Harmonization Between the BBNJ Agreement and the Antarctic Treaty System

LI Jingchang

Abstract: The Antarctic Treaty system applies to the land and ocean south of 60° south latitude; the United Nations Convention on the Law of the Sea(UNCLOS) applies to all the oceans of the world, so does the system consisting of a series of treaties under the UNCLOS. It implies that the sea area south of that latitude is regulated simultaneously by the UNCLOS system and Antarctic Treaty system. Within the framework of the Antarctic Treaty system, the Convention on Conservation of Antarctic Marine Living Resources (CAMLR Convention)and the Commission for the Conservation of Antarctic Marine Living Resources(CCAMLR) established under the CAMLR Convention, have taken measures with respect to issues like illegal, unreported and unregulated fishing (IUU Fishing)and marine protected areas on the high seas. Additionally, the Antarctic Treaty Consultative Meeting (ATCM) had taken note of the utilization of Antarctic land and marine genetic resources in 2002, within whose framework the relevant legislation work has been initiated. These issues are also the core matters that the agreement under the UNCLOS on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (hereinafter referred to as “BBNJ Agreement”) seeks to address. The legislation work concerning the drafting of such an agreement is aggressively underway. The delegates participating in such work should be aware of the situation above and discuss the harmonization between the agreement and the Antarctic Treaty system, so as to pave way for its application in the Antarctic waters.

Key Words: BBNJ Agreement; Antarctic Treaty system; Harmonization

I. Formulation of the Research Question

On 22 May 2003, the delegation of the Netherlands submitted a report titled“The Need to Protect and Conserve Vulnerable Marine Ecosystems in Areas Beyond National Jurisdiction”, at the Fourth Meeting of the United Nations Openended Informal Consultative Process on Oceans and the Law of the Sea. The report which focused on the conservation and sustainable use of genetic resources of the deep seabed beyond national jurisdiction,1The need to protect and conserve vulnerable marine ecosystems in areas beyond national jurisdiction, United Nations General Assembly, A/AC.259/8, 22 May 2003, paras. 16～18.attracted wide attention from the international community. On 17 November 2004, the Ad Hoc Open-ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction (hereinafter“Ad Hoc Working Group”) was formally established in line with paragraph 73 of Resolution 59/24 adopted by the United Nations General Assembly (UNGA).2Resolution adopted by the General Assembly on 17 November 2004 [without reference to a Main Committee (A/59/L.22 and Add.1)]: Oceans and the law of the sea, United Nations General Assembly, A/RES/59/24, para.73.According to paragraphs 79 and 80 of Resolution 60/30 adopted by UNGA on 29 November 2005, and paragraph 91 of Resolution 61/222 adopted by UNGA on 20 December 2006,3Resolution adopted by the General Assembly on 29 November 2005 [without reference to a Main Committee (A/60/L.22 and Add.1)]: Oceans and the law of the sea, United Nation General Assembly, paras. 79～80; Resolution adopted by the General Assembly on 20 December 2006 [without reference to a Main Committee (A/61/L.30 and Add.1)]: Oceans and the law of the sea, United Nation General Assembly, para. 91.the first meeting of the Ad Hoc Working Group was held in New York from 28 April to 2 May 2008, and the working group presented the outcome of the meeting to the Sixty-Third UNGA on 15 May 2008.4Letter dated 15 May 2008 from the Co-Chairpersons of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction addressed to the President of the General Assembly, United Nations General Assembly, A/63/79.On 30 June 2011, the Ad Hoc Working Group sent its recommendations to the UNGA, stating that:

A process be initiated, by the General Assembly, with a view to ensuring that the legal framework for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction effectively addresses those issues by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of amultilateral agreement under the United Nations Convention on the Law of the Sea.5Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly: Recommendations of the Ad Hoc Openended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction and Co-Chairs "summary of discussions, United Nations General Assembly, A/66/119, para. I(1)(a).According to the resolution adopted by UNGA on 19 June 2015, the General Assembly “decided to develop an international legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”.6Resolution adopted by the General Assembly on 19 June 2015 [without reference to a Main Committee (A/69/L.65 and Add.1)]: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction,United Nations General Assembly, A/RES/69/292, p. 1.To that end, a “Preparatory Committee” was established to make recommendations to the General Assembly on the elements of a draft text of such an instrument, and that committee “will start its work in 2016 and, by the end of 2017, report to the Assembly on its progress”.7Resolution adopted by the General Assembly on 19 June 2015 [without reference to a Main Committee (A/69/L.65 and Add.1)]: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction,United Nations General Assembly, A/RES/69/292.The Preparatory Committee held four sessions in the following periods: 28 March - 8 April 2016, 26 August -9 September 2016, 27 March - 7 April 2017, and 10 - 21 July 2017. At its fourth session, the committee released the “Chair "s streamlined non-paper on elements of a draft text of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”.8At http://www.un.org/depts/los/biodiversity/prepcom.htm, 1 July 2018.The legislation work concerning the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ) is proceeding at a rapid pace at the international level, which would eventually lead to the conclusion of a BBNJ Agreement under the UNCLOS.

UNCLOS is “a global convention applicable to all ocean space. No area of ocean is excluded. It follows that the convention must be of significance to the Southern Ocean in the sense that its provisions also apply to that ocean”.9Report of the Secretary-General: Question of Antarctica, United Nations General Assembly,Doc. A/41/722, 17 November 1986, para. 115.The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks,the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 and the forthcoming BBNJ Agreement are all implementation agreements of UNCLOS. Therefore, in the absence of special provisions on their application scopes, it is reasonable to conclude that the UNCLOS system consisting of a series of treaties based on the convention10The expression “UNCLOS system” has appeared in many articles, including: PAN Xiaolin,Resolution of International Maritime Dispute with Reference to the United Nations Convention on the Law of the Sea, Journal of Lanzhou University (Social Sciences),Vol. 42, No. 6, 2014 (in Chinese); FENG Xu, The Impact of Sea-Level Rise on Maritime Military Activities under the UNCLOS, Chinese Review of International Law, No. 5, 2017(in Chinese); CHEN Li, Study on the Legal Status of Antarctic Ocean, Fudan Journal(Social Sciences), No. 5, 2014 (in Chinese); Mary Lynn Canmann, A Review of the Application of the Antarctic Treaty and the New Law of the Sea to the Antarctic, Colorado Journal of International Environmental Law and Policy, Vol. 1, 1990, p. 211; Allan Young,Antarctic Resource Jurisdiction and the Law of the Sea: A Question of Compromise,Brooklyn Journal of International Law, 1985, pp. 45～78; Patrizia Vigni, The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area, Max Plank Yearbook of United Nations Law, Vol. 4, 2000, pp. 481～542;Christopher C. Joyner, The Antarctic Treaty System and the Law of the Sea-Competing Regime in the Southern Ocean?, International Journal of Marine and Coastal Law, Vol. 10,Issue 2, 1995, pp. 301～332. In the papers above, the UNCLOS system is considered to be a system consisting of a series of treaties based on the UNCLOS, including the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982. This view is adopted in this paper.would, like the UNCLOS, be applicable to the Antarctic Ocean.

According to Article 6 of the Antarctic Treaty, the treaty applies to the sea area south of 60° south latitude. Although it stipulates that nothing in the Antarctic Treaty shall prejudice or in any way aあect the legal status of the high seas south of 60° south latitude, in line with Article 4 of the treaty, territorial sovereignty disputes in the Antarctic continent are suspended. Since there still exists some controversy over the existence or absence of land territorial sovereignty in the Antarctic continent, the accurate scope of the high seas south of 60° south latitude, pursuant to the rule that “land dominates the sea”, a fundamental principle of the law of the sea, cannot be determined at the moment. Despite that the scope of the high seas and the Area in the Antarctic are uncertain, their existence is without any doubt.The provision of Article 6 recognizes the existence of high seas in the Antarctic waters; otherwise, it would be unnecessary to provide for the relationship between the high seas and the Antarctic waters. The BBNJ Agreement under the UNCLOS aims to conserve the marine living resources in the high seas and the Area, and to protect their marine habitats. The high seas and the Area also exist in the Antarctic Ocean. In this connection, the forthcoming BBNJ Agreement equally applies to the Antarctic Ocean.

However, a series of treaties based on the Antarctic Treaty have been adopted within the framework of Antarctic Treaty Consultative Meeting (ATCM), including the Convention for the Conservation of Antarctic Seals (CCAS), CAMLR Convention, and the Protocol on Environmental Protection to the Antarctic Treaty,also known as the Madrid Protocol. Being applicable to all the Antarctic waters,including the high seas and the Area, these treaties have already regulated the conservation and protection of the marine living resources and their habitats in the Antarctic. That is to say, the marine areas and affairs that the BBNJ Agreement intends to regulate in the Antarctic Ocean have already been under the application scope of the Antarctic Treaty system. Consequently, the high seas and the Area in the Antarctic would be regulated both by the BBNJ Agreement and the Antarctic Treaty system. Additionally, given the fragile natural environment of the Antarctic and international political calls for strict protection for it, the standards for living resources conservation and marine environmental protection in the Antarctic waters under the Antarctic Treaty system would possibly vary from those under the BBNJ Agreement.

