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Kristen M. Fletcher, J.D. and Tim Wilson, J.D.

I. Introduction
 The Madrid Protocol on the Protection of the Antarctic Environment took effect on February 14.⁽¹⁾ Signed in 1991, it took effect when the 26 member nations ratified it. The Protocol is part of the larger Antarctic Treaty System which was created "to ensure that Antarctica is used for peaceful purposes, for international cooperation in scientific research, and does not become the scene or object of international discord."⁽²⁾

The Protocol purports to protect the Antarctic Ocean. It provides rules for waste disposal at sea, requires environmental impact statements for proposed activities, designates Antarctica as a natural reserve, and bans mining. Unfortunately, its effectiveness is limited by unclear terms, lack of adequate enforcement, and provisions allowing exemptions from its requirements.

II. The Antarctic Treaty System & the Madrid Protocol
Since 1959, the conduct of nations in Antarctica has been regulated by the Antarctica Treaty System, which consists of the Antarctica Treaty of 1959 and several subsequent treaties. The primary goal of the 1959 treaty was to demilitarize Antarctica. Environmental protection did not become a goal of the treaty system until the 1970s.

The 1991 Protocol does not materially reduce the rights of states claiming sovereignty in Antarctica, but it does provide a holistic approach to the regulation of the Antarctic environment and a means of gathering information and providing disclosure of the activities of nations in Antarctica which includes greater attention to the Antarctic Ocean.
 

Disposal in the Ocean
An Annex to the Protocol provides rules for the disposal of waste on land and at sea.⁽³⁾ A party may not discharge oil, noxious liquids, garbage or sewage into the sea and all vessels operating in the area must be equipped with retention tanks. An important exception to this requirement is whenever the requirement might impair an Antarctic operation. Unfortunately, the Annex fails to define "impair" and may represent an open invitation to abusive interpretation by vessel operators.

This requirement also does not apply to ships owned and operated by a State and used for non commercial purposes. Most ships in the Antarctic are owned by a State and very few are used for commercial purposes. In reality, the Antarctic Ocean receives very little protection under this provision.
 

EIS Requirement
The most important parts of the Protocol are the requirement of environmental impact statements for all activities in the Antarctic treaty area, including the related oceans and ice caps.⁽⁴⁾ It also requires that all Antarctic activities be conducted so as to limit environmental damage. The purposes of the environmental impact statements are to provide information for informed decisions about Antarctic activities and to provide disclosure to all nations of activities in the Antarctic.

In addition, the Protocol bans activities likely to harm the environment of the Antarctic. The protocol does not define or give examples of these activities so it is hard to determine exactly what is forbidden. The protocol bans activities that knowingly cause a risk to the environment but it does not forbid activities where the risks to the environment are unknown.

The Protocol requires nations to cooperate in the planning and conduct of Antarctic activities and, "to the extent possible," to share information and to "endeavor" to assist each other in the preparation of environmental impact statements. Customary international law imposes an obligation on nations to cooperate in mitigating transboundary environmental risks, however, the Protocol adds specific obligations to gather and disclose environmental data. This obligation applies to a wide variety of activities, including scientific research and tourism. This obligation reflects the lowest common denominator of responsibility the Parties were willing to have apply to all types of activity.
 

Antarctica: A Natural Reserve
 

The 1991 Protocol to the Antarctica Treaty of 1959 obligates the Parties to protect the Antarctic environment and the dependent ecosystems by designating Antarctica a "natural reserve." There is no definition of the term "natural reserve" or specific rights or duties resulting from the use of that term. The term was provided by Australia and France, who objected to the terms "wilderness park" or "common heritage" because those terms had clearly defined meanings in international law and implied a reduction in sovereign rights.⁽⁵⁾ This leaves the designation more symbolic than legal.
 

The Ban of Mining
The Protocol contains a purported ban on Antarctic mining. It is a compromise between states asserting sovereign rights (primarily Australia and France), states worried about exclusion from the development of Antarctic resources, and non governmental environmental groups worried about damage to the Antarctic environment. The Protocol states that "[a]ny activity relating to mineral resources, other than scientific research, shall be prohibited."⁽⁶⁾ However, this prohibition is not as absolute as it sounds. First, scientific research may be used as a reason to prospect. Second, parties may use an amendment procedure to conduct mining.

