2.1. Antarctic Bioprospecting

Bioprospecting has been quietly expanding in Antarctica and the Southern Ocean for over 25 years.Footnote ⁶ The Scientific Committee on Antarctic Research (SCAR), an independent scientific advisory body, first raised attention to bioprospecting activity in Antarctica in a report to the 1999 Antarctic Treaty Consultative Meeting (ATCM).Footnote ⁷ The report highlighted the collection of Antarctic micro-organisms for ‘pharmaceutical purposes’ alongside a rapidly growing interest in the region’s genetic resources.Footnote ⁸ Subsequent studies confirmed the breadth and persistence of this activity: the SCAR 2010 review concluded that Antarctic bioprospecting, even under a conservative assessment, was ‘extensive and widespread’, while Foster and co-authors, in 2011, documented a notable rise in patent filings for Antarctic genetic material, particularly those involving Antarctic krill.Footnote ⁹ An information paper submitted to the 2018 ATCM presented the evolution of patent applications from 1998 to 2017 related to organisms, bacteria, and species originally found in Antarctica.Footnote ¹⁰ The paper identified a total of 1,298 patent records, with 41.1% successfully granted, and concluded that the evidence on Antarctic bioprospecting ‘illustrates a mature sector profile, with a readily steady annual number of patent filings’.Footnote ¹¹ Most recently, a 2021 SCAR survey revealed that 15 of 22 countries surveyed (68%) had conducted or were currently conducting research that could be considered Antarctic bioprospecting.Footnote ¹²

It was recognized early on that Antarctic bioprospecting raised governance questions of potential relevance to international legal regimes beyond the ATS. Resolution 7 of ATCM 2005, for example, recommended that governments keep the topic under review while ‘bearing in mind ongoing discussions in other international fora …, including efforts to develop and clarify the nature and definition of such activities’.Footnote ¹³ Similarly, a report submitted to ATCM 2008 noted the importance of considering ‘the mandates of other international forums, such as …, the Convention on Biological Diversity in relation to land and marine genetic resources’.Footnote ¹⁴ However, instead of initiating coordinated dialogue with relevant external regimes, two subsequent ATCM resolutions affirmed the ATS as ‘the appropriate framework for managing the collection of biological diversity in the Antarctic Treaty area and for considering its use’.Footnote ¹⁵ For over a decade, this position – asserted but largely uncontested – has remained the prevailing status quo.

2.2. The BBNJ Agreement and Institutional Interaction

The adoption of the BBNJ Agreement and consequent legal developments change this status quo. The Agreement marks a significant evolution in global ocean governance, establishing new rules across four key areas, including the development of a new regime under Part II, which governs MGRs and associated marine bioprospecting activities in areas beyond national jurisdiction (ABNJ). Yet, the practical success of these new rules does not depend on their internal content alone; it also depends, in large part, on how the BBNJ Agreement interacts with legal instruments and institutional bodies that have operational relevance to the substantive areas covered by the Agreement, as well as in ocean governance more broadly.

During the BBNJ negotiations, states put forward diverging visions for how the Agreement should interact with existing regimes.Footnote ¹⁶ Some advocated the establishment of a centralized global authority with strong oversight powers under the auspices of the BBNJ Agreement – a model aligned with what Tladi described as a ‘minimum or non-recognition approach’ to other IFBs.Footnote ¹⁷ Other states insisted on a regional or ‘deferential’ model, wherein existing IFBs would retain their authority, and the BBNJ Agreement would serve in a supporting or gap-filling capacity.Footnote ¹⁸

In her analysis of the ‘not undermine’ provision in UNGA Resolution 69/292, Scanlon noted the ambiguity of this requirement, highlighting that it contained two possible interactional approaches: one that concentrates on not undermining ‘existing legal instruments and frameworks’, and another that concentrates on not undermining ‘existing bodies’.Footnote ¹⁹ To Scanlon, an emphasis on relevant ‘bodies’ could result in a focus on the legal mandate of those bodies, which would lead to an application of the Agreement that carefully avoids overlapping or interfering with areas within the competence of those bodies. On the other hand, an emphasis on ‘instruments and frameworks’ as the target of the provision could result in a focus on not undermining the effectiveness of those instruments/frameworks in governing the subject matter and/or activity in question. This would allow the BBNJ Agreement to encroach upon the mandate of other bodies to the extent that the encroachment enhances governance performance. Yet, as Scanlon concludes, referring to both instruments/frameworks and bodies as the referent of the provision creates unclear guidance on how to interpret and apply it.Footnote ²⁰

Nonetheless, the ambiguous language surrounding the obligation to ‘not undermine’ was preserved in the final version of the BBNJ Agreement as Article 5(2). However, in a new iteration of the provision’s previous language, Article 5(2) goes on to read ‘and that promotes coherence and coordination with those instruments, frameworks and bodies’ (emphasis added). The inclusion of language on promoting coherence and coordination reflects not only the contested nature of the BBNJ interactional models during negotiations, which required compromise, but also the broader normative ambition of the Agreement to foster a more integrated approach to ocean governance in ABNJ.Footnote ²¹ Yet, the relationship between these dual obligations – seemingly ‘divergence-accommodating’ and ‘convergence-promoting’ in nature – is undefined and contributes to the interpretive ambiguity.Footnote ²² This interpretive ambiguity is less problematic for certain substantive parts of the BBNJ Agreement, as they include additional provisions that clarify how institutional interaction is to unfold.Footnote ²³

