much greater quantities";
15. and ATCM Resolution 6 (1999) 'Adherence to the Environmental Protocol by Non-Consultative Parties'. See also notes 77 and 203.
16. For a thorough analysis of the legislation of several States see K. Bastmeijer, The Antarctic Environmental Protocol and its Domestic Legal Implementation (Dordrecht Kluwer Law International: 2003).
17. See, for instance, the IPOA on IUU Fishing (International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported, and Unregulated. Fishing. Adopted, by consensus by the United Nations (UN) Food and Agriculture Organisation (FAO) Committee on Fisheries on 2 March 2001 and endorsed by the FAO Council on 23 June 2001; text at 〈www.fao.org/fi〉).
18. The UN Statistical Commission describes tourism as "the activities of persons traveling to and staying in places outside their usual environment for not more than one consecutive year for leisure, business and other purposes not related to the exercise of an activity remunerated from within the place visited" (see inter alia Doc. ST/ESA/STAT/SER.M/83/Rev.1 of 27 December 1999, at p. 4, para. 1.6). See also the distinction between, commercial tourism and non-governmental non-tourist expeditions in the Handbook of the Antarctic Treaty System, (U.S. Department of State, 9th ed., 2002; text at 〈www.state.gov/g/oes/rls/rpts/ant/〉), at p. 297.
19. Madrid, 4 October 1991 (Annexes I-IV). In force 14 January 1998, 30 International Legal Materials 1455 (1991); Annex V, Bonn, 17 October 1991. In force 24 May 2002, adopted as ATCM Recommendation XVI-10 (1991);
20. Antarctic Treaty Handbook, note 16, at pp. 18-65.
21. On the acronym see also D. Vidas, "The Antarctic Treaty System in the International Community: An Overview", in O.S. Stokke and D. Vidas (eds.) Governing the Antarctic. The Effectiveness and Legitimacy of the Antarctic Treaty System (Cambridge, University Press: 1996), pp. 35-60, at pp. 37-39.
22. Reference is made to ATCM Decision 1 (1995) 'Measures, Decisions and Resolutions' and to Doc. ATCM XXVII/IP/36 (2004) 'Report of the Depositary Government of the Antarctic Treaty (USA) in accordance with Recommendation XIII-2', which gives in Annex 3 an overview of the status of Recommendations and Measures pursuant to Art IX(4) of the Antarctic Treaty.
23. Convention for the Conservation of Antarctic Seals, London, 1 June 1972. In force 11 March 1978, 11 International Legal Materials 251;
24. Antarctic Treaty Handbook, note 16, at pp. 332-334.
25. Convention on the Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980. In force 7 April 1982, 19 international Legal Materials 837 (1980); 〈www.ccamlr.org〉.
26. Convention on the Regulation of Antarctic Mineral Resource Activities, Wellington, 2 June 1988. Not in force, 27 International Legal Materials 868 (1988);
27. Antarctic Treaty Hand-book, note 16, at pp. 385-431.
28. Cf. R. Headland, "Historical Development of Antarctic Tourism", 21 Annals of Tourism Research 269-280 (1994), at p. 276
29. and L.K. Kriwoken and D. Rootes, "Tourism on Ice: Environmental Impact Assessment of Antarctic Tourism", 18 Impact Assessment and Project Appraisal 138-150 (2000), at p. 140.
30. Cf. Tracey, note 6, at pp. 50 and 53 and A.D. Hemmings and R. Roura, "Antarctic Tourism. A Square Peg in a Round Hole: Fitting Impact Assessment under the Antarctic Environmental Protocol to Antarctic Tourism", 21 Impact Assessment and Project Appraisal 13-24 (2003), at p. 19.
31. Cf. A.D. Hemmings, "Antarctica in Transition", Forest & Bird Issue No. 284, pp. 38-44 (1997), at p. 44
32. and M.G. Richardson, "Regulating Tourism, in the Antarctic: Issues of Environment and Jurisdiction" in D. Vidas (ed.) Implementing the Environmental Protection Regime for the Antarctic (Dordrecht, Kluwer Academic Publishers: 2000), pp. 71-90, at p. 73.
33. Cf. Doc. ATCM XXIV/IP/40 (2001) 'Antarctic Tourism' (ASOC (The Antarctic and Southern Ocean Coalition)).
34. See Art. III of the IAATO Bylaws, text at 〈www.iaato.org〉. See also note 105 and accompanying text and the discussion by Bastmeijer, note 14, at pp. 281-282.
35. See also K. Bastmeijer, "Tourism, in Antarctica: Increasing Diversity and the Legal Criteria for Authorisation", 7 New Zealand Journal of Environmental Law 85-118 (2003), at pp. 89-91.
36. See Doc. ATCM XXVII/IP/63, note 7, at pp. 2, 10, and 12. In 2004-05, the Chilean operator Antarctica 21 used the Grigory Mikheev, flagged in the Russian Federation. In 2005-06, the Aleksey Maryshev, flagged in the Russian Federation, will be used (Doc. ATCM XXVIII/IP/82, at p. 20). It is worth noting however, that Headland, note 23, at p. 276 observes that both Argentina and Chile used "their air strips, on Seymour Island and King George Island, respectively" for fly-cruises prior to 1994 (when that article was published).
37. For instance the plans by Australia for an intercontinental air service between Hobart and a graded blue-ice runway 50 km from Casey Station, commencing in 2004/05 (21 AntArctic Issues Nos. 186 and 187, p. 69;
38. 6 Australian Antarctic Magazine 53-54 (Autumn 2004)).
39. See also Doc. ATCM XXVII/IP/50 (2004) 'International Project on the Cooperative Air Network in East Antarctic "DROMULAN" (Russian Federation)'; and Doc. ATCM XXVII/IP/35 (2004) 'Initial Environmental Evaluation for Troll Runway (Norway)'.
