April 11, 2012

Preserving the Pristine: Why the United States Should Ratify the Antarctic Liability Annex

a(broad) perspective

Today’s post is second in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these ten treaties.  Previous posts are here.

Annex VI on Liability Arising from Environmental Emergencies to the Protocol on Environmental Protection to the Antarctic Treaty
Adopted and Opened for Signature on June 14, 2005
Entry into Force Pending
Signed by the United States on June 14, 2005
Sent to the Senate on April 2, 2009 

Antarctica is the coldest, driest, highest, most pristine, and least inhabited continent, and it has the largest contained ecosystem on the planet.  Home to whales, seals, penguins, petrels, and many animals and plants found nowhere else on earth, Antarctica also plays an integral role in regulating global environmental processes.  

Though largely isolated from human contact, Antarctica is still vulnerable to degradation from human activities.  For example, emissions of chemicals have caused a “hole” in the ozone layer over the southern pole, and emissions of greenhouse gases contribute to significant warming of the region.  More directly, the unmatched opportunities for scientific research, commercial fishing, and tourism have all taken a toll on this unique environment.  In addition to the 40 scientific stations on the continent, nearly 50,000 tourists visit every year. The increased tourism has increased the likelihood of marine accidents.  In recent years, several ships have run aground, leaking fuel oil into the ocean.

Protecting the Antarctic environment requires international cooperation, because no single government has jurisdiction over the entire continent.  The United States and other nations with scientific interests in Antarctica have worked together to establish rules governing conduct on the continent, including the Madrid Protocol on Environmental Protection to the Antarctic Treaty, which entered into force in 1998. The Protocol and its five annexes detail certain prohibitions and requirements for activities that impact the environment and also require the Parties to provide for “prompt and effective response action” to any environmental emergencies.  The Protocol does not allocate liability for environmental harm, leaving those rules open to further discussion.

In 2005 the Parties agreed on the Liability Annex to the Protocol. Under the Annex, if the operator of an activity in Antarctica fails to take prompt and effective response action to an environmental emergency, it will be liable to pay the costs of the response action taken or authorized by the state Parties.  Payment is made into an international fund that is administered by the Parties, and reimbursement of non-responsible Parties may be made from this fund.  The Annex will not enter into force until all 28 consultative Parties to the Antarctic Treaty ratify it. 

The United States has a long history of bipartisanship on Antarctica (it may sound funny, but it’s true, and worth noting), particularly with respect to liability for environmental harm.  The Madrid Protocol was negotiated, signed, and transmitted to the Senate by the George H.W. Bush Administration.  The Clinton Administration worked with Congress to draft implementing legislation for the Madrid Protocol and began the negotiation of the Liability Annex.  The George W. Bush Administration completed the negotiation of the Annex in 2005, and the Obama Administration sent the Annex to the Senate for its advice and consent in 2009.

The Liability Annex directly furthers U.S. interests in Antarctica by protecting the environment for scientific and tourism purposes and by placing the burden of cleaning up environmental harm on those who are responsible.  Without a system of compensation in place, the U.S. government would have to take such actions without any certainty that its expenses would be reimbursed by the responsible Parties. 

Ratification by the United States will enable it to urge other countries to ratify as well, allowing the treaty to take effect as soon as possible.  The legislation necessary to implement U.S. obligations under the Annex with respect to activities under its jurisdiction would involve no major changes to U.S. law and would not raise partisan issues.  The Senate should act quickly to provide its advice and consent, and the Obama Administration and Congress should propose and enact the necessary implementing legislation.

John Knox, CPR Member Scholar, Professor of Law, Wake Forest University. Bio.

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