7 The Antarctic Protected Area Approach

Lyn Goldsworthy1

Alan D. Hemmings2,3

There are few places in the world where there has never been war, where the environment is fully protected and where scientific research has priority. But there is a whole continent like this – it is the land the Antarctic Treaty parties call ‘a natural reserve, devoted to peace and science.’ At the southern end of our world, those who share the challenges of distance and cold to visit the ice-bound continent have developed a tradition of warm cooperation. Such cooperation, unique on this scale, is cemented by the Antarctic Treaty.

XXIII Antarctic Treaty Consultative Meeting, Peru, May/June 1999

7.1 Introduction

‘Antarctica’ can mean many things and several areas. For this chapter we take it to mean the entire area south of the Antarctic Convergence, including the continent, surrounding islands, and the ‘Southern Ocean’. We take a traditional view of the Southern Ocean as the body of water south of the Antarctic Convergence, rather than the technical definition of it as comprising only those waters south of 60 degrees South latitude, which was adopted by the International Hydrographic Office in 2000.

This is a huge area, some 10 per cent of the planet, and a great engine that drives global circulatory systems. The continent at its heart is around 14 million square kilometres in area and claims a raft of superlatives – the coldest, driest, windiest continent on earth, with the harshest climate, the highest average elevation, is technically our largest desert, contains 70 per cent of the world's fresh water (primarily locked up as ice), and has no permanent human residents. It is also the least polluted (but sadly not unpolluted) continent. The Southern Ocean as we define it covers some 20 million square kilometres of cold, stormy, and very deep ocean, separated from northern oceans by the Antarctic Convergence and supporting historically vast populations of marine life – from phytoplankton, krill, squid, and finfish to seabirds (including charismatic groups such as the penguins and albatross), seals, and whales.

The Antarctic has attracted an unprecedented range of broad-level and specific protection and management measures. Although differing from the more familiar examples of multilateral transboundary co-operation, these measures, collectively coordinated through the Antarctic Treaty system (ATS), can still properly be considered ‘transboundary’. Rival territorial claims have been contained under the terms of the Antarctic Treaty and the wider Antarctic Treaty system, which have prohibited mining and military activity on the continent, declared the region a ‘natural reserve devoted to peace and science’, encouraged co-operative scientific programmes and the sharing of scientific data, and provided mechanisms for environmental management, which from its first iterations included particular attention to area protection. It is far from perfect of course, but there are foundations here if the will can be found.

This great realm is many things, but it is still – despite the historic and current assaults upon it from both local and global phenomena – the greatest wilderness on our planet. It is also one of the very few places on our common earth where humans have not butchered each other. The region faces many difficulties, but there is more reason for hope in relation to human engagement with Antarctica than in many other places.

The first known proposal for special area protection for a part of the Antarctic is that of Sir Douglas Mawson's efforts in 1915 to gain designation of the sub-Antarctic Macquarie Island as a wildlife sanctuary.4 However, it was not until 1960 that the first formal proposals were put forward.5

In 1950, at the height of cold war tensions, a group of American and British scientists proposed an international scientific collaboration centred around the polar regions, building on the success of two previous international scientific polar initiatives.6 From their efforts emerged the International Geophysical Year from July 1957 to December 1958, involving 12 States participating in an unprecedented co-operative scientific programme across the Antarctic. The desire to maintain and build on the international co-operation established during this programme prompted those 12 States7 to negotiate a treaty.

The Antarctic Treaty came into force in 1961 and put aside political and legal differences to ensure ‘in the interests of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord’.8 The Treaty applies to the area south of 60 degrees S and covers the Antarctic continent and its islands.

The differing views of States with respect to the scope of the Treaty in relation to the marine area south of 60 degrees S led to the adoption of a separate legal instrument, the Convention for the Conservation of Antarctic Seals (CCAS), to manage any resumed sealing industry in the Antarctic marine environment, and later to the adoption of the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR) to regulate marine harvesting. A Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), adopted in 1988, was subsequently abandoned.9 Most recently, in 1991, Antarctic States adopted the Protocol on Environmental Protection to the Antarctic Treaty (the Madrid Protocol). The cluster of Antarctic instruments and the institutions and subsidiary agreements resulting from these have been termed the Antarctic Treaty system.

The Antarctic Treaty enables States that have conducted ‘substantial scientific research activity there, such as the establishment of a scientific station or the dispatch of a scientific expedition’10 to become decision-making Consultative Parties. There are currently 46 Parties to the Antarctic Treaty, of which 28 are Antarctic Treaty Consultative Parties (ATCPs).11 The ATCPs set policy by adopting, by consensus, Measures, Decisions and Resolutions at their annual meetings (Antarctic Treaty Consultative Meetings, or ATCMs).

This chapter seeks to show that the Parties to the Antarctic Treaty, Madrid Protocol, and CCAMLR have embraced a broad-level management approach for protection of natural resources within the Antarctic area. However, despite considerable effort and energy in discussing theoretical frameworks and approaches, it suggests that the Parties have struggled to ensure effective implementation of their various measures and have yet to translate effective specific area and value protection into ‘on-ground’ representation in any substantive manner.

7.2 Broad-level management – the Antarctic Treaty System

The ATS provides, at least in a declaratory sense, a level of protection that generally exceeds that existing for other continents or regions. This is perhaps not surprising, since it is the only substantial part of the planet that is governed collectively and since human activity there is recent and until 20 years ago slight by comparison with other areas.12

The keystone for broad-level management is the Antarctic Treaty. Article I declares that Antarctica shall be used for peaceful purposes only. It prohibits military activities (other than logistic support for peaceful scientific research) and weapons testing. Article II enshrines freedom of scientific investigation and co-operation, Article III encourages exchange of scientific data and scientists, and Article IV ‘freezes’ positions in relation to territorial sovereignty and denies validity to the declaration of new claims or enlargement of existing claims for the duration of the Treaty. Article V bans nuclear explosions and disposal of radioactive wastes (at least pending the conclusion of any international agreements that allow these). Building on the pre-existing territorial claim boundaries, Article VI designates the area of application of the treaty (and as a consequence all subsequent ATS treaties, with the exception of CCAMLR) as the area south of 60 degrees south latitude. Article VII establishes freedom of access to all parts of Antarctica and allows on-the-spot inspections of stations and facilities, including ships and aircraft, by observers designated by any Consultative Party, and it requires advance notice of Antarctic expeditions. Jurisdiction over observers and exchange personnel is addressed in Article VIII by making them subject only to the jurisdiction of the Party of which they are nationals. Article IX establishes the mechanisms whereby Parties may meet to consider issues and further measures, and the remaining article address generic instrument issues.

Subsequent instruments of the ATS have developed the practical management tools for specific types of activity. These instruments can be seen as responses to emerging resource access issues, sequentially concerning seals (CCAS), fishing (CCAMLR), and minerals (CRAMRA) before resolving the last and establishing generic environmental standards through the Protocol.

The ATS operates largely on the basis of two annual two-week meetings: an Antarctic Treaty Consultative Meeting, where obligations under the Antarctic Treaty and Protocol (and reporting under CCAS) are addressed, and a meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR Commission). The former is hosted sequentially by Antarctic Treaty Consultative Parties and supported by an Antarctic Treaty Secretariat based in Buenos Aires; the latter is always held in Hobart, Tasmania, where a dedicated CCAMLR Secretariat is based.

Decisions are taken by consensus. This has the advantage of delivering broad ownership of decisions and provides reassurance for Parties (perhaps particularly the claimants) that national interest can, in the final resort, be guaranteed in the face of unwelcome proposals. But of course it has both raised the bar in terms of getting agreement and sometimes risks lowest-common-denominator outcomes. Critically, it poses difficulties in those instances where one of the States whose agreement is required is actually the source of the concern.13 In these instances, a self-serving veto is provided. The 20-year process of agreeing on an Antarctic Treaty Secretariat was in large part due to problems getting a couple of States to join consensus.14

The Antarctic Treaty is essentially a geopolitical instrument designed to address the tensions related to territorial claims in Antarctica and the broader tensions of the cold war. As such, there are no specific provisions in the treaty relating to protection of the environment per se, although clearly the prohibitions of military measures and nuclear activities were significant both environmentally and in shaping the character of the evolving regime in a manner that would be more favourable to environmental protection.