For example, conflicts regarding the application of environmental impact assessments (EIAs) under Part IV of the Agreement will be addressed through the operation of Article 29(4) BBNJ, which requires an assessment of equivalency – requiring evaluation of the effectiveness of the EIA rules of external regimes compared to those within the BBNJ Agreement.Footnote ²⁴ Conflicts concerning area-based management tools (ABMTs), including marine protected areas (MPAs), under Part III are governed by Article 22(2) BBNJ, which explicitly directs the BBNJ Conference of the Parties (COP) to ‘respect the competences of’ relevant legal IFBs. In contrast, there is no specific conflict approach for the MGR provisions in Part II of the Agreement. The lack of further guidance, combined with the ambiguous language of Article 5(2), provides a wide margin of interpretive discretion for both parties and IFBs regarding regime interaction for marine bioprospecting governance.

2.3. The Antarctic Response to the BBNJ Agreement

In the years preceding the adoption of the BBNJ Agreement, a growing body of scholarship began to consider how the ATS might interact with the emerging BBNJ regime. In a 2017 analysis of the potential spatial and substantive overlap between the draft BBNJ Agreement and the ATS, Johnson drew attention to the absence of explicit consideration of Antarctic-specific governance questions within the BBNJ process.Footnote ²⁵ He observed that, up to the time of his publication, the ATS had ‘remained somewhat distant’ from the work of the BBNJ Preparatory Committee and its predecessor Working Group, while the Preparatory Committee itself had ‘not apparently given any express consideration to the unique situation and governance challenges applying to the conservation and sustainable use of marine biological diversity’ in Southern Ocean ABNJ.Footnote ²⁶ It was against this backdrop that Johnson emphasized the Southern Ocean’s ‘uncommonness’ – understood as the distinctive legal and political characteristics of Antarctic governance arrangements – and suggested that this unique status would play a significant, and likely to be a challenging, role in structuring how the relationship between the two regimes would develop.Footnote ²⁷

Building on this line of inquiry, Nickels examined in 2020 how the ATS might relate to the developing BBNJ Agreement from a normative and institutional perspective, with particular attention to marine bioprospecting governance.Footnote ²⁸ Like Johnson, he noted that during the BBNJ negotiations between 2018 and 2019, the relationship between the Agreement and the ATS had ‘not been specifically discussed’.Footnote ²⁹ However, Nickels identified statements within ATS processes that offer insight into how the relationship between the two regimes was shaping to be understood internally. In particular, he highlighted a statement issued at the 2017 ATCM in response to an invitation from the United Nations for the Antarctic Treaty Secretariat to participate in the forthcoming intergovernmental conference on the BBNJ Agreement.Footnote ³⁰ Acting on instructions issued at the ATCM, the Secretariat responded by recalling that the ATS ‘is the competent framework within which to address the conservation and sustainable use of biodiversity in the Antarctic region’.Footnote ³¹ Nickels also referred to language in the Final Report of the 2018 ATCM, which records that ‘most delegations expressed the view that the [ATS] must continue to address the issue of bioprospecting, regardless of the BBNJ issue, in light of its inherent competence regarding all activities in Antarctica’.Footnote ³² Despite these assertions of competence, Nickels concluded that whether the relationship between the ATS and the BBNJ Agreement would ultimately take on a competitive character would depend on how the obligation to ‘not undermine’ existing IFBs is interpreted and operationalized moving forward.Footnote ³³

In 2021, Haward further developed this discussion by applying a broader ‘regime interplay’ framework to examine how the ATS, and the CCAMLRFootnote ³⁴ in particular, might interact with the BBNJ Agreement.Footnote ³⁵ He identified four possible modes of interaction: (i) competence (where a regime asserts primacy within its perceived sphere of authority); (ii) competition (where different regimes assert overlapping or competing interests, jurisdiction, and norms); (iii) complementarity (where a regime defers to or supports the work of another); and (iv) congruence (where a regime incorporates measures developed from another).Footnote ³⁶ Drawing on historical patterns of interaction between the ATS and other international legal frameworks and bodies, Haward suggested that competence and competition were likely to be the dominant forms of interplay vis-à-vis the BBNJ Agreement, particularly in relation to issues concerning the governance of marine living resources, including marine bioprospecting activity.Footnote ³⁷

Taken together, scholarship has anticipated that ATS engagement with the BBNJ Agreement might be marked by challenge and institutional defensiveness, a trajectory that subsequent developments confirm.Footnote ³⁸ In 2024, a bloc of ATCPs – Australia, New Zealand, the United Kingdom (UK), and Norway – submitted a working paper to the ATCM that offered a joint interpretation of Article 5(2) BBNJ Agreement.Footnote ³⁹ The document states that the ATS is the ‘competent framework within which to address issues relating to the conservation and sustainable use of marine biological diversity’ in the Antarctic region.Footnote ⁴⁰ It goes further still – not only is the ATS described as competent, but also as ‘comprehensive’, which implicitly negates any need for external regulatory support in this domain.Footnote ⁴¹ The paper draws an explicit parallel between the BBNJ Agreement and the ATS, arguing that ‘ATS instruments and decision-making forums are competent to do for the Antarctic what the BBNJ Agreement does for the ocean space beyond national jurisdiction’.Footnote ⁴² The implication is clear: the legal and institutional architecture of the ATS is authoritative and sufficient – indeed, equivalent – and therefore any interface with, or application of, the BBNJ regime is unnecessary. The ATCPs concluded by calling for the ATCM to formally adopt a resolution affirming this interpretation, turning a shared interpretive position into an official ATS position.Footnote ⁴³

