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CIAO DATE: 11/00

The Effectiveness of International Environmental Regimes: What About the Environment?

Tom Cioppa
Hans Bruyninckx

International Studies Association
41st Annual Convention
Los Angeles, CA
March 14-18, 2000

1. Introduction

When we make the claim that an international regime is effective, what exactly do we mean? Is effective performance defined in terms of "solving" problems, or is it the attainment of specific goals, or both? Maybe it lies in the establishment of such things as monitoring and/or compliance mechanisms to assist with members' adherence to international conventions? Or, perhaps, it is determined through the modification of actor (usually state) behavior in some larger sense?

More importantly, is it possible to analytically distinguish between different types of effectiveness: specifically, institutional effectiveness and environmental effectiveness? Institutional effectiveness suggests that a regime is operating in some sort of agreed-upon fashion by its members, while environmental effectiveness connotes an improvement in the quality of the natural environment through the actions of the regime. Such a distinction, therefore, allows for the possibility that a resource regime may be operating in an institutionally effective manner while at the same time failing to improve the quality of the natural environment (what we might call environmental ineffectiveness).

In this paper we make this distinction by elaborating on the concept of environmental effectiveness. It will become clear that this concept prompts us to ask different questions about the formation, dynamics and impact of regimes. From that point of view it signifies a serious amendment to traditional regime theories and it gives a new dynamic to the debate whether 'regimes matter'.


2. The concept of effectiveness in regime theory

One of the shortcomings within much of the literature on regime effectiveness is a tendency not to distinguish between institutional and environmental effectiveness. This often makes for confusion as to what kind of effectiveness is actually being talked about. Indeed, the inclination among a number of regime scholars is to use the term in a way that emphasizes institutional practices over environmental outcomes. Or putting it slightly differently, the focus is more on the formation and operation of environmental institutions and less than on their ability to actually deliver environmental protection. This focus has been determined by several factors: (1) by scholars' individual decisions about what phenomena to explore; (2) by the fact that the walls between scientific disciplines have made policy scientists myopic observers of environmental politics, often paying little attention to the first half of the term; (3) it has also been driven by a (n) (perceived) absence of good environmental data, thereby making it difficult to accurately assess the environmental effectiveness of natural resource regimes; (4) finally, academic attention to environmental politics and resource regimes is often not based on an interest in the substantive environmental issues involved, but rather on those aspects that make environmental issues interesting cases for IR theory (e.g. their transboundary character, IO oriented, questioning concepts such as sovereignty, the input of NGO's, etc.).

A dominant theoretical focus within the literature on effectiveness concerns itself with the impact international arrangements have on modifying actor behavior (especially state-centric behavior) towards a given problem 1 . Such a perspective seeks to answer the generic question of whether or not regimes "matter." To do so, emphasis is placed on the formation and/or operation of international institutions and the influence such arrangements have on actor behavior. What is often left out of the research program is an ecological component that assesses the actual impact such regimes are having on the natural environment.

In their exploration of the linkages between the sovereign-state system and international environmental treaty making, Haas and Sundgren (1993) argue that international treaties do matter. Surveying over 130 international environmental agreements, the authors examine a number of political variables (e.g. year of treaty, subject of treaty, sovereignty issues affecting treaty outcomes such as hegemonic influences and regime types) and the impact these variables have on the negotiating process. In addition, their analysis considers three "proxies" of treaty effectiveness: subjective impressions of knowledgeable observers of a treaty's effectiveness; whether or not the major polluters/users of a resource are parties to the agreement; and, how quickly the agreement enters into force. Notice, however, that there is not an ecological "proxy" within the authors' conceptualization of effectiveness that contains any measurable indicators of environmental quality. By not having such a proxy, the analysis ultimately lacks (as the authors acknowledge) a body of evidence explaining the environmental effectiveness of the agreements. The authors write, "it is extremely difficult to establish the impact of these treaties on improving the quality of the environment, which is their nominal objective"(1993:409, emphasis added).

In Global Accord(1993), editor Nazli Choucri focuses on developing an integrated framework that links natural and social systems within which actors, their behaviors, and their interactions can be identified and examined. She writes that:

...accord on the global environment involves a dynamic policy process revolving around bargaining, negotiation, and leveraging among relevant actors. The process begins with recognition of the problem; agreement on goals and principles, identification of specific procedures, and formulation of policy alternatives; and—finally—a decision on policy. Matters of implementation and compliance emerge at a subsequent stage. One of the most important achievements in this entire process is the building of consensus between scientists and policymakers in the development of a flexible framework designed to avoid obsolescence in the face of new scientific evidence (1993:28).

However, what is absent here is any mention of an evaluation of the ecological impacts of the policy options chosen. While the scientific community may provide policymakers with evidence suggesting that they adopt certain environmental policies, there are no guarantees that this will be the case. Furthermore, policy suggestions put forth by the scientific community are usually watered down to accommodate divergent political interests. Finally, policy changes made in light of new scientific evidence do not by and of themselves equate with more effective environmental outcomes. Issues of implementation, compliance, and monitoring all affect the success or failure of environmental arrangements.

In examining the prospects for securing an effective international climate regime, Victor, Chayes, and Skolnikoff (1993) suggest four "core" organizational functions which they feel are necessary for a successful climate regime: (1) coordination of research and periodic review of the relevant science needed to understand climate change; (2) an ongoing forum for negotiations (e.g. regular meetings of the treaty parties); (3) the systematic collection, review, and dissemination of data on greenhouse gases; (4) the reporting, review, and assessment of national policies that address global warming. What is missing are ecological standards or benchmarks that scientific and/or policy data can be compared to. Without the inclusion of what we might call an 'ecological function' which incorporates such standards it will be difficult to gauge the degree of environmental improvement the climate regime is actually providing.

In Institutions for the Earth,Keohane, Haas, and Levy (1993) write that "truly effective international environmental institutions would improve the quality of the global environment" (1993:7). However, they temper their assertion with the caveat that because there is a lack of good data pertaining to institutional action on environmental quality, we must focus on the "observable political effects of institutions rather than directly on environmental impact" (1993:7). But, while a dearth of useable data may indeed be problematic in the study of some environmental institutions, this will most certainly be determined on a case-by-case basis. Furthermore, compensating for such a shortcoming by focusing solely on the political effects of these arrangements brings us no closer to understanding the environmental benefits (or non-benefits) they provide.

A number of authors have underscored the need to closely examine the pathways by which regime mechanisms lead to behavioral changes among the actors (Young, 1997; Peterson, 1997; Stokke, 1997; Stokke and Vidas, 1996; Young, 1996; Levy and Young, 1995; Young 1994; Stokke 1993; Wettestad and Andresen, 1991). Here attention is paid either to variables affecting the internal operation of the regime (endogenous variables), external influences that affect the operation of the regime (exogenous variables), or a combination of the two. According to Oran Young, the empirical difficulties of causally connecting regime performance with environmental improvement has led to an emphasis on such variables as "goal attainment, implementation and compliance, behavioral change, social learning, and the initiation of social practices (1997:13). He argues that while intuitively it makes sense to regard international regimes as effective when they serve to solve or alleviate the problems that motivated their creation, empirically demonstrating effectiveness in this sense is extremely difficult to do (1997). Levy and Young (1995) note that a major complication in measuring and assessing the effectiveness of international regimes is the necessity to make causal inferences "in order to say anything about levels of effectiveness or variations in these levels under a variety of conditions" (1995:22). However, in the quest for methodological rigor what one often sees is a concentrated focus on the formation and operation of institutional mechanisms and the relegation of the more empirically challenging question of environmental outcomes to the back burner.

For example, Young (1996, 1994) suggests that as our attempts to pin down the variable of effectiveness become more rigorous we notice that the concept is not one of a uni-dimensional nature but, rather, one that encompasses "a suite of related variables or, at best, a multidimensional variable whose separate dimensions need not and frequently do not co-vary in any simple way" (1994:142). Consequently, Young (1996) offers six 'variables of effectiveness' for consideration: problem-solving (does the regime solve the problem that motivated its formation); goal attainment (does the regime attain its goals—stated or unstated—over time); behavioral (actors altering their behavior as a direct consequence of the institution); process (the degree to which the provisions of an institution are implemented in the domestic political/legal systems of the member-states as well as the level of compliance by their respective nationals); constitutive (the expenditure of time, energy and resources on the part of the member-states); and evaluative (does the regime produce results that are efficient, equitable, sustainable, or robust). However, Young does not elaborate on the usage of the term 'sustainable' as it pertains to evaluative effectiveness. This raises questions as to what kind of sustainability we are ultimately talking about when we use the term evaluative effectiveness: political sustainability, economic sustainability, environmental sustainability, etc.? Furthermore, his treatment of effectiveness as problem solving is somewhat amorphous, as it is completely dependent on how the actors involved choose to frame the problem 2 . Consequently, "judgments regarding the effectiveness of a regime may vary depending upon the way in which those making such judgments choose to frame the problem" (Young 1996:9). Such a statement is troubling, however, because it offers the temptation to claim that a regime has succeeded or failed based on little more than a subjective interpretation of what problem the regime was supposed to address.

Part of the regime literature has formulated a number of singular indicators of effectiveness. However, practically all of the authors treat the concept of effectiveness in ways that emphasize institutional performance rather than environmental impact. Synthesizing this literature we come to the following broad categories of prerequisites for effectiveness which have been well described in the regime literature: (1) policy implementation; (2) compliance; (3) monitoring; (4) verification.

We can conclude from this overview of the conceptualization of effectiveness in regime theory that one of the shortcomings of the theory is the tendency of the authors not to analytically distinguish between institutional effectiveness and environmental effectiveness. This often makes for confusion as to what kind of effectiveness is actually being analyzed and explained. Indeed, the inclination among most of the literature presented here is to use the term in a way that emphasizes institutional phenomena over environmental outcomes. Or putting it slightly differently, the focus is more on the formation and operation of environmental institutions and less on their ability to actually deliver environmental protection.


3. Environmental effectiveness

Because the literature has tended to focus predominately (in some cases exclusively) on the institutional formation and functioning of resource regimes rather than on the environmental outcomes that flow from them, it is difficult to determine their actual environmental impact. To more accurately assess environmental impact it is therefore necessary to distinguishes institutional effectiveness from environmental effectiveness. Our aim is not only to look at the institutional question of whether or not regimes matter, but also to examine the environmental question of whether or not regimes improve the quality of the natural environment? Some noted regime scholars concur with this critique. Oran Young writes:

today, we are increasingly aware of the need to broaden our perspectives to include a sustained effort to explain and predict the consequences flowing from individual regimes once they are in place. In part, this emerging interest in regime effectiveness arises from the fact that there is a steadily growing set of regimes that have been in place long enough to produce significant records to examine (1996:4).

Thomas Bernauer suggests that our efforts to determine the success of environmental institutions "is still in its infancy, not least because it involves daunting evaluative and analytical problems" (1995:352). Consequently, Levy and Young warns us to proceed cautiously when assessing the impacts of international environmental agreements because "what looks like an effective regime, in terms of problem solving, might be an irrelevant side show" (1995:9).

Bernauer formulates one of the more ecocentric definitions of environmental institutions. He defines these arrangements as:

sets of international regulations and organizations that were intentionally established by preexisting actors (states) through explicit, legally or politically binding, international agreements in order to regulate anthropogenic sources of negative externalities affecting the natural environment (1995:352).

