The effect on Antarctic science of an Antarctic liability regime

Jack A. Bobo, Esq.

1900 Columbia Pike #302, Arlington, Virginia 22204 USA

JackBobo@erols.com

Received October 1996

The continuing place of science in Antarctica was formally, and legally, recognised under the 1959 Antarctic Treaty, the terms of which reserve the continent for scientific investigation, co-operation and other peaceful purposes (ATCPs 1959). In the 1991 Protocol on Environmental Protection to the Antarctic Treaty (herein known as the Madrid Protocol or the Protocol), the Antarctic Treaty Consultative Parties (ATCPs) committed themselves to comprehensive protection of the Antarctic environment and designated Antarctica as a natural reserve devoted to peace and science (ATCPs 1 992). Article 16 of the Madrid Protocol called for the adoption of procedures relating to liability in the form of one or more annexes to the Protocol. It was understood that liability for harm to the Antarctic environment should be included in such an annex (Watts 1992: 405).

A meeting of legal experts took place at the University of Cambridge, 7-12 October 1996, to construct an effective liability regime for environmental damage in Antarctica, referred to as the Annex on environmental Liability to the Madrid Protocol. The group consisted of representatives of all the ATCPs, as well as of the other Contracting Parties to the Antarctic Treaty. This was the most recent in a series of biannual meetings on this topic held since the first meeting in October 1993. The purpose of the meeting was to discuss, and to attempt to resolve, some of the complex issues of law and policy raised by the issue of liability. Two fundamental issues confronting the group concerned the scope of the liability annex and the definition of damage.

The liability annex would provide compensation for harm to the Antarctic environment, excluding issues of liability for harm to individuals or equipment in the Antarctic Treaty area. The Cambridge meeting was important because representatives of the Scientific Committee on Antarctic Research (SCAR) attended the meeting and presented a statement expressing views and concerns of the scientific community over the future of scientific research in Antarctica under the proposed liability annex.

The ultimate terms of a liability annex may have profound repercussions for scientists working in Antarctica. This article examines provisions of the proposed annex, considers how the annex may affect the way that science is conducted in Antarctica, and identifies issues that remain open to further negotiations.

The purpose of the Annex on Environmental Liability, as set out in the preamble, is 'to promote the prevention, minimisation and containment of damage to the Antarctic environment and dependent and associated ecosystems, and to provide for adequate compensation for damage.' Article 3 of the liability annex defines 'damage' and, more importantly, identifies which activities and events do not constitute damage for purposes of the annex. The definition of damage mirrors the environmental principles elaborated in Article 3 of the Madrid Protocol. According to proposed Article 3 (l)(a) of the liability annex, 'damage' means any harmful impact on the Antarctic environment and dependent and associated ecosystems caused by an activity in the Antarctic Treaty area that is of a more than minor and more than transitory nature. Setting aside for the moment exceptions to this definition, one finds that damage includes any impact of a more than minor and transitory nature (Article 8 of the Protocol and Articles 2 and 3 of Annex 1 referring to 'more than minor or transitory' impacts, unlike the proposed liability Annex, which refers to 'more than minor and more than transitory' impacts). Absent from this definition is any reference to 'fault' on the part of the operator who caused the harmful impact. Liability in the absence of fault is known as 'strict liability.' This type of liability regime is often reserved for activities that are extremely hazardous or where fault is difficult to ascertain. Such a regime promotes a high level of care by operators engaging in these activities.

Annex 1 to the Madrid Protocol requires that fundamental consideration be given to protection of the environment, including the aesthetic and wilderness values and its value as an area for the conduct of scientific research, in the planning and conduct of all activities. The Parties to the Protocol wanted visitors to Antarctica to conduct their activities with a high level of care. While the general rule for liability in Antarctica may be that nearly every impact amounts to damage, this stance is considerably modified, and weakened, by paragraphs that enumerate impacts that will not be recognised as damage for purposes of the liability annex, despite their harm to the Antarctic environment. Paragraphs (1)(aa) and (bb) of Article 3 of the liability annex identify impacts that do not constitute damage, namely, impacts that have been assessed as unavoidable in a Comprehensive Environmental Evaluation (CEE) and, perhaps, those assessed as unavoidable in an Initial Environmental Evaluation (IEE) in accordance with Article 8 of the Protocol and Annex 1 to the Protocol and judged acceptable by the competent authorities of the State Party concerned.

