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Compliance with International Environmental Law

-

Are states willing to comply, or are they only pursuing their own

interests?

Master Thesis

Thomas van Altena LL.B

-5873649-

Supervisor: Prof. mr. René Lefeber

International and European Law: Public International Law

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Table of Contents

Chapter title

Page

Title page 1

Table of Contents 2

Introduction 4

Chapter I: The activities of States: which can be inspected? 6

- Introduction 6

- Antarctic Treaty 7

- Whaling Convention 9

- Regional Fisheries Management Organisations 10

- International Seabed Authority 11

- Conclusion 13

Chapter II: Which persons are entitled to inspect the activities? 15

- Introduction 15

- Antarctic Treaty 15

- Whaling Convention 16

- Regional Fisheries Management Organisations 17

- International Seabed Authority 18

- Conclusion 18

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Chapter III: The conclusions of inspections; what is done with them? 19

- Introduction 19

- Antarctic Treaty 19

- Whaling Convention 21

- Regional Fisheries Management Organisations 23

- International Seabed Authority 24

- Conclusion 26

Chapter IV: Do states feel the need to comply with the findings of the inspections? 28

- Introduction 28

- Antarctic Treaty 28

- Whaling Convention 30

- Regional Fisheries Management Organisations 31

- International Seabed Authority 32

- Conclusion 33

Conclusion 34

Bibliography 39

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Introduction

This Thesis has been given form after a year of intense study of the International and European laws of different fields, during my master International and European Public law. During the course of last year, I learned a lot about the different obligations for the states and the influence of international organisations that had been formed over the years in order to maintain worldwide peace and to ensure the protection and equal division of the resources our planet has to offer.

Through the courses I followed I learned that many organisations have a large influence on the normal lives of human beings, normal persons that live their daily lives. It does not really matter where these persons are on the planet, they are influenced by the decision of, for example, the United Nations. But I also learned that the states that are part of these organisations are not really abiding to the laws that are internationally formed, the states can in a way do as they please. A good example for this, which is also relevant to keep in mind for my thesis, are the action of Japan concerning the Whaling Convention.

Australia filed a lawsuit against Japan before the International Court of Justice in a dispute over the whaling activities of Japan in the Southern Ocean. The court ruled, on 31 March 20141, that Japan should stop the activities it was conducting in the Southern Ocean and Japan did accept this ruling. But not much later, Japan announced that it would do anything to enable commercial whaling again and that they would start whaling in the Southern Ocean at the end of 2015.2 This shows the point on which international law is struggling. States will abide by the regulations of the international organisations, when they think it is good to do so. But whenever a state feels its own interests will be harmed when it will follow a regulation it does not like, the state can just ignore the regulation and do as it pleases. International law seems to lack a good enforcement mechanism to ensure that states will comply with the regulations of treaties and conventions.

For that reason I choose to investigate the following question; Are the inspection mechanisms of the Antarctic Treaty, the Whaling Convention, the International Seabed

1

Judgment of 31 March 2014 - Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), ICJ,

http://www.icj-cij.org/docket/index.php?p1=3&p2=5.

2

Banned Japanese whalers expect Southern Ocean hunt to resume, The Institute of Cetacean Research has indicated that whaling could

resume despite the International Court of Justice ruling, Australian Associated Press, The Guardian, 12-04-2014, http://www.theguardian.com/environment/2014/apr/12/banned-japanese-whalers-expect-southern-ocean-hunt-to-resume.

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Authority and two selected Regional Fisheries Management Organizations, effective to ensure compliance with the relevant treaties by the states parties to those treaties?

I focused my thesis on these five conventions, in order to look at the legal areas outside the jurisdiction of states and to see how states act within this area.

In order to reach an answer to this question, my thesis is divided in four chapters that will look at the following questions.

In the first chapter I will look at the question: Which activities can be inspected by the inspectors?

For the second chapter I will be looking to answer the next question: Who is entitled to send the inspectors and to whom do they report their conclusions?.

Through the next question I will try to formulate an answer in the third chapter of my thesis: What is done with the conclusions of the inspectors?.

For the fourth chapter I will look at formulating an answer to the following question: Are states willing to comply with the conclusions of the inspectors?.

When I formulated the conclusions to the four different questions, I will look at the main question of my thesis and formulate a concluding answer in the conclusion of my thesis. Through the process of creating my thesis, I hope to get a better understanding of how states can be forced into complying with international regulations and when they feel for themselves that they want to comply.

Because the Earth is a planet with a lot of balances, which need to be protected, it is important to know when states are violating regulations and need to be corrected in order to preserve the Earth for future generations to come.

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Chapter I: The activities of States: which can be inspected?

Some decades ago, many international organisations came to the conclusion, that to maintain a good living environment for humans, animals and plants, some areas on our planet should be protected against the destructive force human kind uses to get the resources it needs. In order to answer the question ‘Which activities can be inspected by the inspectors?’, I will look in this chapter at the following areas.

One of the largest areas that needed protection was the Antarctic continent. Next to this vast landmass, other areas had to become protected by regulations too, so that states could effectively protect the species and environments that mankind needs to survive, instead of exploiting everything there is and destroy the environment.3

For whales, for example, the International Convention for the Regulation of Whaling was signed in Washington on the 2nd of December 1946. Under this convention, the state parties bound themselves to regulate the harvesting of whales in order to protect the species from extinction.

The same idea was used in order to protect different kinds of fish in the oceans, to ensure that the future generations would also have fish in the oceans. Different Regional Fisheries Management Organisations were set up; these organisations have to make sure that catch quota are put in place when fish stocks are becoming dangerously low. In order to make sure that the state parties do not exceed this quotas, in order to protect the different varieties of fish, these organisations can look at the activities of the state parties. I will look into two organisations, first I will look at the ICCAT, followed by the WCPFC.

The last area which needs protection, is the deep seabed. Under the vast stretches of blue ocean waters, lay many different kind of resources that men can use to make all kinds of technological equipment. Such as mobile phones, computers, advanced weapons and

satellites. But we cannot foresee what the consequences will be when we would start drilling in the ground to excavate all the resources that we can find.

So, in order to protect the marine environment, we need to have a system that looks into the activities of the companies and the state parties to see if they do any harm to the environment. To regulate these activities, the International Seabed Authority was established in 1994. It has its headquarter in Jamaica.

3 Frank Pallone, Resource exploitation: the threat to the legal regime of Antarctica (Manitoba Law Journal, vol. 8, 1978).

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To start with this chapter, I will focus on the Antarctic Treaty first, to see what possibilities the inspectors of the state parties have, and to see if the regulations of the treaty are complied with. The Antarctic Treaty was signed in 1959 by twelve countries that have been active in the Antarctic area during the International Geophysical Year of 1957 to 1958. Nowadays, 50 states are party to the Treaty, which entered into force in 1961.

