TL: XVIII ATCM ECO #2 VOLUME NO LXXXVIII SO: ECO - Greenpeace International (GP) DT: April 15, 1994 Keywords: environment greenpeace antarctica terrec conferences agreements / Kyoto, Japan PRODUCTION TEAM: Kieran Mulvaney Louise Bell Neil James Naoki Ohara Maj DePoorter John Strate Walt LaChace Ahan Lee Ming Lizzie Max Fuanoko Asahi Jade DeLonghi Liable for liability This afternoon's informal meeting should go some way towards resolving procedural issues surrounding further discussion of a Liability Annex. At time of writing, it seems that, notwithstanding the obdurate efforts of some delegations, Consultative Parties are moving towards an intersessional meeting later this year. ECO is pleased to see that Parties are taking the issue of liability seriously. (But how disappointing to her that once again the ATCPs have drawn down the shutters and excluded the NGOs. This childish behaviour, replicated as it is in relation to informal meetings and agenda items, continues to discredit the Antarctic Treaty System as secretive and paranoid). But, in the midst of the procedural discussion, we'd like to focus on the substance, and reemphasise why a strong liability annex is so important. The existence of a gap on liability is recognised in Article 16 of the Environmental Protocol, which requires the development of "rules and procedures relating to liability for damage arising from activities taking place in the Antarctic Treaty area and covered by this Protocol ... " A liability regime is essential for the completion of the Protocol. A strict regime will send a clear message to the world that in Antarctica, protection of the environment is THE major consideration for all human activities. By providing legal obligations to that effect, it will give Antarctic operators an incentive to be more cautious in the conduct of their activities. The main objective of any liability Annex is deterrence. The sensitive nature of the Antarctic environment makes it difficult, if not impossible, to restore a damaged area to its pre-incident condition. Thus, it is important to design a liability Annex that provides strong incentives to take measures aimed at preventing damage. These incentives include (1) a requirement for immediate and ongoing action to mitigate the effects of any environmental damage and (2) an obligation to pay compensation if the environment cannot be restored to the pre-damaged state. These combine to create a climate that encourages caution, excellent training of personnel and use of the best equipment. Another related issue that may be best addressed in a liability regime is restoration of sites after activities have ceased. Operators should be obliged to restore the environment, as far as possible, to its original state once an activity has ceased or a facility is no longer needed. At present, this is only partially addressed in the Protocol, in article 1(5) of Annex III, which requires operators to remove waste disposal sites and abandoned work sites. Unlike liability for accidental damage, however, urgency of action would not be the focus of this facet of the liability regime. Consultative Parties have before them an admirable early draft on how a liability annex might look. ECO concurs with those states and non-governmental organisations which regard Professor Rudiger Wolfrum's "first offering" of a draft annex, presented again at the XVIII ATCM, as an excellent starting point for the process of negotiating an Annex on Environmental Liability. However, the Wolfrum draft is by no means perfect. ECO is concerned, for example, by the limited scope proposed in Article 2, and by the drafting of Article 5 on exemptions. The following are some proposed alternatives, and a list of what ECO regards as essential elements of any liability regime: 1. Activities Which Should Be Covered Liability provisions should apply to ALL human activities in Antarctica, not just those which require "advance notice" under Article VII of the Antarctic Treaty. Liability for all human activities conducted in the Antarctic region will ensure greater protection, while avoiding the need to waste time determining whether the activities meet the criteria established in Article VII. 2. Definition of Damage The Annex will have to define "damage to the Antarctic environment." ECO recommends that any harm to the Antarctic environment that is more than minor or transitory, whether directly or indirectly caused by human activity, should qualify as damage. 3. Standard After establishing that liability exists for all human activities that cause damage, ECO submits that the best method of determining responsibility for damage is strict liability. Strict liability means that it is not necessary to prove that the operator was negligent, only that the operator was responsible for the damage. Strict liability is the best means to: (1) reduce the chance that reaction to the damage will be delayed while responsibility is determined; (2) encourage both industry and government to take precautions to ensure that accidents do not occur; and (3) mitigate the effects of the abnormally dangerous activities undertaken in Antarctica. Strict liability ensures that all who desire to share the benefits of operating in Antarctica, also share the same responsibility for avoiding any damage to that environment. 4. Exceptions There should be no exceptions to liability. Countries should be expected to guard against all possible natural disasters and acts of terrorism. ECO disagrees with a general exclusion for exceptional natural disasters or terrorism because the Antarctic environment cannot be left without protection simply because an individual or state could not predict a natural disaster. In fact, in the extreme conditions of Antarctica, there is no such thing as "an exceptional natural disaster." There should be no exemption for acts of third parties. When two actors are jointly responsible for damage, either or both should be required to provide compensation. Any claims of an unfair allocation of financial burden can be litigated by the interested parties after the environment is restored or compensation is made. 5. Limits ECO advocates unlimited liability to ensure that those held strictly liable for damages must provide total restoration of the environment. There should be no limit on the amount of money that will be spent in response to damage. Any set limit would be arbitrary with respect to the cost to the environment of any given accident, and would therefore be against the principle of environmental protection being paramount. 