What is useful about Bernauer's definition is that it incorporates both institutional and environmental criteria. In this way environmental institutions are not only entities that encompass norms, rules, and procedures, but also function to protect the natural environment from anthropogenic sources of pollution. Thus, they have both an institutional and an environmental component.

On the other hand, Bernauer's definition begs the question of whether or not such arrangements actually will regulate damaging anthropogenic externalities in environmentally benign ways. Because of this uncertainty we are, therefore, presented with the following institutional conundrum: If an environmental institution (using Bernauer's definition) is not regulating anthropogenic activities in ways that alleviate or eliminate negative environmental externalities then can it, by definition, be classified as an environmental institution? Logic dictates that a true environmental institution would not only function properly on some agreed-upon institutional level but would also provide a certain measure of tangible environmental benefits. Although there will always be disagreement over what constitutes an acceptable level of environmental improvement, nonetheless an important task is to establish some measurable environmental parameters of what constitutes environmental effectiveness if we are to properly address the aforementioned paradox. Furthermore, an exercise of this type will assist us in addressing the concerns of critics who argue that while environmental institutions have made some limited advances in the fight against pollution, "the overall state of the global environment continues to deteriorate at an alarming rate" (French 1992:157).

These comments prompt us to recognize the possibility of having a regime that demonstrates a high degree of institutional performance but at the same time fails to improve the quality of the natural environment (the regime demonstrates a low degree of positive environmental impact). Three additional outcomes are then also possible: a low degree of both institutional performance and environmental impact; a high degree of both institutional performance and environmental impact; and, a low rate of institutional performance and a high rate of environmental impact.

Table1: possible combinations of effectiveness

    Environmental effectiveness
    High Low
Institutional effectiveness High Effective regimes Actor pleasers
Low Environment pleasers Window dressing-regimes

Since there are four possible outcomes, it becomes necessary to conceptually distinguish between institutional effectiveness and environmental effectiveness in order to know what kind of effectiveness an agreement is actually demonstrating. Without distinct conceptualizations of the two terms it is difficult to assess whether an environmental agreement is delivering high or low levels of institutional benefits, high or low levels of environmental benefits, or some combination of the two. As Kutting notes, "institutional effectiveness is mostly concerned with the performance of the institution in question while environmental effectiveness as a concept makes the eradication or prevention of environmental degradation its priority" (1998:7).

Although Kutting's definition of institutional and environment environmental effectiveness is useful for differentiating institutional performance from environmental impacts, her treatment of the two terms can be expanded upon. Specifically, it needs to address the fundamental causes of environmental degradation: deductions (or outputs) to natural systems in the form of anthropogenic exploitation of living and non-living resources; and, deposits (or inputs) to natural systems in the form of harmful anthropogenic contaminants consequent with human enterprise 3 . One of the fundamental requirements of any successful environmental institution is to prevent the nationals of states party to such an arrangement from engaging in environmentally harmful behavior (presuming that it prohibits such conduct). Although Kuttings's treatment of environmental effectiveness needs to consider the possibility that environmentally harmful behavior may not be rooted in economic or power considerations, nonetheless her focus on the eradication and/or prevention of environmental degradation is a useful building block for a more sophisticated definition of environmental effectiveness.

Definition of Environmental Effectiveness

Environmental degradation is the product of two fundamental forces: anthropogenic deductions from and deposits to natural systems. Because of the synergistic relationship between these outputs and inputs, and the fact that all human enterprise generates both kinds of externalities, it is imperative that our definition of environmental effectiveness be sensitive to these two interlinking phenomena. Building on Kutting's approach we define environmentally effective regimes as follows:

an environmentally effective institution eradicates or alleviates anthropogenic deductions from and/or deposits to an ecological system or systems in balance with the system's natural regenerative processes.

Such a definition encapsulates not only reductions in anthropogenic outputs and inputs to ecological systems, but also that those reductions are in harmony with natural processes. This suggests that environmentally effective institutions will be those that successfully juxtapose the ecological impacts of anthropogenic activities with the planet's regenerative capabilities for reversing such impacts. Embracing this line of reasoning are thoughts like: "the fish catch does not exceed the sustainable yield of fisheries...carbon emissions and carbon fixation are in balance...[and] the number of plant and animal species lost does not exceed the rate at which new species evolve (Brown 1996:8). Ultimately then, environmentally effective institutions are those that can regulate human enterprise in a sustainable balance with natural processes.


4. The Environmental Effectiveness of International Environmental Agreements: an analytical framework

Environmental effectiveness is demonstrated when an institution provides measurable environmental protection either through the sustainable conservation of natural resources, the prevention and/or reduction of deposits of anthropogenic contaminants into an ecosystem, or a combination of the two. It is important to point out that the sustainable conservation of natural resources applies primarily to living resources. This is because the regeneration of most living resources is a phenomenon that does not require extremely long time horizons. The sustainable use of non-living resources, on the other hand, is a completely different matter because it does require extremely long time horizons. In most cases such time horizons may well be beyond the temporal scope of human survival.

When evaluating the environmental effectiveness of international environmental agreements the overarching conceptual framework is the same as that for evaluating institutional effectiveness. What differentiates the two, however, is the level of ecological criteria contained therein. For example, an integral part of assessing both institutional and environmental effectiveness is to examine the statutory content of the agreement within the parameters of clear environmental provisions, clear implementation provisions, and clear compliance provisions. However, the concept of environmental effectiveness necessitates that we inject additional environmental criteria into each of these parameters.

Let us take, for example, the statutory parameter of clear environmental provisions. Within this parameter it is not enough, from an environmental standpoint, to ask what is to be regulated and whether or not such regulation seeks to limit deductions or deposits to the environment. In determining whether or not the provision is environmentally effective we must also ask if the regulatory criteria are ecologically informed, meaning have relevant members of the scientific community played an active part in their formation. Such participation is commonly referred to as the engagement of an 'epistemic community,' or a community of scientific experts that assists in the formulation of public policy. However, because science is not immune to the influence of politics, we also need to inquire if the criteria codified in the agreement are truly grounded in ecological rather than just political considerations. Meaning, do the criteria contain ecological substance that transcends politics?

Also of concern is the timetable for realizing the dictates of the criteria. Does the agreement provide temporal guidelines for fulfilling its environmental provisions? If so, are such guidelines ecologically beneficial? If there are no temporal guidelines, then we need to consider what the potential ecological ramifications might be. A substantial time lag between the adoption and fulfillment of the agreement's provisions may ultimately prove to have negative environmental consequences, given that the scope and magnitude of environmental problems change over time. Today's environmental solution might be inadequate to address tomorrow's environmental problem.

Regarding clear implementation provisions, not only are we concerned with whether or not the agreement provides direction as to how the contracting parties are to implement (carry out) the accord, but we are also concerned as to the ecological comprehensiveness and timeliness of such direction. Meaning, are the provisions for implementation presented to the contracting parties in a way that requires them to implement the agreement in an environmentally expeditious and comprehensive manner? An important consideration here is not solely the speed and thoroughness of the implementation process, but the realization that such speed and thoroughness is paramount for achieving environmental improvement. Again, because the scope and magnitude of environmental problems change over time, a sense of temporal urgency needs to be incorporated into implementation provisions. Without this urgency the dimensions of an environmental problem might change before the parties have taken substantial action, thereby rendering what action they have taken moot.

As for compliance provisions, not only is the focus on whether the contracting parties are rigorously following the dictates of the compliance mechanisms, but also on whether the mechanisms themselves are ecologically informed. For example, do the mechanisms specify certain kinds of environmental data that the parties are to report? Do the mechanisms require the parties to file environmental reports at all? Do the deadlines for filing reports reflect environmental considerations rather than just political considerations? Meaning, are the contents of the reports and the time in which they are to be filed truly relevant for securing environmental protection? Or, are they nothing more than political window dressing?

Of further importance to the assessment of environmental effectiveness is to look at the actual implementation practices of the contracting parties. Here, we are concerned not only with the domestic and/or international actions that the parties have taken to translate the environmental provisions of the agreement into practice, but also whether or not they have done so in an ecologically comprehensive and ecologically timely. Have the parties taken comprehensive domestic action that is consistent with, or possibly goes beyond, the agreement's environmental provisions? Have they done so in a timely manner, or has there been a substantial time lag between the agreement's entry into force and full implementation? If there are international obligations, such as the formation of a scientific advisory committee or a Secretariat, have the parties met these commitments in a manner that reflects environmental considerations as well as political considerations?

These same kinds of questions are relevant when looking at the contracting parties' compliance with the agreement. Are the contracting parties rigorously following the dictates of the compliance mechanisms in an ecologically comprehensive and timely manner? Meaning, if the parties are required to file annual reports, do they contain all the relevant environmental data that the agreement calls for? Is the data accurate and current? Is any of it missing? Are the reports submitted on time? Are the parties engaging in both treaty monitoring and environmental monitoring? Is the behavior of the parties environmentally consistent with the agreement's compliance provisions?

A final step in assessing the environmental effectiveness of an international environmental agreement is to look at the actual ecological outcomes (or impacts) of the agreement. Is the agreement conserving natural (living) resources in a sustainable fashion? Has the agreement prevented or reduced deposits of anthropogenic contaminants into an ecosystem or ecosystems? Are anthropogenic contaminants being deposited into an ecosystem in a way that allows the ecosystem to 'cleanse' itself of the toxins? If conservation and/or contamination objectives have not been achieved, what factors have prevented this from occurring? Are the statutory provisions contained within the agreement adequate, especially the environmental criteria? Perhaps some of the parties have not implemented the terms of the agreement in an ecologically comprehensive and ecologically timely manner? Maybe the agreement's compliance mechanisms are ill equipped to accurately assess the environmental behavior of the parties? Or, maybe the parties are in violation of some or all of the agreement's environmental provisions, thereby negatively impacting the ecosystem and jeopardizing any chance for realizing the accord's conservation and/or contamination objectives?

To further clarify the discussion on environmental effectiveness a conceptual diagram is presented on the following page:

Figure one
A Conceptual Diagram of the Environmental Effectiveness of International Environmental Agreements

Negotiation and Adoption of Agreement

  1. number and type of parties
  2. length of time to negotiate agreement
  3. length of time to enter into force
  4. negotiation and entry into force, done in an ecologically comprehensive and ecologically timely manner

Statutory Content of Agreement
  1. clear regulatory provisions
    1. what is to be regulated
      1. deductions to environment
      2. deposits to environment
    2. are provisions ecologically informed?
      1. role of science
      2. grounded in ecological rather than just political considerations
  2. clear implementation provisions
    1. domestic requirements
      1. laws and/or regulations
      2. agency(ies) to administer agreement
    2. international requirements
      1. laws and/or regulations
      2. organization(s) to administer agreement
    3. ecologically comprehensive and ecologically timely
  3. clear compliance provisions
    1. treaty monitoring and environmental monitoring mechanisms
    2. verification procedures
    3. enforcement techniques
      1. reporting of violations
      2. determining responsibility
      3. sanctions
    4. provisions are ecologically comprehensive and ecologically timely

Implementation of Agreement

  1. domestic actions taken to translate environmental provisions into practice in an ecologically comprehensive and ecologically timely manner
  2. international actions taken to translate environmental provisions into practice in an ecologically comprehensive and ecologically timely manner
  3. are implementation practices environmentally consistent with letter and spirit of

Compliance with Agreement

  1. are compliance provisions being rigorously followed in an ecologically timely way?
  2. does actor behavior conform to environmental compliance provisions?
  3. are compliance practices environmentally consistent with letter and spirit of

Outcomes: Evidence Regarding Environmental Effectiveness

  1. conservation of living resources
  2. prevention/reduction of anthropogenic contamination
  3. is agreement effective or ineffective because of one of the factors above or some combination of them?
  4. additional considerations?

