The Southern Ocean as a Legal Laboratory: Reviving the Bundle of Rights to Anchor Ecosystem Services in Marine Conservation

We propose an interdisciplinary framework combining scientific data and legal theory to enhance environmental protection in the Southern Ocean, focusing on krill fisheries. Through a “legal foresight” exercise, we explore how the outdated “bundle of rights” concept could reshape the economic and ecological value of krill, incorporating ecosystem services and natural capital into the CCAMLR (Commission for the Conservation of Antarctic Marine Living Resources) management system. This approach aims to address environmental externalities traditionally ignored in marine resource management by recognizing the broader environmental value of krill beyond economic transactions.

Antarctica’s lack of a permanent human population presents unique challenges for legal innovation. While climate litigation elsewhere has leveraged human rights—particularly Indigenous rights—this strategy is less applicable to Antarctica. However, the strong global attachment to Antarctica’s wildlife and landscapes, fosters a form of social capital that could influence international legal obligations, even in the absence of direct human rights claims. This global attachment could be further reinforced through ocean literacy, which, in addition to highlighting iconic wildlife and landscapes, emphasizes the shared knowledge of key services the region provides to humanity. This social capital could drive greater support for more rigorous conservation measures.

This work draws on Elinor Ostrom’s principles for managing common resources: symbolic connections to the region could promote collective stewardship, supporting a more robust conservation ethos. While we do not challenge state sovereignty or existing treaties, we advocate for a closer integration of legal and scientific perspectives to align the CCAMLR and Antarctic Treaty frameworks with modern environmental needs. By incorporating cutting-edge scientific data on krill’s ecological role—such as its contribution to the carbon pump—we suggest that international legal bodies like ITLOS, ICJ, and the WTO could serve as platforms for advancing conservation. Litigation through these bodies could help export commitments made under the CCAMLR to other regimes, reinforcing broader environmental governance.

This work advocates for reconciling legal and scientific approaches to conservation, highlighting the need for more collaborative, flexible strategies to effectively protect the Antarctic ecosystem. While exploratory, our work posits that litigation could play a role in clarifying environmental obligations that political processes may fail to address, providing an alternative path to uphold the Antarctic’s protected status.

Additionally, the unique characteristics of Antarctica and the Southern Ocean are shared with the global ocean, making the region a valuable "legal laboratory" for studying broader marine conservation issues. Lessons drawn from the governance of the Southern Ocean could inform global marine protection strategies, strengthening both legal and scientific frameworks worldwide.

Ultimately, this work offers an innovative thought experiment combining environmental philosophy, legal theory, and scientific data to propose new pathways for conservation in Antarctica. By fostering interdisciplinary dialogue, it aims to enhance our understanding of how legal strategies and scientific advancements can work together to ensure the ongoing protection of the Antarctic ecosystem and inform global ocean governance.