Delegates from all over the world, therefore, should pay attention to the existence of the high seas and the Area within the Antarctic, and realize that the core issues to be regulated by the BBNJ Agreement have already been addressed by the Antarctic Treaty system through treaties and relevant measures. In the legislative work concerning the BBNJ Agreement, the harmonization of the agreement and the Antarctic Treaty system should be discussed.

II. Necessity of Harmonization

As mentioned above, the BBNJ Agreement under the UNCLOS applies to all oceans in the world, including those in Antarctica. However, the application of the BBNJ Agreement to the Antarctic waters, on the one hand, would give rise to conventional disputes over territorial sovereignty in Antarctica, jeopardizing the foundation of the Antarctic Treaty system; on the other hand, the Antarctic Treaty system, as a legitimate authority in the governance of Antarctic land and marine affairs, has regulated the core issues relating to BBNJ, posing challenges to the application of the BBNJ Agreement to the Antarctic waters. In view of this, it is necessary to discuss the harmonization between the BBNJ Agreement and the Antarctic Treaty system during the drafting of the agreement.

A. The Application of the BBNJ Agreement to Antarctica Leads to Concerns over Territorial Sovereignty Disputes

When capitalism entered into monopoly stage in the late 19th century and the early 20th century, it kicked off a frenzy to carve up the world, including the Antarctic land. Seven countries including the UK, New Zealand, Australia,France, Norway, Chile and Argentina, laid territorial claims to 83% of the land at Antarctica.11HU Dekun and TANG Jingyao, The Antarctic Territorial Dispute and the Conclusion of the Antarctic Treaty, Wuhan University Journal (Humanity Sciences), Vol. 63, No. 1, 2010. (in Chinese)The Soviet Union and the United States, two superpowers at that time, did not explicitly make territorial claims to Antarctica, but declared that they reserved the rights of making such claims to Antarctica and maintained their vital interests there. “The claims or reservations of these countries are not balanced or even conf l icting with each other, and relations of these countries in Antarctica are becoming increasingly tense.”12HU Dekun and TANG Jingyao, The Antarctic Territorial Dispute and the Conclusion of the Antarctic Treaty, Wuhan University Journal (Humanity Sciences), Vol. 63, No. 1, 2010. (in Chinese)The announcement of the Truman Doctrine in 1947 marked the arrival of the “cold war period”. Two diあerent camps, led by the United States and the Soviet Union respectively, fought against each other around the world, with Antarctica being no exception,13HU Dekun and TANG Jingyao, The Antarctic Territorial Dispute and the Conclusion of the Antarctic Treaty, Wuhan University Journal (Humanity Sciences), Vol. 63, No. 1, 2010(in Chinese). At the first conference held in July 1955 in preparation for the International Geophysical Year, the Soviet Union announced the establishment of three scientific research stations in Antarctica. Soon afterwards, the U.S. Department of Defense urgently demanded the navy to send a task force to visit the location where the Soviet Union planned to build their stations, with the purpose of predicting the direction of the Soviet Union. On 21 August 1957, the Soviet Union successfully test-fired SS-6 Sapwood, which was the world "s first intercontinental missile. On October 4 of the same year, it successfully launched the first man-made earth satellite. All these stirred up concerns in the southern hemisphere. The U.S. government formulated the second Antarctic program- the Operation Deep Freeze II(1956-1957), with the aim to keep Antarctica under the control of the U.S. and its allies.Taking advantage of the International Geophysical Year (1957-1958), the Soviet Union participated in a large number of scientific investigations, and decided to transform its bases and research stations in the International Geophysical Year into permanent research stations.It also announced a comprehensive long-term Antarctic plan, including the use of atomic energy and the launching of satellites in Antarctica.leading to even tenser relations among States in Antarctica. However, during the International Geophysical Year 1957-1958, various States carried out scientific research and cooperation in the Antarctic in a peaceful manner. “Many nations benefited from the international cooperation engendered by the International Geophysical Years (IGY), and were keen to see the cooperation to continue”.14Marcus Haward, The Law of the Sea Convention and the Antarctic Treaty System:Constraints or Complementarities?, in Seoung-Yong Hong and Jon M. Van Dyke eds.,Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, Boston:Martinus Nijhoあ Publishers, 2009, p. 237.Against this backdrop, for the purpose of keeping peace in Antarctica, and continuing scientific research in the region, the relevant States agreed to put aside territorial sovereignty disputes, and freeze territorial claims in the Antarctic provided the parties are allowed to “agree to disagree” over sovereignty claims. Therefore, territorial sovereignty disputes are among the core issues addressed by the Antarctic Treaty and the system based on it.

The solution above, that is, to freeze territorial claims in the Antarctic, is innovative, but not perfect, because it did not fundamentally solve the issue, but left it to later generations. As a result, when it comes to issues involving the Antarctic,one always needs to interpret and deal with them cautiously and carefully,preventing against the risk of undermining the peace and stability of the region.The delimitation of sea areas is one of such issues.

From the four Geneva Conventions of 1958 (Convention on the Territorial Sea and the Contiguous Zone, Convention on the High Seas, Convention on the Continental Shelf, and Convention on Fishing and Conservation of the Living Resources of the High Seas), to the UNCLOS of 1982, the law of the sea has gradually developed, and the delimitation of marine areas has constantly changed at the global level, resulting in the expansion of areas under national jurisdiction and the shrinking of area of the high seas. However, the rule that “land dominates the sea” has always been the bedrock of the law of the sea. In accordance with Article 4 of the Antarctic Treaty, territorial sovereignty disputes between the relevant States in Antarctica have been suspended.15Article 4 of the Antarctic Treaty: 1. Nothing contained in the present Treaty shall be interpreted as: a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;c) prejudicing the position of any Contracting Party as regards its recognition or nonrecognition of any other State "s right of or claim or basis of claim to territorial sovereignty in Antarctica. 2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.In that case, the so-called “bi-focal approach”, a method used to settle territorial sovereignty disputes in the Antarctic,was formed to avoid the escalation of territorial sovereignty disputes and promote scientific research in Antarctica. It is noteworthy, however, that this approach has led both claimants and non-claimants to believe that the Antarctic Treaty supports their territorial claims. Since the Antarctic waters contain rich fisheries, oil, gas and mineral resources and such resources have important strategic significance, both claimants and non-claimants tend to treat the delimitation of the Antarctic waters based on their own interests. According to the principle of the domination of the land over the sea, all sea areas are measured from the territorial sea baselines, and the drawing of such baselines is preconditioned on the existence of land territorial sovereignty. Therefore, for the Antarctic Ocean, all the non-claimants would assert that all the sea area south of 60° south latitude in the Antarctic should be the high seas. In contrast, the claimants would argue that “the Treaty does not aあect preexisting territorial claims nor the consequences of preexisting sovereignty”;16Ralph L. Harry, The Antarctic Regime and the Law of the Sea: An Australian "s View,Virginia Journal of International Law, Vol. 21, Issue 4, 1981, p. 734.in other words, they assert that the area south of that latitude, excluding the territorial sea, contiguous zone and exclusive economic zone, should be the high seas.

According to incomplete statistics, Australia, New Zealand, France, the UK,Argentina and Chile have made statements on the territorial sea; Norway reserves the right to make a statement; Australia, New Zealand, France,Argentina and Chile have made statements on the contiguous zone; Australia,the UK and Norway have filed their submissions on the proposed outer limits of its continental shelf beyond 200 nautical miles to the Commission on the Limits of the Continental Shelf; and New Zealand has declared that it reserves the rights to claim outer continental shelf in the Antarctic.17 CHEN Li, Study on the Legal Status of Antarctic Ocean, Fudan Journal (Social Sciences),No. 5, 2014. (in Chinese)

The passage above suggests that the Antarctic territorial disputes, which have been suspended for more than half a century due to the “freezing rule”, have moved their arena from the Antarctic continent to the Southern Ocean that has greater strategic and resource implications.18CHEN Li, Study on the Legal Status of Antarctic Ocean, Fudan Journal (Social Sciences),No. 5, 2014. (in Chinese)