5. Consequences of the use of environmental effectiveness as a benchmark for environmental regimes

The use of environmental effectiveness for actual policy making in an international context has several important consequences. If the benchmark for effectiveness becomes ecological improvement, then an environmental logic has to be followed for such important issues as: timing, speed of implementation, the actors involved, the precautionary principle, the means needed to 'solve' the problem, the role of scientists, types of indicators developed and used, and the type of monitoring and sanctioning.

a. timing

Intimately connected to the definition of environmental effectiveness is the factor of time: the length of time taken to negotiate environmental agreements, the length of time taken to implement them, and the length of time it takes to see environmental impacts emerging from their operation. Treating time horizons as an integral part of effective environmental conventions has all too often been neglected in the effectiveness literature (Kutting 1998). Depending on the magnitude of the impact and the methods employed, certain forms of environmental degradation may indeed be irreversible 4 . Furthermore, the accumulation of non-biodegradable matter within natural ecosystems may ultimately (and very ironically) position humanity against the environmental demons it has created in the form of ever-increasing toxic and non-toxic waste streams in it is quest for modern, well-developed societies. Because of these potential outcomes, there is a certain degree of temporal urgency related to the concepts of institutional and environmental effectiveness:

on the institutional level, this means that the time frames of identification of the environmental problem in question—agreement formation, signature, ratifications, entry into force and finally implementation on various levels—and the speed with which this process is performed have an important bearing on both institutional and especially on environmental effectiveness (Kutting 1998:9).

Writing along the same lines as Kutting, Susskind (1994) posits that one of the primary reasons signed international environmental agreements produce little (if any) real improvement is because it often takes too long to reach agreement on the problem in an environmentally timely manner. This time lag produces situations whereby "environmental protection strategies that made sense when they were first proposed represent 'too little, too late' by the time they are implemented. The problem may have reached entirely new (and very different) proportions in just a few years" (Susskind 1994:14). What Susskind and Kutting are suggesting is that environmental agreements need to address environmental problems within real-time horizons (right here, right now). Pushing off such commitments to some future time-horizon will most likely produce inadequate agreements: what is relevant to fixing the problem now may be completely irrelevant in the future.

One of the interesting aspects of this new temporal framework of analysis is that regimes can move from the category of actor pleaser to the category of effective regime by allowing the institutional factors to play long enough over time. A good example of this phenomenon is the Ozone regime, which is by most standards a true actor pleaser but can be considered a true environmental failure at this moment in time. Nevertheless, the expectation put forward by the epistemic community in this field is that actor behavior modification will ultimately pay off through the restoration of the stratospheric ozone layer sometime in the next century.

b. actors

Our definition also influences which actors are to be involved in order to come to environmental effectiveness. Although the actors involved in any regime might be indeed modifying behavior in an institutionally effective way, this may be completely irrelevant in terms of environmental effectiveness, if their 'critical mass' is not enough to modify ecological degradation as a consequence of their modified behavior. This point emphasizes the importance of having the ecologically important actors on board. In light of the current global normsetting (regime building) on sustainable development, this includes the heavy weights from the third world such as India, China, Indonesia, Brasil and Nigeria. The importance of time lags is also important in terms of actor presence: even though certain actors might not be terribly important at a moment in time in a specific issue area, they might become very important consumers, producers or polluters in a foreseeable future which means that they are a key to future environmental effectiveness. Other critical actors might be producers (e.g. industrial groups and MNCs), IGOs, and NGOs. Their opportunity structure in the international arena needs to adapted to the demands of environmental effectiveness. For example, the tradition of asking MNCs to modify behavior in f.e. an OECD context might give nice institutional results, but may be totally insufficient from an environmental perspective if they move their activities abroad.

c. precautionary principle

Often mentioned in environmental policy making, the precautionary principle needs to be adopted in a more stringent and urgent way in light of environmental effectiveness. Indeed, the political/institutional use of the principle needs to take a number of ecological criteria into account. To explain this we may refer to chaos theory. Although regimes make actor behavior more predictable through the creation of convergence, they do not necessarily shed much light on, nor influence the dynamics or predictability of ecological processes. Chaos theory explains nicely how small changes in complex systems may disrupt the dynamics of such systems. Environmental effectiveness as a benchmark requires, therefore, that even fewer risks be taken.

An additional point is linked to the irreversibility of certain processes of environmental destruction. Certain forms of degradation are indeed fatal in the sense that they signify an endpoint: examples include desertification, soil erosion, loss of biodiversity. This irreversibility, which makes environmental politics rather different from issue areas such as the economy or even security issues, prompts actors to act sooner and more decisively (i.e. with more precaution) if they want to meet the standards set by environmental effectiveness.

d. means invested

Modification of actor behavior can be costly (e.g. the whole transportation and CO2 debate). However, modifying the processes of environmental degradation to the extent that environmental success or effectiveness is reached can be even more costly. Restoration of ecological damage tends to be extremely expensive and may take a period of sustained investment that exceeds the investment in time needed to change actor behavior. The Exxon Valdez oil spill can serve as an example here. If we take environmental effectiveness as a standard, a prolonged investment of many more years will be necessary.

e. monitoring

Monitoring will have to be of two kinds, treaty monitoring and environmental monitoring. This will have an impact on what is being monitored, who is doing the monitoring (e.g. the contracting parties, IGOs, NGOs, etc.), the intensity and frequency of the monitoring, the priorities over what to monitor and what not to monitor, and finally, the costs of monitoring.

f. sanctioning

Sanctioning will have to be refocused in terms of causality (e.g. to sanction because of a lack of behavior modification or an inability to reach environmental standards) and in nature (economic or other penalties). It is obvious that sanctioning will only be effective if the link between the sanction and the environmental effectiveness can be demonstrated. Since sanctioning is by its very nature a complex and controversial policy instrument, the ways in which sanctions should be applied for environmental transgressions will require much more inquiry and debate.

In sum, working with our definition of environmental effectiveness changes the agenda, the players, the stakes, the timing of regime formation, and its subsequent operational dynamics. It also prevents the type of premature enthusiasm expressed by many actors based on institutional success.


6 Case Study: The Madrid Protocol

The Protocol on Environmental Protection to the Antarctic Treaty (otherwise known as the Madrid Protocol) was opened for signature on October 4, 1991 and entered into force on January 14, 1998. The Protocol contains a Preamble, forty articles (of which thirteen comprise a schedule for the arbitration of disputes), and four annexes covering environmental impact assessment (Annex I), conservation of Antarctic fauna and flora (Annex II), waste disposal and waste management (Annex III), and the prevention of marine pollution (Annex IV) 5 . A fifth annex covering area protection and management was approved by the Consultative Parties (CPs) at the 1991 ATCM as Recommendation XVI-10 in accordance with Article IX.2 of the Protocol 6 . However, Annex V has yet to enter into force as six of the Consultative Parties (CPs) have not formally approved the agreement. A sixth annex on liability for damage to the Antarctic environment has been under negotiation since November of 1993. However, none of the working drafts produced thus far have met with approval by all of the CPs.

The Preamble

The Preamble of the Protocol contains a number of general objectives. Among these are: the "need to enhance the protection of the Antarctic environment and dependent and associated ecosystems;" an acknowledgment of the "unique opportunities Antarctica offers for scientific monitoring of and research on processes of global as well as regional importance;" the realization that "the development of a comprehensive regime for the protection of the Antarctic environment and dependent and associated ecosystems is in the interest of mankind as a whole;" and the desire to "supplement the Antarctic Treaty..." (Preamble, Madrid Protocol). Thus, the mission of the Protocol is to build upon the legacy of the Antarctic Treaty and its body of previous ATCM environmental recommendations 7 .

The Geographic Delimitation of the Madrid Protocol

The Protocol is delimited to the area south of 60 degrees South Latitude (including all ice shelves), thereby staying consistent with the territorial ambit of the Antarctic Treaty (Article I (2)). However, this delimitation has not been without some controversy. Some NGOs have argued that if the Protocol is to be a truly comprehensive environmental document then its delimitation must not be set at 60 degrees South Latitude, but rather at the Antarctic Convergence. The Antarctic Convergence is the biophysical oceanic dividing line between the Southern Ocean and its northern tributaries (Atlantic, Pacific and Indian oceans) 8 . ASOC writes:

The Protocol maintains the Antarctic Treaty area, south of 60 degrees South latitude, as its application. Simply stated, these boundaries are ecologically arbitrary. Given the importance of the Southern Ocean to the Antarctic ecosystem as a whole, it is insufficient for the Protocol to protect only marine ecosystems within a specified range, as opposed to the entire Southern Ocean. Indeed, for the Protocol to live up to its principle of protecting the Antarctic's 'dependent and associated ecosystems,' the Protocol' area of application should extend as far north as the Antarctic Convergence (ASOC 1991:3) 9 .

Proposing a similar argument, the IUCN claims that any new measures negotiated for the protection of the region's environment should embrace "the Antarctic continent and surrounding ice shelves and ocean out to the Antarctic Convergence zone, and the Subantarctic islands within that zone..." (IUCN 1991:10).

Obligations to Limit Biological Deductions to the Antarctic Environment

Annex II: Conservation of Antarctic Fauna and Flora

Annex II of the Protocol covers the conservation of Antarctic fauna and flora. Its nine articles and three short appendixes closely mirror those originally spelled out in the 1964 Agreed Measures for the Conservation of Antarctic Fauna and Flora. Like the Agreed Measures, Annex II prohibits the taking or harmful interference with native fauna and flora except in accordance with a permit (Article 3). A noticeable improvement in Annex II is that the definition of harmful interference extends beyond native fauna (as in the Agreed Measures) to include native flora and invertebrates. The Annex also includes provisions for the listing and taking of Specially Protected Species (Article 3 (4) and Appendix A) and for the introduction of non-native species, parasites, and diseases (Article 4 and Appendixes B and C). Noticeably absent from Annex II is any mention of Specially Protected Areas (SPAs), which were originally included in the Agreed Measures. SPAs and SMAs (Specially Managed Areas) are now covered in Annex V of the Protocol.

Annex V: Area Protection and Management

Annex V of the Protocol enshrines the system of Specially Protected Areas (SPAs) previously provided for in Article VIII of the Agreed Measures. Furthermore, it simplifies the system of protected areas by defining a new category of protection, Antarctic Specially Managed Areas (SMAs).

SPAs are designated "to protect outstanding environmental, scientific, historic, aesthetic, or wilderness values, any combination of those values, or ongoing or planned scientific research" (Article 3 (1)). SMA's are designated "to assist in the planning and co-ordination of activities, avoid possible conflicts, improve co-operation between Parties or minimize environmental impacts" (Article 4 (1)) SMAs may include areas where activities pose risks of mutual or cumulative environmental impacts and/or sites and monuments of historic value (Article 4 (2) (a-b)). Thus, both types of areas can serve to limit biological deductions and anthropogenic deposits to the Antarctic environment. Having said this, SPAs have traditionally been delimited to protect native fauna and flora.

