10th IUCN Academy of Environmental Law Colloquium

10th IUCN Academy of Environmental Law Colloquium
More than 250 environmental experts from 35 countries gather at the University of Maryland for the 10th Colloquium of the IUCN Academy of Environmental Law in July 2012

March 2013 Environmental Field Trip to Israel

March 2013 Environmental Field Trip to Israel
Maryland students vist Israel's first solar power plant in the Negev desert as part of a spring break field trip to study environmental issues in the Middle East

Workshop with All China Environment Federation

Workshop with All China Environment Federation
Participants in March 12 Workshop with All China Environment Federation in Beijing

Winners of Jordanian National Moot Court Competition

Winners of Jordanian National Moot Court Competition
Jordanian Justice Minister Aymen Odah presents trophy to Noura Saleh & Niveen Abdel Rahman from Al Al Bait University along with US AID Mission Director Jay Knott & ABA's Maha Shomali

Sunday, February 8, 2015

Return from Antarctica, Environmental Law in "the Last Place on Earth" (by Bob Percival)

As noted in my last blog post more than a month and a half ago, I spent the month of January in Antarctica, South Georgia, the Falklands and Easter Island.  This trip of a lifetime started with a three-week National Geographic expedition commemorating the 100th anniversary of British explorer Ernest Shackleton’s famous voyage on the Endurance.  My wife and I were onboard the National Geographic Orion, making its maiden voyage to Antarctica.  We left D.C. on December 26 and flew to Buenos Aires where we met the other participants in the expedition on December 27.  

On December 28 the group took a charter flight to Ushaia, Argentina, the southernmost city in South America where my wife and I had spent part of our honeymoon 30 years ago.  In Ushaia we boarded the National Geographic Orion, making its maiden voyage to Antarctica.  We sailed from Ushaia through the Beagle Channel, across the Drake Passage, to the South Shetland Islands.  From there we sailed to the Antarctic Peninsula.  We were blessed with spectacular weather and unusually calm seas that enabled us to make landings in places where tourists often are unable to land.

Because it is summer in Antarctica, on New Year’s Eve the sun set at 1AM and rose and 2AM.  On New Year’s Day we took zodiacs to observe seals and penguins on ice floes.  National Geographic surprised everyone by setting up a mimosa bar on one of the ice floes where we enjoyed an impromptu party.  We were able to go kayaking twice in Antarctic waters and to go hiking on the Antarctic Peninsula.  
From the Antarctic Peninsula we crossed over to the Weddell Sea where the captain wedged the ship into pack ice to create a rare dry landing.  Thirteen National Geographic naturalists and photographers were aboard the ship, including two divers who used underwater cameras to film the amazingly rich sealife below the surface.  We would watch videos of their dives in the evenings prior to dinner.
From the Weddell Sea we retraced Shackleton’s incredible voyage in a lifeboat to Elephant Island where we were able to land both at Cape Valentine and Point Wild, the two places Shackleton had landed.  We then sailed to South Georgia Island where we repeated the last phase of Shackleton’s journey by hiking from Fortuna Bay over a mountain pass to Stromness where Shackleton met up with personnel from a whaling station before organizing a rescue mission for the other members of his expedition who had been left behind on Point Wild.
After viewing incredible wildlife in several locations on South Georgia, we visited Grtviken, the only town on the island where 10 year-round residents reside.  On a subsequent trip to Antarctica, Shackleton had a heart attack in Grytviken Harbour and died and he is buried in the cemetery there.  National Geographic brought along a case of scotch that is a replica of the scotch Shackleton took on the Endurance expedition.  We all drank a toast and poured a wee dram of the whiskey over his grave.
From South Georgia we sailed to the Falkland Islands where we visited Port Stanley, Steeple Jason Island, Carcass Island, and New Island before returning to Ushaia.  We then took a charter jet to Buenos Aires where we caught a flight to Santiago, Chile.  From Santaigo we flew to Easter Island which I had visited by boat 42 years ago prior to starting law school.  After three days touring the island with its top archaeologist, we returned to Santiago where we spent two days exploring the places we visited when we adopted our daughter from there 26 years ago.  
I will be posting photos of the trip online soon.  I became completely fascinated by the unique legal regime that protects the Antarctic environment.  Last Friday I posted about it on the American College of Environmental Lawyers (ACOEL) blog.  Because the ACOEL blog is only open to members, I’ve reproduced the post below.  On Friday I will be giving a talk at the Freie University of Berlin comparing the unique legal regime that protects Antarctica’s environment with the one applicable to Arctic.
Environmental Law in “the Last Place on Earth”
by Robert V. Percival 

A century ago expeditions to Antarctica, “the last unexplored place on earth,” made Amundsen, Scott, Mawson, and Shackleton household names. Today Antarctica’s pristine environment attracts tourists to what is the coldest, windiest, and highest continent on earth.  Despite its harsh climate and the massive ice sheet that covers nearly all its land mass, Antarctica is teeming with life, as I discovered on a recent National Geographic expedition there celebrating the centenary of Shackleton’s famous voyage.  The trip gave me an opportunity to explore with long-time specialists the unique legal regime that protects the Antarctic environment.

