Abstract
This article discusses commercial activities in Antarctica and the challenges these activities pose for the Antarctic Treaty System (ATS). Attention focuses on developments in fishing, tourism and biological prospecting in Antarctica and on possible future ice harvesting. The discussions show that ‘money-making’ in Antarctica has expanded and diversified over the past decades. While all these activities are subjected to existing ATS regulations, many policy questions are waiting for an answer from the 29 countries that jointly govern the Antarctic. A common characteristic regarding all commercial activities is that decision-making to proactively prevent negative impacts and risks to the principles and values of the ATS has proven to be very limited. This can directly affect the resilience of the ATS: continued lack of decision-making is likely to water down and undermine these principles and values, which may also increase tensions between the Consultative Parties to the Antarctic Treaty. It is incumbent on Consultative Parties to work harder to try advance resolution of the outstanding policy issues, particularly in a time when the Antarctic ecosystem is also under increasing pressure from climate change.
1 Introduction
The Antarctic Treaty System (ATS) has so far taken a lenient attitude towards money-making activities by private actors in the Antarctic, as long as they pass the minimum environmental and other standards established by the ATS legal instruments.1 The only category of commercial activities that has been banned through hard law is commercial mineral activities.2 Reasons for this leniency may include the inaction based on the principle of free access, the understanding that commercial activities are peaceful, as well as possible self-interest in such activities of states involved in the ATS. However, commercial activities in Antarctica have increased substantially over the last decades and several state governments and experts from various research disciplines have expressed concerns about tensions that these commercial activities may cause with the fundamental principles and values of the ATS, including Antarctica’s status as ‘natural reserve devoted to peace and science’.
This paper discusses commercial activities in Antarctica and the challenges these activities may pose for the ATS and assesses whether the ATS has been capable of addressing them. Attention focuses on the three main commercial activities taking place in the Antarctic: fishing (Section 2), tourism (Section 3) and bioprospecting (Section 4). Each section describes the relevant Antarctic activities, the challenges in light of the fundamental principles and values of the ATS, and the extent to which these challenges have been discussed and addressed within the ATS. Next, a potential new ‘money-making activity’, fresh water (ice) harvesting, receives attention (Section 5). Based on these discussions, the final Section (Section 6) integrates the findings of the previous sections and formulates the main conclusions on ‘money-making’ in Antarctica and on whether the identified challenges may constitute a threat to the resilience of the ATS.3
The research is based on an analysis of the legal ATS instruments, adopted decisions, resolutions and measures, the Final Reports of official ATS meetings, the literature and personal observations of the authors at ATS-related meetings, such as the Antarctic Treaty Consultative Meetings (ATCMs) and the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) meetings. Sources studied for the purpose of this contribution relate to the period up to December 2022.
2 Fishing
2.1 Activities
The harvest of marine species such as seals, penguins and whales began in the Southern Ocean more than two centuries ago, but it was not until the late 1960s and early 1970s that commercial harvesting of finfish and krill developed.4 Today, fishing effort centres on four main Antarctic species: Patagonian toothfish (Dissostichus eleginoides), Antarctic toothfish (Dissostichus mawsoni), Mackerel icefish (Champsocephalus gunnari) and Antarctic krill (Euphausia superba).
Operators licensed by CCAMLR Members Chile, China, Korea, Norway, Ukraine, New Zealand, UK, Japan, Spain, Uruguay, Australia, France and Russia conduct directed harvesting of these species in the various management units that make up the CCAMLR area (see Fig. 12.1 below). Over the last ten years, the total catch of all species in all management units has increased from an average of 250,000 tons per year in the period 2012–2016 to 370,000 tons per year in the period of 2017–2021.5
Illegal, unreported and unregulated (IUU) fishing – that is, fishing not licensed by a CCAMLR Member or fishing undertaken outside compliance with CCAMLR conservation measures – was a significant problem for CCAMLR in the 1990s and through into the early years of the 21st century. CCAMLR established ‘black lists’ of both Contracting Party IUU (CP-IUU) and Non-Contracting Party IUU (NCP-IUU) vessels to try to manage the problem, which had significant impact on legal fishers and the ecosystem – through lost gear, bycatch, for example of sharks and seabirds foraging at sea (particularly albatrosses). Each year the Standing Committee on Implementation and Compliance (SCIC) reports to CCAMLR on matters such as IUU and Members are asked to explain any allegations of IUU by their vessels. Until recently there has been little CCAMLR activity on this topic, although it is noted that CCAMLR now has a funding agreement with INTERPOL to jointly investigate and combat IUU activity. However, at the CCAMLR meeting in 2020, and again in 2021, IUU re-surfaced, and it is the discussions in the 2020 meeting regarding a Russian-flagged vessel, Palmer, and follow-up discussions in 2021, that are of particular concern as CCAMLR tries to satisfactorily manage allegations of IUU fishing, by its Members in particular. This point is followed up in the section on CCAMLR compliance.
2.2 Current Regulation
2.2.1 The CAMLR Convention
The historical, unfettered harvest led to near extinction (certainly commercial extinction) of some species in the Southern Ocean, such as the fin whale, and the Antarctic Treaty Consultative Parties raised concerns that the same could happen to other Antarctic species without appropriate regulation.6 The Antarctic Treaty itself did not specifically regulate access to Antarctic marine living resources. However, it did provide a mandate under Article IX to exchange information, consult together on matters of common interest, formulate and consider, and recommend to their Governments ‘measures in furtherance of the principles and objectives of the Treaty’, including measures regarding the ‘preservation and conservation of living resources in Antarctica’ (IX.1(f)).
At the height of interest in harvesting krill in 1978 the Consultative Parties convened a Special Consultative Meeting to draft a conservation and management convention. The Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) was adopted in Canberra, Australia on 20 May 1980 and entered into force on 7 April 1982.7 Its Preamble reads, in part: ‘Conscious of the urgency of ensuring the conservation of Antarctic marine living resources’ (para 3) and this provides useful insight into the intention of the framers.
The Convention applies to the area South of the Antarctic convergence, also referred to as the Polar Front, which ‘varies seasonally and geographically, but is generally located near 50 °S in the Atlantic and Indian sectors of the Southern Ocean and 60 °S in the Pacific sector’.8 The convergence is an ecosystem boundary zone where the cold, northerly-moving water meets and subducts beneath the warmer, southerly-moving water. This mixing zone is thought to represent the most northerly range of most ‘Antarctic’ marine species. However, there are exceptions: for example, migratory seabirds, marine mammals, some benthic species such as crabs, and even some lower taxa such as zooplankton and diatoms.9 The variable position of the Polar Front explains why the Convention has an unusually complex area of application, as delineated in Article I.4.10
A Contracting Party to the Convention is a State or a regional economic integration organisation, such as the European Union, which has committed to the Convention through ratification, acceptance, approval or accession. Currently, the Convention has 37 contracting parties, of which 26 plus the European Union are members of CCAMLR.11 Membership of the Commission is open to any Contracting Party that is engaged in research or harvesting activities in relation to the marine living resources to which the Convention applies. The 10 Contracting Parties that are not a member of the Commission are referred to as Acceding States.
CCAMLR Members take part in the decision-making processes of the Commission and the Scientific Committee and contribute to the budget. CCAMLR makes rules about all facets of both the conservation of, and the regulation of access to, Antarctic marine living resources. CCAMLR decisions on matters of substance are consensus-based, and this originated from the Antarctic Treaty, Article IX.4 (i.e. that decisions require the approval of all Consultative Parties). Although not expressly defined in the Convention, CCAMLR takes its cue on interpreting ‘consensus’ from Article 25.5 of the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA),12 which defined consensus as ‘the absence of a formal objection’. Since both the CAMLR Convention and CRAMRA originated from the ATCM and had similar purposes (i.e. managing access to commercial resources), such an interpretation is logical.
2.2.2 Conservation Measures
At the annual meetings, CCAMLR Members carry out their functions under the direction of Article IX of the Antarctic Treaty. They make new laws through these consensus-based Conservation Measures (CMs), taking ‘full account of’ (Article IX.4) the ‘best scientific evidence available’ (in accordance with Article IX.1(f)). These CMs are categorised according to different themes of responsibility: compliance; general fishery matters including notifications, gear regulations, data reporting, research and experiments, minimisation of incidental mortality and environmental protection; general measures (e.g. closure of all fisheries), fishing seasons, closed areas and prohibition of fishing, by-catch limits, toothfish, icefish and krill; and protected areas.13 The statistical areas and small sub-areas shown in Figure 12.1 below give CCAMLR greater flexibility to make fine-scale management rules that address the objective of precautionary, ecosystem-based conservation.
There are CMs that require the marking of all vessels and gear (CM10-01) so that lost or abandoned gear can be identified, lest it be considered from an IUU vessel. All vessels must use their AIS (Automatic Identification System, CM10-04)14 to assist in surveillance and compliance audits. There is a Catch Document Scheme (CM10-05) which requires all legally caught Dissostichus species to be accompanied by certification during landing and all subsequent handling of the catch, without which the catch is not considered legal. There is an interim prohibition on deep sea gillnetting (CCM22-04) and restrictions on bottom trawling and bottom fishing (CMs 22-05, 22-06 and 22-07). Further environmental measures include regulations to minimise incidental mortality of seabirds and marine mammals in both longline fishing and trawl fishing (CM25-02 and CM25-03) and the conservation of sharks (CM32-18), which prohibits the directed fishing for shark species.15
CCAMLR statistical areas
Citation: The Yearbook of Polar Law Online 15, 1 (2024) ; 10.1163/22116427_015010013
The marine protected area (MPA) agenda of CCAMLR began with the first designation of an MPA in the high seas in 2009 for the South Orkney Islands southern shelf and progressed to the world’s largest high seas MPA in 2016 – the Ross Sea region marine protected area. This agenda has since stalled, as a number of MPA proposals have hit the table and been blocked from acceptance. This is followed up in the next section as it relates to consensus decision-making and is considered as one of the main challenges in CCAMLR.
2.3 ATS Challenges
2.3.1 CCAMLR’s Ecosystem Approach in a Changing Environment
The ocean is warming, freshening, deoxygenating, and acidifying.16 Research is discovering how these changes might affect predator – prey relationships, and ‘alongside extant pressures from, say, fishing, some Southern Ocean species already sensitive to these stressors, face an uncertain future conservation status’.17 The biggest physical challenge in the Southern Ocean is, therefore, the impact the changing environment is having – and will continue to have – on the ecosystem-approach to decision-making within CCAMLR. However, the biggest politico-legal challenge is currently – and will continue to be in the future – how to balance national interests (either fishing or environmental protection) with the Members’ duty towards achieving the object and purpose of the Convention. These challenges have emerged throughout the history of CCAMLR, most recently in relation to the adoption of marine protected areas (MPAs).