What is perhaps most encouraging about Annex V is that it lays out extensive guidelines for the preparation of management plans for the designation of both SPAs and SMAs. These plans are to include: a description of the value(s) for which special protection or management is required; a statement of the aims and objectives of the management plan management activities to be undertaken to protect the site's value(s); a period of designation; a description of the area; maps and photographs of the area; conditions under which permits may be granted (if site is an SPA); restrictions on materials and organisms which may be brought into the area; the taking or harmful interference with fauna and flora; the disposal of waste; and, "requirements for reports to be made to the appropriate authority regarding visits to the area" (Article 5, paragraph 3).

However, Article 5 also contains a major caveat courtesy of the words 'as appropriate,' which are located in paragraph three. Because of these words, a contracting party is not specifically obligated to address within its management plan all of the criteria articulated in Article 5. Rather, it allows a party to include only those things it deems appropriate for the management of the site.

Provisions to Limit Anthropogenic Deposits to the Environment

Annex III: Waste Disposal and Management

Annex III of the Protocol addresses anthropogenic contamination within the Antarctic Treaty area, specifically waste disposal and waste management. In terms of substance, the Annex is a very noticeable and much needed improvement over past ATCM Recommendations dealing with waste disposal practices, such as the "Code of Conduct for Antarctic Expeditions and Station Activities" appended to Recommendation VIII-11. This being said, the linguistic content of the Annex is chock full of qualifiers, which reduce its ecological stoutness.

Article 1 sets out general obligations that aim to reduce the amount of wastes that are produced or disposed of in the Treaty area. However, it is peppered with qualifiers such as 'as far as practicable,' 'shall be essential considerations,' and 'to the maximum extent practicable.' Article 2 calls on the parties to remove a number of different types of waste from the Treaty area, provided that they were the generators of that waste. Among the wastes to be removed are: radioactive materials; batteries; liquid and solid fuel; toxic wastes; poly-vinyl chloride (PVC), polyurethane foam, polystyrene foam, rubber, lubricating oils, and other products that could produce harmful emissions if incinerated; all other plastic wastes except such things as bags for storing wastes; fuel drums; and other solid, non-combustible wastes (paragraph 1). However, the requirement to remove fuel drums and solid, non-combustible wastes "shall not apply in circumstances where the removal of such wastes by any practical option would result in greater adverse environmental impact than leaving them in their existing locations" (paragraph 1 (h)). Furthermore, liquid wastes not covered in paragraph one of Article 2, as well as sewage and domestic liquid wastes "shall, to the maximum extent practicable, be removed from the Antarctic Treaty area by the generator of such wastes" (paragraph 2). Finally, and perhaps paradoxically, the parties are obligated to remove only those wastes identified in Article 2 generated after Annex III enters into force. This means that the parties are under no obligation to remove any of the waste materials identified in Article 2 that may have accumulated in the Antarctic prior to the entry into force of the Protocol in 1998 10 .

Article 3 addresses the disposal of waste by incineration. It allows for combustible wastes (other than those referred to in Article 2 (1) and which are not removed from the Treaty area) to be burned in incinerators which "to the maximum extent practicable" reduce harmful emissions. However, Johnston and Stringer argue that "failing significant advances of incinerator design, the size of plant suitable for Antarctic operation is...likely to give rise to substantial emissions of environmentally significant materials" (1989:11-12).

Article 4 prohibits the disposal of waste onto ice-free areas or into fresh water systems. Sewage and other domestic liquid wastes not removed from the Treaty area "shall, to the maximum extent practicable, not be disposed of onto sea ice, ice shelves, or the grounded ice sheet..." (paragraph 2, emphasis added). Furthermore, wastes generated at field camps "shall, to the maximum extent practicable, be removed by the generator of such wastes to supporting station or ships for disposal in accordance with this Annex" (paragraph 3, emphasis added).

Article 5 addresses wastes disposed of into the sea. It calls on the parties to take account of "the assimilative capacity of the receiving marine environment" when discharging sewage and domestic liquid waste into coastal waters (paragraph 1). However, this is only to be done provided that "such discharge is located, wherever practicable, where conditions exist for initial dilution and rapid dispersal" (paragraph 1 (a), emphasis added). Furthermore, the Article obliges parties to treat large quantities of waste with at least primary means (e.g. maceration), but only if such waste is "generated in a station where the average weekly occupancy over the austral summer, is approximately 30 individuals or more"(paragraph 1 (b), emphasis added). This means that during the Antarctic winter, spring and fall, stations which house more than 30 occupants (e.g. USA's McMurdo Station) are under no obligation to treat their wastes, even by primary means.

As for prohibited substances, Article 7 forbids the introduction of "polychlorinated biphenyls (PCBs), non-sterile soil, polystyrene beads, chip or similar forms of packaging, or pesticides (other than those required for scientific, medical or hygiene purposes...onto land or ice shelves or into water in the Antarctic Treaty area." However, the Article is mute regarding the incineration of these substances within the Treaty Area.

Articles 8 through 10 cover waste management planning. Article 8 obliges the parties to classify their waste into five different categories: sewage and domestic liquid wastes (group 1); additional liquid wastes and chemicals including fuels and lubricants (group 2); solids to be combusted (group 3); additional solid wastes (group 4) and radioactive material (group 5). Such classification is to be used as a "basis for recording wastes and to facilitate studies aimed at evaluating the environmental impacts of scientific activity and associated logistic support" (paragraph 1).

Article 9 directs the parties to include waste management plans in their annual exchanges of information in accordance with Articles III and VII of the Antarctic Treaty, and various ATCM Recommendations. Lastly, Article 10 calls on the parties to designate a waste management official to develop and monitor waste management plans.

While Annex III is unquestionably a giant step forward for the Consultative Parties in terms of regulating waste disposal in Antarctica, its inclusion of so much qualifying language greatly reduces its ecological stoutness. Long-time Antarctic observer Francisco Orrego Vicuna offers a terse summary of the problems within Annex III:

...a number of provisions are excessively vague, relying on the very soft language of compliance 'to the maximum extent possible' or simply being entirely imprecise as to scope and extent. Furthermore, many exceptions have been accepted, and enforcement again is mostly discretionary (1996:194).

Implementation Provisions under the Protocol

There are a number of implementation provisions within the Protocol. However, most of these are articulated in rather general terms. For example, Article 5 calls on the parties to ensure the achievement of the objectives and principles of the Protocol. It also beseeches the parties to do so in ways that does not impinge upon the operation of other ATS agreements.

Article 6 engages the parties to undertake cooperative endeavors. To this end the parties are to provide assistance to one another in the preparation of EIAs; provide information (upon request) on potential environmental hazards, as well as assistance to minimize the environmental effects of accidents; consult each other on the choice of sites for erecting scientific stations; and, where appropriate, initiate joint expeditions and share the use of stations and other facilities.

Article 10 stipulates that the CPs will, at the annual ATCM, define (in accordance with the Protocol) "the general policy for the comprehensive protection of the Antarctic environment and dependent and associated ecosystem..." (paragraph 10 (1) (a)). The ATCM will also serve as the forum for adopting additional measures for the implementation of the Protocol.

Article 11 establishes the Committee for Environmental Protection (CEP). However, the Article does not provide a timetable for either the formation or implementation of the institution. It also does not address the question of financial contributions to support the operation of the CEP. Because the function of the CEP is to provide advice and formulate recommendations to the CPs in connection with the Protocol's implementation (Article 12), one would assume that such work would require financial support from the member-states. Among the CEP's duties are reviewing EIAs, providing guidance on the protected area system, analyzing inspection procedures, and collecting, archiving, exchanging, and evaluating information (Article 12).

Article 15 obligates the parties to implement emergency response plans for accidents that threaten the Antarctic environment. Although the parties are to cooperate in the formulation and execution of these plans, as well as jointly respond to environmental emergencies, no mention is made of the types of equipment, or the quantities of equipment, to be drawn upon in the event of such an emergency. Furthermore, there is no mention of who is going to provide the equipment.

Perhaps the most specific implementation provisions within the Protocol revolve around Article 3, paragraph 2, which obligates the parties to conduct environmental impact assessments (EIA) prior to undertaking logistical, scientific, or tourism operations in the region (Article 3 (2) (c)). This obligation is also restated in Article 8. The Protocol also mandates that any activities undertaken by the CPs will be planned so as to accord priority to scientific research (Article 3 (3)). However, this raises vexing questions about the aesthetic worth of Antarctica to the Consultative Parties, and whether or not such worth will ultimately be compromised in the name of science.

Annex II prohibits the taking or harmful interference of Antarctic wildlife except in accordance with a permit (Article 3 (1). Furthermore, each party is to limit the number of permits issued so that only small numbers of fauna and flora are killed, and in no case more than can be normally replaced by natural reproduction during the following breeding season (Article 3 (3) (b). Finally, the parties are to restrict the issuance of permits so that "the diversity of species, as well as the habitats essential to their existence, and the balance of the ecological systems existing within the Antarctic Treaty are maintained" (Article 3 (3) (c)).

Annex III calls on the parties to implement a waste management plan and to review and update it annually (Article 8 (2)). Each party is also charged with designating a waste management official to develop and monitor the waste management plan (Article 10 (a)). Furthermore, each party is to "ensure that members of its expeditions receive training designed to limit the impact of its operations on the Antarctic environment and to inform them of the requirements of this annex" (Article 10 (b)).

Finally, Annex V obligates each of the parties to issue permits to enter and engage in activities within an SPA (Article 7 (1)). Such permits are to be issued in accordance with the requirements of the management plan for that area. Finally, each party is to require the permit-holder to carry a copy of the permit while in the SPA concerned (Article 7 (3)).

Compliance Procedures under the Protocol

Treaty Monitoring Mechanisms

Article 13 compels each party to ensure its compliance with the Protocol. It obligates each party to take appropriate measures within its competence to ensure compliance with the Protocol. Each Party shall also draw the attention of all other Parties to any activity which, in its opinion, affects the implementation of the Protocol. The ATCM shall draw the attention of any state that is not a party to the Protocol to any activity undertaken by that state which affects the implementation of the Protocol. (paragraph 5). Lastly, each party is to exercise appropriate efforts, consistent with the UN Charter, to ensure that individuals are complying with the Protocol (paragraph 2).

As for procedures to actually assess compliance, there are a number of mechanisms. First is the annual exchange of information requirement under Article 17, which obligates the parties to report on steps taken to implement the terms of the Protocol. However, this mechanism is problematic in that the parties self-report their own information.

A second mechanism is the on-site inspection process spelled out in Article 14. What is most noticeable about Article 14 is that the procedures for carrying out inspections are practically identical to those laid out in the Antarctic Treaty; namely, the CPs inspect each other. However, there are three new additions to the inspection process under the terms of the Protocol. One is that any observer (not just the national of the party conducting the inspection) can be part of an inspection team provided that the individual has been granted prior approval by the ATCM (paragraph 2 (b)). Second, inspection reports are to be circulated not only to the parties, but also to the CEP and to the public (paragraph 4). Finally, the parties can undertake both individual and collective inspections.

A third mechanism is the liability clause spelled out in Article 16 of the Protocol and its potential for holding a party (or parties) legally responsible for environmental transgressions in Antarctica. Although the completion of a liability annex to the Protocol has yet to materialize, nonetheless a stringent liability annex could serve as a powerful incentive for the Consultative Parties to be ever vigilant as they carry out their work in Antarctica.