This interpretive position does not remain confined to the internal documents of the ATCM; it soon found reinforcement in a series of political declarations issued by ATCPs during the signing and ratification process of the BBNJ Agreement through Article 71.Footnote ⁴⁴ The UK, for instance, issued a declaration upon signing stating that the ATS ‘comprehensively addresses the legal, political, and environmental considerations unique to that region and provides a comprehensive framework for the international management of the Antarctic’.Footnote ⁴⁵ Chile, in its ratification declaration, emphasized that the BBNJ Agreement ‘shall in no way undermine the legal regimes to which Chile is a party, such as, among others, the Antarctic Treaty and its related instruments’, and stressed the importance of a ‘collaborative and non-prescriptive model’ of interaction.Footnote ⁴⁶ Most recently, Norway confirmed the importance of the ‘not undermine’ provision in Article 5(2) and explicitly named the ATS among the ‘important legal frameworks and bodies’ applicable to this obligation.Footnote ⁴⁷

Beyond official declarations, there has also been a consistent strengthening of this reading through background moves by other ATCPs. For example, a 2023 New Zealand cabinet paper on BBNJ approval and ratification describes Article 5(2) as meaning that the BBNJ Agreement ‘will complement, fill gaps, and encourage the lifting of standards of existing institutions, but not replace them’.Footnote ⁴⁸ It notes this as of ‘particular importance for New Zealand in relation to …, the Antarctic Treaty System’.Footnote ⁴⁹ Furthermore, a 2024 National Interest Analysis for New Zealand regarding the BBNJ Agreement argues that ratification of the treaty will give it ‘a seat at the table’ to ‘ensure that decisions and recommendations by the COP respect the competency of the Antarctic Treaty System as the primary framework for international management of the Antarctic, including the conservation of marine biodiversity’.Footnote ⁵⁰ Similarly, a National Interest Analysis for Australia recommends that Australia make a declaration under Article 71 BBNJ Agreement ‘highlighting that the [COP of the BBNJ Agreement] must respect the competences of the Antarctic Treaty System’.Footnote ⁵¹ Finally, and most recently, Russia submitted a working paper to ATCM 2025 recommending that the parties ‘reaffirm the competence of’ the ATS in relation to the BBNJ Agreement.Footnote ⁵²

Taken together, this evidence – the early bioprospecting resolutions, ATCM working papers, political declarations made under the BBNJ Agreement, and background domestic documents – consolidates to reveal a clear and deliberate interpretive stance advanced by a group of ATCPs towards the BBNJ Agreement.Footnote ⁵³ This stance functions as a form of legal pre-emption – an interpretive manoeuvre that emphasizes the authority of the ATS to govern all aspects related to marine biodiversity, including marine bioprospecting activity, in what amounts to the majority of the Southern Ocean, without (or with limited) reference to the new treaty and the international consensus that was reached in connection with MGRs.Footnote ⁵⁴

What remains unsaid, however, is that these claims to competence and comprehensiveness are self-authenticated. There is no established process for determining competence, no objective standard of comprehensiveness, and no independent forum or review mechanism to evaluate such interpretive claims. These claims are, in effect, a strategy of defending the institutional terrain of the ATS through an exercise of legal self-description.

We argue that such claims require clear and convincing justification. Justificatory reasoning should be provided not only for the potential fragmentary effects that regime exclusion might have on the effective implementation and integrative goals of the BBNJ Agreement, but also given that key ATS instruments invoke responsibilities owed to the broader international community.Footnote ⁵⁵ The Antarctic Treaty,Footnote ⁵⁶ its Environmental Protocol,Footnote ⁵⁷ and the CCAMLRFootnote ⁵⁸ all base their normative legitimacy on references to the ‘interest of all mankind’ and the ‘progress of science’ in service of that global interest. Such language encourages, rather than forecloses, external scrutiny. Within this context, this article critically assesses the ATCPs’ exclusionary interpretive position advanced in relation to the BBNJ Agreement, focusing on the foundations upon which it rests – namely, claims of ‘competence’ and ‘comprehensiveness’ in relation to marine bioprospecting governance.Footnote ⁵⁹

4.1. The Antarctic Treaty

The Antarctic Treaty establishes the foundational legal framework for activities in Antarctica. Its primary functional objectives are to (i) suspend territorial disputes in the region (Preamble and Article IV); (ii) ensure the demilitarization of the continent (Article I); (iii) prohibit nuclear tests and the disposal of radioactive waste (Article V); and (iv) promote freedom of scientific investigation and the facilitation of international scientific cooperation in the region (Articles II and III). Article III requires parties to exchange information, plans, and the results of their scientific work, creating an inter partes framework for transparency and collaboration.

