Australia (RPS-11, 1976) suggested that the present Agreed Measures were not sufficient to protect the environment from the effects of resource exploitation The USSR also expressed

181

SCAR’s report/EAMREA

The Paris meeting considered SCAR’s initial response to recommendation VIII-1470 and asked SCAR to undertake a more detailed assessment o f the environmental impact o f mineral resource activity.71

SCAR’s report took the inevitability of environmental impact as its starting point and explored "in a preliminary way the possible effects on the ecosystem o f ... one or more o f the extractive industries in Antarctica" (SCAR/EAMREA 1979:2-3). This report provided the consultative parties with an assessment o f localised and widespread environmental impacts o f both on and off-shore exploitation, and in terms o f short and long term effects. Local impacts, it suggested, might be severe and irreversible. However, because each o f the areas involved would be small in relation to the total area o f coastline and exposed areas it suggested that the overall effects might not be significant in terms o f the Antarctic as a whole. Large-scale effects were thought likely to be more serious than the sum total o f local effects. SCAR’s report makes no judgements, however, about the desirability or otherwise o f minerals activity.

ATCM-IX, 197772

Discussion at this meeting signalled the intention o f the consultative parties to begin a more concerted process towards an agreement. In a lengthy recommendation (IX -1) the consultative parties endorsed the Paris principles as the basis for a minerals regime. They added a requirement that the provisions and principles o f article IV o f the Antarctic Treaty (on sovereignty) should not be affected. This recommendation recalled again the general principles o f the Antarctic Treaty which were applicable to the minerals issue.73

70. The SCAR secretariat prepared a short paper entitled "Antarctic Resources - effects of mineral exploitation”. Appended to this was a statement by the SCAR Working Group on Geology entitled "Mineral occurrences and mineral exploration in Antarctica".

71. SCAR established a Working Group of Specialists on the Environmental Impact Assessment of Mineral Resource Exploration and Exploitation in Antarctica (EAMREA) and its report was distributed to consultative governments in 1977. This was not a formal environmental impact assessment It was, rather, a general analysis of how the environment might be affected generally if minerals activity were to proceed.

72. Reports from the Paris special preparatory meeting and EAMREA were available to delegations at ATCM-IX in 1977. This meeting established a working party on the legal and political aspects of Antarctic minerals resources. This working party established its own drafting committee which met twice before submitting a draft recommendation. With the exception of three proposed paragraphs (content unknown, although the content of at least one paragraph was apparently also being addressed by the working party on marine living resources) on which agreement had not been reached). Two delegations objected to the paragraphs (see ANT/IX/85,

1977).

73. These included the consultative parties’ special responsibilities to ensure that international discord did not result from any activities (including mineral activities) in the Antarctic or result in danger to the Antarctic environment, disruption to scientific investigation or be otherwise contrary to the principles or purposes of the Antarctic Treaty.

These general principles established the rationale and justification for the operative paragraphs o f the recommendation.74 The consultative parties are also to

urge their nationals and other States to refrain from all exploration and exploitation o f Antarctic mineral resources while making progress towards the timely adoption o f an agreed regime ... They will thus endeavour to ensure that pending the timely adoption o f agreed solutions pertaining to exploration and exploitation o f mineral resources no activity shall be conducted to explore or exploit such resources.

This paragraph is generally taken to enact the principle o f voluntary restraint which established a conditional moratorium.75 Triggs argues (1984a:535) that this article is "vague and unclear [with] no mandatory injunction". It is not clear what the Parties could do to prevent non-Treaty states from undertaking minerals activity. Further, even with respect to their own nationals, the consultative parties are merely urged rather than

required to enforce compliance (Bush 1982:347). However the consultative parties

considered it to be an effective constraint upon their own activity.

A Group o f Experts convened at this meeting to address technical and environmental aspects o f mineral resource exploitation76 concluded that "discussion o f the technical aspects ... showed that the question o f the impact o f these activities on the environment has been studied inadequately and that there is an urgent need for a further examination of this problem" (cited in Handbook 1989:3344).77 They suggested that more knowledge was needed about the Antarctic environment and geology so that adequate protection measures could be established in the event of minerals activity going ahead.

74. The recommendation referred to the SCAR/EAMREA report, the report of the Group of Experts presented at that 9th consultative meeting, and the Paris special preparatory meeting.

