 |
| Photo of Esperanza Base, Antarctica. by Tim Ellis, subject to Creative Commons Licence - http://creativecommons.org/licenses/by-nc/2.0/ (http://www.flickr.com/photos/tim_ellis/30958040/) |
This is a little off topic but seemed interesting. This year the British Parliament passed the Scotland Act 2012, which grants greater powers to the Scottish Parliament, mostly over taxation. However, tucked away in the act is section 11, which transfers power the other way, returning power over regulation of activities in Antarctica from the Scottish Parliament to the British one. It does this by modifying Schedule 5 to the Scotland Act 1998, which lists the powers which are “reserved”, that is, the powers not transferred to the Scottish Parliament. The principle was that anything not listed was deemed to have been devolved. Schedule 5 listed obvious things like defence & foreign affairs, along with intellectual property & data protection. It also included regulation of activities in outer space, but didn't mention Antarctica.
No-one noticed this for a long time, until the new legislation to devolve more powers was in development. It wasn't mentioned in the report of the Calman Commission on Devolution, which originated many of the proposals eventually contained in the new act.
In response to a new annex to the Environmental Protection Protocol to the Antarctic Treaty, the British Government proposed new legislation to implement this. This would presumably amend the 1994 Antarctica Act, which regulates UK based Antarctic activities & requires permission from the Secretary of State, the Foreign Secretary, for expeditions to Antarctica from the UK. This could include pacakge holidays being organised from the UK. The Secretary of State can impose conditions for the purposes of environmental protection. It is this legislation which could in theory be altered by the Scottish Parliament, if the competence has been devolved, for example to allow the Scottish Government to authorise expeditions to Antarctica.
It has been argued that regulation of Antarctic activities wasn't really devolved, that other provisions of the 1998 Act would preclude that. Notably section 29, which says that a provision is outside the Scottish Parliament's competence if it creates functions “exercisable otherwise than in or as regards Scotland”. However, the Scottish Government's position is that any preparation & planning for an expedition in Scotland would be within Scotland & within the jurisdiction of the Scottish Parliament. Of course, the 1994 Act is still in fact in force in Scotland, the Scottish Parliament not having attempted to amend it.
The Scottish Government agreed in 2010 to ask the Scottish Parliament (in which it has a majority) to approve the amendment of the Antarctic Act. They accepted, despite their support for Scottish independence, that the Foreign & Commonwealth Office of the British Government should continue to exercise this function. This process is known as a Sewel Motion, a procedure whereby a devolved legislature agrees for the British Parliament to legislate on a matter which has been devolved. The British Government decided instead to include in the new devolution bill the section re-reserving Antarctica. The Scottish Government is controlled by the Scottish National Party, & their members in the British Parliament did try to amend the bill to remove the re-reservation, but in the end did not press the matter. They declared their opposition in principle to any re-reservation of a power already held by the Scottish Parliament, but conceded that they had not used & had no intention to use this power.
There is another interesting quirk of Antarctic law in the UK. The aforementioned 1994 Act requires people planning expeditions to Antarctica to seek the permission of the Foreign Secretary. If this permission is refused, they can appeal the decision to the Antarctic Tribunal. I don't know if permission has never been refused or perhaps simply that when it is the applicants go away & change their proposals, but the Antarctic Tribunal is one of a select few tribunals in the UK which exists on paper, but has never met.
Finally, a quirk of immigration & nationality law also makes an appearance. One of the UK's involvements in Antarctica is the British Overseas Territory known as the British Antarctic Territory. This territorial claim, like others in Antarctica, is “frozen”, & has no practical effect on the ground, where any country can set up a scientific base wherever it likes under the Antarctic Treaty. The British claim overlaps the Argentine & Chilean claims.
There was a period in the late seventies, when Chile & Argentina, to cement their claims, encouraged the military personnel running their bases in Antarctica, to have their families with them, including pregnant women. This led, in 1978, to the birth of Emilio Marcos de Palma, on the Argentine Esperanza base, on the northernmost part of the Antarctic mainland. He has been followed, to date, by 7 more Argentinians & 3 Chileans. The site of the Esperanza base, as well as being in the Argentine claim on Antarctica, is also within the British claim. So what? Well, under the British nationality law in force at the time, prior to 1983, the British Nationality Act 1948, anyone born in the United Kingdom or one of its colonies was automatically a Citizen of the United Kingdom & Colonies. The British Nationality Act 1981 took away this automatic right from people born from 1983 onwards & split citizenship up into British citizens & British Dependent Territories Citizens, for those born in dependent territories. This status was renamed in 2002 by the British Overseas Territories Citizenship Act to British Overseas Territories Citizenship. The Act also granted to those already holding this status automatic British Citizenship. It therefore follows that Emilio Marcos de Palma & any other people born within the claimed boundaries of the British Antarctic Territory are entitled to British Nationality, though it does not seem that any have taken this up.
References
No comments:
Post a Comment