Assessing Antarctic Marine Bioprospecting Governance in the Light of the Biodiversity Beyond National Jurisdiction Agreement: Competence, Comprehensiveness, and Coherence

Abstract

This article critically examines the broad claims of the Antarctic Treaty Consultative Parties (ATCPs) that the Antarctic Treaty System (ATS) is the ‘competent’ and ‘comprehensive’ framework for governing marine biodiversity in the area covered by its constituent instruments, implying that the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement) is therefore inapplicable within that same area under the ‘not undermine’ clause in its Article 5(2). Focusing on the specific topic of marine bioprospecting governance, our analysis breaks down ‘competence’ into spatial (where the ATS has legal authority to govern) and functional (the activities or subject matter it is empowered to regulate) dimensions and evaluates whether existing competences, as exercised, result in ‘comprehensive’ governance. We find the ATCPs’ claims to be legally and practically unsubstantiated to justify the complete or de facto exclusion of the BBNJ Agreement’s application in the area covered by the constituent instruments of the ATS: the jurisdictional competence of the ATS is fragmented, its functional competence is narrowly confined to the early, in situ dimensions of bioprospecting regulation, and its operational record of governing marine bioprospecting is negligible, relying on generic, non-tailored rules long recognized as inadequate. As such, the Antarctic marine bioprospecting case illustrates that a regime’s exclusionary claims regarding the BBNJ Agreement should be viewed with scepticism. Failing to do so may conceal the very gaps that the BBNJ Agreement was created to address.