Global scientific cooperation during the International Geophysical Year (IGY) of 1957-58 sparked interest in negotiating what became the Antarctic Treaty.  Signed in 1959 by the 12 countries that participated in the IGY (Argentina, Australia, Belgium, Chile, France, Great Britain, Japan, New Zealand, Norway, South Africa, the Soviet Union, and the United States), the treaty entered into force on June 23, 1961.  The treaty, which applies to the area south of 60 degrees south latitude, suspends territorial sovereignty claims made by seven countries. It protects freedom of scientific investigation while subjecting scientific personnel to the jurisdiction of their respective governments.  Important protections for Antarctic plants and wildlife were added by the Agreed Measures for the Conservation of Antarctic Fauna and Flora, adopted as an annex to the treaty in 1964, and the Convention for the Conservation of Antarctic Seals, which entered into force in 1978.

When the Antarctic Treaty was negotiated, 60 scientific stations had been established on the continent and surrounding islands.  Waste disposal practices at these bases initially were quite haphazard, including at the large U.S. base on McMurdo Sound.  The U.S. actually operated a small nuclear power plant at the station between 1962 and 1972, which had to be decommissioned prematurely due to continuing safety issues. A total of 101 drums of radioactive earth were shipped back to the U.S. A campaign by Greenpeace to expose open dumping of wastes at McMurdo helped spur improved waste disposal practices, particularly after congressmen with oversight authority over the National Science Foundation (NSF) visited the station.  In the 1990s, the Environmental Defense Fund won a lawsuit against NSF to block construction of a waste incinerator at McMurdo without an environmental impact statement.  The D.C. Circuit held that because Antarctica was not the territory of any sovereign the principle against extraterritorial application of NEPA did not apply. Environmental Defense Fund v. Massey, 986 F.2d 528 (D.C. Cir. 1993).

The most important environmental protections for the continent are embodied in the Protocol on Environmental Protection to the Antarctic Treaty, which was adopted in 1991. The Protocol designates the continent as a “natural reserve devoted to peace and science” and it imposes strict measures to protect the Antarctic environment, including a ban on all mining.  Also in 1991 tour operators formed the International Association of Antarctic Tour Operators (IAATO), a private, self-regulating organization that now has more than 100 members.   IAATO has developed a strict code of conduct designed to keep Antarctica pristine, to protect Antarctic wildlife, and to require tourists to respect protected areas.  This code was observed so strictly on our expedition that we were prohibited from relieving ourselves while on land, a prohibition not applicable to the penguins whose wastes create a pungent smell apparent whenever land is approached.  Boots had to be disinfected prior to every landing and clothing was vacuumed to prevent introduction of invasive plants. 

The worst environmental disaster in Antarctic history occurred in January 1989 when the Bahia Paraiso, an Argentine naval supply ship hit a submerged rock off DeLace Island, spilling 600,000 liters of oil and creating an oil slick that covered 30 square kilometers. In 2009 the International Maritime Organization banned the use of heavy fuel oils by ships in Antarctic waters.  This measure has been widely applauded for reducing pollution in Antarctica.  It also caused some cruise lines to stop visiting the continent with huge cruise ships, significantly reducing the number of tourists in Antarctic waters.  

One of the joys of visiting Antarctic waters is the visible abundance of whales. In the early twentieth century, extensive whaling by vessels from several countries decimated whale populations in Antarctica.  Many have recovered, but spotting blue whales, the heaviest creatures ever to inhabit the earth, as we did on our trip, is still a rare event.  In March 2014 the International Court of Justice (ICJ) ruled that Japanese whaling in Antarctic waters violated the International Whaling Commission’s ban on commercial whaling.  Japan was taken to the ICJ by Australia and New Zealand, which argued that Japanese whaling had been so extensive that it could not possibly qualify for the exception for whaling for purposes of scientific research.  Japan has pledged to resume whaling next year with a scaled-back program that will kill only minke whales.

Enforcement of strict measures to protect the Antarctic environment depends crucially on cooperation by many governments and private companies. Last month the New Zealand navy confronted boats illegally catching sea bass (toothfish) in Antarctic waters.  Rough waters prevented New Zealand authorities from boarding the vessels, rumored to be owned by a Spanish crime syndicate.  The New Zealand navy informed Interpol in hopes of preventing the boats from offloading their illegal catch.


The Antarctic environment continues to face challenges, particularly from climate change which has visibly reduced the size of glaciers.  But the ban on commercial exploitation of Antarctic resources has preserved a more pristine environment than in northern polar regions where countries and companies are racing to develop oil resources.  Shackleton would be proud.

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