This contribution has been published in the second edition of the New Zealand Yearbook of International Law (2005), pp

Transcription

1 This contribution has been published in the second edition of the New Zealand Yearbook of International Law (2005), pp MANAGING HUMAN ACTIVITIES IN ANTARCTICA: SHOULD WILDERNESS PROTECTION COUNT? Kees Bastmeijer * Antarctica, a place on the map for centuries absent, is now present through the work of its scientists and its busy summers, its aircraft, ships and tourists. The southern part of the planet is no longer lonely. 1 Antarctica is often described as one of the world's last wildernesses. 2 In 1990, the IUCN stated: It is agreed almost universally that Antarctica should be conserved for its wilderness qualities, natural beauty, almost unsullied environments and unique flora and fauna. 3 In harmony with this general perception, the wilderness values of Antarctica also received legal status with the adoption of the Environmental Protocol to the Antarctic Treaty (hereinafter the Protocol) in Article 3(1) of the Protocol obliges the Contracting Parties to recognise the protection of wilderness values as a fundamental consideration in the planning and conduct of all activities in the Antarctic Treaty area. Some other provisions of the Protocol also refer to wilderness protection. This commentary focuses on the question to what extent the concept of protecting wilderness values received attention in the international management of Antarctica since the adoption of the Protocol in Are wilderness values taken into account in Environmental Impact Assessments (EIAs) for proposed Antarctic activities? Have Antarctic areas been designated as Antarctic Specially Protected Areas (ASPAs), specifically because of their wilderness values? The recent discussions at the Antarctic Treaty Consultative Meetings (ATCMs) on the question whether additional measures should be adopted to manage Antarctic tourism also receive attention. In the International Journal of Wilderness, Antarctic tourism management has been considered to be a frontier for wilderness management ; 4 however, do wilderness values indeed play a role in this international debate? For instance, have certain types of tourist activities, such as the use of snowmobiles or the establishment of structural facilities for tourists, been restricted or prohibited? Electronic copy of this paper is available at:

2 2 I. 'WILDERNESS' In the literature, policy documents and domestic laws, many different definitions can be found of the terms 'wilderness', 'wilderness values' and 'wilderness qualities'. It has been stated that operational definitions of wilderness have changed over time, reflecting stages in the development of the wilderness concept. 5 Apart from the factor time, the issue of wilderness has been defined from different perspectives. Aplet, Thomson and Wilbert (2000) explain that the term wilderness has been thought of both as a real place and as an experience. 6 In respect of this latter category of definition (wilderness as an 'experience'), Fritz, Carver and See (2000) refer to Nash (1982) as one of the authors who define wilderness from the perspective of the people : There is no specific material thing that is wilderness. The term designates a quality that produces a certain mood or feeling in a given individual and, as a consequence, may be assigned by the person to a specific place. 7 Most definitions in the literature and law and policy documents describe 'wilderness' as a place with particular physical characteristics. Characteristics (or perhaps 'wilderness qualities' or 'wilderness values') that are often included are minimum size of the area (indicated by means of acres or hectares, or the time needed to cross the area on foot), 8 the absence of roads, buildings, bridges, tracks or other human developments ( imprint of human interference substantially unnoticeable ) 9 and minimum distance from human settlements. Some authors also include the element of intact native ecosystems in the definition of wilderness: The invasion of non-native species also can decrease the naturalness and therefore the wildness of an area. 10 In addition to these two categories of definitions, referred to by Higham (1998) as 'phenomenal wilderness' and 'perceptual wilderness', Higham also distinguishes 'legal wilderness' (definitions used in laws) and 'wilderness areas of pristine ecology'. 11 This last category refers to areas of pristine ecology that are completely free of any human disturbance. 12 However, in view of global warming, ozone depletion and other human influences on the global environment Higham states that this is a definition that almost certainly exists in word only. 13 In respect of Antarctica, Codling formulates a wilderness definition based on physical characteristics: [A]ny part of the Antarctic in which neither permanent habitation nor any other permanent evidence of present or past human presence is visible. 14 Although this definition is in agreement with wilderness literature concerning other parts of the world, one might debate the need of including the term permanent. On the one hand, the use of this term in this definition is important to ensure that a Electronic copy of this paper is available at:

3 3 wilderness does not immediately 'lose' its wilderness status because of temporary human activity in that area. On the other hand, its use should not give us the impression that the wilderness values of Antarctica can only be affected by activities that result in permanent evidence of human presence. In my view, temporary activities such as the use of helicopters may also affect the wilderness value of an area, although this 'impact' will be temporary. Keys (1999) also reflects on the possibility of such temporary impacts ('disturbance') in his description of Antarctic wilderness values: Antarctic wilderness values include those of remoteness, few or no people, an absence of human made objects, traces, sounds and smells, and untraveled or infrequently traveled terrain. This implies remoteness from permanent or semi-permanent habitation (not merely an absence of it), an absence of related human artifacts, (e.g. tracking) and disturbance and an absence of motorised transport. 15 Based on the wilderness literature and particularly this quotation from Keys, for the purpose of this contribution 'wilderness' is defined as a relatively big natural area, free from human-made objects, artefacts and disturbance. The term disturbance in this definition may, for instance, include the use of motorised transport and a high number of visitors (cumulative impacts), but does not refer to the influence of the global processes referred to above. This definition implies the definition of 'Wilderness values' or 'wilderness qualities' as those values or qualities that qualify and characterise a natural area as a 'wilderness' or a 'wilderness area'. In view of this discussion, I agree with Codling (1998) and Keys (1999) that most of the Antarctic must be considered wilderness with the exception of, in particular, the areas where research stations are located. 16 II. LEGAL PROTECTION OF WILDERNESS VALUES IN ANTARCTICA A. Historic Overview 1. The Antarctic Treaty During the first half of the 20 th century, seven states laid territorial claims to parts of the continent, but the legitimacy of these claims was disputed. In 1959, the seven claimant states and five other states involved in Antarctic research signed the Antarctic Treaty, which entered into force in A central element of the Treaty is the 'agreement to disagree'

