The Madrid Protocol
Parties to the Antarctic Treaty have adopted a Protocol which provides for comprehensive protection of Antarctica, the last great wilderness on earth.
Protocol on Environmental Protection to the Antarctic Treaty (The Madrid Protocol)
The Madrid Protocol ( ATS 6) was adopted in 1991 in response to proposals that the wide range of provisions relating to protection of the Antarctic environment should be harmonised in a comprehensive and legally binding form. It draws on and updates the Agreed Measures as well as subsequent Treaty meeting recommendations relating to protection of the environment.
- designates Antarctica as a ‘natural reserve, devoted to peace and science’
- establishes environmental principles for the conduct of all activities
- prohibits mining
- subjects all activities to prior assessment of their environmental impacts
- provides for the establishment of a Committee for Environmental Protection, to advise the ATCM
- requires the development of contingency plans to respond to environmental emergencies
- provides for the elaboration of rules relating to liability for environmental damage.
The Protocol is also accompanied by Annexes that detail specific measures and procedures relating to:
ANNEX I: Environmental impact assessment – activities are assessed on whether they have a minor or transitory impact on the environment. At the highest level of impact a Comprehensive Environment Evaluation must be prepared and opportunity provided for the Committee for Environmental Protection and other Consultative Parties to comment on the proposal.
ANNEX II: Conservation of Antarctic fauna and flora – Annex II updates the existing rules relating to protection of animals and plants (requiring a permit for interference with them) and relating to the introduction of non-indigenous organisms.
ANNEX III: Waste disposal and waste management – this Annex specifies wastes that may be disposed of within Antarctica and wastes that must be removed. It also provides rules relating to the disposal of human waste and the use of incinerators. The Annex requires the development of waste management plans. Particularly harmful products such as Polychlorinated biphenyls (PCBs), polystyrene packaging beads and pesticides are prohibited in the Antarctic.
ANNEX IV: Prevention of marine pollution – the discharge of substances from ships, including oily mixtures and garbage is regulated, as is the disposal of ship-generated sewage. The Annex adopts practices broadly consistent with those applying in the relevant annexes of MARPOL. Disposal at sea of any plastics is prohibited.
ANNEX V: Management of protected areas – Annex V establishes a revised protected area system that integrates the previous categories of protected areas into Antarctic Specially Protected Areas (entry to which requires a permit) and Antarctic Specially Managed Areas. Management plans apply to both categories. The protected area system also provides for the designation of historic sites and monuments, which must not be damaged or removed.
ANNEX VI: Liability for environmental emergencies – this Annex sets rules governing who is liable for preventing and dealing with environmental emergencies arising from scientific research, tourism and other activities in the Antarctic Treaty area, such as logistic (shipping and aircraft) support. The aim of the Annex is to stipulate – before anything goes wrong – who could be held responsible for cleaning up after an environmental emergency, and the legal avenues to respond to disaster. It also allows compensation to be claimed from the polluter if someone else has to clean up.
Background to the Madrid Protocol
The negotiation of the Protocol followed many years of international negotiations on controlling potential mineral resource activities in Antarctica. The underlying assumption of the Antarctic Minerals Convention, adopted in June 1988 by a Special Antarctic Treaty Consultative Meeting in Wellington (NZ), was that it may be possible for mining to be consistent with the protection of the antarctic environment. This assumption, however, became subject to increasing questioning.
The Australian – French proposal
On 22 May 1989 the then Australian Prime Minister, Mr Hawke, announced that Australia was opposed to mining in Antarctica and would not sign the Minerals Convention. Mr Hawke said the Government believed that it was both desirable and possible to seek stronger protection for Antarctica. Australia would therefore work within the framework of the Antarctic Treaty system to obtain consensus among Consultative Parties on the establishment of a comprehensive environment protection regime for Antarctica which prohibited mining.
The initiative became a joint one with the then Prime Minister of France, Mr Rocard, in August 1989. The Prime Ministers said that they saw mining in Antarctica as incompatible with protection of the antarctic environment, and that the specific role of the Antarctic in monitoring global changes, as well as the region’s fragility, called for a comprehensive regime to protect the antarctic environment and associated ecosystems.
At the 15th Antarctic Treaty Consultative Meeting in Paris in October 1989, Parties to the Treaty agreed to hold a Special Consultative Meeting during 1990 to consider proposals for comprehensive protection of the Antarctic environment.
11th Special Consultative Meeting
The Protocol was negotiated in just under a year during four sessions of the 11th Antarctic Treaty Special Consultative Meeting. The first of these sessions was in Viña del Mar, Chile, in November and December 1990. Three further sessions were held in Madrid in April, June and October 1991. The Protocol was adopted on 4 October 1991 and was signed by all Antarctic Treaty Consultative Parties within the year it was open for signature.
Entry into force
The Madrid Protocol entered into force on 14 January 1998 following the deposit of instruments of ratification, acceptance, approval or accession by all the states which were Consultative Parties on 4 October 1991. During the intervening period each Party had particular domestic requirements to meet before the instruments could be deposited. In Australia’s case, legislation had to be developed to provide a basis for legally enforcing the provisions of the Protocol and its annexes. The key Australian legislation to implement the Protocol received Royal Assent on 11 December 1992 and subsidiary regulations were completed in March 1994 allowing Australia to ratify the Protocol on 6 April 1994. Annex V to the Protocol entered into force on 24 May 2002. Annex VI to the Protocol was finalised in June 2005, and will enter into force once it has been formally accepted by all states which were Consultative Parties at the time of its completion.
Environmental principles of the Madrid Protocol
The Protocol provides that protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica must be fundamental considerations in the planning and conduct of all human activities in Antarctica. With this aim, all such activities are to be planned and conducted so as to:
- limit adverse impacts on the antarctic environment; and
- adverse effects on climate or weather patterns
- significant adverse effects on air or water quality
- significant changes in the atmospheric, terrestrial (including aquatic), glacial or marine environments
- detrimental changes in the distribution, abundance or productivity of species or populations of species of fauna and flora
- further jeopardy to endangered or threatened species; or
- degradation of, or substantial risk to, areas of biological, scientific, historic, aesthetic or wilderness significance; and
- accord priority to preserving the value of Antarctica for scientific research
The environmental principles in the Protocol also include requirements for:
- prior assessment of the environmental impacts of all activities
- regular and effective monitoring to assess predicted impacts and to detect unforeseen impacts
Annexes to the Protocol
Four annexes which supplement the Protocol were also negotiated at the Madrid meetings. These annexes relate to environmental impact assessment (Annex I), conservation of Antarctic fauna and flora (Annex II), waste disposal and waste management (Annex III) and prevention of marine pollution (Annex IV). At the 16th Antarctic Treaty Consultative Meeting, held in Bonn in October 1991, a further annex (Annex V) was negotiated on area protection and management. The 28th consultative meeting, held in Stockholm in June 2005, completed negotiations on Annex VI, covering liability for environmental emergencies.
The Madrid Protocol prohibits mining. The ban is of indefinite duration and strict rules for modifying the ban are provided. In brief, the prohibition can be modified at any time if all parties agree. If requested, after 50 years a review conference may decide to modify the mining prohibition, provided that at least three quarters of the current Consultative Parties agree, a legal regime for controlling mining is in force, and the sovereign interests of parties are safeguarded. Consistent with the Antarctic Treaty, a party may choose to withdraw from the Protocol if a modification so agreed does not subsequently enter into force.
Australia has played a significant part in implementation of the Protocol.