Tuesday, April 28, 2009


By Lawrence A. Kogan, Esq.

On April 2, 2009, during the quiet preceding the 2009 Easter holiday, US President Barack Obama and US Secretary of State Hillary Clinton transmitted to the Senate Foreign Relations Committee (SFRC) Treaty Document 111-2 (2009), which calls for ultimate ratification by the US Senate of Annex VI (on Liability Arising From Environmental Emergencies) to the Antarctic Treaty’s Protocol on Environmental Protection (hereinafter referred to as the ‘Madrid Protocol’, affirms Article IV of the Antarctic Treaty). The US became a Party to the Antarctic Treaty in 1961. It became a Party to the Madrid Protocol and its Annexes I-IV in 1998; and became a Party to Annex V of the Madrid Protocol in 2002. While the US ratified each of these instruments in 1997, they did not go into force until the requisite number of treaty ratifications had been secured. Annex VI of the Madrid Protocol, however, has not yet received the requisite number of treaty ratifications, and therefore, it is not yet in force.
In order to ratify Madrid Protocol Annex VI, the Secretary of State explained that the US Congress must first enact considerable domestic implementing legislation that would likely entail review by various House and Senate committees. “Legislation will be required for the United States to implement many of the provisions of the Annex. Draft implementing legislation has been prepared and will be submitted to the appropriate congressional committees.”
It is said that “the Antarctic Treaty and its Madrid Protocol comprise the cornerstone of [a complex of international agreements comprising] the ATS [Antarctic Treaty System]”.
“To establish a scheme for…comprehensive environmental protection…in Antarctica…the parties to the Antarctic Treaty set forth in the Protocol legally binding principles applicable to all activities in Antarctica and they prohibited all activities relating to mineral resources, except for scientific research. In addition, the Protocol prescribes detailed rules through a system of annexes on environmental Impact assessment (Annex I), conservation of Antarctic fauna and flora (Annex II), waste disposal and waste management (Annex III), prevention of marine pollution (Annex IV), and area protection and management (Annex V).”
Annex VI of the Madrid Protocol “sets forth rules and procedures relating to liability resulting from the failure of a [private or governmental] operator to take prompt and effective response action to environmental emergencies arising from its own activities in Antarctica.” It applies to “scientific research programs, tourism, and all other governmental and nongovernmental activities in the Antarctic Treaty area for which advance notice is required…” In addition, “Pursuant to Annex VI…the Parties agree to require their operators to take preventative measures and establish contingency plans for preventing and responding to environmental emergencies in the Antarctic Treaty area and to take prompt and effective response action to such emergencies arising from their activities.”
It is abundantly clear that the President April 2nd submission of the Madrid Protocol Annex VI to the SFRC was partially in response to global media reports seizing upon the public observations of melting ice shelves at both the north and south poles, and partially an effort to highlight the US government’s hosting of the 32nd Antarctic Treaty Consultative Meeting, that taking place in Baltimore during April 6–17. It is also arguable that President Obama’s interest in Annex VI, not to mention, Annexes I-V of the Madrid Protocol, is quite closely related to his interest in the UN Law of the Sea Convention. On April 6, 2009, the Joint Oceans Commission Initiative (‘JOCI’) released a report once again recommending US Congressional accession to the UN Law of the Sea Convention. This report followed up its earlier 2006 report, which had called for changes in U.S. legislation and regulation to “[e]nable the transition toward an ecosystem-based approach”
Indeed, two media articles, one appearing on April 7, 2009 in the Greenwire, and the other appearing on April 8, 2009 in the China Post, reference US Secretary of State Hillary Clinton’s opening remarks at an international conference convened for the Antarctic Treaty Consultative Meeting and the Arctic Council. There, she expressly mentioned both treaties in the context of global warming and the need to protect the environments of the North and South Polar regions. Referring to the observed impact that the specter of global warming has had on the glaciers (i.e., alluding to a ‘correlation’ between the two, but not proven ‘causation’), and the presumed deleterious impact that potential new energy exploration would have on the environment of the North Pole, “she called for more international cooperation to protect the North and South poles.” With respect to the Arctic, Ms. Clinton was quoted as saying that, she and President Barack “Obama were committed to having the US Congress ratify the Law of the Sea Convention…” And, with respect to the Antarctic, Ms. Clinton made reference to “the melting of the Wilkins Ice Shelf”, and then announced that President “Obama had provided Congress with an annex to the treaty for ratification. The annex set the obligations of signatories in case of an environmental catastrophe in the South Pole region.” However, Ms. Clinton did not bother to mention how the term ‘environmental catastrophe’ does not appear as a legal term within Annex VI, or for that matter, within any of the other Annexes to the Madrid Protocol or the Protocol itself.
