Antarctica: Environmental Protection, Research, and Conservation of Resources

James E. Meilke
Specialist in Marine and Earth Sciences
Science Policy Research Division
and
Marjorie Ann Browne
Specialist in International Relations
Foreign Affairs and National Defense Division

April 5, 1995
95-476 SPR

SUMMARY

In October 1991, the Protocol on Environmental Protection to the Antarctic Treaty with Annexes was concluded by the Consultative Parties to the Antarctic Treaty. This Protocol designates Antarctica as a natural reserve devoted to peace and science, and it provides for an indefinite ban on mineral resource activities, except for scientific research, for at least 50 years. The Annexes provide for Environmental Impact Assessment (Annex I), Conservation of Antarctic Fauna and Flora (Annex II), Waste Disposal and Waste Management (Annex III), Prevention of Marine Pollution (Annex IV), and Area Protection and Management (Annex V). The President has not yet deposited instruments of ratification pending congressional action on implementing legislation, which may have implications on the administration of the U.S. Antarctic Program currently consolidated under the National Science Foundation.

Over 30 years ago the Antarctic Treaty entered into force. Its primary purpose is to ensure "in the interests of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord." The Treaty provides for freedom of scientific research in Antarctica and promotes international cooperation toward that end. The original Parties to the Treaty were the 12 nations that were active in conducting research in the Antarctic during the International Geophysical Year of 1957-58. They have the right to attend meetings provided for in Article IX of the Treaty (Consultative Meetings) and are accordingly known as Consultative Parties. In addition, the Treaty provides for other states who have acceded to the Treaty and have demonstrated significant scientific activity in Antarctica to become Consultative Parties. Throughout the years, additional countries have become Consultative Parties, until there are now 26. Only Consultative Parties may participate in decision-making.

Through the Consultative Meetings and other provisions of the Treaty, a growing complex of arrangements for regulating activities of states in the Antarctic has evolved. This complex of arrangements is known as the Antarctic Treaty System (ATS), the center of which is the Treaty itself. Other aspects of the ATS include Recommendations and separate Conventions adopted at Consultative Meetings and actions taken by the states concerned giving appropriate effect to those Recommendations and Conventions.

In addition, consultative meeting recommendations have led to the negotiation of separate agreements and conventions such as the recent Protocol on Environmental Protection to the Antarctic Treaty. This Protocol, which has yet to enter into effect, grew out of widespread concern for preserving the special qualities of Antarctica in view of the perceived potential for inadequately restrained scientific, tourist, or resource-centered activities. The key issue for Congress will be the extent to which legislation implementing the Protocol satisfies expectations regarding protection of the Antarctic environment while maintaining a functional cooperative framework for the conduct of Antarctic research.

CONTENTS

BACKGROUND

ANTARCTICA BEFORE THE TREATY REGIME

THE ANTARCTIC TREATY SYSTEM

PROTOCOL ON ENVIRONMENTAL PROTECTION TO THE ANTARCTIC TREATY

ISSUES FOR CONGRESS

ANTARCTICA: ENVIRONMENTAL PROTECTION, RESEARCH, AND CONSERVATION OF RESOURCES

BACKGROUND

The continent of Antarctica has an area of 5.1 million square miles (13.2 million square kilometers), approximately equal to one-tenth of the Earth's land surface. Antarctica is the fifth largest continent, larger than the United States and Mexico combined. Ice averaging over a mile in thickness covers more than 95 percent of the continent. It is estimated that more than 90 percent of the world's fresh water resides in Antarctica in the form of the ice and snow that have accumulated over millions of years.

Scientific interest in the Antarctic began in the 1800s and expanded greatly after 1928 with the introduction and use of aircraft and mechanized equipment. During the early heroic period, in which the focus was largely on exploration and discovery, a number of countries sent expeditions to the Antarctic. In 1898 a Belgian expedition was the first to winter over in the Antarctic in their ship, which was frozen in the ice pack. The next year a British expedition spent the winter on land. In 1902 a weather station was set up by the United Kingdom in the South Orkney Islands and has been operated by Argentina since 1904.