2.3.2 MPA Designation
Since 1990, CCAMLR has had protection in place for sites that contribute data to the CCAMLR Ecosystem Monitoring Program (CEMP) and protection is enforced through an individual management plan and special permit system. Later, in its desire to become compliant with recommendations from the 2002 World Summit on Sustainable Development, CCAMLR began a process of investigating MPAs outside the usual CEMP sites.18 The Scientific Committee for the Conservation of Antarctic Marine Living Resources (SC-CAMLR) was tasked with the modalities of designating MPAs and the world’s first high seas MPA was adopted in 2009, under CM91-03, ‘Protection of the South Orkney Islands southern shelf’.19 Once this MPA was adopted, relatively uncontested,20 the Members then decided that it was necessary to provide principles and guidance for the establishment of future MPAs and accordingly, adopted CM91-04 (2011), ‘General framework for the establishment of CCAMLR Marine Protected Areas’.21 After intensive negotiations since 2012, in 2016 the world’s largest MPA, the 2.09 million km2 Ross Sea region marine protected area, was adopted under unprecedented circumstances.22 Since that time, there have been more proposals presented but consensus has not been reached on the adoption of any new MPAs. The failure to progress new proposals is a point of contention within the CCAMLR ranks, and is primarily related to values conflicts, i.e. the dichotomy between fishing (‘rational use’) and conservation. Opponents of the adoption of new MPAs suggest that they would not accept greater restrictions on their right to fish – although these arguments are often obscured by tangential claims such as a lack of scientific evidence of need, or the placement of boundaries compared with objectives, and other similar blocking arguments.
2.3.3 CCAMLR Compliance by Both Contracting and Non-contracting Parties
The Southern Ocean is isolated, subject to difficult and dangerous operating conditions, and there is limited capacity to survey, respond and enforce. Therefore, conservation of marine living resources and protection of the environment are heavily reliant on voluntary compliance with all maritime law, including the CAMLR Convention. The laws made at CCAMLR meetings – Conservation Measures – are enforced through the flag states of vessels and companies, and the ports of states where harvest transactions occur.
CCAMLR has a number of standing committees that provide advice that informs consensus decision-making to achieve the Convention’s object and purpose. One of these is the Standing Committee on Inspection and Compliance (SCIC). SCIC deals with the very important issue of IUU fishing and the various mechanisms in place to deter it, such as vessel licensing and inspections (CM10-02, updated 2022),23 monitoring of vessel movements using the Vessel Monitoring System (VMS, CM10-04, updated 2022) the Dissostichus species Catch Document System (CDS, CM10-05, updated 2022), monitoring of vessel transhipments (CM10-09, updated 2022), and CCAMLR Compliance Evaluation Procedure (CM10-10, 2019).
The most controversial aspect of the work of SCIC is the difficulty they face in achieving the recommended ‘listing’ of non-compliant vessels, based on information made available to them during fishing seasons, including Member sighting reports. This is problematic because the meeting must agree, by consensus, to list a vessel.24
A good illustration of this problem is the CCAMLR discussions in 202025 and 2021 on the listing of Russian-flagged Palmer on the CP-IUU vessel list. The Palmer was recommended by New Zealand for inclusion on the Contracting Party IUU (CP-IUU) vessel list in 2020 because it was found fishing in a closed area (Subarea 88) by a New Zealand aerial surveillance crew. It was reported to the meeting (and previously to all members via communication circulars) that the Palmer was located ‘800 n miles from where its vessel monitoring system (VMS) data reported it to be’.26 It was also displaying fishing behaviour. Russia accused the New Zealand authorities of falsifying evidence and questioned the validity of their aerial patrol. This response from Russia evoked a range of comments from other Members, with the UK expressing ‘disappointment’ in Russia’s handling of the matter (para 3.13), and China expressing ‘appreciation’ for New Zealand’s actions (para 3.14). More significantly, the Meeting report raised some critical issues about inspections in general and about how crew have the ability to turn off their vessel’s AIS27 and to tamper with its VMS – which was once thought to be tamper-proof. The Russian ploy to divert attention away from alleged IUU fishing by the Palmer worked; the Commission was not able to reach consensus on the vessel’s listing.
This discussion continued in the 40th CCAMLR meeting in 2021, with Russia accusing New Zealand of not providing sufficient evidence of the vessel’s identity and of ‘changing’ the ‘EXIF metadata of the photographs’.28 New Zealand rejected the allegation. Again, the situation was not resolved.
In 2020, the listing of Australian-flagged vessels Isla Eden and Corinthian Bay on CP-IUU vessel list posed a different kind of problem. Under CM41-08,29 fishing for toothfish in Statistical Division 58.5.2 during the period 01–30 April 2020 required two observers onboard each licensed vessel. Both vessels had only one observer each and Australia admitted to the breach. However, they claimed mitigating circumstances: COVID-19 restrictions on international and domestic travel and mandatory quarantine in Australia. Two key questions arose during discussion: i) was the catch prohibited from international trade under CM10-5 (the Catch Document Scheme or CDS)30 – raised by the US; and ii) should the vessels be listed on the Contracting Party IUU vessel list – raised by Russia? China – a major toothfish importer – asked the Commission to determine whether the fishing was legal and therefore trade was permitted. Australia denied that the acts of having only one observer onboard each vessel constituted IUU fishing and reinforced its commitment to prioritising compliance with CCAMLR conservation measures. The result was that the vessels were not listed on the CP-IUU vessel list, and the CDS for each catch was considered valid by virtue of not being considered IUU-caught. However, the Meeting was unable to reach consensus on these matters and the catch was ordered to remain in Australia and not to be exported.
One remedy for the ‘listing concern’, suggested to – but never taken up by – CCAMLR was ‘consensus-minus-1’,31 that is, a situation in which the flag state of the vessel concerned abstains from the consensus decision-making. Another was a reverse list, whereby consensus would need to be achieved to remove a vessel from a list.32 This problem has not been resolved and to this day, causes much angst in CCAMLR meetings.
2.3.4 Intensifying Tensions during the Pandemic
Admittedly, 2020 was an unprecedented year: the ATCM was cancelled and alternative arrangements were made,33 however, CCAMLR decided to meet ‘virtually’ for their 39th meeting from 26–30 October 2020. Unfortunately, from the outset it became obvious that the style of the meeting was hampering full and frank discussions on the issues of the day and further, this was used by some Members as a reason for withholding consensus on key matters, including the above discussed IUU vessel listing, as well as on other issues.
For example, the Standing Committee on Inspection and Compliance (SCIC) was unable to have its report adopted by the Commission Members at the 2020 meeting, ostensibly because of procedural matters.34 Furthermore, the channelling of recommendations from the Scientific Committee, through their negotiated and consensus-based report, into CCAMLR also came under pressure from Russia and others at the 39th meeting. Russia argued that since the SC-CAMLR meetings were held online and there was a lack of official working group meetings during 2020, ‘formal advice … had not been developed’.35 The (Australian) Chair of the Scientific Committee was unimpressed, providing a statement naming Russia as the Member who constrained the format of meetings, preventing sufficient time for discussions and thus asserting that the Scientific Committee report did not have a formal status. The Chair further commented, ‘… it is not for individual Members to diminish its status or deny its existence’.36 This development is particularly concerning as significant deliberations are expected to occur in the coming years, including advice from the Scientific Committee on a new krill management strategy, stock assessments, marine protected areas, and climate change.
Finally, there was no further agreement to promulgate the revised and updated proposals for MPAs in Domain 1, the East Antarctic or in the Weddell Sea region, which have been on the table for many years. The proponents made statements of justification and support for their own and the other proposals. However, Russia made a comprehensive statement to justify its veto:
There are still a number of unresolved scientific issues regarding the baseline data for the scientific justification and planning of MPAs (including goals, objectives, boundaries, monitoring and research plan, indicators and measures for monitoring and effectiveness of MPAs). We especially note the lack of justification regarding the necessity and urgency of establishing MPAs, including the mechanism and space – time scales of existing or potential threats to living resources and ecosystems. Our comments regarding the proposals for the establishment of the above mentioned MPAs remain outside the field of vision of the proponents.37
The focus of this section has been on the 2020 CCAMLR meeting. However, the situation did not change significantly in 2021 – the Commission’s second virtual meeting. In 2021 the Members adopted ad hoc meeting guidelines and two Members in particular were active in stifling discussion on substantive issues. It was reported that ‘China and Russia noted their concern that the technical aspects of the annual meeting, including problems of connectivity, time zones and limited meeting time, would make it difficult to hold the complicated discussions necessary for some agenda items. They indicated their preference not to discuss these items substantively and requested that the meeting be referred to as a virtual meeting.’38 There were strained discussions on the fundamental differences between Members over their interpretations of ‘conservation’, ‘rational use’ and the object and purpose of the Convention. Once again, the Provisional SCIC Compliance Report failed to be adopted39 and that the adoption of a complete report from the Scientific Committee also did not occur, ostensibly due to time constraints.40 Significantly, the catch limit for D. eleginoides in Subarea 48.3 could not be agreed, with the UK accusing Russia of blocking consensus ‘based on the same arguments put forward by the scientific members of its CCAMLR delegation since 2018. These arguments have been comprehensively rejected by all other scientists at the Statistics, Assessment and Modelling and Fish Stock Assessment working groups, and the CCAMLR Scientific Committee, both in 2019 and again this year’.41 No further progress was made on the MPA proposals on the table.
3 Antarctic Tourism
3.1 Activities
3.1.1 A Fast-Growing Industry
Antarctic tourism started in the 1960s and up to the mid-1980s an average of 1000 persons visited Antarctica as tourists. From then on, the number of tourists has grown substantially. With a temporary dip due to the economic crisis in 2007–2008, the number increased every year to a record number of almost 75,000 tourists in the 2019–20 season (a 32.5% increase compared to the 2018–19 season).42 This continuing growth also relates to the number of ships operating in the Antarctic, the number of tourist voyages and the number of sites visited by tourists.43 Between the 2015–16 season and the 2019–20 season, the number of seaborn tourism operators increased from 38 to 47, the number of ships and yachts from 48 to 62 and the number of voyages from 286 to 408.44 In this same five year time period the number of ship-based tourists visiting the Antarctic more than doubled from 38,069 to 73,670 tourists,45 even while the 2019–20 season concluded “earlier than normal due to the SARS CoV-2 pandemic.”46
Due to the COVID-19 pandemic, tourism to Antarctica has collapsed but it is expected that the industry will rebound quickly to compensate for the lost income and given the many plans to build new ships. In one of its information papers to the ATCM, the International Association of Antarctica Tour Operators (IAATO) states that for the 2022–2023 season “operations will continue to be dictated by the pandemic evolution and worldwide travel restrictions”,47 however, even with these possible restrictions the paper estimates for this season that the number of tourists visiting the Antarctic will exceed 100.000, a more than 24% increase compared to the 2019–2020 season.48
3.1.2 Present Activities
Most Antarctic tourism is ship-borne and IAATO explains that ‘[t]he vast majority of tourism voyages (98%) operate in the Antarctic Peninsula region during the seven-month austral summer season (from October to April)’.49 However, over the years Antarctic tourism has also taken many other forms than the conventional ship-based expeditions. Tourists also fly to Antarctica to board a cruise ship.50 Advertisements are also made for “fly to Antarctica and cruise back” expeditions51 and only “overflights” or “fly by” experiences.52 Commercial ‘land-based’ tourism in Antarctica has also increased and include “emperor Penguin Colony Visits”, “deep Field Experiences (Camping, skiing, mountaineering skydiving, cycling, etc.),” “Deep Field Flights,” “South Pole Ski Expedition,” “South Pole Motorised Expedition,” and “Antarctic Crossing (ski & motorised).”53 Although these activities represent a small part of the total tourism activities in Antarctica, numbers have increased substantially.