The question of whether to include or exclude harm assessed in an IEE from the definition of damage is controversial. The resolution of this issue will have a definite impact on the choice scientists must make between conducting an IEE and a CEE, when only an IEE is required by the assessing Party. In theory, there should be no difference whether the IEE is included or excluded from the definition of damage, since an activity that has been conducted solely on the basis of an IEE should have no more than a minor or transitory impact, otherwise a CEE would have been conducted. Damage only occurs, and gives rise to liability, when harm to the environment is of a more than minor and more than transitory nature. The difficulty arises when harm identified in the IEE as minor or transitory in nature is, in fact, more than minor and more than transitory. Furthermore, the State Party, which authorised the activity on the basis of the IEE, when a CEE would have been required by Annex 1, may be liable for breach of the Protocol.

An operator who conducts only an IEE does not expose the project to the scrutiny of the international scientific community as would he the case with a CEE, which must be circulated among the ATCPs. This may result in differences of opinion as to what constitutes minor or transitory damage. For example, if a scientific project requires the killing of a leopard seal, a State Party may assess this as having no more than a minor or transitory impact, in which case, the scientist need only complete an IEE. Later, an objection may be raised that the impact is more than minor or transitory and that a CEE should have been conducted to determine the extent of the impact. In this example, the harm assessed and the harm that results are exactly the same; the difference lies in how an objective observer views the impact. The scientist followed the appropriate procedures; the killing of the seal was determined to have no more than a minor or transitory impact. But what if an objective observer should later conclude that the impact was, in fact, more than minor and more than transitory? Would this harm then amount to damage giving rise to liability? The drafters of the Annex have not yet made a final determination on this point.

This issue is obviously of concern to scientists since most projects are conducted on the basis of an IEE and not a CEE. The provision would not apply only to scientists, of course, but to all operators in Antarctica. The alternative formulation, that harm identified in an IEE cannot give rise to liability, is also unsatisfactory to some State Parties because it may let operators get away with too much harm. To conclude that no liability attaches would mean that there is no penalty for only conducting an IEE when a CEE is required under Annex 1. This creates an incentive for operators to do not only the minimum evaluation available, but also to identify as many potential harms as possible however unlikely they might be. This seems counterproductive to some ATCPs since incorrectly identifying the extent of harm is exactly the type of situation that they believe should give rise to liability and the necessity for compensation.

When harm to the environment is objectively determined to be more than minor or transitory, and an objective operator would have conducted a CEE, then an operator would normally expect to be liable for harm in excess of the minor or transitory level if the CEE was not conducted. It would be helpful if the liability annex defined 'minor or transitory' in such a way that operators would know with greater certainty when a proposed project required a CEE. SCAR is currently working on a formula to assist operators in the determination; this would only be a guide and without legal effect (Peter Clarkson, executive secretary of SCAR, personal communication, 17 October 1996). If harm identified in an IEE is not excepted from the definition of damage, then an assessment that damage will be no more than minor or transitory and that no CEE is necessary is not a final determination for the purpose of liability. This means that scientists in Antarctica cannot be certain that their project, conducted according to procedures established under an IEE, will not give rise to liability. The only way to be certain that an assessed harm will not give rise to liability is if the harm has been identified in a CEE. This provides incentive for scientists and other operators to conduct a CEE when there is doubt as to the extent to which a project will cause harm to the environment. Perhaps operators conducting an IEE can reassure themselves by circulating project proposals to the appropriate agencies in other states. Parties would then have an opportunity to voice objections to proposed activities before the harm occurs.

The liability just described occurs when a harm is incorrectly identified as no more than minor or transitory. A separate problem arises when environmental harm occurs that could not have been anticipated based on current scientific understanding. Such harm, by definition, cannot have been assessed in an IEE or CEE. The question is: should unforeseeable harm give rise to liability and the need for compensation?

SCAR raised the issue of unforeseeable harm at the liability meeting. SCAR supports the necessity of a liability regime to protect the Antarctic environment. It also agrees that scientists should not be excluded from such a regime, hereby ensuring their compliance with the environmental principles of the Madrid Protocol and Annex 1. However, not all activities in Antarctica were created equal. SCAR does not believe that scientists should be accountable for environmental harm that results from scientific research when that harm was unforeseen and, more importantly, could not have been reasonably foreseen based on scientific understanding at the time the research was evaluated and undertaken. SCAR argues that because science holds a unique place in Antarctica, given the purposes set out in the Antarctic Treaty, Protocol, and Annexes, special consideration should be given to science when establishing a liability regime. The same arguments may not apply to commercial operators. This position may conflict with the goal of a strict liability regime, since it would create an exception to liability under limited circumstances when it can be established that there was no fault. Some Parties argue, however, that a finding of liability in such a circumstance would amount to absolute liability, a standard more stringent even than strict liability.