4 4 with regard to the legitimacy of the sovereignty claims: 17 The positions of all states in respect of the legal status of Antarctica are reserved and the Contracting Parties agree to manage Antarctica collectively. Since 1961, other states succeeded in showing a substantial scientific interest in Antarctica, and today 29 Consultative Parties are involved in the Antarctic decision-making process, which is based on consensus. Since the Treaty was promulgated, several other conventions and more than 200 recommendations have been adopted. This set of instruments for the international management of the Antarctic is often referred to as the Antarctic Treaty System (ATS). 18 The Antarctic Treaty of 1959 itself does not refer to the need to protect Antarctica as a wilderness. The treaty focuses on safeguarding peace and scientific research in the area south of 60 degrees south latitude. Article IX provides the possibility for the Consultative Parties to adopt Recommendations on the preservation and conservation of living resources in Antarctica, 19 but the Treaty does not include the term 'wilderness'. Although the issue of environmental protection in Antarctica received substantial attention during the 1960s and 1970s, the various measures and agreements that were adopted contained no explicit reference to the need to protect Antarctica s 'wilderness values' either. 2. Wilderness Values and the Mining Convention During the 1980s, the interest in the protection of the Antarctic environment within the ATS further increased. A particularly important issue was the potential exploitation of mineral resources in the Antarctic Treaty area. The negotiations to develop an international agreement on this issue started in No commercial mining activities took place in the Antarctic, but the Consultative Parties agreed on a proactive approach in order to develop a treaty on the regulation of these activities before actual initiatives are undertaken. 20 During the last session of the Special ATCM, held at Wellington from 2 May to 2 June 1988, the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) was finalised. 21 CRAMRA includes various references to wilderness values. Its preamble states: NOTING the unique ecological, scientific and wilderness value of Antarctica and the importance of Antarctica to the global environment. Article 2(3) (Objectives and General Principles) states: In relation to Antarctic mineral resource activities, should they occur, the Parties acknowledge the special responsibility of the Antarctic Treaty Consultative Parties for the protection of the environment and the need to: d. respect Antarctica's scientific value and aesthetic and wilderness qualities. Article 4(2) (Principles concerning Judgements

5 5 on Antarctic Mineral Resource Activities) explicitly states: No Antarctic mineral resource activity shall take place until it is judged, based upon assessment of its possible impacts on the Antarctic environment and on dependent and on associated ecosystems, that the activity in question would not cause: further jeopardy to endangered or threatened species or populations of such species; or degradation of, or substantial risk to, areas of special biological, scientific, historic, aesthetic or wilderness significance. This provision constitutes one of the few examples of explicit codification of the precautionary principle in an ATS legal instrument. 22 In 1989, it became clear that CRAMRA would not enter into force. Australia and France soon joined by other countries (e.g. Belgium, India and New Zealand) 23 decided not to sign and ratify CRAMRA. 3. Wilderness Protection: An Element of the World Park Concept Parallel to the negotiations concerning CRAMRA and a growing environmental consciousness worldwide, 24 international NGOs, such as the Antarctic Southern Ocean Coalition (ASOC) and Greenpeace, advocated the establishment of the Antarctic World Park. 25 One of the most important characteristics of the 'World Park concept' 26 was a total and permanent ban on mining activities except for scientific purposes. However, the concept of wilderness protection was also one of the ideas behind it. In 1990, Bogart stated: Under a World Park, scientific research and international co-operation would be encouraged, and the unique wilderness values of the continent would be preserved for generations to come. 27 Goldsworthy explained that 'World Park Antarctica' calls for the protection forever of our last great wilderness continent from all environmentally destructive human activities, including all mining activities. 28 According to a press release quoted by Redgwell (1994), wilderness protection apparently also motivated Australia not to sign and ratify CRAMRA: In announcing on 22 May 1989 that Australia would not sign the Minerals Convention, the Australian Prime Minister stated that Australia will specifically explore the prospects for the establishment of an 'Antarctic Wilderness Park'. 29 Thus, while CRAMRA explicitly recognised the need to protect wilderness values in Antarctica, it was that same concept of wilderness protection in Antarctica that was one of the arguments of those lobbying for a total ban on mining in Antarctica and for the rejection of CRAMRA.

