An Environmental Protocol for Antarctica

On January 14, 1998 the Protocol on Environmental Protection to the Antarctic Treaty entered into force. This outcome was in large part the result of nearly two decades of campaigning by ASOC and its member organizations against mining and oil development in Antarctica and in favor of a comprehensive environmental protection regime.

The Protocol's main text and five original annexes provide a legally binding set of conservation measures applicable to most activities in the Antarctic Treaty Area (south of 60 degrees S), which includes the Antarctic continent itself, its islands, and the surrounding Southern Ocean. The Protocol is supposed to ensure that environmental protection is a fundamental consideration in the planning and conduct of activities in this vast region, which occupies 10% of the surface of the Earth and is the last great wilderness left on the planet.

The Protocol bans all aspects of mineral resource exploration and exploitation in Antarctica, includes provisions for prior Environmental Impact Assessments for all activities, sets standards for the prevention of pollution on land and at sea, creates a mechanism to set aside protected areas, and establishes a Committee for Environmental Protection. A sixth annex, on liability for environmental damage and failure to take emergency response action, was signed in June 2005 (but has not yet been ratified). (See the box below for a description of the Protocol. Click here for the full text in English. For the annexes, click on the number: I, II, III, IV, V, VI)

The Protocol is a huge step forwards for the protection of the Antarctic environment, but it is not without flaws. The Protocol itself fails to address certain environmental issues. Those gaps are the result of political accommodations surrounding the Protocol's negotiation (leaving out an Annex to regulate commercial tourism, which a number of Antarctic Treaty Parties wanted), or are emerging environmental threats that were not foreseen at the time (such as commercial biological prospecting). Other problems result not from the Protocol itself but from the way in which it is implemented by Antarctic states, collectively and/or individually, as a result of questions of interpretation, lack of resources or political will, or shared negligence. If not addressed, these limitations could weaken significantly the effectiveness of the Protocol to meet its environmental objectives.

ASOC's Protocol Implementation Campaign makes use of the Protocol, as a legally binding international agreement, to advocate actions that lead to the highest environmental protection standards for the Antarctic region. Implementing the Protocol is linked with other campaign issues on which ASOC is active, including Southern Oceans fisheries, Antarctic commercial tourism, and biological prospecting.

At its most basic level the Protocol Implementation Campaign promotes appropriate legal and practical implementation of the Protocol by individual Parties and the Antarctic Treaty System as a whole. More broadly, the Protocol Implementation Campaign aims to ensure that the objective of "comprehensive protection of the Antarctic environment" articulated in Article 2 of the Protocol can be met in perpetuity - which may require other instruments or approaches in addition to the Protocol itself.

Developments Influencing Protocol Implementation

A range of recent and emerging developments influence the way in which the Protocol is being implemented, the agenda of various meetings of the Antarctic Treaty System, and more generally the protection of the Antarctic environment. These developments include:

1. A growing "implementation gap" among countries - the possibly chronic gap that exists between those Parties appropriately implementing many Protocol obligations, and those lagging significantly behind. This gap is apparent both on legal and procedural aspects (e.g. application of Environmental Impact Assessments) and on the ground, as reflected by recent official inspections by Antarctic Treaty Consultative Parties. The risk is that low environmental standards may become mainstream.

2. An increasing number of cross-cutting environmental issues and strategic environmental needs that challenge the ability of the Antarctic Treaty System to govern the Antarctic region effectively. These issues include the exploration of the sub-glacial lake environment (and in particular the drilling at sub-glacial Lake Vostok proposed by Russia); how to regulate commercial tourism and biological prospecting; how to stop illegal fishing operations in the Southern Ocean; and the assessment and monitoring of cumulative impacts.

3. The ongoing tendency by some Parties to undermine legal obligations set by the Protocol - often by focusing on the Protocol's most literal and technical aspects while ignoring matters of principle. This narrow approach means that, effectively, the overall objective of Article 2 of the Protocol and the key environmental principles articulated in Articles 2 and 3 are secondary to other interests that individual states have in the Antarctic region, particularly regarding the exploitation of the Antarctic marine environment. In this regard, the area of application of the Protocol has in practice largely retreated to the Antarctic continent rather than applying to the entire Antarctic Treaty Area (south of 60 degrees south, which includes most of the Southern Ocean as mandated by the Protocol. As a result, the recently concluded Liability Annex does not apply to fishing vessels in the Southern Ocean, and it has proven to be very difficult to establish marine protected areas under Annex V of the Protocol.

4. Growing commercial pressures - Commercial activities in Antarctica are just as old as human activities in the region, and have traditionally combined exploration with industrial scale exploitation of natural resources and, in some instances, scientific research. What has changed over the past decade is the scale, rate of increase, type and diversity, and geographical spread of commercial activities. Increasingly, commercial benefit, rather than concern for the environment, science, or international peace and cooperation, is driving the Antarctic political regime. Various industries (currently legal and illegal fishing, and tourism, but also emerging industries such as biological prospecting) pose a risk of overwhelming Antarctica's established designation as a natural reserve, devoted to peace and science.