Over the years, many meetings were held and the states came to the conclusion, that they needed a protocol to ensure a good protection of the Antarctic continent.

In the year 1991, the Madrid Protocol was signed and with that the Committee for Environmental Protection was established, in accordance with article 11 of the Madrid Protocol on Environmental Protection to the Antarctic Treaty. On January 14th 1998, the Protocol officially entered into force and Antarctica became a protected ecosystem. This Protocol was established to make sure that the environment of Antarctica is protected against any harmful activities from scientists and other humans that go to Antarctica to explore the lands and conduct scientific activities. Also tourists can go to Antarctica and they also have to abide by the regulations of the Antarctic Treaty.

For this Protocol to be successful in protecting the environment, and with that also the effectiveness of the Antarctic Treaty, it is important that the parties both comply with the regulations of the Protocol and the Antarctic Treaty.

In order to have a more successful compliance, the Madrid Protocol has established an annual reporting duty, set out in article 17.4

Most of the inspections that are conducted, are established under article VII of the Antarctic Treaty, and also linked to article 14 of the Madrid Protocol. The establishment of inspection tools under article VII of the Treaty and article 14 of the Madrid Protocol is done to ensure the objectiveness and observance of the treaty provisions. The inspection tools are necessary to form a firm base in order to make the inspected parties comply with the Treaty. Based on these rules, the inspectors have over the years, developed checklists, which were also adopted by Resolution 5 of the Antarctic Treaty Consultative Meeting in 1995.

These checklists are divided by different areas in respect of which inspections can be conducted. There is checklist A, especially for Antarctic stations and installations that are in use.

Checklist B focuses on vehicles, both in the air and in the water, that are within the Antarctic Treaty Area; checklist C focuses on stations and associated installations that are abandoned by

4

Christian Lambrecht, Review of the Implementation of the Madrid Protocol: Inspections by Parties (Article 14), Antarctic Treaty Consultative Meeting XXXV, ATCM 12, CEP 10 (Presented by UNEP and ASOC).

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the former users. And checklist D focuses on the waste disposal sites that are around the stations and in other areas of Antarctica.5

Following the different checklists, the observers can inspect the things they want to inspect. In order to make sure they can conduct their inspections, the stations’ personnel need to give them full cooperation. This follows from article VII paragraph 2 of the Antarctic Treaty.

All the inspections conducted are reported to the annual Antarctic Treaty Consultative Meetings, and are used to show the compliance of states with the Antarctic Treaty.

The group of observers that conduct the inspections consist of a group of nationals,

not always from the same state, that come from different fields of expertise. The Norwegian group of observers, in 2009, consisted of advisers from the Ministry of Foreign Affairs and

the

Norwegian Polar Institute.6

In the Norwegian inspection report, the observers put forward their idea on the point of increased private interests with the research stations on Antarctica which they have inspected. On the Antarctic Logistics Centre International Airfield, they found that the waste was not taken care of in a proper manner. It was laying around in open crates and could easily be picked up by the wind and blown away across the divine white of the continent. Next to this, they also found that formal documents were missing at the ALCI Airbase, such as an

emergency plan in case of an airplane crash.

This shows that the inspections are not only limited to what they see is causing an

environmental problem on Antarctica, they also have the possibility to look into the conflicts that can arise when interests are different.

In another inspection by the USA and Russia, the observers found that the Environmental Impact Assessments were not used properly and were missing on the Chinese station

Zhongshan.7 Because the object of the Treaty and its Protocol is to protect the environment of Antarctica, every activity that is undertaken should be preceded by an assessment of the possible effects on the environment. Also, in this inspection report, the observers put forward their concerns on the issue of more non-governmental entities with interests on the Antarctic continent. Especially on the point of who has to bear the responsibility when something goes wrong.

5 Inspections under article VII of the Antarctic Treaty, http://www.state.gov/documents/organization/15274.pdf.

6 Ambassador Karsten Klepsvik, Report of the Norwegian Antarctic Inspection under Article VII of the Antarctic Treaty, February 2009

(Royal Ministry of Foreign Affairs, 2009).

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Evan T. Bloom, Dmitry Gonchar, Report of Russia-US Joint Antarctic Inspection under Article VII of the Antarctic Treaty and Article 14 of the Protocol on Environmental Protection to the Antarctic Treaty, November 29 – December 6 2012.

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Within the body of the Antarctic Treaty and its Protocol on the protection of the environment, the observers are given total freedom to inspect what they feel is necessary to look into. There are no limits as to whom may conduct the inspections, every state party may without prior notice, start inspections on everything that is present on Antarctica. This is necessary to ensure that the states act in compliance with the Antarctic Treaty and protect the continent and its precarious environment.

The International Convention for the Regulation of Whaling has a very different supervising structure than the Antarctic Treaty has. In this Whaling Convention, we see that the contracting states have to report to the International Whaling Commission when they find an infraction of the regulations of the Whaling Convention. To get this information of any infractions, the states have to get reports from observers that are present on the ships or at the landing stations of the ships. The problem lies with the observers in this system, as they are mostly nationals from the states that are whaling on the high seas and the coastal sea areas. So there is a difficulty with the objectivity of the observers in this system.

The objectives of the observers should be to overlook the activities of the whaling ships and in particular which species the ships catch and how much, so that they will not exceed the quota set. There are examples of Japanese inspectors that are not very effective in their observing capacities, they were not given full access to all the activities that where conducted on the whaling ships. Also the whalers communicated with each other to inform the others at which landing stations the observers where, so that they could avoid them and make sure they would not find out how many whales they had caught or from which species they were.8

Through the years, the Commission and its contracting parties saw that this system was not effective in finding out the infractions and illegal catching of the whalers.

Therefore, the Commission called the Revised Management Scheme (RMS) Workgroup into life. They had to assess and create a new system of Management, Control and Supervision, to make sure that the contracting parties were more in compliance with the regulations of the Whaling Convention. Years passed with lots of discussion. On the one hand, you have the countries that want to have regulations inside this new RMS, that also regulate the catching of whales in the scientific sphere.

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Dr. Sandra Altherr, Kitty Block, Sue Fisher, THE RMS – A QUESTION OF CONFIDENCE? - Manipulations and Falsifications in Whaling (humpback whale, © PRO WILDLIFE / M. Kind-Degen, 2005).

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On the other hand you have the countries, like Japan, that want to lift the commercial moratorium from 1982 in order to get the new RMS system established. 9

We can see that the present system of the Whaling Convention is not yet ready and working perfectly as it should, unfortunately, the new RMS is not accepted by the states parties. The observers should get the freedom to inspect everything they want and need to inspect to make a good report on possible infractions by the states, but in reality some states make it almost impossible for the observers to do a good job.

