Counterplans General Stuff

Antarctic Treaty System

ATS fails

The Antarctic treaty lacks the jurisdictional authority to be effective – tourism proves

Christensen et al 11 – Aurora, Daniel Faber, Jessie Herbert, and Tim Jones – all writing for the University of Cantebury in New Zealand (“Tourism in Antarctica: a numbers game,” http://www.anta.canterbury.ac.nz/documents/PCAS_13/ANTA601TourismSyndicateReport.pdf)BC

Currently effective control over tourist and non-governmental expeditions to the Antarctic has not been established. It has been suggested that this stems from the Antarctic Treaty Consultative Parties’ hortatory approach and its limited ability to apply sanctions. When tourism issues extend beyond the scope of the Protocol, for example when dealing with issues such as liability, insurance, jurisdiction, third party activities, and enforcement, a vacuum of space in regulation is observed. There is a continuing failure to resolve the matter25. There is no agreed approach between the Consultative Parties as to the exercise of jurisdiction over tourism. However there has been progress with regard to providing guidelines for tour operators and tourists since Recommendation XVIII-1 was adopted in 1994. Nevertheless because of the non-mandatory nature and the unique political and jurisdictional basis, there are significant difficulties in achieving effective regulation. As a result, the administrative capacity of the Antarctic Treaty System with regard to tourism management continues to be seriously challenged26. Enforcement Currently the enforcement regime of the Antarctic Treaty is considered weak, as it lacks punitive measures in cases of infringement. For example, in the Protocol, the Environmental Protection Committee has been criticized as lacking real authority to enforce compliance. It has been suggested that this weakness in the ATS is due to the lack of clear jurisdictional authority. After all who is in charge and responsible in Antarctica, when the guidelines and rules are broken? For laws to be successful in achieving their intended objectives a clearly defined enforcement mechanism must be established; it must be able to do what it is intended to do and have the requisite legal power to actually enforce sanctions. It is the same with respect to the Antarctic Treaty System. In CCAMLR and the Protocol, the mechanism of sanction is that of ‘observation and inspection’ with no uniform ability to sanction worldwide for breaches found resulting from any observations and inspections27. It seems essential that a solution on this matter is reached. A robust liability regime for infringements needs to be introduced to the Antarctic Treaty System. Liability regimes have been discussed and talked about for nearly twenty years at Antarctic Treaty meetings. And to date there has been no agreement on how and when this should take place, or in fact what sanctions might be applied28.

The ATS fails – whaling, territory claims, and Antarctic security

Triggs 6 – President of the Australian Human Rights Commission (Gillian, “The Antarctic Treaty System: A Model of Legal Creativity and Cooperation,” Sydney Law School at the University of Sydney, http://www.atsummit50.org/media/book-8.pdf)BC