6 6 4. Recommendations Adopted at the XV th ATCM (1989) After Australia and France decided not to support CRAMRA, the question was what the next step should be for the states involved in the ATS. At the XV th ATCM (1989), several Consultative Parties tabled proposals for further action. Some states favoured the development of a new convention on environmental protection in Antarctica, while others thought this would create problems in relation to the existing instruments of the ATS. 30 The proposals had in common that further work within the ATS to strengthen and complete the existing system of measures to protect the Antarctic environment was considered necessary. This common view formed the basis for the adoption of Recommendation XV- 1. For the purpose of this publication, it is interesting to notice that this Recommendation explicitly states the importance of protecting wilderness values in Antarctica. With the adoption of Recommendation XV-1, the governments of the Consultative Parties were recommended to: undertake as a priority objective the further elaboration, maintenance and effective implementation of a comprehensive system for the protection of the Antarctic environment and its dependent and associated ecosystems, aimed at ensuring that human activity does not have adverse impacts on the Antarctic environment or dependent or associated ecosystems or compromise the scientific, aesthetic or wilderness values of Antarctica. 31 At the same ATCM, a more concrete measure was adopted to enhance the protection of wilderness values in Antarctica. With the adoption of Recommendation XV-10 it was noted that: neither the Agreed Measures nor other Recommendations adopted by the Antarctic Treaty Consultative Parties provide a specified mechanism for identifying and protecting areas of outstanding geological, glaciological, geomorphological, aesthetic, scenic, or wilderness value. Therefore, the Recommendation provides the possibility of designating Specially Reserved Areas (SRAs), and access to these areas would be limited to particular purposes. 32 Keys (1999) explains that one SRA was designated at the XVI th ATCM (1991): This area covering approximately 480 km² on the northside of the Dufek Massif, Pensacola Mountains is designated Specially Reserved Area (SRA) However, as Keys notes, Recommendation XV-10 never entered into force. 34 Two years after its adoption, the system of instituting SRAs was integrated into the Antarctic Specially Protected Area system of Annex V of the Protocol.

7 7 B. Wilderness Values and the Protocol The World Park concept, CRAMRA and the various Recommendations adopted in respect of the protection of the Antarctic environment formed important sources of inspiration for the negotiations of the Protocol in 1990 and This may explain why the concept of protecting wilderness values is also included in the Protocol. Article 3(1) of the Protocol provides an overview of all values that must be respected when planning and conducting human activities in the Antarctic. This provision explicitly includes 'wilderness values': The protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic values and its values as an area for the conduct of scientific research, in particular research essential to understanding the global environment, shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area. Given the general formulation of Article 3 and the title of this provision, (Environmental Principles), it is to be assumed that the values identified in this provision, including wilderness values, must be taken into account when implementing the other provisions of the Protocol. For instance, wilderness values should be taken into account when making Environmental Impact Assessments (EIAs) for proposed Antarctic activities. 35 The Protocol also provides an instrument for giving special protection to particular areas or sites with outstanding wilderness values. The possibility of designating an area as an Antarctic Specially Protected Area (ASPA) in order to protect the wilderness values of that area, builds on Recommendation XV-10 concerning SRAs discussed above. According to Article 3(1) of Annex V to the Protocol: Any area, including any marine area, may be designated as an Antarctic Special Protected Area, to protect outstanding environmental, scientific, historic, aesthetic or wilderness values, any combination of those values, or ongoing or planned scientific research. The Contracting Parties to the Protocol are to subject entry into an ASPA to a permit system and a permit may only be issued in accordance with an internationally adopted management plan for that particular ASPA. 36 Finally, the Protocol also contains various other provisions that are relevant for the issue of wilderness protection, although the term 'wilderness' is not explicitly used. For instance, with the adoption of Article 2 of the Protocol, the Contracting Parties agreed to designate Antarctica as a natural reserve, devoted to peace and science.

8 8 III. THE ROLE OF WILDERNESS PROTECTION IN INTERNATIONAL DECISION-MAKING SINCE 1991 Since the adoption of the Protocol in 1991, the issue of protecting wilderness values in Antarctica has received little attention at the ATCMs. At the meetings of the Committee on Environmental Protection (CEP), a committee established under the Protocol to advise the ATCM on issues related to the implementation of the Protocol, the issue has also been discussed on a few occasions. 37 Below, three issues will be discussed in order to illustrate this limited attention for wilderness protection within the ATS: the designation of ASPAs to protect wilderness values, the impact on wilderness values in the process of environmental impact assessment and the role of wilderness protection in the Antarctic tourism debate. A. The Designation of 'Wilderness ASPAs' Practice under Annex V of the Protocol shows that areas in Antarctica are seldom designated as ASPA because of their wilderness values. There are only two management plans for ASPAs that I know of that explicitly refer to the protection of wilderness values. 38 Consequently, the following statement by Keys (1999) appears to be still valid: Preliminary inventories of existing protected areas in Antarctica that might explicitly or implicitly protect aesthetic or wilderness values shows that these values are not yet represented adequately. 39 According to Keys, setting aside such areas would compare with the process in other parts of the world where wilderness values have been protected by setting aside suitable areas of wilderness and managing them as such. 40 The question is whether this comparison is adequate; in contrast to the other continents, most of Antarctica is a wilderness, and Article 3 of the Protocol provides the general obligation to take account of the Antarctic wilderness values. This general obligation should constitute the central starting point for wilderness protection in Antarctica. The question is whether the ASPA regime should be used to provide extra protection for areas within Antarctica that represent 'outstanding' wilderness values. 41 Codling 42 discusses the question whether it is useful to distinguish different classes of wilderness values: Once wilderness status has been

