Environmental regimes of the two Polar Regions

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1 Environmental regimes of the two Polar Regions Vladimir Lukic* *NGO Civil Ecology Action Thales I. INTRODUCTION In the light of international environmental law, each of the Earth s characteristic area has specific demands and therefore in some cases need for specific environmental status. This is especially the matter in the case of international law in Antarctica and the Arctic. Each polar region is managed by the individual legal regimes, and the special international laws are developed specifically to deal with polar problems - protection of the environment, protection of the wild species, etc. Dealing with unique problems of the Polar regions and legal issues, includind co-operation of Governments and international teams of scientists has contributed to a greater understanding of international law and it had general implication and contribution to the development of international law. Polar environmental regimes cover the legal issues concerning the complex nature of the subject - specific geography and environment of the regions, the relevant aspects of the law of the sea, resource management, endangered species, environmental impact assassments and environmental protection. Considering that the areas of the Antarctica and the Arctic are on the first place and in many ways matter of international relations, the management of the environmental issues of the Polar regions could further development of model for solving environmental issues and cooperation in other Earth s regions. Variety of the environmental factors, different environment specifications and resources of the two Polar regions, not excluding historical and political factors, caused development of different environmental legal regimes of Antarctica and the Arctic. Treaties, Protocols and other international instruments, along with international bodies in charge of implementing those Treaties and Strategies, are framework for the environmental regimes of the two Polar Regions.

2 II. ESTABLISHING THE DIFFERENT LEGAL ENVIRONMENTAL STATUS OF TWO POLAR REGIONS The geo-political significance of each Polar Region, possibilities of commericial exploitation (minning, in the first place), terrestrial and marine environment, are the reasons for the dissimilarity of environmental legal regions. While the Antarctica, as a continent, on which even several countries claimed the territories, developed the regional regime based on International Treaties and protection of both continental and marine environmental values, the environmental protection of the Arctic is based on soft-law legal instruments, which are not so binding for the involved Parties. Even both of the Polar regions have institutions established in the manner of implementing the protocols of the Conventions and Protection strategies, the role of the institutions, considering the nature of soft-law and hard-law instruments, significantly differ. While Antarctic Treaty Secretariat is more based on management of the region and forum for the Contracting Parties, the Arctic council and it s related boddies, make environmental monitoring and assessment a key element of the Arctic Council's agenda. III. ANTARCTIC TREATY SYSTEM a) DOCUMENTS On the base of together action on this Earth's only continent without a native population, facing the danger of international discord and conflict for this territory and realizing the advantages for joined scientific actions, the Governments of 12 countries,signed in Washington in 1959 Antarctic Treaty. Including the former Union of Soviet Socialist Republics and USA the two countries with the most influence in the world s constellation. Treaty entered into force in In the Preamble of the text and in the Article 1 it is emphasized peaceful purpose for the establishment of this Agreement. In the Article 1 of the Antarctic Treaty it is said that there shall be prohibited establishment of military bases and carrying out military maneuvers and testing of any kind of weapons. In the light of international relationships at that time, it is obvious that the world peace and prevention of one country sovereignity and military domination was more important reason for establishing the Treaty, rather than environmental reasons. 2

3 The certain change in environmental management of the Antarctica was made in the 1991 with the Protocol on Environmental Protection to the Antarctic Treaty (hereinafter The Protocol). While The Antarctic Treaty main purpose was to prevent military actions on Antarctica and facilitate scientific cooperation, The Protocol for the first time has created an integrated environmental protection regime in Antarctica. The Protocol came into force in Contracting Parties of The Protocol, agreed that the development of a comprehensive regime for the protection of the Antarctic environment and dependent ecosystems is in the interest of whole mankind. And that they will cooperate in the planning and conducting of activities in the Antarctic Treaty area (defined as the area south of 60º South Latitude,including all ice shelves) in the manner to limit adverse impact on Antarctic environment and associated ecosystems. To provide prior assassments of the planned activities and to if needed suspend or cancel the activities if they result in or threaten to result in impacts upon the Antarctic environment. It is important to say that the The Protocol was made at a time when there was international debate over whether mining should be permitted in Antarctica. And after failure of ratification of 1980 Convention on the Regulation Antarctic Mineral Resource Activities. In the Article 7 of The Protocol it is quoted : Any activity relating to mineral resources, other than scientific research, shall be prohibited. It is obvious that with this Protocol on Environmental Protection to the Antarctic Treaty Contracting Parties had a objective to protect Antarctica and it s unique ecosystems through controlling and monitoring human activities and impact. And to prevent jeopardizing the native Fauna and Flora from non-native animals and plants taking care of Antarctica as autonomous eco-system and a special conservation area. The Protocol recognized Antarctica as a continent where human activities should have scientific purposes in the first place. This was a sign of international goodwill to cooperatively manage Antarctica and the robustness of the Antarctic Treaty System. Besides, above mentioned Antarctic Treaty and The Protocol, the other agreements, recommendations and Conventions were adopted at Treaty Consultative Meetings and ratified by Governments. These documents,with particular measures to protect Antarctic environment and living beings, should be respected as a part of 3

