A LIABILITY REGIME FOR ANTARCTICA

Italian Yearbook of International Law

Volumn 15, Issue , 2006, Pages 217-242

  Vigni, Patrizia ^a  

^a UNIVERSITY OF SIENA   (Italy)

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EID: 84899391887     PISSN: 03915107     EISSN: None     Source Type: Book Series    
DOI: 10.1163/221161305X00126     Document Type: Article

References (62)

1. Done in Washington on 1 December 1959, UNTS, Vol. 402, No. 5778.
2. Done in Madrid on 4 October 1991, ILM, 1991, p. 1455 ff. The Protocol is a supplement to the Antarctic Treaty and entered into force in 1998.
3. See CHARNEY, “Third States Remedies for Environmental Damage to the World’s Common Space”, in FRANCIONI and SCOVAZZI (eds.), International Responsibility for Environmental Harm, Dordrecht, 1991, p. 149 ff.
4. LEFEBER, “The Legal for an Antarctic Environmental Liability Regime”, in VIDAS (ed.), Implementing the Environmental Protection Regime for the Antarctic, Dordrecht, 2000, pp. 181-197, p. 187.
5. Art. IV states that: “[n]othing contained in the present Treaty shall be interpreted as: […] c. prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State’s rights of or claim or basis of claim to territorial sovereignty in Antarctica”. It is clear that the safeguard of the position of those States that do not recognise sovereignty claims does not allow Claimant States to exercise their sovereignty vis-à-vis non citizens.
6. The acronym “ATCM” refers to both the annual conference of Consultative parties and the Consultative parties themselves that are convened to discuss and adopt measures relating to Antarctic issues.
7. See the Final Report of the XVII ATCM, held in Venice in 1992.
8. See XXII ATCM/WP 01.
9. See the information paper presented at the XX ATCM, held in Utrecht in 1996, XX ATCM/ IP 43.
10. Art. 15 states that “[i]n order to respond to environmental emergencies in the Antarctic Treaty area, each Party agrees to: (a) provide for prompt and effective response action to such emergencies […] and (b) establish contingency plans for response to incidents with potential adverse effects on the Antarctic environment or dependent and associated ecosystems”.
11. Done in Wellington on 2 June 1988, ILM, 1988, p. 868 ff.
12. For an overview of the liability regime, established by CRAMRA see BURMESTER, “Liability for Damage from Antarctic Mineral Resource Activities”, Virginia Journal of International Law, 1989, p. 621 ff.
13. FRANCIONI, “Liability for Damage to the Antarctic Environment”, in FRANCIONI and SCOVAZZI (eds.), International Law for Antarctica, 2nd ed., The Hague, 1996, pp. 581-599, p. 586.
14. For the view that “a fault liability is not enough because of many accidents that happen in Antarctica” see VAN BENNEKOM, “A New Regime to Protect the Antarctic Environment”, Leiden JIL, 1992, p. 48 ff.
15. See MACKAY, “The Proposed Antarctic Treaty on Environmental Damage”, International Law Students Association (ILSA) Journal of International and Comparative Law, 2000, pp. 473-481, p. 474 ff.
16. See Final Report of the XXIII ATCM, held in Lima in 1999.
17. See Resolution 5 (1999) asking COMNAP and SCAR for a paper that clarifies what harmful activities are carried out in Antarctica and which worst scenarios can take place within the Antarctic area.
18. The amended version of the US proposal was presented as a working paper at the XXIV ATCM, held in S. Petersburg in 2001, XXIV ATCM/WP 17.
19. See the working paper presented by France at the XXV ATCM, held in Warsaw in 2002, XXV ATCM/WP 01.
20. See Decision 3(2001), adopted at the XXIV ATCM.
21. For this view see the proposals that were presented by the German Delegation at the Intersessional Meeting held in New York in April 2005, in Report of the Chairman of the Working Group on Liability presented as an information paper at the XXVIII ATCM, held in Stockholm in June 2005, XXVIII ATCM/IP 109.
22. See the working paper presented by COMNAP on worst scenarios at the XXVI ATCM, held in Madrid in June 2003, XXVI ATCM/WP 09.
23. IMO has invited ship-owners to respect the obligation of insuring their ships and to carry insurance certificate in their trips. See Resolution A. 898 (21) of the IMO Assembly, at www.imo.org.
24. See the Final Report of the XXVI ATCM, paragraphs 82 ff.
25. The ATCM only exists the two weeks of the year in which the annual conference takes place.
26. Art. IV states that: “[n]othing contained in the present Treaty shall be interpreted as: a. a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; b. a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise”.
