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High level Antarctic EIA under the Madrid Protocol: state practice and the effectiveness of the Comprehensive Environmental Evaluation process

International Environmental Agreements: Politics, Law and Economics volume 10, pages 187–208 (2010)Cite this article

Abstract

The 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), the latest instrument of the Antarctic Treaty system (ATS), establishes environmental standards to manage 10% of the planet. Under the Madrid Protocol, all activities subject to advance notice reporting obligations under the 1959 Antarctic Treaty are required to undergo prior Environmental Impact Assessment (EIA). The highest level EIA—termed a Comprehensive Environmental Evaluation (CEE)—requires international scrutiny. This is the only form of EIA where such scrutiny occurs and the only context under the Madrid Protocol or any other part of the ATS where the proposed actions of State Parties, or operators subject to their jurisdiction, are subject to formal international review. Whilst this review does not provide a veto, it has been viewed as an important development in the Antarctic multilateral regime. To date, there have been 19 CEEs. This article reviews the Antarctic CEE process and evaluates its application in practice against the environmental obligations established in the Protocol. Whilst most CEEs are substantial documents and processes, which have raised the standard of environmental care in the area, there are significant generic limitations. Not one CEE appears to have led to substantial modification of the activity as first elaborated by the proponent, let alone a decision not to proceed with the activity, despite this being a mandatory consideration. There are indications that the imperatives in the CEE process are often administrative and diplomatic rather than environmental and that notwithstanding the international scrutiny of draft CEEs, state action may not be significantly changed. Suggestions are made on improvements to the CEE process. The Madrid Protocol is a framework convention, designed so that its technical annexes, including that addressing EIA, may be periodically updated. Twelve years after its entry into force, and almost 20 years after its adoption, such updating may now be useful.

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Notes

  1. The term coined to encompass the 1959 Antarctic Treaty, the 1972 Convention on the Conservation of Antarctic Seals, the 1980 Convention on the Conservation of Antarctic Marine Living Resources, the 1991 Protocol on Environmental Protection to the Antarctic Treaty, all of which are in force; the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities, which is not in force nor likely to become so; and the subsidiary obligations under these instruments.

  2. Article 7.

  3. Article 2.

  4. A cumulative listing of IEEs and CEEs from 1988 to date is provided on an EIA database maintained by Antarctic Treaty Secretariat http://www.ats.aq/devAS/ep_eia_list.aspx?lang=e (last visited 10.1.10 at which time there were still 32 CEE documents).

  5. Bastmeijer and Roura (2008, pp. 210–217) also use Lake Vostok as a case study, although the cut-off point for their study is late 2006, and there have been discussions about the activity since then.

  6. Copy on file with authors.

  7. Copy on file with authors.

Abbreviations

ATCM:

Antarctic Treaty Consultative Meeting

ATCP:

Antarctic Treaty Consultative Party

ATS:

Antarctic Treaty system

CEE:

Comprehensive Environmental Evaluation

CEP:

Committee for Environmental Protection

IEE:

Initial Environmental Evaluation

EIA:

Environmental Impact Assessment

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Acknowledgements

This article substantially expands and develops a short paper written by ADH for a diplomatic meeting, the Antarctic Treaty Consultative Meeting in New Delhi in 2007 (ASOC 2007). ADH acknowledges helpful comments on that paper by Ricardo Roura, and discussions with him, Kees Bastmeijer, Neil Gilbert, Lyn Goldsworthy, Harry Keys, the late Mike Prebble and Stuart Prior about Antarctic EIA in many contexts and in many places over many years; and thanks colleagues on New Zealand’s Antarctic Environmental Assessment and Review Panel with whom the practicalities and complexities of considering actual Antarctic EIAs were learnt. LKK acknowledges The Antarctic Climate and Ecosystems Cooperative Research Centre and the School of Geography and Environmental Studies, University of Tasmania and an Erskine Fellowship from the University of Canterbury, which enabled him to work at Gateway Antarctica Centre for Antarctic Studies and Research in 2008. We thank two anonymous reviewers of the submitted manuscript for perceptive and helpful comments. Of course, none of these people or organisations should be implicated in the particular interpretations taken by the authors here.

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Authors and Affiliations

  1. Gateway Antarctica Centre for Antarctic Studies and Research, University of Canterbury, Private Bag 4800, Christchurch, 8020, New Zealand

    Alan D. Hemmings

  2. Antarctic Climate and Ecosystems Cooperative Research Centre and School of Geography and Environmental Studies, University of Tasmania, Private Bag 78, Hobart, TAS, 7001, Australia

    Lorne K. Kriwoken

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  1. Alan D. Hemmings
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  2. Lorne K. Kriwoken
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Correspondence to Lorne K. Kriwoken.

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Hemmings, A.D., Kriwoken, L.K. High level Antarctic EIA under the Madrid Protocol: state practice and the effectiveness of the Comprehensive Environmental Evaluation process. Int Environ Agreements 10, 187–208 (2010). https://doi.org/10.1007/s10784-010-9119-5

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Keywords

  • Antarctica
  • Antarctic Treaty system
  • International environmental management
  • Environmental impact assessment
  • Effectiveness of multilateral environmental agreements