The roots of modern environmental protection in Antarctica appeared in an early ATCM Recommendation, the Agreed Measures for the Conservation of Antarctic Fauna and Flora.15 The Agreed Measures declared the Antarctic Treaty area a Special Conservation Area, set down general rules concerning the minimization of harmful interference with fauna and flora, and established the new category of Specially Protected Species, to which the Ross Seal Ommatophoca rossii and fur Seals of the genus Arctocephalus were assigned, and the area category of Specially Protected Areas (SPAs).16 The Agreed Measures were subsequently updated and then, again amended and absorbed into the Protocol in 1991, where they form Annex II Conservation of Antarctic Fauna and Flora.

The Convention for the Conservation of Antarctic Seals was adopted in 1972 by the 12 ATCP members at the time when it was thought that a commercial seal harvest might be resumed in the Antarctic. It came into force in 1978. CCAS established sealing zones and seasons, set limits on the number of seals to be taken, prohibited the killing of the southern fur seal species – Ross and Southern Elephant seals (Mirounga leonina) – and designated reserves where no sealing was permitted. Enforcement of the agreed conservation measures relies on self-policing by the now 16 Contracting Parties.17 No commercial seal harvesting has been held since the CCAS was adopted.

CCAMLR was adopted in 1980 in response to depletion of some fish stocks as a consequence of heavy fishing and an increasing concern about the impact of the growing unregulated krill fishery on the entire food web of the Antarctic.18 It aimed to provide a management system that allowed fishing activities within a holistic ecosystem-approach, taking into account the effects of fishing on dependent and related species as well as the ecosystem as a whole. The term ‘conservation’ was taken to include ‘rational use’. The Commission to the Convention was further charged with conserving marine life, preventing decreases in populations of harvested species to levels below stable replacement, and restoring depleted populations to stable recruitment levels. Since its entry into force, CCAMLR has attracted interest from fishing States not necessarily interested in the Antarctic continent, and it now has a slightly different membership to that of the Antarctic Treaty, including the European Community.19 The opportunity for regional economic integration organizations, such as the European Community, to join CCAMLR is a significant departure from previous and subsequent ATS instrument arrangements.20

There is, as a result, something of a ‘disconnect’ in the focus of conservation management on the continent and on the surrounding oceans, and this has particularly hindered the development of protected areas with oceans and land components.

With growing interest in the potential mineral wealth of the continent in the 1980s, Antarctic Treaty States turned their attention to the regulation of minerals activities. Believing that mining was inevitable and that agreement on regulation prior to commencement of such activity was necessary, Treaty Parties negotiated the Convention on the Regulation of Antarctic Mineral Resource Activity. This was a time of considerable membership growth for the Antarctic Treaty, with many States joining so that they could be part of the perceived mineral grab.21 The text was completed in 1988, but following intense pressure from environmental groups to place the wilderness, scientific, and international collaboration values of the region above any benefits that may arise from mineral extraction, public pressure and key ATCPs forced the abandonment of the Convention in favour of a more overtly environmental focus for the Antarctic region.

The Protocol was adopted on October 4, 1991, and entered into force on January 14, 1998.22 It provides the framework for an integrated comprehensive environmental regime for the Antarctic continent and forms the basis for all current protection measures for the continent and for some measures in the marine environment. The Protocol designates Antarctica as a ‘natural reserve devoted to peace and science’.

It aims to build on and strengthen the Antarctic Treaty's effectiveness in protecting the Antarctic Treaty area. It outlines binding environmental principles to be applied to all human activities in the region, while giving priority to scientific research. It draws heavily from the Agreed Measures and elements of the abandoned CRAMRA regime.23 The Protocol specifically bans mineral resource activities, other than for scientific research, for at least 50 years, unless the Consultative Parties involved in the negotiation of the Protocol unanimously agree otherwise and have also adopted a binding legal regime governing mining activities. Beyond 50 years, at least two-thirds of the Consultative Parties who negotiated the Protocol must agree to lift the ban.

The Madrid Protocol and its six Annexes provide a legally binding set of conservation measures applicable to most activities in the Antarctic Treaty area:

Annex I - Environmental Impact Assessment (EIA) – requires prior EIA for any proposed activity subject to the advance notification provisions of Article VII(5) of the Antarctic Treaty. Three levels of assessment are established, hinging on the concept of ‘minor or transitory impact’. A preliminary-stage evaluation (termed in some implementing legislation a Preliminary Assessment or Preliminary Evaluation) suffices if it is determined that the proposed activity will have less than a minor or transitory impact. If some greater impact is indicated – either through the Preliminary Stage, or a priori – then an Initial Environmental Evaluation or, if more than a minor or transitory impact is seen as possible, a Comprehensive Environmental Evaluation is required.24

Annex II – Conservation of Fauna and Flora – replaces and strengthens the Agreed Measures and includes regulations for protecting native fauna and flora and for restricting entry of non-native plants and animals.

Annex III – Waste Disposal and Waste Management – updates existing recommendations and specifies methods for the disposal and/or removal from the Treaty area of all kinds of waste from both expeditions and station activities. Importantly, it increases reliance on recycling and reduces the waste stream by decreasing the amount of packaging that is brought into the Antarctic. Parties are required to remove all waste materials regularly.

Annex IV – Prevention of Marine Pollution – drawing heavily from the International Convention for the Prevention of Pollution from Ships, as amended in the Protocol of 1978 (MARPOL 73/78), addresses ship discharges of oil, noxious liquid substances, garbage, and sewage and sets out guidelines for vessel retention capacity and for emergency response and preparedness.

Annex V – Area Protection and Management – provides for the designation of an area as an Antarctic Specially Protected Area (ASPA), a category into which pre-Protocol protected areas have been systematically converted and which, critically, allows the designation of ‘any marine area’ or an ‘Antarctic Specially Managed Area’ (ASMA), along with associated management plans.

Annex VI – Liability Arising from Environmental Emergencies – lays out preventive measures, contingency plans, response actions, and liability schemes to assist in addressing any accidental event that threatens the Antarctic environment.

Annexes I to IV entered into force with the Protocol in 1998. Annex V entered into force in May 2002, and thus the case history of actual practice is more limited than with the rest of the Protocol. The sixth Annex, dealing with liability arising from environmental emergencies, was adopted by the 28th ATCM in June 2005 and is not yet in force.

7.3 Development of specific area management and protection

7.3.1 Early concepts

Antarctic Treaty Parties initially met once every two years (since 1991, they have met every year) at Antarctic Treaty Consultative Meetings to exchange information and take decisions. All decisions are taken by consensus, as noted earlier. (Decisions were called ‘Recommendations’ until 1995, when three separate categories were introduced: Measures, which provide legally binding commitments (such as designation of protected areas and their management plans); Decisions, which cover administrative matters such as Rules of Procedure; and Resolutions, which are hortatory (guidelines are generally adopted in this manner).

The first recorded formal discussion of the application of conservation management measures within the Antarctic Treaty area for the purpose of protecting native species and setting aside specific areas was within the Scientific Committee on Antarctic Research (SCAR)25 at its third meeting in 1959. That meeting concluded that protection of native mammals and birds and the declaration of representative areas of natural environments was an urgent need and that ‘the impact of man’ and introduced animals on the Antarctic environment should be assessed'.26 The seventh General Assembly of the International Union for Conservation of Nature and Natural Resources (IUCN),27 held the following year in Warsaw, also discussed protected areas for the Antarctic region and urged that the proposed Antarctic Treaty should set aside protected areas for the conservation of fauna and flora and their natural environment.28

In 1961, SCAR presented the Parties of the newly formed Treaty with a number of recommendations that included the recognition of ‘all areas of land and fresh water, including fast ice and ice shelves, and all coastal waters south of 60 S ... as a nature reserve’ and ‘designation of selected areas as sanctuaries within which no form of disturbance should be permitted’ so as to protect especially important or vulnerable species or habitats.29 These recommendations were subsequently utilised by the parties to develop the Agreed Measures, the provisions of which aimed to ‘prohibit ... the killing, wounding, capturing or molesting of any native mammal or native bird or any attempt at any such act, except in accordance with a permit’, ‘to minimize harmful interference ... with the normal living conditions of any native mammal or bird, or any attempt at such harmful interference’, to provide special protection to native mammals and birds designated as ‘Specially Protected Species’, and to provide special protection for ‘areas of outstanding scientific interest ... in order to preserve their unique natural ecosystem system[s]’ as Specially Protected Areas.