6. State Responsibility Not only should the states party to the Annex be responsible for any damage that occurs when they violate the Protocol or because they do not properly regulate their nationals, they should also be residually responsible when their nationals fail to take proper action or fail to provide adequate compensation. 7. Response Action Along with the concept of strict liability for all damage, the best mechanism for ensuring that restoration is fast and effective, particularly when damage is accidental, is to encourage any state, organization or individual to make necessary repairs to the environment. In order to ensure maximum and most effective response action, there must be no disincentives for whoever is close to an accident, or has the necessary capability, to participate in mitigative action. There must be a well-established mechanism whereby operators (both governmental and non-governmental) can recoup the costs of such action. This means an easy-to-initiate system for claiming reimbursement and, if necessary, for resolving disputes. The environment will be cleaned up first, and litigation can come later. 8. International Fund There are a number of reasons for setting up a Fund. Firstly, if a limit is set on the amount the perpetrator has to pay, then there must be a back-up Fund which will be able to provide the additional compensation needed. Second, the existence of a Fund will help encourage people who are nearby an accident or threatening situation to take prompt action to prevent or minimize harm. The Fund could be established from a levy on all Antarctic operators (governmental and non-governmental), perhaps with a fee based on number of person-days spent in the Antarctic or a levy on fossil fuels used south of 60 degrees. The basis of the levy should be reviewable as perceptions change on the main risks to the Antarctic environment. ECO urges Consultative Parties to make rapid progress towards the completion of an Annex on Environmental Liability. We also urge that the terms of reference for any intersessional meeting should be broad enough to ensure that experts from non-governmental organisations are able to attend. Nature abhors a vacuum Though tactfully couched, there has been evident alarm from ATCPs at what some see as "headstrong" intiatives by COMNAP and even, for some delegations, SCAR. The concern is that these agencies are appropriating decision- making responsibilities which the ATCPs feel is theirs. Concern has been voiced especially in relation to COMNAP that this unofficial agency, albeit primarily of government managers, is making decisions that should be made by the ATCM. There is talk that the dispersal and appropriation of functions to other organisations is weakening the Antarctic Treaty System. We acknowledge some merit in the concerns about COMNAP. It would also be unfair not to recognise the considerable skills, experience and insights of many programme managers. It is also inescapable that COMNAP's appropriation of power carries with it a substantial conflict of interest since they are essentially regulatory themselves. But it is not COMNAP or SCAR which are threatening the Treaty System, but the laggardly behaviour of the Treaty Parties themselves. As the UK and Argentina attempt to stare each other down on the question of the Secretariat, some nations are conspicuous by their lack of progress on ratification and implementation of the Protocol, and there is opposition to even an interim CEP, a vacuum has been created. As long as the Protocol is not implemented, others will take what steps they can to provide measures to protect the environment. ECO suggests that Contracting Parties take significant, transitional steps toward the eventual CEP. Tackling the list of functions ascribed to the CEP will help fill the present vacuum. But it is essential for the ATCPs to solve the Secretariat dilemma in a practical way, and to bring the Protocol fully into force at the earliest possible time. A hole big enough to mine in A number of examples of Protocol implementation legislation are circulating in Kyoto. Central to each piece of legislation is the prohibition of mineral exploitation, where a key question is the Protocol's area of application including the deep sea bed. While most Consultative Parties are drafting legislation prohibiting mineral activities across the entire area, a few have expressed doubt as to whether this might be in contravention of the United Nations Convention on the Law of the Sea (UNCLOS) and are considering exceptions for the deep seabed. The problem with this is that several of the Antarctic sedimentary basins which may bear hydrocarbons would not be covered in their draft legislation. Although the seabed is deeper than 4000 metres over much of the area, at various points seamounts and oceanic ridges reduce this to only 2000 metres, which is barely beyond even current drilling technology. The principal argument which had been advanced to justify omitting the seabed from the minerals prohibition was that to include it would be to conflict with the jurisdiction of the proposed International Seabed Authority (ISA) under UNCLOS. In-depth research by legal experts from several Consultative Parties has concluded that no such anomalies exist. This discovery is a tremendous relief because a large part of the Antarctic Treaty Area would have been unprotected. It is true that the argument gained some acceptance by Treaty Parties in the context of CRAMRA. But while CRAMRA did indeed purport to allocate and regulate access for mining activities, and to issue permits, the Protocol and resultant domestic legislation do not. There is no conflict of jurisdiction. The parties to the Protocol have simply agreed NOT to mine and to disallow their nationals from mining the deep seabed. When the Parties agreed to refrain from mining the deep sea bed, they simply agreed to bind themselves. It is a voluntarily negotiated agreement to refrain