For the Regional Fisheries Management Organisations that I have looked at, the system is much clearer and straightforward, as it also should be in the Whaling Convention system. Within the system of the ICCAT, many vessels of the contracting parties are equipped with a Vessel Monitoring System; this equipment can monitor where the ships are sailing, and how they are fishing.10 This information can be used by the contracting parties to observe the ships and when they think something is wrong, they can send an inspection vessel to take a look. Next to this piece of equipment, the states also have an obligation to inspect the ships when they enter a port to see if the quantity of fish caught is within the limits set out by the catching quotas and if there are no infractions by the ships that sail under their flag. The observers can be present at the ports of entry, based on the Port Inspection Scheme that most of the contracting parties have established upon the recommendation of the ICCAT.11 Based on that Scheme, the observers have not only the right to board any vessel that is on the high seas and coastal seas, but they may also board any vessel when it is in port. Next to this, the observers also have the right to inspect the plants where the tunas caught are processed into commercial products. In that way they can see if there are any tunas that are illegally fished, and intervene when they see an infraction. This intervention can be done by levying fines on the companies that violated the regulations of the ICCAT or imposing fishing bans on these companies.12

Within the Western and Central Pacific Fisheries Commission system, we see a similarity with the ICCAT. Many vessels that are flying the flag of the contracting parties have a VMS system so that their activities can be monitored.

9 The Revised Management Procedure, <http://iwc.int/rmp>.

10 Report for Biennial Period 2006-7 Part II - vol. 3, ICCAT Madrid 2008.

11 Compendium Management Recommendations and Resolutions Adopted by ICCAT for the Conservation of Atlantic Tunas and Tuna-like

Species, pag. 72-75, ICCAT September 2006, PLE-012/2006.

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Compendium Management Recommendations and Resolutions Adopted by ICCAT for the Conservation of Atlantic Tunas and Tuna-like Species, pag. 72-75, ICCAT September 2006, PLE-012/2006.

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Next to that there is the obligation to have national observers on board of the fishing vessels to overlook the fishing activities.13 This system was established in 2008 with the creation of the Regional Observer Programme. Next to this system of observers, the Commission

established a procedure for inspections that can be carried out by the contracting parties to the Convention. This procedure was adopted pursuant to article 26 of the Convention on the Conservation and Management of High Migratory Fish Stocks in the Western and Central Pacific Ocean, and formulates in paragraph 4 that the inspections can be carried out on the high seas that fall within the area of the Convention.

The procedure gives the right to each contracting party to board any fishing vessel and conduct an inspection, when these vessels are reported to have acted or are engaging in activities that violate the Convention’s rights and obligations. The flag states of the fishing vessels have to make sure that the vessels accept the boarding and inspection, pursuant to the Convention.

The inspectors may board vessels, which sail under the flag of the contracting parties, that are not listed on the records of the WCPFC as being a legitimate fishing vessel. They may also board vessels of the contracting parties that act or have been reported to act in

contravention with the Convention. Also, when a flag state does not dispatch its own inspection vessels to inspect the fishing ships under its flag, the inspectors may board those ships to carry out an inspection. Next to these points on which an inspection can be carried out, the inspectors may also board ships that do not have any observers on board. The flag states of the fishing vessels are not overseeing the activities of their ships and the inspectors have to make sure that the fishing vessels are not acting in contravention with the

Convention.14

They can do this by imposing fines for the ships that are acting contrary to the regulations or imposing a prohibition for the ships to continue with their fishing activities. The findings of the inspections should also be sent to the flag states so that they can take appropriate actions. The states that conducted the inspections can decide to not allow the ships into their ports, when there are no indications that the flag state will act against the violator.15

13 http://www.wcpfc.int/regional-observer-programme.

14 Western and Central Pacific Fisheries Commission Boarding and Inspections Procedures, Third Regular Session, WCPFC 11-15

December 2006, Conservation and Management Measure 2006-08.

15First Meeting of the Technical and Compliance Committee, Port State Measures and Port Inspection, WCPFC/TCC1/16 (2005).

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When we look at the International Seabed Authority, we see a different system. Within the system that was established after the entry into force of the United Nations Convention on the Laws of the Seas (UNCLOS), you see that private companies need to be given a certificate by the sponsoring states. The International Seabed Authority will give licenses to companies that are going to explore and in the future exploit the minerals that are present on or in the seabed of the deep sea.16 By creating a link between sponsoring states, that are member of the ISBA and party to UNCLOS, and the companies that are going to work on the seabed, you make sure the states look into the activities of the companies, because when something goes wrong, the states can be held liable for the damage done.17

The liability of the state is limited by the obligation it has to ensure that the contractors act in accordance with the regulations. When a state has done everything that lies within its power to ensure that the contractor acts correctly, the state cannot be held liable for any damage that still occurred through the actions of the contractor. The state has fulfilled its obligation by ensuring the correct acting of the contractor.18

Next to the possibility for states to look at the activities of their contractors, the International Seabed Authority itself also has the possibility to send inspectors to the vessels and installations of the contractors to inspect them in order to see if they act pursuant to the regulations under UNCLOS. The inspectors of the ISBA need to be given full access when they want to inspect a vessel or installation of the contractor, and the contractor has to give its full cooperation. The inspectors may look at any vessel or installation they deem necessary to look at in order to establish if the contractor is acting in compliance with the regulations and the terms and conditions of the contract it has with the International Seabed Authority. They may also monitor the activities conducted by the contractor to see in what way they are affecting the marine environment.

The inspectors have the right to inspect, on the vessels and installations, all logs, equipment, records, facilities and all other recorded data and relevant documents which they find necessary to monitor the compliance of the contractor. But they have to make sure that they will not interfere with the operative parts of the vessels or installations, and by doing so endanger the good functioning of these parts. They have to leave the professional jobs to the professionals and may only look at how they work and not try the equipment themselves.

16 P. Birnie, A. Boyle and C. Redgwell, International Law & the Environment (3rd ed., OUP, 2009).

17 Shigeru Oda, The Law of the Sea in our Time I, New Developments 1966-1975 (A.W. Sijthoff International Publishing Company B.V.

1977).

18

Advisory opinion on Responsibility and Obligations of States Sponsoring persons and entities with respect to activities in the area, Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, 1 February 2011, No. 17.

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When conducting their inspection, the inspectors should be fully assisted by the contractors agents and employees, the agents and employees are not allowed to refrain from assisting the inspection, in order to make it efficient and safe. Although the inspectors have great freedom in what they think is necessary to inspect, the inspectors are limited in their work by the regulations and measures that have been adopted to make sure that the research done and other data and information, which are vital to the functioning of the companies, remains confidential.19

This is to protect the competitive position of the company; the ISBA was established to look into the compliance of the UNCLOS regulations to protect the seabed and the marine

environment and should refrain from any possible interference with the companies’ competitive positions.

