Subject: Antarctica Treaty Introduction
ANTARCTICA
by Laura Pineschi
1. Introduction. The regime of the Antarctic continent and its surrounding waters (i.e the areas south of 60û South Latitude) is embodied in the so called Antarctic Treaty system. This regime originates from the Antarctic Treaty (Washington, 1 December 1959), the Convention for the Conservation of the Antarctic Seals (London, 1 June 1972), the Convention for the Conservation of the Antarctic Marine Living Resources (Canberra, 20 May 1980) and the recommendations (as, for instance, the Agreed Measures of 1964) adopted during the meetings of the Antarctic Treaty Consultative Parties (ATCPs). The latter are the States which are either original parties to the Antarctic Treaty or are entitled to participate at the Antarctic Treaty Consultative Meetings (ATCM) as States conducting substantial research activity in Antarctica, such as the establishment of a scientific station or the despatch of a scientific expedition (Antarctic Treaty, Art. IX.2). The three above mentioned agreements have been in force for a long time (respectively from 23 June 1961, 11 March 1978 and 7 April 1982), while the ATCPs recommendations become effective "... when approved by all the Contracting Parties whose representatives were entitled to participate in the meetings held to consider these measures" (Antarctic Treaty, Art. IX.4).
The Antarctic system has several undeniable merits. It "freezes" the difficult issue of territorial claims without predjudicing the positions of any party, either claimant or non-claimant (Antarctic Treaty, Art. IV). It reserves Antarctica for peaceful purposes by prohibiting, inter alia, any measure of military nature (Antarctic Treaty, Art. I). It promotes international co-operation in the field of scientific investigation (Antarctic Treaty, Art. II). Finally, it prohibits nuclear explosions in Antarctica and the disposal there of radio-active materials (Antarctic Treaty, Art. V).
Recently, two other instruments have been adopted within the Antarctic system: the Convention on the Regulation of Antarctic Mineral Resource Activities (Wellington, 2 June 1988, called CRAMRA) and the Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 4 October 1991, called PEPAT, which is reproduced in the present volume). While CRAMRA is not likely to come into force because of its allegedly insufficient rules on the protection of the environment, PEPAT is remarkable for being the first treaty within the Antarctic system to be exclusively devoted to the protection of the Antarctic environment. The mere fact that PEPAT prohibits any activity relating to mineral resources, other than scientific research, is in open contradiction with what the same States had negotiated by CRAMRA just two years before. This introduces a dramatic change in the attitude of the ATCPs, which is shifting from an interest in the actual or potential exploitation of economic resources to a concern for the protection of the Antarctic environment. Exploitation of economic resources now has to be compatible with a sound environmental approach which requires, according to the so called "precautionary principle", that activities which are likely to cause irreversible damage to the environment shall be avoided (see e.g. Principle 11 of the World Charter for Nature, UNGA Res. 37/7 of 28 October 1982). This objective can be achieved, in the case of living resources under the regulatory machinery of the Canberra Convention on the Conservation of Antarctic Marine Living Resources. On the contrary, mineral exploitation which has at last been considered to pose unacceptable hazards for the environment, is to be prevented.
2. The Global relevance of the Protection of the Antarctic Environment. The conservation of the Antarctic environment, including its marine and terrestrial ecosystems is a matter of global relevance. This continent plays a major role in determining the physical and biological conditions of the entire planet through its influence on the circulation of the atmosphere and ocean masses and the regulation of climate conditions. The protection of the Antarctic ecosystemic balance is fundamental for the survival of the food chain that connects marine species of all seas. Moreover, the carrying out of scientific research activities aimed at improving human knowledge on processes of global and regional importance relies upon the near pristine nature and the unique character of the Antarctic environment.