In the first half of the 20th century, seven countries claimed sovereignty over territory in Antarctica. These countries are Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom. All, except Norway, have claimed wedge-shaped sectors terminating at the South Pole. Norway has claimed the coastal area between 20 degrees West Longitude and 45 degrees East Longitude, but has left the northern and southern boundaries of its claim vague, apparently to avoid damage, by implication, to its position of opposition to the Russian sector approach in the Arctic. The claims of three of the countries --Argentina, Chile, and the United Kingdom -- overlap and conflict in the area of the Antarctic Peninsula, which is south of Cape Horn.

Territorial claims in Antarctica have not received general recognition by the international community. Mutual recognition of claims has been limited to Australia, France, New Zealand, Norway, and the United Kingdom. Although Chile and Argentina do not recognize each other's claim, in 1941 they issued a joint declaration stating that the only countries with exclusive sovereignty over Antarctica are Chile and Argentina. The United States and the U.S.S.R. (Russia) have made no territorial claims in Antarctica and do not recognize the claims of others. However, both have "reserved" their basic historic "rights" to assert claims in the continent.

ANTARCTICA BEFORE THE TREATY REGIME

In 1950, a group of American and British scientists suggested a global International Geophysical Year (IGY) during 1957-1958 to correspond to a predicted period of unusual sunspot activity. The proposal was presented to the International Council of Scientific Unions (ICSU) which endorsed the proposal in 1951. The IGY officially began on July 1, 1957. Twelve nations participated in Antarctic studies and established 60 stations there. By the time the IGY was drawing to a close, many scientists and diplomats felt that the program in Antarctica was too valuable to terminate and that the international cooperation achieved during IGY should be maintained.

Throughout the IGY, the status of Antarctica was politically unresolved, but the issue was successfully submerged to avoid political controversies that might be detrimental to scientific cooperation. As early as 1948 the United States had proposed an international solution to territorial claims in Antarctica by which Antarctica would be governed by a trusteeship under the United Nations, but the proposal drew slight interest from only two of the claimants, the United Kingdom and New Zealand. In 1956, India had presented a similar proposal before the United Nations and met with little success. Discussions of Antarctic claims among Australia, New Zealand, and the United Kingdom also produced no results.

It became clear to the 12 nations involved in Antarctic research that there would be a significant benefit if the work begun during IGY could be continued. On May 2, 1958, the United States proposed to the other participants, Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, the Soviet Union, the Union of South Africa, and the United Kingdom, that they should join "in a treaty designed to preserve the continent as an international laboratory for scientific research and insure that it be used only for peaceful purposes." Preliminary talks in Washington were stalled by Chilean and Argentine reluctance to agree to international control and by Soviet objections to the existing Antarctic claims of other nations. Eventually a treaty was agreed upon and signed on December 1, 1959. United States ratification followed on August 18, 1960, and the treaty entered into force on June 23, 1961. The Antarctic Treaty is generally regarded as a model example of international cooperation.

THE ANTARCTIC TREATY SYSTEM

The Antarctic Treaty establishes the legal framework for Antarctica and guarantees free access and research rights for the international community. The legal status was of little practical concern when Antarctica was largely remote and relatively more inaccessible than it is today. In its preamble, the Treaty states that "it is in the interest of all mankind that Antarctica shall continue to be used exclusively for peaceful purposes and shall not become the scene or object of international discord." Article I continues this theme by prohibiting any measures of a military nature, including weapons testing, although military equipment and personnel may be used for scientific purposes. Nuclear explosions and disposal of radioactive wastes are also prohibited (Article V). Articles II and III promote freedom and cooperation in scientific research and free exchange of personnel, program plans, and scientific data. Also, the right of free access to inspect other countries' facilities is guaranteed by Article VII, although observers under Article VII and scientific personnel under Article III are under the jurisdiction of their own states.

As was common at the time, early explorers had been quick to make territorial claims. Finding an acceptable, peaceful solution to the claims and conflicting claims issues was of paramount importance to the treaty negotiators. The Antarctic Treaty maintained the status quo of the territorial claims issue by providing that no party use the Treaty as a basis to assert, support, deny or extend existing claims or make new ones for the duration of the Treaty (Article 1V).

