Updated: Sep 26, 2020
Image Source: https://www.telegraph.co.uk/travel/destinations/antarctica/articles/Antarctica-Trip-of-a-Lifetime/
Antarctica is one of the most unique places on Earth. As the coldest, windiest and driest continent on the planet, the polar environment is an incredibly unique biome. In saying this, the ecosystems that exist in Antarctica are also incredibly delicate. Threats to the Antarctic environment include climate change, pollution, habitat destruction, wildlife disturbance and non-native species introductions. So – who, in the legal sense, is liable to stop the impact of these threats? If sovereignty does not exist, how can Antarctica be legally protected?
Legally, “Antarctica” refers to:
1. The continent, surrounding islands, and oceanic area south of latitude 60o south and
2. the sub-Antarctic islands and ocean south of the Antarctic Convergence or Polar Front (ACPF), which variably bounds Antarctica at 45 degrees to 60 degrees south.
The area south of 60 degrees is the legal area of application of the Antarctic Treaty System (ATS), which is the core of the present Antarctic environmental law arrangements.
THE MATTER OF SOVEREIGNTY
In 1959, territorial sovereignty of Antarctica was addressed, with seven states claiming territories.
This sovereignty, however, was ceded to some degree in the following years, as the ATS was first brought into effect. 12 countries signed onto the Treaty System – Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union, the United Kingdom and the United States. These countries, therefore, all have equal rights and a degree of power through a “consulting status”, however no single sovereign power has wholistic control.
ANTARTICA’S HISTORICAL LEGAL PROTECTION
The three pillars of the ATS are peaceful purposes (avoiding militarisation), environmental protection and freedom of scientific enquiry. The Antarctic Treaty “froze positions on territorial sovereignty" in its Article IV – demilitarising the continent, establishing science as the basis for Antarctic presence. This demilitarisation of Antarctica was a vital point in International Environmental Law, observing states working together for a common cause, prioritising the sustainability and protection of delicate ecosystems over profit or political gain. The significant impacts the Antarctic Treaty made on the development of environmental law can be seen in Article I (the “prohibition of measures of a military nature”) and Article V (prohibitions of “nuclear explosions and waster disposal”). These Articles within the treaty were important not only to protect Antarctica’s fragile environmental, but also to set important precedent to restrain other potentially problematic activities there.
This treaty progressed to adopt the “Agreed Measures for the Conservation of Antarctic Fauna and Flora” in 1964, declaring Antarctica as a “special conservation area” and establishing a “general duty to avoid harmful interference with fauna and flora”. These measures also “created categories of Specially Protected
Species and Specially Protected Areas”.
Following conventions for the legal protection of the Antarctic environment are as follows:
o 1972 Convention for the Conservation of Antarctic Seals
o 1980 Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR)
o 1988 Convention on the Regulation of Antarctic Mineral Resource Activities
o 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol)
On 22 May 1989, Bob Hawke, the then serving Australian Prime Minister, refused to sign the Minerals Convention, announcing that Australia was opposed to mining in Antarctica. In August 1989, Mr Hawke, with the support of the then Prime Minister of France, Mr Michel Rocard, fought for a comprehensive regime to protect the Antarctic environment and associated ecosystems. The result of this, was that at the 15th Antarctic Treaty Consultative Meeting in Paris in October 1989, “Parties to the Treaty agreed to hold a Special Consultative Meeting during 1990 to consider proposals for comprehensive protection of the Antarctic environment.”
This resulted in the establishment of the 1991 Protocol. The 1991 [Madrid] Protocol is the most recent, and current acting Treaty providing legal protection to Antarctica’s wildlife and ecosystems.
THE 1991 MADRID PROTOCOL: ENVIRONMENTAL PROTECTION TO THE ANTARCTIC TREATY
Signed on October 4, 1991, the Protocol on Environmental Protection to the Antarctic Treaty entered “into force” in 1998. This Protocol saw an impressive commitment from the Parties to “comprehensively protect the environment of the Antarctic region… and dependent and associated ecosystems”. Within the Protocol (Art. 2) Antarctica is designated as a “natural reserve, devoted to peace and science”. There are also basic principles applicable to human activity in Antarctica outlined (Art. 3) and a prohibition on all activity “relating to Antarctic mineral resources, except for scientific research” (Art. 7). This “prohibition on mineral resource activities cannot be removed unless a binding legal regime on Antarctic mineral resource activities is in force (Art. 25.5).”
According to the official Antarctica website [cited in bibliography] the 1991 Protocol:
“designates Antarctica as a ‘natural reserve, devoted to peace and science
establishes environmental principles that must be a fundamental consideration in the planning and conduct of all activities
prohibits mining indefinitely
requires that all proposed activities must be subject to a prior assessment of their environmental impacts
establishes the Committee for Environmental Protection, to develop advice and formulate recommendations to the Antarctic Treaty Parties on implementation of the Protocol
requires the development of contingency plans to respond to environmental emergencies”
The Protocol is also accompanied by Annexes that detail specific measures and procedures relating to: “Environmental Impact Assessment, Conservation of Antarctic Fauna and Flora, Waste Disposal and Waste Management, Prevention of Marine Pollution, Area Protection and Management and Liability Arising from Environmental Emergencies”.
COOPERATION FOR A COMMON CAUSE
The 1991 Protocol on Environmental Protection to the Antarctic Treaty is a milestone for “international management of Antarctica and generally for international environmental law.” This protocol sees the Parties’ prioritisation of environmental sustainability and protection over political gain or profit. This Protocol sets important legal precedent in the realm of Environmental Law for the prioritising the protection of flora and fauna.
DR Rothwell, Polar environmental protection and international law: the 1991 Antarctic Protocol, European Journal of International Law, Volume 11, Issue 3, 2000, Pages 591–614, https://doi.org/10.1093/ejil/11.3.591
“Protocol on Environmental Protection to the Antarctic Treaty (The Madrid Protocol).” Australian Government - Department of Agriculture, Water and the Environment: Australian Antarctic Division | Australian Antarctic Program, 17 May 2019, www.antarctica.gov.au/about-antarctica/law-and-treaty/the-madrid-protocol/.
Hughes, Kevin A., et al. “Antarctic Environmental Protection: Strengthening the Links between Science and Governance.” Environmental Science & Policy, Elsevier, 27 Feb. 2018, www.sciencedirect.com/science/article/pii/S1462901117311279.
2020. [online] Available at: <https://www.researchgate.net/publication/261992249_Environmental_Law_-_Antarctica> [Accessed 24 September 2020].
Legislation.gov.au. 2020. Antarctic Treaty (Environment Protection) Act 1980. [online] Available at: <https://www.legislation.gov.au/Details/C2017C00324> [Accessed 24 September 2020].