TWENTY-FIRST CENTURY CHALLENGES TO THE ANTARCTIC TREATY SYSTEM Successful though the ATS has been over its 50 year evolution, the twenty-first century poses some new, sensitive, and complex challenges to the authority of the regime. Collaboration with Other International Organisations The Japanese Whaling case exposes the imperative that the ATS should interact collaboratively with other international organisations that have interests in the Southern Ocean and Antarctica. The Antarctic Treaty itself does not deal with whales, the rationale being that the International Convention for the Regulation of Whaling (ICRW), established 10 years earlier in 1949, was the international institution specifically empowered to regulate whales. The International Whaling Commission has not, however, been able to take effective action against Japan for its “scientific whaling” in the Southern Ocean. This failure has arguably stimulated litigation by the Humane Society International to enforce national legislation, with all the attendant risks discussed above. It may now be time to reconsider the traditional position taken within the ATS that it should not attempt to regulate whaling in the Southern Ocean. The Madrid Protocol is, for example, sufficiently widely drafted to include marine mammals. Article 2 provides that parties are committed to protect the “dependent and associated ecosystems” of the Antarctic.33 Such language appears to include migratory whales. It is also relevant that the environmental principles of the protocol extend to activities in the Antarctic Treaty area, including whaling by ships. Article 3 of the protocol requires that all activities in the area are “planned and conducted so as to avoid . . . further jeopardy to endangered or threatened species.”34 It is not easy, however, to harmonise obligations under the protocol with other, apparently contrary, provisions within the ATS. Article VI of CCAMLR, for example, provides that the convention is not to “derogate from the rights and obligations . . . under the ICRW.” Reports commissioned by the Paris, Sydney, and Canberra Working Groups on Whaling have attempted to resolve such treaty conflicts through traditional legal techniques of interpretation. These technical legal arguments are not entirely convincing in their efforts to harmonise international agreements that grew like Topsy to provide solutions to contemporary issues. The agreements within the ATS and other treaties with interests in the Southern Ocean are jostling for space with each other as activities there increase. Rationalisation and good faith collaboration are now required. Beyond the specific issue of whaling in the Southern Ocean is the wider question of overlapping mandates under other international agreements and institutions with growing interests in Antarctica. The parties to the Madrid Protocol are obliged to “consult and cooperate” with parties to other international institutions.35 Such bodies could include the UN International Seabed Authority, the International Maritime Organisation, the International Whaling Commission, the UN Continental Shelf Commission, the UN Food and Agriculture Organisation, the World Health Organisation, the UN Environment Programme, the International Hydrographic Organisation, the Antarctic and Southern Ocean Coalition, the International Union for Conservation of Nature, the International Association of Antarctica Tour Operators, and regional fisheries organisations. All these bodies may be invited to ATCM and meetings of CCAMLR. There is evidence of some commendable collaboration emerging, including that among the East Antarctic coastal states (South Africa, France, New Zealand, and Australia) in response to unreported fishing of Patagonian tooth fish and the South Indian Ocean fishing arrangement. It is hoped that greater efforts to act through strategic alliances and to develop thematic regional cooperation will develop in the future. Antarctic Continental Shelf Delimitation For the claimant states, their Antarctic territory automatically brings with it sovereign rights to the resources of the continental shelf under the 1982 UN Law of the Sea Convention. The importance of the continental shelf lies in its significant oil resources. The U.S. Energy Information Administration reported in 2000 that the Weddell and Ross seas hold 50 billion barrels of oil, similar to Alaska’s known reserves.36 Before long, it might be expected that the UN Continental Shelf Commission will be asked to consider the limits of an Antarctic continental shelf claim. Any such request will, in turn, beg the question of the validity of the relevant claim to territorial sovereignty. A request for recognition of an Antarctic continental shelf will, moreover, pose yet another unanswered question of interpretation of Article IV, paragraph 2, prohibiting any “new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica.” It is strongly arguable that delineation of the limits of the continental shelf is not a new “claim” for the purposes of Article IV, paragraph 2, because delineation is merely an assertion of sovereign rights that derive from the existing territorial claim. The commission is more likely to challenge the validity of the territorial claim itself, rather than the rights that arise from that claim. Although Australia has submitted the delimitation of its Antarctic continental shelf to the commission, it has asked that the commission refrain from making any ruling on the issue at present. In this way, the legal question of interpretation has been avoided for the time being. It might be observed, however, that not all states have adopted the Australian approach. New Zealand and the United Kingdom have, for example, relied on a more “minimalist” approach by making a partial submission only, reserving their right to submit their delineations for an extended continental shelf at some time in the future, if they decide to do so. Threats to Security within the Antarctic Region As Antarctica and the Southern Ocean are vulnerable to increasing threats from terrorism and conflict, we may need to view the effectiveness of the ATS through the prism of wider concerns for security. There have been, for example, several maritime incidents that may be a harbinger of future threats to the Antarctic area. Whereas in the past it might validly be claimed that the Antarctic Treaty system was effective in confining the Falklands conflict to the subantarctic region, the terrorist attack on the Rainbow Warrior in New Zealand, the fire on the Nissin Maru of the Japanese fleet in February 2007, and recent activities by the Sea Shepherd Conservation Society in January 2008 in respect to Japanese whaling suggest that the region might well be a theatre of conflict in the future. Threats are also posed to human security within the Southern Ocean (though not yet within the region of Antarctica) by piracy and by rising numbers of asylum seekers, posing questions about the efficacy of search and rescue capacities. It is, moreover, likely that global concerns for security from conflict will expand to wider concerns for energy, food, and the security of economic opportunities in the Antarctic. Tourism poses a risk to the environment and is also a human risk in the event of a serious shipping incident in which the many thousands of tourists on a single vessel are likely to strain rescue operations. Commercial risks to sustainable fishing are also likely in the future, with unreported fishing in the Southern Ocean of Patagonian tooth fish and southern bluefin tuna. Further, largely untapped, opportunities for commercial gain lie in clean water and bioprospecting. Resource security is thus a potential challenge to the current mining moratorium.

