On 4 October 1991, almost 27 years ago, negotiation of the Environmental Protocol to the Antarctic Treaty (the “Protocol”) finished in Madrid. On 14 January 1998, two decades ago, the Protocol made its entry into force. Now, the Protocol is compulsory for 40 States.
Considering the seriousness of the threat to the Antarctic environment, it is a good time to reflect on the rules that were created to protect it, and how they are now being applied.
Preliminary considerations for an assessment of the Protocol
It is not easy to carry out an objective assessment of the Protocol. There are several causes for this, and I would like to highlight three of them.
Firstly, because the Protocol is highly symbolic, and it is never easy to adopt a critical approach when most people think that something is very good or very important. However, such a critical approach is essential to improve the Antarctic environmental protection.
Secondly, because the Protocol’s application is an unfinished and ongoing process. Every day it faces new challenges, some of which were not even considered in 1991.
Thirdly, because it is necessary to draw a distinction between the diplomatic, legal and practical perspectives. From a diplomatic point of view, it is a major achievement. Its negotiation was very successful, even considering the disagreements and geopolitical problems that it has had to face. From a legal perspective, the Protocol has secured important achievements, and it has been the starting point for other areas of international law, such as the regulation of mineral activities in the seabed. But, at the same time, it has some significant weaknesses, such as the lack of effective control mechanisms or those of a liability regime. Finally, in respect of its application, each State has different procedures: there are several aspects not fully developed in national law and practice, and there is not enough information to make a general assessment. Read the rest of this entry…