At the end of the eighties the formulation of environmental measures for the protection of the Antarctic begins to be conceived within the Antarctic system in a global context. Among many factors, the conclusion of the negotiations of CRAMRA and the decision of several ATCPs not to sign this instrument certainly played a decisive role in marking a turning- point in Antarctic environmental policy. For almost thirty years the ATCPs had been able to manage environmental problems by simply limiting and co- ordinating human activities in the Antarctic. However, in the case of mineral activities, the doubt that the "limiting and coordinating" approach might be inadequate to cope with risks of unpredictable and irreversible consequence on the global environment was not removed despite the conclusion of the negotiations of CRAMRA. Furthermore, it cannot be ignored that the increasing concern for the existence of global environmental risks was moving the international community to focus on global environmental priorities, such as, for example, the need for the adoption of international instruments aimed at containing the production of greenhouse gases and other heat-trapping emissions. In this scenario, the adoption of CRAMRA (an instrument which, despite several environmental safeguards, de facto legitimates the opening of a new, particularly sensitive area to fossil fuel exploitation activities) could definitely appear not appropriate. PEPAT can be considered an important instrument for the prevention of global environmental risks. The prohibition of carrying out any activity aimed at the commercial exploitation of the Antarctic mineral resources and, more generally, the duty to plan and conduct human activities so as to avoid adverse effects on climate or weather patterns, on atmospheric or marine environments and on the distribution, abundance or productivity of species or populations of species of fauna and flora (Art. 3) are the prominent examples of a "forecast and prevent" approach. This is correctly based on the wide utilization of environmental impact assessment procedures and it is complemented by the prohibition of activities which are likely to cause irreversible damage to the global environment. It is also important to note that PEPAT explicitly recognizes the unique opportunities that Antarctica offers for scientific monitoring and research on processes of global importance, according priority to scientific research over any other human activity (Art. 3.3).
3. PEPAT as a Comprehensive and Innovative Instrument of Environmental Protection. Starting with the XV ATCM of 1989, the ATCPs have formally opened the discussions on the introduction of a new environmental regime within the Antarctic Treaty system. They have begun to talk of comprehensive measures for the protection of the Antarctic environment and associated ecosystems, of the prohibition of Antarctic mineral activities, of the need to ensure a properly integrated, comprehensive, and internally consistent regime of environmental protection.
These discussions converged in 1991 in the adoption of PEPAT, an instrument structured as a framework agreement to which technical Annexes are to be appended as forming an integral part of the Protocol and providing a detailed regulation of single issues. Five Annexes have already been adopted, relating respectively to environmental impact assessment (Annex I), the conservation of the Antarctic flora and fauna (Annex II), waste management and waste disposal (Annex III) the prevention of marine pollution (Annex IV), and area protection and management (Annex V). A sixth annex, dealing with the delicate issue of tourism, is expected to be negotiated in the near future.
As regards its substance, PEPAT is mostly relevant for regulating all human activities in Antarctica (except fishing and seal hunting) by a single environmental instrument adopted in the form of an additional Protocol to the Antarctic Treaty. The achievement of the principal objectives of PEPAT are mostly based on the commitment of the Parties to protect the Antarctic environment and its dependent and associated ecosystems by means of three principles: the designation of Antarctica as a natural reserve devoted to peace and science, the prohibition of any activity relating to mineral resources other than scientific research and the prior assessment of the impact of all planned human activities in Antarctica upon the Antarctic environment and its dependent and associated ecosystems.
The innovations introduced by PEPAT in the approach of the Antarctic Treaty system to environmental problems can also be seen as a concrete application of the most recent trends of international environmental law. Besides the already mentioned innovations relating to global environmental protection, PEPAT is the first international agreement adopting the "comprehensive protection approach" with respect to an area (generally considered to be) beyond the limits of national jurisdiction. This principle explicitly emerged within the United Nations General Assembly in 1989, when the Maltese delegate, blaming the fragmentary way ("often producing haphazard, piecemeal and disconnected measures", Doc. UN A/44/193) by which the environmental protection of the "extra-territorial" spaces is generally dealt with, proposed that any responsive action for a more effective protection of the environment of "extra-territorial" spaces would be global in scope and should take into account the intimate relationship which exists among all these spaces. Under PEPAT, the "comprehensive protection approach" to Antarctica is particularly visible in the designation of the areas south of 60<198> South Latitude as a natural reserve devoted to peace and science. Further equally important evidence of the new approach consists in the initiative to supersede a system of a "patchy set of rules", "crafted on an ad hoc basis to cope with individual environmental problems as they arose" (Doc. XVI ATCM/INFO 21, submitted by the Antarctic and Southern Ocean Coalition on 21 October 1991, p. 1), with an integrated system of protection based on a set of general standards and compliance procedures which, while capable of application in any particular situation, may also be supplemented by later measures related to specific activities.