9 9 given, are there factors that can be reasonably measured to enable evaluation into higher or lower classifications? She concludes that it seems prudent to proceed on the basis of common sense, and to designate a very high proportion of the Antarctic as wilderness, with no further indication of outstanding values. This view is not generally accepted. For instance, Keys differentiates between ice sheet or ice shelf without any rock features and areas potentially containing a high percentage of high quality wilderness values with good diversity and complexity of landscape and landform. 43 Also in the literature on wilderness protection outside the Antarctic, variation in wilderness quality has been recognised: Variation in wilderness quality across the landscape can be measured using explicit, repeatable and quantitative methods. 44 Personally, I would go for the practical approach. Defining various levels of wilderness quality may indeed be problematic, but a weak implementation of the general obligation to take account of Antarctica's wilderness values, as is pointed to in the discussions below, appears to justify the conclusion that the designation of large wilderness areas as ASPAs is probably the only effective instrument to protect wilderness values in Antarctica in the longer term. Therefore, as advocated by Keys, Contracting Parties to the Protocol should indeed take action to implement their obligation under Article 3(2)(g) of Annex V to the Protocol to seek to identify areas of outstanding aesthetic and wilderness value to be included in the system of ASPAs. B. Wilderness Values and Environmental Impact Assessment The Final Report of the XX th ATCM states: The Meeting reiterated that in considering potential impacts on the environment during the EIA process, the values as mentioned in Article 3, paragraph 1 of the protocol should be included. 45 Consequently, EIA must also include the (potential) impacts of a proposed activity on wilderness values. 46 However, the practice of EIA in relation to Antarctic activities shows that wilderness values receive little attention. 47 There are many examples of Initial Environmental Evaluations (IEEs) that do not assess impacts on the intrinsic value (including wilderness values) of Antarctica. These examples refer to both tourist activities 48 and activities related to scientific research. 49 Also, most Comprehensive Environmental Evaluations (CEEs) do not include substantial analyses of the potential negative impacts of the proposed

10 10 activity on wilderness values. Both the draft and the final CEE for a new research station of the Czech Republic, tabled and discussed at the meeting of the CEP in Cape Town (2004), is an example of such a CEE. There may be various reasons for this limited attention for wilderness values in EIAs. 50 For a start, certain implementing laws (e.g., the legislation of the United Kingdom and the U.S.A.) do not consider wilderness values. As far the U.S.A. is concerned, there is a fundamental reason behind this position. In contrast to most - possibly all - other Contracting Parties to the Protocol, the U.S. government does not consider Article 3 of the Protocol, including the obligation to take account of wilderness values, to be a legally binding provision: Article 3 of the Protocol is implemented through the Annexes to the Protocol and is not capable of direct implementation. Thus, it in and of itself does not impose mandatory requirements. 51 Consequently, Article 3 was not addressed in the Antarctic Science, Tourism, and Conservation Act of 1996, which amends the Antarctic Conservation Act of 1978 to implement the Protocol. 52 The 'Final Rule on Environmental Impact Assessment of non-governmental activities in Antarctica', does not address the principles either. 53 Implementing laws of various other Contracting Parties include these values in the definition of the 'Antarctic environment' or mention these values explicitly in the provisions on EIA. 54 However, persons responsible for preparing an EIA may struggle with the question what wilderness values are and how these values can be taken into account during the EIA process. At the ATCM in 1996, ASOC noted: that in the discussions on practical matters such as monitoring, liability and Environmental Impact Assessment, factors such as intrinsic, aesthetic and wilderness values were too often considered too complex. 55 This observation still appears to be valid. This may be illustrated by the discussion in the CEP (Cape Town, 2004) on the CEE for the Czech Republic research station, referred to above: New Zealand suggested that, with respect to wilderness values, there are alternatives to building a base on an island where there is no base. The Czech Republic advised that they acknowledge the impacts that the base would likely have on wilderness values, but in following the Madrid Protocol they focused on the impact on measurable factors, and contend that on this basis the likely environmental effects of the project are acceptable. They noted that the concept of wilderness values is very

11 11 philosophical and difficult to quantify objectively, and possibly of greater relevance to the consideration of tourism activities 56 This quotation appears to provide a typical illustration of the difficulty with the issue of wilderness protection: many consider the concept too vague or too subjective. Providing international guidance on this issue appears to be necessary; however, such guidance is currently lacking. For instance, the EIA guidelines adopted by the ATCM do not discuss the issue of identifying wilderness values and assessing possible impacts on these values. 57 C. Wilderness Protection and Antarctic Tourism Tourism is one of the fastest growing industries worldwide, 58 and research indicates that the more remote places are becoming increasingly popular. This is illustrated by the developments in tourism to Antarctica. Since 1990, the number of tourists that made landings in Antarctica has increased from 2,000 to 19, This trend will most likely continue. It is expected that bigger ships will enter the market and, during the last season, the so-called Fly-Sail or Fly-Cruise operations have started: tourists are taken to the Antarctic by aircraft, where they make excursions on yachts or cruising vessels. 60 The diversity of tourist activities is also increasing. Activities conducted in the Antarctic include helicopter excursions, skiing expeditions, mountain climbing, kayaking, marathons and scuba diving. It is likely that in the future the diversity of activities in Antarctica will also further increase. Many people seem to be looking for new challenges and the tourist market will continue to respond. Tourist activities are subjected to the provisions of the Protocol and non-binding tourism guidelines that were adopted in Tourism developments have been discussed at the ATCMs since the adoption of the Protocol, but certain Contracting Parties have for a long time been reluctant to take additional binding measures to manage Antarctic tourism. However, in view of the rapid developments of the Antarctic tourism sector, the question whether additional measures to manage Antarctic tourism should be adopted has become one of the priorities on the ATCM agenda since For the purpose of this contribution, the question is whether wilderness values play a role in this international debate. For a start, the Guidance for Visitors to the Antarctic, attached to Recommendation XVIII-I (1994), includes a reference to the issue of wilderness protection. Under Section E, entitled Keep Antarctica