5. The International Polar Year 2007-2009, which offers numerous opportunities and challenges. The IPY 2007-2009 will be preceded by a great international interest in the Polar Regions. The IPY presents opportunities to enhance environmental protection and scientific research on the Polar Regions, but also important challenges regarding development of infrastructure and increased commercial interest. In Antarctica there are plans for a significant development of infrastructure, with current proposals that include upgrading some existing stations, several new stations in pristine areas, research projects of potentially high environmental impact, and the improvement of aerial and terrestrial transportation links. Collectively the proposals for the IPY 2007-09 - added to frantic marketing by commercial tour operators - have the potential to encroach on the Antarctic wilderness.

6. An emerging discussion on strategic environmental issues - A positive development has been the initiation of discussions on strategic environmental issues facing the Antarctic region and its governance system. This discussion began at the VIIIth meeting of the Committee for Environmental Protection in June 2005, and will continue through 2006. ASOC has been promoting the use of strategic approaches in Antarctic affairs since the late 1990s. Now the Antarctic Treaty has come to realise that it needs to take action to manage the increasingly complex mix of issues it faces, and the growing workload of the Committee for Environmental Protection.


Objectives of the Protocol Implementation Campaign

ASOC's key campaign objectives are:

• Promoting effective legal and practical implementation of the Protocol, both domestically in individual states, and collectively by the Antarctic Treaty System;
• Ratification of Annex VI on Liability for harm to the Antarctic environment and failure to take emergency response action by all Antarctic Treaty Consultative Parties, so that it comes into force legally;
• Modification, suspension or cancellation of research and infrastructure development proposals that risk significant damage to the environment;
• Improving impact assessment and monitoring, and promoting better integration of impact assessment in the planning process;
• Promoting a "green" International Polar Year 2007-09;
• Promoting the creation of Protected Areas under Annex V of the Protocol, including Marine Protected Areas;
• Advocacy for regulation of commercial activities such as tourism and biological prospecting, which are insufficiently addressed by the Protocol and its annexes.
• Active participation in the emerging discussion on strategic environmental issues taking place in the Antarctic Treaty System.

Missing pieces: Regulation of Commercial Tourism

• In 1991 a number of governments wanted to include another annex to deal with tourism but as the numbers then were low, the political will didn't exist to agree on it. Antarctic tourism has been growing rapidly over the past decade in both absolute numbers and extent, with ever larger ships, equipped with helicopters, and could significantly damage Antarctic's ecosystems. The tourism industry is growing faster in Antarctica than anywhere else in the world. The number of Antarctic tourists has increased from about 4,800 during 1990/91 -- the year the Protocol was signed -- to about 28,000 tourists during the 2003-04 season. This may not sound like a very large number, but most of these tourists visit a small number of breeding colonies on the Antarctic Peninsula. Repeat visits to the same areas places a great deal of stress on the animals, and exposes them and their young to predation.
  
  Without a legally binding and enforceable regulatory system, the growth trend in Antarctic tourism will continue unabated. The industry's trade association - the International Association of Antarctica Tour Operators (IAATO) continues to raise its forecasts, envisioning more than 30,000 commercial tourists for the 2005-06 season. At the same time the industry group announced their decision to change its membership structure to include categories for larger-scale vessels and adventure tourism companies.

Missing pieces: Regulation of Bio-prospecting

• * Since 1991 a number of companies have been carrying out bio-prospecting in the Antarctic, hoping to find valuable life-forms that could be patented and exploited commercially. This emerging industry is a completely unregulated activity at present, and ASOC has called for controls to be agreed.
  
  For more information on the Protocol Implementation Campaign, email us at info@asoc.org or find your media contact by country, by language or by campaign.

The Antarctic Environmental Protocol

In 1991, Antarctic-active states adopted the Protocol on Environmental Protection to the Antarctic Treaty. The Protocol, which entered into force in 1998, provides the latest element of what is termed the Antarctic Treaty System. The Antarctic Treaty System comprises the 1959 Antarctic Treaty, the 1972 Convention for the Conservation of Antarctic Seals (CCAS), and the 1980 Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR). The 1988 Convention on the Regulation of Antarctic Mineral Resources (CRAMRA) has not entered into force, having been abandoned in 1989 in favor of the Protocol, which includes a specific prohibition on mineral resource activities.

The Protocol establishes generically applicable obligations across the range of activities (governmental and non-governmental) regulated by the Antarctic Treaty. The Protocol does not cover the activities supposedly regulated by the Convention on the Conservation of Seals (CCAS), the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) or the 1946 International Convention for the Regulation of Whaling and its International Whaling Commission (IWC), which has declared the Southern Ocean a Whale Sanctuary.

The Protocol is a framework convention comprising a main body of 27 articles, a Schedule on Arbitration and technical annexes (which legally form an integral part of it). It bans all aspects of mineral resource exploration and exploitation, includes provisions for Environmental Impact Assessments for all Antarctic activities, sets standards for the prevention of pollution on land and sea, creates a mechanism to set aside protected areas, and establishes a Committee for Environmental Protection.

Presently the Protocol has six annexes: I - Environmental Impact Assessment; II - Conservation of Antarctic Fauna and Flora; III - Waste Disposal and Waste Management; IV - Prevention of Marine Pollution; V - Area Protection and Management; and VI - Liability for Environmental Damage (signed June 2005, has not entered into force). Additional annexes can also be added. The annexes can be individually amended, to keep pace with technical developments, best-practice, etc., without the necessity to revisit the core agreements in the main text. However, a rolling process of annex review, which began with the review of Annex II, was inconclusive due to political pressures and unwillingness to extend protection to all marine species.

Adapted from Hemmings and Roura (2003)