The Treaty obligates each party to "exert appropriate efforts, consistent with the charter of the United Nations," to discourage "any activity in Antarctica contrary to the principles and purposes of the Treaty" (Article X). Finally, the Treaty provides that disputes are to be settled peacefully by the parties concerned or, ultimately, by the International Court of Justice.

The treaty provisions are rather general, but a mechanism is provided for contracting parties to hold Consultative Meetings to draft and recommend additional measures (Article IX). Through the Consultative Meetings and other provisions of the Treaty, a growing complex of arrangements for regulating activities of states in the Antarctic has evolved. This complex of arrangements is known as the Antarctic Treaty System (ATS), the center of which is the Treaty itself. Other aspects of the ATS include Recommendations and separate Conventions adopted at Consultative Meetings and actions taken by the states concerned giving appropriate effect to the Recommendations and Conventions.

Voting participation in the Consultative Meetings is limited to those states that have demonstrated their interest in Antarctica "by conducting substantial scientific research activity there, such as the establishment of a scientific station or the dispatch of a scientific expedition." These states are known accordingly as Consultative Parties, of which there are now 26. Recommendations emerging from the Consultative Meetings become effective upon approval by all of the states taking part in a given consultation. These recommendations have concerned such matters as the exchange of scientists and scientific information, communications, cooperation in air transport and logistics, the conservation of flora and fauna of the Antarctic, tourist visitations, the designation of specially protected areas, and the effects of mineral exploration. Originally open only to voting members, interested international organizations and states that have acceded to the Antarctic Treaty but have not manifested sufficiently active involvement to become Consultative Parties are now permitted to attend Consultative Meetings as observers. There have been over 150 agreed recommendations to governments since 1961 .

Consultative meeting recommendations have led to the negotiation of separate agreements and conventions, particularly as to the preservation and conservation of living resources. In this regard, among the major recommendations that have been made are the Agreed Measures for the Conservation of Antarctic Fauna and Flora, which were approved at the Third Consultative Meeting in 1964 and took effect on July 27, 1966. The original measures were supplemented in 1972 and 1985. As it now stands, the agreement:

• forbids the killing, capturing, or interfering with native mammals or birds without a permit,
• obliges treaty members to minimize harmful interference with Antarctic living conditions and minimize water pollution,
• protects biological communities within Specially Protected Areas (SPAs) where plant and animal collection and vehicular access are denied, and establishes Sites of Special Scientific Interest (SSSIs), which are protected for research purposes,
• prohibits importation of nonindigenous species except under permit.

Although the National Science Foundation promptly adopted the Agreed Measures for the Conservation of Antarctic Fauna and Flora as interim guidelines for United States activities in the Antarctic, Congress provided statutory enforcement authority through passage of the Antarctic Conservation Act of 1978 (P.L. 95-541). In accordance with this law, the Director of the National Science Foundation prescribes regulations, designates protected areas, and issues permits for actions that would otherwise be prohibited. Violators are subject to both civil and criminal penalties.

The biennial Consultative Meetings held under the Antarctic Treaty have spawned two additional treaties. Harvesting of seals prompted the Consultative Parties to draw up the Convention for the Conservation of Antarctic Seals, which was signed in 1972 and entered into force in 1978. The Convention prohibits the killing or capturing of fur, elephant, and Ross seals in Antarctica and establishes annual quotas on the exploitation of crabeater, leopard, and Weddell seals. Enforcement of the agreed-upon conservation measures depends on the self-policing policies of the signatory nations. Thirteen states have ratified or acceded to the Convention. For the United States, the Convention is enforced through the Marine Mammal Protection Act of 1972 (P.L. 92-522).

The other treaty is the Convention on the Conservation of Antarctic Marine Living Resources. This treaty was developed in the 1970s in response to heavy fishing and the consequent depletion of fish stocks. It entered into force in 1982 and encourages the study, management, and conservation of living resources within Antarctica's overall marine ecosystem, rather than focusing on individual species of commercial importance. Each of the 23 nations signing the treaty, which include the principle fishing countries of the world, is responsible for individually implementing its provisions and enforcing any agreed-upon conservation measures. The United States ratified this convention in 1984 when Congress passed the Antarctic Marine Living Resources Convention Act (P.L. 98-623). The Act vests regulatory authority in the Secretary of Commerce and subjects violators of the conservation measures set forth in the Convention or adopted pursuant to it to civil and criminal penalties.