The types of activities that people conduct from cruises and yachts have also been diversifying. In order to stay competitive, each company is seeking an edge to set themselves apart and attract new markets. Since there are only so many permutations to expedition cruising, many companies have pursued new activities as a means to create their own unique selling point. Each cruise company still offers the original activities, such as zodiac cruising and walking, however many now offer more. Activities now include, for instance, scuba diving, helicopter flights, longer hikes, snowshoeing, mountaineering,54 scuba diving, coastal camping and marathons.55 Helicopter sightseeing flights and underwater submersible sightseeing excursions have also been offered.56 And it seems that as soon as activities are offered by one company, others will follow. For instance, Scenic was the first company to offer helicopter flights and submersible trips, however, Seabourn expeditions is also currently commissioning a submersible for the same purpose,57 and Quark expeditions will be launching helicopter sightseeing on their new, purpose-built ship the Ultramarine.58
In addition to these commercially operated activities, there are many other, in Antarctic terms ‘exceptional’ activities, which often arise from someone’s special dream. Examples include the expedition with a tractor in Antarctica by a Dutch person,59 extreme sports such as base jumping by a Russian adventurer,60 and the use of a motorbike on Deception Island by an Indian national.61
3.2 Current Regulation
3.2.1 ATS Regulations
The Madrid Protocol applies to tourism in Antarctica. Consequently, when assessing proposals for tourist activities, governments must take into account the environmental principles of Art. 3. Antarctic tourist activities must also comply with the obligations regarding environmental impact assessment of Art. 8 and Annex I and with the other more specific provisions of the Annexes to the Protocol. According to Annex II, taking and harmful interference with Antarctic flora and fauna must be prevented, the waste provisions of Annex III must be observed, and the historical sites and monuments designated under Annex V may not be damaged. Antarctic Specially Protected Areas (ASPAs) that have been designated under Annex V to the Protocol may not be visited for the purpose of tourism. A few exceptions exist for ASPAs that also include historic sites and monuments and for which the internationally agreed management plan explicitly allows visitation for tourism purposes.
At the time of the negotiation of the Protocol, several countries felt that these provisions were in fact too general to be able to constitute a solid framework for tourism. They therefore proposed the adoption of a separate Annex on tourism to the Protocol,62 however, this proposal was not acceptable to other Consultative Parties and the discussions (ATCMs 1992 and 1994) resulted in the adoption of general guidelines for visitors and for tourist operators in 1994.63
Since then, the Consultative Parties have discussed the need to adopt additional regulations for Antarctic tourism almost every year. Especially in the 1990s, however, many Consultative Parties seemed to have preference for focusing first on the domestic implementation of the Protocol, rather than adopting additional regulations. The discussions intensified since the Antarctic Treaty Meeting of Experts on tourism, organised by Norway in 2004. However, as will be discussed in more detail below, decision-making proved to be difficult.
3.2.2 The Difficulty of Additional Hard Law-Making
Between 2004 and 2022, the Consultative Parties have adopted only two Measures in relation to Antarctic tourism, both of which have a fairly limited scope: Measure 4 (2004) on requirements relating to insurance and contingency planning, and Measure 15 (2009), which codified a number of IAATO-bylaws with conditions on making landings from passenger vessels. Although Measures are meant to become legally binding, neither are yet in force as they are still awaiting formal approval by more than 10 states that had consultative status at the time of adoption of the Measures.64
3.2.3 General Principles of Antarctic Tourism
In view of the fast-growing tourism developments in the Antarctic, several Consultative Parties have advocated the development of a strategic vision or approach to tourism, and although this ambition has been included in the multi-year strategic workplan of the ATCM for several years now, this vision was never developed. ATCM discussions on this issue of a strategic vision resulted in 2009 in the adoption of General Principles of Antarctic Tourism.65 Although the principles have been adopted through a Resolution and are therefore not legally binding, they contain some fundamental substantive standards for Antarctic tourism:
Tourism should not be allowed to contribute to the long-term degradation of the Antarctic environment and its dependent and associated ecosystems, or the intrinsic natural wilderness and historical values of Antarctica. […];
Scientific research should be accorded priority in relation to all tourism activities in Antarctica;
All tourism organisations should be encouraged to provide a focus on the enrichment and education of visitors about the Antarctic environment and its protection.
3.2.4 IAATO Self-Regulation
ATS regulation is by no means the only form of regulation of Antarctic tourism. Since its foundation in 1991, the International Association of Antarctica Tour Operators (IAATO) has developed an impressive system of self-management by the tourism industry sector.66 In addition to membership bylaws a rich set of guidelines for operating in Antarctica has been developed. Apart from site specific guidelines, examples of guidelines67 include ‘Procedures for Operating in the Vicinity of Whales’,68 ‘Guidelines for Submersibles and Remote Operated Vehicle activities’,69 and ‘Wildlife Watching Guidelines for Emperor Penguins and Leopard Seals’.70 IAATO has also developed a mandatory monitoring program to monitor compliance with the bylaws and IAATO guidelines.71
In the past, IAATO has also drawn attention to a number of “clear gaps and questions with respect to Antarctic tourism and non-governmental activity, which [it] would welcome the ATCM to consider.”72 From a strategic long-term perspective, it is worth noting that more recently, the Scientific Committee on Antarctic Research (SCAR) and IAATO have started joint work on a Systematic Conservation Strategy for the Antarctic Peninsula. The project applies the Systematic Conservation Planning (SCP) approach to the Antarctic Peninsula with the aim to inform decision makers about “quantifiable, evidence-based solutions for the simultaneous management of tourism, science and biodiversity” in this most visited region of Antarctica.73
3.3 ATS Challenges
3.3.1 Cumulative Impacts
When Antarctic cruising first began, and up until quite recently, there were only a few activities that each company offered as the backbone of each trip: Zodiac cruising and walking/hiking. Generally, these activities were considered to have minimal impacts on Antarctic wildlife and environments. As discussed above, IAATO and the ATCPs were able to introduce guidelines around these activities that helped to minimize whatever impacts they did have. For example, marking sites where hiking is forbidden to protect birds and sensitive plants as component of site specific guidelines. Slowly over time, a sizeable body of best practices and guidelines emerged to control these activities, and to use as a reference whenever companies were operating in new areas.
However, as discussed above, Antarctic tourism has increased and diversified exponentially. The main issue with growth is that the existing legal instruments, such as Environmental Impact Assessment, seem not able to assess and address the risk of cumulative impacts in Antarctica, such as trampling of vegetation in ice-free areas, disturbance of penguin colonies, underwater noise of increasing numbers of vessels and zodiacs, impacts on wilderness, etc. This is particularly concerning because adequate systematic monitoring in areas visited by tourists is lacking. Cumulative impacts also relate to emissions increase. The sheer volume of increased tourists flying from all corners of the globe to then get on ships that burn large amounts of fuel amplifies the climate impacts already experienced in the Antarctic.
3.3.2 Diversification – No Limits for New Activities
The main issue with new activities is the alarming speed at which they have emerged and the worryingly lack of accompanying regulations. The ATCM and IAATO have a difficult time keeping up with the number of new activities emerging, and offer very little in the way of any ability to regulate or offer operational restrictions – especially seeing that many of the impacts of each new activity are still unknown at this point. Unfortunately, the ATCPs are green-lighting many of these activities with very few regulations and little attention for cumulative impacts and monitoring. For instance, it appears that submersible “pilots” require no additional training when operating around ice and there has been zero operational experience or research gathered prior to this activity being authorized by ATS parties. Similar concerns relate to many other activities and their effects, such as the relatively sudden introduction and increase of helicopter noise buzzing in wildlife rich areas.
3.3.3 Human Safety
Apart from environmental concerns, growth and diversification of Antarctic tourism raise human safety and Search and Rescue (SAR) concerns. The massive increase in people and ships in the Antarctic peninsula means an increase in risks of accidents, near-misses, strandings or medical events, especially as most companies are taking more vulnerable, older passengers who are at greater risk for medical events or accidents.
3.3.4 Little ATCM Decision-Making
Observations such as those discussed above have received attention at many ATCMs and Bastmeijer and Gilbert have recently summarized the concerns expressed by Consultative Parties at these meetings.74 These include, for instance, “concerns relating to cumulative impacts”, “concerns relating to the visitation of new sites”, “tourism activities from non-contracting states and/or non-IAATO-members”, “risks of certain forms of tourism and/or cumulative impacts of tourism for wilderness values”, “issues relating to monitoring of effects of tourism in Antarctica”, “risks of introduction and spread of diseases and non-native species”, “concerns in relation to diversification of tourism (e.g., adventure tourism, possible future initiatives to build permanent facilities for tourism, marathons, etc.)”, and “property rights issues”.75
These concerns have also been translated into clear outstanding policy questions for the ATCM. Based on discussions in an ATCM Intersessional Contact Group (ICG) in 2011–2012, representatives of Consultative Parties identified important policy questions awaiting a response from the ATCM,76 including, for instance:
Should the ATCM adopt regulatory instruments to prevent or regulate the further expansion of tourist activities in Antarctica (e.g., into the Antarctic interior)?
Should pristine areas be closed for any type of human visitation in the future […] to preserve these areas as reference areas for future scientific research or because of the intrinsic values of these sites?
How should cumulative impacts by visitation (e.g., at popular tourist sites) be measured and managed?
Should Antarctica be open to all types of activities or should priority […] be given to tourism focusing on educational enrichment and respect for the environment (Final Report of ATCM XXXII, 2009, para. 208)?
Should additional regulations be adopted in respect of permanent facilities for tourism in Antarctica (such as hotels), for instance, to prevent further degradation of Antarctica’s wilderness values or to limit the risk of legal debates on ownership?
Should the potentially increasing use by tourists of infrastructure, established with the principal aim of supporting scientific activities (e.g. air connections, bases, etc), be considered as a concern, and if so, how should the ATCM respond to this concern?
Are there any bylaws, guidelines or best practices of the tourism sector [IAATO] that require codification in a recommendation or measure of the ATCM?77
All these questions (and the concerns reflected by them) have been intensively discussed during the ATCMs, but the Consultative Parties did not reach consensus on new binding regulations regarding any of these issues yet. The non-legally binding resolutions that have been adopted in relation to tourism do not address these issues either, with the exception of the issue of permanent facilities that are exclusively meant to support tourism and other non-governmental activities.78
Although IAATO has been more active and successful in adopting bylaws and guidelines than the Consultative Parties, it has also been unable to prevent the growth in numbers of tourists, operators, vessels, voyages and sites and has taken no or little action to prevent or limit the strong diversification of activities in Antarctica. The power of self-regulation seems to lie mainly in the agreement of conditions for undertaking activities in Antarctica, but not in the adoption of hard restrictions. This may also explain a dichotomy between guides who often want to encourage education, preservation and environmental responsibility and the companies they work for, who want to continue strengthening their position in the marked.