27. Art. IX(2) affirms that: “Each Contracting Party which has become a party to the present Treaty by accession under Article XIII shall be entitled to appoint representatives to participate in the meetings referred to in paragraph 1 of the present Article, during such times as that Contracting Party demonstrates its interest in Antarctica by conducting substantial research activity there, such as the establishment of a scientific station or the despatch of a scientific expedition”.
28. For a comment on the establishment of the Secretariat see VIGNI, “The Establishment of the Secretariat of the Antarctic Treaty”, IYIL, Vol. XIII, 2003, pp. 147-155.
29. This Decision was adopted at the XXVIII ATCM in order to amend Decision 2(1997) under which a State could become a Consultative party by ratifying the Treaty, the Protocol, and Annexes I-IV. Therefore, Annex V, which is already in force, as well as the liability Annex were excluded. See paragraph 36 of the Final Report of the XXVIII ATCM, held in Stockholm in June 2005, at www.ats.org.ar.
30. For the view that the ATS recognises a privileged position of few States and, thus, is not legitimate to manage Antarctica in the name of the international community see the negative declaration of Malaysia at the UN General Assembly Meeting of 1982, Doc. A/37/PV.10. Subsequently, Malaysia, Antigua and Barbuda, and Guinea reaffirmed that Antarctica is the common heritage of mankind and, thus, must be managed under the rules that are established for the common heritage instead of ATS norms, at the 38th Meeting of the First Committee during the 46th Session of the UN General Assembly, Doc. A/C.1/46/PV38.
31. The intent of the ATCPs to implement the obligation of response action, which is established by Art. 15 of the Protocol, can be also indirectly inferred from the fact that neither the Preamble, nor the other parts of the Annex refer to the concept of “damage”, which constitutes the basis of a different type of liability. In fact, the ATCPs preferred to use the term “impact” instead of “damage”.
32. Arts 3 and 4 affirm the related duties to take preventative measures and adopt contingency plans, respectively.
33. Decision 1(2005) is the compromise between the views of those parties that wanted to accomplish the objective of establishing a comprehensive liability regime and of those who desire to see how this Annex works in practice, before starting new negotiations.
34. Done in Canberra on 20 May 1980, ILM, 1980, p. 837 ff. For the recognition of the supremacy of CCAMLR see the Final Act of the XI Antarctic Treaty Special Consultative Meeting.
35. In the ATS, the expression “in the Report language” describes the cases in which one or more Consultative parties ask the ATCM for adding some precise statements in its Final Report. In fact, the decisions that are made by ATCPs by consensus do not always reflect the precise view of each party. Thus, the statements, contained in the Report, must be considered as interpretative declarations that are essential to determine the scope of the obligations that Consultative parties have undertaken.
36. See paragraphs 3(a) and (b) of Art. 5 of the Liability Annex.
37. See Art. 6(5) of the Annex.
38. Art. 6(3).
39. The US Delegation repeatedly requested to insert the reference to terrorist and military attacks as non negotiable condition for the adoption of the Annex due to the emerging problems in the worldwide context.
40. Art. 8(2).
41. Under Art. 6(1), “[a]n operator that fails to take […] response action […] shall be liable to pay the costs of the response action taken by Parties”.
42. That is why Art. 6 mentions “a Party” as the person to whom the costs of response action must be paid.
43. For this reason, private operators other than those who provoked an environmental emergency, before taking response action, must be sure to have the authorisation of their States so as to have the chance to be reimbursed by such States that are the only one that are entitled to sue liable operators.
44. Under, Art. 7(3), when multiple States have jurisdiction, they must consult amongst themselves in order to identify which of them must deal with a legal action.
45. EC Regulation 44/2001 (OJ EC, 2001, L 12/1) concerning the jurisdiction, recognition, and enforcement of decisions on private law establishes that the EC Commission is competent in negotiating international agreements where jurisdictional provisions are provided for. However, such competence can be delegated to EC Member States if such agreements do not allow EC participation. This is the case of the Antarctic Treaty, which does not accept international organisations and which, most importantly, makes a distinction between parties that have decision-making power (Consultative parties) and ordinary parties that must only comply with Treaty obligations. In this regard, even if the EC could become a party to the Treaty, it would not immediately achieve the status of Consultative party, which would allow the organisation to negotiate international instruments associated to the Treaty. There are only two requirements that EC Members, which have been delegated by the EC, must respect in negotiating international agreements. First of all, they have to make sure that as far as jurisdiction is concerned, a sole State will be entitled to exercise it. Secondly, the competent State is that of residence of the liable person. One can observe that Art. 7 of the liability Annex respects both these requirements.