In this chapter we have seen that the Antarctic Treaty has one of the most advanced inspection regimes, the inspectors are free to go to the installations they want to inspect and make recommendations when something has to be changed. During their inspections, the inspectors can take everything into account when they see something is harming the Antarctic environment or when something might be harmful in the future.

For Antarctica, a good and effective regime was created, the inspectors can inspect almost everything there is.

When we look at the Whaling Convention, we see a system in which there are

observers from the states that are whaling; these observers are on the whaling ships or landing sites of the ships to monitor the catch of whales. The problem of this system lies with the observers, because they can be limited in their job by either the crew of the ships or by the state themselves. There are no clear rules as to how the observers should be treated and

whether they can enforce their right of access. The Revised Management Scheme is still being discussed, although the discussions have come to a halt because states have different views on how the supervision should be done. So, for the Whaling Convention we can say that the idea was good when it was introduced, but eventually the people that wanted to catch as much whales as they liked found ways to evade the inspection schemes.

What failed in the Whaling Convention, worked rather well in the Regional Fisheries Management Organisations; the observers are nowadays replaced by technology that monitors the movements of the fishing ships. Next to this technology, states can sent inspectors to investigate ships and see if they act in accordance with the regulations of the organisations 19 Selected Decisions and Documents of the Nineteenth Session, 15-25 July 2013 (ISA, 2013).

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and their constituent agreements. The inspectors have much liberty in what they will inspect on board of the ships and can make a clear assessment on the compliance of the flag states of the fishing ships with their obligations.

The same liberty can be found in the system of the ISBA; here the inspectors sent by the Authority have much room to investigate and look into the things they deem necessary to create a report that gives a good view on the compliance of the contractors with the

regulations under UNCLOS and the terms and conditions of the contracts they have with the Authority.

Chapter II: Which persons are entitled to inspect the activities?

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When the observers or the inspectors, acting under the different treaties, find

something that looks like a violation of the regulations under those treaties, they need to make sure that these findings are made publically known. In that way the community can

understand what went wrong at which locations and who were responsible.

For that reason, I will look in this chapter at the following question: Who is entitled to send the inspectors and to whom do they report their conclusions?

In order to formulate an answer to this question, I will look at the treaties in the same order as in the former chapter, starting with the Antarctic Treaty.

When we look at the Antarctic treaty, we see in article VII the right for each

Consultative Party to designate observers. This means that all the Consultative Parties to the Antarctic Treaty are allowed to send teams of observers to the continent of Antarctica in order to see if the states that have stations on Antarctica are also acting in compliance with the treaty provisions and the regulations of the Madrid protocol. The extent to which the

observers have the right to inspect the objects on Antarctica is unlimited; they have the right to enter all stations, vessels and aircrafts that are present on Antarctica, including those embarking or disembarking.20

When we look at the reports that are made by the observers of their findings and recommendations, we see that many of the reports are made up by an inspection team of a specific country. But we also see that there are joined investigation teams; for example, in 2012 a joined investigation team was formed of observers from the United Kingdom, the Netherlands and Spain.21 All the inspections are undertaken, as is clearly stated in the reports, under Article VII of the treaty and under article 14 of the Environmental Protocol.22

The reports that are made by the various groups of observers, will be sent to the relevant treaty parties first, in order to give them the possibility to respond to the report’s findings. This is in accordance with article 14(4) of the Environmental Protocol. When tourist vessels have been inspected by the observers, the operators of these vessels will receive the report first so that they can respond to the findings mentioned in the report.

20 Ambassador Karsten Klepsvik, Report of the Norwegian Antarctic Inspection under Article VII of the Antarctic Treaty, February 2009

(Royal Ministry of Foreign Affairs, 2009).

21 List of Inspections under Article VII of the Antarctic Treay and Article 14 of the Protocol on Environmental Protection.

22 Mr Dick van der Kroef, Admiral Manolo Catalan, Mr Colin Roberts CVO, Antarctic Treaty Inspections Programme Report 2012 Report of

Antarctic Treaty Inspections undertaken jointly by the United Kingdom, the Netherlands and Spain in accordance with Article VII of the Antarctic Treaty and Article 14 of the Environmental Protocol, April 2013 (Stationery Office UK, Crown Copyright 2013).

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When the treaty parties or the tour operators have made any corrections to the activities or vessels, in order to solve the problems found by the observers, these corrections or

adjustments will also be incorporated in the report.23

When this procedure is done and the report is finished with all the remarks incorporated into it, the report will be send to the Secretariat of the Antarctic Treaty. The reports will also be discussed at the annual consultative meetings, where the consultative parties can give their opinions on the reports and make possible recommendations. In this way it is possible for all the states to know where something went wrong and it is possible to see if the states that are violating some regulations are changing their behaviour. The conclusions of the reports are made public through the website of the Secretariat of the Antarctic Treaty.

When we take a look at the Whaling Convention, we see that the reports of the observers are sent to the flag states of the whalers.24 The states look at the reports of the observers and need to judge if they think there is an infraction of the regulations given by the Whaling Convention. When the states find that there is an infraction, they forward the report and the findings of the state to the Infractions sub-committee.25 This committee will then look at the report and determine whether the state acted in the right way when imposing a fine or other punishment on the perpetrators.

When the sub-committee has looked into the case, they will give a summary of their findings to the Annual Conference and the infractions reports of the states will be incorporated in the Annual Report of the International Whaling Commission.26

When we compare this system to the system of the Antarctic Treaty, we can see that the Whaling Convention has a more dependable system. The states are the ones that look into the reports of the observers, and the states are the ones to judge whether or not an infraction report is sent to the sub-committee of the Whaling Convention.

The ICCAT uses the VMS technology to monitor the activities of the fishing vessels, and in that way the flag states know where the vessels are fishing and mostly which technique they use. When the port inspections are conducted, or when the inspectors board ships on the high seas, the reports of those inspections are sent to the flag states of the ships first. This 23 Review of the Implementation of the Madrid Protocol: Inspections by Parties (Article 14), ATCM 12, CEP 10.

24 Dr. Sandra Altherr, Kitty Block, Sue Fisher, THE RMS – A QUESTION OF CONFIDENCE? - Manipulations and Falsifications in

Whaling (humpback whale, © PRO WILDLIFE / M. Kind-Degen, 2005).

25

SUMMARY OF INFRACTIONS REPORTS RECEIVED BY THE COMMISSION FOR 2011 (IWC/64/Inf 4, Agenda Item 3).

