Protection of the Antarctic environment against marine pollution under the 1991 Protocol

5 Protection of the Antarctic environment
against marine pollution under the 1991
Protocol
 . 
On 4 October 1991 the Protocol on Environmental Protection to the
Antarctic Treaty was adopted and opened for signature by the Antarctic Treaty
Parties in Madrid.
1
Coming after two years of negotiations, this instrument with its
attendant five annexes represents one of the most comprehensive multilateral
environmental agreements yet promulgated. It embodies a legal blueprint for pro-
tection and preservation of the Antarctic. No less important, the Protocol also
signals a profound shift – indeed a reversal in course – in Antarctic Treaty
Consultative Parties’ aspirations for the Antarctic. In the late 1980s the policy direc-
tion of the Consultative Party group still appeared headed towards possible
exploration and potential exploitation of Antarctic minerals. By 1991, however, that
course had been diverted toward a general commitment of legal obligation to pro-
tecting and conserving the continent and its circumpolar seas.
A critical aim of the Protocol is to prevent marine pollution in the
Antarctic Treaty area. This chapter examines how and to what extent the Protocol
contributes to the general international law against marine pollution as applied in
the Southern Ocean. To that end, the first section of the chapter briefly considers
how marine pollution occurs in the Antarctic, and what legal framework is already
in place for dealing with it internationally. The second section assesses the Protocol
as a legal instrument for preventing marine pollution. Particular attention here is
given to the innovative anti-pollution qualities of the Protocol, its obligatory
characteristics and its enforcement capabilities. Deficiencies of the Protocol are
also pointed out, with a view to highlighting loophole provisions that might
adversely impinge upon the ability to prevent marine pollution in Antarctic waters.
The third section evaluates the five annexes to the Protocol to ascertain their
respective roles in strengthening the international law against marine pollution, as

applied in the Antarctic. Particular focus here is on Annex IV, which specifically
addresses marine pollution in the Antarctic Treaty area. Finally, conclusions are
104
1
The Protocol entered into force on 14 January 1998; text reprinted in ILM, Vol. 30, 1991, pp. 1,461ff.
suggested about the ways in which the Protocol contributes to preventing marine
pollution in Antarctic seas.
    
The wreck of the Bahia Paraiso in January 1989 clearly signalled the
dangerous consequences of increased shipping along continental ice shelves. The
ship, carrying several hundred tourists and supplies for an Argentine station, ran
aground and tore open its hull offshore Antarctica. Some 250,000 gallons of diesel
oil spilled into the frigid waters, killing seals, penguins, krill and other marine life
near the US Palmer Station on the Antarctic Peninsula. In the process several US
marine scientific projects were ruined as well.
2
There is little question that the most unpredictable and potentially most
damaging anthropogenic pollution contaminants in Antarctic seas will come from
fossil-fuel spills from vessels sailing in the area. The treacherous waters, severe
weather conditions, remoteness of the area and increased shipping traffic in the
region suggest that such spills might almost be inevitable. As more vessels carrying
greater numbers of tourists visit Antarctic waters, the prospects for accidents and
resultant marine pollution are likely to grow.
Environmental impacts of oil spills in Antarctic waters will be grave, since
biological decomposition of petroleum is slowed in frigid temperatures. Antarctic
wildlife, primarily that which lives in or near the sea, will be affected by such oil
spills. Oil contamination in Antarctic waters will severely impact upon phytoplank-
ton and krill stocks, upon which most higher species prey, thus adversely affecting
the Antarctic food chain. Moreover, oil spills could seriously disrupt marine
scientific research in the Antarctic, which relies upon a relatively pristine environ-

