Bioprospecting in Antarctica and the Arctic. Common Challenges?

Yearbook of Polar Law

Volumn 1, Issue , 2009, Pages 145-174

  Leary, David ^a,b  

^a UNIVERSITY OF NEW SOUTH WALES   (Australia)

^b UNITED NATIONS UNIVERSITY   (Japan)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77954278686     PISSN: 18768814     EISSN: None     Source Type: Book Series    
DOI: 10.1163/22116427-91000011     Document Type: Article

References (96)

1. Lumene Corporate web site, http://www.lumene.com/default.asp?docId=25586 (accessed 20 August 2008).
2. Unilevercorporatewebsite,http://www.unilever.com/ourvalues/sciandtech/science_behind_vitality/Coolicecreaminnovations.asp (accessed 30 August 2008).
3. This database can be accessed at http://www.bioprospector.org/bioprospector/antarctica/home.action. The author was a member of a team of researchers at the United Nations University-Institute of Advanced Studies involved in developing this database.
4. D. Leary, UNU-IAS Report-Bioprospecting in the Arctic, (Yokohama, 2008). This report can be accessed on the internet at http://www.ias.unu.edu/resource_centre/Bioprospecting%20in%20the%20Arctic.pdf
5. In many respects this mirrors the debate in the academic and policy literature. See for example D. Lohan, and S. Johnston, Bioprospecting in Antarctica (Yokohama: United Nations University-Institute of Advanced Studies, 2005);
6. A. Hemmings and M. Rogan-Finnemore (eds), Antarctic Bioprospecting (Christchurch: University of Canterbury, 2005); D. Leary, 'Bi-polar disorder? Is bioprospecting an emerging issue for the Arctic as well as for Antarctica?' Review of European Community and International Environmental Law, Vol. 17(1), 2008, 41-55.
7. On the absence of this data see D. Leary, M. Vierros, G. Hamon, S. Arico and C. Monagle, 'A Review of Scientific and Commercial Interest', Marine Policy, 33 (2009) 183-194
8. B. Pisupati, D. Leary and S. Arico, 'Access and Benefit Sharing: Issues Related to Marine Genetic Resources' Asian Biotechnology and Development Review, 10(3) (2008): 49-68.
9. See below for further details.
10. B. Pisupati, D. Leary and S. Arico, 'Access and Benefit Sharing: Issues Related to Marine Genetic Resources' Asian Biotechnology and Development Review, 10(3) (2008): 49-68, at 64.
11. The author was a member of a team of 5 researchers at UNU-IAS who have been involved in the development of the Antarctic Biological Prospecting Database. The database provides details of research and commercialised products arising from biological samples that were sourced from the Antarctic region. The database is online at http://www.bioprospector.org/bioprospector/. For an overview of what the database contains see Belgium, ATCM XXXI-WP 11, 'An update on biological prospecting in Antarctica, including the development of the Antarctic Biological Prospecting Database' available at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp011_e.doc.
12. UNEP-ATCM XXX-IP 67 'Biological Prospecting in Antarctica: Review, Update and Proposed Tool to Support a Way Forward', available at http://www.unep.org/dewa/assessments/ecosystems/polar/antarctica/pdf/atcm30_ip067_e.pdf (accessed 30 August 2008).
13. For an overview of the contents of the database see Belgium, ATCM XVI-WP11-'An update on biological prospecting in Antarctica, including the development of the Antarctic Biological Prospecting Database', available from http://www.bioprospector.org/bioprospector/Resources/actm/Atcm31_wp011_e.pdf (accessed 7 March 2009).
14. Other components of the database include sections on bioprospecting in the Arctic, Marine areas, a specific regional focus on the pacific and the Arctic. These components can be accessed at http://www.bioprospector.org/bioprospector/
15. Belgium, ATCM XVI-WP11-'An update on biological prospecting in Antarctica, including the development of the Antarctic Biological Prospecting Database', available at http://www.bioprospector.org/bioprospector/Resources/actm/Atcm31_wp011_e.pdf (accessed 7 March 2009), 3.
16. Belgium, ATCM XVI-WP11-'An update on biological prospecting in Antarctica, including the development of the Antarctic Biological Prospecting Database', available at http://www.bioprospector.org/bioprospector/Resources/actm/Atcm31_wp011_e.pdf (accessed 7 March 2009), 4.
17. Belgium, ATCM XVI-WP11-'An update on biological prospecting in Antarctica, including the development of the Antarctic Biological Prospecting Database', available at http://www.bioprospector.org/bioprospector/Resources/actm/Atcm31_wp011_e.pdf (accessed 7 March 2009), 5