26 Annual Report of the International Whaling Commission 2008, 60th annual meeting (Cambridge 2009, ISSN: 1561-0721).

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gives the flag states the opportunity to take effective measures against the possible violations of the vessels that sail under their flag.27 The reports are also sent to the state from which the inspectors originate and under which jurisdiction they have conducted their inspections.28 The reports are also sent to the Commission of the ICCAT, in order to let them review the reports and take measures if they think it is necessary to force states to comply with regulations of the ICCAT.29

We find a similar system of reporting within the WCPFC. The reports that are made up by the inspectors are first sent to the states that sent the inspectors. When these states have received the reports, they will forward them to the flag states of the fishing vessels and to the Commission of the WCPFC. These can then monitor the activities of the vessels in question and see whether they can make any recommendations to the vessels, or in case of the

Commission, to the states in order to make the vessels act in accordance with the provisions of the treaty. Based on article 25 of the treaty, all evidence that has been found during the inspections is referred to the authorities of the flag states, in order to make it possible for them to judge the situation in the best way possible.30

Annual reports are made up in advance of the annual sessions of the Commission and also the actions taken in response to the inspections are included in these reports, so that the Commission can clearly see what the states have done to make the vessels act in accordance with the regulations.31

For the International Seabed Authority, we see that the inspections conducted by inspectors of the Authority are reported to the Authority itself. The Secretary-General of the Authority and all the authorized representatives of the Secretary-General have access to books, documents, papers and records. This to make sure the inspections are covering all the areas they need to cover. The reports of these inspections are sent to the Authority, which will

27 Report on the 5th Meeting of the Working Group on Integrated Monitoring Measures, ICCAT, Madrid 16-18 July 2008 (Doc.No.

COC-302 / 2008).

28 Report for Biennial Period 2006-7 Part II - vol. 3, ICCAT Madrid 2008.

29 Compendium Management Recommendations and Resolutions Adopted by ICCAT for the Conservation of Atlantic Tunas and Tuna-like

Species, pag. 72-75, ICCAT September 2006, PLE-012/2006.

30 Western and Central Pacific Fisheries Commission Boarding and Inspections Procedures, Third Regular Session, WCPFC 11-15

December 2006, Conservation and Management Measure 2006-08.

31 General Fisheries Commission for the Mediterranean, Report of the thirty-first session, Rome, 9-12 January 2007 (FAO 2007).

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judge if it is necessary to send the report, or parts of it to the contractor and its sponsoring state or states.32

To answer the question “Who is entitled to send the inspectors and to whom do they report their conclusions?”, we see that there are different regimes that come with the different conventions. But they have in common that the states responsible for the stations, vessels or contracting companies are the first to be able to send inspectors or observers to the vessels or other places where activities take place under their responsibility.

Next to that we see that the Antarctic Treaty has a strong inspection mechanism for all the contracting states, all can send a group of inspectors to look if other states are acting in compliance with the regulations of the Treaty.

When we look at the Whaling Convention, we see that such a system is not yet in place, and it is not very likely to be established in the near future, because the contracting parties do not agree with each other. This system is more susceptible to fraud. For the protection of the whales it is not really effective.

On the other side of the spectrum we see the RFMO’s where the inspections are not only conducted by the states that have vessels sailing under their flag, but also by the other contracting parties. This system looks similar to the Antarctic Treaty and is much more effective than the Whaling Convention system is. The reports are sent to the competent commission which looks at it and also at the responses of the states with violating vessels in order to make sure they will comply with the regulations of the Whaling Convention.

For the ISBA, the system is also similar to the ones of the RFMO’s. The Authority has the power to organize inspections and look at the possible outcome of the recommendations given to the violators.

Chapter III: The conclusions of inspections; what is done with them?

In this chapter I will look at the question “What is done with the conclusions of the inspectors?”. When the inspectors have made their investigations and they have seen things that are contrary to the regulations of the treaty or convention they act under, their reports are

32 Selected Decisions and Documents of the Nineteenth Session, 15-25 July 2013 (ISA, 2013).

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sent to the commission or secretariat of those treaties or conventions. But what is done with these conclusions? To look into the answer to this question, I will look at the four different systems as I did in the two previous chapters.

I will therefor start with the Antarctic Treaty, and look at different reports made by the inspectors and look how the states have tried or even solved the problems mentioned in the reports of the inspectors. These reports are for the last years and have in common that the stations that have been inspected are partly the same. In that way it is possible to look at the progress that has been achieved on Antarctica when it comes to the violations of the

regulations of the Antarctic Treaty and the solutions implemented by the states.

First, we will take a look at the report of the Norwegian Antarctic inspection from February 2009; here the team of inspectors consisted out of six members from different Norwegian ministries and the Norwegian Polar Institute. This team went to Antarctica to inspect three stations and an installation in Dronning Maud Land and Coats Land. These stations were all from different states, namely Belgium, the United Kingdom and Russia. 33 The team of inspectors noted that the personnel of the different stations cooperated with them, which is in accordance with the regulations of the Antarctic Treaty. They could inspect

everything they deemed necessary, without any delay.

The only points of interest they found for the environment where the Novo Runway, under control of the private organisations ALCI, is based. Here, they found that the waste of the station was not managed well and next to that they could not show the inspectors an Environmental Impact Assessment when they asked for it. For the inspectors this showed that a risk to the environment was created, because when the wind would catch the waste it would fly away into the Antarctic lands. Because the wind could easily take it across many

kilometres of Antarctic nature, the waste of the ALCI Airbase could infect the pristine environment and damage it severely.

As a result of the inspectors’ conclusions on the ALCI Airbase, the personnel of the Airbase contacted their supervisors and they assured the inspectors of Norway that the Environmental Impact Assessment would be made available to the inspectors as soon as possible.

Next to this missing Environmental Impact Assessment, the inspectors also found that emergency plans were missing. So in case of emergency with an aircraft or other incident,

33

Ambassador Karsten Klepsvik, Report of the Norwegian Antarctic Inspection under Article VII of the Antarctic Treaty, p. 3-4, February 2009 (Royal Ministry of Foreign Affairs, 2009).

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there was no plan or schedule to know what steps should be taken in order to maintain a safe situation. On this point, the inspectors urged the ALCI and the Russian Antarctic Expidition to make such plans in order to ensure a good routine and safety standard for the flight operations on the ground.34

When we look at the joint inspection by the USA and Russia, we see that the

inspectors found a big misunderstanding amongst some of the personnel of the stations and facilities they visited, on the point of Annex I of the Protocol on Environmental Protection to the Antarctic Treaty. This Annex is about Environmental Impact Assessments, and the

personnel in question did not understand the need to ask their Ministries of Environment back home to approve the assessment before any building activities may take place on the Antarctic continent. More in depth knowledge of this Annex I to the Protocol was needed and

recommended by the inspectors of this joint inspection team. Especially the Chinese station Zhongshan did not conduct such assessments before starting to build more facilities around the existing base.

