CYIL vol. 11 (2020)

CYIL 11 (2020) RECENT DEVELOPMENTS IN THE ANTARCTIC TREATY SYSTEM appropriate that the limits set out in the Annex correspond to those in the 1996 Protocol and the benefits of compatibility with existing international regimes on liability were stressed. 6 However, it is to be noted that the limits under the 1996 Protocol are now doubled. Although Article 9 of the Annex VI in its paragraph 2 excludes affecting on any international liability regime, the Contracting Parties may wish to not only disregard the provisions of the 1996 Protocol but to set the standards of the limits on liability at the same level. It is worth remembering that the LLMC is not the convention itself that regulates this question. There are other multilateral treaties that on the one hand set different and always higher limits for liability than Annex VI, on the other hand, they also cover different activities and include diverse exceptions. Therefore, the question of the resumption of negotiations on liability is much broader than just its limits, and this year the ATCM was supposed to decide on the establishment of a proper time frame. What happens if the Consultative Parties decide to increase the limits of liability or to change any provision of the Annex VI? Paragraph 4 of Article 9 of said annex envisages that a review procedure of the limits mentioned in paragraph 1(a) and (b) should be carried out at least every three years at the request of any Party. Apart from setting the review procedure, it also foresees amendments to such time limits on the basis of consultation among the Parties to be made under the procedure of Article 13, paragraph 2 of the Annex VI. Legally speaking, the review itself may not pose real challenges, but it might be the outcome of such scrutiny. Should the Consultative Parties decide on any amendment, the question arises regarding the procedure as Annex VI is not yet effective. Let’s look at the relevant provisions. According to Article 9 of the Protocol, Annexes to the Protocol form an integral part thereof and annexes other than those numbered I-IV may be adopted and become effective according to Article IX of the Antarctic Treaty. Further paragraphs specify the modifications and amendments of the annexes. Pursuant to them, the modifications and amendments may be adopted and become effective under the same procedure as the Annexes V or VI, according to Article IX of the Antarctic Treaty. However, the annex itself may make provisions for the amendments and modifications to become effective on accelerated basis. Paragraph 4 of said article intends to clarify when such modifications and amendments become effective for the Contracting Party which has no consultative status, or did not have, at the time of the adoption of said amendment or modification. When the modifications or amendments become effective according to the above mentioned procedure, if the annex itself does not provide otherwise, for such Contracting Party the amendment or modification becomes effective when the Depositary receives a notice of approval of that Party. The Annex VI actually contains in Article 13 a fast- track procedure for amendments or modifications to become effective. Such Measure, according to Article IX, paragraph 4 of the Antarctic Treaty which contains a modification or an amendment, is deemed to be approved and will become effective one year after the close of the ATCM at which it was adopted, unless one or more Contracting Parties with consultative status notifies the Depositary within that year, that it wishes to make an extension of such period, or that it is unable to approve the measure. Apparently, the drafters of said provision also foresaw a situation that there might be any other Measure than the one taken pursuant to Article IX, paragraph 4 of the Antarctic

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6 Final Report, accessed online , para. 114, p. 37.