The adoption of the Agreed Measures placed the Antarctic at the forefront of conservation management in the 1960s. Unlike many Recommendations of the ATCMs, the Measures were mandatory, generating binding obligations on the Party once the Measure had come into force.30

However, while the permit system provided protection for identified species and some level of protection for other native mammals and birds, the development and approval of permits at the national level led to a range of interpretations and applications of the Agreed Measures. In addition, area protection under the Agreed Measures proceeded in a largely ad hoc manner, with little thought to the development of any systematic or structured approach to protecting representative examples of ecosystems, habitats, or species31 or to the development of area protection for comparable areas, species, communities, and habitats outside of the Antarctic Treaty area. Non-biological sites were excluded, and management plans were not considered necessary. And with designated areas generally small and restricted to areas ashore (albeit with near-shore waters subsequently included in some areas), the system may have provided selective protection for sites of particular scientific interest, but this has hardly constituted the basis for a coherent and systematic protection of environmental values.

In 1972, SCAR raised its concern32 about the lack of representation of many major Antarctic land and freshwater ecological systems within designated SPAs, while noting that other systems seemed overrepresented, particularly coastal bird breeding sites. The Treaty Parties agreed and responded by adopting a Recommendation33 identifying the need to include examples of areas with values not adequately represented, such as major Antarctic land and freshwater ecological systems, areas with unique complexes of species and ‘especially interesting breeding colonies of birds or mammals’, as well as ‘areas which should be kept inviolate so that in the future they may be used for purposes of comparison with localities that have been disturbed by man’. However, the Recommendation stressed that the number of SPAs should be kept to the minimum that would meet the criteria of representative examples and that the size of each SPA should be the minimum required to serve the purpose for which the area has been designated. Non-biological sites were also explicitly excluded from SPA criteria.34

One of the original criteria for permitting entry into SPAs was to facilitate a scientific purpose ‘which cannot be served elsewhere’.35 This led to the prioritization of scientific investigation at the expense of protection of fauna, flora, and/or ecosystems in the declaration of and approved activities within each Specially Protected Area. Consequently, the Treaty Parties established Sites of Special Scientific Interest (SSSIs) to permit protection of both scientific study sites and habitat and/or species sites.36

In 1989 the Treaty Parties adopted the concept of management plans for Antarctic SPAs in acknowledgment of the use of such plans in comparable protected sites elsewhere in the world.37 It was a further 12 years before the concept of marine SSSIs was approved.38

The 1989 Treaty Meeting also addressed the omission of non-biological features or values from the Agreed Measures by agreeing to the concept of Specially Reserved Areas to provide a specific mechanism for protection of areas of outstanding geological, glaciological, geomorphological, aesthetic, scenic, or wilderness values.39 One site was proposed at the following Treaty Meeting – the North side of Dufek Massif – but was never designated by the Treaty. Multiple Use Planning Areas, designed to minimize the impact of different activities and activities from several nations within a single area, were also proposed at XV ATCM, and again one site was proposed but never designated – Southwest Anvers Island and vicinity. This area is currently under consideration for ASMA status.

Provisions to protect historic sites were taken at the very first ATCM in Canberra, Australia, in 1961, and monuments were added in 1968.40 While there are currently around 80 Historic Sites and Monuments,41 most are of national relevance rather than international importance.

7.3.2 The arrival of the Madrid Protocol

At the time of the negotiation of the Madrid Protocol there were a total of 19 SPAs, covering a land area of 102.5 square kilometres (km2) and a sea area of 30 km2. A further 35 areas had been designated SSSIs, covering a total area of 2,685 km2 (675 km2 land and 2010 km2 sea). Thus a total area of 2,817.5 square kilometres within the Antarctic tTreaty area was in some formal protected area. This equated to considerably less than 1 per cent of the continent under special area protection. Most SPAs and SSSIs were located in the Antarctic Peninsula area or around McMurdo Sound.

The Madrid Protocol introduced a level of simplicity to protected area management, replacing the growing number of categories within the Antarctic Treaty with just two: ASPAs and ASMAs.

Article 2 of the Protocol outlines the objectives of Annex V (Area Protection and Management) as ‘any area, including any marine area, [that] may be designated as an Antarctic Specially Protected Area or an Antarctic Specially Managed Area. Activities in those Areas shall be prohibited, restricted or managed in accordance with Management Plans adopted under the provisions of this Annex’.

ASPAs provide specific protection for discrete areas that have some identified special value by requiring permits for entry and an associated management plan, which provides information on the reason for designation, identification of any restricted zones, conditions under which permits may be granted, conditions applying to access, and activities that are permitted within the area. The Protocol makes it an offence to enter a protected area without a permit and the permit must not authorise any activity that has not been authorised by the management plan.

Article 3 outlines the types of areas that should be set aside as ASPAs. These include areas to be kept inviolate from human interference for use as monitoring or comparison zones; representative examples of major terrestrial ecosystems (including glacial and aquatic systems) and marine ecosystems; areas with important or unusual assemblages of species (including major colonies of breeding native birds or mammals); sites of the only known habitat of any species; areas of particular interest to ongoing or planned scientific research; examples of outstanding geological, glaciological, or geomorphological features; areas of outstanding aesthetic and wilderness value; sites or monuments of recognized historic value; and such other areas as may be appropriate to protect the values set out in the objectives.

The development of the Protocol gave the Treaty nations an opportunity to revise and update the management plans for existing protected sites. Some sites had irregular or inaccurately described boundaries, others had vague designations. All existing SPAs and SSSIs were redesignated and renumbered as ASPAs, and the Treaty nations developed new guidelines for preparing the required management plans. These are required to be submitted by the proposing nation to the Committee for Environmental Protection and approved at an ATCM. Thus far, 67 ASPAs have been designated.42

Annex V also provides for the creation of a new concept of protected area, ASMAs, which are intended to facilitate co-operation between nations operating in close proximity to each other, with a view to minimizing environmental impacts or mutual interference. While ASMAs do not need an entry permit, they do require a management plan and may contain zones where more restriction and permits might apply, including ASPAs and sites or monuments of recognized historic value, and the activities within ASMAs are governed by a code of conduct. Thus far six ASMAs have been adopted.43

7.3.3 The ‘workshop’ era

In 1992, SCAR and IUCN hosted a workshop to discuss the practical application of the Madrid Protocol provisions relating to protected areas.44 One example of the need for such a discussion was that Annex V lists a number of values to be protected within a network of ASPAs but provides little guidance on methods for site identification or prioritization. The SCAR-IUCN workshop also aimed to draw from the application of best practices in conservation planning and management from elsewhere in the world.

The workshop highlighted the exclusion of consideration of protected area development from comparable areas, species, communities, and habitats outside the Antarctic Treaty area. One consequence of this is the absence of a clear and agreed standard or understanding of the concepts applied, which has led to a multitude of interpretations and applications by the Treaty nations. The workshop considered this to be particularly problematic when the Treaty Parties come to consider area protection for wilderness value, and particularly geographically large areas, perceived by many to unnecessarily impede national plans for station location, transport and scientific activities. Indeed, 15 years on, Treaty Parties continue to have difficulties in declaring any significant wilderness sites for ASPA level protection, and have also balked at restrictive protection for any large geographic areas.

The lack of understanding of the extent, diversity, and abundance of species' populations, communities, habitats, ecosystems, and biomes within the Treaty area was also identified as a major weakness in the selection of protected area sites. The resultant workshop proposal that a detailed biogeographical framework be developed – extending work already done by SCAR to classify a range of Antarctic terrestrial, inland water, and inshore marine ecosystems – generated an excellent pathway forward for the Treaty Parties.45

SCAR-IUCN went on to present 22 recommendations to the XVII ATCM in Venice, in November 1992.46 These included a call for work to start on the development of the protected area system immediately – prior to ratification of the Madrid Protocol and its Annexes; for proposals for new protected and managed areas in areas not yet fully represented to be encouraged; for the development of a more comprehensive selection of criteria for assessment of proposals; and for a standard methodology for site surveillance and monitoring to be established to ensure consistency in development of management plans. SCAR-IUCN also noted the absence of specific reference to the management of tourism in the Protocol and called upon Treaty Parties to address this through conservation principles for assessment and management of all tourist operations as well as research into and monitoring of tourist activities and their impacts.