Functionally, the Antarctic Treaty pertains only to two dimensions of the (marine) bioprospecting process: scientific research and non-monetary benefit-sharing (e.g., knowledge-sharing arrangements). It contains no explicit mandate for environmental oversight, in situ collection regulation, ex situ storage and curation of collected material, the generation and use of DSI, commercialization and/or utilization governance (i.e., intellectual property), or monetary benefit-sharing governance.Footnote ⁸⁵

Furthermore, the Antarctic Treaty’s functional mandate can be read not only positively, as conferring authority to regulate certain activities and/or subject areas, but also negatively, as defining areas of activity or rights with which the Treaty cannot interfere, or constrain. In this context, Article VI of the Antarctic Treaty constrains its functional mandate in so far as it notes that nothing in the Treaty ‘shall prejudice or in any way affect the rights, or exercise of rights, of any State under international law with regard to the high seas within [the ATA]’. The wording of Article VI does not refer to a specific treaty but rather emphasizes the exercise of high seas rights under international law in general. Those rights are currently defined by the UNCLOS but may also include new high seas rights under the BBNJ Agreement. Thus, an important question concerning the relationship between the Antarctic Treaty and the BBNJ Agreement is whether the BBNJ creates new high seas rights that require recognition under Article VI of the Antarctic Treaty. The primary rights created are the right of access to MGRs and associated DSI from ABNJ and the right to share in the benefits (including monetary benefits) from bioprospecting activities.Footnote ⁸⁶ On a plain reading, these rights are high seas rights, which would appear to fall within the scope of Article VI.

4.2. The Environmental Protocol

The Environmental Protocol significantly expands the functional remit of the regime to include environmental management. Article 2 designates Antarctica as a ‘natural reserve, devoted to peace and science’, while Article 3 establishes a general duty to plan and conduct activities to prevent and/or limit adverse environmental effects. The core functions of the Protocol include:

• • a prohibition on all mineral resource activities in the ATA, except for scientific research (Article 7);

• • a three-tiered EIA system to evaluate the environmental impacts of any proposed activity in the region (Article 8 and Annex I);

• • the protection of native fauna and flora, including permitting systems for biological interference or collections (Annex II);

• • waste management planning and disposal regulations (Annex III);

• • terrestrial and marine pollution prevention measures (Annex IV);

• • designation and management of specially protected and managed areas (Annex V); and

• • liability rules for environmental emergencies (Articles 15, 16, and Annex VI).

Collectively, the Protocol constitutes a specialized environmental management regime that emphasizes the minimization of human impact on the Antarctic environment.

In relation to (marine) bioprospecting, the Protocol’s functional relevance lies primarily in its procedural and environmental controls. Article 8 and Annex I require prior assessment of the environmental impacts of proposed activities, a process that has clear functional relevance to the environmental oversight of the scientific research and in situ collection dimensions of bioprospecting activities. Additionally, Annex II, which governs the ‘taking or harmful interference’ of native fauna and flora, is relevant to the in situ collection dimension of bioprospecting governance. However, the Environmental Protocol’s authority ends at the point of collection. It has no mandate over the treatment, use, or ownership of biological samples once they are removed from the environment of the ATA. Its functional purpose is to prevent environmental harm, not to regulate genetic materials as such.

4.3. The CCAMLR

The CCAMLR, adopted in response to concerns regarding the effects of unregulated fishing on the ecological balance of the Southern Ocean, establishes a framework for the conservation of Antarctic marine living resources.Footnote ⁸⁷ Article I(2) defines ‘Antarctic marine living resources’ expansively as ‘the population of fin fish, molluscs, crustaceans and all other species of living organisms, including birds, found south of the Antarctic Convergence’.Footnote ⁸⁸

The functional mandate of the CCAMLR is articulated in Articles II and IX. Article II(1) states the Convention’s objective as ‘the conservation of Antarctic marine living resources’, while Article II(2) clarifies that conservation includes ‘rational use’ (i.e., sustainable harvesting/fishing).Footnote ⁸⁹ Article III(3) specifies the functional principles that guide this objective: (a) prevention of population declines below levels that ensure stable recruitment; (b) maintenance of ecological relationships among harvested, dependent, and related populations; and (c) prevention or minimization of ecosystem changes that are not potentially reversible over two or three decades. These functional principles are operationalized through the CCAMLR Commission’s activities listed under Article IX. The Commission is authorized to facilitate scientific research; compile and analyze biological, ecological, and environmental data; identify conservation needs and adopt, revise, or suspend conservation measures to give effect to the instrument’s objective; and oversee observation and inspection systems to ensure compliance.Footnote ⁹⁰ The conservation measures that the Commission may adopt are listed in Article IX(2) and include, inter alia, designating total allowable catches, fishing seasons, closed areas, and catch reporting and data requirements. Conservation measures may also broadly concern any matter considered ‘necessary for the fulfilment of the objective’ of the Convention, ‘including measures concerning the effects of harvesting and associated activities on components of the marine ecosystem other than the harvested populations’.Footnote ⁹¹ Taken together, these provisions confer on the CCAMLR a functional mandate encompassing research facilitation, ecosystem monitoring, conservation regulation, and data management for Antarctic marine living resources.

Accordingly, the functional competence of CCAMLR aligns with the early, in situ phases of the marine bioprospecting process: environmental oversight of scientific research and/or the collection of marine living resources (broadly defined) within the Convention area. Its competence does not extend to ex situ storage and curation of collected material, the generation and use of DSI, commercialization and/or utilization governance (intellectual property), or monetary benefit-sharing governance.