12 12 pristine, the guidelines state: Antarctica remains relatively pristine, and has not yet been subjected to large scale human perturbations. It is the largest wilderness area on earth. Please keep it that way. Certain concrete elements of the guidelines that follow this general statement relate to environmental pollution issues, but some relate to the protection of wilderness values: Do not paint or engrave names or graffiti on rocks or buildings. These elements indicate recognition by the Consultative Parties of the need to take account of wilderness values in managing tourism in Antarctica. However, in view of the rapid developments in the Antarctic tourism sector, wilderness protection in Antarctica requires discussions on the following more fundamental questions: - Should measures be taken to limit the impacts on wilderness in view of the increasing number of tourists visiting the Antarctica? For instance, should visits to certain areas be limited and should areas that have not yet been visited be 'closed'? At present, there is no access limitation, except for the areas that have been designated as ASPA. - Should certain types of tourist activities, such as expeditions with snowmobiles, motor sport events or helicopter excursions be restricted or prohibited? Under the present regime of the Protocol, such activities are not prohibited and competent authorities may have difficulties preventing such activities under their domestic implementing legislation Should the establishment of structural facilities for tourism in Antarctica be prohibited? Although at present only few such facilities exist, there are no provisions in the Protocol or any other ATS instrument that prevent private operators or governments from establishing new hotels, visitor centres, platforms or any other facilities. It is interesting that already in 1991 some of these more fundamental issues were identified for the future ATCM agenda. Shortly after the Protocol was signed, Recommendation XVI-13 was adopted, 63 which states that an informal meeting of the Parties be convened with a view to making proposals to the XVII th Consultative Meeting on the question of a comprehensive regulation of tourist and non-governmental activities in Antarctica. In the Recommendation a number of issues are listed that require attention, including the number of tourist/carrying capacity, permanent infrastructure for tourists, concentration/dispersal of tourist activities and access to unexplored areas.

13 13 However, none of these issues was seriously discussed before Lately, there appears to be greater willingness to start a debate on more fundamental management issues that may also relate to the issue of wilderness protection. During the Antarctic Treaty Meeting of Experts on Antarctic Tourism in Norway (March 2004), New Zealand proposed to prohibit the establishment of structural facilities for tourism in Antarctica. The proposal was subject to a comprehensive debate and in the discussions the link with the obligation to protect wilderness values under the Protocol received special attention. The report of the meeting states: The Netherlands expressed the view that designation of Antarctica as a natural reserve and the obligation to protect wilderness values in the Protocol are additional arguments for supporting New Zealand s proposal and allowed States to uphold a policy distinguishing between scientific and tourist activities in regard to the establishment of permanent facilities. 64 New Zealand decided not to submit the paper at the XXVII th ATCM (Cape Town, May/June 2004), in particular because the scope of the proposal was to be defined more precisely. 65 New Zealand may decide to table a revised and more elaborated paper at the next ATCM in Stockholm, IV. CONCLUSIONS The concept of protecting wilderness values has received attention in various ATS documents since the end of the 1980s. The Protocol is one of the few international agreements that explicitly provide wilderness values with legal status. This agreement on the need to protect wilderness values in Antarctic probably has its foundation in relevant provisions in the Mining Convention (CRAMRA), some Recommendations adopted by the ATCM in 1989 and in the campaign of NGOs and some states to save Antarctica as a 'World Park' or 'Wilderness Park' (1989/1990). In view of this historical background and the exceptional status of wilderness values in international law, it is striking that since the adoption of the Protocol in 1991, the question concerning the practical consequences of protecting wilderness values has received little attention at CEP meetings or at ATCMs. ASPAs are seldom designated for the purpose of protecting wilderness values and most EIAs (including those prepared by the governments of Consultative Parties) do not consider the potential impacts of proposed activities on Antarctica s wilderness values. Some Contracting Parties to the Protocol did not even incorporate the obligation to take account of wilderness values of Article 3(1) of the Protocol in their domestic legislation. Furthermore, the issue of protecting