The BBNJ Agreement centers on the marine living resources in the areas beyond national jurisdiction (i.e., the high seas and the Area) and their marine habitats. The rationale behind this, is that many States intend to, based on the theory related to the “tragedy of the commons”, conserve and protect the marine living resources in the “commons” beyond national jurisdiction and their marine habitats,for the common interests of mankind. Therefore, one important characteristic of the BBNJ Agreement is that it applies to the high seas and the Area. When it comes to the Antarctic waters, the BBNJ Agreement applies to the high seas and the Area within the Antarctic. However, the claimants and non-claimants, as mentioned above, did not come into an agreement concerning the precise scope of the high seas and the Area in Antarctic waters. A State may claim sovereignty or sovereign rights over certain sea areas only when it has territorial sovereignty over a piece of land. If the existence of the territorial sea and exclusive economic zone over which a State has sovereignty or sovereign rights is confirmed, it implies that the existence of land territorial sovereignty has been confirmed already. With regards to the application scope of the BBNJ Agreement, if the agreement is applicable to all Antarctic waters, it may suggest that the agreement does not assert that the Antarctic includes sea areas where a State has sovereignty or sovereign rights; in other words, the agreement considers Antarctica as a place without land territorial sovereignty, supporting the contentions of the non-claimants. In contrast, if the agreement merely applies to some parts of the Antarctic waters (i.e., areas beyond national jurisdiction), it may imply that the agreement believes that the Antarctic has sea areas where a State has sovereignty or sovereign rights; in other words,the agreement considers Antarctica as a place with land territorial sovereignty,thus supporting the contentions of the claimants. In that case, no matter how the BBNJ Agreement applies to the Antarctic waters, it will give rise to the core issue of the Antarctic Treaty and the Antarctic Treaty system: territorial sovereignty disputes, as long as it is applicable to the high seas and the Area which are beyond national jurisdiction. Therefore, when applying the BBNJ Agreement to the Antarctic waters, in order to avoid territorial disputes, the harmonization between the agreement, the Antarctic Treaty and other pertinent treaties under the Antarctic Treaty system should be examined, so as to ensure the integrity of the agreement and the peace and stability of Antarctica.

B. The Antarctic Treaty System Has Already Addressed the Core Issues of BBNJ in Antarctica

The BBNJ Agreement focuses on the conservation and protection of marine living resources and their habitats in the high seas and the Area. According to Resolution A/RES/69/292 adopted by UNGA,19Resolution adopted by the General Assembly on 19 June 2015 [without reference to a Main Committee (A/69/L.65 and Add.1)]: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction,United Nations General Assembly, A/RES/69/292.the BBNJ Agreement will address: “marine genetic resources, including questions on the sharing of benefits,measures such as area-based management tools, including marine protected areas,environmental impact assessments, capacity-building and the transfer of marine technology”.20The current discussions of the Preparatory Committee still focus on the above-mentioned aspects. At http://www.un.org/depts/los/biodiversity/prepcom.htm, 1 July 2018.Currently, there is also a heated discussion on illegal, unreported and unregulated fishing (IUU Fishing) among the delegations. The Antarctic also includes high seas and the Area, and the issues mentioned-above have long been noted by the Antarctic Treaty system.

The CAMLR Convention was adopted on 20 May 1980 and came into force on 7 April 1982. According to paragraph 1 of the preface and Article 1.1, “recognizing the importance of safeguarding the environment and protecting the integrity of the ecosystem of the seas surrounding Antarctica”, CAMLR Convention “applies to the Antarctic marine living resources of the area south of 60° South latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem”. That is to say, the CAMLR Convention is aimed to conserve the marine living resources and the ecosystem in the Antarctic, including the area south of 60° south latitude and the area between that latitude and the Antarctic Convergence. In respect to the waters surrounding Antarctica, the purposes of the CAMLR Convention and the BBNJ Agreement are identical. Notably, the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), which was established based on the CAMLR Convention, has already addressed issues like IUU fishing and marine protected areas (MPAs) on the high seas.

A proposal for the establishment of the South Orkney Islands Southern Shelf (SOISS) MPA was raised by the UK at the Twenty-eighth Meeting of the CCAMLR, which won the support of many delegates. The SOISS MPA was officially established in May 2010, becoming the world "s first MPA completely located on the high seas (beyond national jurisdiction). The Antarctic Treaty system is therefore advanced and experienced in respect to MPAs beyond national jurisdiction. “As one of the measures or means used to conserve Antarctic marine living resources, the MPA regime, although created late, has become a focus and leading issue in the current CAMLR Convention mechanism”.21CHEN Li, Study on the Legal Status of Antarctic Ocean, Fudan Journal (Social Sciences),No. 5, 2014. (in Chinese)In 2011, the CCAMLR adopted the General Framework for the Establishment of CCAMLR Marine Protected Areas. Paragraph 1 of the preamble of the General Framework provides that the Antarctic MPAs are established “with the aim of conserving marine biodiversity in the Convention Area.”

Initially mentioned on a CCAMLR meeting agenda in 1997, the term “IUU fishing” was coined mainly to deal with the illegal fishing of Antarctic toothfish(Dissostichus Mawsoni).22David J. Doulman, Illegal, Unreported and Unregulated Fishing: Mandate for an International Plan of Action, para. 38, at http://www.fao.org/docrep/005/Y3274E/y3274e06.htm, 1 July 2018.Subsequently, the CCAMLR developed many measures against IUU fishing in Antarctic waters. For example, the Commission established the Catch Documentation Scheme (CDS) in 1999 and implemented it in May 2000. Under the CDS system, a CAMLR Convention member needs to take measures to confirm the origin of the Antarctic toothfish imported to or exported from its territory, to ascertain whether the toothfish was caught from the CAMLR Convention Area; if the toothfish on board was indeed captured from the CAMLR Convention Area, then it should determine whether such fishing activities have violated the conservation measures under the CAMLR Convention.23CHEN Danhong, Analysis on the Strategies of CCAMLR "s Activities against IUU Fishery in South Ocean, Ocean Development and Management, No. 11, 2009 (in Chinese); CHEN Sixing, Issue of IUU Fishing and Its Countermeasures, Chinese Fisheries Economics, No.1, 2002. (in Chinese)In order to ensure the authenticity and accuracy of the fishing information of the toothfish recorded by fishing vessels under the CDS system, the CCAMLR proposed to establish a centralized vessel monitoring system in 2003. That is, the Commission would have the vessel monitoring system installed on the fishing vessels of each member in a centralized way, and the information recorded by the system would be truly sent to the secretariat, guaranteeing the authenticity of the information recorded.24CCAMLR, Report of the Twenty-Second Meeting of the Committee, p. 77, at http://www.ccamlr.org/en/system/files/e-cc-xxii.pdf, 1 July 2018.In 2001, the CCAMLR, based on the recommendations of the Standing Committee on Inspection and Compliance, decided to establish a list of flags of convenience, seeking to record the vessels flying flags of convenience that have engaged in IUU fishing in Antarctic waters.25CCAMLR, Report of the Twenty-Second Meeting of the Committee, p. 19, at http://www.ccamlr.org/en/system/files/e-cc-xxii.pdf, 1 July 2018.The Commission went ahead to set up two IUU vessel lists, respectively recording the information of the contracting party and that of non-contracting party vessels carrying out IUU fishing activities in Antarctic waters. It is critically germane that such information be updated annually,with some items being added or deleted.26CCAMLR, Schedule of Conversation Measures in Force 2004/2005 Season, at https://www.ccamlr.org/en/measure-32-09-2004, 1 July 2018.

The use of marine genetic resources has long been noted within the ATCM framework. Since the UK presented the first working report on biological prospecting in 2002,27The term “biological prospecting” presently has no uniform definition. In this paper,“biological prospecting” is used interchangeable with the “use of genetic resources”,because both, in any case, should include the commercial use of biogenetic resources;otherwise it would be equivalent to scientific research, which needs no special discussion.France, New Zealand, Norway, Sweden, Argentina, and many other countries as well as the Committee for Environmental Protection have submitted documents concerning biological prospecting at the ATCM. Specifically,the 28th ATCM officially acknowledged this issue in 2005. In its final report in 2007, the 30th ATCM decided to establish an informal open-ended web-based Intersessional Contact Group (ICG), with Switzerland as the convener of the Contact Group.28Final Report of the Thirtieth Antarctic Treaty Consultative Meeting, New Delhi, India, 30 April-11 May 2007, Buenos Aires: Secretariat of the Antarctic Treaty, paras. 262～263.At the 31st ATCM in 2008, the ICG released a report highlighting seven key areas for attention in Antarctic biological prospecting.29Report of the ATCM Intersessional Contact Group to Examine the Issue of Biological Prospecting in the Antarctic Treaty Area, ATCM XXXI, WP4.At the 32nd ATCM of 2009, France proposed that a legal system regulating Antarctic biological prospecting should be established. It can be seen that under the Antarctic Treaty system, the legislative work concerning the utilization of genetic resources has been carried out step by step. Resembling the case of legislation on mineral resources,when the use of marine genetic resources beyond national jurisdiction started to be discussed under the UNCLOS system, the Antarctic Treaty system, in order to maintain its jurisdictional interests, also began to discuss the regulation on the use of genetic resources under its jurisdiction.

To sum up, MPAs in high seas, IUU fishing and other issues to be addressed by the BBNJ Agreement have already been regulated by the relevant treaties and measures within the Antarctic Treaty system, and the legislation work on the use of marine genetic resources has also been started within the framework of ATCM. Since the Antarctic Treaty system has dealt with these issues, delegates participating in the legislation work concerning BBNJ Agreement should discuss the harmonization and compatibility of the agreement and the system in this respect, so as to avoid overlapping problems and potential conf l icts.