Under the current terms of the Protocol and under the current draft of the liability annex, all activities in Antarctica should be exposed to the same liability regime. The draft annex creates a strict liability regime for any harm to the environment that was not identified in the Comprehensive Environmental Evaluation, and for harm not identified in the Initial Environmental Assessment. This should not be confused with the earlier discussion that concerned harm which was, in fact, identified in an IEE. SCAR takes exception to placing scientific research on the same footing as commercial activities in regard to unforeseeable harm. There are at least two reasons why scientific research should not be held to this same standard. First, scientific research is an activity specifically recognised as a goal of the Antarctic Treaty. Furthermore, Article 3(3) of the Protocol states that '[a]ctivities shall be planned and conducted in the Antarctic Treaty area so as to accord priority to scientific research and to preserve the value of Antarctica as an area for the conduct of such research, including research essential to understanding the global environment.' Past research has been of great benefit to mankind, as in the case of the discovery of the ozone hole and in the identification of global climate change over the past 500,000 years through the analysis of ice cores. Although such research carries with it certain unforeseeable dangers that may turn out to be costly, it also carries great benefits that cannot necessarily be measured. This brings the argument to the second point, that the risks of science cannot be ascertained with the same certainty as commercial operations. Science operates at the boundaries of human knowledge. Scientists will inevitably encounter unexpected situations by virtue of their quest for the unknown; they should not be penalised for their research when reasonable care has been taken, because this could only serve to discourage such endeavours. These arguments apply to scientific expeditions, but do not carry the same weight for commercial operations. Of course, some tour operations are carried out by government operators and some scientific research is supported logistically by tour operators, so the character of a particular operator will depend on the specific activity under consideration.

SCAR identified a very appropriate example that illustrates the type of research that might be a victim of harsh liability provisions and yet is extremely important to increasing human understanding. Recently, a Russian research team drilled an ice core above, as it was later learned, a vast lake under the Antarctic ice sheet. Had the core been drilled all the way to the lake it would have resulted in irreparable harm to the lake. This would have occurred despite the fact that the best scientific knowledge at the time would not have indicated the existence of such a lake. How should a catastrophe like irreparable pollution of an invaluable and heretofore unknown resource be considered? What would be the valuation of damages done to this lake? Would it be fair to hold these scientists liable for damaging a resource that may only have been known to exist due to their own research? Clearly, holding scientists strictly liable, meaning that no consideration is given to issues of fault, would discourage scientific research in certain fields of inquiry.

SCAR proposed that scientists should only be held liable when they cause harm that was not provided for in the impact assessment and, in addition, when reasonable care was not exercised. The situation that seems to concern SCAR is that in which scientists exercise reasonable care and yet an experiment nonetheless results in unforeseen harm to the environment.

SCAR has not suggested that scientists should be held to a different standard than other operators in Antarctica for all harm that scientists might cause. For example, an accidental fuel release that contaminates the ice may be unforeseen, and the harm not predicted in an impact assessment, and yet in this situation scientists should still be held to the same standard of care as other visitors to Antarctica. The consequences of the spill are the same whether it is the result of a commercial or scientific expedition. SCAR seems to be concerned with the situation of the experiment that goes as planned and yet still results in harm that could not have been foreseen, as in the ice-core example. In this situation, scientists should only be liable if reasonable care was not taken in light of current scientific knowledge. This amounts to a negligence standard in legal parlance. In other words, SCAR believes that scientific expeditions should only be held liable for harm caused by the negligence, recklessness, or intentional act of the scientists themselves. A harmful impact must have been the fault of the actor to give rise to liability.

Earlier annexes to the Protocol allow some exemptions from liability. For example, an operator is not liable for harm caused in an effort to save human life. SCAR seeks similar recognition of the importance of scientific research through the inclusion of an exemption from liability of scientific research when conducted with reasonable care in light of current scientific understanding.

At the moment it does not seem likely that an exemption for scientific research will be adopted as part of the liability annex. Despite the importance and validity of arguments raised by SCAR, the protocol and liability annex are dedicated to the proposition that all activities will he treated equally in terms of liability. Although new exemptions are unlikely to arise for a single class of operator, this does not mean that the exemption sought by SCAR could not be created for all operators in Antarctica.