The SCAR-IUCN workshop report specifically named a number of regions where new ASPAs might be designated to minimize human impact or to improve geographical representation of protected areas, particularly wilderness, paleontology, lakes/streams, geomorphology, glaciated terrain, and limnological features).47 While several of these areas and values remain underrepresented to this day, the Treaty nations have designated some from the list, including:

  1. Deception Island as an ASMA (notable for its volcanology, bird biology, geology, and cartography) to better manage and minimize the impact of an ever growing number of scientists and tourists on its special volcanic and geological sites, unique bird colonies, and historically significant sites;

  2. As an ASMA, the Larseman Hills notable for its wilderness, lakes, and vegetation values; and

  3. An important nunatak48 area of Victoria Land, also as an ASMA.

It was not for another six years, however, that the Treaty Parties began to work on the issue in any formal or significant way. In 1998, they held a workshop in Tromsø, Norway, prior to the XXII ATCM, to specifically identify gaps between the current designated protected areas and the categories identified in Annex V of the Madrid Protocol and to identify new areas that might fill those gaps.49

The Tromsø Workshop noted a number of major concerns with (lack of) progress towards full implementation of an effective protected area system for the Antarctic region, including the urgent need for Annex V to be ratified by all the ATCPs; the absence of a strategy to develop a network of protected areas; and an urgent need for the development and updating of management plans for existing SPAs and SSSIs in accordance with Annex V. While many at the workshop felt that area protection in Antarctica had fallen behind efforts made elsewhere in the world,50 others felt that the special status given to all of Antarctica under the Madrid Protocol was equivalent to (without implying sovereign status) Category II (National Park: protected area managed mainly for ecosystem protection and recreation) of the widely accepted 1993 United Nations Protected Area List51 and thus placed the region at the leading edge of global area protection and management.

While this fundamental difference of view was not resolved, the workshop fleshed out a basic framework for the systematic development of a representative protected areas system, based on the Protocol and Annex V, and recommended that the ATCPs consider this and other systems for classifying protected areas in Antarctica and also take urgent steps to identify possible new protected areas, particularly for representative examples of ecosystems and areas to be kept inviolate from human interference.52

By this stage, the Madrid Protocol had entered into force and the Committee for Environmental Protection (CEP), created under Article 11 of the Madrid Protocol to provide advice and recommendations on the implementation of the Protocol, had been formally established. Parties were also hopeful of the imminent ratification of Annex V. From its inception, the CEP has faced many challenges with respect to the development of the protected area system –the orderly aggregation of SPAs, SSSIs, and HSMs into the new single category of ASPA; the development and application of the concept of active management; the development of criteria for site selection; marine protected areas (MPAs); and protected area size and representativeness. Further, there continue to be new potential impacts, including increasing tourism activities and fisheries.

The newly constituted CEP decided on a second protected area workshop to develop an overall Antarctic protected areas framework as envisioned in Article 3(2) of Annex V. This workshop, held in Lima, Peru, in June 1999 immediately prior to the Antarctic Treaty Meeting, was also tasked with considering systems for categorizing protected areas in Antarctica, with undertaking a gap analysis based on the values for site protection identified in Article 3 of Annex V,53 with preparing possible recommendations for new protected areas, and with providing suggestions on how the CEP could best review draft management plans for ASPAs.

The Lima workshop proposed a protected areas framework based on a schema that combines the values identified in Article 3 of Annex V, six identified protection categories (ecosystems, habitat, species, landscape, environmental features, and cultural/historic features), and five identified use categories (science, conservation, economic, recreation/tourism, and intrinsic) for the CEP to adopt. It further recommended that the CEP elaborate a conservation strategy to deal with gaps in current protected area categories and coverage, and it identified a range of existing tools such as environmental risk analysis and complementarity analysis to assist in selecting new protected areas.54

Both workshops were limited in their terms of reference to ASPAs and thus in their capacity to provide broader recommendations to the Treaty Parties. For example, ASPAs have consistently been extremely limited in size, and the only option available for management or protection of larger areas is through the application of ASMAs.

This limitation in focus also restricted opportunities for a broader debate beyond that of existing protection mechanisms. For example, this is starkly illustrated by the proposed Lake Vostok drilling programme, which highlighted the capacity – and willingness – of Parties to choose scientific research over protection and process over outcome. Lake Vostok has significant intrinsic value as possibly the most pristine body of water on the planet. Buried under nearly 4 kilometres of ice, it is one of the world's biggest freshwater lakes and home to possibly unique flora and fauna, yet the Parties have expressed no interest or willingness to designate the lake as an ASPA.

7.3.4 Frameworks, Guidelines, and Reviews

In 2000, the Treaty Parties adopted a detailed Resolution entitled Guidelines for the Implementation of Article 3, Annex V,55 which aimed to provide guidance on criteria and procedures for identifying and proposing new ASPAs, drawing from the concept of environmental risk. The Resolution describes itself as ‘a set of tools to enable more systematic assessment, selection, definition and proposal of areas that might require greater protection in accordance with the provisions of Annex V of the Environmental Protocol’. While a significant advance in encouraging Parties to consider ASPA designations, the guidelines have no legal status and do not extend to ASMAs.

Five years later, no significant changes were evident. In 2005, New Zealand conducted a review of the status of the Antarctic protected areas system. They reported 62 ASPAs, protecting approximately a total of 2,741 km2 of Antarctica (1,780 km2 of sea area and 960 km2 of land area), representing 0.008 per cent of the total Antarctic Treaty area.56 The study notes that despite significant attention to upgrading and updating of management plans for ASPAs, four plans still needed to be updated into the accepted Annex V format and 13 plans were overdue for their five yearly reviews. Little progress appeared to have been made in extending the representative coverage of underrepresented categories.

The New Zealand study also notes that sites appear to be nominated because they harbour a number of ‘values’ rather than for a single significant ‘value’. For instance, while birds are the most protected fauna, few sites have been established primarily or exclusively to protect birds or a particular bird species. Similarly few sites have been nominated to protect a particularly species or type of vegetation; plant protection is generally achieved through protection of a general stretch of vegetation. In addition, there was no evidence of an extension of geographic coverage – sites remained exclusively on the coastal fringes, they were primarily clustered on and around the Antarctic Peninsula or around Ross Sea/Victoria Land regions, and no sites had been adopted in the Marie Byrd Land area of Western Antarctica. This reflects the inability of Treaty Parties to extend their thinking beyond interests or areas of specific national interest or the restrictive approaches applied to protected areas in some other parts of the world. The consensus decision approach has also not encouraged forward thinking.

New Zealand proposed several recommendations, many of which had been before the Parties before, sometimes repeatedly. For instance, they again called for active nomination of sites in underrepresented geographical areas and for underrepresented environmental values, as well as for a more systematic approach to the development of the protected areas network.

The exhortations in 2005 thus far appear to have had little impact on proposals for new designations of ASPAs. Three new ASPAs have been adopted since that meeting, totalling an area of less than 8 km2, located similarly to other ASPAs on the coastal fringes, near other ASPAs, and protecting a colony of giant petrels, a terrestrial and freshwater habitat, and some historic buildings.

However, the study did open the way for a more focused debate on the importance of marine areas as part of the Treaty's development of a ‘systematic environmental-geographic framework’ for Antarctic Protected Areas. Few MPAs have been designated within the Antarctic Treaty area either as marine ASPAs or as part of ASMAs, and those that have been identified have occurred largely on an ad hoc basis. The United Kingdom introduced a position paper in 2006, noting that MPAs are considered increasingly important in other parts of the world as important tools for conservation of marine biodiversity and habitat, maintenance of healthy ecosystems in concert with sustainable fisheries, and co-ordination of activities in multiple-use areas; the paper suggested that MPAs would provide a useful means to provide scientific reference areas as well as protecting and conserving Antarctic marine areas of particularly high value or sensitivity.57

7.3.5 Marine Protected Areas

In 2005, with minimal debate, XXVIII ATCM in Stockholm, Sweden, passed Decision 9, giving CCAMLR an effective veto over protected areas that contain ocean marine areas.58 Any proposals with a marine component in which there is harvesting or ‘potential’ for harvesting or where CCAMLR activities might be restricted must first be approved by the CAMLR Commission prior to decision by an ATCM. This has led to further slowing of acceptance of protected areas with marine components.

The CAMLR Commission had already initiated its own focus on MPAs by agreeing in 2004 to convene a workshop to discuss how MPAs might usefully further CCAMLR's objectives and to review the types of scientific information that would be needed for the development of CCAMLR MPAs. The workshop was held in Silver Spring, Maryland, in the United States in late August 2005 and the report was submitted to the November 2005 XXIV CCAMLR meeting.

