An Introduction: Institutional framework to implement
Antarctic governance based on best available science
Session 46 on Consensus-Building based on Best Available Science in ATS

Akiho Shibata1, with the assistance of Ridzanna Abdulgafur2
1 Professor of International Law and Director, Polar Cooperation Research Centre (PCRC)
2

Research student, Graduate School of International Cooperation Studies (GSICS)

Kobe University, Japan

SCAR Open Science Conference
Pucon, Chile, August 19-23, 2024

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shibata2024osc

Akiho Shibata
Professor of International Law and Director
Polar Cooperation Research Centre (PCRC),
Kobe University, Japan
SCAR Open Science Conference
Pucon, Chile, August 19-23, 2024

Please consider submitting your papers to: Special Section
on Policy-Law-Science Nexus, in Antarctic Science(Cambridge UP)

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1. Best available science (BAS): ignored? abused?
What had happened at 46 ATCM in Kochi?
Two examples of concern:••

Emperor Penguin ASPS designation rejected, again
ASPA 139 revised Management Plan not adopted

Examination of Chinese reasons of objections:46 ATCM Final Report language:
ASPA 139: “China noted its concerns that prevented consensus on ASPA 139: the lackof scientific data involved in the proposal about the marine areas to be included in theASPA; the major nature of the change (from 0.6 square kilometres to 3.9 squarekilometres); and that no alternative measures to manage human impacts in the area had
been considered.”

Photo: May 21 CEP discussion on ASPA 139
revised Management Plan. Due to an objection
by China, the proposal was not adopted.

Emperor Penguin: “Some Parties did not support designating the emperor penguin as a Specially Protected Species, noting thatdrivers of the population decline were not fully understood; there was little evidence that sea-ice would continue to decline; there
was not a strong correlation between sea-ice reduction and penguin population decline; and there was no scientific basis forprotection. These Parties also stressed their position that the emperor penguin was already adequately protected under existingmeasures.”“In response, SCAR emphasised that there was clear evidence for a 10% decline in emperor penguins over the past decade. It
highlighted the statistically significant correlation between sea-ice decline and emperor penguin numbers and that the importance4of sea-ice to emperor penguins was well understood and documented.”2. BAS as an established principle of ATS governanceLong-standing principle of marine resource conservation:
ü 1968 SCAR’s Guidelines on Pelagic Sealing already refers to the total number of seals to be taken in
the Antarctic Treaty area “will be set in light of the best available scientific evidence”; and later moregenerally and legally in Art.3 (2) of the Convention for the Conservation of Antarctic Seals (1972):“measures adopted under paragraph (1) of this Article shall be based on the best scientific andtechnical evidence available”.
ü 1980 CCAMLR Art.IX (1) (f) provides a mandate of the Commission to “formulate, adopt and revise
conservation measures on the basis of the best available scientific evidence available”.
Ø 1982 UNCLOS Arts. 61 & 119 in relation to allowable catch of marine living resources.
Ø 1995 Fish Stock Agreement: as a general principle (Art. 5 (1) (b) and in all aspects, including in thecontext of precautionary approach (Art. 6).

Development into general principle of environmental protection:
ü 1991 Madrid Protocol Art.10 (1) has broadened the applicability of the BAS principle to Antarctic
environmental protection generally and mandated the ATCM to draw ”upon the best available scientificand technical advice available”, to define general environmental protection policies and to adopt
measures to implement the Protocol.
5Ø 1982 UNCLOS Art.234; 1992 UNFCCC Art. 4; 2015 Paris Agreement; 2023 BBNJ Art.7 (i)2. BAS as an established principle of ATS governanceBAS in BBNJ Agreement: its potential legal implication to ATS

Cf: 46 ATCM (2024) Draft resolution on“Relationship between BBNJ and ATS” was notadopted due to different views among CPs.
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3. Remaining research questions regarding BAS
1. Its conceptual and practical relationship with precautionary
approach in international law generally and in Antarcticgovernance specificallyü IL generally: ITLOS advisory opinion on climate change and international law, May 21, 2024.
ü Antarctic governance: Madrid Protocol practice (ASPA & ASPS); CCAMLR practice

2. Substantive elements of science being “best” and “available”
ü What do these qualifiers mean, scientifically, legally, and practically?
ü How are these qualifiers applied actually? Case studies.

