The legal implications of bioprospecting in the Antarctic region
Degree GrantorUniversity of Canterbury
Degree NameMaster of Laws
The term ‘bioprospecting’ was only coined within the past few decades. Today, it is still difficult to find consensus on its legal meaning. What it appears to represent is the range of activities associated with searching for, discovering and researching unique biodiversity for any potential commercial applications. The polar regions are likely sources of such uniqueness. This is what attracts bioprospectors, as polar biodiversity often contain genes, molecules or compounds, that once isolated and assessed, can be developed into a product or process of commercial value in the fields of agriculture, medicine, aquiculture, cosmetics, and pharmacy to name only a few.
Bioprospecting in the Antarctic presents similar challenges to bioprospecting carried out anywhere else in the world. It also, however, carries with it unique challenges and implications specific to the Antarctic region. Bioprospecting has been underway in the Antarctic since the mid 1980s, within the context of National Antarctic programmes. Little formal debate, however, has taken place within the Antarctic Treaty System, the legal regime which governs the region. This thesis investigates the unique legal implications that bioprospecting has for Antarctica and the Southern Ocean. Antarctic bioprospecting also carries with it environmental and ethical implications. These will only be briefly discussed, but they too, carry with them legal obligations which are important in the context of the Antarctic.
The principle legal obligations are contained within the Antarctic Treaty; being the use of the area for peaceful purposes only, freedom of scientific investigation including the free availability of scientific observations and results, and the ‘frozen’ but unresolved sovereignty situation that prevails while the Antarctic Treaty is in force. Sovereignty considerations are particularly important when considering resource utilization and benefit-sharing from such utilization. Beyond the Antarctic Treaty, there exist international legal instruments which carry with them other obligations that cannot be ignored. Avoiding conflicts with these international instruments must also be a fundamental consideration in any Antarctic bioprospecting regulation. The extent of these legal obligations, and their implications for bioprospecting, is the focus of this thesis.
The thesis will explore these obligations and then investigate the possible future of bioprospecting in the Antarctic. Bioprospecting appears to be the latest challenge to the half century old Antarctic Treaty System. Each new challenge seems to prompt a call to investigate the system itself. So that every challenge has the possibility of altering or collapsing the system that appears to have worked extremely well in the past.