The CAMLR Commission had also earlier established the Ecosystem Monitoring Programme (CEMP) and associated CEMP sites (in 1995) to monitor the effects of fishing on both harvested species (target species) and dependent species (predators). Entry into CEMP sites is prohibited without a permit, and all CEMP sites have management plans. In 2004, the Commission adopted a conservation measure to establish a process for according specific protection measures to be applied to CEMP sites in order to ensure the site itself or its approved scientific activities are not significantly disturbed. The process requires advice from SCAR and consideration by ATCPs prior to formal adoption by CCAMLR. Fishing activity is not necessarily restricted in such sites.

In reviewing the outcomes of the Silver Spring workshop, the Scientific Committee of CCAMLR stated ‘overall, when viewed in relation to the IUCN categories of protected areas [that] the Convention Area as a whole would qualify as Category IV (Habitat/Species Management Area: protected area managed mainly for conservation through management intervention)’.59 Category IV is defined as an area of land and/or sea subject to active intervention for management purposes so as to ensure the maintenance of habitats and/or to meet the requirements of specific species. The Committee also noted that CCAMLR already uses a form of ‘area management’ via ‘Fisheries Closed Areas’ for individual fisheries based on advice from working groups on individual fisheries.

The 2005 CAMLR Commission endorsed the workshop's proposal to ‘elaborate the principles, practical guidelines and scientific requirements for MPA development’60 and its proposed MPA definition as ‘any area of intertidal or sub tidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment’.61 It was generally acknowledged that MPAs could be a useful tool for furthering CCAMLR's objectives, particularly in relation to protection of ecosystem processes, habitats and biodiversity, and protection of species (including population and life history stages)62 and that there was a need to develop a strategic approach to MPA design and implementation for the Southern Ocean.

The 2005 CCAMLR meeting went on to agree on a process for the development of a system of protected areas, starting with broad-scale bioregionalization of the Southern Ocean, followed by fine-scale subdivision of biogeographic provinces, together with identification of areas that might be used to achieve the conservation objectives and determination of areas requiring interim protection. It established a Steering Committee, which includes members of the Scientific Committee and the CEP, and agreed to a further workshop to advise on a bioregionalization of the Southern Ocean, including, where possible, advice on smaller-scale delineation of provinces and potential areas for protection to further the conservation objectives of CCAMLR. This work plan is currently under way.

The XXIX ATCM in 2006 again acknowledged the urgent need for definition and designation of Antarctic MPAs and the need for work to start ‘sooner rather than later’.63 Parties had previously recognized the importance of MPAs by committing to identify such areas within a systematic environmental-geographic framework and to include in the series of ASPAs representative examples of major marine ecosystems. The XXIX ATCM endorsed a proposal to co-operate with CCAMLR to develop a bioregionalization of the Southern Ocean as a first step towards the elaboration of a systematic environmental-geographic framework for protected areas. It is clear, however, that ongoing access to marine living resources is a significant barrier to the acceptance of any significant MPA designations in the short term, and several nations continually express the need for due consideration of alternative options for conserving the marine environment.

7.4 Where are we now?

The Antarctic Treaty Parties have adopted more than 85 recommendations dealing with area protection and management, accounting for more than a quarter of all their recommendations. By the end of 2006, the CEP had considered more than 130 Working Papers and over 70 Information Papers relating to matters concerning area protection and management.64

All existing protected areas have been amalgamated into ASPAs according to the Protocol. Any area may be nominated for ASPA status to protect outstanding environmental, scientific, historic, aesthetic, or wilderness values or any combination of those values or to protect ongoing or planned scientific research. There are currently 67 ASPAs, totalling less than 2,760 km2 total area. The six ASMAs provide a considerably larger area (in total, approximately 42,000 km2) with a lower level of protection, although three of the ASMAs also contain ASPAs. The purpose of an ASMA is to provide co-ordination of activities (to minimize physical disturbance or cumulative impact, for instance) rather than restriction or prohibition of activities.

Of the areas protected, six are fully marine ASPAs, a further nine ASPAs contain small marine components, and three ASMAs contain marine components, covering a total of 1,780 km2 or 0.012 per cent of the marine area south of 60°S.

A list of all existing ASPAs and ASMAs can be found on the Web site of the Committee for Environmental Protection: http://cep.ats.aq/cep/.

Figure 7.1 identifies the location of protected areas as of the end of 2006.

Photo: courtesy of British Antarctic Survey

All ASPAs and ASMAs must have a management plan, and all management plans must be reviewed by the CEP every five years. A permit, issued by the appropriate national authority, is required for entry into ASPAs. The Treaty Parties have developed guidelines for the development of management plans for ASPAs, a standardised reporting format for visits to ASPAs, and procedures for considering new and revised draft management plans.

The Antarctic Treaty Parties have repeatedly committed themselves to develop a systematic framework of ASPAs, including a representative range of ecosystems and species; areas of particular scientific interest; areas representing the type of locality or only known habitat of any species; examples of outstanding geological, glaciological, or geomorphological features; areas of outstanding aesthetic and wilderness value; historic sites or monuments. While work has started, they appear to be many years – and designated areas – from meeting this commitment.

CCAMLR has established CEMP sites to monitor the effects of fishing on both harvested species (target species) and dependent species (predators). Entry to CEMP sites is prohibited without a permit, issued by the relevant national authority. CEMP sites also have Management Plans. Two of the CEMP sites have been afforded special protection:

  1. Seal Islands (near Elephant Island) in the South Shetland Islands, previously an important ecosystem monitoring site and now used for census studies; and

  2. Cape Shirreff and Telmo Island, South Shetland Islands (approximate area: 3.47 km2) (which is also designated as ASPA 149 under the Antarctic Treaty), an important ecosystem monitoring sites for the study of significant breeding colonies of Antarctic fur seals (Arctocephalus gazelle), Chinstrap penguins (Pygoscelis antarctica) and Gentoo penguins (Pygoscelis papua), whose foraging range overlaps with commercial krill fisheries.

CCAMLR has also initiated a process for consideration of designation of marine protected areas.

There are also three Seal Reserves under the Convention for the Conservation of Antarctic Seals, the purpose of which is to protect sites that are seal breeding areas or the sites of scientific research on seals. The killing or capturing of seals in these reserves is prohibited. The three Reserves are around the South Orkney Islands, (approximate area: 9,090.9 km2), the south-western Ross Sea south of 76°S and west of 170°E (approximate area: 32,3630 km2), and Edisto Inlet south – Cape Hallett – Helm Point (approximate area: 230.5 km2). There is currently no commercial seal take in the Antarctic region.

The Madrid Protocol was a huge step forward for the protection of the Antarctic environment, but thus far it has failed to deliver a systematic and representative network of protected areas. Its Committee for Environmental Protection is a technical/advisory body with no real power to make this happen.

The effective management of the impacts of tourism is also becoming a major issue in terms of systematic or representative protection of values and areas in Antarctica. Tourism is growing in the Antarctic region, both in terms of the total numbers and the range of activities undertaken.65 The big questions to be tackled are how to minimize the cumulative impacts of tourist activity and to do this prior to disturbance or deterioration of areas that may qualify for protected status. The XXX ATCM adopted a voluntary Resolution endorsing the concept that all tourism activity should be guided by the principle that tourism should have no more than a minor or transitory impact on Antarctica.66 This may be seen as a useful ‘first step’ but alone will do little to limit the growth of tourism or regulate/guide its geographic spread and impact.

While much work has been done to develop standardized processes to apply to existing protected areas, tangible developments with respect to the creation of a logical and consistent network of protected areas have yet to emerge. The existing SPA sites have arisen primarily from national interests rather than any attempt to achieve systematic or representative coverage of Antarctic ecosystems. As a result, there are significant gaps in coverage, particularly with respect to MPAs and inland areas, and few areas are kept intentionally free of human activity.

Annex V of the Madrid Protocol also requires Treaty Parties to identify and designate marine areas, although as noted above, these must also be approved by CCAMLR. After multiple calls by IUCN, SCAR, and international environmental organizations to urgently address this singular gap in Antarctic area protection, the Antarctic Treaty and CCAMLR have finally begun to consider this issue in a serious way. In 2006 they acknowledged the urgent need for definition and designation of Antarctic MPAs.67 They have determined and initiated their first step – the development of a systematic environmental geographic framework for the offshore marine environment – which hopefully will lead to selection and designation of a network of Antarctic MPAs.