Mineral resources were not mentioned in the Antarctic Treaty since they posed a more difficult problem with regard to territorial claims. However, with increasing concerns over preserving the unique character of Antarctica and growing world needs to find and develop new mineral resources, the Consultative Parties in the 1970s began to consider the question of future mineral resource activities. At the time, it was the general view that it would be better to have a scheme in place to control possible future mineral interest than to face the prospect of uncontrolled mineral development, and that it would be easier to negotiate a regime before any prospective mineral deposits were discovered. In 1977 the Ninth Consultative Meeting of the Antarctic Treaty Nations adopted a voluntary moratorium on all mineral resource activities in Antarctica pending the development of a legal regime for such activities.

Formal negotiations began in 1982, and after six years these efforts resulted in the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), which was signed by all the Consultative Parties on June 2, 1988. The Convention attempted to establish the standards and conditions under which prospecting, exploration, and development of minerals would be permitted in Antarctica and, specifically, would not have permitted such activities if adequate information were not available about their environmental impact or if they were determined to have a significant adverse environmental impact. It would also have created several institutions to govern resource activities in Antarctica. In effect, Parties to the Convention said that in some circumstances Antarctica's resources may be developed, but only if significant environmental impacts were unlikely to result from development and only if established uses of Antarctica were not jeopardized.

The Convention, however, stirred considerable controversy that proved to be overwhelming. The controversy arose from the environmental community wherein the document was perceived to promote minerals development and that if any such development were to occur, it would be deemed unacceptable. To enter into force the Convention required ratification or acceptance by 16 of the states that are Consultative Parties to the Antarctic Treaty, including all seven that have made territorial claims. Bowing to internal pressures, in 1989 France and Australia, two of the States that have made territorial claims, abruptly changed their positions and called for a new agreement that would totally ban mineral resources activities in Antarctica. In addition, Congress, in the Antarctic Protection and Conservation Act of 1990 (P.L. 101-594) made it a criminal act for U.S. persons or entities "to engage in, finance, or otherwise knowingly provide assistance to any Antarctic mineral resource activity," and called upon the Secretary of State to negotiate a new agreement providing permanent protection for the environment of Antarctica, including an indefinite ban on mineral resource activities.

PROTOCOL ON ENVIRONMENTAL PROTECTION TO THE ANTARCTIC TREATY

With the prospects for CRAMRA essentially dead, the Consultative Parties sought agreement on measures that would provide a "comprehensive system for the protection of the Antarctic environment" and include some form of ban on mineral resource activities. Consequently, a Special Consultative Meeting of the Antarctic Treaty Consultative Parties was convened beginning in 1990 with the final session concluding in 1991. From this, the Protocol on Environmental Protection to the Antarctic Treaty with Annexes emerged, which was signed at Madrid on October 4, 1991, with an additional Annex added in Bonn on October 17,1991. The President submitted the Protocol to the Senate for its advice and consent to ratification on February 18, 1992. The Senate passed a resolution of ratification on Oct. 7, 1992.

Containing 27 articles, five annexes, and a 13-article "schedule to the Protocol" on arbitration, the Protocol builds on the Antarctic Treaty to extend and improve the Treaty's effectiveness as a mechanism for ensuring the protection of the Antarctic environment. It designates Antarctica as a natural reserve devoted to peace and science, and sets forth binding environmental principles applicable to human activities in Antarctica, including obligations to accord priority to scientific research. It also requires that an environmental impact assessment be prepared for any proposed activities that are likely to have more than a minor or transitory impact. Details regarding the environmental impact assessment procedure are given in Annex I of the Protocol.