4 Bioprospecting
4.1 Activities
4.1.1 Defining Bioprospecting
Bioprospecting has been occurring in Antarctica and the Southern Ocean for over two decades in conjunction with scientific research. However, there has been no agreement on precisely what activities do and do not constitute bioprospecting. For clarity sake in this chapter we suggest a useful definition is that bioprospecting involves “the collection of small samples of biological materials for screening in the search for commercially exploitable biologically active compounds or attributes such as genetic information.”79 However, we do concede that not all will support such a definition.
The close relationship between bioprospecting and Antarctic science has meant that it has been difficult at times to distinguish between the two. This in part also explains why “establishing an accurate assessment of bioprospecting activity in Antarctica” is difficult. As SCAR has observed in a recent information paper there are four key reasons for this:
often bioprospecting is not identified as a goal in research activity, even though the initial steps in such a process require identification of organisms that may be of later benefit for further investigation for commercial applications. Disentangling systematic research from bioprospecting requires an extensive review of the literature;
many activities are not comprehensively reported in scientific reports submitted to SCAR. As a consequence, ascertaining whether a particular scientific activity has a goal of bioprospecting requires more than a simple assessment of scientific activities reported to SCAR;
initial field work (where biological collections are taken) is often published in local journals that are more difficult to access than regional or international periodicals. Accordingly, a substantially larger group of scientists will need to be involved if a comprehensive assessment is to be the result; and
search results of relevant national patent databases require thorough assessment if accurate numbers of patent applications or approvals are to be obtained. Database searches using terms ‘Antarctic’ or ‘Antarctica’ produce a raft of responses, though not all relate to bioprospecting.80
4.1.2 Present Activities
While a definition of bioprospecting has been elusive, no matter how broadly or narrowly defined, it is evident from both the information disclosed in working and information papers considered at the ATCMs and other meetings, that it is a significant commercial activity in Antarctica.81 It is also clear that a wide diversity of state parties to the Antarctic Treaty, both developed and developing, are active in bioprospecting in Antarctica.82 A survey of patent data in an information paper presented at ATCM XLI in May 2018 highlights three main areas of current research and development relating to biotechnology derived from or inspired by Antarctic genetic resources:
(1) Pharmaceuticals, including potential immune-enhancing and anti-tumour medicines derived from Antarctic brown algae;83 broad spectrum anti-cancer metabolites synthetized from the plant Deschampsia antarctica;84 and pharmaceutical compositions suitable for treatment of inflammatory and immune diseases derived from active ingredients contained in the Antarctic lichen Ramalina terebrata;85
(2) Industrial applications and biotechnology such as enzymes including a compound based on fermentation of Antarctic bacteria useful as an anti-fungal for the control of plant diseases;86 and
(3) krill-related products. These are mainly krill oils and nutritional supplements although some other pharmaceutical applications including dementia medication and anti-inflammatory uses has also been identified.87
In other years similar patterns of research and development are evident.88 As a 2015 Information paper to ATCM XVII notes other areas of research and development that have been identified include
enzymes that function at cold temperatures and are used for industrial applications, antifreeze proteins, aquaculture and agriculture, environmental remediation, biotechnology and molecular biology, cosmetics, skin care and nutritional supplements … [consisting] … almost entirely of krill-related products, particularly Omega 3 supplements from krill oil.89
More recently an information paper submitted by Romania at the ATCM XLII in 2019 highlights ongoing joint scientific research collaboration between Romanian and South Korean scientists on Antarctica’s microbial diversity.90 A particular focus here is on insights Antarctica’s microbial diversity may give in tackling antibiotic resistance. While it is clear this research project in particular is primarily focused on furthering scientific knowledge, the potential commercial application of this research is also acknowledged by the Romanian Information paper.91
4.1.3 Products on the Market
Previous studies have confirmed products developed from Antarctic biodiversity have been sold for more than 15 years.92 While not intended as an exhaustive list, some current examples of products on the market today include:
the skin care/cosmetics products marketed by Spanish Company Lipotec SAU. These products are antarcticine and SeaCode. Antarctcine is a glycoprotein that is advertised as protecting “the skin from dryness, thanks to its cryo-protective properties” and is said to strengthen “the skin’s cohesion, this reducing wrinkles” which is derived pseudoalteromonas Antarctica sourced from Antarctic waters.93 Similarly SeaCode isolated from the same source, is said to enhance the “synthesis of dermal proteins, such as collagen I, visibly reducing visible aging signs in the short and long term;”94
an enzyme useful in DNA extraction marketed by United Kingdom based company MicroGem;95 and
a range of krill oil products sold by Norwegian company Aker Biomarine AS. These products include Superba Krill oil which comes from the Antarctic krill species Euphausia superba,96 and pet food supplements such as QRILL Pet based on Omega 3 sourced from Antarctic krill.97
In their marketing material some companies highlight their links to Antarctic scientific research and are explicit about the Antarctic origins of their products. For example, the United Kingdom (previously New Zealand-based) company MicroGEM.98
With such a wealth of evidence it is not surprising that in 2010 SCAR concluded in an assessment of bioprospecting in Antarctica that “bioprospecting research in the Antarctic region and/or involving Antarctic organisms is extensive and widespread.”99
Three factors could foreseeably have an impact on whether bioprospecting continues at the current scale.
Firstly, the environmental impact of the activity.100 There is no evidence to suggest current activities have any significant environmental impact in addition to that associated with scientific research.101 However, should this change states might change their attitude towards regulation. For example, if large scale harvesting of particular species were required then this would mark a significant shift in the environmental impact of bioprospecting.
Secondly, as examined in more detail later in this paper, debates on regulation of bioprospecting in Antarctica are occurring in parallel at the same time as debates on regulating bioprospecting in the oceans beyond national jurisdiction. If a new legal regime does emerge regulating bioprospecting in the oceans beyond national jurisdiction, what impact would this have on the nature and scale of bioprospecting in Antarctica and the Southern Ocean? Would tighter regulation in the ocean beyond national jurisdiction lead to an increase in commercial activity in unregulated Antarctica? Or would regulatory certainty drive commercial interest to areas beyond national jurisdiction outside of Antarctica? No definitive answer can be given to these questions at this stage.
Finally, another open question is to what extent new developments in technology will shape future levels of commercial interest in Antarctic biodiversity for biotechnology research and development. For example, recent developments in convergent technologies such as synthetic biology and nanotechnology could conceivably negate the need for sampling of biodiversity in the wild.102 If this were to occur there may be no bioprospecting activity to regulate in the future.
4.2 Current Regulation
There is no regulation of bioprospecting currently in force in Antarctica and the Southern Ocean other than regulation that relates to environmental protection that applies to all other activities in Antarctica such as the Madrid Protocol. There has been extensive discussion within the various forums of the ATS in relation to bioprospecting in Antarctica. However, this extensive debate has produced very little in the way of a concrete response to the issues outlined above. The earliest discussions in relation to bioprospecting in the Antarctic Treaty System occurred at the ATCM XXV in Warsaw in 2002 and in the past 20 years it has remained an unresolved issue for the ATS.103 Despite being in the agenda at every ATCM since 2002, significant input from SCAR, one CCAMLR meeting and two separate intersessional contact group processes,104 discussion of the issue at at least one meeting of CEP105 and more than 27 working papers, the issue remains largely unresolved. Although two Resolutions have been adopted by the ATCM on the issues, neither have put in place any substantive regulation.106 It appears from the terms of these two Resolutions, and from the lack of any further concrete action on the issue, that state parties are unable to agree on the need for regulation. Given the length of time that this matter has been debated it looks unlikely in the near future that a more detailed regulatory regime may emerge within the Antarctic Treaty System.
4.3 ATS Challenges
4.3.1 Intellectual Property Rights Issues
Biotechnology inventions stemming from commercial research and development in Antarctica appear clearly patentable and there is little doubt on that point. As Tvedt has correctly noted in a recent study
In the case of conflict between patent law and current Antarctic regulation relevant to bioprospecting, patent law seems most likely to prevail. This will leave the biological resources in the Antarctic open and available for appropriation by those who find them and include them in a patentable invention (subject to the patent criteria).107
The available data on patents does not shed much light on the validity of the concerns expressed about this commercial activity and the grant of patents. Nonetheless there is a significant body of information that highlights patents do have a role to play in the commercial exploitation of Antarctica genetic resources. Patent data also provides another useful source of information on the scale of commercial interest in bioprospecting in Antarctic and the Southern Ocean. China and the USA have been the leading countries granting patents based on Antarctic genetic resources.108 However, companies from other nations including Denmark, Germany Switzerland and Japan have obtained patents based on Antarctic genetic resources.109 The private sector collaborates with universities and research institutes on research and development, however, the general trend appears to be that patents arising from this research usually end up being held by the private sector.110 Where universities file for patents, joint patent applications are limited to collaborations between universities.111
4.3.2 Potential Impact on Antarctic Scientific Research Values
A central issue surrounding bioprospecting in Antarctica concerns its potential impact on the core Antarctic values of freedom of scientific research. For example, does bioprospecting pose a moral hazard for science having regard to the pivotal role that science plays in governance under the Antarctic treaty system?112 Hemmings answers this question in the affirmative, noting that given bioprospecting in Antarctica has been generated in the course of, and is largely driven by, the success of Antarctic science, this raises questions as to the ability to separate science as an advisor at the core of Antarctic governance from science intertwined with the commercial imperatives of bioprospecting.113 As Hemmings observes
Here, for the first time, Science wears two hats: its traditional Antarctica Bonnet, and the hard-hat of commercial self-interest. Some formal mechanisms to avoid conflict of interest seem called for, and some deliberate mechanism to ensure that the interests of science as exploiter not laundered through is standing as privileged participant in the [Antarctic Treaty System].114
In related arguments, Hughes and Bridge have likewise maintained that bioprospecting in Antarctica raises unanswered ethical implications given the close relationship between such commercial research, science funding, international research collaboration and the relationship industrial partners.115
Others such as Jabour have noted the close connection between resolution of the bioprospecting question in Antarctica to resolution of questions surrounding Antarctica’s global purported status as either a global commons or the common heritage of mankind [sic].116 At the centre of that question is whether bioprospecting is the same as other activities for ‘exclusive reward’ like fishing in the Southern Ocean.117
As a commercial activity bioprospecting potentially undermines freedom of scientific research in Antarctica which for decades has been a central pillar of the international governance regime for Antarctica. Since the earliest days of human exploration, science has been at the centre of most human activity in Antarctica. The significance of science to Antarctica is clearly reflected in the provisions of the Antarctic Treaty. Thus the preamble to the treaty acknowledges “the substantial contributions to scientific knowledge resulting from international cooperation in scientific investigation in Antarctica”.118 Significantly Article II of the Antarctic Treaty provides for “freedom of scientific research” in Antarctica.119
Bioprospecting at its core is a commercial activity that challenges the dominance of non-commercial scientific research as the predominant focus of Antarctica scientific endeavours. The commercial imperatives of confidentiality of commercial research and development in relation to Antarctic genetic resources challenges the traditions of free and open exchange of scientific information that have characterised Antarctic scientific research.120
There are two dimensions to this. Firstly, if not clearly defined and distinguished from bioprospecting scientific research may inadvertently end up regulated. This seems a likely scenario given the inability to date of parties to the Antarctic Treaty to agree on a definition of bioprospecting and how it differs from science as mentioned earlier in this paper. To broaden a definition in future regulation could capture and regulate activities that might otherwise be so called ‘pure science’, essentially undermining a central pillar of the Antarctic system which guarantees freedom of scientific research that prevails under the Antarctic Treaty.
