Protocol on Environmental Protection to the Antarctic Treaty (The Madrid Protocol)

The Protocol on Environmental Protection to the Antarctic Treaty (also known as the Madrid Protocol) provides for comprehensive protection of Antarctica, the last great wilderness on earth.

The Protocol was adopted in 1991, harmonising and expanding on a range of earlier provisions relating to protection of the Antarctic environment. The Parties to the Protocol commit to comprehensively protect the environment of the Antarctic region (the area south of 60 degrees South latitude) and dependent and associated ecosystems.

The Protocol:

designates Antarctica as a ‘natural reserve, devoted to peace and science’

establishes environmental principles that must be a fundamental consideration in the planning and conduct of all activities

prohibits mining indefinitely

requires that all proposed activities must be subject to a prior assessment of their environmental impacts

establishes the Committee for Environmental Protection, to develop advice and formulate recommendations to the Antarctic Treaty Parties on implementation of the Protocol

requires the development of contingency plans to respond to environmental emergencies

The Protocol is also accompanied by Annexes that detail specific measures and procedures relating to:

ANNEX I: Environmental Impact Assessment — outlines the procedures for prior environmental assessment of all proposed activities, including consideration of alternatives. At the highest level of impact (activities likely to have more than a minor or transitory impact on the environment) a Comprehensive Environment Evaluation must be prepared and opportunity provided for the Committee for Environmental Protection and Parties to comment on the proposal.

ANNEX II: Conservation of Antarctic Fauna and Flora — requires that a permit be issued for any proposal to ‘take’ or ‘harmfully interfere with’ Antarctic fauna and flora. This annex also includes a mechanism to declare Antarctic specially protected species (threatened species) and provisions to prevent the introduction of non-native species.

ANNEX III: Waste Disposal and Waste Management — requires the Parties to develop waste management plans. This annex also details requirements for managing wastes generated through present-day operations, including the removal of some wastes from the Antarctic Treaty area, and the clean-up of wastes remaining from past activities. Particularly harmful products such as Polychlorinated biphenyls (PCBs), polystyrene packaging beads and pesticides are prohibited in the Antarctic.

ANNEX IV: Prevention of Marine Pollution — regulates the discharge of substances from ships, including general prohibitions on the disposal at sea of oily mixtures, noxious liquid substances garbage and plastics.

ANNEX V: Area Protection and Management — provides that an additional level of protection can be afforded to special values, beyond the comprehensive environmental protection measures that apply throughout the Antarctic under the Protocol, through the designation of Antarctic Specially Protected Areas, Antarctic Specially Managed Areas and Historic Sites and Monuments.

ANNEX VI: Liability Arising from Environmental Emergencies — outlines arrangements to prevent and respond to environmental emergencies arising from scientific research programs, tourism and all other governmental and non-governmental activities. (This Annex has yet to enter into force.)

The text of the Protocol and Annexes can be downloaded from the website of the Secretariat of the Antarctic Treaty.

Mining prohibition

Article 7 of the Madrid Protocol unambiguously prohibits mining in Antarctica. It states that ‘Any activity relating to mineral resources, other than scientific research, shall be prohibited’.

There is no time limit on the mining ban and there are strict rules for modifying the ban. The notion of a “50-year ban” on mining is a common misconception, and arises from the general review provisions of the Protocol.

Up until 2048, the unanimous agreement of all countries actively engaged in the management and governance of Antarctica — the Antarctic Treaty Consultative Parties — would be required to change the Protocol to remove the mining ban. After that time any Consultative Party may request that a conference be held to review the operation of the Protocol. Any change to the mining prohibition ban proposed at a review conference would only enter into force if:

adopted by a majority of all Consultative Parties (including three quarters of the Consultative Parties at the time of adoption of the Protocol in 1991), and

formally implemented by three quarters of Consultative Parties (including all 1991 Consultative Parties)

Further, any amendment removing the mining ban — either by the unanimous agreement of the Consultative Parties, or at a review conference — could only occur if a legal regime for controlling mining was in force and the sovereign interests of Parties under Article IV of the Antarctic Treaty were safeguarded. Unless an amendment is adopted in the manner set out above, the mining ban will remain in force indefinitely.

The Antarctic Treaty Parties regularly reiterate their commitment to the Antarctic mining ban. For example, at the Antarctic Treaty Consultative Meeting in 2016 the Parties celebrated the 25th anniversary of the signing of the Protocol and adopted a Declaration PDF reaffirming their ‘strong and unequivocal commitment’ to the mining ban, and a dedicated resolution on ‘Confirming ongoing commitment to the prohibition on Antarctic mineral resource activities, other than for scientific research; support for the Antarctic Mining Ban’.

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

avoid 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

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 Convention on the Regulation of Antarctic Mineral Resource Activities (the Antarctic Minerals Convention, or CRAMRA), adopted in June 1988 by a Special Antarctic Treaty Consultative Meeting in Wellington (New Zealand), 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, the Hon Bob 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 Michel 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.