40. See Doc. ATCM XXVII/IP/63, note 7, at. p. 4.
41. No landings are allowed on Antipodes Islands.
42. Argentina also claims sovereignty over these islands and over Shag Rocks.
43. For instance, as sea-borne visits to the Ross Sea area are unattractive unless combined with visits to Macquarie Island and New Zealand's sub-Antarctic islands, the relatively few permits mere ettectively Dar expansion in sea-borne tounsm in the Ross sea area (cr. Doc. ATCM XXVII/IP/23 (2004) 'Tourism and Non-Governmental Activities in Antarctica: Monitoring Compliance and Environmental Impact (New Zealand)', at p. 4).
44. See note 195.
45. Ibidem. The camp is operated by Adventure Network International/Antarctic Logistics & Expeditions (info at 〈www.antarctic-logistics.com〉).
46. See Annex III to the Madrid Protocol, which allows for some exceptions and frequently contains qualifications such, as "to the maximum extent practicable" (see inter alia Art 4).
47. Doc. ATCM XXIV/IP/40, note 26, at pp. 4-5 takes a similar view. See also note 16.
48. Cf. Richardson, note 25, at p. 84. This authority is implied in ATCM Recommendation XVIII-1 (1994) 'Tourism and Non-governmental Activities', Attachment A 'Guidance for Visitors to the Antarctic', at C(1) and 'Guidance for those Organising and Conducting Tourism, and Non-governmental Activities in the Antarctic', at B(2) and in ATCM Recommendation. VIII-9 (1975) 'Effects of Tourists and non-Governmental Expeditions in the Antarctic Treaty Area', at No. 3 and Annex A.
49. But see Art VII(5) of the Antarctic Treaty.
50. Cf. Arts I and II of the Antarctic Treaty and Art 2 of the Madrid Protocol, See Vidas, note 18, at p. 44. It is submitted that even though scientific research is an international community's interest, it is subordinate to the other two pillars.
51. Art. I(1) of the Antarctic Treaty. But see note 195 and accompanying text.
52. See, for instance, the Preamble to ATCM Recommendation VIII-9 (1975), note 39.
53. Art. 15(1) of the CRAMRA.
54. See note 66. R.A. Herr, "The Changing Roles of Non-Governmental Organisations in the Antarctic Treaty System." in Stokke and Vidas, note 18, pp. 91-110, at p. 105 observes that "The Consultative Parties have formally acknowledged the validity of Antarctic tourism as an activity at least since 1971".
55. Adopted by WTO Assembly Resolution A/RES/406(XIII), 1 October 1999, text at 〈www.world-tourism.org/projects/ethics〉.
56. Para. (1). See also Art. 8(1), which emphasizes the need for compliance with national and international law.
57. Cf. paras 67-70 of UNGA Resolution A/RES/S-19/2, of 19 September 1997 and the Preamble and Art. 3 of the WTO Global Code of Ethics for Tourism.
58. See also the Australian Policy on Antarctic Tourism by which "The Australian Government recognises the legitimacy of tourism activities in Antarctica provided they further the principles and objectives of the Antarctic Treaty and their conduct is ecologically sustainable and socially responsible" (Doc. ATME 2004 No. 17 'An Analysis of Potential Threats and Opportunities Offered by Antarctic Tourism. Submitted by Australia', Attachment A).
59. This term is not used or defined in any of the instruments of the ATS but is inspired by the broadly-defined terms 'Antarctic marine ecosystem' and 'Antarctic marine living resources' in Art I(2) and (3) of the CCAMLR Convention.
60. See inter alia ATCM Resolution 3 (2003) 'Co-operation in Hydrographic Survey and Charting of Antarctic Waters' and Doc. ATCM XXVII/WP/30 (2004), 'Report by the International Hydrographic Organization (IHO) on "Cooperation in Hydrographic Surveying and Charting of Antarctic Waters'".
61. See inter alia Doc. ATCM XXVII/IP/56 (2004) 'An Update on Some Issues Surrounding Noise Pollution' (ASOC).
62. See inter alia Doc. ACTM XXVI/IP/117 (2003) 'Coastal Sediment Pollution at Sites Frequently Visited by Tourism. Operations' (ASOC).
63. See Doc. ATME 2004 No. 14 'Establishment of Effective Antarctic Quarantine Controls for Tourism and Non-Government Activities. Submitted by Australia', at p. 2; and Final Report of the XXVIIth ATCM (2004), at p. 23, para. 134, which inter alia refers to the fact that many vessels used in Antarctic tourism also operate in the Arctic.
64. Information provided by M. Richardson, 8 September 2004.
65. Tracey, note 6, at p. 114.
66. According to Doc. ATME 2004 No. 17, note 49, at p. 1, this has the highest priority for Australia.
67. This would be subject to the CCAS, note 20.
68. See also note 41.
69. Doc. ATCM XXVI/IP/96 (2003) 'Adventure Tourism in Antarctica' (IAATO), p. 3 gives an example of the latter situation.
70. Tracey, note 6, at p. 37. At the VIIth Meeting of the CEP (Committee for Environmental Protection) (2004), the Czech Republic "noted that the concept of wilderness values is very philosophical and difficult to quantify objectively, and possibly of greater relevance to the consideration of tourism activities" (Final Report of the XXVIIth ATCM (2004), p. 360).
71. See, inter alia, Tracey, note 6, at pp. 119-120.
72. Although P.T. Maher, "Exploring Visitor Experience in the Ross Sea Region, Antarctica", 18 Newsletter for the Canadian Antarctic Research Network 10-11 (2004), at p. 11 questions the actual impact of this. The same position is taken in Doc. ATCM XXIV/IP/40, note 26, at p. 4.
73. See inter alia Doc. ATCM XXVII/WP/30, note 51, and Doc. ATCM XXVII/IP/68 (2004) 'Report of the International Association of Antarctica Tour Operators 2003-2004 under Article 111(2) of the Antarctic Treaty', at pp. 10-12 and Appendix D.