4.4. The CCAS

The object and purpose of the CCAS, as articulated in its Preamble, is to promote and achieve ‘the protection, scientific study and rational use of Antarctic seals’ in the ATA to maintain ‘a satisfactory balance within the ecological system’ of the Antarctic. It prohibits the capture or killing of Antarctic seal species unless a ‘special permit’ is obtained from the respective state that allows the taking of limited quantities for indispensable food for people or dogs, scientific research, or to provide specimens for museums, educational, and/or cultural institutions.Footnote ⁹² Parties to the CCAS are to delineate quotas, seasons, zones, and methods for sealing under such permits, and cooperate to exchange data, reports, and advice.Footnote ⁹³

As such, the functional relevance of the CCAS to marine bioprospecting activity is limited to the specific scenario in which a species of Antarctic seal was the subject of a special permit – applied for and granted for ‘scientific research’ purposes – and later became the subject of genetic resource activity/development. There is no indication that Antarctic seals are the target of bioprospecting interests. Consequently, the remainder of this article does not consider the CCAS.

4.5. Functional Competence or Functional Relevance?

What emerges from this analytical breakdown is clarity that the functional remit of the constituent instruments of the ATS provides only partial scaffolding for regulating marine bioprospecting in the region. Specifically, the ATS confers mandates relevant to addressing the early stages of the bioprospecting process: scientific research under the Antarctic Treaty; environmental oversight under the Environmental Protocol and the CCAMLR; and the regulation of in situ collection of biological material under the Environmental Protocol and the CCAMLR.

However, and crucially, the ATS instruments lack an explicit functional mandate for the majority of the later stages of the bioprospecting process – namely, the governance of ex situ collections, the generation and use of DSI, the regulation of intellectual property rights, and the establishment of monetary benefit-sharing arrangements in connection with the commercial development of MGRs. These missing pieces stem from the spatial constraints of the ATS, as explored in the previous section of the article. The post-collection stages of the bioprospecting process typically occur well beyond the spatial-jurisdictional scope of the ATA and the extended CCAMLR area. Accordingly, the establishment of a functional mandate for these stages would be jurisdictionally incongruent. What the ATS provides is not functional competence in marine bioprospecting governance writ large but, rather, partial functional competence, which may be better characterized as functional relevance.

Further, any discussion of the functional competence of the ATS in marine bioprospecting governance must contend with the fact that such competence is not only limited but also shared. Marine bioprospecting is not, and is unlikely ever to be, governed by a single regime; instead, reflecting the activity’s regulatory pluralism, it is governed by a ‘regime complex’ – ‘an array of partially overlapping and non-hierarchical institutions governing a particular issue-area’.Footnote ⁹⁴ Elemental regimes within this complex, in addition to the relevant ATS provisions and Part II of the BBNJ Agreement, include:

• • the UNCLOS, with rules concerning the rights and obligations surrounding marine scientific research, the sharing of knowledge relating to said research, as well as due diligence obligations to prevent pollution of/harm to the marine environment;Footnote ⁹⁵

• • the Convention on Biological Diversity (CBD)Footnote ⁹⁶ – the central global treaty in force governing genetic resources found within national jurisdiction – together with its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their UtilizationFootnote ⁹⁷; and

• • the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)Footnote ⁹⁸ under the World Trade Organization (WTO), which defines patentable subject matter and sets out internationally harmonized minimum standards for the protection to be provided by patents, including those related to genetic material.Footnote ⁹⁹

Each elemental regime within the regime complex has valid and complementary claims to functional competence over distinct aspects of marine bioprospecting regulation, co-constituting the governance space in which marine bioprospecting activities operate. The existence of a regime complex for the subject matter means that functional competence over marine bioprospecting governance – no matter how robust it may be in any single regime – is necessarily shared. Consequently, the functional competence of the ATS in relation to marine bioprospecting must be understood not only in terms of its own mandate but also in relation to the mandates exercised by these parallel and interacting regimes.Footnote ¹⁰⁰

The limited scope of the functional competence of the ATS in marine bioprospecting, as well as its shared quality, has been recognized within the ATS. Regarding its limited mandate, a 2009 ATCM working paper notes the following discussion among parties on bioprospecting governance:

Relatedly, a 2010 ATCM working paper records the expressed view that the ATCM has neither ‘the mandate nor the expertise to consider changes to the international intellectual property system’.Footnote ¹⁰² Regarding the shared nature of functional competence, the same working paper highlights the view that ‘intellectual property matters should be considered by the World Intellectual Property Organization [(WIPO)] or the [WTO], and not in the ATCM’.Footnote ¹⁰³ Similarly, an information paper notes that, in 2005, several parties ‘were of the view that progress had been achieved in the discussions on benefit-sharing of genetic resources in other international fora’, and that there was an urgent need to consider ‘the sharing of monetary and non-monetary benefits in the context of the ATS in light of those discussions’.Footnote ¹⁰⁴ In a 2009 ATCM working paper, the potential application of CBD requirements, or adjustments to the ATS to accommodate rules on genetic resources under the CBD, was acknowledged.Footnote ¹⁰⁵ More recently, a 2018 ATCM information paper highlights the relevance of discussions in other international forums on bioprospecting, explicitly mentioning the CBD and its Nagoya Protocol, as well as the BBNJ Agreement.Footnote ¹⁰⁶

Such recognition is important because it reflects the understanding among ATS parties that the regime’s functional mandate does not extend to all dimensions of marine bioprospecting governance and does not preclude the existence and relevance of other international legal regimes with mandates that co-govern in this regulatory space. The implication of this contradicts any claim that the ATS has exclusive authority to regulate marine bioprospecting in the Southern Ocean on the basis of functional competence. At best, the ATS can claim only partial and complementary functional competence.

