Abstract

ABSTRACT: Biological prospecting is being undertaken in the Antarctic and, as novel material starts to yield significantly higher commercial rewards, the Antarctic Treaty Consultative Parties might decide to regulate it through the Antarctic Treaty System. This will be problematic since activities are already being undertaken, patents have been filed and products developed. Furthermore, there are differing perceptions of the status of the Antarctic, with some considering it global commons and others considering it the common heritage of mankind. These 2 doctrines can be inferred from the rhetoric of the Treaty and its subsequent legal instruments through which human activities, including the use of resources, are managed. However, the Antarctic Treaty System does not support either in practice because activities such as fishing and bioprospecting already return an exclusive reward for effort, with no benefit-sharing arrangements. Under the Convention on the Conservation of Antarctic Marine Living Resources, the Parties determine allowable catches for a fishery based on scientific assessment, and this may discharge them from providing access and benefit-sharing arrangements to the international community potentially available through other international law (e.g. the Law of the Sea Convention or the Convention on Biological Diversity). The major turning point in Antarctica came when the Convention on the Regulation of Antarctic Mineral Resource Activities—which acknowledged the rights of the international community—failed to enter into force. Today the international community is rewarded with a relatively healthy Antarctic environment and free access to some scientific information, which are benefiting all mankind. But the international community does not get direct financial reward from Antarctic activities because access is constrained by law and by a lack of capacity. There is no mechanism for disbursing compensation to all mankind in any case, although the Antarctic Treaty Consultative Parties could certainly rectify this if they had the will to do so. So far they have not