74. See the Introduction on the use of the acronym ATS and the distinction between direct and indirect regulation.
75. Arts 3(4), 8(2) and 15(1)(a) of the Protocol and Art. 1(1) of its Annex III. See also Art. 1(1) of Annex I, which implicitly covers tourism due to a cross-reference to Art. 8.
76. See, inter alia, Arts 3 (in its entirety), 6(1) and (3), 8(2), 13(2), (4) and (5), 16 of the Protocol and Art. 1(c) of its Annex V.
77. See the 4th Preambular para.
78. See the section. 'The Meaning of IUU Sea-Bome Tourism in Antarctica'.
79. See also the info on the various Antarctic protected areas at 〈www.cep.aq/apa〉. See, for instance, HSM No. 74 'Wreckage of sailing ship, Elephant Island, South Shetland Islands'.
80. As revised at the XXIVth ATCM (2001) (see Final Report of the XXIVth ATCM (2001), Annex J). See also ATCM Resolution 6 (1999), note 13.
81. These are: IV-27 (1966) 'Effects of Antarctic Tourism; VI-7 (1970), VII-4 (1972), VIII-9 (1975) and X-8 (1979) all entitled 'Effects of Tourists and non-Government Expeditions to the Antarctic Treaty Area' and XI-3 (1981) 'Air Disaster on Mount Erebus'.
82. See note 39. Cf. Richardson, note 25, at p. 79.
83. See D. Vidas, "The Legitimacy of the Antarctic Tourism Regime" in Stokke and Vidas, note 18, pp. 294-320, in particular at pp. 307-316;
84. R.A. Herr, "The Regulation of Antarctic Tourism.: A. Study in Regime Effectiveness", in Stokke and Vidas, note 18, pp. 203-232; and Richardson, note 25, at pp. 77-79.
85. See inter alia ATCM Decision 5 (2003) Meeting of Experts on Tourism and Non-governmental Activities'. See also Doc. ATCM XXIV/IP/40, note 26, which may have played a significant role in setting this process in motion.
86. International Convention for the Prevention of Pollution from Ships (London, 2 November 1973) as modified by the 1978 Protocol (London, 1 June 1978) and as regularly amended. Entry into force varies for each of its Annexes. At the time of writing Annexes I-VI had all come into force. For info see 〈www.imo.org〉.
87. Art. 10 of Annex IV. See also Art 9(1), which could be regarded as an exception. Note also the rather special CCAMLR Resolution 20/XXII (2003) 'Ice-Strengthening Standards in High-Latitude Fisheries' and the New Zealand proposal in Doc. ATME 2004 No. 7, note 13, at p. 3 to have something similar for all commercial tourist vessels operating in the Antarctic Treaty area. See also Doc. ATCM XXVII/WP/42 (2004), 'Fishing Activities: Enhancing Prevention of Marine Pollution (Spain)', which eventually resulted in ATCM Resolution 1 (2004) 'Enhancing Prevention, of Marine Pollution by Fishing Activities', which essentially supports CCAMLR Resolution 20/XXII.
88. See ATCM Resolution 3 (1998) 'International Code of Safety for Ships in Polar Waters' and ATCM. Decision 2 (1999) 'Guidelines for Antarctic Shipping and Related Activities'.
89. IMO Doc. MSC/Circ.1056 - MEPC/Circ.399, of 23 December 2002.
90. Final Report of the XXVIIth ATCM (2004), pp. 22-23 and 28-29, paras 129, 131, 138 and 183-184 and Annex M.
91. See IMO Doc. MSC 79/23, 15 December 2004, 'Report of the Maritime Safety Committee on its Seventy-Ninth Session', at para. 825.
92. E.g. Art. 3(1) which simply refers to Annex I to MARPOL 73/78, and Art. 5(1) and (2).
93. E.g. Art. 4, which flatly prohibits the discharge of any noxious liquid substance, and Art. 6(1)(a).
94. See also Arts 3(2), 5(5), 6 and 7(1).
95. Cf. T. Scovazzi, "The Application of the Antarctic Treaty System to the Protection of the Antarctic Marine Environment", in F. Francioni (ed.), International. Environmental Law for Antarctica (Milan, Giuffrè Publishing: 1992), pp. 113-134, at p. 132.
96. International Convention for the Control and Management of Ships' Ballast Water and Sediments, London, 13 February 2004. Not in force, IMO Doc. BWM/CONF/36, of 16 February 2004. See inter alia Art. 2(9), which relates to "areas beyond the limits of national jurisdiction" and Regulation C-1 'Additional Measures'.
97. See Final Report of the XXVIIth ATCM (2004), at p. 23, para. 134, which refers to the 2004 IMO Ballast Water Convention.
98. Ibid, at paras 135 and 138.
99. Info at 〈www.rainforest-alliance.org/programs/sv/stsc.html〉.
100. Cf. Tracey, note 6, at p. 164.
101. At the XXIInd ATCM (1998).
102. Nairobi, 22 May 1992. In force 29 December 1993, 31 International Legal Materials 822 (1992); 〈www.biodiv.org〉.
103. See Art. 4 of the CBD.
104. Conference of Parties (COP) Decision VII/14 (2004) "Biological Diversity and tourism".
105. Para. (2).
106. Report of the Seventh Session (UN Doc. E/1999/29 (E/CN.17/1999/20)), at pp. 38-48.
107. Text of the Principles and other info at 〈www.uneptie.org/pc/ tourism〉.
108. Cf. Herr, note 45, at p. 101.
109. See also UN Doc. A/58/96, of 18 June 2003, 'Assessments of the results achieved in realizing aims and objectives of the International Year of Ecotourism', Note by the Secretary-General.