5.1. Regulatory Area I: Scientific Research and Information Exchange

The Antarctic Treaty preserves the freedom of scientific investigation under Article II, a right that affords states open access to Antarctic marine areas for scientific research. This right is accompanied by a corresponding obligation for parties to exchange and make freely available, to the greatest extent feasible and practicable, information on national scientific programme plans and scientific observations and results.Footnote ¹⁰⁷

Information exchange obligations have been operationalized through the development of the Electronic Information Exchange System (EIES), initiated by the Antarctic Treaty Secretariat in 2008 and made the official means of exchanging information in 2012.Footnote ¹⁰⁸ Information to be submitted to the EIES falls into three broad categories: (i) ‘Pre-Season Information’, which includes forthcoming activities (such as national expeditions, non-governmental expeditions, vessel-based operations, aircraft activities, visits to protected areas); (ii) ‘Annual Reports’, which require parties to submit scientific forward plans, report on scientific activities in the previous year, and provide permit information, as well as information regarding compliance with the Environmental Protocol (including EIA reports, contingency plans, monitoring activities, and waste management plans); and (iii) ‘Permanent Information’, which can be updated at any time and includes information on matters such as Antarctic research stations and bases.Footnote ¹⁰⁹

There are no tailored requirements under any of these three broad EIES categories that address the specific topic of (marine) bioprospecting. At best, bioprospecting activities may be ambiguously reported under the broad subheadings of ‘scientific forward plans’ or ‘scientific activities in the previous year’ in parties’ Annual Reports.

In 2009, Belgium – alongside the United Nations Environment Programme (UNEP) and the United Nations University Institute of Advanced Studies (UNU-IAS) – attempted to address this information exchange gap by presenting to the ATCM a prototype database, the Antarctic Biological Prospecting Database.Footnote ¹¹⁰ This prototype database mapped 187 identified bioprospecting activities in the region, 56% of which were from the marine environment of the Southern Ocean.Footnote ¹¹¹ It included information on ongoing governmental and non-governmental research projects and programmes, intellectual property information related to these activities (i.e., associated patents), and links to documents of the ATCM relating to bioprospecting, relevant international conventions and processes, and scientific and policy literature.Footnote ¹¹² The presentation called for the adoption of the database or, alternatively, an adaptation of the EIES to integrate similar information.Footnote ¹¹³ However, the proposal was rejected, and the prototype database was subsequently removed from the Antarctic Treaty Secretariat website.Footnote ¹¹⁴

A few years later, the Antarctic and Southern Ocean Coalition (ASOC), an ATCM observer organization, argued that ‘the intent to conduct biological prospecting should be declared in submissions to the EIES’.Footnote ¹¹⁵ Similarly, in 2019, the Netherlands called for amendments to the EIES: the creation of a new heading under ‘Annual Reports’ titled ‘Biological Prospecting’ for parties to exchange information on the exact specimens collected, the collection location, the current ex situ location and conditions under which the material could be accessed and used, and a description of the purpose of the activity.Footnote ¹¹⁶ They noted that since bioprospecting ‘may have a commercial purpose … it would therefore not be appropriate to report all information on [bioprospecting] as scientific information’.Footnote ¹¹⁷ Yet these calls were ignored and, despite updates to the EIES information exchange requirements in 2023, there are still no references to bioprospecting.Footnote ¹¹⁸

The non-specific and non-comprehensive reporting of bioprospecting activity under the EIES can perhaps be best illustrated by comparing it to the proposed reporting mechanism under the BBNJ Agreement. Article 12(1) of the Agreement envisions the creation of a Clearing-House Mechanism (C-HM) to which information on marine bioprospecting activity (such as objectives, genetic resource being studied/collected, geographical location of the resource, summary of methods for collection, dates of collection, names of sponsoring institutions, person[s] in charge, and data management plans) is to be submitted six months or as early as possible before the collection of MGRs.Footnote ¹¹⁹ Upon submission of this notification, a BBNJ Standardized Batch Identifier is to be created for the MGR activity, and any updates concerning it (such as where the MGR and associated DSI are held, information on the results of research such as publications, patents granted, and products developed, including information on sales) are to be submitted under that identifier.Footnote ¹²⁰

The BBNJ Agreement’s proposed reporting mechanism for bioprospecting provides robust traceability, monitoring, and transparency – all essential for environmental oversight and benefit-sharing arrangements – in a way that the current ATS EIES mechanism does not.Footnote ¹²¹ The effect of the non-specific treatment (or non-treatment) of bioprospecting under the EIES on effective reporting of bioprospecting activity in the region is clear.

In 2018, for example, it was reported that ‘only a few ATCPs have provided information on biological prospecting in the [ATA], and none of them on a regular basis’, and that ‘less than 25 of the 187 bioprospecting records identified in the Antarctic Biological Prospecting Database could be found in Parties’ annual reports’.Footnote ¹²² Furthermore, making this reporting situation even more alarming, the Antarctic Treaty Secretariat reported in 2023 that party usage of the EIES was scarce and declining, with only 34.5% of parties submitting their Annual Reports to the EIES between 2012 and 2022.Footnote ¹²³

