Annex VI of the Protocol on Environmental Protection to the Antarctic Treaty (so-called Liability Annex) was adopted in 2005. It establishes the liability of States parties and operators for specific cases of environmental pollution in Antarctica. To date, Annex VI has not yet entered into force for lack of a sufficient number of ratifications.
In a first step, we outline the content of Annex VI and compare it to existing rules of international law applicable to human activities in Antarctica (II.). We show that compared to relevant international treaties and customary international law, including the customary no-harm rule and principles of State responsibility, Annex VI closes currently existing gaps regarding the liability of States and operators for environmental pollution in Antarctica. We then analyse possible reasons behind the delay in ratifications (III.). Besides the possible reluctance of States to submit to more extensive liability obligations, an analysis of reports of the annual Antarctic Treaty Consultative Meetings (ATCM) shows that some States question the enforceability of Annex VI due to the perceived ambiguity of some of its provisions. These concerns are, however, not shared unanimously amongst the Consultative Parties. Most recently, as part of the 45th ATCM 2023, it was therefore decided to hold an informal intersessional process to share information on domestic implementation to assist the remaining Parties in their ratification process. We discuss the provisional application of Annex VI as an additional solution to overcome the current standstill in this matter (IV.). In view of the urgency for liability rules for environmental emergencies in Antarctica, also due to growing environmental risks caused by climate change and the increasing number of tourist ship voyages to Antarctica, we argue that provisional application should at least be agreed upon between the States that have already ratified the Annex.