A further complicating factor is the role played by intellectual property rights. Commercial requirements of confidentiality and delays in applying for patents, for example, may restrict or delay the free and open exchange of scientific research.121 It remains to be seen whether this will eventuate or whether as suggested by some there will merely be a delay in sharing commercially sensitive scientific data.122
4.3.3 Weakening the ATS in Relation to Other International Legal Systems
The failure of state parties to the Antarctic Treaty to agree on any concrete action relating to bioprospecting in the Antarctic Treaty system is at odds with developments in other parts of the world. For example, the 1992 United Nations Convention on Biological Diversity123 and the subsequent 2010 Nagoya Protocol on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising for their Utilization to the Convention on Biological Diversity (Nagoya Protocol)124 have established a comprehensive international regime for the regulation of access and benefit sharing in relation to genetic resources within areas of national jurisdiction. national legislation.125
The core obligations under the Nagoya Protocol are those in relation to fair and equitable benefit sharing of benefits arising from the utilisation of genetic resources. Benefits arising from the utilisation of genetic resources as well as subsequent applications and commercialisation are required to be shared in a fair and equitable way with the Party providing such resources (i.e. the country of origin of such resources or a Party that has acquired the genetic resources in accordance with the CBD).126 The sharing of such benefits is required to be upon mutually agreed terms.127
While often debates on access and benefit sharing have focussed on monetary benefits such as royalties, the Nagoya Protocol makes clear that benefit sharing can take many forms, both monetary and non-monetary. Thus Article 5(4) provides for a wide definition of benefits that can include, but are not limited to those contained in the Annex to the Nagoya Protocol. Arguably a number of the non-monetary benefits listed in the Annex are also consistent with freedom of scientific research and could usefully be reflected in a future access and benefit sharing regime in the Antarctic context. These include: sharing of research and development results; collaboration, cooperation and contribution in scientific research and development programmes; collaboration, cooperation and contribution in education and training; admittance to ex situ facilities of genetic resources and to databases; technology transfer; technology capacity development; strengthening capacities for technology transfer; access to scientific information relevant to conservation and sustainable use of biological diversity, including biological inventories and taxonomic studies; and institutional and professional relationships that can arise from an access and benefit-sharing agreement and subsequent collaborative activities.128
To date 196 states have either ratified or acceded to the CBD.129 With the notable exception of the USA all major state parties to the Antarctic Treaty are also parties to the CBD, and 128 states have ratified the Nagoya Protocol.130 The CBD and the Nagoya Protocol primarily apply within areas of national jurisdiction of respective state parties. However, it is generally accepted that pursuant to Article 4(b) of the CBD, the jurisdiction of state parties can extent to areas beyond national jurisdiction to the extent they seek to regulate activities of their own nationals. Arguably this means that states could seek to apply their own domestic access and benefit sharing legislation enacted under the CBD to the activities of their own nationals. At least two state parties to the Antarctic Treaty have done exactly this. Australia, for example extends the access and benefit sharing regime under Division 6 of Part 13 of the Environment Protection and Biodiversity Conservation Act (Cth) to its External Territories, which includes Antarctica,131 as well as its nationals and any Australian flagged vessels.132 To date Australia has adopted a policy of not extending this legislation to foreign nationals in the Australian Antarctic Territory.
Similarly the access and benefit sharing regime established under Norway’s Marine Resources Act133 applies to Norwegian vessels and can potentially be extended to Norwegian claimed territory in Queen Maud Land (Dronning Maud Land) in Antarctica.134
A related question is the implications of bioprospecting for territorial claims in Antarctica. One of the most widely recognised achievements of the Antarctic Treaty System is the way it has dealt with competing territorial claims by claimant States in Antarctica through the operation of Article IV(2) which effectively freezes (neither denying nor advancing such claims) for the duration of the Antarctic Treaty.135 Rogan-Finnemore, for example, suggests that the bioprospecting question has the potential to re-open debates on the legitimacy of territorial claims in Antarctica, especially in marine areas.136 As noted above, some states already extend or have flagged the possibility of extending their domestic regulation to bioprospecting in Antarctica. What would the consequences of such action be?137
As well as possible over-reach by the extension of domestic legislation to claimed Antarctic territories, a much more immediate question relates to the implications of the emerging legal regime for the conservation and sustainable management of biodiversity in areas beyond national jurisdiction currently under negotiation (the so-called ‘BBNJ process’). The potential regulation of access and benefit sharing of marine genetic resources in areas beyond national jurisdiction is part of the package deal of issues subject to negotiation under the BBNJ process.138 These negotiations are ongoing and a detailed analysis of their implications is not yet possible.139 But a number of possible issues may merit closer examination when the BBNJ negotiations conclude. These include:
(1) Will a new international legally binding instrument (‘ILBI’) apply in the Southern Ocean and waters off Antarctica and what implications does this hold for freedom of scientific research guaranteed under the Antarctic Treaty?140
(2) Would science and/or bioprospecting in Antarctic waters be regulated under the IBLI and if so how would the IBLI distinguish between the two?141
(3) How would the ILBI operate in the event of conflict between the provisions of the ILBI and the provisions of any domestic legislation implemented by states pursuant to the CBD and Nagoya Protocol in Antarctica?142
(4) How would the ILBI cooperate or conflict with other treaties applicable in Antarctica such as those dealing with fish stocks, e.g. the Convention on the Conservation of Antarctic Marine Living Resources?143
State parties to the Antarctic Treaty are of course aware of developments in the BBNJ Process and are involved in the negotiations for the ILBI. Indeed, the BBNJ process and negotiations for the ILBI (as well as developments in other forums such as the World Intellectual Property Organisation (WIPO)) have often been noted in passing in discussions at ATCMs.144 But to date these discussions have not considered the implications of these developments for the Antarctic Treaty system in detail.
5 Potential Future Developments – Fresh Water Harvesting
The Antarctic ice sheet covers an area of about 14 million km², holding 70% of the world’s fresh water and producing a staggering number of icebergs every year.145 In the 1970s, the idea of harvesting icebergs as a fresh water resource first emerged, in response to the world’s growing concerns over water scarcity.146 Despite questions of feasibility, this idea has persisted for over five decades, demonstrating its longevity, and with renewed interest emerging as recently as 2022.147 This interest is predicted to continue into the future as – under IPCC climate projections – the already dry areas of the planet become drier. Furthermore, access to clean fresh drinking water is increasingly seen as a fundamental human right.
The development of the concept of iceberg harvesting is well-covered in the literature.148 However, the feasibility of towing has not been proven and no iceberg harvesting is occurring in Antarctica. However, the next step could, in fact, be drilling through shallow areas of the Antarctic ice sheet to the melted water below, and collecting the water in a land-based activity, effectively skipping the problems of harnessing icebergs. The attractiveness of this new concept seems clear: by avoiding the problems associated with towing and relocating icebergs, as well as neutralising a myriad of other technical issues that accompany harvesting ice, it is likely to be more feasible.
Projects outside the Antarctic might prompt renewed interest. For example, it was reported that a proposal from NASA conceptualises drilling through ice for water on Mars149 – a project that might renew interest in Antarctic ice, especially as the testing of the Mars ice drills is being conducted in the Antarctic.150 The successful testing of the drill in the Antarctic, and the associated international press, may enhance potential application to Antarctic land-based projects in the future.
In the Arctic, some modern companies harvest small Arctic icebergs in the creation of consumable iceberg water, plucking them from the frigid waters off Newfoundland to be melted down for resale.151 These small commercial endeavours are a far cry from the large industrial scale Antarctic projects envisioned in the 1970s. As opposed to harvesting icebergs from the Southern Ocean, land-based drilling for water emerges as potentially an easier and cheaper alternative. With increased glacial and permafrost melt, vast deposits of formerly ice-locked water are releasing potential new reserves of fresh water.152
These potential future activities have received no serious attention in the ATCM since the adoption of the Protocol. Although there are no current proposals for commercial fresh water harvesting from the Antarctic, a pro-active approach would be justified in light of the commercial potential and interest and related risks to the Antarctic environment, particularly for intrinsic and scientific values of unexplored parts of Antarctica. Such a proactive approach would be particularly relevant in light of the fact that fresh water harvesting would not be considered a ‘mineral resource activity’ which is prohibited under Article 7 of the Protocol, because in the Final Act to the Protocol it has been determined that ice is not a mineral in the meaning of that provision.153
6 Conclusion: Challenges of Commercial Activities in Antarctica for ATS Principles and Values
The foregoing discussions make clear that ‘money-making’ in Antarctica takes different forms and has expanded and diversified over the past decades. It is also clear that these developments pose various challenges for the ATS. Some of these challenges are typical of the relevant category of commercial activities, however, there are also clear common challenges that apply to all the activities discussed above.
With regard to fisheries, a fundamental question is how to strike the balance between national fisheries interests and environmental protection. This question is a challenge in itself but has become even more complicated. ‘Conservation’ as defined in the CAMLR Convention must meet the requirements of ecosystem-based management at a time when the ecosystem itself is also affected by climate change. One of the greatest challenges is to agree on the establishment of more marine protected areas as part of ensuring the balance of interests and as a tool to ensure a precautionary approach in times of growing uncertainties.
ATCM decision-making relating to the pillar of environmental protection should in theory be simpler: the Madrid Protocol is not based on ‘conservation’ as defined in the CAMLR Convention, but aims to ensure ‘comprehensive environmental protection’. However, thirty years of discussions on fast growing and diversifying Antarctic tourism activities have not resulted in any restriction of such growth and diversification through a legally binding instrument that is in force. Reaching consensus among 29 Consultative Parties is a challenge in itself, but is even more problematic in a system in which ‘science-based decision-making’ is being emphasized, while systematic monitoring of effects (including cumulative effects) is lacking.