US not key

US not key

Augustine et al. 12 - U.S. aerospace businessman who served as Under Secretary of the Army from 1975 to 1977, and currently serves as chairman of the Review of United States Human Space Flight Plans Committee (July 2012, Norman R., “More and Better Science in Antarctica Through Increased Logistical Effectiveness,” White House Office of Science and Technology Policy, National Science Foundation, http://www.nsf.gov/geo/plr/usap_special_review/usap_brp/rpt/antarctica_07232012.pdf) mj

Many nations around the world are currently making significant investments to expand their activities in Antarctica (Figure 8). For example, South Korea is in the process of establishing a new station in the Terra Nova Bay region of the Ross Sea. Germany replaced an existing station in 2009. At approximately the same time, the United Kingdom replaced its Halley Station. Russia has stated its intent to launch five new polar research ships and reconstruct five research stations and three seasonal bases. Argentina recently announced plans to construct a new scientific base to replace one that was partially destroyed by fire. Belgium’s Princess Elizabeth Station, now in summer operation, is said to be Antarctica’s first zeroemission base. Chile’s plans include developing Punta Arenas as a gateway to Antarctica for research, tourism, and mineral research traffic. China is proceeding with upgrades to three existing sites as well as building the new Kunlun Station and constructing several telescopes at Dome A, the highest site on the Antarctic Plateau (13,428 feet/4093 meters). India is preparing to occupy its third station, and other nations are undertaking projects to expand their presence and scientific activity in the Antarctic.

Foreign icebreakers solve

O’Rourke 6/05 – specialist in naval affairs for the Congressional Research Service of the Library of Congress for three decades (June 2014, Ronald, “Coast Guard Polar Icebreaker Modernization: Background and Issues for Congress,” http://fas.org/sgp/crs/weapons/RL34391.pdf) mj

Two years ago, acting on advice from the Coast Guard that a second icebreaker should be brought in to assist the Polar Star, NSF chartered the Russian icebreaker Krasin for the purpose. The Coast Guard’s Polar Sea was undergoing repairs and no other U.S. icebreakers other than Healy were available – but Healy was needed in the Arctic. Last year the Polar Sea was undergoing extensive repair. NSF again chartered the Russian icebreaker Krasin and held Polar Star in reserve (and eventually brought her in to assist in the final stages of the break-in). The situation for the coming year is again similar. Polar Sea is ready for duty but the Coast Guard has recommended that a backup vessel be employed. NSF has therefore nearly concluded a charter for the Swedish icebreaker, Oden.

The USCG has performed its icebreaking mission in Antarctica with distinction for many decades, but with increasing difficulty in recent years. Its two Polar Class icebreakers are nearing the end of their estimated lifetime and are becoming increasingly difficult and costly to keep in service. The need to charter the Krasin and Oden has already been mentioned. Given this state of affairs, NSF has given careful consideration to how best to meet the needs of the scientific community over the long-term.

Status quo solves icebreakers – foreign arrangements increase science research

Bement 6 - American engineer and scientist, former Director of the National Science Foundation, and previous Director of the National Institute of Standards and Technology (September 2006, Arden L, “Testimony of Dr. Arden L. Bement, Jr., Director National Science Foundation Before the House Committee on Transportation and Infrastructure Subcommittee on Coast Guard and Maritime Transportation,” https://www.nsf.gov/geo/plr/opp_advisory/briefings/oct2006/bement_house_testimony_written_final.pdf) mj

As noted above, NSF has met the research community’s need for research platforms in the Southern Ocean through long-term contracts with private firms for ice-strengthened ships and icebreakers and through partnerships that provide access to other country’s research vessels. For resupply of McMurdo and South Pole Stations, NSF has depended until recently entirely on U.S. Coast Guard icebreakers secured through reimbursement arrangements, and on chartered Military Sealift Command capabilities. More recently, NSF has had to arrange for charted vessels to complement USCG capabilities. In the Arctic, NSF has relied on the Coast Guard’s Healy and on partnerships with other countries. Once constructed and commissioned, the Arctic Regional Research Vessel (ARRV) will significantly increase the capacity for ship-based research in the coastal Arctic regions and where ice cover is not too deep. A variety of models have and are being used by the U.S and other countries for meeting polar icebreaker needs. The U.S. Coast Guard and the Chilean and Argentinean Navies operate their icebreakers using military personnel. Some countries build their ships to meet military specifications and others do not. The German research icebreaker, the Polarstern, is owned by the government but operated by a private contractor. The Swedish government’s operational arrangements for the Oden are similar to the German model. Both the Oden and the Polarstern are able to operate more than 300 days annually as a consequence of ship design and mode of operation. The Arctic Regional Research Vessel (ARRV) will be operated by civilian crews under contract to the University-National Oceanographic Laboratory Systems (UNOLS). As noted above, NSF employs a contractor to operate and maintain the privately-owned Laurence M. Gould and Nathanial B. Palmer. The ships were built under a long-term lease agreement between the ship-owners and the Federal government, such that the construction costs are partially amortized over the duration of the lease (with the ship reverting to the owner at the government’s option at the end of the lease). These ships also operate more than 300 days annually.

