Discussion On The Application Of The Precautionary Principle In Antarctica

The Precautionary Principle is one of the most important principles in InternationalEnvironmental Law, being accepted into many international legal instruments, includingboth hard law and soft law, such as the Convention on the Protection of the MarineEnvironment of the Baltic Sea Area (2000), Energy Charter Treaty (1998), Convention onBiological Diversity (1993), Rio Declaration on Environment and Development (1992),Declaration of the First International Conference on the Protection of the North Sea(1984), and is deemed as an effective tool for protecting the environment. However, thereis no explicit provision concerning this principle in the Protocol on EnvironmentalProtection to the Antarctic Treaty, enacted in1991, which has impeded the effectiveprotection of the Antarctic environment. Some scholars (Scott,2001; Bastmeijer&Roura,2004; Alan et al,2007) noticed this question, but none of them has put forward anyeffective and systematic responses, just focused on tourism activities. To be specific,neither the theory of the Precautionary Principle (used in International EnvironmentalLaw) nor the theory of Risk Management (used in other disciplines) has beensystematically or sufficiently explored in the Antarctic areas, especially few intoscientific research activities.In the Antarctic and subantarctic areas, human activities have been intensifying anddiversifying rapidly, from scientific expeditions to tourism, which are placing growingpressures on the environment and leaving behind significant environmental, social,political and legal footprints. Increasing human activities means escalating risks ofpollution from vessels, logistics, ports, and point-resource discharges, causing threats tospecies, ecosystems and natural resources around the Antarctic coastal areas. Meanwhile,regional warming, ocean acidification, and changes in sea-ice distribution are alsoimposing influence on environment in Antarctic and subantarctic areas. Any minimalinfluence from human beings may cause irretrievable outcomes in Antarctica, thelow-temperature condition may also contribute to cumulate some dangerous matters.Therefore, it is important to adopt a dynamic and systematic conservation approach tothese complicated threats.There has been research on the theoretical frameworks of the Precautionary Principle, such as, Manson (2002) and Zhu (2006) summarized the basic components of thisprinciple. But they did not give sufficient consideration to the regulations in Antarctica.Considering Antarctic unique features, some changes are needed. Therefore, the thesisfirstly lists and analyses some major international legal instruments containing thePrecautionary Principle and then makes some modifications to the previous framework ofthis principle. As regard to the relationship between the prevention and precaution,Cameron (1993) and Wang (2005) think that “prevention” applies to the known threats,and “precaution” applies to uncertain threats. But in Antarctica, this thesis thinks thatthey should all be contained into the Precautionary Principle, because they are justdifferent degrees of uncertainty. In addition, four international legal cases from theinternational Court of Justice and International Tribunal for the Law of the Sea areanalyzed. Based on the judgments, it is concluded that the Precautionary Principle hasnot been widely accepted by the court, but this principle is regarded as a trigger ofreversion of proof burden.In the following part, this thesis analyses the problems caused by the absence of thePrecautionary Principle and the inadequacy of the current theoretical analysis of thisprinciple with the regulations in the Protocol on Environmental Protection to theAntarctic Treaty, and concludes that in order to tackle the problems caused by cumulativeeffects from some matters that is less than minor effect, different procedure and standardsregarding the scientific uncertainty in different countries, insufficient regulations of thegas in knowledge and uncertainties in the Comprehensive Environmental Evaluation, amodified framework of the Precautionary Principle is needed.In the end, based on the framework put forward by Manson (2002) and Zhu (2006), thisthesis puts forward a new theoretical framework of the Precautionary Principle that theenvironmental condition, or the environmental fragility, should be the factor that willtrigger the application of the Precautionary Principle, because the environment is fragile,it is necessary to take measures to stop the action that may cause damage. To be specific,this modified theoretical framework comprises four parts: environmental condition,human action, damage, and rational remedies, which would be more suitable to theAntarctic unique circumstances. Also in this part, some natural risks happened inAntarctic and subantarctic areas are summarized from the outcomes reached by naturalscientists who have carried out abundant research concerning the Antarctic environmentconditions, such as, equipment (e.g. data buoys, loggers, and machinery) can be left orlost in the ocean; petroleum-based drill fluid can be observable in the ice sheet for tens ofthousands of years; handling of animals can lead to physical injury of the animal orchanges to the foraging activities. Meanwhile, three suggestions are put forward, that theAntarctic Treaty Consultative Meeting or the Committee for Environmental Protection can select some typical Comprehensive Environmental Evaluation as guidance, using theformat of “Case” or “Annex”, to direct countries that are carrying out environmentalassessment, that the description of “gas in knowledge and uncertainties” should be acompulsive requirement for the Initiative Environmental Evaluation, that the negotiationsamong different countries are needed before starting a Comprehensive EnvironmentalEvaluation. In this part, it concludes that if there are disputes in the Antarctica,distribution of burden of proof should also use the “who claim, who quote”.In conclusion, using this new theoretical framework, along with some adjustments to thecurrent regimes, it will be more effective to manage the Antarctic environment.