110. Cf. Tourism and Biodiversity, note 1, at pp. 25 and 38.
111. E.g. the overlap in membership between IAATO and ICCL, which is particularly striking.
112. Industry Standard E-01-01 (Rev 2) (text at 〈www.iccl.org〉). See also Johnson, note 5, at pp. 265-266.
113. Cf. Herr, note 45, at p. 105. See also Art. II 'Objectives' of the IAATO Bylaws (text at 〈www.iaato.org〉).
114. Cf. Doc. ATCM XXVII/IP/68, note 64, at p. 3. For info on membership see 〈www.iaato.org〉.
115. Cf. Tracey, note 6, at p. 164.
116. See Doc. ATME 2004 No. 4, 'Tourism and Self-Regulation. A Commentary on IAATO. Submitted, by the UK', at pp. 5-6 and the Subsection 'One Form of Unregulated' Tourism below.
117. Art III, Sections A-C. According to Art. V, Section F, decisions are passed by a two-third majority.
118. Art. III, Section A and Doc. ATCM XXVII/IP/69 (2004), IAATO's Formalization of an Accreditation Scheme and Internal Audit Process and the Association's Views on an ATCM Accreditation Scheme', at p. 4. A good observer report is not always sufficient. At IAATO's General Meeting in 2004, the membership voted in favour of extending a tour operator's provisional membership for another year despite a good observer report (information provided by D. Landau, 16 September 2004).
119. Art. III, Section H. In 1996, Orient Lines decided to discontinue its membership of IAATO rather than face the possibility of being expelled for continued non-compliance with the 400 tourists-per-vessel limit that was then still applicable. At the time of the decision by Orient Lines, it had the status of Probationary Member due to previous non-compliance with that limit (information provided by D. Landau, 16 September 2004). Non-compliance with any of the IAATO Guidelines can apparently not lead to such consequences.
120. See notes 152-154 and accompanying text.
121. See Final Report of the XXVIth ATCM (2003), at p. 405 and Doc. ATCM XXVII/IP/69, note 107.
122. See note 39.
123. Docs ATME 2004 No. 12, "Overview Summarizing the Terms of Reference. By IAATO", at pp. 8-9; ATCM XXVII/IP/68, note 64, at Appendices F and G; and ATCM XXVII/IP/69, note 107, at p. 6 and Appendix B. Some of these Guidelines are available at 〈www.iaato.org〉.
124. Available at 〈www..iaato.o.rg〉.
125. Title based on Doc. ATME 2004 No. 12, note 112, at p. 8. Docs ATCM. XXVII/IP/68, note 64, and ATCM XXVII/IP/69, note 107, use different terminology, for instance "Boot and Clothing Decontamination: IAATO's Recommended Guidelines".
126. Title based on Doc. ATME 2004 No. 12, note 112, at p. 8. Doc. ATCM XXVII/IP/68, note 64, at Appendix G is entitled: 'Introduction and Detection of Diseases in Antarctic Wildlife: IAATO's Perspective' and ATCM XXVII/IP/69, note 107, at p. 7 refers to 'Disease protocol'.
127. See note 62 and accompanying text.
128. Cf. K. Bastmeijer and R. Roura, "Regulating Antarctic Tourism and the Precautionary Principle", American Journal of International Law (forthcoming).
129. At the IAATO website (〈www.iaato.org〉) only ATCM Recommendation XVIII-1(1994) and the Marine Wildlife Watching Guidelines are available. As regards the Boot and Clothing Decontamination Procedures and the Guidelines on the Prevention of the Translocation of Alien Species, it is unclear whether Appendices F and G of Doc. ATCM XXVII/IP/68, note 64, contain the texts or merely descriptions of these. The author requested the IAATO Secretariat copies of other operational procedures and standards but his request was turned down because it was not "always in IAATO's interests to share everything we do" and because there would be no "control on how they will be used" (correspondence with D. Landau, August-September 2004).
130. Doc. ATME 2004 No. 12, note 112, at p. 8 acknowledges for instance that the guidelines for Specialized Adventure Activities have been, developed by companies offering these activities. This seems to suggest that these guidelines have not been formally adopted by IAATO as a whole.
131. Information provided by D. Landau, 16 September 2004.
132. Cf. Doc. ATME 2004 No. 24, "Polar Tourism: Experience Gained and Lessons Learned from Svalbard. Submitted by Norway", at p. 14.
133. Treaty on the Status of Spitsbergen, Paris, 9 February 1920. In force 14 August 1925; 2 League of Nations Treaty Series 8.
134. Doc. ATME 2004 No. 24, note 121, at p. 15. See also Cruise Tourism on Svalbard - A Risky Business?, WWF International Arctic Programme, 2004; available at 〈www.panda.org/arctic〉.
135. See also the discussion at note 33 and accompanying text.
136. The regulation of whalewatching as currently carried out by the IWC is not discussed.
137. For an overview see 〈www.imo.org〉. See also E.J. Molenaar,Coastal State Jurisdiction over Vessel-Source Pollution (Dordrecht Kluwer Law International: 1998), inter alia at pp. 21-27, 36-40 and 60-74.
138. IMO Res. MSC.85(70), of 7 December 1998 (IMO Doc. MSC 70/23, pars 1136-1142 and Annex 16) and IMO Doc. MSC 73/21, of 14 December 2000, pars 117-118 and Annexes 20-21 respectively.
139. For a comprehensive overview of IMO instruments see 〈www.imo. org〉.
140. Information obtained from the Australian Maritime Safety Authority, 18 March 2004.
141. Cf. Molenaar, note 126, at pp. 434 and 569.
142. London, 5 October 2001. Not in force, IMO Doc. AFS/CONF/26, of 18 October 2001.
143. See R. Lefeber, "The Legal Need for an Antarctic Environmental Liability Regime", in Vidas, note 25, pp. 181-197, at pp. 192-193.
144. See also the Final Report of the XXVIth ATCM (2003), paras 91-97 and 104-105.
145. Information provided by R. Hayward, 17 September 2004.
146. See, for instance, the decision by Royal Caribbean Cruises Ltd. to install advanced waste-water purification, technology (press release of 5 May 2004 at 〈northamerica.oceana.org〉).