Finally, the Protocol provides an enforcement mechanism through the process of arbitration. Article 19 allows one or more of the parties to take complaints before either the International Court of Justice or an Arbitral Tribunal to seek redress over disputes concerning the interpretation of Articles 7 (mining prohibition), Article 8 (EIA), Article 15 (emergency response action), and the provisions of the Annexes. One or more of the parties can also bring complaints over Article 13, which obligates the parties to comply with the terms of the Protocol.

The Arbitral Tribunal, at the request of any party to a dispute, has the authority to prescribe any provisional measures to prevent serious harm to the Antarctic environment. However, the timetable for invoking such emergency measures is quite lengthy. Parties to a dispute have up to 42 days to appoint three arbitrators. Following such appointments, the Arbitral Tribunal can take up to two months to enact emergency measures. Such extensive time-horizons raise serious questions about the utility of the Tribunal and its provisional measures in the wake of a serious environmental accident.

The Arbitral Tribunal is also granted the power to bring punitive sanctions against one or more offending parties under Articles 10 and 11. However, Article 10 stipulates that the tribunal can only hand down binding judgments if the parties to the dispute so agree. A major caveat to be sure, but unfortunately a very common caveat within the field of international law.

Environmental Monitoring Mechanisms

Under the Protocol there are basically three types of mechanisms for monitoring the health of the Antarctic environment. The first is the annual exchanges of environmental information called for in Article 6 of Annex I, Article 6 of Annex II, Article 9 of Annex III, and Article 10 of Annex V. Again, each party self-reports this information.

Exchanges of information are also to occur under Article 11 of Annex III and Article 6 of Annex V. In the former case the entire annex is subject to regular review. However, no timetable is presented as to when such reviews are to occur, nor is there any mention of the participants to be involved in the review process 11 . In the latter case, management plans for SPAs and SMAs are to be reviewed at least every five years and updated as necessary. Furthermore, management plans are to be promptly circulated by the depositary government (USA) to all parties.

The second mechanism is the EIA procedures spelled out in Annex I. One of the annex's shortcomings, however, is its unclear terminology. Phrases such as, "less than a minor or transitory impact," "minor or transitory impact," or, "more than a minor or transitory impact," provide ambiguous guidelines as to when a proposed project shall go forth. ASOC comments that "without an accepted, system-wide interpretation of these thresholds, implementation of EIA procedures will vary widely from Party to Party (1991:5).

The Annex lays out three stages of environmental evaluation for proposed Antarctic activities: preliminary stage; Initial Environmental Evaluation (IEE); and Comprehensive Evaluation (CEE). At the preliminary stage, if a proposed activity is determined as having less than a minor or transitory impact on the Antarctic environment then the activity may proceed forthwith (Article 1 (2)). However, if the activity has not been determined to have less than a minor or transitory impact then an IEE shall be prepared. Article 2 mandates that the IEE "shall contain sufficient detail to assess whether a proposed activity may have more than a minor or transitory impact" on the Antarctic environment (paragraph 1) 12 . If the IEE indicates that the proposed activity is likely to have no more than a minor or transitory impact then it may proceed "provided that appropriate procedures, which may include monitoring, are put in place to assess and verify the impact of the activity" (paragraph 2, emphasis added). There is no explicit requirement to undertake environmental monitoring with an IEE.

If an activity will have more than a minor or transitory impact then a CEE is to be prepared. The preparation of a CEE is a much more extensive environmental undertaking and is to include: a description of the proposed activity, including the alternative of not proceeding; a description of the initial environmental reference state; a description of the methods and data to be used to forecast the impacts of the proposed activity; consideration of possible direct or indirect second-order effects; consideration of cumulative impacts; identification of measures, including monitoring, to detect unforeseen impacts; and, the identification of unavoidable impacts of the proposed activity (Article 3 (2)). The draft CEE shall also be made available for public comment for a period of ninety days. It is also to be forwarded to the CEP for review, which shall then send it to the ATCM for final comment. However, the final decision as to proceed or terminate the proposed activity ultimately rests with the party proposing the project:

Final decisions on CEEs...cannot be taken until the CEE has been considered by the ATCM. This provision falls short of giving the ATCM, the Committee, or other Parties the power to cancel a proposed activity of another Party should that activity appear to have an unacceptable environmental impact. This means that even if the ATCM (or another entity) advises against the proposed activity on environmental grounds, the Party is not barred from proceeding with the controversial activity...This is a major weakness of the Protocol (ASOC 1991:6, emphasis added).

The third mechanism is the execution and assessment of environmental monitoring programs. Article 3 (2) (d) of the Protocol obligates the parties to engage in "regular and effective allow [for] assessment of the impacts of ongoing activities, including the verification of predicted impacts." Furthermore, such monitoring is to "facilitate early detection of the possible unforeseen effects of activities carried on both within and outside the Antarctic Treaty area on the Antarctic environment and dependent and associated ecosystems" (Article 3 (2) (e)). Finally, Article 5 of Annex I also calls on the parties to put in place monitoring procedures for assessing and identifying the impact of any activity that proceeds following the completion of a CEE.

The Institutional and Environmental Effectiveness of the Protocol

Perhaps the most glaring shortcoming of the Protocol thus far has been the failure of many of the parties to vigorously implement the accord. This has seriously hampered both the institutional and environmental effectiveness of the agreement. As of mid-1999, only 11 of the 27 Consultative Parties have enacted domestic implementing legislation (see table two on the next page). Thus, 16 Consultative Parties still need to enact legislation articulating how the Protocol's requirements will be implemented and enforced domestically. Such inaction on the part of many of the parties raises questions about their level of commitment to the Protocol, both from an institutional and an environmental standpoint.

With respect to the former, the lack of implementation hampers the operation of the agreement. Be it the issuance of permits for taking fauna and flora, the formulation and execution of management plans for SPAs and SMAs, or undertaking EIAs to determine the potential impact of proposed projects, the lack of implementation greatly reduces the institutional effectiveness of the accord. As for the latter, the lack of implementation makes it difficult, if not impossible, to meet the environmental standards of the Protocol. The failure to meet such standards negatively impacts the parties' individual, and collective, abilities to conserve the living resources of the region and reduce (or prevent) levels of anthropogenic contamination. Temporally speaking, the longer it takes the parties to implement and comply with the agreement, the longer it takes them to correct the environmental problems of the past and the present. Such inaction may also make it more difficult to address future environmental challenges as current delays allow the problems to compound over time. Such delays may ultimately render the content of the Protocol moot: what was relevant to fixing the environmental problems of the region in 1991 may not be relevant in the year 2000, or beyond.

Present Environmental Impacts of the Protocol: Select Examples

In the interest of space, a few select examples of the Protocol's environmental impacts thus far are now presented. We will introduce evidence on the parties' attempts to conserve the living resources of the region, and on their efforts to reduce (or prevent) levels of anthropogenic contamination.

Taking or Harmful Interference with Antarctic Wildlife (Article 3 of Annex II)

A number of relatively recent findings by ASOC and Greenpeace indicate that some of the CPs have yet to take any substantial action to implement the terms of Article 3. Indeed, much of the behavior documented by these NGOs is reminiscent of the period during which the Agreed Measures were in force (1960s-1991).

For example, in 1992 ASOC discovered at Australia's Mawson station that base personnel were trampling moss and lichen beds located to the south of the station. Furthermore, the presence of numerous sledge dogs at the station led to the frequent deaths of Adelie penguins during the summer months. According to ASOC: "Because of the particularly warm weather, the dogs were chained further away from the station than usual, toward West Arm. At this time of year, Adelie penguins reportedly stray regularly into the dog lines, and four to eight are killed weekly" (quoted in Greenpeace1992:11) 13 . Such destruction of flora and fauna directly contravenes Article 1 of Annex II.

Table 2
Ratification and Implementation of the Protocol by the CPs
Country Date of Ratification Implementing Legislation
Argentina October 28, 1993 No
Australia April 6, 1994 Yes
Belgium April 26, 1996 Yes
Brazil August 1995 No
Bulgaria April 21, 1998 No
Chile January 11, 1995 No
China August 5, 1994 No
Ecuador January 4, 1993 No
Finland October 23, 1996 Yes
France February 5, 1993 No
Germany November 25, 1994 Yes
India April 26, 1996 No
Italy March 31, 1995 No
Japan December 15, 1997 Yes
The Netherlands April 15, 1994 Yes
New Zealand December 22, 1994 Yes
Norway June 16, 1993 Yes
Peru March 8, 1993 No
Poland September 23, 1995 No
Russia May 1997 No
South Africa August 10, 1995 No
South Korea January 2, 1996 No
Spain July 1, 1992 No
Sweden March 30, 1994 Yes
United Kingdom April 25, 1995 Yes
United States April 17, 1997 Yes

SOURCE: ASOC 1998; ATCPs 1998a; The Antarctica Project 1999.

In 1993, a Greenpeace inspection team recorded Brazilian helicopters "buzzing bird colonies on Ardley Island, flying below 200 meters and thus breaching the area's management plan which expressly forbids such overflights" (Greenpeace 1994b:12). Ardley Island was designated by the Consultative Parties as a Site of Special Scientific Interest (SSSI) in 1991 with the approval of ATCM Recommendation XVI-2. In the site's management plan it states quite clearly that "helicopters should not land on or overfly the island below 300 [meters] altitude" (in Heap 1994:2237).

In 1994, Greenpeace declared that the southern giant petrel, the largest flying bird in the Antarctic proper, "has the dubious distinction of being the most threatened bird in the Antarctic Treaty Area" (Greenpeace 1994a:33). The decline of these birds stems from humans interfering with petrel nesting sites on ice-free land-land on which the birds breed and raise their young. Subsequently, Greenpeace argues that not only should the establishment of stations and corresponding activities not be permitted near giant petrel breeding colonies, but that all such colonies, particularly those on continental Antarctica, should receive formal protection (Greenpeace 1994a).

In 1995, a Greenpeace inspection team visiting China's Great Wall station found that human activities at the base constantly disturb the nesting habits of Antarctic terns. In addition, the team noticed that native flora found adjacent to the station had also been severely impacted. For example, a number of rather large moss beds within the perimeter of the base, which had been protected with signs by base personnel until the 1990/91 season, have been almost totally destroyed (Greenpeace 1995). Among the factors contributing to this destruction is the erection of two buildings (both constructed in 1993) directly on top of the moss, a number of fuel spills, and the storage of empty fuel drums on the beds (Greenpeace 1995).

Limiting the Introduction of Non-Indigenous Species, Parasites and Diseases (Article 4 of Annex II

Contracting parties can bring non-indigenous life forms into the Antarctic provided that permits have been issued for such activity to take place. However, the introduction of non-native life forms into the region continues to be a growing problem. Be it canine viruses, avian diseases, or the growth of exotic flora, the types of non-indigenous life-forms being introduced into the environment south of 60 degrees South Latitude by national Antarctic programs continues to increase at an alarming rate 14 . Such behavior suggests that the parties' have yet to implement rigorous measures to prevent these introductions from occurring.

For example, an information paper tabled by the Australian delegation at ATCM XXI (1997) contained disturbing scientific findings on Infectious Bursal Disease Virus (IBDV). A team of researchers, working in the vicinity of Australia's Mawson station during the austral summer seasons of 1994/95 and 1995/96, discovered that Adelie and emperor penguins had been exposed to IBDV (ATCPs 1997d). The disease, which is a highly resistant poultry virus that spreads rapidly, can cause immune deficiency and/or death in chicks (IUCN 1998). According to the Australian Antarctic Division, the biological significance of IBDV in the two species is not known at this stage. However, the AAD believes that "the impact of this disease in an immunologically naive population of birds could range from reduced productivity of the birds to local extinction of the species" (ATCPs 1997d:1, emphasis added).