The Protocol specifically prohibits all activities related to mineral resource activities, other than scientific research, for a minimum of 50 years, unless the Consultative Parties unanimously agree otherwise and also have adopted a binding legal regime governing mineral resource activities. It establishes a Committee for Environmental Protection to provide advice and recommendations on the effectiveness of the Protocol and its Annexes. It also creates a compulsory dispute settlement procedure if disagreement arises over the interpretation or application of provisions in the Protocol or its Annexes.

Detailed mandatory rules for environmental protection are given in the Annexes. These include regulations for protecting native flora and fauna and for restricting entry of non-native plants and animals (Annex II). Waste disposal and management are dealt with in Annex III, which contains broad guidelines to produce less waste and to have much of it carried away from Antarctica by its producers. Marine pollution is regulated in Annex IV, and the designation of specially protected areas is covered in Annex V. Provision is made for the negotiation and addition of other annexes and for the amendment of annexes as needed.

At the signing ceremony on October 4, 1991, 23 of the 26 Consultative Parties signed the Protocol. Japan, India, and South Korea did not immediately sign because their delegations did not have authorization from their governments. Eight other non-consultative treaty nations also signed the Protocol. The Consultative Parties that signed the Protocol, thereby initiating their formal commitment to ratify it, were the United States, Argentina, Australia, Belgium, Brazil, Chile, China, Ecuador, Finland, France, Germany, Italy, the Netherlands, New Zealand, Norway, Peru, Poland, South Africa, Spain, Sweden, the U.S.S.R. (Russia), the United Kingdom, and Uruguay. Countries that are parties to the Antarctic Treaty and their status with regard to the Protocol on Environmental Protection are listed in a table at the end of this report.

ISSUES FOR CONGRESS

The Protocol on Environmental Protection to the Antarctic Treaty and Annexes, submitted to the Senate for advice and consent to ratification, were approved on Oct. 7, 1992 (Treaty Doc. 102-22). The President has not yet deposited instruments of ratification, however, pending congressional action on implementing legislation. Implementing legislation was introduced in the 103d Congress but was not acted upon and will likely be reintroduced in the 104th Congress. Implementing legislation will be required in order to bring existing U.S. law into conformity with the Protocol and Annexes and to establish any new regulations or authority needed to ensure compliance with the Protocol. However, there is not agreement on the extent to which new regulations or authority should be enacted or whether they should go beyond the Protocol. Implementing legislation, as previously introduced, would repeal the Antarctic Conservation Act of 1978 (P.L. 95-641) and the Antarctic Protection and Conservation Act of 1990 (P.L. 101-594) and replace those Acts with new provisions consistent with the Protocol.

The key issue for Congress will be the extent to which the Protocol will satisfy expectations for the protection of the Antarctic environment while maintaining a cooperative framework for the conduct of Antarctic research. In this regard, monitoring and implementation mechanisms may be of particular interest since the Protocol itself is very general in this regard. Supporters of the Protocol argue that it serves the purpose quite adequately while others assert that it does not go far enough.

Also at issue will be the extent to which implementing legislation may delegate authority to agencies other than the National Science Foundation, which is the primary agency under which the U.S. Antarctic Program has been consolidated. In particular, there has been a concern over the role draft legislation would create for the Environmental Protection Agency and other agencies in promulgating regulations and overseeing activities in Antarctica.

Additional questions have been raised over extending the Environmental Impact Assessment process to non-government activities and activities conducted jointly by the United States and other parties, and providing for initiating civil suits to ensure effective implementation of provisions of the proposed legislation. These issues and others will likely arise when debate resumes over passage of implementing legislation for the Protocol on Environmental Protection to the Antarctic Treaty.

PROTOCOL ON ENVIRONMENTAL PROTECTION TO THE ANTARCTIC TREATY

Signed at Madrid on October 4, 1991*
Information as of February 14, 1995

* Thereafter open for signature at Washington, D.C. until October 3, 1992. The Protocol will enter into force on the thirtieth day following the date of deposit of instruments of ratification, acceptance, approval or access by all States that were Antarctic Treaty Consultative Parties at the date on which this Protocol was adopted. Consultative Parties are listed in bold under States.

** The U.S. Senate gave its advice and consent to U.S. ratification on October 7, 1992. U.S. deposit of its instrument of ratification will not occur until the Congress enacts implementing legislation.