ment for establishing baselines for monitoring global ecological change.
Legal framework for marine pollution in the Antarctic
The law regulating marine pollution draws from the same sources and
follows the same law-making processes as international law generally. Thus, the
legal framework governing marine pollution in the Southern Ocean is undergirded
bythe sources of international law, including primarilyinternational treaties, inter-
national customarylaw and general principles of law. Notably, however, the inter-
national legal framework for regulating marine pollution also draws
considerably
from so-called ‘soft law’– instruments that are formallynon-binding and are often
adopted through the decisions of international organisations. Not surprisingly,
Protection of the Antarctic marine environment 105
2
P. A. Penhale, ‘Research Team Focuses on Environmental Impact of Oil Spill’, Antarctic Journal of
the United States, Vol. 24, 1989, p. 9. See also J. Wilford, ‘Sunken Ship’s Oil Spill Held a Peril to
Antarctic Wildlife’, New York Times, 9 February 1989, p. 7A.
though, international law governing marine pollution has developed since the
early1950s mainlythrough a process of multilateral actions, complemented by
national actions.
3
The pillars of international marine pollution law today stand mainly as
certain normative principles accepted as customary law and as various interna-
tional conventions intended to regulate pollution activities in the oceans. First, to
undergird contemporary international environmental law, a customary norm has
arisen embodying the general obligation to protect the marine environment from
pollution. This general norm has evolved from the entire body of legal instruments
adopted relating to marine pollution, and is clearly and explicitly codified in Article
192 of the 1982 UN Law of the Sea Convention (LOS Convention): ‘States have the
obligation to protect and preserve the marine environment.’
4

As a second principle, states are obliged not to transfer pollution from
one area to another or to transform one type of pollution to another
. As stipulated
by Article 195 of the LOS Convention:
In taking measures to prevent, reduce and control pollution of the marine
environment, States shall act so as not to transfer, directly or indirectly,
damage or hazards from one area to another or transform one type of pollu-
tion into another.
Finally, environmental monitoring and assessment also emerge as
autonomous and effective obligations for protection of the marine environment.
International norms on marine pollution thus tend to have certain basic contents.
They include mainline fundamental rules (rules that prohibit activities or establish
standards) and enforcement rules, normally coupled with safeguards. Marine
pollution norms usually provide for rules on global and regional cooperation,
including environmental monitoring and assessment, technical assistance and
varying kinds of responsibility for pollution, liability and settlement of environ-
mental disputes. This general framework is set out in the 1991 Environmental
Protocol for specific application to the circumpolar Antarctic seas.
With respect to international agreements, in addition to the LOS
Convention, the principal conventions forming the foundation for marine pollu-
tion law in the Antarctic ocean are the 1973 International Convention for the
Prevention of Pollution from Ships, as amended by its 1978 Protocol (MARPOL
73/78), and the 1972 Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter (London Convention).
5
As a framework
agreement prohibiting pollution in Antarctic waters, the 1991 Environmental
106 Christopher C. Joyner
3
See also Rothwell and Joyner, Chapter 7 in this book. For general treatments of the international

law of marine pollution, see generally D. Brubaker, Marine Pollution and International Law:
Principles and Practice (London: Belhaven Press, 1993); D. B. Macgraw (ed.), International Law and
Pollution (Philadelphia, PA: University of Pennsylvania Press, 1991); and G. J. Timagenis,
International Control of Marine Pollution (Dobbs Ferry, NY: Oceana, 1980).
4
For a detailed discussion see Vukas, Chapter 2 in this book.
5
For an overview see Rothwell, Chapter 3 in this book.
Protocol was designed such that its provisions, although not always expressly
referred to, are cross-linked with norms established by these international regu-
latory instruments.
      

The Protocol is intended to supplement the Antarctic Treaty
6
and be con-
sistent with other components of the Antarctic Treaty System.
7
The Protocol obliges
parties to consider the Antarctic (defined as the area south of 60° South latitude,
inclusive of ocean space) as a ‘natural reserve devoted to peace and science’ and
commits them to comprehensive protection of the region’s environment.
8
This
duty of comprehensive protection explicitly embraces the obligation to prevent
marine pollution from occurring in the area.
The Protocol contains certain fundamental rules that articulate basic
obligations, set specific prohibitions, and fix acceptable standards for activities in
Antarctic marine areas. In this regard, the Preamble to the Protocol reaffirms the
special responsibility of the Antarctic Treaty Consultative Parties ‘to ensure that