C. The Antarctic Treaty System Has Become a Model in the Governance of Antarctic Land and Marine Aあairs

Antarctica has a unique natural environment. Being located in the southernmost part of the earth, the Antarctic continent contains the geographic South Pole. Although covered by ice and snow all the year round, the continent is the world "s driest area. It is also the windiest region with the lowest average temperature and the highest wind speed in the world. The seas around the Antarctic continent are often cold with harsh and unpredictable weather throughout the year.30REN Fei, Research on Ecological Strategy of Architecture Design for Buildings in Antarctica - Extension and Rebuilding Design for Zhongshan Station of China in Antarctica(Doctoral Dissertation), Beijing: Tsinghua University, 2005, p. 7. (in Chinese)This unique natural environment makes it diきcult for human beings to survive in Antarctica. And also because of that, the Antarctic continent has become a virgin land that has not been “touched” by human beings and is of great scientific value.Notwithstanding the earlier statements, “the Antarctic continent contains more than 200 kinds of mineral resources including coal, iron, copper, lead, zinc, aluminum,gold, silver, graphite and adamas, as well as rich petroleum and natural gas”.31PAN Min, On the Challenges Facing the Mineral Resources System in Antarctica,Contemporary International Relations, No. 6, 2011. (in Chinese)All these factors, together with its strategic significance, make the uninhabitable Antarctica of harsh natural conditions an object of contention for humans, with a unique international political environment formed in the South Pole. On the one hand, claimants and non-claimants have disagreements on territorial claims to the Antarctic continent; the non-claimants not only deny the territorial sovereignty claims of the claimants, but also assert that no territorial sovereignty claims should be made to the Antarctic continent. Antarctica, on the other hand, is of great research value, attracting to it all countries of the world with vested interest of gaining first-hand research information. Countries have benefited greatly from the Antarctic scientific research cooperation conducted in the International Geophysical Year and hope to continue such research without obstacles. This aspiration has prompted countries to express their strong political will to shelve existing territorial sovereignty disputes and pave the way for obstacle-free scientific research in Antarctica.

The Antarctic Treaty was created in the unique natural and political environment described above. The Antarctic Treaty system, which was developed on the basis of the said treaty, governs the Antarctic in line with its characteristics.This very important treaty system has evolved into a model of governance for the Antarctic region.

After the adoption of the UNCLOS, it was agreed that mineral resource activities in the Area would be managed by the International Seabed Authority(ISA), duly established under UNCLOS, Part XI. Despite that the scope of the high seas and the Area in the Antarctic are uncertain, their existence is without any doubt. The Antarctic Treaty Consultative Parties, for the purpose of protecting their jurisdictional interests, were committed to developing a convention on mineral resources under the Antarctic Treaty system on the basis of the Antarctic Treaty, before the adoption of the UNCLOS. To that end, some Consultative Parties contend that the dedication of ATCM "s activities on the Antarctic continent is a fight for the peace and science of the Antarctic, thus the ATCM “is already functioning on the basis of the interests of all the mankind as a whole”.32Statement by Mr Austad (Norway) in United Nations General Assembly Records, 39th Session, 52nd meeting of First Committee, A/C.1/39/PV.52, 30 November 1984, p. 12.It was further agreed at the ATCM in 1984 that all contracting parties could attend the negotiations on the Convention on the Regulation of Antarctic Mineral Resources Activities (CRAMRA) and several Third World States, including India and China,were granted Consultative Party status.33Shirley V. Scott, The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes, Boston: Martinus Nijhoあ Publishers, 2013, p. 29.Antarctica "s extreme natural environment has left it a virgin land “untouched” by humans and its ecological environment fragile. In order to protect the fragile ecological environment of Antarctica, the Madrid Protocol replaced the CRAMRA, prohibiting all mineral resource activities in Antarctica other than those required for scientific research.34Article 7 of the Madrid Protocol states that “Any activity relating to mineral resources,other than scientific research, shall be prohibited.”With the conclusion of the protocol, “environmental protection”, an important feature of Antarctic governance, has reached its peak. From the discussion on the Antarctic mineral resource activities to the eventual banning of such activities, the Antarctic Treaty system has always been the sole subject regulating these activities. This system has become a unique mechanism prohibiting these activities, posing “challenges” to the ISA under the UNCLOS. Notably, this mechanism meets the needs of the unique natural and political environment of Antarctica, and is therefore widely accepted by the international community as an authority in the governance of Antarctic mineral resource activities.

In the 1960s, the development of fishing technology led to the gradual depletion of offshore fishery resources. On the one hand, States began to search for new fishing grounds and on the other, gradually accepted the view that coastal States had important interests in the waters extending up to 200 nautical miles from the baselines of their territorial seas. Therefore, while the UNCLOS was still under negotiation, the concept of “exclusive economic zone”, once introduced, was generally accepted by all States. “In 1975, only thirteen States were claiming 200-mile zones. But by the beginning of 1978, fifty-four States had claimed them”.35U.S. Department of State, Limits in the Seas, No. 36, rev. 3 (December 1975), pp. 13～15 and rev. 4 (December 1981), pp. 2～7.It meant that coastal States were going to have jurisdiction over the area of ocean where 99 percent of the world "s edible fish lived and bred.36M. J. Peterson, Antarctic Implications of the New Law of the Sea, Ocean Development and International Law, Vol. 16, Issue 2, 1986, pp. 137～182.This legal change intensified the search for suitable fishing grounds, including the waters around Antarctica.37M. J. Peterson, Antarctic Implications of the New Law of the Sea, Ocean Development and International Law, Vol. 16, Issue 2, 1986, pp. 137～182.Nevertheless, the exploitation of Antarctic fishery resources did not come with great optimism. Starting in the early 1960s with “experimental” krill fishing in Antarctic waters by Japan and the Soviet Union, to the mid and late 1970s, the numbers of krill, finned fish and other fishery resources caught by States in Antarctic are alarming. Reported krill catches increased from some 7,500 metric tons in 1973-1974 to about 41,000 in 1976-1977. Even allowing for the likelihood of underreporting in the earlier data, this was a formidable increase in effort.Meanwhile, reported catches of finned species continued to fl uctuate, moving from 25,000 metric tons in 1974-1975 to 258,000 in 1977-1978 and 115,000 in 1979-1980.38M. J. Peterson, Antarctic Implications of the New Law of the Sea, Ocean Development and International Law, Vol. 16, Issue 2, 1986, pp. 137～182.This phenomenon triggered fears of ATCM that unless something was done quickly to regulate such fishing operations, the krill and finned fish “would go the way of the whales to near-extinction through wild overfishing”.39M. J. Peterson, Antarctic Implications of the New Law of the Sea, Ocean Development and International Law, Vol. 16, Issue 2, 1986, pp. 137～182.

By the ninth consultative meeting in 1977, all Consultative Parties had agreed that they had to establish some form of regulation for Southern Ocean fishing.They were far from united on the form this regulation should take, but they did agree that unless the Consultative Parties acted, UNCLOS III or some other UN body was likely to take up the issue.40 M. J. Peterson, Antarctic Implications of the New Law of the Sea, Ocean Development and International Law, Vol. 16, Issue 2, 1986, pp. 137～182.

Eventually, the Consultative Parties held a meeting in 1980, inviting all the major Antarctic krill and finned fish fishing States. The CAMLR Convention was adopted at the meeting, to conserve and protect the marine living resources and their habitats in the area south of the Antarctic convergence. As mentioned above,the CCAMLR has taken measures, such as CDS and lists of IUU vessels to combat IUU fishing in Antarctic waters. In addition, it has cooperated with the Food and Agriculture Organization of the United Nations (FAO), the Conference of Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, and the port States where the catches resulting from IUU fishing are landed to comprehensively curb IUU fishing in Antarctic waters. The protection of Antarctic marine living resources and their habitats is underway aggressively under the guidance of CAMLR Convention and CCAMLR.

In addition, as mentioned above, in order to protect Antarctic marine environment, the MPA regime was established by the CCAMLR. Within the framework of ATCM, the utilization of Antarctic marine and terrestrial genetic resources has already been explored. Therefore, taking into account the natural and political environment of the Antarctic, the Antarctic Treaty and the system based on it, have ever since their inception, confined their application scope to the Antarctic lands and seas. Holding aloft the banner of peace and scientific research, and with the persistent eあorts of the powerful Consultative Parties, they have succeeded in resisting the interference from the United Nations. Moreover, they have governed the Antarctic land and marine aあairs according to its essential features. “The basic spirit of peace and scientific research freedom” under the Antarctic Treaty,

is still not out of date, and the core principle of freezing territorial claims still has practical significance. The Antarctic Treaty system, formed gradually under the framework of the basic spirit and the core principle, remains the only eあective and practical legal system and policy framework to protect Antarctic environment, encourage scientific research, and promote international cooperation at the South Pole and regulate the pertinent activities carried out by States in the Antarctic.41 GUO Peiqing and SHI Huawei, The Antarctic Treaty at 50: Challenges and Future Trend,Journal of Ocean University of China (Social Sciences), No. 1, 2010. (in Chinese)

The Antarctic Treaty system is a model in the governance of Antarctic land and marine aあairs. The BBNJ Agreement, which will also apply to Antarctic waters,must harmonize with this system.