14 14 wilderness values has received little attention in the almost fifteen years of debate on tourism management in Antarctica. This limited attention for protecting wilderness values in Antarctica may at least in part be explained by the difficult questions that are related to wilderness protection in general. What are wilderness values? When are these values adversely affected? How should these effects be quantified in an environmental impact assessment procedure and - eventually - which effects are unacceptable? These questions are indeed complex, and objective answers are difficult to obtain. However, experiences with wilderness protection in other parts of the world indicate that the concept of protecting wilderness values may well constitute a basis for adopting concrete measures for managing human activities in wilderness areas. 66 In particular in view of the rapid increase in human activities in Antarctica, an in-depth discussion of this issue within the Antarctic Treaty System is urgently needed. * C.J. (Kees) Bastmeijer is Senior Researcher of and Lecturer in Environmental Law at the Faculty of Law, Tilburg University, the Netherlands (c.j.bastmeijer@uvt.nl). He has been a member of the Dutch delegation to the Antarctic Treaty Consultative Meetings since His dissertation, The Antarctic Environmental Protocol and Its Domestic Legal Implementation, was published by Kluwer Law International in 2003, IELP Series, Volume 65, The Hague, Ambassador Pinochet de la Barra, speech on the occasion of the 40 th anniversary of the Antarctic Treaty, XXIII th ATCM, Peru, See C. Redgwell, 'Environmental Protection in Antarctica: The 1991 Protocol', 43 International and Comparative Law Quarterly (1994), pp , p. 606, n. 42. IUCN, 'A Strategy for Antarctic Conservation: A Summary of Issues and Actions', paper prepared for the IX th Special ATCM, 19 November - 7 December 1990, Chile, p. 20, para. 62. G. Cessford, Antarctic Tourism: A Frontier for Wilderness Management, 3 International Journal of Wilderness, 3 (1997), pp B.G. Mackey, R.G. Lesslie, D.B. Lindenmayer, H.A. Nix and R.D. Incoll, 'The Role of Wilderness in Nature Protection: A Report to the Australian and World Heritage Group Environment Australia', Canberra, Australia, July See G. Aplet, J. Thomson and M. Wilbert, Indicators of Wildness: Using Attributes of the Land to Assess the Context of Wilderness, USDA Forest Service Proceedings RMRS-P-15, Vol. 2, 2000, p. 90. S. Fritz, S. Carver and L. See, New GIS Approaches to Wild Land Mapping in Europe', USDA Forest Service Proceedings RMRS-P-15, Vol.

15 , 2000, pp The authors refer to R. Nash, Wilderness and the American Mind, New Haven, Yale University Press, Mackey et al. 1998, supra note 5, also refer to Nash. See Mackey et al. 1998, supra note 5. See also J.C. Haney, M. Wilbert, D. De Grood, D.S. Lee and J. Thomson, 'Gauging the Ecological Capacity of Southern Appalachian Reserves: Does Wilderness Matter?', USDA Forest Service Proceedings RMRS-P-15, Vol.2, 2000, pp , p. 128: How large must wilderness be? Answers to this question depend on the specific region and goals outlined for a particular wilderness reserve. See J. Higham, 'Sustaining the Physical and Social Dimensions of Wilderness Tourism: The Perceptual Approach to Wilderness Management in New Zealand', 6 Journal of Sustainable Tourism, 1 (1998), pp , p. 29. Higham refers to the Wilderness Advisory Group. See also Aplet, Thomson and Wilbert 2000, supra note 6, and Mackey et al. 1998, supra note 5. See Aplet, Thomson and Wilbert 2000, supra note 6, p. 91. See Higham 1998, supra note 9, p. 29. Ibid. Ibid. Higham refers to G.W. Kearsley, 'Wilderness Tourism: A New Rush to Destruction?', inaugural lecture, 21 May 1997, University of Otago, Dunedin, New Zealand. R. Codling, Doc. XXII ATCM/IP 2 (1998), submitted by the United Kingdom, April 1998, and R. Codling, 'Wilderness and Aesthetic Values in the Antarctic', 37 Polar Record (2001) pp Codling refers to other definitions of 'wilderness', used in, for example, domestic legislation, but she also stresses that care has to be taken when reading texts from different countries, as there may well be underlying and unstated assumptions. Codling refers to the definition of 'wilderness' in the 1964 Wilderness Act of the United States, as an example of the need for caution. See, for the text of this Act, US Code, Title 16 (Conservation), Chapter 23 (National Wilderness Preservation System), < H. Keys, 'Towards Additional Protection of Antarctic Wilderness Areas', information paper submitted by New Zealand to the CEP II meeting and the XXIII th ATCM, May Codling 2001, supra note 14, and Keys, supra note 15. Article IV of the Antarctic Treaty. For a comprehensive discussion of the Antarctic Treaty System (ATS), see, amongst others, L.M. Elliott, 'International Environmental Politics, Protecting the Antarctic', St. Martin's Press, New York, 1994 and O.S. Stokke and D. Vidas (eds.), Governing the Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System, Cambridge University Press, See also the Handbook of the Antarctic Treaty System, edited by John Heap and published by the US Department of State. The 9 th edition of the

