Liability postponed: the failure to bring Annex VI of the Madrid Protocol into force

The 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol) and its first four annexes entered into force in 1998, with a fifth annex in 2002. Madrid Protocol Article 16 mandated elaboration of ‘rules and procedures relating to damage arising from activities taking place in the Antarctic Treaty area and covered by this Protocol’, in ‘one or more Annexes’ to the Protocol. These matters were explored for over a decade from 1992 in a Legal Experts Group and then in a Working Group where an annex was negotiated. At the 2005 Antarctic Treaty Consultative Meeting, Annex VI to the Protocol, Liability Arising from Environmental Emergencies, was adopted as legally binding Measure 1 (2005). That annex covers, in the view of some delegations, only part of the liability anticipated in Article 16. Accordingly, the ‘Stockholm Package’ included a commitment in Decision 1 (2005) to both annually review entry into force of the annex and to take a decision ‘not later than 5 years from the adoption of the Annex … on the establishment of a time-frame for the resumption of negotiations … to elaborate further rules and procedures as may be necessary’. Thirteen years after its adoption, Annex VI has still to enter into force, with just 16 of the 28 state approvals necessary for entry into force. The decision on further negotiations has been repeatedly postponed. This paper examines the focus and pathway from the negotiation of Annex VI to the present moment, considering the ‘Stockholm Package’ and broader context of liability discussions within the Antarctic Treaty System commencing over 30 years ago. It notes some areas where the present Annex requires further development or updating and offers some tentative considerations on whether and when Annex VI might finally enter into force.