Download The Antarctic Environmental Protocol 1991 - 2011

IP (number)
Agenda Item:
CEP 3, ATCM 5, 18
Presented by:
ASOC
Original:
English
The Antarctic Environmental Protocol,
1991-2011
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The Antarctic Environmental Protocol, 1991-20111
Summary
This paper reflects on Antarctic environmental protection since the signature of the 1991 Protocol on
Environmental Protection to the Antarctic Treaty. There have been some significant accomplishments; some
issues remain outstanding; and some events are incompatible with the commitments expressed under the
Protocol. While overall the Antarctic region is protected, it is also under growing environmental pressures,
some of which are not being addressed strategically. The challenge for Antarctic Treaty Parties is to respond
effectively and in a timely way to emerging pressures, and not let territory or resource interests prevail over
international obligations and the global benefits of protecting the Antarctic.
1. Introduction
The signature of the Protocol on Environmental Protection to the Antarctic Treaty in 1991 was a turning
point in Antarctic conservation, notably because of its prohibition on mineral resource activities. It
generated expectations that the implementation of the Protocol would result in an enhanced protection of the
Antarctic environment. Acting immediately, the Parties committed themselves to interim implementation
until the Protocol entered into force.2 It entered into force legally in 1998 following ratification by all the
Parties.
This Information Paper provides a commentary on the nearly twenty years that have elapsed since the
signature of the Protocol, evaluating progress on a range of key issues relevant to environmental protection
and Protocol implementation. The paper is not intended to be a comprehensive review of every aspect of
implementation of the Protocol, but rather focuses on some key environmental issues and overall
implementation trends.
There have been some significant accomplishments with respect to environmental protection; some
environmental issues remain outstanding and require further action; and some events are incompatible with
and difficult to understand in the context of the commitments expressed in the Protocol.
2. Implementing the Protocol
The Protocol relies on the individual and collective efforts of the Parties for its implementation.
Implementation is about establishing an ongoing process rather than reaching a final stage, and includes two
basic aspects: legal implementation and practical implementation.3
Depending on the legal system of each country, some countries needed to pass national implementing
legislation to complete the process of ratification of the Protocol, while others did not need to go through this
procedure. As many provisions of the Protocol are not entirely self-executing they need to be implemented
by more detailed domestic instruments. Most Antarctic Treaty Parties have adopted some form of legislation
and/or regulations to implement the Protocol. In some instances this process took well over a decade since
the Protocol’s signature.4 The content of domestic legislation should be faithful to the spirit, objectives and
1
Lead author Dr. R. Roura with comments by James Barnes, Rod Downie, Rob Nicoll and Dr. T. Tin. The contribution
of Dr. A.D. Hemmings, L. Goldsworthy and other colleagues to several of the earlier ASOC information papers
mentioned in this document is acknowledged.
2
“The Meeting agreed that it was desirable to ensure the effective implementation at an early date of the provisions of
the Protocol. Pending the entry into force of the Protocol it was agreed that it was desirable for all Contracting Parties to
the Antarctic Treaty to apply Annexes I-IV, in accordance with their legal systems and to the extent practicable, and to
take individually such steps to enable it to occur as soon as possible.” (Final Act of the Eleventh Antarctic Treaty,
Special Consultative Meeting).
3
For a discussion of legal and practical implementation of the Protocol see: Bastmeijer, C.J. (2003): The Antarctic
Environmental Protocol and its Domestic Legal Implementation, International Environmental Law and Policy Series
65, The Hague: Kluwer Law International.
4
XXIV ATCM/IP055
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principles of the Protocol, and its result should be effective practical implementation, which is primarily the
responsibility of those in charge of Antarctic logistics and operations.5
Practical implementation requires enforcing specific prohibitions, the regular use of Environmental Impact
Assessments, and arranging permitting requirements. It also includes the development of contingency and
waste management plans, arrangements to fulfil reporting obligations, and initiatives to stimulate
international cooperation. Education and training of Antarctic personnel is important to ensure effective
application and enforcement of the provisions of the Protocol in Antarctica. The right of the public to be
informed about the working of the Antarctic Treaty System and to comment on Comprehensive
Environmental Evaluations is embodied in the Protocol and is also part of its implementation.
