10. The Antarctic environment: developing a comprehensive regime for responsibility and liability

Concern for the protection of the Antarctic environment has resulted in major developments of the Law of State Responsibility, especially the specific issue of liability. These developments are particularly evident in the Convention on the Regulation of Antarctic Mineral Resource Activities.¹¹⁶ This Convention is based on very stringent principles and requirements for the protection of the environment, which is a noteworthy development in itself, however the more important development is that no mineral resource activity shall take place until it is judged that it is environmentally safe under those stringent standards.¹¹⁷ The emphasis on prevention thus becomes quite evident.

Observance of the Convention is to be enforced by States Parties and the regulatory committees through a combination of measures that include monetary penalties. Enforcement can lead to the modification, suspension, and cancellation of the pertinent management scheme, which in essence embodies the terms of the contract and provides authorization to engage in mineral activities.

Beyond the general measures, however, there are very specific rules dealing with responsibility and liability, some of which are highly innovative. The salient features of these rules are summarized as follows:

1. An operator involved in mineral resource activity, including prospecting, exploration, and development, has the obligation to take necessary and timely response action, with particular reference to prevention, containment, clean-up, and removal measures, if the activity results or threatens to result in damage to the Antarctic environment or dependent and associated ecosystems.¹¹⁸ The geographical scope and the definition of damage included in this Convention are very broad. The emphasis on preventive measures is again apparent. It should also be noted that here the responsibility is an unconditional type, not subject to limitations and other defensive factors.

2. If damage ensues in spite of the above measures, the operator is subject to a system of strict liability. The operator is liable for damage to the Antarctic environment and related ecosystems, loss or impairment of an established use, loss or damage to property of a third party, loss of life or personal injury of a third party, and reimbursement of reasonable costs to whomever has undertaken the response action.¹¹⁹ The operator may also be liable for damages and other consequences not arising directly from these activities, in which case liability shall be governed by the applicable national or international law and procedures. It is interesting to note that these rules protect the Antarctic environment as such, irrespective of damage to property or life.

3. The regime relating to strict liability, unlike that which governs the responsibility of the operator, is subject to some conditions of relief for the operator, such as a natural disaster of an exceptional character, armed conflict and terrorism, or an intentional or grossly negligent act or omission by the party seeking redress.¹²⁰

4. The sponsoring state has subsidiary liability in conjunction with that of the operator if the damage would not have occurred or continued if such state had carried out its obligations under the Convention.¹²¹ These obligations are different for prospecting and for exploration and development, but in either event they may engage subsidiary liability to the extent the harm is not satisfied by the operator or otherwise. This is without prejudice to the application of international law to other types of damage engaging state liability. Thus we have an interesting case in which the activity of an operator may indirectly engage state responsibility and liability, in addition to the obligations that the Convention bestows upon the state directly.

5. Some specific aspects of this regime have been left open for additional negotiation by means of a Protocol to the Convention.¹²² These open issues refer only to the liability provisions and not to those on responsibility explained under (1) above. One such issue concerns limits on liability: such limits do not refer to a curtailment of the obligation to pay full compensation, but only to the establishment of a ceiling on the portion to be paid by the operator in order to facilitate insurance; the balance would be paid by other mechanisms or by the state. Another mechanism to satisfy liability is the establishment of a compensation fund similar to that relating to oil-pollution damage. In addition, other means to assist with immediate-response action will have to be decided in the pending negotiations. Procedures and mechanisms for the adjudication of claims will also have to be worked out and will likely be of an international character.

6. Pending the entry into force of the Protocol referred to above, prospecting, unlike exploration and development, can be undertaken but each Party shall ensure the availability of recourse in its national courts for the adjudication of liability claims against the sponsored operator.¹²³ There is no provision here for actions against the state itself. The Commission established by the Convention shall be able to appear as a party in such procedures. These provisions coincide with the trend to provide access to national courts for remedial measures arising under international activities.

This set of important principles and mechanisms have been incorporated into the discussions of a comprehensive regime for environmental protection in Antarctica, in addition to their operation specifically in relation to mineral activities.¹²⁴ The comprehensive regime has also favourably considered an environmental-impact-assessment procedure and an early-warning notification obligation.