Both inspection reports also showed that there was a concern amongst the inspectors on the point of the increasing number of private persons or entities that have an increased influence on the stations and other facilities in Antarctica. The scientific personnel is being replaced by private persons that could bring more commercial influence into the scientific sphere of stations on Antarctica. But so far, this increased number of private entities does not force the scientific activities out of the stations. Still, the inspectors feared that with more influence of private entities, the scientific goals are going to be forced to the second position in the Antarctic environment. For the inspectors the idea arose that with the increased

presence of private entities, the scientific activities may lose their prominence as commercial activities develop further and commercial interests may become the driving force for the stations on Antarctica. The inspectors recommend to be aware of this development and to take measures in order to ensure a good protection of the environment will remain in the future.

At the last meeting of the Antarctic Treaty Parties in June 2014, some of the parties noted that something had to be done on the point of an effective follow-up of the inspections. Some states find it difficult to go ahead with the recommendations of the inspectors, they feel that their sovereign power over the stations might be damaged. According to these states,

34

Ambassador Karsten Klepsvik, Report of the Norwegian Antarctic Inspection under Article VII of the Antarctic Treaty, p. 25-34, February 2009 (Royal Ministry of Foreign Affairs, 2009).

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sovereign states parties do not have any obligation to respond to the findings of the inspectors.35

Although there is a discussion going on about a more effective follow-up, we can see that the system of the Antarctic Treaty is working in a good way. The reports are discussed at the Antarctic Treaty Consultative Meetings and the parties look at possible solutions for the problems found by the inspectors. Although a good functioning enforcement mechanism is missing, many states see the importance of the conclusions of the inspectors and are willing to make adjustments in order to follow the recommendations given by the inspectors. The

conclusions of the inspectors are thoroughly looked at by the consultative parties to the Antarctic Treaty and the consultative parties are looking, without any success so far, for a possible new mechanism to ensure a good compliance with the regulations in the future.

The Whaling Convention has a system that is different from the Antarctic Treaty system. The Whaling Convention has a Management, Control and Supervision (MSC) scheme, that looks like the schemes the RFMO’s have to supervise the compliance of states with the obligations and regulations of the treaties of those organisations. For the Whaling Convention, the MCS scheme is part of the Revised Management Scheme, which was to be established to make sure the contracting states did what they had to do to be in accordance with the regulations of the Whaling Convention. But when we look at the Whaling

Convention system, we see that there is a lack in effectiveness. The contracting states will have the possibility to make reservations to the RMS and MSC schemes; in that way the contracting states have the possibility to evade the responsibilities and obligations that come with the schemes. When these schemes will enter into force. This means that the protection of the whales by the presence of observers and inspectors on the whaling vessels and landing sites is not improving, and indirectly this harms the effectiveness of the Whaling Convention as a whole.36

The contracting states can also waive the obligation that an observer should be present on board of the whaling vessels, when the states think it is going to delay the operation of the vessels, when they have to wait for an observer to come aboard or when his presence will be of great influence. The obligation to have an observer on board can be of great influence when the whaling vessel needs to get out of port to start the harvesting of whales. When the vessels

35 Final Report of the Thirty-Seventh Antarctic Treaty Consultative Meeting, Brasilia 28 April – 7 May 2014. 36

Dr. Sandra Altherr, Kitty Block, Sue Fisher, THE RMS – A QUESTION OF CONFIDENCE? - Manipulations and Falsifications in Whaling (humpback whale, © PRO WILDLIFE / M. Kind-Degen, 2005).

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has to wait the harvesting can be affected negatively, which can be prevented by setting sail without waiting for the observer to be on board.

When the inspectors do make an report of an incident they have seen, this report will be sent to the state which ships or landing sites have been inspected. The state is the one that looks at the report and determines if there is an infraction or violation of the regulations of the Whaling Convention. If the state finds it necessary they will impose a penalty on the company that has violated the regulations following form the Whaling Convention of the state, in order to try to force the company to comply with the national legislation. But when a state thinks it is not an infraction, the report will not be seen by the Infractions sub-committee of the Whaling Convention as the report will only be sent to this committee when a state thinks it is an infraction. This shows the power of the states and their influence on the establishment of a good and effective RMS system.37

The Infractions sub-committee looks at the report of the inspectors and it also looks at the responses of the states to the infractions, what they did in order to punish the company that was in violation of the Whaling Convention. Since there is no sanction for the contracting states, when they do not honour the obligation to have observers on board of their whaling vessels, the effectiveness of the reports received by the sub-committee is difficult to

determine. Not all the reports will make it to the sub-committee, because they are judged upon by the same state that has been inspected, the state has in that way the possibility to not

forward the report.

When the states have received the reports, they also do not have the obligation to look into the report and see if the report is genuine and correct. The states are not obliged to investigate the possible accusations made by the inspectors in the reports and whether there is a possible violation of the Whaling Convention.38

After many reports that reached the sub-committee, and the reports that urged the secretariat to make a change in the supervising mechanism, the RMS working group was established in 1994. This work group had the objective to find a new way in which the inspections and observations could be conducted in order to give better protection to the whales and their environment. Many years passed, full of discussion. When we look at the states that are in these discussions, we can divide them into two groups.

On the one hand, we see a group of states that are putting all their energy into the protection of the whales and their habitat; these states want to have a more effective 37 SUMMARY OF INFRACTIONS REPORTS RECEIVED BY THE COMMISSION FOR 2011 (IWC/64/Inf 4, Agenda Item 3). 38

Dr. Sandra Altherr, Kitty Block, Sue Fisher, THE RMS – A QUESTION OF CONFIDENCE? - Manipulations and Falsifications in Whaling (humpback whale, © PRO WILDLIFE / M. Kind-Degen, 2005).

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inspection and observer scheme. In order to get to this more effective system, they agreed on the point that there is a need for a code of conduct for scientific whaling. To make sure that the numbers of whales that the states catch for their scientific needs is reduced to a more reasonable amount.

On the other hand, we see the group of states that do not care much for the existence of whales as living animals that should be protected. These states agreed that they would allow for a more effective inspection and observer scheme, when the moratorium on commercial whaling would be lifted and they would be free to catch whales. These states do agree that whales may be caught, provided that the number of whales is sustainable for the protection of the whales. Unfortunately the working group, in 2007, agreed on the fact that they had

reached an impasse and most likely would not come to an agreement on the new RMS system.39

So we see that the Whaling Convention has good intentions to protect the whales and their habitats. Unfortunately, the scheme that is in place now lacks the power to make sure the states are acting in compliance with the regulations of the Whaling Convention. The reports are first sent to the states that are inspected, which means that they judge their own actions to determine whether there is an infraction or not. This makes it a system in which objectivism is somewhere beyond the horizon.

