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New Trends in the Protection of the Antarctic Environment: The 1991 Madrid Protocol

Published online by Cambridge University Press:  27 February 2017

S. K. N. Blay
S. K. N. Blay*
Affiliation:
Law School and Institute of Antarctic and Southern Ocean Studies, University of Tasmania, Hobart, Australia
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Extract

In June 1991, the Antarctic Treaty states, meeting in Madrid, Spain, approved the Protocol on Environmental Protection to the Antarctic Treaty (the Madrid Protocol). The Protocol was adopted by the Antarctic Treaty Consultative Parties and opened for signature on October 4, 1991. Negotiated over a three-year period, the Protocol, together with its annexes, is the most comprehensive multilateral document ever adopted on the international protection of the environment. It promises to be a significant blueprint for preserving the Antarctic. An ironic feature of the Protocol is that, while it bans mining in Antarctica, it had its origins in the 1988 Convention for the Regulation of Antarctic Mineral Resource Activities (CRAMRA), which permitted mining.

Type
Current Developments
Information
American Journal of International Law , Volume 86 , Issue 2 , April 1992 , pp. 377 - 399
Copyright
Copyright © American Society of International Law 1992

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References

1 June 22, 1991, Doc. [11th Antarctic Treaty Special Consultative Meeting] XIATSCM/2, text of Final Act, Oct. 4,1991, reprinted in 30 ILM 1455 (1991) (the ILM text will be cited below) [hereinafter Madrid Protocol].

2 June 2, 1988, Doc. AMR/SCM/88/78, reprinted in 27 ILM 859 (1988) [hereinafter CRAMRA].

3 For a commentary on the negotiations, see generally Joyner, The Antarctic Minerals Negotiating Process, 81 AJIL 888 (1987).

4 The words “claimants” and “nonclaimants” are used to indicate the states that have made territo rial claims in the Antarctic and those that have not. For a list of those states and a brief discussion, see Joyner, note 3 supra, at 890.

5 Most of the conditions were contained in Article 4, which provided under the heading “Principles Concerning Judgments on Antarctic Mineral Resource Activities” that: 1. Decisions about Antarctic mineral resource activities shall be based upon information adequate to enable informed judgments to be made about their possible impacts and no such activities shall take place unless this information is available for decisions relevant to those activities. 2. No Antarctic mineral resource activity shall take place until it is judged, based upon assessment of its possible impacts on the Antarctic environment and on dependent and on associated ecosystems, that the activity in question would not cause: (a) significant adverse effects on air and water quality; (b) significant changes in atmospheric, terrestrial or marine environments; (c) significant changes in the distribution, abundance or productivity of populations of species of fauna or flora; (d) further jeopardy to endangered or threatened species or populations of such species; or (e) degradation of, or substantial risk to, areas of special biological, scientific, historic, aesthetic or wilderness significance. 3. No Antarctic mineral resource activity shall take place until it is judged, based upon assess ment of its possible impacts, that the activity in question would not cause significant adverse effects on global or regional climate or weather patterns. 4. No Antarctic mineral resource activity shall take place until it is judged that: (a) technology and procedures are available to provide for safe operations and compliance with paragraphs 2 and 3 above; (b) there exists the capacity to monitor key environmental parameters and ecosystem components so as to identify any adverse effects of such activity and to provide for the modification of operating procedures as may be necessary in the light of the results of monitoring or increased knowledge of the Antarctic environment or dependent or associated ecosystems; and (c) there exists the capacity to respond effectively to accidents, particularly those with potential environmental effects. 5. The judgments referred to in paragraphs 2, 3 and 4 above shall take into account the cumulative impacts of possible Antarctic mineral resource activities both by themselves and in combination with other such activities and other uses of Antarctica. CRAMRA, supra note 2, Art. 4.

6 Media Release from the Office of the Prime Minister (May 22, 1989).

7 Belgium Snubs Antarctic Plan, Mercury (Hobart), July 7, 1989, at 7, col. 4.

8 For a description of the Antarctic Treaty system, see Joyner, supra note 3, at 889-90.

9 Dec. 1, 1959, 12 UST 794, TIAS No. 4780, 402 UNTS 71.

10 June 2-13, 1964, 17 UST 991, 996, TIAS No. 6058.

11 June 1, 1972, 29 UST 441, TIAS No. 8826.

12 May 20, 1980, 33 UST 3476, TIAS No. 10,240.

13 See 1 ANTARCTICA AND INTERNATIONAL LA w: A COLLECTION OF INTER-STATE AND NATIONAL DOCUMENTS 146 (W. Bush ed. 1982) [hereinafter Bush]. For the Agreed Measures, see supra note 10.

14 Bush, supra note 13, at 147.

15 Agreed Measures, supra note 10, Art. VII(3).

16 Convention for the Conservation of Antarctic Seals, supra note 11, Art. 5(7).

17 Convention for the Conservation of Antarctic Marine Living Resources, supra note 12, Art. I.

18 Id., Art. VI.

19 Id., Art. II.

20 CRAMRA, supra note 2, Art. 5(2).

21 Id., Art. 5(4).

22 Id., Art. 2(3).

23 Id., Art. 4(2).

24 Id., Art. 4(3).

25 Id., Art. 4(4).

26 Id., Art. 4(4)(c).

27 Id., Art. 21(l)(c).

28 Id., Art. 21(l)(e)(ii).

29 W., Art. 51.

30 W., Art. 8(4).

31 Id., Art. 8(7).

32 The documents are reproduced as XV ATCM/WP/2 and XV ATCM/WP/3, respectively, in FINAL REPORT OF FIFTEENTH ANTARCTIC TREATY CONSULTATIVE MEETING 202-13 (1989) [hereinafter 1989 FINAL REPORT].