The Protocol may be amended at any time by agreement of a majority of the Parties.⁽⁷⁾ Any amendment relating to mining must contain "an agreed means for determining whether and under what conditions, any such activities would be acceptable."⁽⁸⁾ The amendment must also "fully safeguard" the rights of any Party claiming sovereignty over any part of Antarctica at the time the Antarctica Treaty of 1959 came into force.⁽⁹⁾ The amendment process has no requirements relating to environmental protection.

Finally, a "walk away" clause permits a nation to withdraw from the protocol if an amendment to the protocol, including an amendment to the ban on mining, has not been adopted within three years of being proposed.⁽¹⁰⁾ The effect of the walk away clause is that a Nation can avoid the ban on mining in Antarctica by proposing an amendment to allow the permitting of mining and that does not interfere with existing Antarctic sovereign rights. If the amendment is adopted, mining may occur. If the amendment is not adopted within three years, the Nation may avoid the ban on mining by giving two years notice of its withdrawal from the protocol. A five year delay is no delay at all to a mining project which has a lead time of more than years because of the amount of capital investment involved.

Enforcement of the Protocol
The Protocol requires each Party to take appropriate measures to comply with the protocol and to exert appropriate efforts to influence other nations to comply.⁽¹¹⁾ No definition is provided for the terms "appropriate measures" or "appropriate efforts." Each Party is required to notify the other Parties of activities affecting the implementation of the Protocol. It establishes a Committee on Environmental Protection to assist the Parties in enforcement but it is advisory only and has no independent powers of enforcement, or inspection, leaving enforcement to the individual Parties.

Enforcement of the protocol is subject to binding arbitration or compulsory International Court of Justice jurisdiction. However, this provision of the protocol does not apply to disputes involving the parts of the protocol that relate to environmental impact statements or the disclosure of environmental information. Disputes concerning these matters are subject only to an obligation to resolve disputes by peaceful means.

The information gathering and disclosure requirements of the protocol are its most important parts. Omitting these parts from the compulsory dispute resolution requirements renders them meaningless. Almost any dispute involving the protocol will involve information gathering or disclosure and so be exempt from the requirement of compulsory arbitration.

Regarding damages, the Protocol requires the Parties to undertake elaborate rules and procedures relating to liability for damages resulting from activities within the Treaty area. Unfortunately, no further guidance is given.
 

Lack of Fisheries Protection
Finally, the Treaty does not address a growing fisheries concern in the Antarctic. Commercial Fisheries in the Southern Ocean are covered by Commission for the Conservation of Antarctic Marine Living Resources. The fisheries which raise concern are the toothfish which are subject to an ongoing legal longline fishery. Recently, New Zealand, France and the United Kingdom have sent ships and planes to Antarctic fishing grounds in search of pirate vessels committing illegal takes of the species. Other nations have also expressed interest in developing fleets to target toothfish. Parties must make efforts to include fisheries in future Antarctic conservation measures.
 

IV. Conclusion
 The Madrid Protocol does not realistically provide comprehensive effective protection for the Antarctic Ocean. However, it does establish norms of conduct with which Nations are expected to comply and enforce. It also provides a means of gathering and disclosing information about the Antarctic environment.

Like many international conservation agreements, the Protocol is crippled by its deference to national sovereignty and its need for national consensus for enforcement. Unfortunately for the protection of Antarctic resources, the Madrid Protocol is part of the evolution of international environmental law and shares the weaknesses of most treaties: general standards, weak institutional structure, and dependance on sovereign States for enforcement.
 

ENDNOTES
1. Protocol on Environmental Protection to the Antarctic Treaty, April 24, 1991, 30 I.L.M. 1455 [hereinafter Protocol].

2. The Antarctic Treaty, December 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71.

3. Protocol at Article 3.

4.

5. Protocol at Article 7.

6. Protocol at Article 15.

7. Protocol at Article 25.

8. Id.

9. Id.

10. Protocol at Article 13.

11. Protocol at Article 11. See generally Francesco Francioni, The Madrid Protocol on the Protection of the Antarctic Environment, 28 Texas International Law Journal 47, 61 (1993).

University of Mississippi