Perhaps more importantly, the research team believes that the presence of IBDV in penguins indicates that the disease is spread by human activity (Gardner 1997). They argue that a potential source of contamination,

could be from careless or inappropriate disposal of poultry products, allowing access by scavenging birds such as the south polar skua....[The] spread [of IBDV] within Antarctica could [also] be facilitated through the movement of people carrying the virus on contaminated footwear, clothing, equipment or vehicles (Gardner et al. 1997:245).

The researchers also believe that "the potential for expeditioners and tourists to be vectors of disease as they move around Antarctica may pose the greatest threat yet to its avian fauna" (Gardner 1997:245).

In 1998, the International Union for the Conservation of Nature and Natural Resources (IUCN) documented a host of micro and macro-organisms being brought into the Antarctic in contravention of the Protocol. Among the life forms that have intentionally been brought to Antarctica in contravention of Annex II include cats, dogs, budgerigars, and tropical fish (IUCN 1998). 'Accidental' introductions to the region include cockroaches, invertebrates carried in vegetables, rats and mice (IUCN 1998). Moreover, at least one national operator reportedly used native mosses as part of the growth medium for a vegetable garden at a scientific station (IUCN 1998a). The problem of non-native species introduction has gotten so bad that the Australian Antarctic Division conducted an international workshop aimed at identifying and developing proposals "to reduce the risk of such introductions and limit the consequences of the establishment or spread of disease" (ATCPs 1998b:1).

Disposing and Recycling Waste Out of the Antarctic

According to Greenpeace, one of the most noticeable changes among national Antarctic programs over the past few years is a growing awareness of environmental issues (1997a). "If such a thing as a Greenpeace awareness index could be imagined, where points are gained for awareness of correct answers to the types of questions Greenpeace asks, then stations are unquestionably scoring much higher than they used to" (1997a:1). However, this comment needs to be tempered to some degree. For one thing, Antarctic research stations continue to have a direct, and sometimes severe, impact on the region's environment (Greenpeace 1997a). Furthermore, ASOC and Greenpeace believe that the Protocol is deficient in the areas of sewage disposal, waste incineration, and limiting the proliferation of research stations (Greenpeace 1997a). Moreover, they are suspicious about the claims made by some national operators regarding their respective implementation of Annex III: "we suspect that in several cases actual practice falls short of stated practice" (Greenpeace 1997a:1). Nonetheless, some Antarctic programs are making changes consistent with Annex III of the Protocol; changes that are having a positive impact reducing levels of anthropogenic contamination.

For example, at the USA's McMurdo station waste is collected, labeled, packaged, and removed to approved disposal sites outside the Treaty area (National Science Foundation, Office of Polar Programs 1994) 15 . The Australian Antarctic Division has devised a "waste management hierarchy" for regulating the disposal of anthropogenic pollutants generated at its scientific stations. This hierarchy is built upon seven management priorities encompassing waste avoidance, waste reduction, the reuse of waste, recycling or waste reclamation, waste treatment, waste disposal, and, remediation or rehabilitation (Australian Antarctic Division 1994). Similar situations have been observed at New Zealand's Scott Base, South Korea's King Sejong station, and the U.K.'s Rothera station.

However, other national operators have been slow to prepare and implement waste management plans. Poland's Arctowski station has been accused of being woefully inadequate in implementing the Annex's waste management guidelines (Greenpeace 1995). One of the biggest problems at the base is the inadequate separation and classification of waste as required under Article 8. Domestic wastes (e.g. wastes generated in the living quarters and the kitchen) are lumped unsorted into plastic bags and incinerated; scrap metals consisting of aluminum, copper and brass are stored haphazardly in miscellaneous barrels; and, food scraps are accessible to animals (Greenpeace 1995). At China's Great Wall station, waste is separated into organics, burnables, and "other" matter, which is stored away in an old dump. Organic waste is thrown into the sea, including poultry pieces and other leftover food items (Greenpeace 1995). Such behavior directly contravenes Annex II, Appendix C (1) of the Protocol, which states: "Any poultry or parts not consumed shall be removed from the Antarctic Treaty area of disposed of by incineration or equivalent means that eliminates risk to native flora and fauna." Greenpeace has also documented a number of unmarked metal drums leaking "a yellowish, sulfur-smelling liquid" which were contaminating patches of ground "approximately one square meter under each drum" (1995:50).

Finally, the new 'Ecology Complex' at Russia's Bellingshausen station, which was constructed to centralize the processing of waste (opened in October 1994), is not operating in compliance with the Protocol (Greenpeace 1995). Infractions at the complex include: the haphazard sorting of waste into unmarked containers; the random deposition of waste around the base in 200-liter drums; the continued operation of a terrestrial waste dump that covers over rich moss beds; and, the incineration of substances proscribed under Annex III (Greenpeace 1995). Not only is the station burning material prohibited under the Annex, but it also is not meeting its obligation to clean up past and present waste disposal sites on land (Article 1 (5)).

Incineration of Waste in Antarctica

The incineration of waste is widely practiced in the Antarctic by national operators. The most common form of incineration used by the Consultative Parties over the past four decades has been that of open burning. Such practice entails placing a pile of rubbish on the ground, or in a container such as an empty fuel drum, and setting it alight with the help of a flammable liquid such as diesel fuel or kerosene. Common by-products of this disposal method include the incomplete burning of material, the scattering of ashes courtesy of Antarctic winds, and the release of potentially toxic emissions. Annex III mandates that all open burning must be phased out as soon as practicable, but in any event not later than the end of the 1998/99 season (Article 3 (2)) 16 .

However, such findings have not deterred many national operators from relying on incineration as an integral part of their waste disposal strategy. Greenpeace claims that a number of stations are in violation of the Protocol by incinerating substances which are banned from the Treaty area under Annex III. These banned substances include polychlorinated biphenyls (PCBs), non-sterile soil, polystyrene beads and/or other similar forms of packaging, and pesticides (other than those required for scientific, medical or hygienic purposes).

For example, Greenpeace found that at Chile's Presidente Eduardo Frei station, items such as medical syringes, medical waste, plastic bottles, treated wood, and oily rags were burned in an unsophisticated one-stage incinerator with neither temperature controls nor emission filters (Greenpeace 1995). In addition, the station does not monitor the content of the incinerator's emissions.

At Poland's Arctowski station, Greenpeace documented the burning of materials such as treated timbers, fiberglass, oil cans, even a plastic car visor. More problematic, from an environmental standpoint, is the fact that these objects were being burned inside an old brazier constructed of "flattened fuel drums welded and wired together to from a burn chamber and a chimney" (1995:72). Such a contrivance, obviously, is devoid of either emission filtration equipment or monitoring devices.

Finally, Russia's Bellingshausen station has been accused by Greenpeace of burning "all sorts of 200 liter drums randomly distributed throughout the base" (1995:83). Among the prohibited substances subject to open burning are different kinds of plastics, as well as various rubber products (Greenpeace 1995).

Disposal of Waste on Land in Antarctica

Article 4 of Annex III states explicitly that waste not removed from the Treaty area, or which has not been subject to incineration under the terms of Article 3, "shall not be disposed of onto ice-free areas or into fresh water systems" (paragraph 1). It further states that sewage and other liquid wastes shall not, to the maximum extent practicable, "be disposed of onto sea ice, ice shelves or the grounded ice-sheet" (paragraph 2). Nonetheless, national Antarctic programs have frequently been in violation of the terms of Article 4.

At the Brazilian station Comandante Ferraz sewage is first treated in three settling tanks and then "seeps down to the sea at the beach front" (Greenpeace 1995:27). At the Chilean station Eduardo Frei, Greenpeace discovered a sink in one of the households at Villa Las Estrellas that drained straight onto the soil (1995) 17 . Evidence found at Peru's Machu Picchu station suggests that sewage had been poured into a stream that is located near two chemical-type toilets 18 . Finally, an independent environmental audit of New Zealand's Scott Base discovered that the discharge point for both sewage and domestic waste water from the station was about 20 meters from the sea edge, thus being disposed of onto land (Royds Consulting Limited 1994). The auditors concluded that it is doubtful whether this arrangement is in compliance with the terms of the Protocol.

Disposal of Waste into the Sea

With respect to the disposal of waste into the sea, Annex III allows for sewage and domestic liquid wastes to be discharged directly into coastal waters provided that discharge points are located where conditions exist for initial dilution and rapid dispersal (Article 5 1) (a)). In addition, stations that house thirty or more occupants per week during the austral summer must provide at least primary treatment of such wastes (e.g. maceration) (Article 5 (1) (b)). But, the Annex also stipulates that upon entry into force the contracting parties will be responsible for the removal of sewage and domestic liquid wastes from the Treaty area, provided that they are the generators of such waste (Article 2 (2)) 19 . While it is clear that the CPs have yet to take concerted actions to comply with this latter demand, it is also apparent that the discharge of untreated effluent into coastal waters is still a very prevalent practice in the Antarctic.

For example, at the USA1s McMurdo Station, where population can swell to over 1,100 people in summer, there is no more than primary treatment for its kitchen, bathing and toilet waste (Office of Polar Programs 1994). Waste is macerated, diluted with brine from seawater, and discharged into the sea via a submerged pipe. While such behavior is allowable under Annex III, it is not environmentally benign. Joyce Jatko, Environmental Officer at NSF, concedes that a 30-meter area around the end of the discharge pipe has been heavily impacted by the release of sewage (personal interview, 2 July 1997). This includes impact to the local benthic community. Nonetheless, Ms. Jatko claims that the environmental degradation caused by the sewage release is a very localized phenomenon.

However, Howington, McFeters, Barry, and Smith (1992) caution that the low seawater temperature of the region (-1.8 degrees celsius) could extend the survival of enteric pathogens since reduced temperatures have been shown to prolong the survival of such organisms in the marine environment. Furthermore, they note that marine sewage can have a profound negative impact on resident fishes and other benthic fauna if present in high enough levels. Such evidence has led some in the scientific community to suggest "that sewage discharge should receive full treatment prior to release in polar environments" (Howington et. al. 1992:326).

Conversely, others in the scientific community argue that the chemical treatment of sewage is no environmental panacea. Dr. Bob Hofman, Scientific Program Director, Marine Mammal Commission, suggests that there are a number of potential problems with the chemical treatment of sewage. These include chemicals being discharged into the sea if not properly monitored and removed; an increase in the amount of equipment and fuel needed to treat the sewage (heated water is a necessary ingredient); and, the release of warm water into a cold-water environment during and after the treatment process. 20

The U.S. Antarctic Program is not the only operator flushing minimally treated sewage and wastewater into the sea. Greenpeace accuses the United Kingdom's Rothera station of possessing a relatively primitive sewage system for a population that at the height of the summer season can swell to more than seventy people (1997a). During its visit in 1997, Greenpeace noted that the prevalence of 'bergy bits' in the bay prevented the rapid dispersal of sewage, which in turn led to the discoloration of seawater near the outfall pipe 21 . The group believes that "much better treatment could and should be developed for this station" (Greenepeace 1997a:44).