147. See O.S. Stokke and D. Vidas "Effectiveness and Legitimacy of International Regimes", in Stokke and Vidas, note 18, pp. 13-31, at p. 20.
148. T.M. Franck, The Power of Legitimacy Among Nations (New York/Oxford, Oxford University Press: 1990), pp. 16 and 19.
149. Stokke and Vidas, note 135, at p. 31.
150. Ibid., at pp. 15, 26 and 31.
151. See also Vidas, note 18, at pp. 48-58.
152. See for instance F.M. Auburn, Antarctic Law and Politics (Bloomington, Indiana University Press: 1982), at pp. 115 and 147-153.
153. A. Bos, "Consultative Status under the Antarctic Treaty: Redefining the Criteria?", in A. Jørgensen-Dahl and W. Østreng (eds) The Antarctic Treaty System in World Politics (Macmillan/The Fridtjof Nansen Institute: 1991), pp. 335-342, at p. 335 also notes the limited participation, in the conference that eventually adopted the Antarctic Treaty.
154. The procedure adopted at the 1st Special ATCM (1977), has been replaced by ATCM Decision 2 (1997) 'Consultative Status', which inter alia refers to Art. 22(4) of the Madrid Protocol. This stipulates that as soon as the Protocol has entered into force, applications for consultative status will not be acted upon unless the applicant has ratified the Protocol.
155. Cf. Vidas, note 18, at p. 55. For a chronological overview of the status of the Antarctic Treaty see Antarctic Treaty Handbook, note 16, at pp. 16-17.
156. Cf. Antarctic Treaty Handbook, note 16, at pp. 181-184.
157. J.N. Barnes, "The Emerging Convention, on the Conservation of Antarctic Marine Living Resources: An Attempt to Meet the New Realities of Resource Exploitation in the Southern. Ocean", in J.I. Charney (ed.) The New Nationalism and the Use of Common Spaces (Allanheld, Osmun Publishers: 1982), pp. 239-286 argues at pp. 240, 248 and 265 that ATCPs had an interest in ensuring the acceptability of the CCAMLR Convention for the reason, that this would smoothen the negotiations on CRAMRA. It should also be noted that the negotiations on the CCAMLR Convention were in part motivated by a wish to forestall involvement by the FAO (see Auburn, note 140, at p. 206 and Barnes, this note, at p. 245).
158. This eventually led to the adoption of the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (New York, 28 July 1994. In force 28 July 1996, 33 International Legal Materials 1309 (1994); 〈www.un.org/Depts/ los〉), which erodes much of the original intention of the common heritage principle laid down, in Part XI
159. See inter alia D. Vidas, "The Antarctic Treaty System and the Law of the Sea: A New Dimension Introduced by the Protocol", in Stokke and Vidas, note 18, pp. 61-90, at pp. 74-75.
160. A/RES/38/77, of 15 December 1983. See in this respect C.C. Joyner, "Antarctica and the Indian Ocean States: The Interplay of Law, Interests, and Geopolitics", 21 Ocean Development & International Law 41-70 (1990), at pp. 48-49.
161. Arts 2, 7 and 25 of the Madrid Protocol.
162. See more in general Herr, note 45. See also note 97 and accompanying text in relation to IUCN, which is currently no longer strictly an NGO.
163. A/RES/49/80, of 15 December 1994.
164. At the XXVIIth ATCM (2004), Malaysia was invited on an ad hoc basis "to observe" the XXVIIIth ATCM (2005) as no agreement could be reached on incorporating a basis for inviting non-parties to the Antarctic Treaty in the Rules of Procedure for ATCMs
165. (see Final Report of the XXVIIth ATCM (2004), at pp. 10 and 35, paras 27-28 and 232).
166. As during the XXVIth ATCM (2003), this was due to opposition from the Russian Federation (see Final Report of the XXVIth ATCM (2003), para. 16).
167. See also Doc. ATCM XXVI/WP/18 (2003) 'The Attendance of Non-Party States at Consultative Meetings: A Proposed Change to the Rules of Procedures of the ATCM (United Kingdom)', at pp. 1-2.
168. See also the Antarctic Treaty Handbook, note 16, at pp. 155-173. However, this approval role also offers an opportunity to exert pressure on the applicant, which can be used in furtherance of the core objectives of the ATS. This occurred when Ukraine applied for consultative status in 2004 and made assurances to investigate past behaviour in the context of CCAMLR
169. (cf. Final Report of the XXVIIth ATCM (2004), at Annex G).
170. Some months later, at the 23rd Annual CCAMLR Meeting (2004), however, many Members of CCAMLR were very disappointed about Ukraine's follow-up of these assurances (see Doc. CCAMLR-XXIII, preliminary version, at paras 10.74-10.82). Note that the procedures for participation in the CCAS (Art. 12) and the CCAMLR Convention (Art. VII(2)(b) and (d)) also raise concerns of openness, but so far these concerns have not been, vindicated.
171. Most importantly, there does not seem to be rule of general international law which would give States a right to participate in decision-making in the Antarctic Treaty. See also the discussion on compliance with international trade law and the prohibition on discrimination below.
172. Vidas, note 18, at p. 46 observes that Art. IX(2) discriminates against ATCPs that were not original, signatories because only the former could lose their entitlement to consultative status. However, a procedure to verify this and to strip a State of its consultative status, is not likely to ever be proposed due to the possibility for a single State to block consensus at ATCMs. It is nevertheless acknowledged that discrimination does exist against new entrants.
173. See M, Haron, "The Ability of the Antarctic Treaty System to Adapt to External Challenges", in Jargensen-Dahl and Ostreng, note 140, pp. 299-308, at pp. 302-303.