Finally, in many respects PEPAT concretizes the proposals that have emerged within the context of the most qualified international fora in order to promote a more constructive environmental cooperation also on the technical-procedural level. Problems relating to non- compliance or lack of effectiveness are tackled by PEPAT at several levels. Suffice here to mention the establishment of a permanent institution, the Committee for Environmental Protection requested by Art. 12 of PEPAT to perform different functions of control on the effective implementation of the Protocol, the prevision of reporting duties on the actions undertaken by the parties in implementing or derogating from PEPAT (see e.g Art. 17 of PEPAT) and, finally, the promotion of inspections on an individual or a collective basis (Art. 14). On the other hand, it should be remembered that the adoption of procedures providing for a rapid updating of PEPAT (additional Annexes to PEPAT can be adopted during any annual - since 1991 - meeting of the ATCPs and possible amendments or modifications to Annexes can become effective on an accelerated basis if the Annexes themselves so provide) as well as the possibility of bridging the gap between signature and entry into force of the new instrument by means of voluntary compliance to Annexes I-IV (Final Act of the XI ATSCM, p. 3).
4. Flaws in the PEPAT Regulation. Despite many positive aspects, it is a matter of fact that certain material limits ratione personae and ratione materiae substantially affect the achievement of some of the fundamental objectives pursued by PEPAT.
Ratione personae PEPAT could have been more "comprehensive" than it actually is. The new Protocol was negotiated within the framework of the Antarctic Treaty system and only States parties to the Antarctic Treaty can accede to it (Art. 22.2). We shall not discuss here the criticism that States which are not parties to the Antarctic Treaty have been addressing since 1983 to the ATCPs, claiming the establishment in Antarctica of a legal regime open to the participation and control of the whole international community (under the pressure of these States, in 1990 the United Nations General Assembly adopted a resolution according to which: "... any move to draw up a comprehensive environmental convention on the conservation and protection of Antarctica and its dependent and associated ecosystems as well as establishing a nature reserve or world park must be negotiated with the full participation of the international community... and within the context of the United Nations system, including the United Nations Conference on Environment and Development". It is a matter of fact that any effective comprehensive regime for the protection of the Antarctic environment should have required, at least, that the largest number of States involved in Antarctic activities would be bound to strict environmental duties and that those duties would be effectively implemented. If the first condition is in principle satisfied (de jure, any State member to the United Nations can become a party to the Antarctic Treaty and therefore to PEPAT, according to Art. 22 of PEPAT and Art. XIII of the Antarctic Treaty, and de facto all the States which are really active in Antarctica are parties to the Antarctic Treaty), it is instead rather disappointing that under PEPAT ATCPs and other contracting parties do not enjoy the same position. On the one hand, it is appreciable that PEPAT is intended to bind also non-ATCPs States which may actually be interested in carrying activities in Antarctica (suffice it to mention that the establishment of a scientific station can be considered, according to Art. IX.2 of the Antarctic Treaty a pre- requisite for becoming an ATCP). On the other hand, it is hardly acceptable that non-ATCPs do not dispose of a real decision-making power within the Protocol. The privileged position of ATCPs is furthermore stressed by the fact that PEPAT does not provide for the establishment of bodies "super partes" which can assure an effective control on the implementation of PEPAT and its Annexes.
A brief comparison between PEPAT and the draft of a convention for the comprehensive protection of the Antarctic environment that four countries (Australia, Belgium, France and Italy) proposed in Vi–a del Mar in 1990 clearly points out the modest results that PEPAT achieved in this respect. The Committee for Environmental Protection, a weak institution, destitute of any decision-making power ("The functions of the Committee shall be to provide advice and formulate recommendations to the Parties...", Art. 12.1 of PEPAT) is the only body of the complex institutional machinery (inclusive of a Standing Committee for the Protection of the Antarctic Environment, a Scientific and Technical Committee for the Protection of the Antarctic Environment, a permanent Secretariat and an Ispectorate) which survives in the definitive text adopted in Madrid in 1991. Furthermore, according to the draft proposed by Australia, Belgium, France and Italy, inspections had to be carried out by the Inspectorate, a body consisting of inspectors appointed by the single parties, but independent of their governments ("In performing their duties, the inspectors shall enjoy complete freedom to carry out inspection and monitoring and may not receive instructions from their national authorities", draft Art. XXVI.2), could cover all activities carried out in the area and include access to all fixed installations and all means of transport within that area. The difference with PEPAT, which provides for a more restricted application of the right to inspection to be organized individually or collectively by ATCPs on an ad hoc basis, is particularly evident in the field of the prevention of marine pollution. While according to the draft Convention a right of inspection on vessels could have even been exercised in the high seas ("Inspection and monitoring by the inspectorate shall cover all activities carried out in the area and... shall include access to all fixed installations and all means of transport within that area", draft Art. XXVI.3), according to Art. 14 of PEPAT vessels can be inspected only at points of discharging or embarking cargoes or personnel in Antarctica, or observed through aerial observation (Art. VII paras. 3 and 4 of the Antarctic Treaty).