When we look at the ICCAT and the WCPFC, we see a similar system for both treaties; they both have the VMS system which tracks the fishing vessels and gives a clear picture and report on what the fishing vessels are fishing and how the vessels are doing it. Next to this system, they also have observers on board of the ships and the possibility to sent inspectors on board of the ships and to the processing plants of the fish that is caught.

For the ICCAT we see that there is an observer programme, that includes the contracting parties and the cooperating non-contracting parties.40 They can both sent inspectors on board ships and the reports of the inspections will be sent to the flag states of the ships. This gives the flag states the opportunity to take enforcement measures against the ships and companies that are violating the regulations of the ICCAT.41

For both the ICCAT and the WCPFC, we can see that the reports are sent to the state that conducted the inspections; these states cannot take actions against the violations done by

39 The Revised Management Procedure, <http://iwc.int/rmp>.

40 Report for Biennial Period 2006-7 Part II - vol. 3, ICCAT Madrid 2008. 41

Recommendation by ICCAT amending the Recommendation 12-03 by ICCAT to establish a multi-annual recovery plan for Bluefin tuna in the Eastern Atlantic and Mediterranean, 13-07, 2007.

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the fishing vessels and their companies.42 Next, the reports will be send to the flag states of the vessels in order to make sure they see the violations of the regulations of the ICCAT and the WCPFC; this also gives the possibility to the flag states to do something against the violating vessels and companies. When the reports are received by these states, the reports will be sent to the commission; the commission will look into the reports and the responses of the states to the reports.43 The commission is the supervising body that looks into the reports to see whether the states violated the regulations and took sufficient actions against the vessels and companies that were in violation of the regulations of both the ICCAT and the WCPFC. These reports will be addressed in the annual conferences of the organisations and in that way will get out into the public sphere; all the other contracting states will be made aware of the violations and this will make it possible for them to know which vessels and companies they need to keep an eye on.44 Also the public can see the reports and with that the public opinion can be formed on the companies that violated the regulations. In that way the public can also punish the violators by boycotting the products they produce.

In comparison to the Whaling Convention, the RFMO’s have a more effective system of supervision. When the inspectors reports are received by the flag states, the flag states have a possibility to take measures against the violators in order to make them act in compliance with the regulations of the ICCAT and the WCPFC.

For the last organisation in this chapter, we turn to the International Seabed Authority; when we look at this system we see that the inspectors are sent to the contractors that are exploring and exploiting the deep seabed outside the territorial jurisdictional powers of states. The contractors are states, companies or research institutions that have been given a license by International Seabed Authority and that have a link with a sponsoring state. The member states can be the sponsoring states of the contractors, the companies that do the work, in order to make sure that the companies do not violate the rules of the ISBA and UNCLOS. When there might be a violation, the sponsoring states are the ones that can be held responsible under international law. The sponsoring states are there for trying to make sure that the

42 Western and Central Pacific Fisheries Commission Boarding and Inspections Procedures, Third Regular Session, WCPFC 11-15

December 2006, Conservation and Management Measure 2006-08.

43 Compendium Management Recommendations and Resolutions Adopted by ICCAT for the Conservation of Atlantic Tunas and Tuna-like

Species, pag. 72-75, ICCAT September 2006, PLE-012/2006.

44

Report on the 5th Meeting of the Working Group on Integrated Monitoring Measures, ICCAT, Madrid 16-18 July 2008 (Doc.No. COC-302 / 2008).

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contractors sponsored by them will comply with the rules and make sure that they will not do any harm to the environment of the deep seabed.45

The International Seabed Authority is authorized to send inspectors to the facilities of the contractors and inspect whether the contractors are acting in accordance with the terms and conditions of their contract. The inspectors may also look at the possible effects the activities of the contractor may have on the environment of the deep seabed and the marine environment.46

From article 139 paragraph 1 of the UNCLOS it follows that the sponsoring states have the obligation to control and monitor the activities of the contractors. This means that the states have the obligation to assist the International Seabed Authority. The International Seabed Authority has the primary role in the supervision on the activities of the contractors, in order to make sure that the supervision is done by an objective organ. The sponsoring states have the obligation to make sure that the contractors act in accordance with the regulations of the ISBA and the provisions of UNCLOS in order to prevent that harm is done. To make sure that the states honours this obligation, the ISBA system can hold the sponsoring states liable as far as they are not doing their best to ensure compliance by the contractors.47 This means that the sponsoring states will have to pay up in order to make sure the harm that is done will be minimized and when possible nullified, but only when they do not comply with the

obligation to ensure that they have done everything possible, and within their powers, to make the contractors act in compliance. If the states have done enough to ensure this, the state cannot be held liable for the damage that has occurred.

The International Seabed Authority has the right to exercise control over activities that take place in the area, in order to secure the compliance with the relevant provisions of

UNCLOS. This means that from article 153 paragraph 4 of the Convention the Authority can derive the right to send inspectors to the facilities of the contractors.

The reports of the inspections will be sent to the Authority, which will look into the reports and take action were they deem is necessary. The actions can consist out fines or they can freeze the license given to the contractor for its exploration and even disband the license totally.

When the ISBA has reviewed the report, they sent the report to the contractors and the states. This gives them the opportunity to take the necessary measures in order to comply with 45 Shigeru Oda, The Law of the Sea in our Time I, New Developments 1966-1975 (A.W. Sijthoff International Publishing Company B.V.

1977).

46 Selected Decisions and Documents of the Nineteenth Session, 15-25 July 2013 (ISA, 2013). 47

Advisory opinion on Responsibility and Obligations of States Sponsoring persons and entities with respect to activities in the area, Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, 1 February 2011, No. 17.

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the provisions of the UNCLOS and the regulations of the ISBA, and to make sure no harm is done to the fragile deep seabed environment.48

The answer to the question “What is done with the conclusions of the inspectors?” has different outcomes. It depends on what system you look at to find the answer.

We can see that the system of the Antarctic Treaty is working in a good way; the reports are discussed in the consultative meetings, and the parties look at possible solutions for the problems found by the inspectors. Although a good functioning enforcement mechanism is missing, many states see the importance of the conclusions of the inspectors and are willing to make adjustments in order to follow the recommendations given by the inspectors.

The conclusions of the inspectors are thoroughly looked at by the consultative parties to the Antarctic treaty.

When we look at the Whaling Convention, we see that the states party to Whaling Convention have good intentions to protect the whales and their habitats. Unfortunately the scheme that is in place now, lacks the power to make sure the states are acting in compliance with the regulations of the Whaling Convention. The reports are first sent to the states that are inspected, which means that they judge their own actions to determine whether there is an infraction or not. This makes it a system in which objectivism is not really an established value. Only after the states decide there is an infraction, the reports will be sent to the supervising authority which will look at it.

