ABSTRACT This article examines whether and to what extent a traditional international law regime can step in for the rights of nature, which are not yet recognised at the international level. It proceeds by analysing whether non-use measures in the Antarctic Treaty System (ATS), such as the suspension of fishing within marine protected areas, the moratorium on mining, and the restrictions to entry into Antarctic Specially Protected Areas, reflect the aims and values of the rights of nature and contribute to achieving the content of the rights of nature’s substantive and procedural rights. The focus on non-use measures is important as this is the type of conservation and management measures that, at least on paper, provide the highest possible form of environmental protection; use is prohibited and nature is hence given priority. This article finds that the aims of the non-use measures examined are quite reflective of fundamental elements of the rights of nature, but that ecocentric values are often accompanied by anthropocentric ones, especially in the older instruments. When it comes to substantive rights, while non-use measures adopted under the ATS have the potential to protect elements of nature and ensure that they can continue to exist and fulfil ecological functions, important issues remain, in particular exceptions and the limited material scope of non-use measures. Most problematic are procedural rights. While some noteworthy procedures enable a variety of interests to be represented and some checks and balances exist to promote compliance with obligations, States closely control key decision-making stages. In particular, the adoption of new non-use measures through consensus places the bar very high for their potential expansion. While non-use measures cannot replace the rights of nature, some best practices reflective of more ecocentric values and rights are noted, which could be further developed within the ATS or used in other regimes’ modifications or development.
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