46. This State is defined by Art. 2 of the Annex as “the Party of the operator”.
47. Art. 7(5)(b). The term “Decision” is capitalised since it indicates one of the specific acts, adopted by the ATCM. In fact, Decision 1(1995), which reorganises the status of such acts, distinguishes them from each other to form three categories: “Measures”, which become binding after the approval of all ATCPs; “Decisions” that have an operative nature and, thus, are immediately binding; and “Resolutions”, which have hortatory character only.
48. One author highlights that international law sometimes allows single States to bring a legal action or, at least, to raise the issue of a breach of international law in the general interest. In particular, Art. 60(2)(c) of the 1969 Vienna Convention on the Law of Treaties allows a State party to a treaty, which is not the direct victim of the breach of such treaty “to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty”. Moreover, the same author recalls that the breach of erga omnes obligations allow the action of any State since the importance of such obligations leads to consider all States as the victim of that violation.
49. A ship’s tonnage is calculated in accordance with the rules contained in Annex I to the International Convention on Tonnage Measurement of Ships. Done in London on 23 June 1969, at www.imo.org.
50. In these cases, Art. 9(2)(b) fixes the maximum amount of 3 million Special Drawing Rights, as defined by the International Monetary Fund.
51. Done in London on 19 November 1976 and totally modified by the Protocol, adopted on 3 May 1996, available at www.imo.org.
52. In particular, Norway provided a case study showing in which circumstances the Annex and the LLMC may overlap. This convention is in fact applicable to the cases of liability that involve ship-owners. Art. 1(2) of LLMC defines a ship-owner as “the owner, charterer, manager, and operator” of a ship. Thus, if the Party of the operator, as established under the liability Annex, and the party that took response action are both parties to the LLMC, both this convention, which has a worldwide scope and applies to any liability case involving maritime incidents, and the liability Annex can deal with a case of liability for failure of response action with respect to a maritime emergency that occurred within the AT area.
53. Convention on the prevention of marine pollution from ships, done in London on 2 November 1973, and its accompanying Protocol, adopted in London on 16 February 1978, available at www.imo.org.
54. In fact, Art. 14 of Annex IV states: “[w]ith respect to those Parties which are also Parties to MARPOL 73/78, nothing in this Annex shall derogate from the specific rights and obligations thereunder”. Nevertheless, in some circumstances Antarctic provisions must be applied instead of MARPOL. As an example, one can mention the prohibition against the discharge of noxious substances in the territorial sea, provided for in Annex II to MARPOL. This norm is not adaptable to Antarctica where the existence of such a marine area is uncertain. For this view see HAJOST, “International Agreements Applicable to Antarctica: A Survey”, in WOLFRUM (ed.), Antarctic Challenge, Vol. III, Berlin, 1988, p. 87.
55. Preventative measures consist in the use of specialised structures or equipment, procedures, and training. Contingency plans should foresee the most appropriate responses to incidents by providing procedures for assessing the impact of such incidents, notifying other parties, training, and demobilisation.
56. The CEP was formally established in 1998 when the Protocol entered into force. However, a transitory organ, the Transitional Environmental Working Group (TEWG), carried out some preparatory activities for the future establishment of the CEP in the period between 1995 and 1997.
57. Art. 7(5)(b).
58. Art. 12(2).
59. Art. 5(3)(a) and (b).
60. Art. 5(4).
61. Art. 12(1) of the Annex establishes that the Secretariat will administer the Fund.
62. Art. 12(4) provides for the possibility of voluntary contributions of States and persons.