174. See Auburn, note 140, at pp. 147-153 and the criticism on the criterion by Bos, note 140, at pp. 339-340, among other things on the need to establish a scientific station to meet the criterion This criticism was addressed at the Xth SATCM (1990), when the (Kingdom of) the Netherlands obtained consultative status despite not having a scientific station
175. See Attachment 4 to ATCM Decision 2 (2004) 'Financial Considerations for the Secretariat of the Antarctic Treaty', which takes account of the limited funds of developing States.
176. Some States will, undoubtedly take the view that this would require an amendment of the Antarctic Treaty pursuant to its Art. XII, which is likely to take considerable time to enter into force.
177. See also note 151,
178. Neither the 1972 CCAS nor the 1964 Agreed Measures for the Conservation of Antarctic Fauna and Flora refer to the responsibility of ATCPs in any way. However, Recommendation IX-2 (1977) 'Antarctic Marine Living Resources' recalls the "special responsibilities" conferred upon ATCPs in respect of the preservation and conservation of living resources in the Antarctic by virtue of Article IX(1)(f) of the Antarctic Treaty. This is essentially repeated in the Preamble to the CCAMLR Convention and complemented by a recognition of the "prime responsibilities" of the ATCPs for the protection and preservation, of the Antarctic environment. The "prime responsibility" of ATCPs for the protection of the Antarctic environment is also recognized in Recommendation IX-5 (1977) Man's Impact on the Antarctic Environment'. Moreover, the preamble to Recommendation IX-1 (1977) 'Antarctic Mineral Resources' refers to the contribution of the Antarctic Treaty to the purposes and principles of the UN Charter, which can be seen as a response to the challenged legitimacy of the ATS and the threat of involvement by the UN. Recommendation XI-1 (1981) 'Antarctic Mineral Resources', the Preamble to CRAMRA and the Preamble to the Madrid Protocol take a similar approach.
179. D.J. Enzenbacher, "The Regulation of Antarctic Tourism", in C.M. Hall and M.E. Johnston (eds), Polar Tourism. Tourism in the Arctic and Antarctic Regions (Chichester etc., John Wiley & Sons, 1995), pp. 179-215, at p. 180.
180. Doc. ATME 2004 No. 20/Rev.l 'The Case for Concern, about Antarctic Tourism (ASOC)', at pp. 1 and 3 refers to the "seeming duty" and "responsibility" of the ATS.
181. E.g. Art. VI of the CCAMLR Convention, which acknowledges the primacy of the IWC
182. See the discussion by A. Jørgensen-Dahl, "The Legitimacy of the ATS", in Jargensen-Dahl and Østreng, note 140, pp. 287-298, at pp. 293-295.
183. See Stokke and Vidas, note 135, at pp. 14-20 and Jørgensen-Dahl, note 163, at pp. 293-295.
184. See O.S. Stokke and D. Vidas, "Introduction", in Stokke and Vidas, note 18, pp. 1-9, at pp. 5-6.
185. For treaty law see Art 34 of the Vienna Convention on the Law of Treaties (Vienna, 23 May 1969. In force 27 January 1980, 1155 United Nations Treaty Series 331).
186. B. Simma, "The Antarctic Treaty as a Treaty Providing for an 'Objective Regime'", 19 Cornell International Law Journal 189-209 (1986), at pp. 192-196 does not share this view but discusses the International Law Commission's earlier draft articles for what would become the 1969 Vienna Convention (note 166), which incorporated the concept of treatiesproviding for objective regimes. This concept, he argues, was specifically designed for the Antarctic Treaty.
187. See also B.H. Oxman, "Antarctica and the Law of the Sea", 19 Cornell international Law Journal 211-247 (1986), at p. 223 who links erga omnes effects to collective responsibility. See also Doc. ATCM. XXI/WP/22 (1997) 'Enhancing Compliance with the Protocol: Departure State Jurisdiction (United Kingdom)', which at pp. 5-6 invokes the objective nature of the ATS.
188. See, inter alia, Art. X. of the Antarctic Treaty, Arts X(1) and XXII of the CCAMULR Convention and Art. 13(2) of the Madrid Protocol.
189. Text at , under 'Catch Documentation Scheme'.
190. The CDS is laid down, in Conservation Measure 10-05 (2004), which also contains provisions on port State control (paras 3 and 14). Conservation Measure 10-03 (2002) relates more specifically to port State control. Conservation Measure 10-07 (2003) contains a whole raft of measures that are to be taken once a non-party vessel, is placed on CCAMLR's IUU Vessel List, including port and coastal State measures.
191. See the chapeau to Art. XX of the General Agreement on Tariffs and Trade (1947; ).
192. For a more general discussion on these linkages in relation to RFMOs see E.J. Molenaar, "Participation, Allocation and Unregulated Fishing: The Practice of Regional Fisheries Management Organizations", 18 International Journal of Marine and Coastal Law 457-480 (2003).
193. See the end of note 152 on the issue of participation. CCAMLR does not allocate fishing opportunities by means of national quotas, but by setting a TAC and closing the fishing season as soon as it becomes clear that and when the TAC will be reached. This is sometimes referred to as an 'Olympic fishery'. CCAMLR does not allocate fishing opportunities in the maritime zones of various sub-Antarctic islands.
194. See note 151.
195. See Doc. ATCM XXVI/WP/18, note 151, at p. 2 and Final Report of the XXVIIth ATCM (2004), at p. 10, para. 28.
196. At the 22nd Annual CCAMLR Meeting (2003), when CCAMLR's IUU Vessel List was for the first time adopted, the Russian Federation, blocked consensus to ensure that none of its vessels would appear on it (Report of the 22nd Annual CCAMLR Meeting (2003), Doc. CCAMLR-XXII, at paras 8.21-8.22 and 8.29-8.57).
197. Doc. ATME 2004 No. 21, note 218, at p. 3 proposes capping total, passenger/tourist numbers.
198. See note 173.
199. See note 15.
200. The situation with respect to sub-Antarctic islands is of course different.
201. See, inter alia, Art 94 of the LOS Convention.
202. Para. (1).
203. See note 66. It is worth noting that Art. 1 of the draft Annex VI to the Madrid Protocol, note 132, also uses this phrase.