Outside the EIES, there are additional reporting obligations for scientific research under the CCAMLR. Specifically, Article XX(1) notes that the ‘Members of the Commission shall, to the greatest extent possible, provide annually to the Commission and to the Scientific Committee such statistical, biological, and other data and information as [they] may require in the exercise of their functions’. Yet, because of the non-specific language of Article XX(1), it is unclear whether bioprospecting activity falls under this requirement or has been reported under it.Footnote ¹²⁴ However, in 2023, the CCAMLR Commission implemented Conservation Measure 24-01, titled ‘The Application of Conservation Measures to Scientific Research’.Footnote ¹²⁵ Point 3(a) of the Measure requires Members to notify the Commission and provide other members with the opportunity to review and comment on all scientific research proposals, which must include the research objectives, the rationale, and the data collection methods. Furthermore, point 4(c) of the Measure requires that a ‘summary of the results of any research’ be provided to the Commission Secretariat within 180 days of completion and that a full report be provided to the Scientific Committee within 12 months for review and comment. It appears that the rules under Conservation Measure 24-01, while still vague, would more aptly account for some level of reporting on the scientific research dimension of marine bioprospecting activity, in comparison with Article XX of CCAMLR – though whether such reporting is actually occurring under this measure remains unclear.Footnote ¹²⁶

Finally, of potential relevance to non-monetary benefit-sharing related to bioprospecting activity are ATS provisions on international scientific cooperation. Article III(b) of the Antarctic Treaty calls for the exchange of scientific personnel in Antarctica between expeditions and stations ‘to the greatest extent feasible and practicable’. Similarly, Article 6(e) of the Environmental Protocol states that ‘Parties shall endeavour to, where appropriate, undertake joint expeditions and share the use of stations and other facilities’. While these provisions provide a platform for non-monetary benefit-sharing in connection with bioprospecting, there is little evidence that these obligations are being actively and consistently fulfilled, or even undertaken in an ad hoc manner.Footnote ¹²⁷ Furthermore, these provisions are not specific to bioprospecting activity, so their scope is non-exhaustive (e.g., access to marine bioprospecting training and equipment) and their application unclear. Finally, the commitments are limited to promoting cooperative efforts and non-monetary benefit-sharing inter partes, not among the international community of states more generally.Footnote ¹²⁸

5.2. Regulatory Area II: Environmental Oversight

All activities in the ATA are subject to an EIA pursuant to Articles 3(c) and 8 of the Environmental Protocol. Three tiers of EIA procedures are outlined in Annex I.Footnote ¹²⁹ The first tier is ‘Preliminary Environmental Evaluations’ (PEEs), which are conducted independently by the corresponding national authority.Footnote ¹³⁰ If the activity is found to have ‘less than a minor or transitory impact’, it may proceed with limited oversight.Footnote ¹³¹ No information exchange (inter partes, the Protocol’s Committee for Environmental Protection [CEP], or the public) is required, except for a description of the procedures in which PEEs take place.Footnote ¹³² The second tier is ‘Initial Environmental Evaluations’ (IEEs), which are conducted by relevant national authorities for activities that may have minor or transitory impacts on the Antarctic environment.Footnote ¹³³ IEEs are required to include a description of the proposed activity, its purpose, location, duration, and intensity, as well as an evaluation of potential cumulative impacts and a consideration of alternatives to the activity.Footnote ¹³⁴ If the activity is deemed to have ‘no more than a minor or transitory impact’ it may proceed, subject to monitoring procedures under Article 5 of Annex I to assess and verify the impact of the activity.Footnote ¹³⁵ Parties are required to compile an annual list of their IEEs and any decisions taken in consequence thereof for circulation to other parties and the CEP, and to make the list publicly available.Footnote ¹³⁶ The final tier of evaluations is ‘Comprehensive Environmental Evaluations’ (CEEs). CEEs are more robust evaluations conducted for activities that may have ‘more than a minor or transitory impact’.Footnote ¹³⁷ As opposed to being conducted solely by national authorities, CEE drafts are to be made publicly available for comment, circulated to all parties for 90 days, forwarded to the CEP, and considered at the annual ATCM.Footnote ¹³⁸ Final CEE submissions must address all comments received on the draft. If permitted to proceed (the ultimate decision of the national authority), all parties must receive notification at least 60 days before the commencement of the activity and the appropriate monitoring procedures must be in place.Footnote ¹³⁹

Nowhere in the EIA guidelines are there rules or procedures specific to marine bioprospecting.Footnote ¹⁴⁰ This may be as a result of the general assumption that bioprospecting’s environmental impact is negligible: if only small quantities of samples are collected to study their genetic make-up, the scale of physical disruption falls below the threshold for conducting anything more than a PEE.Footnote ¹⁴¹ However, the assumption that all bioprospecting activity has ‘less than a minor or transitory impact’ may be pre-emptively dismissive. It is noted in a 2008 ATCM working paper that introducing procedures for screening micro-organisms can cause ‘significant perturbations to the screened organisms or sampled ecosystems’ and that the ‘application of such procedures should be carefully evaluated by individual Parties before approval’.Footnote ¹⁴² On a similar note, an ASOC 2013 information paper argues that the environmental impacts of bioprospecting can be a cause for concern if the target organism is rare, large amounts of the source organism would need to be harvested, or there is a cumulative impact of stress on the organism.Footnote ¹⁴³ The ASOC concludes with a call for the potential environmental impacts of bioprospecting activity to be identified within EIA guidelines under Annex I.Footnote ¹⁴⁴ However, no such action has yet been taken.