16 Handbook is electronically available at < See Art. IX(1)(f) of the Antarctic Treaty. See the following phrase of the Preamble of CRAMRA: Believing that the protection of the Antarctic environment must be a basic consideration in decisions taken on possible Antarctic mineral resource activities. See the Final Act of the IV th Special ATCM on Antarctic mineral resources, p. 201 of the Handbook of the Antarctic Treaty System, supra note 18. For a discussion of the role of the precautionary principle in regulating Antarctic tourism, see C.J. Bastmeijer and R. Roura, Regulating Antarctic Tourism and the Precautionary Principle, 98 The American Journal of International Law, (2004), pp See S.K.N. Blay, 'Current Developments, New Trends in the Protection of the Antarctic Environment: The 1991 Madrid Protocol', 86 The American Journal of International Law, (1992), pp , p See C. van der Lugt, 'An International Environmental Regime for the Antarctic: Critical Investigations', 33 Polar Record (1997), pp , p. 228: The environmental lobby was part of an external shock to the Antarctic regime. This external shock was the wave of international public concern about environmental protection, which reached a peak at the end of the 1980s and early 1990s. This wave was triggered by more specific shock events, notably the 1989 Exxon Valdez oil disaster, discoveries by scientists in 1985 and 1988 concerning the ozone layer, and the stranding of Bahia Paraiso in The World Park concept was not a new idea at the time. The idea of Antarctica as a World Park was first raised in the 1950s by Walter Nash, the then Prime Minister of New Zealand. See John Blincoe, Parliamentary debates on the New Zealand Antarctica Bill, 17 November 1994, p The idea was also raised at the second World Conference on National Parks in See D.R. Rothwell, 'A World Park for Antarctica?', Antarctic and Southern Ocean Law and Policy, Occasional Paper 3, 1990, p. 8 and P. van Heijnsbergen, 'Internationaalrechtelijke bescherming van het Antarctische milieu', Tijdschrift voor Milieu en Recht, 1983, pp , p For a description of the main characteristics of the World Park concept, see Rothwell 1990, supra note 25. P. Bogart, 'Greenpeace', in: J. Verhoeven, P. Sands and M. Bruce (eds), The Antarctic Environment and International Law, Proceedings of a symposium held in October 1990 in Brussels, Belgium, Graham & Trotman Ltd, 1992, pp L. Goldsworthy, World Park Antarctica, An Environmentalist's Vision, in: G.D. Triggs (ed.), The Antarctic Treaty Regime: Law, Environment and Resources, Cambridge University Press, Cambridge, 1987, pp , p. 90. See Redgwell 1994, supra note 2, p. 606, n. 42. See the Final Report of the XV th ATCM, 1989, paras

17 See also G. Triggs, 'A Comprehensive Environmental Regime for Antarctica', in: G.D. Triggs (ed.), The Antarctic Treaty Regime: Law, Environment and Resources, Cambridge University Press, Cambridge, 1987, pp , p According to para. 4 of the Recommendation, entry into Specially Reserved Areas be prohibited, except for the purposes authorized in the approved management plan for the area or in accordance with a permit issued by the appropriate national authority for a compelling scientific purpose which cannot be served elsewhere, and which will not adversely affect the natural features intended to be protected by the SRA. Keys 1999, supra note 15. See the 'Guide to the Preparation of Management Plans for Antarctic Specially Protected Areas', Appendix to Resolution XXII-2, adopted at the XXII nd ATCM (1998). C.J. Bastmeijer 2003, The Antarctic Environmental Protocol and Its Domestic Legal Implementation, was published by Kluwer Law International in 2003, IELP Series, Volume 65, The Hague, See Arts. 3(4), 5 and 7 of Annex V to the Protocol. The CEP is established under Art. 11 of the Protocol. Its functions are set out in Art. 12. See the Management Plan for ASPA No. 1, 'McMurdo Dry Valleys, Southern Victoria Land'. The description of values to be protected includes wilderness values: the valleys represent a nearly pristine environment largely undisturbed and uncontaminated by humans. The dramatic landscape, composed of high ridges and sweeping valleys, and contrasts of ice-free and glacier-covered terrain creates unique vistas with high aesthetic value. The 'aims and objectives' of the ASPA plan include the protection of these values: Increasing human activity and potentially conflicting interests have made it necessary to more effectively manage and coordinate activities within the Area. See also the management plan for ASPA No. 143, 'Marine Plain, Mule Peninsula, Vestfold Hills, Princess Elizabeth Land. See also Keys 1999, supra note 15. Keys refers to an analysis by Acero (1998), which showed that management plans of only two Specially Protected Areas (Beaufort Is, Pointe-Geologie Archipelago) refer to aesthetic values and neither SPAs or Sites of Special Scientific Interest referred to wilderness values. Keys 1999, supra note 15. Keys adds: In fact none of the existing formally protected areas appear large enough to protect wilderness areas. Ibid. See Arts. 3(1) and 3(2)(g) of Annex V to the Protocol. Codling 2001, supra note 14, p Keys 1999, supra note 15. See Mackey et al. 1998, supra note 5. See the Final Report of the XX th ATCM, 1996, para. 135, p. 26. See Bastmeijer 2003, supra note 35, p. 179.

