Bioprospecting in the High Seas: Existing Rights and Obligations in View of a New Legal Regime for Marine Areas beyond National Jurisdiction

Abstract

This article examines the law governing bioprospecting in the high seas and subsequent use of biological material. Seen in relation to the on-going debate on a new legal regime for marine areas beyond national jurisdiction, the authors explore the degree to which existing rights and obligations under the law of the sea and patent law could coincide with one of the objectives of the Convention on Biological Diversity, namely that of promoting benefit sharing. The activity of bioprospecting is examined in light of the different freedoms of the high seas, making the point that different interpretations give different indications of existing provisions on benefit sharing. In particular, the regime for marine scientific research under the law of the sea exemplifies different ways for sharing benefits, all of which run up against implementation challenges when seen in relation to rights awarded by patents to inventions resulting from bioprospecting.