3. How does consensus decision-making in Antarctic environmental /resource management governance affect the application of BAS?
ü Is “best” and “available” science determined politically (what can be agreed by all CPs, in their
specific negotiating and geopolitical situations)? Weaponization of science?
ü How does institutionalization of the process of determining “best” and “available” science
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contribute to de-politization of the application of BAS? Cf. The role of SCAR.

3-1. Conceptual relationship between BAS and precaution
1. Lessons from 2024 ITLOS advisory opinionü IPCC Report as the “best available science” but should not be thesole determinant for necessary decisions (paras. 208, 211-212).
ü When BAS shows serious and irreversible damage, theprecautionary approach is “more” necessary (para.213).
ü Under due diligence obligation under UNCLOS 194, BAS informs the high risks of harm in its
foreseeability and severity and necessary decisions be made accordingly. At the same time,
due diligence obligation requires precautionary approach even when scientific evidence isinsufficient (paras. 241-242).

How to understand these pronouncements? The details of ”relationship”
is not yet clear.

2. Background information with literature review
ü 2015 ITLOS advisory opinion on SRFC: UNCLOS Arts. 61 & 62 oblige management based on BAS,but when such evidence insufficient, precautionary approach be applied (para.208).
ü Cook (2018): “the absence of BAS to trigger the application of precautionary approach” (p.393)
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3-2. Substantive elements of ”best” and “available”
1. 2024 ITLOS advisory opinion
ü IPCC report as best available science because it “reflects scientific consensus” (para.208).

2. Literature review
ü Cook (2018): “Best” science must adhere to best practice standard, which requires acceptance byinternational scientific research communities.
ü Ryder (2010): “Best” science is either academically credible or convenient and ranges from accurate toacceptable to support user’s position or agenda.
ü Ryder (2010) & Cook (2018): “Availability” of science is evaluated by a process how the science reaches
the end-users or how the international scientific bodies and relevant governments comply with their duties toensure that the science is made available for certain purposes.
ü Cook (2018): In order to be ‘best’ science, that science must be ‘available’, thus, one element is reinforcing
the other. (p.400)

How to understand these views? A little different nuances as to the“best” criteria; and the availability criteria relates more to the process.
9Selected Reference List
• Chown et al (2024). Science advice for international governance: An evidence-based perspective on the role of
SCAR in the Antarctic Treaty System, Marine Policy, 163.
• Mendenhall & Helm (2024). When best available science is not good enough: The need for supporting
scientific research in the United Nations treaty to protect biodiversity beyond national jurisdiction, MarinePolicy, 161.
• Hughes et al (2024). Communicating the best available science to inform Antarctic policy and management: apractical introduction for researchers, Antarctic Science, 35 (6).
• International Tribunal for the Law of the Sea (2024). Request for an advisory opinion submitted by theCommission of Small Island States on Climate Change and International Law, Advisory opinion, 21 May 2024,
ITLOS Report 2024.
• Cook (2018). Judging best available science: emerging issues and the role of experts, J. International DisputeSettlement 9 (3)• Ryder et al (2010). Defining and using ‘best available science’: A policy conundrum for the management ofaquatic ecosystems, Marine and Freshwater Research, 61 (7).
• International Tribunal for the Law of the Sea (2015). Request for an advisory opinion submitted by the SubRegional Fisheries Commission, Advisory opinion, 2 April 2015, ITLOS Report 2015, p.4.
• American Fisheries Committee (2006). Defining and implementing best available science for fisheries andenvironmental science, policy and management. fisheries.org/docs/policy_science.pdf
10Please consider submitting your papers to: Special Section
on Policy-Law-Science Nexus, in Antarctic Science(Cambridge UP)

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QR code to access presentation files

PW to view the documents

shibata2024osc

Akiho Shibata
Professor of International Law and Director
Polar Cooperation Research Centre (PCRC),
Kobe University, Japan
SCAR Open Science Conference
Pucon, Chile, August 19-23, 2024

Looking towards 2026 ATCM: Some Homework to do
Thank you for listening
and look forward to welcoming you in Hiroshima for 2026 ATCM

Photo:
January 2017
Adelie penguins at Japanese
penguin research field,
Mizukukuriura,
East Antarctica
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