III. The Feasibility of Harmonization

As stated above, legislative work concerning the BBNJ Agreement under the UNCLOS is underway.42Resolution adopted by the General Assembly on 19 June 2015 [without reference to a Main Committee (A/69/L.65 and Add.1)]: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction,United Nations General Assembly, A/RES/69/292.The agreement would cover issues like utilization of marine genetic resources, high seas MPAs and IUU fishing. Additionally, since the Ad Hoc Working Group believes that increasing scientific knowledge of the oceans remains a major challenge,43Co-Chairs " summary of discussions at the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, United Nations General Assembly, A/69/82, para. 11,at http://undocs.org/A/69/82, 1 July 2018.scientific research would also be an important part of the BBNJ Agreement. In that case, the author will examine the feasibility of the harmonization between the BBNJ Agreement and the Antarctic Treaty system from these aspects.

A. Scientific Research

The Antarctic Treaty is the bedrock of the Antarctic Treaty system, and freedom of scientific research and territorial sovereignty are two key concepts that have been highly advocated from the beginning of negotiations on the treaty to the adoption of the final text. “Scientific developments during the second World War(particularly in the areas of rocketry, radar and radio) together with the awareness of the importance of the Polar areas for understanding the earth "s magnetic field drove interest in large-scale scientific experiments”.44Marcus Haward, The Law of the Sea Convention and the Antarctic Treaty System:Constraints or Complementarities?, in Seoung-Yong Hong and Jon M. Van Dyke eds.,Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, Boston:Martinus Nijhoあ Publishers, 2009, p. 236.Instructively, from 1 June 1957 to 31 December 1958, “12,000 scientists from 67 nations generated a total of 48 volumes and an unprecedented number of Antarctic scientific papers”.45Marcus Haward, The Law of the Sea Convention and the Antarctic Treaty System:Constraints or Complementarities?, in Seoung-Yong Hong and Jon M. Van Dyke eds.,Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, Boston:Martinus Nijhoあ Publishers, 2009, pp. 236～237.After studying the Antarctic in peace, many States were eager to continue the international cooperation engendered by the International Geophysical Years.46Marcus Haward, The Law of the Sea Convention and the Antarctic Treaty System:Constraints or Complementarities?, in Seoung-Yong Hong and Jon M. Van Dyke eds.,Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, Boston:Martinus Nijhoあ Publishers, 2009, p. 237.Therefore, upon negotiations lasting 18 months from June 1958 to December 1959, the Antarctic Treaty was adopted in Washington, after allowing parties to“agree to disagree” over sovereignty claims in Antarctic. Territorial sovereignty is fundamental to a State. However, in order to conduct scientific research as soon as possible in the Antarctic without obstacles, the contracting parties to the Antarctic Treaty shelved sovereignty disputes aside. Such a big sacrifice is sufficient to show that the freedom of scientific research occupies an important position in the Antarctic Treaty system. This point can also be detected in other treaties of that system. For example, according to Article 1(7) of the CRAMRA,47Article 1(7) of CRAMRA: “Antarctic mineral resource activities” means prospecting,exploration or development, but does not include scienti fic research activities within the meaning of Article III of the Antarctic Treaty.“mineral resource activities” in the Antarctic should not include those conducted for the purpose of scientific research, so that the rigid measures imposed on Antarctic mineral resource activities would not affect the freedom of scientific research.In line with Article 7 of the Madrid Protocol, and in spite of its total ban on all mineral resource activities in Antarctica, those conducted for the purpose of scientific research are exempted from this ban. It is therefore reasonable to believe that freedom of scientific research is the cornerstone of the entire Antarctic Treaty system and has always been given priority in discussions on any issue relating to the Antarctic.

The Ad Hoc Working Group is also aware of the significance of scientific research, since it “noted that increasing scientific knowledge of the oceans was a major challenge. In that regard, a call was made to prioritize research, monitoring and assessment of the impacts of human activities on marine biodiversity beyond areas of national jurisdiction”.48Letter dated 5 May 2014 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly: Co-Chairs " summary of discussions at the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction,United Nations General Assembly, A/69/82, at http://undocs.org/A/69/82, 1 July 2018.This indicates that our understanding of the areas outside national jurisdiction remains insuきcient, and the impacts of human activities on these sea areas remain unclear. The legislation work concerning the BBNJ Agreement is progressing steadily. In order to develop appropriate laws and policies, it is essential to have a deep and clear understanding of the oceans as well as the impact of human activities on the oceans. To this end, scientific research should be carried out, and such laws and policies, after being formulated, need to be implemented by taking concrete measures. Nevertheless, the measures taken should also be based on scientific research. On the basis of scientific data obtained,scientific measures and technical methods should be adopted to eあectively promote the conservation and sustainable use of marine biodiversity beyond national jurisdiction. Invariably, the formulation of appropriate laws and policies for BBNJ,as well as the adoption of feasible, practical and concrete measures, cannot be done without scientific research on the sea areas beyond national jurisdiction. Scientific research lays the foundation for legislation and law enforcement work in this field,and thus plays an important role in realizing the established goals and objectives.Therefore, with regards to the awareness of the importance of scientific research,no significant obstacles can be found affecting the harmonization between the Antarctic Treaty system and the BBNJ Agreement.

This paragraph will discuss the attitude towards scientific research. In accordance with Article 2 of Antarctic Treaty,49Article 2 of Antarctic Treaty: Freedom of scientific investigation in Antarctica and cooperation toward that end, as applied during the International Geophysical Year, shall continue, subject to the provisions of the present treaty.it is free to conduct scientific research in the Antarctic waters and land. The BBNJ Agreement should be made under the UNCLOS and applied to the high seas and the Area. In this connection,the provisions on scientific research under the agreement should comply with the relevant provisions under the UNCLOS. As per UNCLOS, Article 87(1), all States have the freedom to conduct scientific research on the high seas. And according to UNCLOS, Article 256, “all States, irrespective of their geographical location,and competent international organizations have the right, in conformity with the provisions of Part XI, to conduct marine scientific research in the Area”. Among all the articles under Part XI, Article 143 has the greatest relevance to scientific research.50Article 143 of UNCLOS states that marine scientific research in the Area shall be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole, in accordance with Part XIII; the Authority may carry out marine scientific research concerning the Area and its resources; States Parties may carry out marine scientific research in the Area.It stipulates that both the ISA and States Parties may carry out marine scientific research in the Area and the ISA shall promote and encourage the conduct of marine scientific research in the Area. In the view of the author, Article 143 can be understood as an elaboration of Article 256, since its main content is actually the same as Article 256. Freedom of scientific research is included in the freedom of high seas, an ancient principle of the law of the sea. However, before humans were capable of exploiting resources of the subsoil beneath the high seas,freedom of the high seas was applied indiscriminately to the Area and the high seas. With the development of science and technology, humans are now able to exploit the resources of the subsoil. This phenomenon has led to the imposition of jurisdiction on the resources of the subsoil within national jurisdiction; and resources of the subsoil beyond national jurisdiction, are now separated from the high seas, where the principle of common heritage of mankind is applicable. This marks a breakthrough in the principle of freedom of the high seas. However, such a breakthrough is limited to the use of the resources of subsoil beyond national jurisdiction, while other components of the freedom of the high seas, including freedom of scientific research, should still be applied to the subsoil beneath the high seas. The BBNJ Agreement under the UNCLOS covers provisions concerning the freedom of scientific research in the high seas and the Area. Given the“harmlessness” of scientific research and its significant contribution to mankind, it should be argued that the BBNJ Agreement will treat marine scientific research in a way consistent with the UNCLOS, namely respecting the freedom of scientific research. It means that the BBNJ Agreement would be also compliant with the Antarctic Treaty system in this aspect. To put it another way, with respect to the attitude towards scientific research, no significant obstacles can be found aあecting the harmonization between the BBNJ Agreement and the Antarctic Treaty system.

B. Utilization of Marine Genetic Resources

One of the important subject matters addressed by the BBNJ Agreement is the utilization of marine genetic resources. As early as 2002, the Antarctic Treaty began to discuss the exploitation of land and marine genetic resources. Environmental protection has always been an essential feature of the Antarctic Treaty system,paying particular concern to whether the use of genetic resources will affect the environment or otherwise. The utilization of genetic resources, regardless of its definition or designation, should include the commercialization of the achievements of scientific research. However, the huge benefits brought by commercialization and the sharing of such benefits would likely become an obstacle to the harmonization of the BBNJ Agreement and the Antarctic Treaty system.