A search and review of the Antarctic EIA database for the period 2000–2001 to 2024–2025 reveal only a handful (21 in total) of IEE reports for bioprospecting-related activities in the ATA – a very small number compared to the reported 1,298 patent records connected with Antarctic genetic material in 2018.Footnote ¹⁴⁵ Of these 21 IEEs, all were evaluated as having ‘less than a minor or transitory impact’, and thus allowed to proceed without consideration or feedback from the CEP or ATCM. The reasoning or justification for IEE decisions is not disclosed.Footnote ¹⁴⁶

A further consideration of significance to this article’s analysis is that EIA obligations under the Environmental Protocol apply only to activities conducted within the ATA and not to the extended marine areas under the CCAMLR. Therefore, it is likely that considerable marine bioprospecting-related activity is taking place outside the jurisdictional purview of the Protocol. In these extended marine areas, the environmental oversight approach of the CCAMLR is to regulate the ‘rational use’ of Antarctic marine living resources for conservation-oriented objectives via the adoption of conservation measures. There are no conservation measures under the CCAMLR, past or present, that specifically address marine bioprospecting activity – a notable gap given that Antarctic krill are the largest known source of bioprospecting-related patents in the region.Footnote ¹⁴⁷

The lack of conservation measures for marine bioprospecting activity under the CCAMLR may be a result of two factors. The first is that the CCAMLR has a relatively strict threshold for regulatory intervention; if bioprospecting activity concerning marine living resources is largely non-intrusive to the stability of species and ecological relationships, or to the health of the marine environment, it is unlikely to trigger regulatory action. However, within the marine area outside the ATA, no Environmental Protocol EIAs are required, so the extent to which a specific marine bioprospecting activity may cross a conservation threshold remains undetermined. The second consideration is the vague mandate of the CCAMLR to regulate the ‘rational use’ of Antarctic marine living resources.Footnote ¹⁴⁸ ‘Rational use’ has long been associated with traditional fishing and harvesting activities, and it is unclear whether the concept extends to marine bioprospecting.Footnote ¹⁴⁹ Nonetheless, despite its potential regulatory significance and the issues raised herein, the CCAMLR has not discussed (marine) bioprospecting since it first deferred the topic to the ATCM and CEP in 2008, and has indicated no interest in doing so.Footnote ¹⁵⁰

5.3. Regulatory Area III: In Situ Collection

The main governance mechanism for regulating in situ collection of biological resources in the ATA is Annex II of the Environmental Protocol, which, under Article 3(1), requires that the ‘taking or harmful interference’ of native specimens of fauna and flora ‘shall be prohibited, except in accordance with a permit’.Footnote ¹⁵¹

Permits can be issued on the basis that the activity is part of a scientific study or for the advancement of scientific information.Footnote ¹⁵² The permits, authorized by the relevant national authorities, are to specify details of the proposed collection, including when, where, and by whom.Footnote ¹⁵³ However, and critically, two categories of biological resources are exempt from permitting requirements: (i) marine living resources, which fall outside the functional scope of the Environmental Protocol in deference to the CCAMLR, and (ii) micro-organisms, which are generally excluded from Annex II for no identified reason.Footnote ¹⁵⁴ Consequently, marine bioprospecting activity involving the collection of either living resources or micro-organisms (arguably the majority of marine bioprospecting activity) does not require a permit under Annex II of the Protocol.

Similarly, and as a result of the lack of treatment of marine bioprospecting to date under the CCAMLR (as noted above), there are no specific permitting requirements for the in situ collection of marine living resources related to bioprospecting activity under the CCAMLR. While harvesting of marine living resources in the CCAMLR area requires a licence (to be issued by the relevant national authority) and notification to the CCAMLR Commission of the intent to participate in a fishery, no collection permits are required.Footnote ¹⁵⁵ Instead, the in situ collection requirements under the CCAMLR are more functionally limited to fisheries regulation via its conservation measures (such as catch limits and seasons).

5.4. Comprehensive Governance in Areas of Partial Competence?

While the ATS has jurisdictional authority over the in situ dimensions of marine bioprospecting regulation, this authority has not translated into comprehensive in situ governance. The scientific research dimensions of marine bioprospecting are subject to general reporting and information exchange obligations that are not specific to marine bioprospecting. These obligations are operationalized largely via a non-tailored mechanism which starkly contrasts with the robust track-and-trace mechanism proposed under the BBNJ Agreement and suffers from low compliance. The environmental oversight and in situ collection dimensions of marine bioprospecting regulation are implemented in a manner that has little or no operational relevance to marine bioprospecting activities.

The largely unregulated state of marine bioprospecting in the Antarctic has not gone unnoticed. In 1999, SCAR first called upon the ATCM to regulate bioprospecting in the region.Footnote ¹⁵⁶ In 2012, the ASOC noted that ‘this emerging industry is still completely unregulated at present, beyond generic regulation applicable to most activities in Antarctica’.Footnote ¹⁵⁷ In 2018, it was noted that the ATS ‘has always been at the forefront of the development of new approaches’ and that it ‘cannot stay behind on this one’ (i.e., bioprospecting regulation).Footnote ¹⁵⁸ Yet, despite these calls for more comprehensive governance, the discussion of bioprospecting at almost every ATCM since 2002, and a plethora of working and information papers that identify gaps and propose potential solutions, the parties and bodies of the ATS have failed to establish dedicated, binding governance arrangements for (marine) bioprospecting. After 25 years of recognition, this not only severely undermines claims of ‘comprehensive’ governance for the subject matter but also raises serious questions about the practical capacity of the ATS to regulate it. If comprehensiveness serves as the evidentiary basis for excluding the Southern Ocean context from the BBNJ Agreement’s application, the absence of substantive rules, procedures, and institutional action renders that basis untenable.