CYIL vol. 11 (2020)

MARTINA FILIPPIOVÁ CYIL 11 (2020) to the protection of the Antarctic environment and its expert advice has great influence on the measures and decisions taken by the ATCM. It was precisely for the reasons of the CEP Rules of Procedure and the necessity to take decisions on the draft Comprehensive Environmental Evaluations that Argentina, where the seat of the Antarctic Treaty Secretariat is situated, kindly offered in 2018 to host (instead of Ecuador) at least a 3-day ATCM consecutively after a 3-day CEP. This extraordinary situation was expected never to repeat. But history proved it wrong. This year’s situation is, however, very different. Due to the globally uncertain pandemic and emergency situation, Finland had to cancel the scheduled ATCM and CEP. The situation will last the whole year, hopefully not affecting next year, and therefore no State is in a position to host even a short ATCM and CEP. It is to be noted that the CEP Rules of Procedure do not include any vis maior clause and, strictly legally speaking, the CEP should take place every year, including the current one. Although the responsibility here is not in question, according to Article 23 of the Articles on Responsibility of States for Internationally Wrongful Acts 4 “the wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.” Clearly, COVID-19 may be labelled as such an unforeseen event and irresistible force beyond the control of State. Therefore, it can be argued that the vis maior is applicable even when not expressly stated in such rules as it is a customary international law. Nevertheless, for the sake of clarity, revision of the CEP Rules of Procedure at next year’s ATCM may provide special rules for overcoming such situations. Even though the ATCM Rules of Procedure do not set forth an annual meeting, this year ATCM was supposed to assess a lot of important questions, among them a prominent place is taken by the consideration of the implications of liability limits in other relevant international instruments for a potential future amendment of the limits in Article 9 of Annex VI. 5 According to the Multi-Year Strategic Workplan that is adopted every year at the ATCM, the Secretariat of the Antarctic Treaty was tasked with the preparation of the supporting documents for such deliberations, specifically the report on limits on liability in other relevant international instruments. According to this plan, the ATCM was further supposed to make a decision on the establishment of a timeframe for the resumption of negotiations on liability in accordance with Article 16 of the Protocol. This provision makes reference to liability in general terms. It foresees that rules and procedures shall be elaborated in one or more annexes to the Protocol. The Protocol encompasses six Annexes which provide further details to certain provisions contained in the Protocol. It is the Annex VI which contains thorough provisions on liability. It is worth noting that while Annexes I to V already became effective, only the Annex VI is not yet in force. Article 9 of the Annex VI stipulates the limits of liability for environmental emergencies in Antarctica. These limits were inspired or taken over from the Convention on the Limitation of Liability of Maritime Claims (LLMC) or actually from its 1996 Protocol. As was pointed out during the XXVIII ATCM as recorded in the Final Report, it was considered 4 Articles on Responsibility of States for InternationallyWrongful Acts adopted by the International law Commission at its fifty-third session in 2001 and taken note by the UNGA Res. No.56/83 of 21 December 2001. 5 Decision 5 (2019) , accessed online .

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