One of the best ways available of assessing the practical implementation of the Protocol is through
inspections under Art. 14 of the Protocol (carried out concurrently with inspections under Art. VII of the
Antarctic Treaty).6 (Reports under Art. 17 of the Protocol are another way of assessing implementation.7)
Nineteen of such inspections have taken place since 1991 (including three reported at this ATCM)8 providing
an insight on progress made to implement the Protocol.9 Necessarily, some aspects of inspections concern
matters not directly related to the Protocol but that bear consequences for the environment, such as the
conduct of research at Antarctic stations, the use of alternative energies, and tourism policies.
Implementation standards vary between stations and within different aspects of some stations’ operations.10
Inspections have focused on the Antarctic Peninsula, where the concentration of stations is greater and also
the standards of implementation, although there have been inspections also in Queen Maud Land, Ross
Island, and elsewhere in Antarctica. Some stations in comparatively remote areas have been comparatively
under-inspected (see e.g. ASOC and UNEP, 2005).
On the whole, inspections reported progress in many aspects of implementing the Protocol since 1998 – such
as waste management – but it is apparent that some aspects are taking a long time to be implemented.
Intriguingly, the findings of recent inspections are in some cases not substantially different from those
carried out ten or more years earlier. Aspects of recurrent concern include fuel storage and handling; waste
management (particularly waste storage); sewage treatment; management of former sites (abandoned
stations); and limited awareness of EIA and EIA follow up on the ground. Factors inherent to individual
stations (such as size, age, and location) and of the individual National Antarctic Programs influence
implementation of the Protocol. Inspection reports have also raised questions about related issues such as the
limited use of alternative energy; the relatively high number of unoccupied stations in some areas; tourism
policies at some stations; changes in ownership patterns; and the need for greater use of research facilities for
science.
3. Implementation accomplishments
The main accomplishments include the very high standards of implementation by some Parties; the operation
of the CEP; the review of Annex II and the signature of Annex VI.
•
Scope and depth of compliance with the Protocol achieved by some Parties: This is reflected, inter
alia, in the detailed consideration of environmental issues in the planning and conducting of some
operations (such as the renovation of some existing research stations or construction of some new
stations; and some large scale research projects); consistent reporting under Art. 17 of the Protocol and
production of EIAs; some clean up operations of past worksites (including the attempted recovery of
drilling fluid from a borehole); and the insertion of environmental protection measures at all scales of
activity by some Parties.
5
XXIII ATCM/IP127.
For a review of inspections to 2001, see XXVIII ATCM/ IP119.
7
See also XXIII ATCM/IP005; SATCM XII/IP022; ATCM XXV/IP078 I.
8
XXXIV ATCM/WP001 and IP004; XXXIV ATCM/IP039; and XXXIV ATCM/IP040.
9
http://www.ats.aq/e/ats_governance_listinspections.htm. 10
In addition to active research stations, abandoned stations, protected areas, Historic Sites and Monuments, cruise
vessels and yachts have also been inspected.
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•
The Committee for Environmental Protection (CEP): The establishment of the CEP is mandated by
Art. 11 of the Protocol. The regular meetings of the CEP have provided a platform to improve
environmental protection, including notably through the consideration of CEEs and the production and
review of protected management plans (through the Subsidiary Group on Management Plans) and setting
up a five-year work plan. The mandate and modus operandi of the CEP does not enable it to deal with
environmental emergencies as and when they occur (such as the sinking of the MV Explorer) or to take
issue with Parties that are plainly failing in their obligations under the Protocol. However, the CEP has
become “the workhorse of the ATCM”11 (Sánchez and McIvor, 2007) and has had a positive role in the
promotion of higher environmental standards by its Members.
