남극환경보호의정서의 책임부속서에 관한 연구

Abstract

In 1991, the international community adopted the Protocol on Environ- mental Protection to the Antarctic Treaty, instead of the Convention on the Regulation of Antarctic Mineral Resource Activities(CRAMRA). This Protocol is a comprehensive and broad environmental protocol, and complements the existing Antarctic Treaty System (ATS) which lacks the provision for the protection of Antarctic environment. It designates the Antarctic as "a natural reserve, devoted to science and peace", and regulates all human activities in Antarctica in accordance with a single standard in order to protect the Antarctic environment and the ecosystems that rely on it. In 2005, "the Annex VI on the liability arising from environmental emergencies"(the Liability Annex) was adopted to embody the liability scheme in accordance with the Article 16 of the Environmental Protection Protocol. This paper aims to examine and analyse the liability regime related to environmental emergencies in Antarctica, and to indicate the points at issue and their remedy. Annex VI is applied to the environmental emergencies which relate to scientific research programmes, tourism and all other governmental and nongovernmental activities in the Antarctic Treaty area, including relevant logistic support activities. Annex VI does not include the liability for damage, and does not cover state responsibility or civil liability. Instead, it gives priority to preventative measures, contingency plans, and response action to prevent environmental emergencies and to reduce their effect. The most important fact here is the question of who will be held liable for the cost of clean-up activities after environmental emergency. Annex VI imposes the liability to pay the clean-up costs on the operator, and if the operator fails to take prompt and effective action, he has to pay the Party who takes the actual response action for the clean-up costs. The liability of the operators is strict. The liability of the operator, however, is financially restricted, and he is required to maintain adequate insurance or other financial security to cover his liability. Annex VI has a significant meaning in that it minimizes the impact of environmental emergencies to Antarctic environment and its ecosystems by preventing the environmental emergencies and establishing response action. This Annex, however, is only the first step to implement Article 16 of the Environmental Protocol, and needs much improvement. Firstly, Article 6(5) allows sovereign immunity under international law for warships, naval auxiliaries, or other ships or aircraft owned or operated by States on government non-commercial service. Although this Article stipulates that the State is responsible for taking response action to environmental emergencies that it caused, sovereignty immunity frees such ships or aircraft from the regulation of this Annex and Article. In light of the fact that most of ships or aircraft in Antarctica are owned or operated by States, this Article reduces the scope of application and weakens the effectiveness of this Annex. This Article should therefore be revised towards not allowing sovereign immunity. Secondly, Annex VI rules out the liability for the reparation or restoration of the environmental damage caused by environmental emergencies. The reason behind this is that in reality it is difficult to include all liability caused by environmental emergencies in Antarctica in this Annex. As a result, a half liability regime has been made that does not impose the liability of compensation for the fatal damages of the Antarctic environment done by the activities of a third party, but imposes the liability for the response action and its costs to environmental emergencies. This problem has to be resolved by complementing the Annex in additional steps. Thirdly, there is no enforcement mechanism to operate the liability regime. This applies to the ATS in general. More importantly in the liability regime, the lack of an enforcement mechanism indicates that there is no means to force the implementation of the Annex, even if a liable third party does not take response action to environmental emergency or does not cover the costs of response action that another State took for him. The Committee for Environmental Protection established under the Environment Protocol plays a role providing advice and recommendation to the States Parties concerning the implementation of the Protocol, but it is not an enforcement mechanism. In order for the Annex VI to be more effective, the Committee should be granted more substantial competence to exercise legal force when States do not fulfill their obligations. Fourthly, the process of adopting the Annex is exclusive. Like the Environmental Protocol, Annex VI was adopted in the Antarctic Treaty Consultative Meeting, of which only the Consultative parties consist, and non-Consultative Parties could not participate in entirety. It is an inherent problem of the ATS that it has a duplicate structure of the Consultative Parties and the non-Consultative Parties. When the non-Consultative Parties are excluded from the process of adopting such an important regime, it becomes difficult to reflect the universal will of the international community, and to expect universal acceptance needed to implement the new regime. Therefore, such exclusiveness has to be corrected in the future. Lastly, the entry into force of Annex VI is being delayed. Annex VI will enter into force after approval by the 28 Consultative Parties, but it will introduce burdens to the majority of Consultative Parties. Because the liability regime focuses on protecting the environment, the Parties must perform many obligations, such as reasonable preventative measure and response action, once the Annex is in force. However, in order for the liability regime to be established as legally binding, it is required for the States to implement and observe it, and the approval of this regime should be achieved as soon as possible.