204. Cf. Bastmeijer, note 14, at p. 119 who also gives more arguments in support of this view.
205. See Arts VI 11(2) and IX(l)(e) of the Antarctic Treaty.
206. Bastmeijer, note 14, at pp. 435-437.
207. See also ATCM Resolution 3 (2004).
208. See also note 109.
209. See Docs ATCM XXVII/IP/63, note 7, at p. 17 and ATCM XXVI/IP/71 (2003), 'IAATO Overview of Antarctic Tourism', at p. 15. See in this context note 190 and accompanying text.
210. See note 108 and accompanying text
211. See Doc. ATME 2004 No. 1, 'Report of the Intersessional Contact Group Established by the XXVIth ATCM on the Development of a Database on Tourism and Non-Government Activities'. Unfortunately, at the XXVIIth ATCM (2004), despite significant preparatory work, no Decision, was taken (Final Report of the XXVIIth ATCM (2004), at p. 27, para. 168). See also R. Naveen, Compendium of Antarctic Peninsula Visitor Sites. A. Report to the United States Environmental Protection Agency (Oceanites, Inc., 2nd ed., 30 July 2003).
212. See Hemmings and Roura, note 24, at p. 18.
213. The observations made in the Section 'The International Legitimacy of the ATS' are therefore relevant here as well.
214. See Doc. ATME 2004 No. 20/Rev. 1, note 161, which observes on p. 3 that "The emergence of a powerful Antarctic tourism industry-a regional facet of what is now the world's largest industry-has sovereignty and wider geopolitical consequences for the ATS."
215. See also C.M. Hall and M.E. Johnston, "Introduction: Pole to Pole: Tourism Issues, Impacts and the Search for a Management Regime in Polar Regions", in Hall and Johnston, note 161, pp. 1-26, at pp. 18-20
216. and Doc. ATCM XXIV/IP/40, note 26, at p. 3.
217. See Doc. ATME 2004 No. 7, note 13, at pp. 4-6, where New Zealand also refers to the possibility of attempts by natural or juridical persons to create 'property rights'.
218. See also Doc. ATME 2004 No. 17, note 49, at pp. 1 and 3 and the Final Report of the ATME 2004, at paras 34-39, especially for the Chilean view in para. 37 that the ATS does not prohibit building a tourism facility and that Chilean, legislation would allow a public facility to be leased or made over as a concession to a tour operator. Headland, note 23, at p. 277 observes that Chile established the first Antarctic hotel (Hotel Estrella Polar) adjacent to its station. Teniente Rodolfo Marsh on King George Island in 1982, but discontinued its use in 1992-93.
219. Doc. ATCM XXVII/IP/63, note 7, at p. 10 mentions that the Chilean Aerovias DAP is planning to offer overnight stays at the Frei/Marsh area on King George Island. Doc. ATME 2004 No. 19, "Tourism in Antarctica. Discussion paper submitted by the Federal Republic of Germany", at p. 2 takes the view that "accommodation[s] tourism in Antarctica is not in line with the Antarctic Treaty and the [Madrid Protocol]".
220. At the XXVIIth ATCM (2004) it was decided to defer discussion on land-based tourism to the XXVIIIth ATCM (2005) (Final Report of the XXVIIth ATCM (2004), at p. 30, paras 193-196).
221. This is also the position of the United Kingdom, in Doc. ATCM. XXVI/WP/23 (2003), note 13. At the XXVIIth ATCM (2004), this position remained largely unchanged even though the United Kingdom supported the accreditation, scheme proposed by Australia. The fact that the XXVIIth (2004) has led to the adoption, of Measure 4 (2004) and Resolutions 3 (2004) and 4 (2004) is not necessarily indicative of wide support for this 'gap-filling' approach.
222. See Doc. ATME 2004 No. 22, 'Mechanisms for Regulating Commercial Tourism' (submitted, by ASOC), which discusses various options for legally-binding instruments, one of which is a Convention for the Regulation of Antarctic Tourism Activities (CRATA).
223. See note 74 and accompanying text.
224. See Hemmings and Roura, note 24, at pp. 21-22; Kriwoken and Rootes, note 23, at pp. 146-147; Bastmeijer, note 28, at p. 118 and Doc. ATCM XXIV/IP/40, note 26, at p. 3.
225. Se inter alia Richardson, note 25, at p. 78; Hemmings and Roura, note 24, at pp. 15 and 22 and Doc. ATCM. XXVI/IP/96 (2003), note 60, at pp. 4-5 for some observations by IAATO. Note that the Madrid Protocol already incorporates provisions on sovereign immunity in Art. 11 of Annex IV.
226. Final. Report of the XXVIIth ATCM (2004), p. 10, para. 28.
227. Doc. ATCM XXVIII/IP/82, note 9 at pp. 13-14.
228. Based on Doc. ATCM XXVII/IP/63, note 7. See also note 207. The two exceptions seem to be G.A.P. Adventures, based in Canada, who plans to use the Liberian registered Explorer, with a capacity of 100 passengers, for 12 voyages in 2004/05; and Philos Expeditions, based in Switzerland, who uses the sailing yacht Philos, with a capacity of 5 passengers. As of 13 December 2003, Annexes I-IV of the Madrid Protocol entered info force for Canada but as of 29 April 2004 Switzerland was not party to the Madrid Protocol (cf. Doc. ATCM XXVII/IP/36, note 19, at Annex 2). The Canadian accession addresses the concerns expressed in Resolution 6 (1999), note 13.
229. According to Doc. ATCM XXVII/IP/63, note 7, at pp. 13-14 and Appendix E, this concernsthe Discovery registered in Bermuda (operated by a tour operator that is not a member of IAATO) and several sailing vessels/yachts registered in the British Virgin Islands and the Falkland Islands.
