Commentary on Sections Civil liability for failure to respond to environmental emergency Section 3 – Liability to Antarctic Environmental Liability Fund
18.This section applies to cases where the organiser of the activities which gave rise, directly or indirectly, to an environmental emergency in Antarctica fails to take reasonable, prompt and effective response action, and no response action is taken by any Party to Annex VI. In such cases, the amount that reasonable, prompt and effective response action would have cost becomes a liability which the organiser of the activities is liable to pay to the Antarctic Environmental Liability Fund. The Fund will be established under Article 12 of the Liability Annex, and will be maintained and administered by the Secretariat of the Antarctic Treaty. Its funds may be used only in accordance with a Decision adopted under Article 12 by the Antarctic Treaty Consultative Meeting.
19.Subsection (2) provides that in cases involving the activities of the Crown (as defined in section 10), the Secretary of State shall be required to make a direct payment to the Antarctic Environmental Liability Fund of an amount equal to the recoverable costs of the response action. In practice, this will be the Secretary of State responsible for the activities in question.
20.Subsection (3) makes provision about payment into the Fund by a person other than the Crown who is liable under this section. Subsection (4) exempts the Crown and any other Party to the Liability Annex from any liability under subsection (3) (the Crown is exempted because its liability is under subsection (2)).
21.Where the person organising the activities is based in the United Kingdom, or the activities are connected with the United Kingdom, subsection (6) enables the Secretary of State (in practice, the Foreign Secretary) to recover the costs as if they were a debt due to the Secretary of State. Under subsections (7) and (8), the Secretary of State may receive all or any of the amount due and transfer it to the Antarctic Environmental Liability Fund, or require the person who is liable to pay it to do so directly to the Fund. The limitation period is fifteen years from the date on which the Secretary of State became aware, or ought to have become aware, of the environmental emergency (see subsection (9)). This reflects Article 7(3) of the Liability Annex.