•
Review of Annex II: The reviewed Annex was approved in 2009. The matter had been referred to the
Legal and Institutional Working Group by the CEP in 2006, after it had spent several years being
reviewed. The final result was a greatly watered down version of what might have been, given the
objections of a handful of Parties; it failed to consider microorganisms and invertebrates, and left out
mammals. Under the consensus system the lowest common denominator often prevails and this was one
such case. Still, Annex review is one of the obligations of the Protocol and this was eventually
accomplished despite political difficulties.12
•
Signature of a Liability Annex: The obligation to develop a liability regime stems from Protocol
Article 16 and the Final Act of 11th ATSCM where the Protocol was adopted. It took 13 years of
negotiations to arrive at this Annex. About half the Consultative Parties favored a comprehensive
liability regime, but the prospects of a broad-reaching liability regime disappeared following the
articulation of a much more restricted option – addressing environmental emergencies alone – by the US
from 1995. The Annex is far less comprehensive than ASOC and many Parties hoped for, but what has
been achieved is an important first step and is a significant enhancement of the Protocol’s obligations. If
this first annex has indeed provided a peg on which to hang subsequent development, it may become a
more significant achievement. At the time of the Annex VI signature in 2005 ASOC noted that “[t]he
challenge now is to ensure that it enters into force in a reasonable time, and substantially quicker than the
seven years it took for the Protocol itself to enter into force.”13 (ASOC, 2005). Six years after this
comment only a handful of Parties have ratified Measure 1 (2005) adopting Annex VI, so that the Annex
VI has not yet become effective. Decision 4 (2010) reflects awareness of this situation and includes a
commitment to discuss annually “what action may be necessary and appropriate to encourage Parties to
approve Annex VI in a timely fashion.”
4. Outstanding issues
•
Wilderness values: The protection of wilderness values is one of the basic mandates of the Protocol –
notably Art. (3)(1). While there is no agreed definition of “wilderness” or “wilderness values” in the
Antarctic context, there appears to be a broad understanding of what is meant. Overall, remoteness and a
relative absence of both people and indications of past and present human presence or activity are key
attributes of wilderness. There is also a broad understanding – notably in Art. 3 of the Protocol, and also
in various management plans – that the Antarctic wilderness deserves protection, and that actions that
compromise or jeopardize wilderness values are undesirable. So far this concept has had limited
practical application, including in the minimisation of the human footprint on the region.14
•
International cooperation and the proliferation of stations: Under Article 6, Consultative Parties are
expected to cooperate in the planning and conduct of activities in the Antarctic Treaty Area. This
includes collaboration in relation to the construction of new stations and the sharing of bases and other
facilities. In practice, remarkably little such cooperation seems to exist. With the notable and positive
11
Sánchez R.A. and McIvor E. (2007): The Antarctic Committee for Environmental Protection: Past, present, and
future. Polar Record 43: 239-246.
12
For further discussion about Annex II and Annex review, see ATCM XXX/IP081.
13
ASOC Report on the XXVIII Antarctic Treaty Consultative Meeting Stockholm, Sweden 6-17 June 2005. Available at
http://www.asoc.org/storage/documents/Meetings/ATCM/XXVIII/asoc%20atcm%20xxviii%20report2005.pdf.
14
See e.g. ATCM XXX/IP086 rev. 1.
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exception of The Netherlands, acceding states still seem to feel it necessary to establish their own
facilities. Among others, the Czech Republic, Belgium, India, China, and Chile have built or are
building new stations since the Protocol was signed; other stations are planned. These developments –
coupled with new runways, maintained roads, camps, refuges and depots – further encroach upon the
Antarctic wilderness.15
•
Environmental Impact Assessments:16 The preparation of EIAs at the appropriate level is stipulated
under Annex I and is essential if the Protocol is to have its intended effect. There are concerns that EIAs
are not being produced for all activities, or at the required level. Alternatively, an operator may go
through the motions of producing an EIA, and even though there are problems with the proposed
activity, will consider its completion as sufficient to allow an activity to proceed. The EIA may be only
nominally completed resulting in a less than adequate level of protection. In particular, the CEE process
should be strengthened17 and EIAs should be better applied to tourism.18
•
Cumulative impact: Local human activities in Antarctica have resulted in a broad range of
environmental impacts, some of which are cumulative.19 Cumulative impact analysis is an integral part
of modern integrated environmental management, and is a required component of Antarctic IEEs and
CEEs. Despite this, it is usually overlooked or considered in a perfunctory manner in Antarctic EIAs.20
The various conceptual and methodological issues surrounding assessment of cumulative impact remain
poorly developed. Despite small workshops organized by IUCN (1996) and by NSF/IAATO (2000), the
issue remains complex.21 Given the manifest inability of individual operators to work their way
independently to an adequate assessment of cumulative impact, this matter should now be addressed by
the CEP as a matter of urgency. The contribution of tourism to cumulative impact is an important area in
terms of the Protocol especially since tourism has changed significantly (in scale and scope) since its
adoption in 1991.
