Bioprospecting in areas outside national jurisdiction: Antarctica and the Southern Ocean

Abstract

This article examines the issues surrounding bioprospecting for potential resources from areas outside national jurisdiction. Bioprospecting is attracting attention in international law because there is a lack of clarity in the interplay between sovereign rights over biological resources and intellectual property rights in inventions developed from those resources. The situation is even more complex where sovereign rights are disputed or absent. This article focuses on the Antarctic and the Southern Ocean because, although this region is in the administrative custody of 45 state parties to the Antarctic Treaty, the status of Antarctic resources is legally unclear. While there may not be direct conflict between the Antarctic legal regime and other international regimes, including the Agreement on Trade-Related Aspects of Intellectual Property, the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea, neither does the legal regime provide adequate guidance in the treatment of resources from global commons areas. An examination of the issues has led the authors to conclude that at the very least the Antarctic Treaty consultative parties should make clear their collective policy on bioprospecting before the industry takes hold.