Antarctica shall continue forever to be used exclusively for peaceful purposes and
shall not become the scene or object of international discord’; and recalls ‘the
designation of Antarctica as a Special Conservation Area . . . to protect the Antarctic
environment and dependent and associated ecosystems’. To this end, the key prin-
ciple supporting the Protocol comes in Article 3, which in its first paragraph pro-
vides that:
The protection of the Antarctic environment and dependent and associated
ecosystems and the intrinsic value of Antarctica, including its wilderness and
aesthetic values and its value as an area for the conduct of scientific research
. . . shall be fundamental considerations in the planning and conduct of all
activities in the Antarctic Treaty area.
The Protocol mandates that marine pollution must be prevented from befouling
the Antarctic marine ecosystem. The principle thus becomes that proper planning
and prudent conduct of activities are necessary and essential to prevent such
pollution from occurring. To give effect to this principle, Article 3(2)(a) of the
Protocol asserts that:
activities in the Antarctic Treaty area shall be planned and conducted so as to
limit adverse impacts on the Antarctic environment and dependent and asso-
ciated ecosystems.
This provision makes plain the Consultative Parties’ concern over the threat of
marine pollution in southern circumpolar waters. The Southern Ocean, at least
that portion falling within 60° South latitude, may properly be considered part of
Protection of the Antarctic marine environment 107
6
Protocol, Art. 4(1).
7
Ibid., Art. 5.
8
Ibid., Art. 2.
the ‘Antarctic environment’. It may also reasonably be inferred that, within the

context of the Protocol, ‘dependent and associated ecosystems’ could extend as far
northwards as the Antarctic Convergence, the biological boundary generally
accepted by bio-oceanographers for designating ‘the Antarctic’, as well as some-
times by diplomats, i.e. for setting the northernmost jurisdictional reach of the
1980 Convention on the Conservation of Antarctic Marine Living Resources.
9
Put
another way, dependent and associated ecosystems in the Antarctic Treaty area
include much ocean space south of 40° South latitude. Hence, activities that might
generate pollution within that area, particularly those that adversely impact upon
Antarctic ecosystem, must be prevented.
The obligation of planning the conduct of activities to prevent marine
pollution is elaborated in Article 3(2)(b) of the Protocol:
[A]ctivities in the Antarctic Treaty area shall be planned and conducted so as
to avoid:
1. adverse effects on climate or weather patterns;
2. significant adverse effects on air or water quality;
3. significant changes in the atmospheric, terrestrial (including aquatic),
glacial or marine environments;
4. detrimental changes in the distribution, abundance or productivity of
species or populations of species of fauna and flora;
5. further jeopardy to endangered or threatened species or populations of
such species; or
6. degradation of, or substantial risk to, areas of biological, scientific, historic,
aesthetic or wilderness significance.
The intent and relevance of this provision seem clear. Certain activities are consid-
ered potentially deleter
ious to the health and well-being of the circumpolar marine
ecosystem. To prevent such activities from producing harmful effects like marine
pollution, prudent planning becomes necessary. Planning of activities thus should

be undertaken to avoid ‘adverse’ impacts on water quality – a clear and direct refer-
ence to marine pollution. Planning is intended to preclude significant changes
from being introduced into the marine environment, especially those that could be
caused by pollution activities; planning is viewed as a means to deter ‘detrimental’
alterations from perturbing ‘the distribution, abundance or productivity’ of life in
the region; planning aims to prevent activities that might jeopardise the well-being
of threatened or endangered species in the region (which include whales, seals and
several species of fin fish in the Southern Ocean); and, planning must be done to
dissuade or correct activities that might degrade or pose substantial risk to areas of
biological, scientific or wilderness significance. These qualities apply equally to cir-
cumpolar Antarctic waters and to the continent.
To facilitate planning along these lines, Article 3(2)(c) introduces another
requirement as a principle: sufficient information must be furnished to permit
108 Christopher C. Joyner
9
See the discussion by Boyle, Chapter 1; and Vidas, Chapter 4 in this book.
prior assessment of potential impacts upon the Antarctic environment, including
the marine ecosystem:
[A]ctivities in the Antarctic Treaty area shall be planned and conducted on the
basis of information sufficient to allow prior assessments of, and informed
judgements about, their possible impacts on the Antarctic environment and
dependent and associated ecosystems and on the value of Antarctica for the
conduct of scientific research.
The Protocol mandates that planning – presumably done prudently, properly and
based on the requirement that ‘sufficient’ scientific information is made available
to allow a scientific determination of risk assessment – remains essential for pre-
venting marine pollution in Southern circumpolar waters.
Finally, subparagraph (d) of Article 3(2) provides for still another legal
principle: ‘regular and effective monitoring . . . to allow assessment of the impacts
of ongoing activities, including the verification of predicted impacts’. Thus, should

