A Call for U.S. Ratification of the Protocol on Antarctic Environmental Protection Jennifer Angelini* Andrew Mansfield** CONTENTS Introduction .................................................... 164 I. Human Impacts on Antarctica ............................ 167 A. Physical Features of Antarctica ..................... 167 B. Exploitation of Antarctic Marine Resources ......... 171 C. Antarctic Science .................................... 173 D. Antarctic Tourism ................................... 178 II. The Antarctic Treaty System .............................. 181 A. The Antarctic Treaty ................................ 182 B. Agreed Measures for the Conservation of Antarctic Flora and Fauna .............. 186 C. Convention for the Conservation of Antarctic Seals. 188 Copyright © 1994 by ECOLOGY LAW QUARTERLY * J.D. 1994, School of Law (Boalt Hall), University of California at Berkeley; B.A. 1991, summa cum laude, Jacksonville University; B.S. 1990, summa cum laude, Jacksonville University. ** J.D. 1994, School of Law (Boalt Hall), University of California at Berkeley; B.A. 1991, Trinity University. The authors acknowledge the contributions of Edward Adams, J.D. 1995, School of Law (Boalt Hall), University of California at Berkeley; and Craig Hart, J.D. 1994, School of Law (Boalt Hall), University of California at Berkeley. This comment is based on and derived from a monograph written by the authors. Jennifer Angelini & Andrew Mansfield, Implementation of the Protocol on Environmental Protection to the Antarctic Treaty into United States Law and Practice, BERKELEY STUD. INT'L L. & ORGANIZATION (Berkeley Center for the Study of Law and Society) May 1993. Edward Adams wrote appendix A to the monograph, and Craig Hart wrote appendix B, which form the basis of parts I and II of this comment, respectively. The authors thank David D. Caron, Professor, School of Law (Boalt Hall), University of California at Berkeley, who advised and guided our research and writing; Joan Bondareff, Legal Counsel, House Merchant Marine and Fisheries Committee, who sug- gested that Boalt students undertake a study of proposed implementing legislation; Louis J. Lanzerotti, Chair, and Sarah Connick, Senior Staff Officer, Committee on Antarctic Policy and Science, National Research Council, who invited us to attend the Workshop of the Committee on Antarctica Policy and Science on February 10-13, 1993, in Washington, D.C.; the Ford Foundation, which provided us funds to attend this workshop; and Fabio Angelini and Blythe York, who were patient and supportive throughout this writing endeavor. ECOLOGY LAW QUARTERLY [Vol. 21:163 D. Convention on the Conservation of Antarctic Marine Living Resources ............................ 189 E. Convention on the Regulation of Antarctic Mineral Resource Activities .................................. 191 III. The Protocol for Antarctic Environmental Protection ..... 192 A. Regulatory Framework Created by the Protocol .... 195 1. Committee on Environmental Protection ........ 195 2. Inspection Procedures ........................... 198 3. General Duties .................................. 200 4. Environmental Principles of the Protocol ........ 204 5. Dispute Resolution Under the Protocol ......... 205 B. Regulatory Regimes Created by Annexes to the Protocol ............................................. 208 1. Annex I: Environmental Impact Assessment .... 209 2. Annex II: Conservation of Antarctic Flora and Fauna ............................................ 210 3. Annex III: Waste Disposal and Waste M anagem ent ..................................... 212 4. Annex IV: Prevention of Marine Pollution ...... 213 5. Annex V: Area Protection and Management .... 215 C. Evaluation of the Protocol .......................... 216 IV. Effective U.S. Implementation of the Protocol ............ 217 A. Designation of the Lead Agency for Antarctic Environmental Protection ........................... 218 1. NSF Authority Over Antarctic Science .......... 218 2. NOAA Authority Over Antarctic Fisheries ...... 222 3. Relative Merits of the NSF and NOAA ......... 223 B. Relation of Implementing Legislation to Existing U .S. Regulation ..................................... 226 1. Government Ship Exemption .................... 226 2. Relationship Between NEPA and Annex I ...... 228 C. Legal Effect of the Article 3 Environmental Principles ............................................ 234 D. Exceeding the Norms of the Protocol ............... 236 C onclusion ..................................................... 