Finally, as long as the participation to PEPAT is not really universal de jure and de facto, the question of the control on the activities carried out by States which are not parties to the Protocol will remain open. Granted that the principle according to which inter- national agreements have no effect with regard to third States is also applicable to the rules of the Antarctic Treaty system, it is clear that action against third States cannot be pushed beyond certain limits. An effort to devise a possible deterrent is however evident. Art. 13 of PEPAT not only reiterates the content of Art. X of the Antarctic Treaty and adapts it to the specific objective of the protection of the Antarctic environment providing that any single contracting party shall exert appropriate efforts to the end that no one (a term including other contracting parties, third States and any natural or juridical person) engages in any activity contrary to PEPAT, but also provides that all ATCPs convened in a meeting shall draw the attention of non- States parties to activities (under the latter's control) which can affect the implementation of the objectives of PEPAT. The ratio of this provision obviously consists in the intention to strengthen the above mentioned Antarctic Treaty Parties position, by confronting third States which allow activities in contrast with the objectives of PEPAT with the entire array of the ATCPs.
Ratione materiae the structure of PEPAT has been conceived in such a flexible manner that it should be possible in the future to update and adapt its rules rather easily as soon as new environmental problems emerge. The feeling is however strong that certain present limits of PEPAT and, above all, of certain Annexes, could have been avoided since the beginning. Suffice here to mention, by way of example, that PEPAT does not resolve, but only alludes to, certain problems which should have instead required the adoption of quick and concrete solutions. The problem of environmental emergencies which might arise in the performance of human activities in the Antarctic Treaty area, for example, is resolved both by PEPAT and Annex IV on the Prevention of Marine Pollution simply remitting the establishment of contingency plans to the initiative of the contracting parties. Furthermore, always in the case of the prevention of marine pollution, it should be recalled that Annex IV simply provides that "... in the design, construction, manning and equipment of ships engaged in or supporting Antarctic operations, each Party shall take into account the objectives of the Annexes" (Art. 10). It is however known that especially after the sinking of the Bahia Paraiso (an Argentinian vessel that caused the spilling of 600 tons of crude oil into the waters of the Antarctic Peninsula on 28 January 1990), the adoption of strict and uniform regulation on design and safety standards of vessels navigating in the Antarctic Treaty area are considered to be indispensable for the effective prevention of similar accidents.
In certain cases real loopholes legitimate the disattendance of the general provisions of PEPAT. Annex IV on the prevention of marine pollution, for example, contains a clause on sovereign immunity, which excludes the application of its provisions to any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, on government non-commercial services (Art. 11). Without denying that there is a clause on State immunity in every treaty on marine pollution, such a provision seems excessive in the case of Antarctica. Expeditions and scientific activities in the Antarctic are almost always conducted by governments and are non-commercial in nature. Annex IV to PEPAT is thus likely to apply to fishing, tourism and to transit of private ships in the Antarctic seas (although it does not seem that there are any major shipping routes in such waters), but does not strictly cover other activities which are most frequent and typical in Antarctica. The impression remains that the parties have missed a good opportunity to do something new and adapt the traditional State immunity clause to a very peculiar situation. The addition in Art. 11 of Annex IV to PEPAT that "... each Party shall ensure by the adoption of appropriate measures not impairing the operations or operational capabilities of such ships owned or operated by it, that such ships act in a manner consistent, so far as is reasonable and practicable, with this Annex" has a merely hortatory character and is an example of soft provisions, existing in other treaties as well, whose implementation is left to the good will of the interested States.