At the very least, it is arguable that both Secretary of State Clinton and President Obama have publicly committed themselves to UNCLOS accession and to Antarctic Treaty Annex VI ratification for purely environmental reasons. This is especially curious given the lengths to which the previous administration went to avoid discussion of the UNCLOS’ forty-five plus (45+) environmental articles, protocols and regulations that have already been used as a form of lawfare to diminish US legal and economic sovereignty and to compromise US military preparedness. It is also very interesting given the strong possibility that their ambitions may be much greater. It is conceivable that the President and the Secretary of State plan to use US UNCLOS accession and Annex VI ratification as a platform to gain international political currency for the purpose of joining ongoing multilateral efforts to develop and negotiate amendments or a protocol to the UNCLOS and perhaps even an entirely new comprehensive environmental treaty regime to address global environmental hazards on the ‘high seas’ in ‘areas beyond national jurisdiction’ (‘ABNJ’).
As it currently stands, the literature surrounding the Madrid Protocol and its annexes reflects the interpretation of green groups, legal positivist academicians and EU officials. They believe that such instruments implicitly incorporate Europe’s ‘standard-of-proof diminishing’, ‘burden of proof-reversing’, ‘guilty-until-proven-innocent’, ‘I fear, therefore I shall ban’, ‘hazard-not-risk-based’, ‘economic-cost-benefit-deficient’, ‘Roman-civil-law-not-common-law’, ‘extra-WTO’ Precautionary Principle. Yet, these stakeholders do not believe that the Madrid Protocol or the current UNCLOS regime is adequate to address global environmental hazards. For example, a September 7, 2008 article appearing in e!Science News emphasized the calls of environmental group scientists and UN officials attending a UN-affiliated conference marking the International Polar Year, for “[a] new coordinated international set of rules to govern commercial and research activities in both of Earth’s polar regions”. The article makes clear these officials’ concerns that the current UNCLOS and Antarctic Treaty System regimes are unable by themselves to address the environmental hazards posed to the Arctic and Antarctic regions. In addition, a recent (2008) series of reports prepared by environmental group scientists and statements made by European Union officials at United Nations General Assembly ad hoc working group meetings (during 2006-2008) have called for an Implementation Agreement under UNCLOS to address such concerns, which would explicitly incorporate Europe’s Precautionary Principle. If this is true, then either US ratification of Madrid Protocol Annex VI and/or US UNCLOS accession would likely herald Europe’s Precautionary Principle as US law.
More Detailed Analysis:
As in most cases, the devil is in the details and the details are other than clear or transparent. For this reason, Congress must uphold its oath of office to support the US Constitution, which means providing all Americans with due process of law - in this case, critical information. In other words, it is incumbent upon the Congress to hold open public hearings in those committees possessing oversight jurisdiction to examine the text of and literature surrounding the Madrid Protocol, its Annexes I-V, and the potential legal and economic impacts of the Madrid Protocol and its Annex VI, in light of modern international environmental law. They should also carefully review whatever US implementing legislation is necessary to ensure that US law is consistent with the obligations this country will assume upon ratification. In addition, the Congress should convene open public hearings in multiple committees possessing oversight jurisdiction to investigate the environmental provisions of the UNCLOS in light of modern international environmental law, and the need for new domestic implementing legislation incident to US accession to that treaty.
