An Attempt to Idealise Antarctic Law with Res Communis and Other Basic Concepts of Roman Civil Law

Abstract

There are various theories about the legal, economic, and political status of the North and South Poles. Furthermore, theorists reach different scientific conclusions when comparing the North Pole (≈Arctic) and the South Pole (≈Antarctic). The laws of the two poles are subject to different regimes. In Antarctic law, instead of res nullius (nobody’s, belonging to no one), the principle of res communis humanitatis (the common property of all, belonging to the commonality of humanity) and the motto of the common heritage of humanity are adopted. However, the collectivist Antarctic discourse in academia is not clearly reflected in the Antarctic Treaty system. In this study, an attempt to idealise the concept of the common heritage of humanity with the basic terminology of Roman civil law is undertaken, which may offer a new perspective on the doctrine of the poles. The following terms and principles can be considered as an ideal conceptual infrastructure for a more efficient application of res communis in Antarctica: co-ownership, co-ownership for or as undivided shares, the absence of designated shares of co-owners, unanimous decision-making (at least in extraordinary administrative matters), the extension of each co-owner’s property to the whole of the communal property, authorising each co-owner to protect the common interests of the co-ownership, not authorising co-owners to file partition action, filling the legal gaps with the rules of co-ownership as divided, the impediment to partition arising from being allocated to a permanent and common purpose, and the implicit agreement to maintain co-ownership.

Keywords

• res nullius
• res communis humanitatis
• common heritage of humanity
• attempt to idealise the concept of the common heritage of humanity with the basic terminology of roman civil law
• ideal conceptual infrastructure for a more efficient application of res communis in antarctica