5. Prospects for the Future. The entry into force of PEPAT will certainly strengthen the protection of the Antarctic environment and provide the international community with a new instrument, valuable under many respects, for the prevention of global environmental risks. Of course, it will depend on the parties to PEPAT as to whether certain flaws in the material provisions of the new instrument will be overcome or removed, or whether they will definitely become deficiencies inherent to the system. It is instead already clear, that the success of PEPAT will mostly rely, on the one hand, on the ability of the parties to prevent and overcome possible frictions in their cooperation (in this respect, the different position of consultative and non-consultative parties has already been stressed) and, on the other, on a wise coordination between PEPAT rules and any other international provision applicable to the Antarctic Treaty area.
The problem of harmonization between PEPAT and other instruments of the Antarctic system will imply a real work of revision and coordination. PEPAT already requires its parties to consult and cooperate with the contracting parties to the other international instruments in force within the Antarctic Treaty system and their respective institutions in order to avoid any interference or any inconsistency between the achievement of the objectives of these instruments and PEPAT (Art. 5). It is also to be stressed, however, that the problem of the relationship between PEPAT and the Antarctic Treaty recommendations in particular already emerged at the first meeting of the ATCPs convened after the conclusion of the negotiations of PEPAT. During the XVI ATCM of 1991 it was in fact decided that in order to provide ATCPs with a better understanding of their obligations, two lists of the existing recommendations, one of recommendations which are superseded and one of those which may be affected by PEPAT, should be drawn up as soon as possible (Doc. XVI ATCM/WP 56/Rev. 1 of 18 October 1991, p. 11).
On the other hand, it cannot be ignored that possible conflicts and overlappings between PEPAT and international agreements which have been negotiated outside the Antarctic Treaty system could become a frequent and difficult endeavour in the future. Still recently, provisions for the protection of the Antarctic environment have been adopted, for example, under the Basel Convention on the control of transboundary movements of hazardous wastes and their disposal of 22 March 1989 (according to Art. 4.6 of this Convention: "The Parties agree not to allow the export of hazardous wastes or other wastes for disposal within the area south of 60û South latitude, whether or not such wastes are subject to transboundary movement") and under the 1972 London Convention for the prevention of pollution from ships and the Protocol of 1978 related thereto (MARPOL Convention). Annexes I (Regulations for the prevention of pollution by oil) and V (Regulations for the prevention of pollution by garbage from ships) to MARPOL were amended in 1990 in order to designate the "sea area south of 60<198> south latitude", as a special area under the said Annexes. Finally, it should be remembered that in certain cases, the same PEPAT defers the solution of certain problems to other international agreements. In the case of the prevention of marine pollution, for example, Annex IV to PEPAT tries to solve possible conflicts and overlappings with MARPOL by providing that, with respect to those parties to Annex IV which are also parties to MARPOL, nothing in Annex IV "... shall derogate from the specific rights and obligations thereunder" (Art. 14). As a consequence of this provision, when PEPAT enters into force, a State which is a party to both MARPOL and PEPAT will be bound by MARPOL with respect to States which are also parties to both MARPOL and PEPAT (or to MARPOL only) and by PEPAT with respect to States which are parties to PEPAT. But what happens if conflict arises between MARPOL and PEPAT? The question itself reveals that the risk of a lack of uniformity and uncertainties in the effective regime of protection has not been completely excluded.
Selected Bibliography
The text of the principal documents of the Antarctic system are reproduced in:
Bush, Antarctica and International Law, 4 Vols., London, Rome, New York, 1982; Handbook of the Antarctic Treaty System, Cambridge, Sixth Edition, 1989. Interesting contributions on environmental protection of Antarctica are contained in the following books: Auburn, Antarctic Law and Politics, London, 1982; Wolfrum (Ed.), Antarctic Challenge II, Berlin, 1986; Francioni and Scovazzi (Eds.), International Law for Antarctica, Milano, 1987; Wolfrum (Ed.), Antarctic Challenge III, Berlin, 1988; Jorgensen-Dahl and Ostreng (Eds.), The Antarctic Treaty System in World Politics, Oslo, 1991. On the Protocol see: Francioni, Il Protocollo di Madrid sulla protezione dell'ambiente antartico, to be published in issue No. 4, 1991, of Rivista di Diritto Internazionale.