As for bioprospecting, a range of challenges arise for the fundamental pillar of freedom of scientific research. The most difficult challenge has been identifying exactly what bioprospecting is and how it can be distinguished from scientific research. Going forward, clearly delineating the difference between the two will be important for designing any access and benefit sharing regime and for avoiding any unnecessary regulation of scientific research. This will be no easy task given the absence of consensus on this aspect for two decades now. But on the other hand, the possibility of individual states seeking to extend their domestic regulation, or more likely the IBLI being developed under the BBNJ process extending to Antarctica, poses an even greater challenge. Failure to act poses clear risks and the ATS risks having a solution imposed from outside the Antarctic Treaty System with significant consequences for its future.
Harvesting freshwater in Antarctica may seem unlikely, but the combination of increasing freshwater scarcity, technological advances and – potentially – prestige may suddenly make it a reality. The ATS is not prepared for this, while adverse consequences for, for example, wilderness and scientific values cannot be ruled out.
A general concern that runs through all of the above discussions is that Consultative Parties are aware of the challenges but appear not to be able or willing to take decisions. Consensus decision-making has been the cornerstone of the ATS for decades, but appears to become the Achilles heel of the system. From the perspective of resilience of the ATS, the primary goal here should be to protect and uphold the core principles and values that constitute the foundation of the ATS: safeguarding peace, freedom of scientific research in Antarctica, and ensuring comprehensive protection of the Antarctic environment and related values mentioned in Art. 3(1) of the Madrid Protocol. Continued lack of decision-making is likely to water down and undermine these principles and values. This (or even the clear risk that this will happen) in combination with continued inactivity, will most likely also increase tensions between the Consultative Parties. It is incumbent on Consultative Parties to work harder to try advance resolution of the issues, which have lingered on the ATCM agenda for two or three decades.
Art. 1(e) of the Protocol defines the ‘Antarctic Treaty system’ as “the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments.” Consequently, instruments that are part of the ATS include the Antarctic Treaty itself, Washington, 1 December 1959 (entered into force 23 June 1961), 402 U.N.T.S. 71; the Convention for the Conservation of Antarctic Seals (Seals Convention), London, 1 June 1972 (entered into force on 11 March 1978), 27 U.S.T. 441; the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention), Canberra, 20 May 1980 (entered into force on 7 April 1982), 19 ILM 837; and the Protocol on Environmental Protection to the Antarctic Treaty, Madrid, 4 October 1991 (entered into force on 14 January 1998), 30 ILM 1455, and Decisions, Resolutions and Measures, adopted (and approved) by the Consultative Parties.
Art. 7 Protocol, reiterated through the ATCM Santiago Declaration (2016). In addition, through soft law resolutions, the Parties have been urged to “take such legal or administrative steps as are necessary to preserve Antarctic meteorites” (Resolution 3(2001)) and to “make every effort to prevent, and not authorise, permit or approve, the construction and/or exploitation of any structure or facility exclusively for tourism and other non-governmental activities to be operated in Antarctica over multiple seasons, where its construction, operations or removal is expected to have more than a minor or transitory impact on the Antarctic environment and its dependent and associated ecosystems, or the intrinsic natural wilderness and historical values of Antarctica” (Resolution 5(2022)).
For the purposes of this paper resilience means “the capacity of a social-ecological system to absorb or withstand perturbations and other stressors such that the system remains within the same regime, essentially maintaining its structure and functions. It describes the degree to which the system is capable of self-organization, learning and adaptation” Resilience Alliance, ‘Key concepts’, https://www.resalliance.org/key-concepts.
I. Everson, Krill: Biology, Ecology and Fisheries (Oxford: Blackwell Science, 2000).
CCAMLR Statistical Bulletin Volume 34, Table 4.1, https://www.ccamlr.org/en/document/data/ccamlr-statistical-bulletin-vol-34.
I. Everson, Krill: Biology, Ecology and Fisheries (Oxford: Blackwell Science, 2000).
See n. 1.
CCAMLR, History, https://www.ccamlr.org/en/organisation/fishing-ccamlr.
A. Clarke, D.K.A. Barnes and D.A. Hodgson, ‘How isolated is Antarctica?’ (2005) 26 TRENDS in Ecology and Evolution 1.
Article I.4: ‘The Antarctic Convergence shall be deemed to be a line joining the following points along parallels of latitude and meridians of longitude: 50 °S, 0 °; 50 °S, 30 °E; 45 °S, 30 °E; 45 °S, 80 °E; 55 °S, 80 °E; 55 °S, 150 °E; 60 °S, 150 °E; 60 °S, 50 °W; 50 °S, 50 °W; 50 °S, 0 °.’
CCAMLR, Membership, https://www.ccamlr.org/en/organisation/who-involved-ccamlr.
CRAMRA, http://www.ats.aq.
CCAMLR, Browse Conservation Measures, https://www.ccamlr.org/node/74261.
For information on how AIS works, see Johnny G. Aase and Julia Jabour, ‘Monitoring maritime activities in the European High Arctic by satellite-based AIS for enhanced polar search and rescue’ (2015) 5:2 The Polar Journal 386–402.
CM32-18, proposed by France in 2006, requires that any by-catch of shark ‘shall, as far as possible, be released alive’. However, shark-finning is a known activity in Antarctic fisheries and it is assumed that finned sharks would not survive once released. Efforts over a number of years, primarily by the United States but with support from other Members, to amend this existing CM to include a ban on the practice of shark finning at sea have failed to achieve the required consensus. For further information see for example, Delegation of the United States, “Prohibition of Shark Finning in the CCAMLR Convention Area”, document XXXII/33 submitted to CCAMLR XXXII, 2013 (not publicly available without permission from author) and Delegations of Argentina, Australia, Brazil, Chile, the European Union, Norway, South Africa, Uruguay and the USA (2017) “Prohibition of finning of sharks caught in the CAMLR Convention Area”, document CCAMLR-XXXVI/26 (not publicly available without permission from authors).
See, for example, P. Boyd, Sinnika T. Lennartz, David M. Glover and Scott C. Doney, ‘Biological ramifications of climate-change-mediated oceanic multi-stressors’ (2015) 5 Nature Climate Change 71–79; S. Trimborn, T. Brenneis, C.J.M. Hoppe, L.M. Laglera, et al., ‘Iron sources alter the response of Southern Ocean phytoplankton to ocean acidification’ (2017) 578 Marine Ecology Progress Series. 35–50; J. Gardner, C. Manno, D.C.E. Bakker, et al., ‘Southern Ocean pteropods at risk from ocean warming and acidification’ (2018) 165 Marine Biology 8.
For further information see, for example, Julia Jabour and Marcus Haward, ‘The Southern Ocean and Changing Environmental Conditions: Antarctic Treaty System’, in Jan McDonald, Jeffrey McGee and Richard Barnes (eds), Research Handbook on Climate Change, Oceans and Coasts (Edward Elgar 2021) 224–238, 224. See also A.L. Bond and J.L. Lavers, ‘Climate change alters the trophic niche of a declining apex marine predator’ (2014) 20 Global Change Biology 7 2100–2107; K. Richerson, R. Driscoll and M. Mangel, ‘Increasing temperature may shift availability of euphausiid prey in the Southern Ocean’ (2018) 588 Marine Ecology Progress Series 59–70.
Danielle Smith, Jeffrey McGee and Julia Jabour, ‘Marine Protected Areas: A Spark for Contestation over ‘Rational Use’ of Antarctic Marine Living Resources in the Southern Ocean?’ (2016) 8:3 Australian Journal of Maritime and Ocean Affairs 180–198, http://dx.doi.org/10.1080/18366503.2016.1229398.
See, e.g. C.M. Brooks, L.B. Crowder, H. Österblom and A.L. Strong, ‘Reaching consensus for conserving the global commons: The case of the Ross Sea, Antarctica’ (2019) 13(1) Conservation Letters (CL) https://doi.org/10.1111/conl.12676.
CM91-05, https://cm.ccamlr.org/measure-91-05-2016. See also, Smith et al. (n 17); Cheryle Hislop and Julia Jabour, ‘Quality Matters: High Seas MPAs’ (2015) 29 Ocean Yearbook, 166–191.
Inspection is managed through a national system, whereby Members supply their own nationals as inspectors on their flagged vessels. See Text of the CCAMLR System of Inspection https://www.ccamlr.org/en/system/files/e-pt9_2.pdf. There are also scientific observers, operating under the CCAMLR Scheme of International Scientific Observation (SISO) established in 1992 under Article XXIV. However, these observers collect information on such things as gear, fishing operations, and biological measurements, but theirs is not a compliance function. They are also independent, i.e. not nationals of the vessel’s flag state. See SISO, https://www.ccamlr.org/en/science/ccamlr-scheme-international-scientific-observation.
The listings are achieved through CM10-06 Contracting Party IUU Vessel List (2016), CM10-07 Non-Contracting Party IUU Vessel List (2016), and CM10-08 Control of Nationals (2017). For some historic cases, including that of the Russian-flagged Volna, see Jacqueline Turner, Julia Jabour and Denzil Miller, ‘Consensus or not Consensus: That is the CCAMLR question’ (2008) 22 Ocean Yearbook 117.
CCAMLR, ‘Report of the Thirty-ninth meeting of the Commission (Virtual meeting, 26 to 30 October 2020). This is a preliminary version of the CCAMLR-39 Report as adopted on Friday 30 October 2020’, https://www.ccamlr.org/en/system/files/e-cc-39-prelim-v1.2.pdf, paras 3.4–3.19, 3.5.
Ibid.
See Aase and Jabour (n 11).
CCAMLR, ‘Report of the Fortieth meeting of the Commission’ (Virtual meeting, 18–29 October 2021), https://www.ccamlr.org/en/system/files/e-cc-40-rep.pdf, pp. 137–138.
CCAMLR, Conservation Measure 41-08 (2019) ‘Limits on the fishery for Dissostichus eleginoides in Statistical Division 58.5.2 in the 2019/20 and 2020/21 seasons’ https://www.ccamlr.org/en/measure-10-10-2019.
Toothfish can only be traded internationally if it is accompanied by certification that it was caught in compliance with CCAMLR conservation measures, according to CM10-05 (2018) ‘Catch Documentation Scheme for Dissostichus spp.’ https://www.ccamlr.org/en/measure-10-05-2018.
Turner, Julia Jabour and Denzil Miller, ‘Consensus or not Consensus’.
Ibid.
As one official reported: “All the ATCM and CEP intersessional discussions initiated at the 2019 meetings (reflected in the meeting reports and ATCM Multi-Year Strategic Work Plan and CEP five-year work plan) are continuing. There is an ongoing broad-ranging discussion about next steps following the cancellation of the 2020 meetings, which is considering other intersessional actions and preparations for the next meetings in 2021. At the Parties’ request, the Secretariat established a secure location on its website to allow Parties and other ATCM/CEP meeting participants to circulate ‘intersessional’ papers, to help facilitate continued communication and exchange of information in the absence of a physical meeting this year. In addition, the Parties have established intersessional processes to address several priority matters that would ordinarily have been dealt with at this year’s ATCM. These include: agreeing the Secretariat budget and work program; considering the reports of inspections; and discussing the action identified in Decision 5 (2015) to take a decision in 2020 on the establishment of a time-frame for the resumption of negotiations on liability. The Parties may establish other such intersessional discussions as needed.” Anon, e.mail dated 25 August 2020 on file with authors.
