Responsibility and guardianship for Southern Ocean governance

The Antarctic Treaty and the Convention on the Conservation of Antarctic Marine Living Resources have been enormously successful at maintaining peace in the region which includes the vast and crucial Southern Ocean. Nonetheless, there are several increasing threats to biodiversity in this region, including the rapidly changing climate, fishing, tourism, and now diseases such as avian flu. Some of these have been able to be addressed by the parties, but others have not yet.

There are various means for biodiversity and ecosystem protection available under the two treaties: species-based, area-based, and activity-based tools. There are also helpful principles for protection, such as the need for precaution, for environmental impact assessment and monitoring, and for evidence-based decision-making. However, the adoption of these protective tools has been increasingly hampered by a lack of consensus among all treaty parties. The creation of protected areas and protected species designations have faced the most disagreement. For example, in 2024, proposals were unable to be agreed to for the special protection of Emperor penguins, nor for a marine protected area around the Antarctic Peninsula; moreover, an existing Conservation Measure for the krill fishery in that area was unable to be continued. This was despite science underpinning all parties' discussions.

This paper examines innovative legal tools and approaches to integrated protection for governance of the Southern Ocean. Integration is already being trialed for matters that are typically considered separately, such as krill fishery management, marine protected areas, and environmental impact monitoring. Climate change will need to be integrated with these and other tools, such as via climate-smart marine spatial planning.  However, much more is needed.

Such innovative legal tools and approaches need to emphasise commonalities between states, for better integrated ocean and biodiversity protection. These may or may not include emphasising intrinsic value and/or rights of nature; interpretations of these concepts will need to be chosen that are not culturally specific. This paper suggests that more important will be frameworks and approaches that prioritise responsibility, respect and guardianship in our governance of the Southern Ocean.

This paper examines methods for adopting human and state responsibilities for the protection of Antarctic and Southern Ocean species and ecosystems. Ancient, kinship-based approaches are considered, as are different religious or spiritual approaches. It considers the knowledge and belief systems that underpin such approaches, and how they might be included in science-based decision-making processes such as for Southern Ocean governance.  It considers whether such approaches may better cross cultural boundaries and achieve consensus, particularly when compared with rights-based ones. Only ones that can achieve consensus will ensure the maintenance of Southern Ocean species, ecosystems, and functions. Achieving consensus will enable the Southern Ocean to continue its global role in the maintenance of the health of the oceans and the climate worldwide, long into the future.

* Prof Iorns is a Law Professor working on environmental law and indigenous rights, who has won several awards for her research and teaching. Her IUCN work focuses on Antarctica and Southern Ocean protection and governance.