In comparison to the Whaling Convention, the RFMO’s have a more effective system of supervision. It is a system which is based on the inspectors and observers who look at the activities of the fishing vessels and the companies, and report on the activities and violations of these vessels and companies. When they report, states have a possibility to take measures against the violators in order to make them act in compliance with the regulations of the ICCAT and the WCPFC. In that way the protection of many different species of fish, which are protected by the ICCAT and WCPFC can be ensured.

The system of the ISBA is also quite effective on the point of what is done with the reports of the inspectors. These reports are sent to the Authority, after which the states can give their opinions and recommendations; the reports are also sent to the states and the contractors. This gives the contractors the opportunity to make adjustments in the behaviour

48 R. Wolfrum, Legitimacy of International Law and the Exercise of Administrative Functions: The Example of the International Seabed

Authority, the IMO and International Fisheries Organisations, Public Authority & International Institution (German Law Journal, Vol. 09

No. 11).

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of the activities which they conduct, to make sure that the behaviour of the contractors will be in accordance with the regulations.

Chapter IV: Do states feel the need to comply with the findings of the

inspections?

In this final chapter, I will look try to find the answer to the question: “Are states willing to comply with the conclusions of the inspectors?”.

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To find the answer I will look at the four different areas of international law, as I did in the three other chapters of this thesis. First I will look at the Antarctic Treaty.

We see that the inspectors of the Antarctic Treaty have concerns on the point of the Environmental Impact Assessments (EIA’s) which are missing at some stations. These EIA’s are necessary to look at, amongst others, how building activities that are planned or are taking place around the stations and other facilities could affect the environment on Antarctica. By making these assessments, the operators on Antarctica can assess the possible risks for the environment of Antarctica. Mostly the home government looks at the assessments and gives its opinion on it. This to make sure that the personnel of the stations and facilities have looked at all the possible outcomes of the building activities that will be taking place.49 For many inspections, we see that the inspectors are thoroughly looking at the stations and facilities if they have such EIA’s, because that is an important mechanism to know what the impact may be on the Antarctic environment that needs to be protected. The environment of Antarctica is a fragile balance between the different species that live there; we as humans should try and make sure that we do not intervene with this balance and harm the environment in such a way that it cannot be restored.

Luckily, the states understand the importance of these EIA’s and they try to make sure that the national authority responsible for Antarctic environmental affairs make such EIA’s.5051 We see that some of the states are making sure that they will be in compliance with the obligation to make an EIA before any building activity will take place. We see that when they receive the report of the inspectors, they assure the inspectors that an EIA will be made, based on annex I of the Madrid protocol, and send to the inspectors.52

Not only the states are trying to comply with the obligation to make an EIA, also the private companies that act on Antarctica assure to make EIA’s, they have an obligation to make these assessments based on the national legislation. This legislation has to make sure that annex I of the Madrid protocol is implemented in the national legal order. For instance tourist organisations must also comply with these regulations and protect the environment. But these private entities are also forming a concern for the inspectors. It follows from their

49 Ambassador Karsten Klepsvik, Report of the Norwegian Antarctic Inspection under Article VII of the Antarctic Treaty, February 2009

(Royal Ministry of Foreign Affairs, 2009).

50 L.K. Kriwoken, D. Rootes, Tourism on ice: environmental impact assessment of Antarctic tourism, Impact Assessment and Project

Appraisal, volume 18, number 2, June 2000, pages 138–150, Beech Tree Publishing.

51 Evan T. Bloom, Dmitry Gonchar, Report of Russia-US Joint Antarctic Inspection under Article VII of the Antarctic Treaty and Article 14

of the Protocol on Environmental Protection to the Antarctic Treaty, November 29 – December 6 2012.

52

Ambassador Dr. Martin Ney, Mr. Henry Valentine, Inspection by Germany and South Africa in accordance with Article VII of the Antarctic Treaty and Article 14 of the Protocol on Environmental Protection: January 2013 (Federal Foreign Office Germany, 2013).

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reports that they have concerns on the influence these private entities will have on the

functioning of the research stations. States might need the private entities to assist financially in order to make sure that the research stations can be kept open and running. But it makes it more difficult to know who is responsible for any possible violation of the regulations of the Antarctic Treaty and it might set aside the objective scientific goal of the research.53

Another problem picked up by the inspectors in some instances, are the modalities of waste disposal. There are many stations that have good installations for the separation of waste and its safe transport from Antarctica.54 But the inspectors made some alarming discoveries at stations that do not have any good means of treating the waste; they have open containers from which the waste can easily be picked up by the wind and taken into the fragile environment of Antarctica. This issue should be addressed by the states that are creating potential harm to the environment.55

We see for the Antarctic Treaty that states are aware of the fragile environment that exists on the continent and that they want to protect it as good as they can. Therefore they try to make sure they comply with the regulations under the Antarctic Treaty. Unfortunately, not all the states see the importance of the protection of the environment as thoroughly as many others do. They try to protect it, but are a bit slothful to some of the regulations that are in place to protect the environment. But we can see that the states are willing to comply and that the inspections make it clear to the states on which points they still need to make adjustments in order to protect Antarctica more effectively.

When we take a look at the Whaling Convention, we see that states have a very different view on the protection of the whales and the compliance with the regulations of the Whaling Convention. When states have agreed that reports of the inspectors or observers can be seen as infractions, they send them to the Infractions committee. When the sub-committee has received it, the committe will monitor the states in order to establish whether or not they do something to solve the infraction.56 In the annual reports of the International

53 Ambassador Karsten Klepsvik, Report of the Norwegian Antarctic Inspection under Article VII of the Antarctic Treaty, February 2009

(Royal Ministry of Foreign Affairs, 2009).

54 Mr Dick van der Kroef, Admiral Manolo Catalan, Mr Colin Roberts CVO, Antarctic Treaty Inspections Programme Report 2012 Report of

Antarctic Treaty Inspections undertaken jointly by the United Kingdom, the Netherlands and Spain in accordance with Article VII of the Antarctic Treaty and Article 14 of the Environmental Protocol, April 2013 (Stationery Office UK, Crown Copyright 2013).

55 Evan T. Bloom, Dmitry Gonchar, Report of Russia-US Joint Antarctic Inspection under Article VII of the Antarctic Treaty and Article 14

of the Protocol on Environmental Protection to the Antarctic Treaty, November 29 – December 6 2012.

56 Annual Report of the International Whaling Commission 2008, 60th annual meeting (Cambridge 2009, ISSN: 1561-0721).

29

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