On 4 October 1991, almost 27 years ago, negotiation of the Environmental Protocol to the Antarctic Treaty (the “Protocol”) finished in Madrid. On 14 January 1998, two decades ago, the Protocol made its entry into force. Now, the Protocol is compulsory for 40 States.
Considering the seriousness of the threat to the Antarctic environment, it is a good time to reflect on the rules that were created to protect it, and how they are now being applied.
Preliminary considerations for an assessment of the Protocol
It is not easy to carry out an objective assessment of the Protocol. There are several causes for this, and I would like to highlight three of them.
Firstly, because the Protocol is highly symbolic, and it is never easy to adopt a critical approach when most people think that something is very good or very important. However, such a critical approach is essential to improve the Antarctic environmental protection.
Secondly, because the Protocol’s application is an unfinished and ongoing process. Every day it faces new challenges, some of which were not even considered in 1991.
Thirdly, because it is necessary to draw a distinction between the diplomatic, legal and practical perspectives. From a diplomatic point of view, it is a major achievement. Its negotiation was very successful, even considering the disagreements and geopolitical problems that it has had to face. From a legal perspective, the Protocol has secured important achievements, and it has been the starting point for other areas of international law, such as the regulation of mineral activities in the seabed. But, at the same time, it has some significant weaknesses, such as the lack of effective control mechanisms or those of a liability regime. Finally, in respect of its application, each State has different procedures: there are several aspects not fully developed in national law and practice, and there is not enough information to make a general assessment.
Scope of the Protocol’s application
There are several limits to the Protocol’s application, which reduce its effectiveness.
Beyond the academic discussion about whether or not the Antarctic Treaty System is an objective regime or if its rules are part of international custom, the Protocol is only compulsory for States that have voluntarily assumed its obligations. Even then, not all of the Antarctic Treaty Parties are part of the Protocol: at present 13 of them are not committed to the Protocol. In total, 73% of the Union Nations’ States are not committed to the Antarctic Treaty, although it should be noted that the Antarctic Treaty Parties do cover 66% of the world’s population.
A further limit is that the geographical area of the Protocol’s application is south of the 60º south latitude. This delimitation is inadequate if we consider the objective and purpose of the Protocol: “the comprehensive protection of the Antarctic environment and dependent and associated ecosystems”. These extend to at least the Antarctic Convergence, the irregular and changing boundary between the Southern Ocean and the Pacific, Atlantic, and Indian oceans. Annex IV of the Protocol, on the prevention of marine pollution, and some of the agreements adopted at Antarctic Treaty Consultative Meetings, do support the idea of extending the Protocol application to that limit. Some authors also support this position, reasoning that this is the Convention on the Conservation of Antarctic Marine Living Resources criteria.
Finally, there are several activities that are not covered by the Protocol’s protection, although they are carried out in the Antarctic area and they affect its environment. The most important of these exceptions is high-sea navigation, although the definition of what the ‘high-sea’ is in this region is not clear. The Protocol is not applicable to overflight nor other aerial activities where they do not land in the Antarctic.
Further, sealing, fishing, and whaling are excluded from the protective scope of the Protocol because these activities are regulated by their own conventions. This is so in spite of the fact that these other international agreements do not have proper environmental protection rules.
In conclusion, the Protocol is only applicable to scientific and touristic activities, and to other activities that the Antarctic Treaty Parties should give notice of in advance.
The Protocol has several merits that must be highlighted.
The first is the recognition of environmental protection as a leading principle of any activity done in the Antarctic Treaty area. These activities must be planned and conducted – even modified, suspended or cancelled – to ensure the effective protection of the Antarctic environment, its dependent and associated ecosystems, and the intrinsic value of Antarctica.
The second achievement, even if not every State applies it in the same manner, is the duty to conduct a prior environmental impact assessment for activities planned to be conducted in the Antarctic and under the Protocol’s scope.
A third achievement of the Protocol is institutional: the foundation and active working of the Committee on Environmental Protection.
A fourth success has been the establishment of Antarctic Special Protected Areas (72) and Antarctic Special Managed Areas (6), plus Historic Sites (87), which form a network of representative environmental-worth places. This kind of nomination began before the Protocol, but the Protocol’s Annex V has consolidated it as an instrument of environmental protection.
A fifth achievement has been to make the process for entry into force of the measures adopted by the Antarctic Treaty Consultative Meetings on environmental matters easier and faster. The Protocol establishes a system of tacit approvals. At present, most of the measures in force are on environmental matters.
A sixth success, although its efficacy could be debated, is the environmental inspections of the Antarctic infrastructure and activities that the States do amongst one another. Its main weakness is that it is not compulsory to solve the observations made in these inspections.
Finally, a seventh achievement of the Protocol is the ban on any activity related to mineral resources, other than scientific research. This prohibition is indefinite but it is revisable, and it is possible that scientific research could be conducted to make an inventory of resources that in the future could be exploited. Some States have openly acknowledged their interests in this future exploitation of Antarctic minerals.
The Protocol does not have a set term, and it can be modified only by consensus. But from 2048 onward, and provided that certain requirements are fulfilled, it could be modified by the majority of the Consultative States. From a political and legal point of view, this is a huge change. Maybe nothing will happen that year, but it is a date to have in mind.
Environmental protection faces new challenges every day. These come from an interrelation between Antarctic activities and certain global processes.
Among the key local challenges are: waste accumulation and the impact of different activities conducted in Antarctica; the increase in the number of people going there (scientists and researchers, support personnel or just tourists); the proliferation of Antarctic stations and the access to still spotless areas; the introduction (voluntarily or not) of non-native species by people; and, the pressure exerted by, and for, commercial activities.
The main global factors are: climate change; marine and atmospheric pollution; the weakness of the ozone layer; the “natural” introduction of non-native species; and, the changes in the oceans.
It would be absurd to demand a response for every one of these challenges. Some of them go beyond the Protocol’s regulatory scope and others go even further than the law. But in several areas it is expected (and required) that the environmental protection regime increases the level of protection from that given in 1991. For example: applying a precautionary approach more clearly; considering the accumulative impact; increasing the control mechanisms; enacting an environmental damage liability regime; and, standardizing domestic legal procedures on Antarctic environmental protection.
A huge political and legal challenge is to find a way to increase environmental protection when the heterogeneity of the Antarctic Treaty Consultative Meetings makes achieving agreement more complex each time. In fact, since 1991 when the Protocol and its five first annexes were adopted, no other substantive legal instrument has been agreed (Annex VI was adopted in 2005 but is still not in force). At the same time, Antarctic activities have been expanding and diversifying.
25 years after the adoption of the Environmental Protocol, and 20 years after it entered into force, it is clear that the Protocol is a huge achievement in the history of the Antarctic Treaty System. But it has several challenges ahead. The Antarctic environmental protection is a daily task and a duty for humanity and for the Antarctic Treaty Consultative Parties in particular. From an international law perspective, we must contribute to this effort: but the main responsibility belongs to politics, from where it is necessary to promote several legal, economic and social changes, especially in our approaches to, and perceptions of, the fragility of this unique environment.