The Antarctic Treaty: How Amending the Environmental Impact Assessment Procedure Can Save the Only Place Left on Earth as it Should Be

There are few places left in our industrialized world that have been left untouched.  Antarctica, never having a native population, is one of these unique wild places that have somehow escaped the grasp of human pillage. [1]  Referred to as “Earth’s last great wilderness,” this uninhabited land indicates how humans have impacted the world and how Antarctica impacts us.[2]  Antarctica is home to many complex plant and animal communities which, given the extreme and changing climate, have a tenuous existence.[3] By the end of the twenty-first century, it is expected that global temperatures will increase dramatically.[4] Destructive patterns, with the largest warming at the poles, are occurring across Antarctica in the terrestrial, freshwater and marine environments.[5] In order to maintain this wonderland, a strong system of protection must be in place.

Antarctica is governed by the Antarctic Treaty System.[6]  The main objective of the Treaty is to safeguard Antarctica as a place for peaceful purposes and to avoid it becoming a battleground for international conflict (Article I).[7]  As new challenges arise, additional Protocols are added to the Treaty, such as the Protocol on Environmental Protection to the Antarctic Treaty (“Protocol”), signed in 1991.[8]  This Protocol sets out rules that govern if and when activities may take place on Antarctica.[9]  The activities regulated by the Protocol include scientific research, tourism, and all governmental and non-governmental activities in the geographic area covered by the Antarctic Treaty.[10]  For example, when a state wants to begin an activity on Antarctica, it must assess the impact that the proposed activity will have on the environment.[11]  The state assigns a grade to the proposed activity, which dictates the level of scrutiny, if any, that the activity will receive.[12]  Dangerously, there is no higher oversight, creating a self-regulating process that can lead to little or no review over activities in Antarctica.  Thus, it is necessary to change the Protocol’s current structure to mandate the review of all proposed activities by an unbiased authority.

There are three major loopholes that must be addressed in order to protect the future of Antarctica. [13]  First, a state regulating its own activities by deciding which categorical impact the activity falls into is like a fox watching the hen house.[14]  If a state decides, using its own domestic definitional standards, that its activity has less than a minor or transitory impact, it can begin as long as self-regulated procedures are put into place.[15]  This set-up is doomed to fail unless its structure is altered to allow for the Contracting Parties to review the activities of others, regardless of its self-assessed impact level.  Second, the lack of clear guidelines regarding the weight that each individual factor shall receive when performing an Environmental Impact Assessment leads to an inconsistent and unpredictable system.  Third, all activities should be subject to an Environmental Evaluation. This would ensure that every proposed activity would be subject to review and thus lead to a more accurate and consistent system, one which could protect the Antarctic environment.  This three-part approach will close the gaps in the Protocol and serve to protect Antarctica, “the only place on earth that is still as it should be.”[16]

 

— Marissa Abraham, Associate 


[1] Jeff Rubin, Lonely Planet Antarctica 15 (2nd ed. 2000).

[2] British Antarctic Survey, Natural Environment Research Council, Why Protect Antarctica (2007), http://www.antarctica.ac.uk/about_antarctica/environment/why_protect_antarctica.php.

[3] Such complex life forms include: the young icefish; sea pigs; sandhoppers; feather stars; basket stars; scale worms; Serolid and Antarcturus Isopod Crustaceans; star comb jellys; skates; soft coral; mosses; lichens; grass, cushion and woody flowering plants; Flossoteris flora; and Deschampsia antarctica. Dan Shapley, 12 Bizarre Sea Creatures (2012), http://www.thedailygreen.com/environmental-news/latest/bizarre-antarctica-sea-creatures-47122501; McGonigal, supra note 4, at 30-31.

[4] McGonigal, supra note 4, at 66.

[5] Id.

[7] Bernard Stonehouse, Encyclopedia of Antarctica and the southern oceans 10 (2002).

[8] Such instruments include: Agreed Measures for the Conservation of Antarctic Fauna and Flora (1964), the Convention for the Conservation of Antarctic Seals (1972), the Convention on the Conservation of Antarctic Marine Living Resources (1980), the Protocol on the Environmental Protection of the Antarctic Treaty (1991), and the Convention on the Regulation of Antarctic Mineral Resource Activities (1988, prepared but never adopted). The Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71;

Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, 30 I.L.M. 1455.

[9] Protocol, supra note 35.

[10] Id.

[11] Id. at annex I, art. 3(5).

[12] Id.

[13] Protocol, supra note 35.

[14] See supra Part IV.

[15] Id.

[16] Scar, supra note 1.

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