18. Belgium, ATCM XVI-WP11-'An update on biological prospecting in Antarctica, including the development of the Antarctic Biological Prospecting Database', available at http://www.bioprospector.org/bioprospector/Resources/actm/Atcm31_wp011_e.pdf (accessed 7 March 2009), 6
19. See David Leary, UNU-IAS Report-Bioprospecting in the Arctic, (United Nations University-Institute of Advanced Studies, Yokohama, 2008), available at http://www.ias.unu.edu/resource_centre/Bioprospecting%20in%20the%20Arctic.pdf.
20. Belgium, ATCM XVI-WP11-'An update on biological prospecting in Antarctica, including the development of the Antarctic Biological Prospecting Database', available at http://www.bioprospector.org/bioprospector/Resources/actm/Atcm31_wp011_e.pdf (accessed 7 March 2009), 7.
21. Belgium, ATCM XVI-WP11-'An update on biological prospecting in Antarctica, including the development of the Antarctic Biological Prospecting Database', available at http://www.bioprospector.org/bioprospector/Resources/actm/Atcm31_wp011_e.pdf (accessed 7 March 2009), 8.
22. T.Ø. Jørgensen, quoted in R. Hayhurst and O. Marvik, Naturally inspired: Life Sciences in Norway, (Innovation Norway and the Research Council of Norway, 2007) accessed at http://www.innovasjonnorge.no (accessed 11 November 2008).
23. J.W. Blunt, 'Marine natural products'. Natural Products Reports 24 (2007): 35-94, 77 and Blunt email correspondence on file with author.
24. For detailed discussion of the main areas of research see D. Leary, UNU-IAS Report-Bioprospecting in the Arctic, (Yokohama, 2008).
25. See European Commission, Background paper No 10 on Marine Biotechnology, accessed at http://ec.europa.eu/maritimeaffairs/suppdoc_en.html (accessed 30 November 2008).
26. For detailed analysis and information on these companies see D. Leary, UNU-IAS Report-Bioprospecting in the Arctic, (Yokohama, 2008).
27. As many companies indicate R & D focus in more than one area the number of companies in each category exceeds the total number of companies identified.
28. David Leary, UNU-IAS Report-Bioprospecting in the Arctic, (United Nations University Institute of Advanced Studies, Yokohama, 2008), accessed at http://www.ias.unu.edu/resource_centre/Bioprospecting%20in%20the%20Arctic.pdf, 21.
29. The European Patent database was accessed at http://ep.espacenet.com/.
30. The US patent database was accessed at http://www.uspto.gov/patft/.
31. See D. Leary, UNU-IAS Report-Bioprospecting in the Arctic, (United Nations University Institute of Advanced Studies, Yokohama, 2008), accessed at http://www.ias.unu.edu/resource_centre/Bioprospecting%20in%20the%20Arctic.pdf, 22-23 and Table 4, 37-41.
32. David Leary, UNU-IAS Report-Bioprospecting in the Arctic, (United Nations University Institute of Advanced Studies, Yokohama, 2008), accessed at http://www.ias.unu.edu/resource_centre/Bioprospecting%20in%20the%20Arctic.pdf, 22.
33. (P) indicates where it is known that products have been developed and area available on commercial sale. Other companies listed may have products on sale but this could not be verified by the author. Names of research organizations and companies active in relation to commercially oriented research and or development based on genetic resources from Antarctica or the Southern Ocean are sourced from Belgium, ATCM XVI-WP11-'An update on biological prospecting in Antarctica, including the development of the Antarctic Biological Prospecting Database', available at http://www.bioprospector.org/bioprospector/Resources/actm/Atcm31_wp011_e.pdf (accessed 7 March 2009).
34. The following overview of the history of the debate within the Antarctic Treaty System from 2002 to 2005 is drawn from Netherlands, Belgium, and France, ATCM WP 36-'Biological Prospecting in the Antarctic Treaty Area-Scoping for a Regulatory Framework', accessed at www.bioprospector.org/bioprospector/Resources/actm/Atcm30_wp036_e.doc (accessed 30 August 2008).
35. New Zealand ATCM XXVI-IP 47 'Bioprospecting in Antarctica, An Academic Workshop', accessed at http://www.asoc.org/Portals/0/pdfs/NZ.BIOPROSPECTING.IP.XXVI%20ATCM.pdf (accessed 30 Augsut 2008).
36. United Kingdom and Norway ATCM XXVI-IP 'Bioprospecting-The International Regime for Bioprospecting: Existing policies and emerging issues for Antarctica' accessed at http://www.bioprospector.org/bioprospector/antarctica/resources/ATCMDocs.jsp (accessed 10 March 2009).
37. Final Report of the XXVI Antarctic Treaty Consultative Meeting, Madrid Spain, 9-20 June 2003 available from http://www.ats.aq/documents/atcm_fr_images/ATCM26_fr001_e.pdf (accessed 30 August 2008).
