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Published online by Cambridge University Press: 21 July 2009
On October 4,1991 the parties to the Antarctic Treaty adopted the Protocol on Environmental Protection to the Antarctic Treaty. This Protocol contains a prohibition for the duration of fifty years of all exploration and exploitation of mineral resources in the Antarctic. The Wellington Convention, which was adopted in 1988 and was intended toregulate the exploitation of minerals,can now be considered dead and buried. Apart from the prohibition on minerals activities, the Protocol sets out a number of rules and regulations to control the activities in Antarctica in a more stringent way than before. This article analyses the Protocol and compares the ‘severeness’ of the rules with the degree of control in the Wellington Convention. It seems likely that states are less willing to accept heavy bureaucratic measures if the road to minerals development is cut off. For issues like dispute settlement, environmental impact assessment, the creation of new institutions and liability, the articles in the Protocol are compared with the corresponding articles of the Minerals Convention. Furthermore this article contains some suggestions on how the current plans to protect the Antarctic environment can be improved.
1. 402 U.N.T.S. 72 No. 5778. The Treaty entered into force June 23. 1961. A short background of the Treaty is given in Section 2.
2. CRAMRA. 27 I.L.M. 868 (1988). This convention was adopted in June 1988 and has not entered into force.
3. XVth Antarctic Treaty consultative meeting. 20 Environmental Policy and Law 10–13 (1990).
4. The Antarctic Treaty area is formed by the continent of Antarctica, all sub-antarctic islands and all ice-shelves, within the boundary of 60° South Latitude.
5. In the preamble of the Antarctic Treaty the governments recognized “that it is in the interest of all mankind that Antarctica […] shall not become the scene or object of international discord […]”.
6. van der Essen, A., as quoted in M.J. Peterson, Managing the Frozen South 94 (1988).Google Scholar
7. United Nations Convention on the Law of the Sea, 21 I.L.M. 1266 (1982).
8. van fuitenen, A., Versterking van het Milieubeleid van Internationale Organisaties: Instiwtionele Voorstellen, 45 Internationale Spectator 100 (1991).Google Scholar
9. The claims of the United Kingdom, Argentina and Chili overlap. For a description of the legal background of the Antarctic Treaty, see Auburn, F.M., Antarctic Law and Politics (1982):Google Scholar Quigg, P.W., A Pole Apart, The Emerging Issue of Antarctica (1983);Google Scholar Triggs, G., The Antarctic Treaty Regime, a Workable Compromise or a Purgatory of Ambiguity?, 17 Case Western Reserve Journal of International Law 195–228 (1985). Furthermore, a collection of interstate documents is provided by W.M. Mish. Antarctica and International Law, a Collection of Interstate and National Documents (1982). The different conventions and recommendations of the ATS can be found in the Handbook of the Antarctic Treaty System (1989).Google Scholar
10. Fesides the twelve original signatories, the following countries have received the ATCP-status currently: Frazil. China. Ecuador. Finland. Germany. India. Italy, the Netherlands. Peru. Poland. Spain. South Korea. Sweden and Uruguay.
11. Art. 9(2) Antarctic Treaty.
12. According to Article IX of the Antarctic Treaty every recommendation has to be adopted by all consultative parties and becomes effective if all governments have ratified the measure.
13. CCAS. 11 I.L.M. 251 (1972). This Convention was adopted in 1972 and entered into force in 1978. 14.CCAMLR. 19I.L.M.84I (1980). This Convention was adopted in 1980 and entered into force in 1982.
15. The negotiations started after the ATCP's stated in Recommendation XI–1 that “a regime on Antarctic minerals has to be concluded as a matter of urgency”. Comments on this Convention can be found in: Joyner., C.C. The l988 MineralsConvention. 1 Marine Policy Report 69–85 (1989):Google Scholar Feck., P.J. The Convention on the Regulation of Antarctic Mineral Resource Activities: A Major Addition to the Antarctic Treaty System. 152 Polar Record 19–32 (1989):Google Scholar Couratier., J. 1988 La Convention stir la réglementation des activés relatives aux ressources minerales del' Antarctique. 1988 AFDI 764–785:Google Scholar Visser., A. The Antarctic Minerals Regime and its Environmental Impact. 1 LJIL 171–182(1988).Google Scholar
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19. Handbook of the Antarctic Treaty System, supra note 9, Part 3. at 3304.