•
Exchange of information: Art. 17 of the Protocol requires Parties to report annually on the steps taken
to implement the Protocol. This requirement is a proxy indicator of implementation standards.
Information exchange should show not only what Parties are doing implement the Protocol, but also – by
omission – what they are not doing. Only a few Parties have reported consistently since 1998; others
began reporting in later years, sometimes in documents submitted to the CEP or otherwise, reportedly, in
their websites; yet other ATCPs ignored this requirement of the Protocol. However, in recent years the
Secretariat has set up an electronic information exchange system that encourages Parties to make
Exchange of Information submissions on line. This new system has been implemented with relative
success, although not all Parties seem to report consistently all years.
•
Protected Areas: To develop an effective matrix of Antarctic Protected Areas, a combination of policy
steps and decisions are required. ASOC suggests that the CEP be urgently tasked with providing the
ATCM with advice on which parts of Annex V are not yet fully represented with designated Protected
Areas, in addition to those parts that no longer represent best-practice or are otherwise outdated, and
recommendations on the best new approaches to address the needs of the 21st century. The review and
15
ATCM XXVII/IP094; ATCM XXVIII/IP074; ATCM XXIX/IP094.
For a review of EIA in Antarctica see: Bastmeijer K and Roura R (2008): "Environmental Impact Assessment in
Antarctica." In: Bastmeijer K and Koivurova T (eds.): Theory and Practice of Transboundary Environmental Impact
Assessment, pp. 175-219. Monographs Series on Legal Aspects of Sustainable Development. Leiden: Brill/Martinus
Nijhof Publishers.
17
ATCM XXX/IP084.
18
See Hemmings, A.D. and Roura, R. (2003): “A square peg in a round hole: Fitting impact assessment under the
Antarctic environmental protocol to Antarctic tourism.” Impact Assessment and Project Appraisal. 21:1, 13-24.
19
For a review of environmental impacts in Antarctica see XXXII/IP002.
20
See for instance ATCM XXIX/IP063.
21
See De Poorter, M. & Dalziell, J.C. (Eds.)(1996). Cumulative environmental impacts in Antarctica: Minimization
and management. Proceedings of an IUCN Workshop on Cumulative Impacts in Antarctica, Washington DC, USA,
September 18-21, 1996. Gland, Switzerland: IUCN; and Hofman, R.& Jatko, J. (2000) Assessment of the possible
cumulative environmental impacts of commercial ship-based tourism in the Antarctic Peninsula area, Proceedings of a
Workshop held in La Jolla, California, June 2000. Washington DC: National Science Foundation.
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amendment or modification, and any actual drafting of changes to Annex V, can then occur within the
ATCM. An additional issue is the sometimes excessive focus on small areas in detriment to debate and
actions addressing “big picture” issues. There has been some progress on addressing issues from broad
strategic perspectives, notably at the CEP, but much work is done on the minutiae of what happens at
specific sites – such as sites visited by tourists, Antarctic Specially Protected Areas (ASPAs) or Antarctic
Specially Managed Areas (ASMAs) – which occupy relatively small areas and tend to be regarded
individually rather than linked as a part of a coherent protected area system.22
5. Incompatible developments
Several developments in the Antarctic are inexplicable if one assumes that the Protocol is a key element in
Antarctic operations – or at least incompatible with its basic principles. These include:
•
Chronic, substandard implementation of the Protocol: The significant gap that developed between
those Parties appropriately implementing many Protocol obligations, and those lagging significantly
behind, discussed previously, is one of the more disappointing developments since the Protocol was
signed. In fact, some research stations appear to be caught in a pre-1991 time warp. For instance,
observations made by German scientists at Fildes Peninsula in King George Island, as reported to the
Oslo 2010 Science Conference, suggested that some things have hardly changed since the late 1980s, or
if they improved in the intervening years, they have once again gone back to the old ways.23 Based on
the findings of various inspection reports (section 2), including inspections reported at this ATCM, this
assessment does not seem to be unique for Fildes Peninsula. Earlier on ASOC had hoped that with the
encouragement of the various components of the Antarctic Treaty System – particularly the Committee
for Environmental Protection and, once it began to function, the Antarctic Treaty Secretariat – this gap
would begin to close and there would be a more consistent implementation of the Protocol across all
Antarctic operators. This seems now less likely.