38. Netherlands, Belgium, and France, ATCM WP 36-'Biological Prospecting in the Antarctic Treaty Area-Scoping for a Regulatory Framework'.
39. UNEP, ATCM XXVII, IP 106 'Industry Involvement in Antarctic Bioprospecting'.
40. ATCM XXVIII, WP 13 entitled 'Biological Prospecting in Antarctica'.
41. Spain, ATCM XXVIII, IP 8-'Biological Prospecting in Antarctica'
42. UNEP, IP 93, 'Recent Developments in Biological Prospecting Relevant to Antarctica'.
43. Resolution 7 (2005) ATCM XXVIII, Stockholm, accessed from http://www.ats.aq/devAS/ats_meetings_meeting_measure.aspx?lang=e (accessed 20 August 2008).
44. Argentina, ATCM XXIX, IP 112, 'Argentine Activities of Bioprospecting and Bioremediation in Antarctica'.
45. France, ATCM XXIX, IP 13-'In Search of a Legal Regime for Bioprospecting in Antarctica'.
46. UNEP, ATCM XXIX, IP 116-'Recent Trends in the Biological Prospecting'.
47. Final Report of the XXIX Antarctic Treaty Consultative Meeting, Edinburgh, United Kingdom, 2006 available http://www.ats.aq/documents/atcm_fr_images/ATCM29_fr001_e.pdf, para 224.
48. The Netherlands, ATCM XXX WP 35-'Biological Prospecting in the Antarctic Treaty Area-Scoping for a Regulatory Framework'.
49. UNEP, ATCM XXX IP 67, 'Biological Prospecting in Antarctica: Review, Update, and Proposed Tool to Support a way Forward'.
50. Antarctic Treaty Secretariat, XXX ATCM Final Report, (Undated), para 262, found at .
51. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc.
52. See Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc.
53. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, p. 3.
54. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, p. 4.
55. A similar issue is raised with respect to the ongoing debate on the status marine genetic resources in areas beyond national jurisdiction. On this debate see D. Leary, International Law and the Genetic resources of the Deep Sea, Martinus Nijhof Leiden and Boston, 2007.;
56. B. Pisupati, D. Leary and S. Arico, 'Access and Benefit Sharing: Issues Related to Marine Genetic Resources' (2008) 10(3) Asian Biotechnology and Development Review 49-68
57. D. Leary, M. Vierros, G. Hamon, S. Arico and C. Monagle, 'Marine Genetic Resources: A Review of scientific and commercial interest' Marine Policy 33 (2009) 183-194.
58. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 4.
59. For discussion of some of these examples see S. Arico and C. Salpin, (2005) UNU-IAS Report Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects, 15.
60. Convention on Biological Diversity 31 ILM (1992).
61. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 4.
62. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 4.
63. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 4.
64. The latest information on the work of both these processes is available from http://www.un.org/Depts/los/index.htm.
65. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, p. 4.
66. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 4.
67. Bergin, A and Haward, M, Frozen assets: Securing Australia's Antarctic future, (2007).
68. R. Davis, 'Enforcing Australian law in Antarctica: The HIS Litigation' Melbourne Journal of International Law 8 (2007): 142.-158.
69. M. Rogan-Finnemore, 'What bioprospecting Means for Antarctica and the Southern Ocean', in G. Leane and B. Von Tigerstrom, eds. International Law Issues in the South Pacific, (Ashgate 2005), 199-227.
70. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 4.
71. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 4.
72. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 4.
73. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 5-6.
74. United Nations Convention on the Law of the Sea, 21 ILM 1245 (1982).
75. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 4.
76. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 5.
77. Protocol on Environmental Protection to the Antarctic Treaty. A copy of the Madrid Protocol can be accessed at http://www.ats.aq/documents/recatt/Att006_e.pdf (accessed 11 March 2009).
78. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 4.
79. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 4.
80. Netherlands, ATCM XXXI-WP 4-'Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area', found at http://www.ats.aq/documents/ATCM31/wp/ATCM31_wp004_e.doc, 4.
81. D. Leary, 'Bi-polar Disorder? Is Bioprospecting an Emerging Issue for the Arctic as well as for Antarctica?' Review of European Community & International Environmental Law 17(1) (2008): 41-55.