See CCAMLR, Conservation Measure 10-10 (2019) ‘CCAMLR Compliance Evaluation Procedure’, https://www.ccamlr.org/en/measure-10-10-2019. Under this Conservation Measure, there are four stages of adopting a SCIC Compliance Report: i) a draft, circulated to all Members for comments; ii) a summary, compiled from the draft and additional information, and made available to Members prior to the CCAMLR meeting; iii) a provisional report, discussed and adopted by consensus at the SCIC annual meeting prior to CCAMLR; and iv) a CCAMLR compliance report, based on consideration of the provisional report, adopted by consensus. At each of the first three stages it is possible for Members to provide information on mitigating circumstances, remedial action taken (if necessary), other response action, proposals to amend existing conservation measures, and the like.
CCAMLR, Conservation Measure 10-10 (2019), para 5.4.
Ibid., para 5.5.
CCAMLR, ‘Report of the Thirty-ninth meeting of the Commission’ (Virtual meeting, 27–30 October 2020), https://www.ccamlr.org/en/system/files/e-cc-39-prelim-v1.2.pdf, para 8.29.
CCAMLR, ‘Report of the Fortieth meeting of the Commission’ (Virtual meeting, 18–29 October 2021), https://meetings.ccamlr.org/en/ccamlr-40, para 2.2.
Ibid., para 4.11.
Ibid., para 6.7.
Ibid., para 6.22.
International Association of Antarctica Tour Operators (IAATO), ‘IAATO Overview of Antarctic Tourism: 2019–20 Season’, IAATO, 2020, p. 3.
For a comprehensive discussion on tourism activities in the Antarctic and ATS discussions and responses, see Kees Bastmeijer and Neil Gilbert (2019). Proactive Management of Antarctic Tourism: Time for a Fresh Approach. Discussion document for the International Workshop on Antarctic Tourism, Rotterdam, 3–5 April 2019; tabled by New Zealand and The Netherlands at the 42nd ATCM as Information Paper ATCM 42/IP 26.
International Association of Antarctica Tour Operators (IAATO), ‘IAATO Overview of Antarctic Tourism: 2019–20 Season’, IAATO 2020, p. 4.
Ibid., p. 4.
Ibid., p. 3.
International Association of Antarctica Tour Operators (IAATO), ‘IAATO Overview of Antarctic Tourism: 2021–22 Season and Preliminary Estimates for 2022–23 Season’, doc. ATCM 44/ IP 42, p. 2.
Ibid., Appendix 2.
Ibid., p. 7.
Zie bijv. Aurora Expeditions, ‘Should I cruise to Antarctica or fly?’, https://www.auroraexpeditions.com.au/blog/should-i-cruise-to-antarctica-or-fly/.
Swoop Antarctica, ‘Fly to Antarctica and cruise back’, https://www.swoop-antarctica.com/cruises/flights/one-way.
See Aurora Expeditions, ‘Should I cruise to Antarctica or fly?’, supra note 51.
International Association of Antarctica Tour Operators (IAATO), ‘IAATO Overview of Antarctic Tourism: 2019–20 Season’, IAATO 2020, p. 7.
See, e.g., https://www.quarkexpeditions.com/expeditions/antarctic-explorer-discovering-the-7th-continent.
International Association of Antarctica Tour Operators (IAATO), ‘IAATO Overview of Antarctic Tourism: 2019–20 Season’, IAATO 2020, p. 5.
Manon Ossevoort, ‘Story of my South Pole expedition by tractor’, https://www.youtube.com/watch?v=n9rhsG8V8zg.
See, for instance, https://www.youtube.com/watch?v=AeenOIKysWM.
Deepak Kamath, “The 7th Continent: Motorcycle to Antarctica”, MADorNOMAD, 2 July 2020, https://www.madornomad.com/motorcycle-to-antarctica/.
Doc. ATCM XVII /WP 1.
These guidelines for visitors have been reviewed in 2011 (Resolution 3(2011)), ‘General Guidelines for Visitors to the Antarctic’ and are currently reviewed in a CEP Intersessional Contact Group, convened by Germany.
At the time of finalising this article (Dec. 2022), Measure 4 (2004) required 11 more ratifications for its entering into effect, see https://www.ats.aq/devAS/Meetings/Measure/321. Measure 15 (2009) required 15 more ratifications for its entering into effect, https://www.ats.aq/devAS/Meetings/Measure?lang=e&id=432. For a critical discussion on this slow process of ratification and entering into force of adopted Measures, see, e.g., Luis V. Ferrada, ‘Five factors that will decide the future of Antarctica’, The Polar Journal, 8:1 (2018): 84–109 and Alan D. Hemmings, ‘Liability Postponed: The failure to bring Annex VI of the Madrid Protocol into force’, The Polar Journal 8(2) (2018): 315–332.
Resolution 7 (2009) – General Principles of Antarctic Tourism.
See https://iaato.org.
For a complete set of IAATO guidance documents for visitors, see the IAATO Visitor Guidelines Library, https://iaato.org/visiting-antarctica/visitor-guidelines-library/.
See IAATO, Doc. ATCM 42/IP 97, ‘New IAATO Procedures for Operating in the Vicinity of Whales’.
IAATO, Doc. ATCM 40/IP 167, ‘New IAATO Guidelines for Submersibles and Remote Operated Vehicle activities’.
IAATO, Doc. ATCM 39/IP 121, ‘IAATO Wildlife Watching Guidelines for Emperor Penguins and Leopard Seals’.
See IAATO, Doc. ATCM 42/IP 138, ‘IAATO Mandatory Observer Scheme’.
See IAATO, Doc. ATCM 39/IP 106, ‘Towards Developing a Strategic Approach to Environmentally Managed Tourism and Non-governmental Activities: an industry perspective’.
See SCAR and IAATO, Doc. ATCM 42/IP 24, ‘Systematic Conservation Plan for the Antarctic Peninsula Project Updates’, https://iaato.org/wp-content/uploads/2020/03/IP024-Systematic-Conservation-Plan-for-the-Antarctic-Peninsula-Project-Updates.pdf.
Kees Bastmeijer and Neil Gilbert (2019), Proactive Management of Antarctic Tourism: Time for a Fresh Approach. Discussion document for the International Workshop on Antarctic Tourism, Rotterdam, 3–5 April 2019; tabled by New Zealand and The Netherlands at the 42nd ATCM as Information Paper ATCM 42/IP 26, 13–14.
Kees Bastmeijer and Neil Gilbert (2019), Proactive Management of Antarctic Tourism.
ATCM XXXV/WP027 rev1.
Ibid.
See Resolution 5(2022).
David Farrier and Linda Tucker, ‘Access to Marine Bioresources: Hitching the Conservation Cart to the Bioprospecting Horse’ (2001) 32(3) Ocean Development & International Law 213.
Scientific Committee on Antarctic Research (SCAR), Biological Prospecting in Antarctica: An update on the review by SCAR, (2019) ATCM XLII, IP 53, 3, available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/.
Although not an exhaustive list, these papers include for example United Kingdom and Norway, “Bioprospecting”, ATCM XXVI, Information Paper 75 (2003) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/; UNEP, “Industry Involvement in Antarctic Bioprospecting,” ATCM XXVII, Information Paper 106 (2004) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/; UNEP, “Recent Developments in Biological Prospecting Relevant to Antarctica”, ATCM XXVIII, Information Paper 93 (2005) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/. See also Spain, “Biological Prospecting in Antarctica”, ATCM XXVIII, Information Paper 008 (2005) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/; UNEP, “Recent trends in the [sic] Biological Prospecting”, ATCM XXX, Information Paper 116 (2006) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/; UNEP, “Biological Prospecting in Antarctica: Review, Update and Proposed Tool to Support a Way Forward,” ATCM XXX Information Paper 67 (2007) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/. Netherlands, Belgium and France, “Biological Prospecting in the Antarctic Treaty Area-Scoping for a Regulatory Framework,” ATCM XXX, Working Paper 36 (2007) available at Antarctic Treaty Secretariat Website: <https://documents.ats.aq/>; SCAR, “Biological prospecting in the Antarctic region: a conservative overview of current research,” ATCM XXXIII, Working Paper 2, (2010) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/. See also Belgium and UNEP, “The Role of Ex-Situ Collections in Antarctic Bioprospecting,” ATCM XXXIII, Information Paper 96, (2010) available at Antarctic Treaty Secretariat Website: <https://documents.ats.aq/>; Belgium, Netherlands and Sweden, “Biological prospecting in Antarctic-the need for improved information”, ATCM XXXVI, Working Paper 48 (2013) available at Antarctic Treaty Secretariat Website: <https://documents.ats.aq/>; Belgium and Netherlands, “An Update on Status and Trends Biological Prospecting in Antarctica and Recent Policy Developments at the International Level,” ATCM XXXVI, Information Paper 22 (2013) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/.
For example, states have reported to ATCMs on their own bioprospecting activity include Argentina, Belgium, Brazil, Romania the Netherlands. See Argentina, “Argentine activities of bioprospecting and bioremediation in Antarctica” ATCM XXIX, Information Paper 112 (2006) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/. See also Argentina, “Report on the recent bioprospecting activities carried out by Argentina during the period 2010–2011” ATCM XXXIV, Information Paper 16 (2011) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/; Belgium, “Report on the bioprospecting activities carried out by Belgian scientists since 1998” ATCM XXXV, Information Paper 22 (2012) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/; Brazil, “Bioprospecting activities of Brazil in Antarctica: a short report”; ATCM XXXII IP 115 (2009) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/; Romania, “Management Plan for Romanian Biological Prospecting Activities in Antarctica”, ATCM XXXV Information Paper 84 (2012) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/; Romania, “Biological Prospecting in Antarctica by ROICE Team-Romania” ATCM XLII, Information Paper 146 rev.1 (2019) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/; and Netherlands, “A case of Biological Prospecting”, ATCM XXXIV, Information Paper 62 (2011) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/. For a detailed examination of countries, research institutes and companies involved in research and commercialisation of biotechnology from Antarctica’s biodiversity see also David Leary, “Bioprospecting in Antarctica and the Arctic. Common challenges?” 1 Yearbook of Polar Law (2009) 145.
Netherlands, “Biological Prospecting in the Antarctic Treaty Area,” ATCM XLI Information Paper 29 (2018), 4, available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/.
Ibid.
Ibid.
Ibid.
Ibid.
See for example discussion in Netherlands, “An update on Status and Trends Biological Prospecting in Antarctica and Recent Policy Developments at the International Level”, ATCM XL, Information Paper 168 (2017), available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/.
Netherlands, “An Update on Status and Trends Biological Prospecting in Antarctica and Recent policy Developments at the International Level”, ATCM XVII, Information Paper 133 (2015), 7.
Romania, “Biological Prospecting in Antarctica by ROICE Team-Romania”, ATCM XLII, Information Paper 146 rev.1 (2019) available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/.
