Soft Law And The Antarctic Bioprospecting

Whether in the practice or the theory research, the phenomenon of softlaw has become a focus in the area of international law. In theInternational Law, soft law is rules of behavior which are not legallybinding, but can produce a certain legal effect. Compared with hard law,soft law has more flexibility and freedom in the establishment andenforcement. Soft law itself is a agreement, so the principles of “goodfaith” and “estoppel” also apply to it. The reason why soft law canproduce a certain legal effect is that soft law maintains the commoninterests of human beings. Through internal supervision, value guidance,public opinion and other means, soft law can produce actual binding effect.Soft law is good at dealing with complicated and sensitive issues whichinvolve human beings’rights, and that makes it connected with the themeof bioprospecting in Antarctica. Antarctic bioprospecting is connectedwith Antarctic resources’ ownership, biodiversity, environmentalprotection, intellectual property and other issues. Faced with newemerging problems, hard law system of convention and protocol in AntarcticTreaty System has been challenged. In this case the Antarctic TreatyConsultative Meeting (ATCM) decides to form soft law of resolution whichcontinues the existing legal spirit and introduces new topics. And relyingon the consensus of ATCM, finally soft law promotes the process of legalregulation. The practices of soft law show that soft law has a positiveeffect on the international governance of Antarctic bioprospecting. First,soft law helps to establish the common value “the common interests ofmankind come first”. Second, soft law expands participants in Antarcticlegislation. Third, soft law bridges the divide of existing legal systemso as to promote the legislative process. Forth, soft law is able to ease the conflicts of interests between sovereign states, and thus promotesinternational cooperation.