Environmental Emergency Liability in Antarctica: Complexities and Challenges

In the event of an environmental emergency in Antarctica, attributing liability among multiple operators can be a daunting task. The Antarctic Treaty’s Liability Annex aims to establish a framework for accountability, but its exemptions, limits, and insurance requirements pose significant challenges.

Challenging Framework

The Annex provides five instances where States parties and their operators are exempt from liability:

• Acts necessary to protect human life or safety
• Natural disasters
• Reasonable response actions

However, the blurring of lines between State and non-State operators’ activities may lead to difficulties in determining which portion of an environmental emergency can be attributed to each operator.

Limitations on Liability

Article 9 sets maximum amounts for response costs, but these are lower than those available under other liability regimes. This could create complications for States parties that are also signatories to higher-limit agreements. Furthermore, the limits are linked to ship size, which is considered an outdated approach given the potential for even small ships to cause significant damage.

Insurance Requirements

The incorporation of insurance requirements in Article 11 aims to ensure operators can recover costs incurred during response actions. However, the definition of “operator” may include actors beyond shipowners, who may not have insurance coverage. This has raised concerns about the availability and affordability of insurance for these entities.

Implementation Challenges

• The Russian Federation has implemented the Liability Annex and insured several of its national expedition ships.
• Finding insurance for existing equipment and facilities in Antarctica remains a challenge due to limited insurer capabilities.

Insurer Concerns

Insurers have also raised questions about their ability to:

• Invoke exemptions under Article 8
• Subrogate claims from the fund established under Article 12

The fund, administered by the Antarctic Treaty Secretariat, provides reimbursement for response costs incurred by States parties when operators cannot be identified or do not take prompt action.

Fund Reimbursement

Reimbursement is subject to approval by the Antarctic Treaty Consultative Meeting (ATCM), which may act as a deterrent for States taking response actions on behalf of responsible operators. Non-State operators may also have no right to apply for reimbursement, as it is only States parties that can access the fund.

Conclusion

As environmental emergencies in Antarctica become more frequent and complex, the Liability Annex’s limitations and uncertainties will need to be addressed to ensure effective accountability and protection of the fragile Antarctic environment.