and does not purport to bind non-parties. As a consequence, any nation is entirely within its rights to prohibit their own nationals, natural or juridical, from minerals activities throughout the area south of 60 degrees South. This is not an extension of sovereignty over the Area itself. That the deep sea bed can be firmly included in this area legally speaking ensures that a potentially gaping loophole should be plugged. Antarctic special area with CCAMLR boundaries? The issue of MARPOL and the IMO's Antarctic Special Area has been mentioned by several delegations during this ATCM. Delegations may not be aware that at the most recent meeting of the Marine Environment Protection Committee (MEPC), held last month in London, the issue of the boundary for the Special Area came up. It was proposed that the CCAMLR boundaries be used. In paragraph 8.20 of its report (MEPC 35/wp.6) the Committee instructed the IMO Secretariat "to communicate with the Antarctic Treaty Secretariat, informing that there is a proposal to amend the boundary of the Antarctic Special Area and inviting their comments." ECO is not sure where this communication may have been sent, in lieu of there being a Secretariat. We do, however, hope that this ATCM will respond favourably. Inspection and monitoring: putting good words into action Despite the good intentions expressed by Consultative Parties and others, and regardless of the provisions of the Antarctic Treaty or the Environmental Protocol, measures to protect the Antarctic environment risk meaning nothing if they are not supported by a strong inspection mechanism. However, foot-dragging by some Parties, and sovereignty concerns by others, have blocked progress in developing an adequate, neutral inspection programme. ECO believes that such a programme is a vital component of ensuring compliance with the Protocol. Recognition of this is central to the Treaty, which gives Parties the right to designate observers to inspect facilities in "all areas ... including all stations, installations and equipment ... at all times." Article VII establishes inspection as a means to "promote the objectives and ensure the observance of the provisions" of the Treaty. Freedom of inspection strengthens the Treaty's core principles of peace and international cooperation, and the provisions of Article IV, which seek to reconcile the sovereignty issue between claimant and non-claimant states. The Environmental Protocol's Article 14 mandates the inspection system to "promote the protection of the Antarctic environment and associated and dependent and associated ecosystems, and to ensure compliance with this Protocol ... " However, whilst the Protocol provides an expanded mandate for environmental inspections, it does not spell out the mechanisms for carrying them out. ECO believes that such mechanisms are sorely needed. Antarctic inspections are usually conducted by individual countries, although a small number of joint inspections have been carried out. The absence of a mechanism for Parties to coordinate inspections, avoid duplication, and to ensure that all stations are inspected on a regular basis has seriously limited the coverage and utility of single-Party inspections. So far, only the United States has had the commitment and means to conduct inspections over the entire continent. Furthermore, many of the inspections which have been conducted in the past have been partially undercut by the willingness of one Party to overlook another's environmental transgressions. It has been left to Greenpeace to fill the role of unofficial, independent environmental "inspector". Since 1986, Greenpeace has visited over 50 Antarctic facilities -- more "inspections" than any other operator. These visits have revealed widespread noncompliance with Antarctic Treaty Recommendations and other commitments relating to environmental protection. Since 1991, they have also shown that many operators are a long way from implementing the standards required under the Environmental Protocol, although some progress is being made. These disappointing findings underscore the importance of developing an inspection mechanism within the Treaty system. Some Consultative Parties have resisted the establishment of a formal Inspectorate, arguing that any additional institutions would founder on the sovereignty sensitivities of claimant states. However, a paper by the Antarctic and Southern Ocean Coalition (ASOC) suggests that such concern is unfounded and that an inspection mechanism could be more than adequately addressed simply by adding an operational arm to an already agreed institution: the Committee on Environmental Protection, once it is formally established. The ASOC paper proposes the establishment of an Environmental Monitor Group (EMG), under the CEP, which would monitor for compliance, and facilitate information exchange on environmental problems and solutions in the region. Under the proposal, members of the EMG would be appropriately qualified scientific and environmental experts drawn from Parties to the Protocol and from non-governmental bodies such as SCAR, ASOC, and IUCN. International observers would carry out annual inspections of research stations and other Antarctic sites and facilities. Observers would tour the station or site, and interview base officials on station operations and procedures. The group would examine station practices closely with an eye toward compliance, noting examples of sound implementation and innovative practices as well as violations. The EMG would document its findings and present recommendations in annual inspection reports, which would be submitted to the ATCM through the CEP, and then made publicly available. The case for strengthening the mechanisms for conducting environmental inspections in Antarctica is plain. What benefits to Antarctic science come from a degraded environment? What good are enforcement and dispute settlement procedures, if the implicit pact among Parties to ignore non-compliance continues? If the Antarctic Treaty Parties are truly serious about protecting the Antarctic environment, they must take steps to translate the Protocol's words into environmental protection on the ice. A politically neutral monitor group would be a very significant step. ENDS