Reconsidering Antarctic Marine Bioprospecting Governance in Light of the BBNJ Agreement

The adoption of the BBNJ Agreement in June 2023 marks a pivotal moment in global ocean governance, introducing explicit and robust provisions for marine genetic resource (MGR) activity in areas beyond national jurisdiction under Part II. By addressing longstanding regulatory gaps, particularly in benefit-sharing and environmental stewardship, the BBNJ Agreement offers a critical framework for the sustainable and equitable management of marine bioprospecting. However, this progress is met with resistance from several Antarctic Treaty Consultative Parties (ATCPs), who assert that the Antarctic Treaty System (ATS) already provides a “competent” and “comprehensive” framework for managing marine biological diversity in the Antarctic Treaty Area (ATA), which encompasses most of the Southern Ocean. These claims, part of a two-decade narrative positioning the ATS as the “appropriate” framework for bioprospecting governance, now intersect with the BBNJ Agreement’s mandate under Article 5(2) to avoid “undermining” existing regional instruments.

This presentation critically examines whether the BBNJ Agreement’s provisions for MGR governance genuinely threaten to undermine the ATS or, conversely, serve to bolster its ambiguous and underdeveloped regulatory framework. First, it dismantles the ATS’s claims of comprehensiveness, highlighting the absence of explicit rules governing bioprospecting and the system’s reliance on weak and poorly complied with default rules/mechanisms. Second, it situates the ATS within the broader regime complex, which includes overlapping international frameworks such as the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD) with its Nagoya Protocol, and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. This analysis demonstrates that the ATS operates as one of many relevant regimes, challenging its assertation of exclusive competence over bioprospecting in the region. Finally, the presentation argues that the BBNJ Agreement’s provisions – particularly on benefit-sharing and transparency – would complement and enhance the ATS’s governance, rather than undermine it. By integrating these global standards into regional governance, the Southern Ocean could benefit from a more cohesive and equitable approach to MGR management. This analysis underscores the urgency of moving beyond isolated governance claims and embracing a more integrated framework, ensuring that Antarctic genetic resources are managed sustainably and fairly in line with evolving international legal norms.