The exploitation of genetic resources is not the same as that of mineral resources, although both are some kind of resources exploitation activities.Specifically, the latter is directed towards the physical object of ore, while the former is directed towards biogenetic diversity. A gene is a sequence of deoxyribonucleic acid (DNA), but the thing that makes it a valuable resource for humans is the genetic information it carries, which is virtual. Mineral extraction requires the collection of plenty ore; however, the acquisition of biological genes only needs a small amount of sample organisms, whose impact on both the biotic population size and the ecological environment is little or almost negligible.51Some argue that when the achievements of biotechnology are put into production, there would be the need to collect a large number of samples, which could have serious impact on biotic population size. However, this view is not supported by scientific data. Therefore, the author currently does not share in this viewpoint.The exploitation of mineral resources would, inevitably, lead to the reduction of such resources. In contrast, due to the reproducibility of information, the utilization of genetic resources may not result in the reduction of these resources. Additionally,the BBNJ Agreement aims to conserve marine living resources in the high seas and the Area by protecting their ecological environment. Environmental protection will also be an important part of the BBNJ Agreement, which would be paid close attention throughout the exploitation of marine genetic resources. In short, due to the special nature of the exploitation of genetic resources, such activities would not aあect the ecological environment, whether conducted in the high seas, the Area or the Antarctic waters. Furthermore, both the BBNJ Agreement and the Antarctic Treaty system would adhere to the principle of environmental protection during the exploitation of marine genetic resources. With this in mind, such exploitation activities would therefore not pose any obstacles to the harmonization between the two.

Even though the utilization of genetic resources has brought great new benefits, it should be noted that the distribution of such benefits does not involve the allocation of these resourcesper se. Genetic resource exploitation can be roughly divided into three steps: (a) to collect genetic materials; (b) to obtain valuable genes through analyzing the genetic materials in laboratory; (c) to make products by using the valuable genes and commercialize them. In these three steps, the last two are application of biotechnology based on the genetic materials obtained in the first step. Genetic materials could be acquired from their original habitats, places other than their habitats, or biological data. Acquisition from original habitats refers to the acquisition or collection of marine genetic resources from the natural environment of the areas beyond national jurisdiction; while acquisition from the last two means the acquisition of resources, information,materials and data by processing the marine genetic resources obtained from their original habitats, using methods such as separation, identification, screening and cultivating in laboratories and computer simulation analysis.52Written Submission of the Government of the People "s Republic of China on Elements of a Draft Text of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (as revised on 20 April 2017), at http://www.un.org/depts/los/biodiversity/prepcom_files/streamlined/China.pdf, 1 July 2018.According to these definitions, only the acquisition from original habitats may involve the ownership of marine genetic resources; the genetic materials obtained from the last two ways are, however, acquired by processing the materials obtained from their original habitats via biotechnology means, which are essentially the results of scientific research and do not involve the ownership of such resources. The acquisition of genetic materials from original habitats is, in line with UNCLOS Part XIII, a kind of marine scientific research in nature.53Written Submission of the Government of the People "s Republic of China on Elements of a Draft Text of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (as revised on 20 April 2017), at http://www.un.org/depts/los/biodiversity/prepcom_files/streamlined/China.pdf, 1 July 2018.It merely needs to collect a small number of individual organisms, with little reduction in the number of organisms. Since each individual organism contains a whole set of genetic materials, the collection of genetic materials by one State does not aあect such collections by other States. The piece of pie made of genetic resources would not be reduced by the exploitation of a State. Therefore, the share of benefits arising from the utilization of genetic resources does not mean to allocate the genetic resourcesper se.

The benefits arising out of genetic resource exploitation are, primarily,obtained by making products after processing the genetic materials through biotechnology and commercializing them. Such exploitation is made on the basis of genetic resources. The genetic resources to be regulated by the BBNJ Agreement are located in the commons outside national jurisdiction and are not owned by anyone. They are the common heritage of mankind, and the benefits arising therefrom should be shared by all human beings. However, the use of genetic resources does not involve the allocation of these resourcesper se, and it is impossible for all members of the international community to share the relevant benefits by allocating the resources. Additionally, the development of biotechnology needs huge capital investment, which leads to the fact that the use of genetic resources in the high seas and the Area is actually monopolized by only a small number of States, leaving the interests of other States, especially the developing and least-developed States unsatisfied and unattended to.

Therefore, although the marine genetic resources are not owned by the users,the users still need to share some of their benefits with States that do not have access to such resources. This practice is called “benefit-sharing”, which is based on the principle of the benefit of mankind as a whole. In the discussions of the Ad Hoc Working Group and the Preparatory Committee, controversies arose among various interest groups with respect to the legal status of marine genetic resources in the high seas and the Area, and the benefit sharing scheme. States with advanced biotechnology tend to consider genetic resources to be free and open for access,and not owned by anyone. States with underdeveloped biotechnology hope to share the relevant benefits under the principle of “common heritage of mankind”. Some underdeveloped States do not even care about the legal status of genetic resources or the development of biotechnology in their own States, as long as they can get monetary benefits directly from States with advanced biotechnology.

However, according to UNCLOS, Preamble, paragraph 6, “the achievement of these goals will contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries,whether coastal or land-locked”, hence all economic activities within the framework of UNCLOS shall “contribute to the realization of a just and equitable international economic order” and take into account “the interests and needs of mankind as a whole”. This point has already been embodied in the utilization of mineral resources in the Area.54For example, Article 140 of UNCLOS stipulates that “Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole,irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status recognized by the United Nations in accordance with General Assembly resolution 1514(XV) and other relevant General Assembly resolutions”.Possessing great commercial values, the exploitation of marine genetic resources in the high seas and the Area is likely to have greater impact on the international economic order than the use of mineral resources in the Area. The use of these genetic resources and the distribution of benefits arising therefrom should certainly follow the principle of the “benefit of mankind as a whole” as set out in the Preamble to UNCLOS.

Within the Antarctic Treaty system, the benefits arising from the utilization of genetic resources should also be shared in line with the principle of the “benefit of mankind as a whole”. This principle can be seen throughout the Antarctic Treaty system. Antarctic Treaty, the bedrock of the Antarctic Treaty system, states in paragraph 2 of its preamble that “it is in the interests of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purpose and shall not become the scene or object of international discord”. CRAMRA, a convention dealing with Antarctic resource utilization, reaきrms in paragraph 14 of its preamble that “the effective regulation of Antarctic mineral resource activities is in the interest of the international community as a whole”. And CRAMRA, Article 2(3)(g) provides that “In relation to Antarctic mineral resource activities, should they occur, the Parties acknowledge the special responsibility of the Antarctic Treaty Consultative Parties for the protection of the environment and the need to: … (g)take into account the interests of the international community as a whole”. CAMLR Convention, Preamble, paragraph 9 states that “it is in the interest of all mankind to preserve the waters surrounding the Antarctic continent for peaceful purposes only and to prevent their becoming the scene or object of international discord”.And the Madrid Protocol, Preamble, paragraph 8 states that “the development of a comprehensive regime for the protection of the Antarctic environment and dependent and associated ecosystems is in the interest of mankind as a whole”.

Hence, it is reasonable to believe that the principle of the “benefit of mankind as a whole” stands for the value orientation and the guiding principle of the Antarctic Treaty system, which regulates all activities in the Antarctic, with the use of marine genetic resources being no exception. With respect to the distribution of the benefits arising from the exploitation of genetic resources, both the BBNJ Agreement and the Antarctic Treaty system should abide by the principle of the“benefit of mankind as a whole” and use it as their value orientation. In this sense,genetic resource exploitation may not greatly hinder the harmonization between the agreement and the system.

C. IUU Fishing

“IUU fishing” was first proposed by the CCAMLR to curb the threat of IUU fishing activities to the Antarctic marine living resources. IUU fishing, invoking the freedom of fishing on the high seas as provided for in UNCLOS, has caused the“tragedy of the commons”, which is particularly evident in waters outside national jurisdiction. The Ad Hoc Working Group also noted that “unsustainable fishing,in particular overfishing, illegal, unreported and unregulated fishing and certain destructive fishing practices, was the greatest threat to marine biodiversity in those areas”.55Co-Chairs " summary of discussions at the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, United Nations General Assembly, A/69/82, para. 10,at http://undocs.org/A/69/82, 1 July 2018.Therefore, the BBNJ Agreement will take measures to regulate IUU fishing on the high seas. The CCAMLR, as mentioned above, has a long history and has accumulated a lot of experience in dealing with IUU fishing, through initiatives such as the CDS system and the IUU vessel list. When adopting measures to regulate IUU fishing activities on the high seas, the BBNJ Agreement should draw lessons from the measures and experiences of the CCAMLR.