75. Bush (1982:347) suggests that it applies to both commercial and non-commercial enterprises. 76. This group had before it a lengthy study on a framework for assessing the environmental impact

of possible Antarctic minerals development (Elliot 1977) conducted by the Institute of Polar Studies at Ohio State University for the US State Department Elliot argued that all resource exploitation would have an impact on the environment but that the scale of the impact would depend on the nature of the resource being extracted, the degree of processing undertaken and the location of the activity. This report observed again that "there are no known exploitable mineral deposits" (Elliot 1977:111-1). As with other reports it identified gaps in the data. He concluded that mineral resource activity could result in severe local impacts on both the continental and marine environments, with possibly irreversible changes to the continental environment (Elliot 1977:xiv-xv). "There is no question that any resource exploitation will cause severe, and in many cases permanent, local impact on the environment because of the extremely slow rate of recovery that can be expected" (Elliot 1977: VII-I). It suggested that "even the most regulated activity will still be attended by some risks" (Elliot 1977:xx).

77. They suggested that there "would need to be a system providing immediate warning of an accident leading to significant pollution and monitoring of the dispersion and effects of the pollutants released, and of the effectiveness of any measures for containment or recovery. This would be particularly difficult under Antarctic conditions" (Handbook 1987:3346).

183 This report was stronger in its warning of environmental damage and the unacceptability o f such risks than SCAR’s EAMREA report.78

The consultative parties recognised the inadequacy o f scientific data on harmful environmental impacts and noted that unregulated minerals activities could adversely effect the environment. Recommendation IX -1 called for, inter alia, further study on the environmental implications o f mineral resource activities (and suggested convening yet another group o f experts on this topic).

However, in spite o f recognising this lack o f knowledge (which had been noted by all the scientific and technical reports so far) and the difficulties this could bring to the task o f monitoring environmental impact of minerals activity, the consultative parties continued to press ahead in their negotiations.

Two more meetings o f experts were convened prior to ATCM-X. In March 1979 the Rockefeller Foundation sponsored a workshop at the Bellagio Centre in Italy on oil and other minerals in the Antarctic with special attention to the environmental implications o f possible mineral exploration and exploitation.79 In conjunction with the preparatory meeting for ATCM-X and in accordance with recommendation IX -1 a Group of Ecological, Technological and Other Related Experts on Minerals Exploration and Exploitation in Antarctica, met in Washington in June 1979.80

78. There are references throughout the report to the lack of knowledge on many aspects likely to be important in the event of minerals activity. For example, there was insufficient knowledge to permit a reliable estimation of the impact of oil spills on the ecosystem. The report also drew attention to the need for a sufficient environmental data base. Several members of the SCAR group of experts (EAMREA) contributed to this Working Group.

79. The report erf this meeting, known as the Bellagio Report, was published by SCAR (Holdgate and Tinker 1979). It noted that the unique scientific nature of Antarctica, as well as its unique political nature, represented "major assets which might be affected by mineral development" (Holdgate and Tinker 1979:5). This meeting brought together experts from the SCAR/EAMREA group and the Group of Experts from ATCM-IX (1977) as well as other participants.

80. This working group was charged with developing scientific programs aimed at improving predictions of the impact of exploration and exploitation techniques, and developing measures for preventing damage to the environment and for its rehabilitation. The report of that Group of Experts suggested that "sharply focussed programs primarily devoted to the marine environment" were called for and listed several areas of research on which to focus (see Final Report 1970:103). It was appended to the final report of ATCM X. A preparatory meeting on the legal and political aspects of minerals issues was also held.

ATCMX, 197981

Most of the opening statements at ATCM-X referred to the challenges presented by the question of mineral resource activity.82 Themes that had been articulated at earlier meetings were raised again: the need to protect the Antarctic environment and avoid environmentally unacceptable activities, to deal with the question of jurisdiction and differences between consultative parties on territorial sovereignty, and the need to establish regulatory mechanisms.

Several of the claimants continued to argue that any regime should guarantee protection of their interests and an appropriate economic return. Argentina, stressing the "political realities" of the Antarctic, advised delegates that it could not "give its sovereign consent to any agreement which [did] not take [these realities] into consideration" (Final Report 1979:70). The NZ delegation again suggested that a regime should ensure that some benefits were offered to the international community at large (Final Report 1979:78).

Recommendation X -l moved the Parties further towards the formal negotiation of a minerals convention. It elaborated the principles (agreed to at earlier meetings) upon which it should be based and the types of rules and procedures that should be included.83 The Parties agreed that a minerals agreement should include means for assessing the possible impact of mineral resource activities, determining whether such activities would be acceptable, and elaborating procedures to govern the ecological, technological, political, legal and economic aspects of mineral activities. Rules relating to the protection of the environment and rules for ensuring compliance were also to be devised.84 The issue was put onto the agenda of ATCM-XI with the suggestion that a special meeting "to consider a regime" be held prior to this.

81. ATCM X also adopted a recommendation on hydrocarbon contamination of the Antarctic