At Argentina's Jubany station, where the population can also grow to more than seventy people during the summer months, sewage is dumped into the sea without receiving any from of treatment (Greenpeace 1995). Such practice is in direct contravention of Article 5 (1) (b) which, again, calls on station operators to provide at least primary sewage treatment when the population averages thirty or more individuals a week during the summer season.

The continued refusal of many national operators to provide more than primary treatment to sewage and domestic waste-water has led ASOC to condemn the CPs for failing to adequately address this issue. The organization argues that maceration, the only required form of sewage and/or domestic waste-water treatment under the Protocol, "does not address the actual content of the effluent, such as heavy metals, bacteria and viruses, chemicals and other contaminants" (ASOC 1991:8). Furthermore, the group is concerned over the provision in Annex III that allows the sludge from sewage treatment (e.g. the Rotary Biological Contacter process) to be disposed of into the sea rather than retrograded from the Treaty area (ASOC 1991) 22 .

Summing up the Environmental Effectiveness of the Protocol

On an environmental level, the Protocol has delivered some positive ecological benefits, although the parties still have a long way to go to reach the agreement's full potential. Delays in implementation appear the greatest obstacle toward maximizing the Protocol's environmental benefits. This being said, perhaps the accord's greatest success is the growing practice of recycling and retrograding waste out of the Antarctic. This is an environmentally significant development as it reduces the amount of waste being disposed of on-site. More waste leaving the Antarctic means less waste in the Antarctic. The major problem, however, remains the disposal of sewage and domestic liquid waste, which continues to be treated mostly by primary means and discharged in relatively large quantities.

However, the evidence also shows that many Consultative Parties are still operating in Antarctica in environmentally negative ways. Among the concerns are the harmful interference with native fauna and flora and the introduction of non-indigenous life forms to local ecosystems. While many national operators still engage in behavior that poses negative consequences to Antarctic wildlife, it is important to point out that most native populations of fauna and flora are not in imminent danger from human activities in the region. Indeed, certain species, such as those in the Antarctic seal family, appear to be doing fine at the present time, according to long-time seal researcher Dr. Don Siniff of the University of Minnesota (Email communication, 11 May 1998). Furthermore, it appears that standing stocks of Antarctic penguins are also in relatively good shape. However, it is probable that such outcomes have little, if anything at all, to do with the operation of the Protocol. The more plausible explanation is that the absence of commercial harvesting activities for these species has allowed their numbers to flourish.

Nonetheless, a troubling development is occurring in the Antarctic Peninsula, where a noticeable decrease in the number of Adelie penguin colonies has been documented by researchers over the past twenty years. It appears, however, that this decrease is not necessarily the result of direct human interference with wildlife, but rather the work of global climate change:

Heavier snowfall which covers the nesting sites longer into the breeding seasons coupled with a diminishing supply of krill have altered the Adelie penguins' breeding habits, and has resulted in a decrease in the number of breeding pairs from 15,220 to the current level of 9,200 (The Antarctic Project 1997:3) 23 .
This being said, the evidence does suggest that the Consultative Parties could be doing much more to conserve the region's fauna and flora.

The increasing introduction of non-native species, parasites and diseases into the region is also of great environmental concern. Be it viruses (e.g. CDV and IBDV), cats, dogs, rats, mice, or invertebrates, the evidence strongly suggests that the CPs are not doing enough to protect indigenous wildlife from the potential biological and/or predatory ravages of non-native life forms. Although this problem was initially addressed in the 1964 Agreed Measures, more than 30 years later it continues to grow in scope and magnitude.


7. Case Study: the Ozone Layer Regime

The ozone layer regime consists of two main agreements, namely the Vienna Convention for the Protection of the Ozone Layer (1985) and the subsequent Montreal Protocol on Substances that Deplete the Ozone Layer (1987). The essence of the agreements is fairly simple and a lot less encompassing than the Antarctic regime described above. The regime has the following general goals: (1) to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer; (2) to adopt agreed measures to control human activities found to have adverse effects on the ozone layer; (3) to cooperate in scientific research and monitoring; (4) to exchange information in the legal, scientific and technical fields.

The main instrument is the limitation of the emissions of ozone depleting substances (ODS). This instrument is strictly actor-oriented in that it limits the production and use of certain chemical components under specific circumstances of human use.

The Montreal Protocol

The basis of the ozone regime is elaborated in the Montreal Protocol and its subsequent amendments. The Protocol builds on the recognized need to reduce production and consumption of CFCs in order to protect the ozone layer. The Protocol thereby distinguishes between developing and developed countries. The latter once pledged to reduce production and consumption of CFCs by 50% by the year 1999, while the former were awarded a grace period in which they could still produce and consume CFCs.

In 1987, the Protocol was hailed as a major step forward and an example of international environmental action. However, closer reading unveils a number of important unresolved issues. Probably the most important problem was the fact that the protocol did not cover all ODS. From an environmental effectiveness perspective it is equally important to notice that no targets were set in place that would stabilize the actual depletion of stratospheric ozone. Problematic was also the lack of clear provisions on monitoring and sanctioning. These problems were recognized by the parties to the Protocol and brought to the negotiating table during subsequent meetings of the parties.

Subsequent amendments to the Protocol

Subsequent meetings of the parties to the protocol (MOPs) led to stricter norms and time tables, primarily based on new scientific evidence that instilled a sense of urgency in a number of the parties. Another important point was the inclusion of more ODS in the list of products. A final focus has been the creation of funding to support developing countries in their efforts to live up to their engagements.

a. First MOP, Helsinki, 1989

The driving force behind the changes made in Helsinki was of a scientific nature. New evidence showed that the problem of ozone depletion was far more serious than originally thought and that more substances were involved in this dynamic. The parties agreed to phase out CFCs falling under the Protocol as soon as possible, but no later than the year 2000. They also agreed to phase out halons and other ODS as soon as possible.

Other important decisions included increased funding for the development of alternatives to ODS and to arrange for adequate funding for developing countries in order to pay for technology transfers, conversion schemes and replacement of equipment.

Finally, a number of decisions were taken to improve the implementation of the agreements and emphasis was put on monitoring.

b. London amendment, 1990

The London amendment once again accelerated the original timetables and added a number of new chemicals to the list to be phased out. These products included 10 more CFCs, carbon tetrachloride (phase out by 2000), and methylchloroform (phase out by 2005).

The establishment of the Multilateral Fund to assist developing countries in living up to their obligations was an important step and a first for international environmental agreements of this kind.

c. Copenhagen amendment, 1992

It was again new scientific evidence that prompted the parties to swift action. At the Copenhagen meeting countries agreed to yet again accelerate the timetable for CFCs (to be phased out four years sooner than originally foreseen) and for all other ODS. In addition, several new products were added to the list: methyl bromide, hydrobromofluorocarbons and hydrochlorofluorocarbons (HCFCs). Also, monitoring of import and export would be strengthened and non-compliance mechanisms would be enforced.

d. Montreal amendment, 1997

The Montreal Amendment (MOP-9) was important for several reasons. First, the parties decided to accelerate the phasing out of methyl bromide by 2005 for developed countries, and by 2015 for developing countries. However, an accelerated phase-out of HCFCs was not accepted, nor was an increase in limiting the production and consumption of a number of ODS.

Progress was made on import and export issues as a system of licenses was designed to allow for better tracking of import and export routes. This system is supposed to be operational during the year 2000.

e. MOP-10, Cairo, 1998

The most important feature of the Cairo meeting was that the two most pressing global atmospheric problems were explicitly linked. Scientific research had recently demonstrated that several new products that lower ozone-depleting potential, such as hydrofluorocarbons and perfluorocarbons, contribute to global warming. This problem highlighted the complex linkages between environmental problems and prompted the parties to design an institutional arrangement to deal with the problem. The Scientific Assessment Panel and the Technology and Economic Assessment Panels of the Montreal Protocol were linked to similar Panels of the UN Framework Convention on Climate Change.

Other decisions taken at the Cairo meeting included strengthening the import and export regulations and the funding mechanism for technology transfer and conversion.

f. MOP-11, Beijing, 1999

The latest MOP has seen further additions to the list of products, although with much more qualifications than desired by the most progressive parties (i.e. the EU). Also the link between ozone depletion and global warming has now been brought to the bargaining table. This has made debate more difficult as a number of countries see this linkage as much more threatening to their economic development. In fact, according to some outside observers this link could make further improvements rather difficult as countries such as China try to delay far reaching limitations of emissions of certain chemicals (e.g. HFCs). Moreover, some parties are now playing politics by framing certain issues such as implementation, control, and sanctioning within the context of the Kyoto Protocol. Many of the Kyoto Protocol's mandates have either not entered into force or are, at present, ineffective. The interesting scientific links between global warming and ozone layer depletion are in fact not leading to the fruitful crossover of the two international agreements. The road of least resistance seems to be preferred by countries that have a lot at stake in both issue areas.

What is significant when one reviews the history of the decisions made in the framework of the Vienna Convention and the Montreal Protocol is: (1) the rather fast pace of strengthening the proposed measures; (2) the important role of scientific evidence in the process; (3) the importance attributed to developing countries in order to assure the success of the regime; (4) the lack of environmental goals directly linked to the state of the ozone layer, although scientific evidence concerning stratospheric ozone was often the main driver for more decisive action.

Evaluating the institutional effectiveness of the ozone regime

From an institutional point of view the ozone regime is often hailed as an example of timely, decisive, inclusive and fair international action and hence an example of institutional effectiveness (Parson 1993, 27). According to Global Commons "the Montreal Protocol has been held up as a model of international mobilization in the face of a global environmental threat" (1999:177). As we have described above, there is evidence to back up these claims. Indeed, when compared to the ozone regime, the environmental impacts of a number of other atmospheric pollution regimes are weak. Examples include the (emerging) global climate regime, and a number of older agreements on acid rain such as CLRTAP.

Having said this, other recent evidence suggests that a number of serious problems remain within the Vienna Convention and Montreal Protocol, namely the ratification, and the production, consumption, and trade in ODS.

Ratification of the ozone regime's related agreements

The bundle of agreements that make up the ozone regime have been ratified by decreasing numbers of parties in temporal order. This may suggest two things: (1) there's a delay between signing and ratifying that is typical for all international agreements. Hence, it's just a matter of time before all parties will sign all constitutive parts of the regime. (2) The other interpretation is that subsequent amendments have made the regime more stringent, more demanding and more costly, which makes it more difficult to get parties to ratify the accords. Consequently, such limitations may not be congruent with the national development objectives of some of the parties. In either case, institutional effectiveness could improved by having more parties ratify all parts of the regime.

Black market trade in ODS

The black market trade in CFCs is estimated to amount to about 30,000 metric tons annually. This represented about 20% of the global use in 1995 as calculated by the chemical industry itself (Global Commons 1999). The fact that such trade is rather neglected as a topic for discussion by the contracting parties is significant. This illegal trade is ultimately more damaging to the environmental impact of the ozone regime than the use of certain small products that have been phased out (yet receive less attention than CFCs). The two largest markets for illegal trade are the US and Europe. The US has imposed a rather high excise tax on CFCs, which has increased the cost of CFC use to a level that has motivated some to resort to illegal practices. More action has been taken recently by customs officials to fight this illegal trade.