Based on the academic and green group literature surrounding the Madrid Protocol, its annexes and the UNCLOS, a rather solid case can be made that the ‘devil in the details’, this time around, assumes four different forms.
1. A More Rigorous Bi-Level Environmental Impact Assessment
First, it is arguable that Madrid Protocol Article 3(2); Article 8; and Annex I, Articles 1-3_ incorporated a stricter substantive legal requirement for conducting environmental impact assessments (EIAs) than that mandated under then current US law. At least one commentator who had performed a comparative analysis of the Madrid Protocol and NEPA, had previously found that while, overall, the substantive and procedural requirements for EIAs imposed by the National Environmental Policy Act (NEPA) upon proposed governmental agency activities qualified as the international ‘gold standard’, certain substantive aspects of the Madrid Protocol’s EIA provisions (i.e., the broader scope and foresight of the subject matter to be addressed within the Protocol’s more rigorous bi-level EIA reporting requirement) were even more rigorous than those contained within NEPA at that time. Consequently, it was recommended that, through the US ratification process, these substantive elements of the Protocol could be adopted via US domestic implementing legislation falling under the auspices of NEPA, while NEPA’s more rigorous procedural standards could be broadened so that they also cover nongovernmental entities operating in Antarctica and elaborated upon by US agency (e.g., EPA) regulations. This commentator’s observations concerning the differences between the Protocol and NEPA was apparently shared by the US congressional sponsor of two bills intended to implement the legal obligations assumed by the US upon ratification of the Madrid Protocol.
Indeed, during the 1993 hearings surrounding proposed US implementing legislation, green groups emphasized the need to use US ratification of the Protocol to strengthen US domestic laws, including NEPA, so that they represented the highest international environmental benchmark. It is interesting to note how such groups then emphasized the need to maintain the highest standards given the importance of not only Antarctica, but also the North Pole, for future global environmental forecasting purposes. This strongly suggests that green groups ultimately had in mind for the US government to prospectively apply the stricter Protocol standards to proposed activities at the North Pole as well.
International commentators have noted how the Madrid Protocol’s EIA requirement is bi-level, consisting of a preliminary ‘first-level’ assessment (PA) and a subsequent comprehensive environmental evaluation (CEE). The EIAs should reveal all possible environmental effects of future proposed activities in Antarctica (other than seabed mining which is prohibited for a period of fifty years) to be undertaken by operators, including US government agencies (including military). “Unless it has been determined that an activity will have less than a minor or transitory impact…on the Antarctic environment or on dependent or associated ecosystems…an Initial Environmental Evaluation shall be prepared”. “If an Initial Environmental Evaluation indicates or if it is otherwise determined that a proposed activity is likely to have more than a minor or transitory impact, a Comprehensive Environmental Evaluation shall be prepared.” The Congress should investigate whether strict US adherence to these provisions of the Madrid Protocol (i.e., a two-tiered environmental impact assessment), pursuant to 16 U.S.C. 2401-2413, especially subsequent to US ratification of Annex VI, could conceivably subject US Navy sonar training exercises to environmental override if it, once again, based on expediency grounds, prepares a detailed environmental assessment finding no present or future environmental harm to wildlife in lieu of submitting a full environmental impact statement. Respondents and amicus curiae filings endeavored to have the US Supreme Court apply, in the recently decided case of NRDC v Winter, at least one of three possible applications of Europe’s Precautionary Principle to ensure that the Navy’s failure to meet NEPA’s strict EIS requirement constituted prima facie evidence of irreparable environmental harm justifying a priori imposition of a preliminary injunction.
2. A Lesser Science-Based and Economic Cost-Efficient Environment & Health Safety Standard
Second, it is arguable that the Madrid Protocol incorporates a lesser science-based and economic cost-efficient environmental safety standard than that mandated under current US law, to account for situations where available information would be inadequate to prove a cause and effect relationship between human activities and environmental harm in Antarctica. The literature surrounding Madrid Protocol Article 7; Annex II; and Annex IV states that the Protocol implicitly incorporates Europe’s Precautionary Principle, which minimizes the role of risk assessment and eschews economic cost-benefit analysis.

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