The 1991 Madrid Environmental Protection Protocol: Contributions to marine pollution law

Marine Policy

Volumn 20, Issue 3, 1996, Pages 183-197

  Joyner, Christopher C ^a  

^a GEORGETOWN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ANTARCTIC TREATY; ENVIRONMENTAL LAW; ENVIRONMENTAL PROTECTION; MADRID PROTOCOL; MARINE POLLUTION; POLLUTION LEGISLATION; PROTOCOL ON ENVIRONMENTAL PROTECTION TO THE ANTARCTIC TREATY;

SOUTHERN OCEAN;

EID: 0029989337     PISSN: 0308597X     EISSN: None     Source Type: Journal    
DOI: 10.1016/0308-597X(96)00012-7     Document Type: Article

References (77)

1. Protocol on Environmental Protection to the Antarctic Treaty, XIth Special Consultative Meeting in Madrid, Doc. XI ATSCM/2, June 21, 1991, adopted October 4, 1991 [hereinafter Madrid Environmental Protocol].
2. The Antarctic Treaty Consultative Parties, which possess full voting membership among the Antarctic Treaty parties, presently count 26 states as members. The 12 original parties to the Antarctic Treaty (viz., Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union [Russia], the United Kingdom and the United States) comprised the initial group of Consultative Party states. Since the Antarctic Treaty's entry into force in 1961, Consultative Party status has been granted to certain states that have "demonstrated scientific research activity" in and around the continent. The Antarctic Treaty, done Dec. 1, 1959, 12 U.S.T. 794, T.I.A.S. No. 4780, 402 U.N.T.S. 71, art. IX, para. 2. As of 1996, the following additional states have been admitted to the Consultative party group: Brazil, China, Ecuador, Finland, Germany, India, Italy, South Korea, Netherlands, Peru, Poland, Spain, Sweden and Uruguay. These ATCPs work in annual meetings to set recommended policy for the Antarctic. There are also certain contracting states that have ratified the Antarctic Treaty, but have not opted to become ATCPs. Included among this group of Non-Consultative Parties in 1996 are: Austria, Bulgaria, Canada, Colombia, Cuba, Czechoslovakia, Denmark, Greece, Guatemala, Hungary, the Democratic People's Republic of Korea, Papua New Guinea, Romania and Switzerland. The Scientific Committee on Antarctic Research (SCAR), created in 1958 during the International Geophysical Year, has become the principal advisory body on scientific matters for the ATCPs.
3. In early 1996, the following Consultative Party states still must ratify the Protocol: Belgium, Finland, India, Japan, Russia and the United States.
4. United Nations Convention on the Law of the Sea, done at Montego Bay on December 10, 1982, entered into force November 16, 1994, U.N. Doc. A/CONF.62/122, Art. 1(4). Reprinted in United Nations, The Law of the Seas: Official Text of the Convention on the Law of the Sea with Annexes and Index, U.N. Sales No. E.83.V.5 (1983) [hereinafter cited as 1982 LOS Convention]. As of April 1, 1996, at least 88 ratifications had been deposited to the 1982 LOS Convention. The Joint Group of Experts on the Scientific Aspects of Marine Pollution adopted in 1982 the principal definition that has more or less served as the model for subsequent connotations: Marine pollution was the "[i]ntroduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) resulting in deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing, impairing of quality for use of sea-water and reduction of amenities". Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP), "The Health of the Oceans", 16 UNEP Regional Seas Reports and Studies 9 (1982).
5. See Gr. J. Timagenis, International Control of Marine Pollution I, Dobbs Ferry, NY, Oceana Publications, 1980, pp 16-18.
6. GESAMP, "The Health of the Oceans", 39.
7. GESAMP, "The Health of the Oceans", 44.
8. GESAMP, "The Health of the Oceans", 49.
9. GESAMP, "The Health of the Oceans", 41.
10. GESAMP, "The Health of the Oceans", pp 51-52.
11. For general treatments of the international law of marine pollution, see generally Douglas Brubaker, Marine Pollution and International Law: Principles and Practice, London, Belhaven Press, 1993; Daniel B. Macgraw, ed, International Law and Pollution Philadelphia, University of Pennsylvania Press, 1991; and Gr. J. Timagenis, op cit, Ref 5.