Production of ODS in developing countries

According to some observers, the recent increase in production and use of CFCs and other ODS in developing countries is an even greater threat to the goals of the Vienna Convention and the Montreal Protocol. The Protocol foresees the stabilization of production at 1995-1997 levels, with a subsequent phasing out by the year 2000. Official numbers show, however, that in developing countries production of CFCs has more than doubled between 1986 and 1995 and consumption has increased by 40% (Global Commons 1999). This growth is especially concentrated in third world countries that are rapidly industrializing: Mexico, India, Brazil and China. The case of China is especially troublesome. Not only has China increased its CFC production faster than any other country, but it has also increased the production and use of the most damaging ODS. Between 1991 and 1995, China increased its production of halons from 4000 to > 10000 tons. However, these products were specifically targeted for an accelerated phase out in developing countries due to their very destructive nature. Halons destroy ozone 3 to 10 times faster than CFCs. The ozone regime has proven unable to deal with this problem in a decisive manner. This is a serious problem considering the damaging effects of even small amounts of ODS in the stratosphere.

Conversion in developing countries

Although the ozone regime is often mentioned as an example when it comes to conversion strategies, funding and guidance, problems remain to be solved. The Multilateral Fund has contributed money to more than 1800 projects in over 100 countries, totaling about $565 million. The combined effect of all of these projects could amount to the phasing out of more than 80,000 tons of CFC equivalent. The problem is that these investments have to be backed up by strong political commitments of the governments involved. This has worked well in some countries, where conversion is a successful strategy. In others such as China, the effects have been marginal. Perhaps more importantly, such investments have been jeopardized by increased production of CFCs and other ODS.

One can ask the question if the types of conversion projects funded by the Multilateral Fund are the most effective to be followed when dealing with ODS use in developing countries. Some observers argue that more stringent regulations (timetables, product types) need to be in place. In addition, the destruction of stocks of the most damaging ODS should be on the agenda and funded by the Multilateral Fund. Finally, the complete phase out of ozone destroying substances as visualized under the current agreements requires more investment by the developed countries. It is far from certain that these countries are ready to make the extra financial commitment.

Evaluating the environmental effectiveness of the ozone regime

One of the key problems with the ozone regime is that the strict rules on production and consumption are not matched by a number of clear environmental targets on the state of the ozone layer.

The state of the stratospheric ozone

The latest available data provided by the WMO is rather clear and sobering about the topic: "The ozone layer is currently in its most vulnerable state" (Meadows, 1999, 1). Such a statement makes it difficult to claim that the regime is environmentally effective. The following elements contribute to an explanation of this fact.

Time lag problem

the time lag problem is prominent within the ozone regime. A recent study by 350 scientists published by the World Meteorological Organization highlights the problem of time in restoring the ozone layer: "The ozone layer will slowly recover over the next 50 years" and "few policy options are available to enhance the recovery of the ozone layer...we have already done about all we can do" (Meadows, 1999, 2). This 50 year time period means that the motivation of a large number of key actors will have to be maintained over a long period of time (longer than the cold war period!) in order to reach results that are still subject to considerable scientific uncertainty.

This time lag also clearly demonstrates that institutional effectiveness does not necessarily translate into demonstrated environmental results. In fact the ozone layer problem has gotten worse, even though significant progress was made in modifying actor behavior in terms of the production and consumption of ODS. There are two reasons that explain this: (1) There is a delay between the production peak and the damage peak (The Global Citizen 1999); and (2) the chlorine already up in the stratosphere will take about 50 years to dissolve in non-damaging substances.

Secondary environmental effects

As we have mentioned above, environmental effectiveness in one issue area may be closely intertwined with the dynamics of what is happening in other environmental areas. The interconnected nature of the ecosystem is much more complex than the actor-oriented agreements that form the basis for combating environmental issues. New scientific evidence suggests strongly that this is the case regarding the interaction between global warming and ozone layer depletion. The recent WMO report states that the stratosphere is cooling down because a depleted ozone layer is trapping less solar radiation. The consequence is that more ultraviolet radiation, but less infrared light, reaches earth: infrared light is responsible for warming the surface of the earth. This might, according to scientists, reduce the greenhouse effect by as much as 30%. The consequence is that as the reduction of ODS emissions contributes to the restoration of the ozone layer, global warming may increase significantly and at an unprecedented pace. On the other hand, we have mentioned how certain substances used to replace ODS are contributing to global warming.

This point clearly demonstrates that environmental effectiveness is a very uncertain, complex, and even tricky concept. As for ozone layer depletion and restoration, we have to admit that right now we do not really know what will happen and why. Scientific uncertainty remains very high in this issue.

We can only conclude that for the moment, the ozone regime appears to be demonstrating some environmental effectiveness. However, the scientific community predicts that reaching the implicit environmental goal of the regime, namely the restoration of the ozone layer, may take 50 years or more! This prediction does not take into account additional anthropogenic or non-anthropogenic variables that might disrupt the restoration process.


8. Concluding Remarks

This paper has argued that institutional effectiveness and environmental effectiveness are conceptually distinct phenomena. While institutional effectiveness encapsulates the fulfillment of an agreement's goals and objectives, environmental effectiveness encompasses the conservation of resources and/or the prevention/reduction of anthropogenic contaminants into an ecosystem. Thus, institutional effectiveness is synonymous with regime performance, while environmental effectiveness is synonymous with regime impacts.

The theoretical distinction of environmental and institutional effectiveness also sheds new light on traditional regime theory. It seriously questions the goal specificity of regime theory. This is a fundamental amendment as regime theory has often been associated with 'problem solving' by way of actor modification. It also re-frames the question whether regimes matter. We have demonstrated in our case studies that regimes do matter much more in the context of institutional effectiveness rather than environmental effectiveness. Therefore, our analysis tempers the enthusiasm that is implicitly present in much of the regime literature; specifically the strand embedded in the environmental policy literature. It also explains why the number of regimes has increased dramatically in the domain of the environment, yet at the same time the state of the global environment has deteriorated by almost any measurement.

Finally, and most importantly, the concept of environmental effectiveness refocuses the whole enterprise of designing, implementing and evaluating international environmental agreements. While modifying actor behavior is the means to environmental effectiveness, real ecological improvement is ultimately the end that justifies the means. To have one without the other is a moot point.



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Note 1: In employing the concept of state-centric behavior we are assuming the traditional role of a sovereign government (also referred to as the "state") as one with the political and legal standing to negotiate, ratify, and enforce international treaties, as well as possess the capability to control the behavior of its nationals in accordance with such conventions when present within their jurisdictional ambits. Back

Note 2: Young acknowledges this shortcoming. Back

Note 3: Kutting (1998) suggests that there are four determinants of environmental effectiveness: science, time, economic, and regulatory structures. However, it is not clear within her four determinants where the criteria for measuring environmental impact are found. While it seems logical to suggest that such criteria would be imbedded within regulatory structures, many environmental agreements are long on hortatory language and vague criteria, and short on mandatory language and specific criteria. This often makes it difficult to measure which parties are living up to their environmental commitments, and whether these commitments are having a positive impact on the environment. Back

Note 4: With respect to Antarctica, the body of water known as Winter Quarter's Bay will most likely never be restored to its original condition due to the concentration of PCBs on the sea floor. Back

Note 5: For methodological reasons, this case study focuses exclusively on the terrestrial and coastal impacts of research stations in Antarctica. However, Annex IV of the Protocol regulates ship-born pollutants that are to be dumped at least 12 nautical miles off the coast. Because of these provisions, Annex IV will not be examined here. Back

Note 6: Article IX (2) of the Protocol states that "Annexes, additional to Annexes I-IV, may be adopted and become effective in accordance with Article IX of the Antarctic Treaty." Back

Note 7: ATCM stands for Antarctic Treaty Consultative Meeting. It is at these meetings that the parties adopt recommendations to further the goals and objectives of the Antarctic Treaty. Back

Note 8: The Antarctic Convergence, which lies between 47 degrees and 63 degrees South Latitude, "marks a dramatic change of surface temperature within a short distance, where warmer waters moving south rise above cold Antarctic waters. Not surprisingly, the biological communities found to the north and south of it are distinct from one another" (Mitchell 1982:351). The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), a free-standing international agreement to regulate the taking of Antarctic marine living resources (but which is nested within the ATS) is delimited at the Antarctic Convergence. Back

Note 9: ASOC's (Antarctic and Southern Ocean Coalition) argument regarding delimitation of the Protocol might be overstated due to the fact that the CCAMLR agreement is indeed delimited at the Antarctic Convergence. Additionally, the CCAMLR adopts an ecosystem approach whereby the states parties to the regime are to: prevent the decrease "in the size of any harvested population to levels below those which ensure its stable recruitment;" maintain the "ecological relationships between harvested, dependent and related populations of Antarctic marine living resources;" and, prevent changes or minimize "the risk of changes in the marine ecosystem which are not potentially reversible over two or three decades" (Article II (3) (a-c). Therefore, it would seem that living resources found in the Convergence area are protected under the terms of the CCAMLR. Of course, whether or not the agreement is actually realizing these objectives is another matter. For some competing perspectives on the effectiveness of CCAMLR see Olav Schram Stokke, "The Effectiveness of CCAMLR" (1996); John A. Heap, "Has CCAMLR Worked?" (1991); Marinelle Basson and John R. Beddington, "CCAMLR: The Practical Implications of an Eco-System Approach" (1991); and Jean-Pierre Puissochet, "CCAMLR-A Critical Assessment" (1991). Back

Note 10: However, the parties are obligated to clean up past and present waste disposal sites on land, as well as abandoned work sites (e.g. scientific stations), provided that the removal of any structure or waste material "would result in greater adverse environmental impact than leaving the structure or waste material in its existing location" (Article 1 (5) (b)). Back

Note 11: Although it is obvious that the CPs will be involved in any review of Annex III, the Article is mute on possible participants such as SCAR, IUCN, ASOC, etc. Back

Note 12: Article 2 does not elaborate what constitutes sufficient detail.Back

Note 13: Under Article IV of Annex II all dogs were to be removed from the Treaty area by April 1, 1994. Presently there are no sledge dogs kept by any of the Consultative Parties in Antarctica. Back

Note 14: The burgeoning Antarctic tourism industry is also contributing to this problem. Back

Note 15: The report cited here does not contain information on where these disposal sites are located, but a good portion of waste generated by the US Antarctic Program is retrograded (brought back) to the United States for disposal at approved sites. Back

Note 16: Data is still sparse as to whether or not all of the Consultative Parties have discontinued the practice of open burning. Back

Note 17: Villa Las Estrellas is the complex of living quarters for station personnel and their families. A number of Antarctic observers have commented that the introduction of families to the station is an attempt by Chile to reinforce its territorial claim through the establishment of a human colony.Back

Note 18: When Greenpeace inspected Mach Picchu on January 1, 1995, the base was unoccupied. The first stage of the station's construction was completed in February 1989, and since then the base has frequently been unoccupied for periods of time. Greenpeace's comments regarding sewage disposal are based on its observations of the placement of the toilets and the construction of the building in which they are housed (1995). Back

Note 19: This obligation is tempered by the phrase "to the maximum extent practicable." Back

Note 20: The release of warm water into a cold water environment is commonly referred to as 'thermal pollution.' Back

Note 21: 'Bergy bits' are pieces of icebergs. Back

Note 22: This provision is found in Article 5 (2) of Annex III. It states: "The by-product of sewage treatment by the Rotary Biological Contacter process or similar processes may be disposed of into the sea provided that such disposal does not adversely affect the local environment, and provided also that any such disposal at sea shall be in accordance with Annex IV to the Protocol." Back

Note 23: The decrease in Antarctic krill numbers has also been attributed to global climate change. Back