239 INTRODUCTION An uninhabited continent covered by ice, surrounded by ocean, and located in the southernmost region of the globe, Antarctica is eas- ily lost from public view. Antarctica's remoteness makes it a natural laboratory, where relatively pristine conditions allow important scien- 19941 ANTARCTIC ENVIRONMENTAL PROTECTION tific research to be conducted.' The extreme Antarctic conditions ap- peal to the adventurer, and the Antarctic tourist industry is rapidly growing. The Antarctic environment, however, is not only harsh, but also fragile-the cold challenges human survival, yet the impression of a footprint in the coastal moss may remain for decades.2 The earli- est Antarctic explorers hunted seals and whales to near extinction. Today, scientists and tourists are increasingly causing waste disposal problems and other detrimental impacts. If a footprint in the Antarctic endures for decades, a discarded battery or fuel drum re- mains much longer. The impacts of human activity are exacerbated by the Antarctic environment's low assimilative capacity. For example, the shortness in foodchains due to the limited number of Antarctic species of flora and fauna means that harm to any member-whether through chemi- cal contaminants, overexploitation, or human disturbances to breed- ing populations-may adversely affect the entire Antarctic ecosystem. The harshness of the Antarctic further diminishes our capacity to ad- dress environmental problems. For instance, the ice and rough sailing conditions in the Antarctic Ocean not only increase the potential for oil tanker accidents, but also hinder oil spill clean up efforts. The Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol),3 signed at Madrid on October 4, 1991, has the potential to protect the Antarctic environment with some of the most advanced mechanisms yet developed in international environ- mental law. Along with its five annexes, the Madrid Protocol creates a comprehensive regime for assessment of environmental impacts, conservation of flora and fauna, protection of sensitive areas, regula- tion of waste disposal, and prevention of marine pollution in Antarc- 1. In spite of its remoteness, the Antarctic environment suffers from the long-range impacts of industrialized society. DDT, radioactive materials from atomic bomb tests, and other products of the industrial world have appeared in Antarctica in ever increasing quan- tities, and plastic pesticides have become a growing threat to sea birds. Christopher C. Joyner, Protectionof the Antarctic Environment: Rethinking the Problems and Prospects, 19 CORNELL INT'L L.J. 259, 261 (1986); see also PHILIP W. QUIGG, A POLE APART: THE EMERGING ISSUE OF ANTARCICA 65 (1983). Moreover, chlorine compounds have caused a hole in the ozone layer to appear over Antarctica during the winter. Antarctic Environ- mental ProtectionAct: Hearings on H.R. 964 before the Subcomm. on Science of the Senate Comm. on Science, Space and Technology, 103d Cong. 1st Sess. 8 [hereinafter 1993 Hear- ings] (statement of Dr. Frederick Bernthal, Deputy Director, National Science Founda- tion). These problems are addressed by general international regimes not specific to Antarctica. See, e.g., Convention on Long Range Transboundary Air Pollution, Nov. 13, 1979, T.I.A.S. No. 10,541; Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, 26 I.L.M. 1550 (entered into force Jan. 1, 1989) [hereinafter Montreal Protocol]. 2. LEE A. KIMBALL, WORLD RESOURCES INSTITUTE, SOUTHERN EXPOSURE: DECID- ING ANTARCTICA'S FUTURE 1 (1990). 3. Protocol on Environmental Protection to the Antarctic Treaty, opened for signa- ture Oct. 4, 1991, 30 I.L.M. 1455 [hereinafter Madrid Protocol]. ECOLOGY LAW QUARTERLY [Vol. 21:163 tica. Twenty-six countries, including the United States, signed the protocol, but only six countries have ratified the instrument to date. 4 The United States maintains the largest population of Antarctic scientists and tourists and has been responsible for some of the worst environmental practices. The obligations and enforcement mecha- nisms that the United States legislates to implement the protocol may thus determine the protocol's efficacy in protecting the Antarctic envi- ronment. The large American presence means that our country has an added responsibility to protect this region. As a dominant political power, the legislative choices the United States makes may influence other countries and encourage them to complete the ratification pro- cess. In light of these realities, the protocol challenges the United States to demonstrate its commitment to environmental protection to the international community. U.S. ratification cannot be completed until implementing legisla- tion has been enacted.5 Competing bills proposed to implement the protocol were introduced in the House of Representatives and the Senate during both the 102nd and 103rd sessions of Congress. The bills differed mainly on whether the National Science