230. The Antarctic Act 1994 (Overseas Territories) Order 1995 (Statutory Instrument 1995, No. 1030) extends provisions of the 1994 Antarctic Act, with modifications, to the territories listed in Schedule 2 to the 1995 Order. This list includes the territories referred to in note 204.
231. See note 186 and accompanying text.
232. See Doc. ATCM XXVI/WP/23, note 13, at p. 9, by which the United Kingdom, seems to have in mind the Netherlands, whose Antarctic legislation does not apply to vessels registered in the Netherlands (cf. Bastmeijer, note 14, at pp. 136-137 and 430;
233. see also Richardson, note 25, at p. 82). At the time of writing, this concerned in particular the Amsterdam, registered in the Netherlands and operated by the Holland America Line, based in the United States (and, fortunately, subject to the latter's legislation).
234. See also the account by Richardson, note 25, at pp. 81-83.
235. See also Bastmeijer, note 14, at pp. 436-437.
236. "To operate within the parameters of (...) IMO Conventions" is one of IAATO's objectives (Art II, Section D of the IAATO Bylaws). However, to what extent compliance with IMOConventions is part of the processes of acquiring membership and of assessing overall compliance is unclear (see notes 107 and 108 and accompanying text). See also the Draft Resolution proposed by the United Kingdom in Doc. ATME 2004 No. 3 'Tourism: Guidelines Related to Shipping. Provisions for Non-Treaty Flagged Vessels. Submitted by the UK'.
237. This could be an integrated system for ensuring compliance with standards that address the risks associated with Antarctic sea-borne tourism already discussed, as well as with other relevant standards, for instance those relating to maritime safety and maritime security. See also F. Orrego Vicuña, "Port State Jurisdiction in Antarctica: A New Approach to Inspection, Control and Enforcement", in Vidas, note 25, pp. 45-69 and Richardson, note 25, at pp. 89-90.
238. See also notes 204 and 205.
239. As regards Orient Lines see also note 108. Based on Doc. ATCM XXVII/IP/63, note 7.
240. Doc. ATCM XXVIII/IP/82, note 9, at pp. 13, 15, 22.
241. See Doc. ATME 2004 No. 4, note 105, at p. 7. The discussion by D.J. Enzenbacher, "Tourism at Faraday Station. An Antarctic Case Study". 21 Annals of Tourism Research 303-317 (1994), at p. 308 suggests that, in relation to stations, this policy has existed, since 1993.
242. With respect to South Georgia, the policy of positive discrimination of IAATO members proposed on p. 64 of the Environmental Management Plan for South Georgia (Public consultation paper, February 1999; text at ), was put into place in 2000 (information provided by R. McKee, September 2004). Note the special case of the Discovery, registered in Bermuda but operated by a non-member of IAATO. According to Doc. ATCM XXV/IP/30 (2002) 'Chairman's Report from the Aspen Meeting on Antarctic Tourism (IAATO)', at p. 5 more ATCPs exercise a policy of positive discrimination. In view of note 227, this group does not include the United States.
243. See note 39.
244. See Doc. ATME 2004 No. 21 'What does Regulation of Commercial Tourism Mean? [Submitted, by ASOC]', which, at p. 2, severely criticizes this policy by the United Kingdom and thereby, so it seems, also questions the current performance of IAATO and its future need.
245. Doc. ATME 2004 No. 15 'Accreditation of Non-Government Operators. Submitted by Australia'. At the XXVIIth ATCM the following Docs also dealt with accreditation: XXVII/WP/38 (2004) 'Accreditation Scheme for Antarctic Tour Operators (Australia)', XXVII/IP/69, note 107 and XXVMP/108 (2004) 'Tourism Accreditation and Inspection under the Antarctic Treaty (ASOC)'.
246. Final Report of the XXVIIth ATCM (2004), at p. 28, paras 180-181. See Doc. ATCM XXVIII/WP/18 (2005) 'Report of the Intersessional Contact Group on Accreditation Scheme for Antarctic Tour Operators. (United Kingdom)'.
247. Doc. ATCM XXVII/IP/108, note 219, at. p. 4 refers to the Inspection Checklists under ATCM. Resolution 5 (1995) 'Antarctic Inspection Checklists'. See especially Checklist B: 'Vessels within, the Antarctic Treaty Area' (text available at ).
248. This is for instance suggested, in Doc. ATCM XXVI/IP/95 (2003) 'Tourism Issues' (IAATO), at p. 6.
249. The accreditation process suggested by Australia in Doc. ATCM XXVII/WP/38, note 219, does not express a preference for IAATO, even though the suggested process bears many resemblances with the current IAATO processes for obtaining membership. This contrasts sharply with Doc. ATCM XXVII/IP/108, note 21.9, which does not envisage a role for IAATO but envisages a system of inspection based on Art. VII of the Antarctic Treaty and Art. 14 of the Madrid Protocol as a vehicle for accreditation.
250. See Doc. ATME 2004 No. 10 'Practical Experience of an Observer Scheme for Antarctic and Sub-Antarctic Tourism. Paper Submitted, by New Zealand' and Doc. ATCM XXVI/ WP/23, note 13, at p. 17.
251. See inter alia notes 118-119 and accompanying text.
252. See inter alia notes 118-119 and accompanying text. This would address the concerns expressed by ASOC in Doc. ATME 2004 No. 21, note 218, at p. 2.
253. Back in 1994, Enzenbacher, note 216, at p. 308 already advocated that IAATO should assume "responsibility for handling visit requests and coordinating tour ship visits to research stations" while parties to the Antarctic Treaty would set caps. It is worth noting that the opportunities to visit the United States Palmer Station are currently allocated during the annual IAATO General Meetings. Requests for visits by non-members of IAATO are also taken into consideration (information provided by N. Kennedy, National Science Foundation, July 2004).