Antarctic area protection faces other difficulties, not from the Protocol itself but from the way in which it is implemented by Antarctic States, collectively and/or individually, as a result of questions of interpretation and a lack of resources or political will. There is no international organization to enforce ATS obligations. Each signatory nation writes and enforces its own laws and regulations to implement these treaties, which do not always view things the same way. There is a growing ‘implementation gap’ among Parties between those appropriately meeting Protocol obligations and those lagging significantly behind. For example, EIA is applied in widely different ways, with some countries literally never preparing one. Some nations make their assessments available to the ATCM, while others do not. This is resulting in lower environmental standards being accepted as the ‘norm’. At the same time, improved technology and knowledge over the last 100 years have allowed greater access to the continent in terms of scale and scope of activities, scientific and private, that are able to penetrate further into wilderness areas.68

The Protocol also faces an increasing number of cross-cutting environmental issues and strategic environmental needs that challenge its ability to govern the Antarctic region effectively. The key environmental principles articulated in Articles 2 and 3 often become secondary to other interests that individual States have in the region, particularly with respect to the exploitation of the marine environment. Thus the area of application of the Protocol has retreated for the most part to the continent rather than applying to the entire Treaty area, as mandated by the Protocol, and much of the harvesting activities at sea are exempted from its implementation. For instance, the recently concluded Liability Annex does not apply to fishing vessels in the Southern Ocean (which constitute the majority of the vessels there) and it has proved extremely difficult to establish MPAs under Annex V of the Protocol.69

Treaty nations also have broader international obligations with respect to developing effective area protection for the Antarctic Treaty area. For instance, many Antarctic Treaty Parties participated in the agreement reached at the World Summit on Sustainable Development (Johannesburg, 2002) to implement representative networks of MPAs by 2012 with the aim of conserving marine biodiversity and allowing sustainable use of marine resources. Parties to the Convention on Biological Diversity (CBD) have also called for urgent action to address the underrepresentation of marine and coastal biodiversity in the global protected area system, particularly in areas beyond national jurisdiction. The Eighth Meeting of the Conference of the Parties to the CBD (Curitiba, Brazil, 2006) specifically considered MPA discussions and decisions in the CCAMLR context. Most recently, the G-8 2007 Environment Ministers' Meeting (Potsdam, Germany, 15–17 March 2007) agreed to ‘intensify our research and enhance our cooperation regarding the high seas in order to identify those habitats that merit protection and to ensure their protection.’70

7.5 Conclusion

The Antarctic Treaty system can reasonably claim to have been in the vanguard of international protected areas efforts in the 1960s, with initiatives based around the Agreed Measures. The system was refocused again in the early 1990s in Annex V to the Protocol. The picture in CCAMLR has been less encouraging. With the exception of a few CEMP sites, the quarter-of-a-century lifetime of CCAMLR has not seen it designate a single protected area, an option plainly available to it through a conservation measure.

The expanded brief provided by Annex V of the Madrid Protocol has slowly changed the focus of protected areas designations on the continent and islands within the Antarctic Treaty area. There is evidence of a broadening of the criteria upon which designations are made, and there is some evidence of increasing size in designated areas. Protected areas are still proportionately more common in the peninsula and southern Ross Sea, but other focal areas are beginning to emerge. These areas, both old and new, seem to fairly coincide with areas of greatest human pressure, so the clustering has a rational basis. Happily, more States are proposing protected areas. Whilst Anglo-Saxon domination of proposals has not entirely disappeared, there has been a relative decline.

But there are some developments of a more questionable nature. The positive development of the ASMA category, which offered for the first time the mechanism to coordinate activities involving several States – a matter of some significance, given the clustering of national programme stations in several parts of the Antarctic, most notably King George Island, the Larsemann Hills, and McMurdo Sound – seems to be evolving in a different way. Whilst these are still early days, there is some reason to fear that ASMAs are being used in place of ASPAs because they impose less onerous duties.

The most problematical development however remains in relation to protected areas in the marine environment. There is substantial support for using Protocol Annex V to designate marine protected areas as ASPAs (or ASMAs). But the ATCM (and to a degree this reflects concessions made within its advisory Committee for Environmental Protection) has allowed the emergence of a de facto veto on the designation of marine ASPAs/ASMAs by requiring CCAMLR's concurrence on any such proposals. This is plainly problematical, given that CCAMLR's conception of conservation includes ‘rational use’ and thus the restriction of harvesting (given that constraints on harvesting seem likely to be part of any proposal for a marine ASPA) can be expected to face resistance within its fora. Key fishing States within CCAMLR are quite clearly resistant to any constraints on access for harvesting, not only because they do not wish to see them in the Antarctic but because they fear the establishment of ‘unfortunate precedents’. Whilst it may be quite difficult to too brutally block proposals when they arise in the CEP/ATCM, these States have no such difficulties in the much more aggressively pro-use fora of CCAMLR. The capacity of Antarctic States to wear quite different hats depending on whether they are in the CEP/ATCM or CCAMLR is significant.

A secondary facet of this is the procedural complexity of a discussion of an area moving back and forth between the ATCM/CEP and CCAMLR's Scientific Committee, the various subgroups reporting to the Scientific Committee, and (if it ever cleared the Scientific Committee) the Commission. The present CCAMLR focus on bioregionalization appears to have taken a useful component of a discussion about marine protected areas and established it as the sole focus of discussion without apparent end – a sort of sandpit wherein safe play is assured. As a result of these developments, no significant marine area has as yet been designated as an ASPA or ASMA and none look likely in the near term. Once again, consensus has its costs.

But, as the saying goes, ‘wait, there's more’. Even if one sees a marine area designated as an ASPA or ASMA under the Protocol, the area need not be secure against activity conducted under CCAMLR. This arises because a) the membership of the two instruments is, whilst close, not identical and b) State Parties have generally implemented their Antarctic Treaty and Madrid Protocol obligations through different domestic legislation to that which implements their CCAMLR obligations. For many States, it may be necessary for there to be parallel legal obligations coming out of both the ATCM and CCAMLR Commission.

So, what is currently required by way of development of a truly effective Antarctic protected areas system?

  1. A recognition that the historic remoteness of Antarctica and the general declaratory commitment towards the environment in the Antarctic Treaty, CCAMLR, and the Protocol are not enough. The Antarctic is not protected merely by the designation of Antarctica as a natural reserve. Some tangible further steps are now required, and these include various forms of area protection. Antarctica's marine environment is under increasing pressure from marine harvesting, possibly soon from bioprospecting, from tourism, from whaling, potentially from some sorts of research (such as iron-seeding and acoustic/air-gun equipment), and from the unfolding and profound consequences of climate change.

  2. A real commitment to establish in the near term a set of marine protected areas in the Antarctic. It is always difficult to agree on MPAs anywhere in the world, but if we cannot agree to them in Antarctica, we are in serious trouble. It would be good to see CCAMLR designating some real protected areas on its own initiative, and not just playing the spoiler to proposals that arise through the Protocol's mechanisms.

  3. The mechanisms for co-operation between the ATCM and CCAMLR in relation to MPAs need further development.71

  4. A range of MPAs are required – from perhaps quite small and coastal areas (a continuation of established ATS practice) to large open ocean areas. Some progressive thinking needs to become evident in relation to open ocean MPAs globally, and the claims to innovative and co-operative ways on the part of the ATS could be usefully demonstrated if these were pioneered in Antarctica.

  5. If these MPAs are to be effective they will inevitably constrain some activities. Those who practice these activities will, of course, resist this. We do nobody any favours by suggesting that the designation of MPAs (or indeed of any other sort of protected area) will necessarily be pain-free.

  6. Whilst the subantarctic islands (most of which lay outside the area we have here construed as the Antarctic) are increasingly designated as protected areas under national legislation (in the case of the Australian, New Zealand, and South African islands, then also designated as World Heritage Sites), no equivalent island or archipelago protection (of land and its surrounding marine area) has yet been achieved in Antarctica. The New Zealand proposal for the Balleny Islands foundered on political problems and perceptions that it was in part at least tied in to New Zealand sovereignty interests.72 Objectively, groups such as the Ballenys, Peter I, the South Sandwich Islands, etc. warrant serious consideration.