18 Ibid., pp See, e.g., Doc. XX th ATCM/IP 4, March 1996, 'IEE prepared for Southern Heritage Expeditions 1995/96, Antarctic Cruise Programme', and Doc. XX th ATCM/IP 5, March 1996, 'IEE prepared for a mountaineering expedition (Vinson Massif and Mount Tyree)', both submitted by New Zealand. See, e.g., IEE for the decision to install a new, 16-beam imaging riometer within the boundaries of the Arrival Heights SSSI No. 2, National Science Foundation, U.S.A., December For examples of IEEs that consider wilderness values, see Doc. XII SATCM/IP20, IEE for the Southern Ocean Expedition of ASOC, September 2000; Doc. XXIII ATCM/IP 79, corr. 2, IEE for the 'Compacted Snow Runway at the Lasserman Hills', Russia, May 2000, and the IEE for the construction of 134 square meters of support facilities for a long-range ecological research project in the Dry Valleys of Antarctica (USA, 1993), available at < January For an example of a draft CEE that considers the impacts on wilderness values, see Doc. ATCM XXVI/wp 01, 'Water Sampling of the Subglacial Lake Vostok', draft CEE (revised), Russia, 'Draft EIS for the Proposed Rule on EIA of Nongovernmental Activities in Antarctica', 2001, n. 16 on p. vii of the summary. See also pp. 4-17, 2 nd para., of the draft EIS. For a discussion of this U.S. position on the status of Article 3 in relation to the right of international travel, see W. Polk, 'Welcome to the Hotel Antarctica: The EPA s Interim Rule on Environmental Impact Assessment of Tourism in Antarctica', Emory International Law Review, Fall 1998, available at: <http//: pp The Antarctic Science, Tourism, and Conservation Act of 1996, Public Law , 2 October 1996, 110 Stat (amending the Antarctic Conservation Act of 1978; Title 16 (Conservation) of the U.S. Code, ss et seq.). See Doc. XXII ATCM/IP 73, 'Report of the United States of America with respect to Article 13(1) of the Protocol on Environmental Protection tot he Antarctic Treaty)', May See also C.C. Joyner, 'The United States: Legislation and Practice in Implementing the Protocol', in: D. Vidas (ed.), Implementing the Environmental Protection Regime for the Antarctic, Kluwer Academic Publishers, Dordrecht, 2000, pp , p. 421: In the view of the US administration, the principles of Article 3 reflect a statement of US policy rather than a set of integral legal obligations in the legislation. Although these environmental principles will be considered in the planning of US Antarctic activities, they will not be construed as legally binding obligations. See, e.g., S. 7(1)(c) of the New Zealand Antarctica (Environmental Protection) Act 1994, Public- No. 119, Wellington, New Zealand.

19 Final Report of the XX th ATCM, Utrecht, the Netherlands, 29 April - 10 May 1996, para. 116, p. 23. Report of the VII th meeting of the Committee for Environmental Protection (CEP), Cape Town, May 2004, paras. 62 and 64. Guidelines on Environmental Impact Assessment in Antarctica, available at the website of the CEP, < (Document Archive, EIA Documents). Particularly nature-based tourism is growing. See, e.g., the Québec Declaration on Ecotourism, adopted at the World Ecotourism Summit, Québec Canada, May According to this declaration, there is a growing interest of people in travelling to natural areas, both on land and sea. See also P.F.J. Eagles, 'International Trends in Park Tourism: A Macro View of Park Tourism Finance', paper presented at the World Parks Congress, Durban, South Africa, 8-19 September 2003, < gles_v1.pdf>. Bastmeijer and Roura 2004, supra note 22, pp See the website of Antarctica XXI, < For discussions on Antarctic tourism management, see, among others, M.G. Richardson, 'Regulating Tourism in the Antarctic: Issues of Environment and Jurisdiction', in: Vidas (ed.) 2000, supra note 53, pp ; and Bastmeijer and Roura 2004, supra note 22. See also Doc. XXV ATCM/IP 102, (overview of 'ATCM Papers, Discussions, and Recommendations relating to tourism and non-governmental activities'), submitted by ASOC at the XXV th ATCM, C.J. Bastmeijer, 'Tourism in Antarctica: Increasing diversity and the legal criteria for authorization', New Zealand Journal of Environmental Law, issue 2003, pp Recommendation XVI-13, Final Report of the XVI th ATCM, 1991, pp Report of the Antarctic Treaty Meeting of Experts on Antarctic Tourism, Tromsø, Norway, March 2004, para. 39. The Report was submitted to the XXVII th ATCM as a working paper (Doc. XXVII ATCM/WP 004). Personal communication with the representative of New Zealand at the ATCM, Cape Town, June Examples of domestic laws that explicitly aim to protect wilderness values include the Australian Environment Protection and Biodiversity Conservation Act 1999, available at < the U.S. Wilderness Act 1964, an Act to establish a National Wilderness Preservation System for the permanent good of the whole people, and for other purposes, Public Law , 88 th Congress, S. 4, 3 September 1964, available through < and the Act of 15 June 2001 No. 79 relating to the protection of the environment in Svalbard (Svalbard Environmental Protection Act), Norway; under the Act, various regulations have been

20 20 adopted, including regulations relevant to tourist activities; available at < See also < The nature reserves were established to protect large tracts of undisturbed arctic wilderness, where all the natural, ecological processes can proceed as much as possible unhindered by man. See also Keys 1999, supra note 15: Given the lack of experience within the Antarctic Treaty System, there is strong justification for learning from and using relevant international experience with the World Heritage Convention. A special occasion for international and interdisciplinary debate and exchange of information and experience in relation to wilderness protection is the 8 th World Wilderness Congress, to be held in October 2005, see <