Convention on the Regulation of Antarctic Mineral Resource Activities

 

Article 8

Response Action and Liability

1 An Operator undertaking any Antarctic mineral resource activity shall take
necessary and timely response action, including prevention, containment, clean
up and removal measures, if the activity results in or threatens to result in
damage to the Antarctic environment or dependent or associated ecosystems. The
Operator, through its Sponsoring State, shall notify the Executive Secretary,
for circulation to the relevant institutions of this Convention and to all
Parties, of action taken pursuant to this paragraph.

2 An Operator shall be strictly liable for:

(a) damage to the Antarctic environment or dependent or associated ecosystems
arising from its Antarctic mineral resource activities, including payment in the
event that there has been no restoration to the status quo ante;

(b) loss of or impairment to an established use, as referred to in Article 15,
or loss of or impairment to an established use of dependent or associated
ecosystems, arising directly out of damage described in subparagraph (a) above;

(c) loss of or damage to property of a third party or loss of life or personal
injury of a third party arising directly out of damage described in subparagraph
(a) above; and

(d) reimbursement of reasonable costs by whomsoever incurred relating to
necessary response action, including prevention, containment, clean up and
removal measures, and action taken to restore the status quo ante where
Antarctic mineral resource activities undertaken by that Operator result in or
threaten to result in damage to the Antarctic environment or dependent or
associated ecosystems.

3 (a) Damage of the kind referred to in paragraph 2 above which would not have
occurred or continued if the Sponsoring State had carried out its obligations
under this Convention with respect to its Operator shall, in accordance with
international law, entail liability of that Sponsoring State. Such liability
shall be limited to that portion of liability not satisfied by the Operator or
otherwise.

(b) Nothing in subparagraph (a) above shall affect the application of
the rules of international law applicable in the event that damage not referred
to in that subparagraph would not have occurred or continued if the Sponsoring
State had carried out its obligations under this Convention with respect to its
Operator.

4 An Operator shall not be liable pursuant to paragraph 2 above if it proves
that the damage has been caused directly by, and to the extent that it has been
caused directly by:

(a) an event constituting in the circumstances of Antarctica a natural disaster
of an exceptional character which could not reasonably have been foreseen; or

(b) armed conflict, should it occur notwithstanding The Antarctic Treaty , or an
act of terrorism directed against the activities of the Operator, against which
no reasonable precautionary measures could have been effective.

5 Liability of an Operator for any loss of life, personal injury or loss of or
damage to property other than that governed by this Article shall be regulated
by applicable law and procedures.

6 If an Operator proves that damage has been caused totally or in part by an
intentional or grossly negligent act or omission of the party seeking redress,
that Operator may be relieved totally or in part from its obligation to pay
compensation in respect of the damage suffered by such party.

7 (a) Further rules and procedures in respect of the provisions on liability set
out in this Article shall be elaborated through a separate Protocol which shall
be adopted by consensus by the members of the Commission and shall enter into
force according to the procedure provided for in Article 62 for the entry into
force of this Convention.

(b) Such rules and procedures shall be designed to enhance the protection of the
Antarctic environment and dependent and associated ecosystems.

(c) Such rules and procedures:

(i) may contain provisions for appropriate limits on liability, where such
limits can be justified;

(ii) without prejudice to Article 57, shall prescribe means and mechanisms such
as a claims tribunal or other fora by which claims against Operators pursuant to
this Article may be assessed and adjudicated;

(iii) shall ensure that a means is provided to assist with immediate response
action, and to satisfy liability under paragraph 2 above in the event, inter
alia, that an Operator liable is financially incapable of meeting its obligation
in full, that it exceeds any relevant limits of liability, that there is a
defence to liability or that the loss or damage is of undetermined origin.
Unless it is determined during the elaboration of the Protocol that there are
other effective means of meeting these objectives, the Protocol shall establish
a Fund or Funds and make provision in respect of such Fund or Funds, inter alia,
for the following:

– financing by Operators or on industry wide bases;

– ensuring the permanent liquidity and mandatory supplementation thereof in the
event of insufficiency;

– reimbursement of costs of response action, by whomsoever incurred.

8 Nothing in paragraphs 4, 6 and 7 above or in the Protocol adopted pursuant to
paragraph 7 shall affect in any way the provisions of paragraph 1 above.

9 No application for a exploration or development permit shall be made until the
Protocol provided for in paragraph 7 above is in force for the Party lodging
such application.

10 Each Party, pending the entry into force for it of the Protocol provided for
in paragraph 7 above, shall ensure, consistently with Article 7 and in
accordance with its legal system, that recourse is available in its national
courts for adjudicating liability claims pursuant to paragraphs 2, 4 and 6 above
against Operators which are engaged in prospecting. Such recourse shall include
the adjudication of claims against any Operator it has sponsored. Each Party
shall also ensure, in accordance with its legal system, that the Commission has
the right to appear as a party in its national courts to pursue relevant
liability claims under paragraph 2(a) above.

11 Nothing in this Article or in the Protocol provided for in paragraph
7 above shall be construed so as to:

(a) preclude the application of existing rules on liability, and the development
in accordance with international law of further such rules, which may have
application to either States or Operators; or

(b) affect the right of an Operator incurring liability pursuant to this Article
to seek redress from another party which caused or contributed to the damage in question.

12 When compensation has been paid other than under this Convention liability
under this Convention shall be offset by the amount of such payment.

 

Article 9

Protection of Legal Positions under The Antarctic Treaty

Nothing in this Convention and no acts or activities taking place while this
Convention is in force shall:

(a) constitute a basis for asserting, supporting or denying a claim to
territorial sovereignty in the Antarctic Treaty area or create any rights of
sovereignty in the Antarctic Treaty area;

(b) be interpreted as a renunciation or diminution by any Party of, or as
prejudicing, any right or claim or basis of claim to territorial sovereignty in
Antarctica or to exercise coastal state jurisdiction under international law;

(c) be interpreted as prejudicing the position of any Party as regards its
recognition or non-recognition of any such right, claim or basis of claim; or

(d) affect the provision of Article IV(2) of the Antarctic Treaty that no new
claim, or enlargement of an existing claim, to territorial sovereignty in
Antarctica shall be asserted while the Antarctic Treaty is in force.

Article 10

Consistency with the Other Components of the Antarctic Treaty System

1 Each Party shall ensure that Antarctic mineral resource activities take place
in a manner consistent with the components of the Antarctic Treaty system,
including the Antarctic Treaty, the Convention for the Conservation of Antarctic
Seals and the Convention on the Conservation of Antarctic Marine Living
Resources and the measures in effect pursuant to those instruments.

2 The Commission shall consult and cooperate with the Antarctic Treaty
Consultative Parties, the Contracting Parties to the Convention for the
conservation of Antarctic Seals, and the Commission for the Conservation of
Antarctic Marine Living Resources with a view to ensuring the achievement of the
objectives and principles of this Convention and avoiding any interference with
the achievement of the objectives and principles of the Antarctic Treaty, the
Convention for the Conservation of Antarctic Seals or the Convention on the
Conservation of Antarctic Marine Living Resources, or inconsistency between the
measures in effect pursuant to those instruments and measures in effect pursuant
to this Convention.

Article 11

Inspection under the Antarctic Treaty

All stations, installations and equipment, in the Antarctic Treaty area,
relating to Antarctic mineral resource activities, as well as ships and aircraft
supporting such activities at points of discharging or embarking cargoes or
personnel at such stations and installations, shall be open at all times to
inspection by observers designated under Article VII of the Antarctic Treaty for
the purposes of that Treaty.

 

Author: international