In addition, one of the main problems that needs discussion with regards to IUU fishing in Antarctic waters, is the jurisdiction of the CCAMLR to regulate such activities. When vessels of contracting parties to CAMLR Convention engage in IUU fishing activities in convention area, the CCAMLR shall, of course, have jurisdiction over such vessels and may take appropriate measures. However, in the case of non-contracting parties, according to the basic principle of treaty law that a treaty shall enter into force only for the contracting States, the CCAMLR may have no legal basis for exercising jurisdiction over these IUU vessels. This is especially true in cases where the regulations set out by the CAMLR Convention do not constitute customary international law. Under this circumstance, IUU fishing activities are mainly regulated by flag States in accordance with their domestic law. That is to say, only flag States have jurisdiction and thus have the right to take corresponding measures against ships engaged in IUU fishing activities.However, due to their own interests and the existence of many ships fl ying fl ags of convenience, fl ag States are often unwilling or unable to manage their own vessels.Thus, even if an IUU fishing ship appears in the area of CAMLR Convention, the CCAMLR is incompetent to regulate it due to the lack of jurisdiction. Nevertheless,if the BBNJ Agreement and CAMLR Convention, both being applicable to the Antarctic waters, can cooperate and coordinate in the regulation of IUU fishing activities in these waters, the current situation of IUU fishing in Antarctic waters would be ameliorated and the Antarctic marine living resources would receive better protection. Therefore, regarding the regulation of IUU fishing, the Antarctic Treaty system needs the cooperation and help of the BBNJ Agreement.

In conclusion, with regards to IUU fishing, the BBNJ Agreement needs to learn from the Antarctic Treaty system, while the latter needs the cooperation and assistance of the former. The two are mutually compatible and beneficial; therefore,there is little hindrance to their harmonization in this aspect.

D. Marine Protected Areas

The term MPA was first raised at the World Conference of National Parks in Seattle in 1962,56CHEN Li, Study on the International Legal Bases of Antarctic Marine Protected Area,Fudan Journal (Social Sciences), No. 2, 2016, p. 152. (in Chinese)and has no precise definition at present. However, the 17th Session of the General Assembly of the International Union for Conservation of Nature (IUCN) held in 1988,

made it clear that the MPA was established to “provide for the protection,restoration, wise use, understanding and enjoyment of the marine heritage of the world through the creation of a global, representative system of marine protected areas and through management in accordance with the principles of the World Conservation Strategy of human activities that use or aあect the marine environment.”57 CHEN Li, Study on the International Legal Bases of Antarctic Marine Protected Area,Fudan Journal (Social Sciences), No. 2, 2016, p. 153. (in Chinese)

MPA, in short, is a tool used to reduce the impacts of human activities on the marine ecosystem, to protect marine biodiversity, and to promote the sustainable use of marine living resources.58GUI Jing, A Study of the Status and Trends of Protected Areas in the High Seas in Diあerent Dimensions, Pacific Journal, No. 5, 2015 (in Chinese). “However, in the long run, the establishment of protected areas, in most cases, will improve the resource eきciency with respect to the living creatures located within these areas. According to the research by the Food and Agriculture Organization, some fish may swim beyond the boundaries of marine protected areas. In particular, when the density of living creatures in the marine protected areas rises as a result of the conservation measures taken, the number of fish swimming out of these areas will increase and may also get caught. This so-called ‘spillover eあect " is a potential benefit arising from marine protected areas.”And this is why it is included as an important subject matter under the BBNJ Agreement.With the continuous development of international environmental law and law of the sea and the deepening of the concept of marine biodiversity protection,the number of MPAs has increased dramatically in recent years. In 1970, only 118 MPAs were established by 27 countries; however, by 2010, this figure has risen to about 5,900. The majority of these MPAs are located within national jurisdiction. The sole MPA located entirely in the high seas is the South Orkney Islands Southern Shelf MPA in Antarctica.59 CHEN Li, Study on the International Legal Bases of Antarctic Marine Protected Area,Fudan Journal (Social Sciences), No. 2, 2016, p. 153. (in Chinese)

Being one of the measures or means used to conserve Antarctic marine living resources, the MPA regime, as mentioned above, has become a focus and leading issue in the current CAMLR Convention mechanism.60CHEN Li, Study on the International Legal Bases of Antarctic Marine Protected Area,Fudan Journal (Social Sciences), No. 2, 2016, p. 153. (in Chinese)The Antarctic Treaty system is therefore advanced and experienced in respect to MPAs, which could oあer some lessons to the BBNJ Agreement.

In 2011, the CCAMLR adopted the General Framework for the Establishment of CCAMLR Marine Protected Areas. Paragraph 1 of the preamble of the General Framework provides that the Antarctic MPAs are established “with the aim of conserving marine biodiversity in the Convention Area.” Article 1 of the General Framework states that, “This conservation measure and any other CCAMLR conservation measures relevant to CCAMLR MPAs shall be adopted and implemented consistent with international law, including as reflected in the United Nations Convention on the Law of the Sea.” That is to say, the MPAs in Antarctic waters should be established and managed in compliance with the provisions of the UNCLOS. The BBNJ Agreement should be concluded on the basis of the UNCLOS; and the MPAs under the Antarctic Treaty system should also be established and regulated consistent with the provisions of the UNCLOS. It is diきcult to directly conclude that the Antarctic Treaty system has been harmonized with the BBNJ Agreement on MPAs, however, at least we can assume that no major barriers stand in way of the harmonization between the two with respect to the establishment and regulation of MPAs.

IV. Selection of the Ways of Harmonization

The legislative work concerning the BBNJ Agreement is well underway and proceeding steadily. However, in all the discussions, no explicit reference was made to the harmonization between the agreement and the Antarctic Treaty system.The Antarctic Treaty system is actually, a collection of treaties under the Antarctic Treaty. The BBNJ Agreement, although based on the UNCLOS, is a general treaty,as are the treaties within the Antarctic Treaty system and the UNCLOS. Therefore,to explore the harmonization between the BBNJ Agreement and the Antarctic Treaty system is, in essence, an attempt to discuss the harmonization between one treaty and a collection of treaties, or to examine the harmonization between the BBNJ Agreement and all the relevant treaties within the Antarctic Treaty system on each issue covered by BBNJ. The conventional ways to harmonize treaties include the application of the age-old principles of international law, such as the principles thatlex posterior derogat legi priori(later law supersedes earlier law)andlex specialis derogat legi generali(special law prevails over general law).Additionally, compatibility clauses contained in treaties and their interpretation are also important ways of harmonization. In the author "s view, an effective way to harmonize the BBNJ Agreement and the Antarctic Treaty system is to incorporate a compatibility clause into the BBNJ Agreement and establish mechanisms of cooperation or information exchange with bodies established under the Antarctic Treaty system.

A. Conventional Ways of Harmonization

Certain general principles of international law, such as thelex priorand thelex posteriorprinciples, have also been used in order to clarify the relationship between international treaties.61Patrizia Vigni, The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area, Max Plank Yearbook of United Nations Law,Vol. 4, Issue 1, 2000, pp. 481～542.However, these principles must be applied on the precondition that all the parties to a treaty are also parties to an earlier treaty on the same subject. The BBNJ Agreement is still under discussion, therefore it is unknown the number of States likely to sign it. While the treaties under the Antarctic Treaty system, such as the Antarctic Treaty, CAMLR Convention, and the Madrid Protocol, were all concluded on the basis of the Antarctic Treaty, they are still diあerent from each other with diあerent contracting parties. The discussions on the subject matters of the BBNJ Agreement are scattered in various treaties within the Antarctic Treaty system. Therefore, when using these principles to deal with the harmonization between the two, we should consider and address the following issues: which treaty within the Antarctic Treaty system does each subject matter of the BBNJ Agreement correspond to? Are all the parties to the BBNJ Agreement also parties to that particular treaty? The conventional way of harmonization is, apparently, not effective and applicable in this case, which also requires the automatic application of these principles, without due regard to the true intentions of the parties to a treaty at the time of conclusion.62Patrizia Vigni, The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area, Max Plank Yearbook of United Nations Law,Vol. 4, Issue 1, 2000, pp. 481～542.

At the same time, although some subject matters of the BBNJ Agreement,such as the exploitation of genetic resources, have been regulated by the Antarctic Treaty system; the former focuses on the use of marine genetic resources in the high seas and the Area, while the latter on the use of these resources in Antarctica,including the Antarctic land and seas, and also the high seas and the Area within the scope of the Southern Ocean. It is diきcult to argue that the rules governing the use of genetic resources within the Antarctic Treaty system constitute a special or earlier law, and those governing the use of genetic resources in the high seas and the Area under the BBNJ Agreement constitute a general or later law, since neither the matters under their regulation, nor the geographical scopes of their application are exactly the same. The two are actually diあerent sets of rules evolved from two diあerent systems.

B. Compatibility Clause and Its Interpretation

Many treaties contain provisions addressing their relations with other relevant treaties, such as Article 301 of the UNCLOS and Article 6 of the Antarctic Treaty.Such provisions are called “compatibility clauses”. Relations between international treaties are dealt with mainly in the light of the compatibility clause contained in the treatiesper se.63Patrizia Vigni, The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area, Max Plank Yearbook of United Nations Law,Vol. 4, Issue 1, 2000, pp. 481～542.Many treaties under the Antarctic Treaty system contain compatibility provisions dealing with their relations with the law of the sea and the UNCLOS. The application and interpretation of these compatibility clauses can provide an important reference to the harmonization of the BBNJ Agreement and the Antarctic Treaty system.