  7. Although the protected areas system ashore in Antarctica is less problematical – in terms of at least being accepted and the precedent of 40 years of practical deployment – it is still poorly developed. The underpinnings for the mandatory systemic environmental-geographic framework may have been provided by New Zealand (and particularly by Harry Keys)73 but we are still a long way off from realizing its potential.

  8. There are, for instance, still no protected areas designated for that most typical Antarctic environment, the high polar plateau, 36 years after Patterson wondered whether we were dusting it with aviation fuel breakdown products.74 Are we now too late to address that? The distribution and size of designated areas are still issues, and the values recognized under the Protocol are not yet well represented in protected areas designated ashore in Antarctica.

These are significant tasks, and plainly they will not be accomplished overnight. It would be nice to think, however, that at least some progress would be evident before we all assemble at the XXXII ATCM in Baltimore, Maryland, in the northern summer of 2009 on the fiftieth anniversary of the adoption of the Antarctic Treaty.

1 Lyn Goldsworthy is a consultant providing advocacy, strategic planning, and policy advice to nongovernmental organizations. She is a Senior Advisor to the Antarctic and Southern Ocean Coalition (ASOC) and has a long history of involvement in Antarctic issues. Goldsworthy has attended most Antarctic Treaty Meetings since 1985 as the nongovernmental representative on the Australian delegation, served four terms on the Australian Government's Antarctic Science Advisory Committee between 1988 and 2004, and has visited Antarctica three times to undertake environmental assessments. She was awarded an Order of Australia (Member) in 1993 and given the New Zealand Antarctic Society Trophy in 1991.

2 Dr Alan D. Hemmings is a consultant on environmental policy and governance in the polar regions, Senior Fellow at Gateway Antarctica Centre for Antarctic Studies and Research at the University of Canterbury, Christchurch, New Zealand, and Research Associate at the Institute of Antarctic and Southern Ocean Studies at the University of Tasmania, Hobart, Australia. He is a Senior Adviser to ASOC and a former Chair of IUCN's Antarctic Advisory Committee. He has attended Antarctic Treaty Consultative Meetings and meetings of the Convention for the Conservation of Antarctic Marine Living Resources since 1989 and currently serves on the Australian Government's Antarctic Science Advisory Committee.

3 The authors would like to acknowledge the contribution of their ASOC colleagues over many years.

4 P.M. Selkirk, R.D. Seppelt, and D.R. Selkirk, Sub-Antarctic Macquarie Island: Environment and Biology (Cambridge, UK: Cambridge University Press, 1990).

5 Scientific Committee for Antarctic Research, SCAR Bulletin, vol. 6 (1960), pp. 66–75.

6 D.O. Belanger, Deep Freeze: The United States, the International Geophysical Year, and the Origins of Antarctica's Age of Science (Boulder, CO: University Press of Colorado, 2006), p. 30. The first International Polar Year (or IPY) was a collaborative, international research programme focused on the polar regions in 1882–1883. It was initiated by Karl Weyprecht, an Austro-Hungarian navy officer who unfortunately died before it occurred. Fifty years later – in 1932–1933 – a second IPY was held.

7 The Treaty was adopted by the seven states who have asserted territorial claims to parts of the continent – Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom – and five others: Belgium, Japan, South Africa, the Soviet Union, and the United States (the last two maintaining a basis to claim). These were the original 12 ‘Consultative Parties’.

8 Preamble to the Antarctic Treaty.

9 New Zealand, which led the negotiations and would have become the depository state, says it is ‘unlikely to enter into force as superseded by the Environmental Protocol’; see www.mfat.govt.nz/Foreign-Relations/1-Global-Issues/Antarctica/1-New-Zealand-Relationship-with-Antarctica/antarctictreatysyst.php, accessed 16 January 2008.

10 Article IX para 2, Antarctic Treaty.

11 Report of the Depository Government of the Antarctic Treaty and its Protocol (USA) in accordance with Recommendation XIII-2. Annex F, Final Report of the Antarctic Treaty Consultative Meeting, 2007.

12 This has now changed, see: A.D. Hemmings, Globalisation's Cold Genius and the Ending of Antarctic isolation, in L.K. Kriwoken, J. Jabour, and A.D. Hemmings (eds), Looking South: Australia's Antarctic Agenda (Annandale, Australia: Federation Press, 2007).

13 On problems in relation to Commission members seen as regularly breaching CCAMLR obligations, see A.D. Hemmings, Managing the Southern Ocean – The 2003 Meeting of the Commission for the Conservation of Antarctic Marine Living Resources, New Zealand Yearbook of International Law, no. 1 (2004), pp. 202–203.

14 See P. Vigni, The Secretariat of the Antarctic Treaty: Achievements and Weaknesses Three Years after Its Establishment, in G. Triggs and A. Riddell (eds.), Antarctica: Legal and Environmental Challenges for the Future (London: British Institute of International and Comparative Law, 2007).

15 Recommendation III-VIII adopted at the Third Antarctic Treaty Consultative Meeting, Brussels, 1964. Available at: www.ats.aq/dev/AS/info_measures_listitem.aspx?lang=e&id=35, accessed 1 February 2008.

16 This allowed for the designation of important biological sites as Specially Protected Areas (SPAs), Sites of Special Scientific Interest (SSSIs), and Historic Sites and Monuments (HSMs). Other protected area concepts were proposed by the Treaty Parties – Specially Reserved Areas (SRAs), Multiple Use Planning Areas (MPAs), Marine SSSIs (MSSSIs), and Areas of Special Tourist Interest (ASTIs), but none of these were adopted at that time.

17 Argentina, Australia, Belgium, Brazil, Canada, Chile, France, Germany, Italy, Japan, Norway, Poland, Russian Federation, South Africa, United Kingdom, and United States. New Zealand signed the convention but has not ratified it.

18 The Antarctic food web is extremely short and most species depend either directly or indirectly on krill. See for instance I. Everson, Role of Krill in Marine Food Webs, the Southern Ocean, in I. Everson (ed.), Krill: Biology, Ecology and Fisheries, Fisheries and Aquatic Resources, Series 6 (Oxford: Blackwell Science, 2000).

19 CCAMLR members include Namibia, the European Union in its own right, and Antarctic Treaty Consultative Parties (ATCPs) Argentina, Australia, Belgium, Brazil, Chile, China, France, Germany, India, Italy, Japan, New Zealand, Norway, Republic of Korea, Poland, Russia, South Africa, Spain, Sweden, United Kingdom, Ukraine, United States, and Uruguay. Signatories include ATCPs Finland, Bulgaria, Netherlands, and Peru, non-Consultative Parties Greece and Canada, and Vanuatu, Mauritius, and Cook Islands, which is currently applying for Commission status.

20 It is not possible with the Protocol, nor would it have been with CRAMRA, both of which post-date CCAMLR.

21 At the June 1988 signing of the Convention for the Regulation of Antarctic Mineral Resources, there were 19 Antarctic Treaty Consultative Parties, with Brazil, China, Germany, India, Italy, and Uruguay all joining between 1982 and 1988. Prior to this time, Poland was the only additional nation to seek consultative status, achieving this status in 1977. Between mid-1988 and the end of 1990, a further seven nations become Consultative Parties: Finland, Ecuador, Republic of Korea, Netherlands, Peru, Spain, and Sweden.

22 Twenty-six ATCPs negotiated the Madrid Protocol – Argentina, Australia, Belgium, Brazil, Bulgaria, Chile, China, Ecuador, Finland, France, Germany, India, Italy, Japan, Netherlands, New Zealand, Norway, Peru, Russia, Republic of Korea, Spain, South Africa, Sweden, United Kingdom, Uruguay, and United States. Many had joined in order to participate in the expected mining rush on the continent.

23 CRAMRA saw, inter alia, the first consideration of intrinsic, wilderness, and aesthetic values, concepts now found in the Protocol – see A.D. Hemmings, Cumulative Impact on Antarctic Intrinsic, Wilderness and Aesthetic Values, in M. De Poorter and J.C. Dalziell (eds.), Cumulative Environmental Impacts in Antarctica: Minimisation and Management (Gland, Switzerland: IUCN, 1996).

24 For a more substantial explanation of the EIA system under the Protocol, see A.D Hemmings and R. Roura. A Square Peg in a Round Hole: Fitting Impact Assessment under the Antarctic Environmental Protocol to Antarctic Tourism. Impact Assessment and Project Appraisal, vol. 21 (2003), pp. 13–24. [Link]

25 SCAR is a committee of ICSU, the International Council of Scientific Unions, and is charged with the initiation, promotion, and co-ordination of scientific research in Antarctica.