the fundamental obligation of prudent planning fail for reasons either of commis-
sion or omission, monitoring operations by states party are expected to detect
breaches and identify violators.
Article 3 thus furnishes a set of fundamental, legally binding principles
for deterring marine pollution. These principles include the following:
1. obligations to meet specific environmental standards and to limit
adverse impacts on the marine environment;
2. obligations to give priority to scientific research in the Antarctic, includ-
ing the marine ecosystem, and to preserve the Antarctic for global
research;
3. obligations to ensure that human activities are planned and carried out
on the basis of information sufficient to permit prior assessments of their
possible impacts on the marine ecosystem; and
4. obligations to conduct environmental monitoring of the marine ecosys-
tem in order to detect possible violations of these obligations.
Consequently, the provisions in Article 3 of the Protocol furnish significant
contributions for broadening and strengthening the international law of marine
pollution, as applied in the Southern Ocean.
Pollution from mineral or hydrocarbon exploitation
The Protocol places a prohibition on all mining activity in Antarctica: ‘Any
activity relating to mineral resources, other than scientific research, shall be pro-
hibited.’
10
For marine pollution law, this ban on Antarctic mining is highly salient,
since it applies also to drilling activities offshore Antarctica. By banning mining for
Protection of the Antarctic marine environment 109
10
Protocol, Art. 7.
minerals on the continent and drilling for offshore hydrocarbons in the Antarctic
continental shelf, several potentially grave threats to the Antarctic marine environ-

ment are precluded. No atmospheric pollution or mining sludge will be produced
from onshore mining operations. No oil blowouts from offshore wells can occur in
Antarctic waters. Vessel-source pollution from tanker accidents or intentional dis-
charges is obviously curtailed, since no tankers will be transporting petroleum
from Antarctica. And pollution effluents that might have been produced by
increased numbers of resident personnel supporting operations facilities needed
on shore will be eliminated, since no exploitation operations can go forward.
Article 7 thus serves as a preclusive anti-pollution law that directly prevents marine
pollution by prohibiting those very activities that would undoubtedly produce
such pollution.
This ban, however, is not necessarilypermanent. While no period for a
moratorium is specified, Article 25(1) allows for modification or amendment of
the Protocol at anytime byunanimous agreement of all Consultative Parties.
Granted, this does not perforce mean that modifications will be called for, or, even
if so, enter into force. Nor does it mean that the ban will be lifted. What it does
mean is that modifications some daymight be possible. Moreover, fiftyyears after
the Protocol enters into force (i.e., after 14 January2048), it could be possible for
the mining prohibition to be lifted if such a proposal were adopted at a review
conference bya majorityof the parties to the Protocol, including three-quarters of
current Consultative Parties, and then ratified bythree-quarters of Consultative
Parties, ‘including ratification, acceptance, approval or accession byall States
which are Antarctic TreatyConsultative Parties at the time of adoption of this
Protocol’.
11
Such a provision ostensiblyensures that no minerals development on
Antarctica or in its circumpolar waters can lawfullytake place within the foresee-
able future. Put simply, this prohibition means that no degradation of Antarctic
seas is likelyto occur from minerals or hydrocarbon development or related activ-
ities on or around the continent, nor are natural habitats of Antarctic living marine
resources likelyto be disrupted or destroyed bythese activities for at least fifty