Article 6 of the Antarctic Treaty stipulates that “nothing in the present treaty shall prejudice or in any way aあect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.” This article ref l ects that “the Antarctic Treaty is highly fl exible when trying to keep pace with the development of international law. This article particularly stresses that the treaty shall not prejudice or aあect the rights of any State under international law with regard to the high seas within that area. It means that the scope of the high seas and the rights with respect to the high seas within that area may change with the development of international law.”64CHEN Li, Study on the Legal Status of Antarctic Ocean, Fudan Journal (Social Sciences),No. 5, 2014. (in Chinese)After the conclusion of the Antarctic Treaty, the international law of the sea has been developing continuously and developed into a system under the UNCLOS. In this process, the high seas and the Area have been shrinking, and the rights of States over the high seas are being regulated. The development of the BBNJ Agreement represents an eあort to regulate the rights of States to the high seas. The explanation above seems to tell that, since the Antarctic Treaty provides that it does not aあect the rights of States with regards to the high seas, the BBNJ Agreement would act as an agreement to regulate the rights of States with respect to the high seas and the Area. Therefore, the Antarctic Treaty will not aあect the application of the BBNJ Agreement in the Antarctic seas.

Furthermore, Article 1 of the General Framework for the Establishment of CCAMLR Marine Protected Areas states that, “This conservation measure and any other CCAMLR conservation measures relevant to CCAMLR MPAs shall be adopted and implemented consistent with international law, including as ref l ected in the United Nations Convention on the Law of the Sea.” Based on the UNCLOS,the BBNJ Agreement includes MPAs on the high seas as one of its important subject matters. In this connection, it can be argued that the CAMLR Convention should be consistent with the BBNJ Agreement in respect to MPAs.

We should note, however, that the interpretations of the compatibility clause above do not necessarily align with the true intentions of the contracting parties at the time of signing, and sometimes even seem absurd.65For example, the CAMLR Convention and the general framework above have been created,but the BBNJ Agreement is yet to be concluded. It is illogical to require that the legal norms that have been promulgated be consistent with those having not.Diあerent countries and scholars may have their interpretations catered to their own interests. However,even if such interpretations are consistent with the true intentions of the parties and considered as most eあective, we should recognize that “compatibility clauses are usually general in content”.66Patrizia Vigni, The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area, Max Plank Yearbook of United Nations Law,Vol. 4, Issue 1, 2000, pp. 481～542.As we know, the Antarctic Treaty does not aあect the application of the BBNJ Agreement in the Antarctic waters and the CAMLR Convention shall be consistent with the BBNJ Agreement. The question now is, how should the BBNJ Agreement be applied in Antarctic waters? In the case that the BBNJ Agreement is concluded later than CAMLR Convention, how exactly should CAMLR Convention keep consistency with the BBNJ Agreement?Compatibility clauses and their interpretations have not oあered an answer to these questions, meaning that the harmonization problem has not been actually resolved.

C. Establishing a Cooperation Mechanism on the Basis of Compatibility Clauses

Due to the above defects of compatibility clauses, it is evident that such clauses alone are not effective and efficient enough to harmonize the BBNJ Agreement and the Antarctic Treaty system. Since invoking compatibility clauses is the most direct and eあective way to solve the problem of harmonization between treaties,the author asserts that the harmonization problem between the BBNJ Agreement and the Antarctic Treaty system could be solved by establishing cooperation and information exchange mechanisms based on compatibility clauses.

Many treaties within the Antarctic Treaty system contain compatibility clauses,nevertheless, the author holds the following views: on the one hand, these clauses merely provide for the relationship between the relevant treaty and the UNCLOS;although they can be grudgingly construed as dealing with the relationship with the BBNJ Agreement under the UNCLOS, the validity and general acceptability of such an interpretation is questionable. On the other hand, some of the subject matters of the BBNJ Agreement have been regulated by the Antarctic Treaty system, while some have not. With regards to the matters that have been regulated, some treaties contain compatibility clauses, some do not. However, these treaties have come into force, and the treaties without compatibility clauses will not be able to handle their harmonization with the BBNJ Agreement in accordance with compatibility clauses.The legislation work regarding the BBNJ Agreement is underway and the text of the agreement has not yet been finalized, hence the compatibility clause should be naturally added into the agreement as long as the delegates are aware of the harmonization issues between the agreement and the Antarctic Treaty system. In addition, the Antarctic Treaty system consists of a collection of treaties, therefore when adding a compatibility clause to the BBNJ Agreement, the term “Antarctic Treaty system” could be used directly. For example, the agreement could include provisions like “nothing in this Agreement aあects the application of the Antarctic Treaty system in Antarctic waters”. Such wordings are simpler, more convenient and eあective.

However, as stated above, compatibility clauses cannot eあectively solve the harmonization problem between BBNJ Agreement and Antarctic Treaty system.The author contends that the establishment of cooperation and information exchange mechanisms based on compatibility clauses is a relatively perfect way to solve the problem.

The establishment of the principle of international cooperation in the international community is marked by the entry into force of the Charter of the United Nations and the birth of the United Nations.67LIANG Xi, International Law, Wuhan: Wuhan University Press, 1993, p. 61. (in Chinese)Since its establishment, this principle has developed into a basic principle of international law, especially in the field of international environmental law. Due to climate change and other reasons,the international community is increasingly aware that it has common interest in the protection of the global environment, with every member of the international community having the responsibility and obligation to this cause, which cannot be left to the efforts of one single country. Instead, it requires the international community to cooperate and work together. This is also the case for the BBNJ Agreement, which aims to conserve the marine living resources and protect the marine environment in the high seas and the Area. The objective that the BBNJ Agreement pursues to achieve in the high seas and the Area would benefit mankind as a whole, but it cannot be achieved by a single country; rather, it requires the joint eあorts of all countries. Therefore, the BBNJ Agreement would naturally contain the principle of international cooperation, which should first refer to the cooperation of all countries in the international community. To be applicable to the Antarctic waters, the BBNJ Agreement also expects to achieve its objective in these waters.However, as described above, the Antarctic Treaty system has long recognized the importance of the conservation and protection of the marine living resources and their marine habitats, and developed relevant treaties and measures. The agreement and the system under discussion are expected to achieve the same objective in the Antarctic waters and share common interests. Given that the relevant treaties within the Antarctic Treaty system are solely eあective for their contracting parties,the regulation on matters, such as IUU fishing, cannot be eあective with the mere eあorts of the Antarctic Treaty system and its contracting parties; rather, for proper eあectiveness it also requires the cooperation with treaties and institutions beyond the Antarctic Treaty system. Meanwhile, the BBNJ Agreement, faced with the reality that the Antarctic waters have been regulated by the Antarctic Treaty system, also needs to cooperate with this system to achieve its objectives in this sea area and to avoid overlapping or potential conf l icts between the two. Therefore,international cooperation in the BBNJ Agreement should also include cooperation with the relevant treaties and the institutions established within the Antarctic Treaty system in Antarctic waters. In Antarctic waters, many issues to be covered by the BBNJ Agreement have already been regulated by the CCAMLR, but others, such as the use of marine genetic resources, have not. In this connection, “cooperation”under the BBNJ Agreement could be expressed in the provision that “the relevant institutions set up under this Agreement shall cooperate with those under the relevant treaties within the Antarctic Treaty system, with the aim to establish a cooperation mechanism to achieve the objectives of this Agreement in the Antarctic waters”. When both the BBNJ Agreement and the Antarctic Treaty system apply to the high seas and the Area within the Antarctic, the cooperation mechanism should include an information exchange mechanism, since the establishment of such a mechanism may avoid the waste of resources and increase the compatibility of the agreement and system, thereby bringing to the fore an eあective way to promote the harmonization between the two.

V. Conclusions

The international community, inspired by the theory of the “Tragedy of the Commons”, has started to pay attention to the regulation of human activities on the high seas and in the Area, seeking to conserve and protect the marine living resources and their habitats. The BBNJ Agreement essentially deals with the protection of the marine environment of the high seas and the Area. The ATCM,being aware of the fragile ecological environment of Antarctica, pays great attention to ecological environmental protection in the Antarctic when dealing with aあairs related to Antarctica. This practice applies not only to the Antarctic land, but also to the Antarctic waters. However, when the protection of marine environment of the high seas and the Area is being discussed within the framework of the UNCLOS system, many conventions and measures under the Antarctic Treaty system have already been in place to protect the Antarctic ecological environment,including the Antarctic seas. The BBNJ Agreement under the UNCLOS will also apply to the Antarctic seas upon conclusion. Given that many issues pertinent to BBNJ have been regulated within the Antarctic Treaty system, the application of the BBNJ Agreement in Antarctica needs to be harmonized with the Antarctic Treaty system, the present model of Antarctic governance, to avoid overlapping problems and potential conf l icts. Among the various means of harmonization, the best one to resolve these problems and conf l icts is to incorporate a compatibility clause into the BBNJ Agreement and build a cooperation mechanism between relevant institutions based on such a clause.