26 III Meeting Scientific Committee Antarctic Research, Canberra, Australia, 2–6 March 1959.

27 Note: The organization changed its name to World Conservation Union in 1990, but the full name and the acronym are often used together as many people still know it as IUCN. The organization was founded in October 1948 as the International Union for the Protection of Nature (or IUPN) following an international conference in Fontainebleau, France. The organization changed its name to the International Union for Conservation of Nature and Natural Resources in 1956. (See www.iucn.org/en/about)

28 IUCN, Proceedings: Seventh General Assembly. Warsaw, 15–24 June 1960.

29 Scientific Committee for Antarctic Research, SCAR Bulletin, vol. 8 (1961), pp. 103–115.

30 A practical limitation was however the protracted period between adoption and entry into force, due to the slowness of domestic process in some ATCPs (all of whom were required to ratify the Measure before it could become effective).

31 J. Valencia (ed.), Second Antarctic Protected Areas Workshop, Ministerio de Relaciones Exteriores and Instituto Antartico Chileno, Santiago, 2000.

32 Scientific Committee for Antarctic Research, Purposes and Designation of Special Areas. Report of SCAR Working Group on Biology, 1972.

33 VII ATCM, Rec 2. Wellington 30 October–10 November 1972.

34 While this was not specifically stated in III ATCM Rec. 8 (Agreed Measures) Article VIII (SPAs), it was spelt out in the preamble to VII ATCM Rec. 3 (Sites of Special Scientific Interest): ‘sites of non-biological interest cannot be designated Specially Protected Areas’.

35 Article VIII (4)a of Agreed Measures for the Conservation of Antarctic Fauna and Flora, adopted at the 3rd Antarctic Treat Consultative Meeting, Brussels, June 1964.

36 VIII ATCM, Rec 3. Oslo, 9–20 June 1975.

37 XV ATCM, Rec 9. Paris, 9–20 October 1989.

38 XIV ATCM, Rec 6. Rio de Janeiro, 6–16 October 1987.

39 XV ATCM, Rec 10. Paris, 9–20 October 1989.

40 I ATCM, Rec 9. Canberra, 10–24 July 1961, and Rec 4. V ATCM, Paris, 18–29 November 1968.

41 A consolidated list of all Historic Sites and Monuments was annexed to Decision 3 (2003), appended to the Final Report of ATCM XXVI, Madrid, and subsequent additions are found in the texts of Measure 3 (2004), Measure 5 (2005), Measure 3 (2006), and Measure 3 (2007).

42 Details of the ASPAs, including site information, location maps, detailed management plans and maps, site photographs, and permit information can be found on the Antarctic Protected Areas Information Archive, at http://cep.ats.aq/cep/apa/index.html

43 Details of ASMAs, including site information, location maps, detailed management plans and maps, site photographs, and permit information can be found on the Antarctic Protected Areas Information Archive, at http://cep.ats.aq/cep/apa/index.html

44 R.I. Lewis-Smith, D.W.H. Walton, and P.R. Dingwall, Developing the Antarctic Protected Area System, Proceedings of the SCAR/IUCN Workshop on Antarctic Protected Areas, Cambridge, UK, 29 June–2 July 1992.

45 L.K. Kriwoken and P.L. Keage, Identification and Selection of Protected Areas, in R.I. Lewis-Smith et al. (eds.), Proceedings of the SCAR/IUCN Workshop on Antarctic Protected Areas, Cambridge, UK, 29 June–2 July 1992.

46 Ibid.

47 Lewis-Smith, Walton, and Dingwall, supra note 46, p. 33.

48 Exposed summits that are not covered with ice or snow within an icefield or glacier.

49 See M. Prebble and A.D. Hemmings. The identification of Possible New Protected Areas. In B. Njåstad (ed.), Antarctic Protected Areas Workshop. Report No. 110 (Tromsø, Norway: Norwegian Polar Institute, 1998).

50 M. Holdgate, The Antarctic Protected Areas System in the New Millennium. Keynote Address to the Antarctic Protected Areas Workshop, 23 May 1998. In Njåstad, supra note 51.

51 IUCN, 1993 United Nations List of National Parks and Protected Areas (Cambridge, UK, and Gland, Switzerland: 1994).

52 XXII ATCM, Summary Report of the Antarctic Protected Areas Workshop, held 23rd May, Tromsø (XXII ATCM/WP26), Tromsø, 25 May-5 June 1998.

53 See J. Acero, New Areas, Gap Analysis and Conservation Values. In Valencia, supra note 33.

54 XXIII ATCM, Report of the Second Workshop On Antarctic Protected Areas, 22–23 May 1999, Lima (XXIII ATCM/WP37), Lima, 24 May–4 June 1999.

55 SXII ATCM, Resolution 1 (2000), Guidelines for Implementation of the Framework for Protected Areas set forth in Article 3, Annex V of the Environmental Protocol. The Hague, 14–18 September 2000.

56 XXVIII ATCM, A Review of the Antarctic Protected Areas System (XXVIII ATCM/WP 11). Stockholm, 6–17 June 2005.

57 XXIX ATCM, Marine Protected Areas (MPAs) – Tools for Protection and Management (XXIX ATCM/WP 4). Edinburgh, 12–23 June 2006.

58 ATCM XXVIII, Decision 9 (2005). Stockholm, 6–17 June 2005.

59 SC-CAMLR XXIV, Final Report of Scientific Committee (para 3.44–3.73) and Annex 7 (Report of the CCAMLR Workshop on Marine Protected Areas, Silver Spring, MD, USA, 29 August to 1 September 2005). Hobart, 24–28 October 2005.

60 Ibid. paras. 3.44–3.73.

61 Ibid. Annex 7, paragraph 1.

62 Ibid. Annex 7, paragraph 126.

63 XXIX ATCM, Final Report of the Twenty-ninth ATCM (para 80). Edinburgh, 12–23 June 2006.

64 R.A. Sanchez and E. McIvor, The Antarctic Committee for Environmental Protection: Past, Present, and Future. Polar Record, vol. 43 (2007), pp. 239–246. [Link]

65 IAATO, IAATO Overview of Antarctic Tourism 2006–2007 Antarctic Season (XXX ATCM/IP 121). XXX ATCM, New Delhi, 30 April–11 May 2007.

66 XXX ATCM, Resolution 5 (2007) Final Report of the Thirtieth ATCM. New Delhi, 30 April–11 May 2007.

67 XXIX ATCM, Final Report of the Twenty-ninth ATCM (para 80). Edinburgh, 12–23 June 2006.

68 ASOC, Strengthening the CEE Process, IP 84, XXX ATCM. New Delhi, 30 April–11 May 2007.

69 Antarctic and Southern Ocean Coalition, ASOC Analysis of the First Antarctic Liability Regime, 3 August 2005; A.D. Hemmings, Agreement to a Liability Annex to the Protocol, Antarctic, vol. 23, no. 3 (2005), pp. 50–51. This analysis presents further examples of the positive and negative aspects of the new Liability Annex.

70 ‘Potsdam Initiative – Biological Diversity 2010’, G8 2007 Environment Ministers Meeting, Potsdam, 15–17 March 2007, available at www.bmu.de/files/pdfs/allgemein/application/pdf/potsdam_initiative_en.pdf

71 See S.M. Grant, Challenges of Marine Protected Area Development in Antarctica, Parks vol. 15 (2005), pp. 40–47.

72 J. Burgess et al., Declaration of Marine Protected Areas – The Case of the Balleny Islands, Antarctica, in J.P. Breumer; A.Grant, and D.C. Smith (eds.), Aquatic Protected Areas: What Works Best and How Do We Know? Proceedings of the World Congress on Aquatic Protected Areas, Cairns, Australia – August 2002 (Gosford, NSW, Australia: Australian Society for Fish Biology, 2003), pp. 196–202.

73 New Zealand, Systematic Environmental Protection in Antarctica – First Progress Report, XXVII ATCM IP 24, 2004.

74 C. Patterson, Limiting the Contamination of Virgin Surfaces of Firn by Engine Exhausts from Nearby Traverses and Overflights, in B.C. Parker (ed.), Conservation Problems in Antarctica (Blacksburg, VA: Virginia Polytechnic Institute and State University, 1972).

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