20. For an outline of the advantages and disadvantages of ‘soft laguage’. see P. Sand. Lessons Learned in Global Environmental Governance (1990).
21. Auburn, F.M., supra note 9,260–263. This resistance to a binding moratorium cannot be explained by the existence of concrete plans by the US government to exploit Antarctica' mineral resources. The US government repeatedly refused to grant oil-licences to interested companies.Google Scholar
22. It should be noted that several countries have adopted national legislation forbidding their nationals to be involved in mineral activities in Antarctica. Belgium was the first country to adopt such legislation. In 1989 the Felgian Parliament passed the Loi modifiant la loi du 12 Janvier 1978 relative a la protection de la faune et de la flore dans l' Antarctique. Article 6(bis) Para. 1 of this statute says: “ll est interdit d'accomplir tout acte ayant pour objet la prospection. I'exploration ou l'exploitation de richesses minérales dans la zone visée à l' article ler”. Similar law is in consideration in New Zealand. In the US a law has been passed which prohibits minerals exploitation in Antarctica for Americans.
23. For a detailed analysis and background of the United Nations General Assembly debates on the question of Antarctica, see Chopra, S.K., Antarctica as a Commons Regime: A Conceptual Framework/or Cooperation and Coexistence, in Joyner, C.C., Chopra, S.K. (eds.). The Antarctic Legal Regime 163–186 (1988); F. Orrego Vicuna, The Antarctic Treaty System: a Viable Alternative for the Regulation of Resource Orientated Activities, in Triggs, GD., The Antarctic Treaty Regime 65–76 (1987);Google Scholar Parsons., A. Antarctica, the Next Decade, Part 1(2): The Case for a Change 17–33 (1987).Google Scholar
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25. Official Records U.N.G.A. A/C.I/45/pv.43, at 9–10 (1990).
26. China was the only ATCP which participated in the voting, but abstained. See. e.g.. Feck, P.J., supra note 24.Google Scholar
27. See. e.g., Peterson, M.J. supra note 6:Google Scholar Drieman., G.A. Nederlanden het Verdrag inzake Antarctica, 39 Internationale Spectator 87–91 (1985).Google Scholar
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29. Article 6 of the draft protocol. This text became known as Andersen I, named after Rolf Trolle Andersen, leader of the Norwegian delegation and was published in 21 Environmental Policy and Law 30–34( 1991).
30. NRC Handelsblad, May 1,1991.
31. The numbers of the articles changed, due to the inclusion of a definitions paragraph in the final version of the Protocol.
32. A construction whereby a country merely withdraws from one article, as was intended by the United States, was not possible because such a construction goes against the Law of Treaties. According to Article 44 of the Vienna Convention of the Law of Treaties. 8 I.L.M. 679 (1969) “[a] right of a party […] to denounce, withdraw or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides […]”. It is therefore not possible to withdraw from the prohibition on minerals activities while remaining a party to the Protocol. 33. U.S. Hocks Protocol. 21(3/4) Environmental Policy and Law 133–134(1991).
34. The International Convention for the Prcvention of Pollution from Ships, infra note 36. and the UNCLOS contain similar constructions on sovereign immunities. See. e.g.. Churchill., R.R. Lowe., A.V. The Law of the Sea260(1988).Google Scholar
35. See Annex IV to Article 14 of the Protocol. The obligations named in the Annex are substantial and aim to prevent all disposal of harmful substances in the seas around Antarctica.
36. 12 I.L.M. 1319 (1973). This Convention was amended in 1978. MARPOL is in force since 1983.