12. For general treatments of the international law of marine pollution, see generally Douglas Brubaker, Marine Pollution and International Law: Principles and Practice, London, Belhaven Press, 1993; Daniel B. Macgraw, ed, International Law and Pollution Philadelphia, University of Pennsylvania Press, 1991; and Gr. J. Timagenis, op cit, Ref 5.
13. 1982 LOS Convention, Article 192.
14. 1982 LOS Convention, Article 195.
15. International Convention for Preventing Pollution from Ships, done at London Nov. 2, 1973, I.M.C.O. Doc. MP/CONF/WP.35, amended by Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, done at London Feb. 17, 1978, entered into force Oct. 2, 1983, I.M.C.O. Doc. TSPP/CONF/ 11.
16. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, done Dec. 29, 1972, 26 U.S.T. 2403, T.I.A.S No. 8165.
17. Environmental Protection Protocol, Article 1(1).
18. Ibid, Article 5.
19. Ibid, Article 2.
20. Ibid, Article 2.
21. IbId, Article 3, para. 1.
22. Convention on the Conservation of Antarctic Marine Living Resources, done at Canberra May 7-20, 1980, entered into force April 7, 1982, 33 U.S.T. 3476, T.I.A.S. No. 10240, at Article III.
23. Ibid, Article 3.
24. Ibid, Article 10.
25. Ibid, Article 11.
26. Madrid Environmental Protocol, Article 7.
27. Ibid, Article 25, para. 4.
28. Ibid, Article 25. However, pursuant to a U.S. proposal, any state has the right to withdraw from the provisions of the protocol (presumably giving it the right to mine without regulation) if an amendment lifting the ban is enacted but not ratified within five years of its proposal. Ibid, Article 25, para. 6.
29. Ibid, Article 25. However, pursuant to a U.S. proposal, any state has the right to withdraw from the provisions of the protocol (presumably giving it the right to mine without regulation) if an amendment lifting the ban is enacted but not ratified within five years of its proposal. Ibid, Article 25, para. 6.
30. Ibid, Articles 11 and 12.
31. Ibid, Article 12, para. 1.
32. Antarctic and Southern Ocean Coalition, 'A Critique of the Protocol to the Antarctic Treaty on Environmental Protection', ASOC Information Paper No. 1, XVI ATCM, October 8, 1991, 4 [hereinafter cited as ASOC Critique].
33. Madrid Environmental Protocol, Article 14.
34. Ibid, Articles 18, 19 and 20.
35. Ibid, Article 8.
36. 4The ATCPs are presently in the process of drafting an annex on liability. See generally 'Liability Annex to the Protocol on Environmental Protection to the Antarctic Treaty', ATCM Doc. XVIII ATCM/WP 2, Kyoto, 10 April 1994. Known as the 'Chairman's Offering', by October 1995 this informal draft annex on liability had undergone at least three iterations.
37. Article IX of the Antarctic Treaty concerns the Consultative Party process and the adoption of measures through consensus by the ATCPs.
38. Annex I to the Protocol on Environmental Protection to the Antarctic Treaty: Environmental Impact Assessment, XI ATSCM/2, 21 June 1991.
39. See Madrid Environmental Protocol, Article 8.
40. Annex I, Articles 1, 2 and 3.
41. Ibid, Article 1.
42. Ibid, Article 2.
43. Ibid, Article 3.
44. Ibid, Article 7.
45. Ibid, Article 3, para. 5.
46. Annex II to the Protocol on Environmental Protection to the Antarctic Treaty: Conservation of Antarctic Fauna and Flora, XI ATSCM/2, 21 June 1991. Of note, three improvements are made by Annex II in the conservation regime for Antarctica. First, protection is extended to terrestrial and freshwater invertebrates (Article 6); second, a prohibition is placed on the presence of dogs in Antarctica after April 1, 1994 (Article 4, para. 2); and third, significant damage to native terrestrial plants is included within the definition of "harmful interference" to the Antarctic environment (Article 1, para, (h) (v)).
47. Ibid, Article 4, para. 1. Emphasis added.
48. Annex III to the Protocol on Environmental Protection to the Antarctic Treaty: Waste Disposal and Waste Management, XI ATSCM/2, 21 June 1991.