Foreign icebreakers solve – Coast Guard options are too expensive otherwise

O’Rourke 6/05 – specialist in naval affairs for the Congressional Research Service of the Library of Congress for three decades (June 2014, Ronald, “Coast Guard Polar Icebreaker Modernization: Background and Issues for Congress,” http://fas.org/sgp/crs/weapons/RL34391.pdf) mj

Regarding the first factor above, the NSF states that although Coast Guard polar icebreakers are very capable, the NSF is mandated by presidential directive to perform its research activities in the most cost-effective way possible, and that it can be more expensive for NSF to support its research activities with Coast Guard polar icebreakers than with charters of icebreakers crewed by contractor personnel. Although Coast Guard polar icebreakers in the past have performed the annual McMurdo break-in mission, the NSF in certain recent years has chartered Russian and Swedish contractor-operated icebreakers to perform the mission (with a Coast Guard polar icebreaker standing ready to assist if needed). The NSF has also noted that Healy, though very capable in supporting Arctic research, operates at sea for about 200 days a year, as opposed to about 300 days a year for foreign contractor-operated polar icebreakers. The Coast Guard states that

Beginning with Deep Freeze 2008, NSF opted to perform the McMurdo break-in with the Swedish icebreaker ODEN under a five-year contract with the Swedish government. In July 2011, the Government of Sweden cancelled the contract, forcing NSF to contract with Murmansk Shipping Company for use of the Russian icebreaker VLADIMIR IGNATYUK. NSF awarded a base contract of one year (for Deep Freeze 2012) and two option years, pending POLAR STAR’s return to service. NSF exercised one option year for Deep Freeze 2013, and requested POLAR STAR for Deep Freeze 2014. NSF currently intends to use POLAR STAR for 2015 and for the foreseeable future.44

Foreign icebreakers solve – US not key

NSF 12 - independent U.S. government agency responsible for promoting science and engineering through research programs and education projects (July 2012, National Science Foundation, “NSF Charters Icebreaker to Support U.S.,” http://www.nsf.gov/news/news_summ.jsp?cntn_id=124738) mj

The National Science Foundation (NSF) announced today that it will exercise an option for chartering the diesel icebreaker Vladimir Ignatyuk from Russia's Murmansk Shipping Company. The Ignatyuk will again create a channel through the sea ice of Antarctica's McMurdo Sound needed to resupply and refuel U.S. research stations during the upcoming 2012 to 2013 season. An icebreaker is essential to create the channel and to safely escort a fuel tanker and cargo ship in and out of McMurdo Station, NSF's logistics hub on the southernmost continent. Amundsen-Scott South Pole Station at the geographic South Pole as well as other field sites are also dependent on the same annual delivery of supplies and fuel to McMurdo. "We are very pleased to announce this continuation of our agreement with the Murmansk Shipping Company," said Kelly K. Falkner, who heads NSF's Office of Polar Programs, which manages the United States Antarctic Program. "Our recent discussions with them about deploying the Ignatyuk this season have come to a successful conclusion and we are fully confident that the ship will allow us to complete this vital mission." In August of 2011, NSF signed a one-year fixed contract, with options for renewal, with the Murmansk Shipping Company. The contract provides for using the Canadian-built icebreaker, Vladimir Ignatyuk, to complete the channel-breaking and escort duties. The Ignatyuk successfully completed the McMurdo Sound break-in and escort in February of 2012. Officials with the Murmansk Shipping Company had subsequently expressed concerns about supporting the mission in 2013. Officials at NSF and the ship's operators are now satisfied that a series of technical discussions have addressed the company's concerns, and arrangements are in place such that the Ignatyuk should be able once again to successfully complete the icebreaking portion of resupply and refueling mission.