years.
12
Committee for Environmental Protection
Two institutions are provided for in the Protocol to give effect to its legal
principles. According to Article 10, Antarctic
Treaty Consultative Meetings will
110 Christopher C. Joyner
11
Ibid., Art. 25(4). At the time of the adoption of the Protocol, twenty-six states were Consultative
Parties: Argentina, Australia, Belgium, Brazil, Chile, China, Ecuador, Finland, France, Germany,
India, Italy, Japan, Korea (Republic of), the Netherlands, New Zealand, Norway, Peru, Poland, the
Russian Federation, South Africa, Spain, Sweden, the United Kingdom, the United States and
Uruguay. In 1998, Bulgaria became a Consultative Party, thus increasing the current (as of 8 June
1999) number of Antarctic Treaty Consultative Parties to twenty-seven states in total.
12
However, pursuant to a US proposal, any state has the right to withdraw from the Protocol (pre-
sumably giving it the right to mine without regulation) if an amendment lifting the ban has not
entered into force within three years of the date of its adoption: see Art. 25(5)(b) of the Protocol.
make decisions for implementing the Protocol regime. Article 11 of the Protocol
goes on to stipulate the establishment of a Committee for Environmental
Protection (CEP), while Article 12 spells out its main functions as giving advice and
formulating recommendations to the parties regarding implementation of the
Protocol and its annexes. However, the CEP is given no decision-making authority.
The CEP will undoubtedly perform valuable functions by supplying
advice to ensure that environmental rules, including those intended to prevent
marine pollution, are interpreted uniformly and consistently by all parties.
13
In
addition, the Committee might serve as a forum for investigating controversial
environmental matters, for assisting in the proper preparation of environmental

impact statements, and for proposing common interpr
etations of key terms and
threshold levels in the Protocol.
14
All the same, the CEP lacks real authority to
enforce compliance with the Protocol’s anti-pollution provisions or to define
mandatory environmental conservation zones, or to send out inspection or mon-
itoring agents to conduct oversight of human activities that might produce marine
pollution around Antarctica.
Enforcement
Enforcement is critical in marine pollution law. It is the process by which
a regulation is made effective or the process designed to compel obedience to a
legal rule. While viewed as a continuous process, enforcement as a practical matter
occurs in phases: (1) a violation is reported or discovered; (2) an investigation
occurs and evidence is gathered of the violation; (3) the evidence is evaluated and
sanctions are determined for the violation; and (4) the process of giving effect to
the sanction is determined.
The Protocol contains certain enforcement rules that assign responsibil-
ity for compliance and enforcement to the states party, who are expected to impose
penalties and methods for punishing contravention of fundamental rules, or for
effective application of those rules. Compliance rests with governments that are
party to the Protocol. Parties are obliged under Article 13 to take ‘appropriate mea-
sures’ to ensure compliance with the anti-pollution provisions of the Protocol.
Protection of the Antarctic marine environment 111
13
Specifically, in accordance with Art. 12(1) of the Protocol, the Committee is to furnish advice on:
‘a) the effectiveness of measures taken pursuant to this Protocol; b) the need to update, strengthen
or otherwise improve such measures; c) the need for additional measures, including the need for
additional Annexes, where appropriate; d) the application and implementation of the environ-
mental impact assessment procedures set out in Article 8 and Annex I; e) means of minimising or

mitigating environmental impacts of activities in the Antarctic Treaty area; f) procedures for situa-
tions requiring urgent action, including response action in environmental emergencies; g) the
operation and further elaboration of the Antarctic Protected Area system; h) inspection pro-
cedures, including formats for inspection reports and checklists for the conduct of inspections; i)
the collection, archiving, exchange and evaluation of information related to environmental pro-
tection; j) the state of the Antarctic environment; and k) the need for scientific research, including
environmental monitoring, related to the implementation of this Protocol.’
14
Antarctic and Southern Ocean Coalition, ‘A Critique of the Protocol to the Antarctic Treaty on
Environmental Protection’, ASOC Information Paper No. 1, XVI ATCM (8 October 1991), p. 4.