49. Recommendation XII-4, 'Man's Impact on the Antarctic Environment, Code of Conduct for Antarctic Expeditions and Station Activities', reprinted in John Heap, ed., Handbook of the Antarctic Treaty System, Washington, DC, U.S. Department of State, 1994, p 2203.
50. 'Recommendation XV-3, Human Impact on the Antarctic Environment: Waste Disposal', reprinted in John Heap, ibid, p 2204.
51. Annex III, Article 8.
52. Ibid, Article 5(1).
53. Ibid, Article 7.
54. Ibid, Article 8(2).
55. Ibid, Article 8(3).
56. See Annex III, Articles 1(2), 1(4), 2(2), 3(1), 3(2), 4(2), 4(3) and 8(3).
57. Ibid, Article 3(1).
58. See Ibid, Article 5 para. 1(b) (Disposal of Waste in the Sea).
59. Ibid, Article 5, para. 1.
60. ASOC Critique, 8.
61. Annex IV to the Protocol on Environmental Protection to the Antarctic Treaty: Prevention of Marine Pollution, XI ATSCM/2, 21 June 1991.
62. lnternational Convention for Preventing Pollution from Ships, done at London Nov. 2, 1973, I.M.C.O. Doc. MP/CONF/WP.35, amended by Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, done at London Feb. 17, 1978, entered into force Oct. 2, 1983, I.M.C.O. Doc. TSPP/CONF/ 11.
63. Annex IV, Article 2.
64. Ibid, Article 9, para. 1.
65. Ibid, Article 9, para. 2.
66. Ibid, Article 9.
67. Ibid, Article 10.
68. Annex IV, Article 2.
69. Ibid, Article 14.
70. Annex to Recommendation XVI: Annex V to the Protocol on Environmental Protection to the Antarctic Treaty: Area and Management, in Antarctic Treaty, Final Report of the Sixteenth Antarctic Consultative Meeting, pp 116-125, 7-18 October, 1991.
71. Ibid, Article 3.
72. Ibid, Article 4. While permits will not be required, a detailed management will be necessary for each area. Ibid, Article 5. Importantly, the concept of 'sufficient size to protect the values for which the special protection or management is required' is included, ibid, Article 5(2), which improves upon the previous 'minimum size requirement'. Management for tourist visits is also included. Ibid, Article 5. Perusal of Annex V implies that the Environment Committee will play a pivotal advisory role in the management plan process, as also will the Scientific Committee on Antarctic Research (SCAR).
73. Ibid, Article 4. While permits will not be required, a detailed management will be necessary for each area. Ibid, Article 5. Importantly, the concept of 'sufficient size to protect the values for which the special protection or management is required' is included, ibid, Article 5(2), which improves upon the previous 'minimum size requirement'. Management for tourist visits is also included. Ibid, Article 5. Perusal of Annex V implies that the Environment Committee will play a pivotal advisory role in the management plan process, as also will the Scientific Committee on Antarctic Research (SCAR).
74. Ibid, Article 4. While permits will not be required, a detailed management will be necessary for each area. Ibid, Article 5. Importantly, the concept of 'sufficient size to protect the values for which the special protection or management is required' is included, ibid, Article 5(2), which improves upon the previous 'minimum size requirement'. Management for tourist visits is also included. Ibid, Article 5. Perusal of Annex V implies that the Environment Committee will play a pivotal advisory role in the management plan process, as also will the Scientific Committee on Antarctic Research (SCAR).
75. Ibid, Article 4. While permits will not be required, a detailed management will be necessary for each area. Ibid, Article 5. Importantly, the concept of 'sufficient size to protect the values for which the special protection or management is required' is included, ibid, Article 5(2), which improves upon the previous 'minimum size requirement'. Management for tourist visits is also included. Ibid, Article 5. Perusal of Annex V implies that the Environment Committee will play a pivotal advisory role in the management plan process, as also will the Scientific Committee on Antarctic Research (SCAR).
76. Ibid, Article 3(1). See also Article 4(1).
77. See Annex V, Article 5(3), at (i) (viii) and (j) (vii).