Romania, “Biological Prospecting in Antarctica by ROICE Team-Romania.”
See for example David Leary, “Bioprospecting in Antarctica and the Arctic. Common Challenges?” 1 Yearbook of Polar Law (2009) 145.
See Lipotec, “Antracticine-marine ingredient” available at https://www.lipotec.com/en/products/antarcticine-reg-marine-ingredient.
See Lipotec, “SEACODE marine ingredient”, available at https://www.lipotec.com/en/products/seacode-trade-marine-ingredient/.
Belgium, Brazil, Bulgaria, Finland, France, Germany, Netherlands, and Sweden, “The Antarctic Biological Prospecting Database”, ATCM XXXII, Working Paper 1 (2009), 11. See also Extreme Scientific Expeditions’ https://microgembio.com/about/culture-collection/.
Aker Biomarine, “What is Krill Oil. Krill Oil 101”, https://www.superbakrill.com/what-is-krill-oil?hsCtaTracking=3cdd9c1b-faa2-44c4-a557-1dfa6a9a1be5%7Ca16ddbad-c85d-4c0b-882d-f2dec63a88a9.
See Aker Biomarine, “QRILL PET”, https://www.qrillpet.com.
See ‘Extreme Scientific Expeditions’, https://microgembio.com/about/culture-collection/.
Scientific Committee on Antarctic Research (SCAR), “Biological prospecting in the Antarctic region: a conservative overview of current research”, ATCM XXXIII, Working Paper 2 (2010), 5 available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/.
Julia Jabour and Dianne Nicol, ‘Bioprospecting in Areas Outside National Jurisdiction: Antarctica and the Southern Ocean’ 76(4) Melbourne Journal of International Law (2003) 76.
Alan Hemmings and Michelle Rogan-Finnemore, ‘Environment, ethics and equity issues’ in Alan Hemmings and Michelle Rogan-Finnemore, Antarctic Bioprospecting (Gateway Antarctic Special Publication Series, Christchurch, 2005), 255.
For discussion of the implications of these convergent technologies see for example David Leary and S. Kim Juniper, “Addressing the marine genetic resources issue. Is the debate heading in the wrong direction?” in Clive Schofield, Seokwoo Lee, and Moon-Sang Kwon (eds) The Limits of Maritime Jurisdiction (Martinus Nijhoff, Leiden) (2014), 769–785; and David Leary, ‘The Synthetic Biology Revolution: Mapping a future research agenda’ 34(1) University of Tasmania Law Review (2015) 111.
For a detailed overview of the history of debate within the ATS from 2002 until 2009 see David Leary, “Bioprospecting in Antarctica and the Arctic. Common Challenges?” 1 Yearbook of Polar Law (2009) 145.
Netherlands, “Bioprospecting in Antarctica”, (2018) ATCM XLI Information Paper 29 available at Antarctic Treaty Secretariat Website: https://documents.ats.aq/.
See David Leary, “Bioprospecting at the Poles” in Karen Scott and David VanderZwaag (eds) Research Handbook of Polar Law, (Edward Elgar 2020), 272–273.
Resolution 7, ATCM XXVIII, (2005) and Resolution 9, ATCM XXXII (2009).
Morten Walløe Tvedt, “Patent law and bioprospecting in Antarctica” 47(240) Polar Record (2010) 46.
Netherlands, “Biological Prospecting in the Antarctic Treaty Area”, ATCM XLI, Information Paper 29 (2018), 4.
Ibid., 6.
Ibid.
Ibid.
Alan Hemmings, “Does bioprospecting risk moral hazard for science in the Antarctic Treaty System”, 10 Ethics in Science and Environmental politics (2010) 5.
Ibid.
Ibid., 11.
Kevin Hughes and Paul Bridge, “Potential impacts of Antarctic bioprospecting and associate commercial activities upon Antarctic science and scientists” 10 Ethics in Science and Environmental Politics (2010) 13.
Julia Jabour, “Biological prospecting: the ethics of exclusive reward from Antarctic activity” (2010) 10 Ethics in Science and Environmental Politics (2010) 19.
Ibid.
Preamble, Antarctic Treaty.
Article II, Antarctic Treaty.
On this point see Dagmar Lohan and Sam Johnston, Bioprospecting in Antarctica (United Nations University-Institute of Advanced Studies 2005); and David Leary, “Bi-polar Disorder? Is Bioprospecting and emerging issue for the Arctic as well as for Antarctica?” 17(1) Review of European Community and International Environmental Law 41 (2008) 41.
Dagmar Lohan and Sam Johnston, Bioprospecting in Antarctica, United Nations-Institute of Advanced Studies Report (United Nations, 2005).
Kim Connolly-Stone, “Patents, property rights and benefit sharing issues” in Hemmings and Rogan-Finnemore, Antarctic Bioprospecting, 255.
United Nations Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993), 1760 United Nations Treaty Series 79.
Adopted 29 October 2010 entered into force 12 October 2014, http://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf.
CBD, Article 15(1).
Nagoya Protocol, Article 3(1).
Ibid.
See Nagoya Protocol, Annex.
See Secretariat of the Convention on Biological Diversity, “List of Parties”, https://www.cbd.int/information/parties.shtml.
See Secretariat of the Convention on Biological Diversity, “Parties to the Nagoya Protocol”, https://www.cbd.int/abs/nagoya-protocol/signatories/.
Environment Protection and Biodiversity Conservation Act (Cth), s 5(1).
Ibid., s 5(3).
Lov nr 37 of 6 June 2008 om forvaltning av viltlevande marine ressursar (Marine Resources Act) (Norway), unofficial English translation, available at http://extwprlegs1.fao.org/docs/pdf/nor82017E.pdf.
For an examination of the Marine Resources Act see David Leary, “Bioprospecting at the Poles” in Karen Scott and David VanderZwaag (eds) Research Handbook of Polar Law (Edward Elgar 2020), 284–285.
Antarctic Treaty, Article IV(2).
Michelle Rogan-Finnemore, “What bioprospecting means for Antarctica and the Southern Ocean”, in Geoffrey Leane and Barbarra Von Tigerstrom (eds), International Law Issues in the South Pacific (Ashgate, Farnham 2005), 199.
David Leary, “Bi-polar Disorder? Is Bioprospecting and emerging issue for the Arctic as well as for Antarctica?” (2008) 17(1) Review of European Community and International Environmental Law (2008) 41, 42.
See United Nations General Assembly, Resolution 69/292 – Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/RES/69/292 and United Nations General Assembly, (2017), Resolution 72/249-International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/RES/72/249, 24 December 2017.
For the current state of play of these negotiations in relation to the issue of marine genetic resources so for example David Leary, “Agreeing to Disagree on what we have or have not agreed on: The current State of Play of the BBNJ Negotiations on the Status of Marine Genetic Resources in Areas Beyond National Jurisdiction” 99 Marine Policy (2019) 21 and Arianna Broggiato, Sophie Arnaud-Haond, Claudio Chiarolla and Thomas Greiber, “Fair and equitable sharing of benefits from the utilization of marine genetic resources in areas beyond national jurisdiction: Bridging the gaps between science and policy” Marine Policy 49 (2014), 176; and Fran Humphries et al., “A tiered approach to the marine genetic resource governance framework under the proposed UNCLOS agreement for biodiversity beyond national jurisdiction (BBNJ)” Marine Policy (2020) in press, doi.org/10.1016/j.marpol.2020.103910.
David Leary, “Bioprospecting at the Poles” in Karen Scott and David VanderZwaag (eds) Research Handbook of Polar Law, (Edward Elgar 2020), 289–290.
Ibid.
Ibid.
Convention on the Conservation of Antarctic Marine Living Resources (adopted 20 May 1980, entered into force 7 April 1982) 19 International Legal Materials 837. On this point see David Leary, “Bioprospecting at the Poles” in Karen Scott and David VanderZwaag (eds) Research Handbook of Polar Law, (Edward Elgar 2020), 290.
For example, most recently at ATCM XLII in Prague in 2019. See Antarctic Treaty Secretariat, Final Report of the Forty-second Antarctic Treaty Consultative Meeting, (2019), para 185, https://documents.ats.aq/ATCM42/fr/ATCM42_fr001_e.pdf.
See, for example, BYU Centre for Remote Sensing, NASA Jet Propulsion Laboratory, European Space Agency production of Icebergs Alive – Iceberg flux 1976–2017, https://www.youtube.com/watch?time_continue=2&v=ua3WS8sPDL4&fbclid=IwAR05DXPrJhDYWuup_zDQIw1JPjH_DZwu8jQibseQCcsl7iAAJP1WMqi_Ms0.
See, e.g., J.L. Hult and N.C. Ostrander, ‘Antarctic icebergs as a global freshwater resource’, a report prepared for the US National Science Foundation (Santa Monica: Rand, 1973), https://www.rand.org/content/dam/rand/pubs/reports/2008/R1255.pdf.
See, e.g., Andrew Sambidge, ‘UAE company behind ambitious icebergs project wins patent from the UK’, ArabianBusiness, 26 March 2022, https://www.arabianbusinesscom/industries/technology/uae-company-behind-ambitious-icebergs-project-wins-patent-from-the-uk.
See, for example, John L. Hult and Neill C. Ostrander, “Applicability of ERTS for surveying Antarctic iceberg resources” (1973), available from <https://nrts.nasa.gov/search.jsp?R=19740006895>; Wilford F. Weeks and W.J. Campbell, “Icebergs as a fresh-water source: an appraisal” 12(65) J. Glaciology (1973) 207; Thomas R. Lundquist, ‘The Iceberg Cometh? International Law Relating to Antarctic Iceberg Exploitation’ 17(1) National Resources Journal (1977); Wilford F. Weeks, “Iceberg water: an assessment” 1 Annals of Glaciology (1980); and Abdo A. Husseiny, Iceberg Utilization: Proceedings of the First International Conference and Workshops on Iceberg Utilization for Fresh Water Production, Weather Modification and Other Applications Held at Iowa State University, Ames, Iowa, USA, October 2–6, 1977 (Elsevier, 2013).
Robbie Gonzalez, Wired, “Scientists Discover Clean Water Ice Just Below Mars’ Surface”, https://www.wired.com/story/scientists-discover-clean-water-ice-just-below-mars-surface/.
Space.com, “NASA Drill Team Breaking the Antarctic Ice” available from https://www.space.com/100-nasa-drill-team-breaking-antarctic-ice.html.
Bergwater, “Harvesting Icebergs”, http://www.bergwater.ca/harvesting.aspx.
Bryson Bates, Zbigniew Kundzewicz and Shaohong Wu, Climate change and water (Intergovernmental Panel on Climate Change Secretariat, 2008).
Final Act, 11th Antarctic Treaty Special Consultative Meeting, 1991: “The Meeting noted that the harvesting of ice was not considered to be an Antarctic mineral resource activity; it was therefore agreed that if the harvesting of ice were to become possible in the future, it was understood that the provisions of the Protocol, other than Article 7 [minerals activity prohibition], would apply.”