37. Art. 3(3) MARPOL.
38. Annex I aims at preventingoil-pollution and Annex V aims at the prevention of all disposal of garbage. See for a background of MARPOL and other treaties meant to prevent the pollution of the sea: Timagenis., Gr.J. International Control of Marine Pollution (1980).Google Scholar
39. For the text of these Agreed Measures, see Handbook of the Antarctic Treaty System, supra note 9. Part 2. at 2302.
40. See.e.g.. P.van Heijnsbergen. International reclitelijke Bescherming van het Antarctische Milieu.[xx] Tijdschrift voor Milieu en Recht 257–263 (1983).
41. A lot of these recommendations destined certain areas as Specially Protected Areas or Sites of Special Scientific Interests. These titles meant that several activities were prohibited in these areas, see. e.g.. Handbook of the Antarctic Treaty System, supra note 9; M J. Peterson, supra note 6. at 98–99.
42. See Peterson, M.J., supra note 6, at 95. All ratifications were necessary before the Agreed Measures became binding. To be able to make a start with the implementation of the Agreed Measures, the ATCP's adopted Recommendations III–IX which stated the following: “The Representatives recommend to their Governments that until such time as the Agreed Measures on the Conservation of Antarctic Fauna and Flora may become effective […], these Agreed Measures as far as feasable be considered as guidelines in this interim period”.Google Scholar
43. These permits have to be granted by an ‘appropiale authority’. What this authority is is left for the party to decide.
44. Annex, I, Article l(h), (v) and (vi) of the Protocol.Google Scholar
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46. An. 41 CRAMRA.
47. According to Annex, I, Article 3(2) of the Protocol, a CEE shall include inter alia: a broad description of the proposed activity; a description of the methods and data used to forecast the impacts of the proposed activity: a consideration of the cumulative impacts of the proposed activity in the light of existing activities; identification of unavoidable impacts: possible alternatives to the activity, including the alternative of not proceeding: an identification of gaps in knowledge and uncertainties encountered in compiling the information required under this paragraph.Google Scholar
48. The lack of availability was heavily criticized by the environmentalists. See. e.g.. Fames, J.N., supra note 17.Google Scholar
49. At the XVIth Consultative Meeting held in October in Fonn. the parties could slill not agree upon the location of a secretariat.
50. Ans. VII and XIV CCAMLR: Art. 6CCAS. The CCAS-Commission will be installed aftercommercial sealing has begun, which is not yet the case.
51. This secretariat is located in Hobart. Australia.
52. Kimball, L., supra note 28, at 7–8.Google Scholar
53. The Tinker Foundation Workshop, blueprint for Antarctica 8.(1990).
54. Art 10(2) of the Protocol.
55. Revised Australian-French paper, supra note 18, at 25–26.
56. Kimball, L., supra note 28, at 30.Google Scholar
57. Art. 3(4) of the Annex I of the Protocol.
58. Kimball, L., supra note 28, at 7–8.Google Scholar
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60. Arts. 8 and 7(c.i) CRAMRA. This Protocol was not completed at the time when CRAMRA was signed. The Protocol had to be unanimously agreed upon before CRAMRA could enter into force.
61. Watts, A.D.. Liability for Activities in Antarctica – Who Pays the Bill to Whom?. in R. Wolfrum (ed.). The Antarctic Challenge II. at 155–157 (1985).Google Scholar
62. An. 16 of the Protocol.
63. At the 16th ATCM in Fonn the ATCP's have decided to hold the ATCM's in the future annually.
64. See Section 5.2. for a critical remark on the success of keeping the advisory Committee in CCAMLR free from political tensions.
65. The late entry of the Agreed Measures should be kept in mind when considering the timely effectuation of the Protocol, supra note 41.
66. A similar approach was taken with the Agreed Measures, supra note 42.
67. van Tennekom, S., Delfsiqffenwinning in Antarctica: Volkenrechtelijke implicaties roor het Zuidpoolverdragssysteem. 5 (3/4) Circumpolar Journal 37–49 (1990).Google Scholar