•
Failure to protect Southern Giant Petrel Macronectes giganteus: The fiasco of SCAR's handling of
the consideration of southern giant petrel and macaroni penguin as Specially Protected Species under
Protocol Annex II is regrettable, despite evidence of its likely endangered status.
•
Conflicts between international area protection and national interests: The construction of a new
station in the Larsemann Hills outside a proposed Facility Zone (that is, right in the middle of an area set
aside for protection from such developments) represented a disregard of the discussions to establish an
ASMA ongoing at the time, which had begun several years earlier; a diminution of the wilderness values
of the region; and a disregard of proper CEE process in what regards the consideration of the
alternatives. The conflict has now been satisfactorily resolved by all Parties involved in the area, but this
remains as an example of how national interests tend to prevail over environmental protection, even in
the face of international best intentions. Taking this event as an example, ASOC contends that
Antarctic areas with a high concentration of facilities should be internationally managed as a matter of
routine, using the area protection and management tools available under the Protocol such as ASPAs and
ASMAs, and current experience on the implementation of Protected Areas such as the use of zoning.
•
Dependent and Associated Ecosystems: Despite the Protocol’s commitment to ensure protection for
dependent and associated ecosystems, there is limited evidence of this innovative and environmentally
sane concept in the practical operation of the Protocol. The capacity to designate “marine areas” as
protected areas under Annex V has, so far, been made contingent upon CCAMLR agreement. In 2005
concrete progress was made to further “deconstruct” the Protocol, with the adoption of a Decision on
“Marine Protected Areas and other areas of interest to CCAMLR” (Decision 9-2005). This essentially
gives even greater control of the marine component of the Antarctic Treaty Area to CCAMLR,
weakening Protocol provisions under Annexes I, II and V. With CCAMLR now increasingly operating
22
XXXI ATCM/IP057.
Abstract and contact details available from http://ipy-osc.no/abstract/378006. This research quantifies human
activities and environmental impacts in the Fildes Peninsula in King George Island. See also ATCM XXXII/IP050; and
XXX ATCM/IP136.
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as a regional fisheries agreement, it will be difficult for it to agree to deny any appreciable marine area to
Members’ fishing fleets.
One light at the end of the tunnel is the ongoing discussion on bioregionalization and the establishment
of a network of Southern Ocean Marine Protected Areas, which may yet contain, if not prevent,
excessive legal and illegal exploitation of the marine resources of the Southern Ocean. A first step was
taken in designating the South Orkneys no-take MPA in 2010, and other important MPAs and Reserves
are being considered by CCAMLR now for decision in November 2012.24
6. Concluding Remarks
The Protocol has been a significant step forward for the protection of the Antarctic environment. Nearly
twenty years after its signature we should ask which way things are going. While the Antarctic region is
nominally protected, it is also under growing environmental pressures – from both without and within the
Antarctic Treaty System – that are not always addressed effectively, proactively or strategically.
The Protocol is not consistently applied and some of its more innovative and progressive aspects of
environmental management are constantly under pressure. A better and more consistent implementation of
the Protocol’s letter and intent is required. This includes greater transparency in national implementation,
and a greater commitment to international management of the Antarctic region.
Most Antarctic experts agree that increased pressures and impacts loom in the horizon, both short-term and
longer term. The challenge for Antarctic Treaty Parties is to respond more effectively and in a timely way
to emerging pressures – through implementing the Protocol effectively, and complementing it with other
instruments, as required – and not let territory or resource interests prevail over international obligations and
the global benefit of protecting the Antarctic.
Fig. 1 – Timeline of the implementation of the Protocol. Inspections provide an assessment of its implementation;
most inspections have reported in minor and major issues of compliance.
24
XXX ATCM/IP087; XXXI ATCM/IP119; XXXII ATCM/IP041.
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