82. For example on 10 January 2008 a new runway facility at Casey Station in the Australian Antarctic Territory received the first of regular direct flights from Hobart, Australia. This regular service brings journey times to Antarctica for Australian researchers to approximately 4 hours which is considerably quicker than previous journeys by sea. See http://www.aad.gov.au/default.asp?casid=33741 (accessed 21 February 2008).
83. See D. Leary, 'Bi-polar Disorder? Is Bioprospecting an Emerging Issue for the Arctic as well as for Antarctica?' Review of European Community & International Environmental Law 17(1) (2008): 41-55
84. D. Leary, 'Greenland's new legislation on commercial and research-related use of biological resources: implications for the International Polar Year and later' Polar Record 44(229) (2008): 97-106.
85. On the Greenland legislation see D. Leary, 'Greenland's new legislation on commercial and research-related use of biological resources: implications for the International Polar Year and later' Polar Record 44(229) (2008): 97-106.
86. For detailed analysis of the Norwegian proposals see D. Leary, 'Bi-polar Disorder? Is Bioprospecting an Emerging Issue for the Arctic as well as for Antarctica?' Review of European Community & International Environmental Law 17(1) (2008): 41-55.
87. See discussion in D. Leary, 'Bi-polar Disorder? Is Bioprospecting an Emerging Issue for the Arctic as well as for Antarctica?' Review of European Community & International Environmental Law 17(1) (2008): 41-55
88. Nordic Council of Ministers, Access and Rights to Genetic resources-A Nordic Approach, (Nordic Council of Ministers Copenhagen 2003), 141.
89. On regulation of bioprospecting in US National Parks see S. Carrizosa, S. et al. Accessing Biodiversity and Sharing the Benefits-Lessons from Implementing the Convention on Biological Diversity, (Bonn, The World Conservation Union 2004).
90. For the latest on developments in Canada see Environment Canada, Canadian ABS Portal http://www.ec.gc.ca/apa-abs/# (accessed 30 August 2008).
91. For detailed examination of the potential for regional co-operation through CAFF and the Nordic Council of Ministers see D. Leary, 'Bi-polar Disorder? Is Bioprospecting an Emerging Issue for the Arctic as well as for Antarctica?' Review of European Community & International Environmental Law 17(1) (2008): 41-55.
92. See Arctic Council 'Biotechnology is an Arctic possibility' http://arctic-council.org/article/2008/9/biotechnology_is_an_arctic_possibility (accessed 9 March 2009).
93. On the uncertainty surrounding the linkage of the Greenland access and benefit sharing regime with the patent system see D. Leary, 'Greenland's new legislation on commercial and research-related use of biological resources: implications for the International Polar Year and later' Polar Record 44(229) (2008): 97-106.
94. For example the dispute concerning the extent of Norwegian jurisdiction in the ocean space surrounding its Arctic territory of Svalbard and Russian claims to an extended continental shelf and the North Pole. On the dispute surrounding Svalbard and its implications for bioprospecting see D. Leary, 'Bi-polar Disorder? Is Bioprospecting an Emerging Issue for the Arctic as well as for Antarctica?' Review of European Community & International Environmental Law 17(1) (2008): 41-55.
95. The question of the status of genetic resources of marine areas both within and beyond national jurisdiction has been the focus of diplomatic discussions (directly and indirectly) in no less than five different international institutions and mechanisms including meetings associated with the 1992 Convention on Biological Diversity, the International Seabed Authority, the United Nations Informal Consultative Process on the Law of the Sea, the annual debates of the United Nations General Assembly on Oceans and the Law of the Sea, and more recently, in the deliberations of Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction. For detailed discuss of debates within these forums and recent developments see. D. Leary, International Law and the Genetic Resources of the deep sea (Martinus Nijhoff, Leiden/Boston 2007);
96. For detailed discussion of this point see Leary, D. (2007). Lessons from the Arctic: The power of the Arctic experience to shape environmental governance in the Antarctic. In Paula Kankaanpää, Sanna Ovaskainen, Leo Pekkala and Monica Tennberg (eds) Knowledge and Power in the Arctic-Arctic Centre Reports 48, University of Lapland, Rovaniemi: 43-50.