This is the draft text for a speech given at Awaji-Jima, Japan, at the PCRC/KOPRI Antarctic Governance Trail workshop. The actual speech was somewhat shorter, yet its principal points were the same.
First, please let me thank Professor Shibata, the PCRC, KOPRI, and everyone here in Japan for this opportunity and for the wonderful ATCM.
Today, I want to talk about Environmental Liability in the Antarctic, and in particular “What Can Legal Researchers Do” to contribute to it.
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Let me start with the very basics.
‘Environmental liability’ means this: if you cause harm to nature, you are obliged to clean it up. And if someone else has to come and clean up after you, you can be held liable to cover the costs.
Domestic environmental protection laws, and international maritime conventions. provide liability in maritime areas of States and their waters, and shipping lanes.
But Antarctica and its surroundings, like all global areas beyond national jurisdiction, are situated beyond their reach.
To fix this, Annex VI to the Environmental Protocol to the Antarctic Treaty was adopted in 2005. It took many many years to negotiate. It provides for an international legal liability framework for environmental emergencies in Antarctica.[1] It is a binding international legal instrument to address this frontier.
But hurdles remain. First, Annex needs to be implemented in national laws of sates. Due to protracted delays in its implementation in some states, the instrument is yet to enter into force internationally.
Second, this delay in implementation also holds back the next step: the development of a general environmental liability regime for the Antarctic.
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What can Legal Scholars do to help promote the cause of Environmental Liability in the Antarctic? I have worked on this question for a couple of years. I propose today a five-step research agenda.
1. The implementation of Annex VI.
Most States have already a law concerning environmental protection in Antarctica. It applies to all operators and expeditions from that state. What States need to do is insert the international liability mechanism into that law.
The liability mechanism was negotiated over 20 years ago. However, once it was adopted, something very human happened: the matter moved from foreign affairs to domestic environmental affairs – and it seems like the people who should implement it did not quite grasp that the mechanism has been thoroughly negotiated already.
So what we must do is this: We must go to our national environmental authorities and civil servants, and find the people who are responsible for carrying out the legislative preparation for the implementation of Annex VI. And we must ask them – how can I help? What can I do for you? Can I prepare the first draft amendment for you so you can get started? Can I help you reach out to public officials in other countries that have recently implemented Annex VI?
At present, 19 of these have approved the Measure with 9 remaining (Argentina, Belgium, Brazil, Bulgaria, China, India, Japan, Korea, USA).
I have good news. In 2024, Professor Shibata and Dr Shin invited experts, officials, and academics together to exchange views on implementation in Japan, Korea, China and India.
At this year’s ATCM 48, Japan informed the Meeting that its implementation of Annex VI was imminent, and the draft law before the diet. (IP 97) Korea noted that it was making progress; and China was finally preparing its Antarctic Environmental Protection Act. India, whose Antarctic Act is from 2023, is also working to include Annex VI liability within its scope. Also Brazil informed the Meeting that its legislature was making progress.
This is positive news. It can be done. But that is only the beginning.
2. Beyond Implementation : Completing Annex VI
Several provisions in Annex VI itself still require work and interpretation.
According to Article 9(4) of Annex VI, the Antarctic Treaty Consultative Meeting shall review the limits of liability every three years. Research on this would be both timely and novel.
Article 7(5) of Annex VI gives the ATCM the right to make binding decisions on liability; should this authority ever come to be practiced, a procedure for proper enquiry and determination should be put in place.
Any disagreements are to be referred to international dispute settlement under the Environment Protocol, potentially leading to relevant jurisprudence.
Finally, Annex VI provides for establishing a so-called Liability Fund under the administration of the Antarctic Treaty Secretariat.[2] How would this Fund work? How would the ATCM dispense reimbursement from it?[3]
All of these undertakings are binding upon signatories. All of them require further research.
3. Beyond Environmental Emergencies
Annex VI deals only with environmental emergencies. This refers to major events, such as in particular oil spills or nuclear accidents. This is still a long shot from a general environmental responsibility.
The Environmental Protocol Article 16 (from 1992!) says:
Article 16. Liability. …., the Parties undertake to elaborate rules and procedures relating to liability for damage arising from activities taking place in the Antarctic Treaty area … Those rules and procedures shall be included in one or more Annexes …2).
The ultimate goal, already binding and undertaken by the Parties, is to create a general environmental liability regime.
This undertaking is still in force and Parties restate it: most recently in ATCM 47 Decision 6 (2025) Liability arising from environmental emergencies.
There is a whole world of research to be done here.
4. Beyond the Antarctic Treaty System
The next step may be controversial. The Antarctic environmental liability regime is also about to receive new competition.
In 2023, the International Maritime Organisation (IMO) and the Comité Maritime International (CMI) announced draft plans for the expansion of certain key IMO Conventions to include in their scope areas beyond national jurisdiction, including Antarctica.[4]
These alternative liability models contain fundamental differences and risks.[5] Still, the potential impact of this new alternative is currently unknown and completely open to research and investigation.
5. Environmental Liability in the other global Commons
The final step for legal researchers in the question of liability is to reach out beyond Antarctica. There are similar (but different) hurdles in the liability regimes on the deep seabed and outer space as well.
The Antarctic model is actually a first step on a long path towards a general, overall planetary policy of environmental responsibility and liability.
[1] ATCM XXVIII (2005) Measure 1 – Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty: Liability Arising from Environmental Emergencies.
[2] Art 12(1).
[3] Art 12(2).
[4] David Baker, Stacey Fraser and Emily Ferguson: ‘Working Paper – Antarctica: The new Alsatia for Liability and Compensation for Ship-Sourced Pollution Damage?’ CMI Yearbook 2023 (Comité Maritime International 2024), 186–224.
[5] ATCM XLII (2019) IP 155: ‘Overview of the IOPC Funds’ policy on claims for pollution damage’ (IOPC Funds); ATCM XLII (2019) IP 101: ‘Annex VI: Financial Security’ (IGP&I Clubs).