The legal experts who met in Cambridge are considering a general exception to liability for all operators in Antarctica when the harm could not have been reasonably predicted. Article 3 paragraph (l)(cc) of the draft annex states that damage does not include an impact that 'because of the state of scientific knowledge at the time the [IEE or] CEE was prepared and when the activity giving rise to the impact began, and taking due account of the precautionary principle, the impact or its harmful effect could not reasonably have been predicted.' Unlike the proposal by SCAR, this definition is both broader, in that it would create an exception for all operators, not simply scientists, and narrower, in that it would not, if the reference to the IEE in the above paragraph is excluded, create an exception for any activities conducted under an IEE.

The argument for including the IEE in this exception is not the same as that presented in the previous discussion, for example, if there are two operators conducting identical activities and one conducts an IEE and the other chooses to do the more extensive CEE, and both activities result in unforeseen harm of an identical nature that could not have been predicted. If the reference to the IEE is not part of the exemption then the first operator would be liable for the unforeseen harm and the second would not. Two operators identically situated would be treated differently. There is no danger of abuse since both operators will have to prove before the competent authority that they could not have foreseen the harm, given the state of scientific: knowledge at the time the activity began. Excluding the IEE will leave many scientists without the protection of this exemption or, alternatively, force them to conduct a CEE when such an evaluation is unnecessary.

Even if the IEE is left out of the exemption, this should not be interpreted as seriously limiting science in Antarctica for several reasons. First, scientific expeditions will need liability insurance just like commercial operators. However, most scientific projects are unlikely to result in excessive and unforeseeable damage, so there would he no need to have insurance beyond that which is necessary for regular activities. Not all activities carry the same environmental risk as drilling ice cores. For activities carrying significant risk, perhaps a CEE would need to be conducted, thereby protecting against liability for unforeseen harm. Of course, this does not mean that the most innovative science will not find the threat of liability somewhat limiting. Second, under the draft annex, liability may be limited, which would mean a limit on compensation or reimbursement for environmental harm. If Parties do decide to limit liability, there would be no danger of unlimited liability for scientists, no matter how extensive the actual harm to the environment. Third, even under a strict liability regime the extent of compensation need not be the same for all activities, While the determination of when liability arises may be the same for all activities, the nature of the activity can play a role in setting the level of compensation. Under the most recent draft of the annex, the extent of compensation shall include the 'circumstances giving rise to [the harm] and any factors referred to by the body determining liability.' The body determining liability can take inter account the unique position of science within the Antarctic Treaty System.

Scientists might sleep easier if there were a statement in the annex that the body determining the extent of reimbursement should consider several factors: whether the action was a result of a scientific project, was undertaken with all reasonable care, and incorporated current scientific understanding of the topic. The draft annex, in paragraphs (3) and (5) of the section on irreparable damage, already allows the ATCM to adopt guidelines, upon the recommendation of the Committee on Environmental Protection (CEP), concerning the calculation of the amount to be paid by operators. This section could be used to achieve the same end as the three factors identified above. The limitation of either approach, over an exemption for unforeseeable harm, is that it does not give the scientist certainty that if all reasonable care is taken there will be no liability.

Finally, scientists should be aware that emergency response action may be required even in the absence of liability. Article 15 of Annex 1 requires ATCPs to provide prompt and effective response action to such emergencies as might arise in the course of any activity in the Antarctic Treaty area. While this Article is directed at ATCPs, it has been suggested that it would also require States Parties to place obligations on operators to take response action, whether or not the operators are required to provide compensation under the Annex on Environmental Liability. This requirement is further reflected in Article 4 of the draft liability annex, which requires the operator to take appropriate response action to minimise or clean up any harmful impact.

ATCPs. 1959. The Antarctic Treaty. As done at Washington on 1 December 1959. Reproduced in: Bush, W. (editor). 1982. Antarctica and international law: a collection of inter-state and national documents. New York: Oceana: I, 46-107.

ATCPs. 1992. Protocol on Environmental Protection to the Antarctic Treaty -- Final report of the Eleventh Antarctic Treaty Special Consultative Meeting, Madrid, 22-30 April 1991; 17-22 June 1991; 3-4 October 1991. Madrid: Ministerio de Asuntos Exteriores.

Watts, A. 1992. International law and the Antarctic Treaty System. Cambridge: Cambridge University Press and Grotius Publications.

The accuracy of references in the text and in this list is the responsibility of the author to whom gueries should be addressed.