4 Antarctic Treaty System, which has been developing since The Antarctic Treaty in In 1964 The Governments participating in the Third Consultative Meeting of the Antarctic Treaty, adopted Agreed Measures for the Conservation of Antarctic Fauna and Flora (entered into force in 1982), with objective to further international collaboration within the framework of the Antarctic Treaty and achieve the objectives of protection, scientific study, and rational use of Antarctic fauna and flora. The Convention for the Conservation of Antarctic Seals (negotiated 1972, came into force 1978) was signed with aim to promote and achieve the protection, scientific study, and rational use of Antarctic seals, and to maintain a satisfactory balance within the ecological system of Antarctica. The Convention was signed because of concern of commercial harvesting of fur seals. As a part of the Antarctic Treaty System 1980The Convention on the Conservation of Antarctic Marine Living Resources (entered in 1982), was signed in pursuance of the provisions of Article IX of the Antarctic Treaty. The reason was to protect marine environment and to establish rational use of marine living resources in the region of Antarctic. With belief that the conservation of Antarctic marine living resources calls for international co-operation. In addition there are some 300 measures adopted by the Antarctic Treaty Consultative Meeting (ATCM), which since 1994 meets annually. b) ANTARCTIC INTERNATIONAL INSTITUTIONS Under the provision of Article IX of the Antarctic Treaty, there were established Antarctic Treaty Consultative Meetings (ATCM) as the international forum for the administration and management of the region. With main reason of implementing the provisions of Antarctic Treaty System and facilitation of communication between the Contracting Parties. The international body - The Antarctic Treaty Secretariat was established in Buenos Aires, Argentina in 2004 by the Antarctic Treaty Consultative Meeting (ATCM), which one of the main tasks is to support annual meeting. Antarctic Treaty Secretariat facilitates the exchange of information between the Parties, collects and publishes the ATCM Final Report and provides and disseminates public information about the Antarctic Treaty System and Antarctic activities. 4

5 Since 1959, thirty-four other countries have acceded to the Treaty. There are now 46 treaty member nations: 28 consultative and 18 acceding. Protocol on Environmental Protection to the Antarctic Treaty established the Committee for Environmental Protection (CEP) as an expert advisory body to provide advice and formulate recommendations to the Antarctic Treaty Consultative Meetings in connection with the implementation of The Protocol, including the operation of its Annexes. The Final Report of any CEP meeting requires the approval of an ATCM. The Convention for the Conservation of Antarctic Marine Living Resources established under the article VII a Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) to manage the marine living resources of the area for which it is responsible and to achieve the purposes of this Convention. Achievement of this aim requires the collection of large quantities of information and the development of appropriate scientific and analytical techniques. In that purpose the Scientific Comitee is establihed as a consultative body to the CCAMLR. Conservation measures adopted by CCAMLR are based on scientific advice and require enforcement to be effective. The body of the CCAMLR is Secretariat with task to provide administrative support. The headquaters of the CCAMLR is at Hobart, Tasmania, Australia. CCAMLR cooperates closely with the institutions, inter-governmental and non-governmental organizations which could contribute to their work. Scientific oversight for the state reports on implementation of provisions of Convention for the Conservation of Antarctic Seals, are provided by the Scientific Commitee on Antarctic Research. IV. ARCTIC ENVIRONMENTAL REGIME a) ARCTIC ENVIRONMENTAL PROTECTION STRATEGY AND OTHER DOCUMENTS 1991 Declaration on Protection of the Arctic Environment and Arctic Environmental Protection Strategy (hereinafter Protection Strategy) was the base for the foundation of Arctic environmental regime. Protection Strategy provided for Arctic soft law regulations, and different legal regime comparing to Antarctic Treaty System. Even the area of Antarctica and Arctic face the similar problems, the fact that Arctic is the marine region surrounded with the land with sovereignity of eight states, each of them with different historical, legal and economic background and different interests, was the 5

6 reason for establishing the Protection Strategy, whose provisions were not binding as the provisions of Antarctic Treaty System. Arctic soft law environmental system therefore consists of series of Plans and Programmes. Some of the following environmental documents were 1998 Regional Programme of Actions fo the Protection of the Arctic Marine Environment from Land-Based Activities and 2000 Arctic Council Plan to Eliminate Pollution of the Arctic. After two years of the first meeting in Rovaniemi in Finland, and continuous negotiotions, eight Arctic countries adopted the Arctic Environmental Protection Strategy, with objectives to cooperate in scientific programmes, assess the environmental impact of developing activities and to implement measures to reduce impact of pollutants on Arctic environment. One of the agreed mesures was to implement Arctic Monitoring and Assessment Programme (AMAP), in order to monitor the levels of, and assess the effects of anthropogenic pollutants in all components of the Arctic environment. In general, the Arctic initiative was to provide a broad scientific and logistic platform around which a number of research and monitoring activities can be implemented. In a interdisciplinary manner for effective international research and monitoring collaboration of Arctic region. Legal aspect of the environmental protection in the Arctic region is mainly covered with domestic laws in Acrtic countries, in which were implemented the provisions of international environmental agreements. Besides the national legislation in Arctic countries, and international treaties and conventions addressing global issues with effect on Arctic, the weakness of Arctic environmental regime is non-consistence of these laws and lack of implementing mechanism. The environmental body Arctic council is more like international forum with aim to increase the cooperation and communication among Arctic states, than the international body with legal binding decisions. Environmental problems in the Arctic overlap and intersect with global pollution and biodiversity problems in many ways. Many of the threats for the Arctic come from the outside of the Polar Region. In addition, many of the global Agreements address the Arctic topics as well and they can be considered as part of the Arctic legal framework: 1992 Convention on Biological diversity, 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 1998 Aarhus Protocol on Persistent Organic Pollutants, 1972 Convention on the prevention of Marine Pollution, Law of the Sea Convention, Convention for the Protection of the 6