33 See Docs. XV ATCM/WP/7 (Chile), id. at 227; XV ATCM/WP/4 (New Zealand), id. at 214; XV ATCM/WP/8 (United States), id. at 237; XV ATCM/WP/14 (Sweden), id. at 243.

34 1989 FINAL REPORT, supra note 32, at 14.

35 Id. at 43. Recommendation XV-1, sponsored by the United Kingdom, gave the impression at least at this stage that CRAMRA was still a viable option for the protection of the Antarctic environment.

36 Press statement from the office of the New Zealand Prime Minister (July 6, 1990).

37 Report of Working Group, Doc. IX ATSCM/2/WGI/32 (Apr. 30, 1991).

38 See, e.g., D. ROTHWELL, A WORLD PARK FOR ANTARCTICA? FOUNDATIONS, DEVELOPMENTS AND THE FUTURE(Antarctic and Southern Ocean Law and Policy Occasional Papers No. 3, 1990); Joyner, Protection of the Antarctic Environment: Rethinking Problems and Prospects, 19 CORNELL INT'L L.J. 259(1986).

39 See, e.g., A Comprehensive Regime for the Protection of the Antarctic Environment and Asso ciated Ecosystems: Summary of Australian/French Views, Doc. FRAUREV 3 (May 15, 1990).

40 See documents cited in note 33 supra, 1989 FINAL REPORT at 215-16, 228, 239, 243.

41 The Bahia Paraiso was an Argentinean ship that ran aground off Antarctica's Anvers Island in February 1989. See Sydney Morning Herald, Mar. 22, 1989, at 4.

42 Working Group I Report, Doc. XI ATSCM/2/WGI/32, at 1, Interim Report of the Xlth ATSCM, Second Session, XI ATSCM/2/31 (1991) [hereinafter Interim Report].

43 Interim Report, supra note 42, at 5.

44 Working Group I Report, supra note 42, at 6.

45 1989 FINAL REPORT, supra note 32, at 209.

46 Madrid Protocol, supra note 1, Art. 2(2)(c)(v).

47 Id., Art. 12(1).

48 Doc. XV ATCM/WP/3, supra note 32.

49 id.

50 Madrid Protocol, supra note 1, Ann. I, Art. 2(1).

51 Id., Art. 2(2).

52 Id., Art. 3(2).

53 Id., Art. 3(3).

54 Id., Art. 3(5), (6).

55 Such activities include (a) all expeditions to and within Antarctica, on the part of a state's ships or nationals, and all expeditions to Antarctica organized in or proceeding from its territory; (b) those in relation to the occupation of all stations by the nationals of the state; and, (c) any military personnel or equipment introduced by the state into Antarctica subject to the Antarctic Treaty. Antarctic Treaty, supra note 9, Art. VII(5).

56 Emphasis added.

57 Madrid Protocol, supra note 1, Ann. Ill, Art. 1(3).

58 Id., Art. 1(2).

59 W., Art. 1(4).

60 Id., Art. 8(1).

61 Id., Art. 2(1).

62 Id., Art. 4(2).

63 Id., Art. 8(2).

64 Madrid Protocol, supra note 1, Ann. IV, Art. 11.

65 Id., Art. 3(1).

66 Id., Art. 4.

67 Id., Art. 5.

68 Id., Art. 9.

69 [1991] 198 PARL. DEB., H.C., col. 1403 (Remarks of British Under Secretary of State for Foreign and Commonwealth Affairs).

70 The World Tourism Organization, as an NGO, was also invited.

71 GREENPEACE, REPORT OF THE XVI ANTARCTIC CONSULTATIVE MEETING, BONN, GERMANY, 7-18 OCTOBER 1991, at 3 (1991).

72 Id. at 2.

73 See ASOC, A Critique of the Protocol to the Antarctic Treaty on the Protection of the Environ ment, Doc. XVI ATCM/INFO 21 (Oct. 8, 1991).

74 Recommendation XVI-10, Doc. XVI ATCM/WP 57 (Oct. 18, 1991).

75 On the secretariat, see Working Papers XVI ATCM/WP 8 (submitted by the United States); XVI ATCM/WP 10 (Japan). See also Doc. XVI ATCM/INFO 36 (Uruguay). On tourism, see Docs. XVI ATCM/WP 29(France); XVI ATCM/INFO 58, 59, 68, 84 (United States); XVI ATCM/INFO 77 (ASOC).

76 Draft Final Report of the XVIth Antarctic Treaty Consultative Meeting, Doc. XVI ATCM/WP 56/Rev.l, at 9 (Oct. 18, 1991) [hereinafter Draft Report].

77 The main complaint came from the Scientific Committee for Antarctic Research (SCAR) in its report to the 16th consultative meeting. See GREENPEACE, supra note 71, at 5.

78 Draft Report, supra note 76, at 33. * Senior Lecturer, Law School and Institute of Antarctic and Southern Ocean Studies, University of Tasmania, Hobart, Australia.