7 Marine Environment of the North-East Atlantic (OSPAR). And nearly all international Conventions addressing the problems of marine environment. Other environmental probles such as increased harvesting of fish and mammals, mining, nuclear testing and nuclear plants, are the problems on-going on territory under jurisdiction of eight Arctic cuntries. The way for solving these problems is in global multilateral approach. The other problems of the Arctic environmental regime are lack of specific measures and actions, time schedule and forceable decisions of related bodies to implement comprehensive measures for environmental protection. b) THE ARCTIC COUNCIL AND ARCTIC COUNCIL WORKING GROUPS Five years after the Protection Strategy, in 1996, Foreign Ministers of the Arctic states agreed in the Ottawa Declaration, to form the Arctic Council with a mandate to undertake a broad programme to to ensure environmental, social and economic sustainable development in the Arctic region. Besides eight Arctic states with full membership in the Arctic Council, six international organizations representing many Arctic indigenous communities have the status of Permanent Participants of the Arctic Council and are involved in the work of the Council in full consultation with governments. Observers to the Arctic Council include European non-arctic countries, international organisations and NGOs. The Arctic Council is in that way a unique forum for cooperation between national governments and indigenous peoples. Declarations within the Arctic Council are made at meetings, which are held every two years. However, the Arctic Council does not have enforcement mechanism and decision-maiking powers, so the basic responsibility for the implementation of regional policies lies with the states and their sub-regional administrations. There are also some regional strucures that overlap with the Arctic Council, such as Barent s Euro-Baltic Council and Northern Forum. The consultative and scientific work of the Arctic Council is carried out in five expert working groups focusing on aspects of environmental protection and sustainable development: The Arctic Monitoring and Assessment Programme (AMAP) The Sustainable Development Working Group (SDWG) Protection of the Arctic Marine Environment (PAME) 7

8 Conservation of Arctic Flora and Fauna (CAFF) Emergency, Prevention, Preparedness and Response (EPPR) Reports that are being given by this Working groups are the base for the Arctic Council meetings and its Declarations. CONCLUSION Although with similar environmental threats and fragile polar environment influenced with outside sources, Antarctica and Arctic developed different legal regimes. While Antarctica with series of Agreements and implemental international instruments became model for environmental management regime, on the other hand Arctic has based its Polar Regime as series of flexible agreements, not legally binding. Antarctica was desolated territory, with no native population and non-militarized region, and it has been easily governed with single Antarctic Treaty System and comprehensive environmental regime. On the other side, Arctic had a local population of eight states, with different economic development level and traditional way of life, with extensive industrial and resource development and strategic significance in military way. Therefore, the Arctic region has been dominated by legal regimes of eight countries with their implementing mechanism. Antarctic Treaty System provided important contribution to the development of international environmental law in implementing a legal regime with objective to protect environment from the impact of all human activities. ATS established the regime in which freedom of scientific research, protective measures for the flora and fauna and marine living resource management are put before the national and territorial jurisdiction. Moreover, observing that Earth s area as a region of interest of all humankind. The need for co-coordinated plans and actions in Arctic caused the emergence of Protection Strategy, which can be seen as the first step in developing Arctic environmental regime. The further measures may be ratification of global agreements addressing Arctic issues by all Arctic countries, negotiating the series of Arctic Agreements, ratification and establishing Arctic institutions with enforcement role and effective implementing mechanism. And all of this can provide adequate nature conservation and environmental protection, similar to Antarctic Treaty System. In addition, it must include special attention to the needs of indigenous people and balance the nature conservation and economic development. 8

9 REFERENCES 1. Donald R. Rothwell, The Polar Regions and the Development of International Law, Cambridge University Press, Linda Lowlan, Arctic Legal Regime For Environmental Protection, IUCN Environmental Policy and Law Paper No.44, IUCN-The World Conservation Union, Antarctic Treaty Secretariat, (21 May 2007) 4. Arctic Council, (17 May 2007) 5. Arctic Monitoring and Assessment Programme, (17 May 2007) 6. Commission for the Conservation of Antarctic Marine Living Resources, (8 May 2007) 7. British Antarctic Survey, (24 May 2007) 8. Scientific Committee on Antactic Research, (21 May 2007) 9. Vital Arctic Graphics, (17 May 2007) Copyright by

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