| Antarctic which year-round snow-covered, is at the southernmost tipof the Earth and composes of two parts of the terrestrial and marine. Tosome extent, the unique geographical configuration and the extremeclimate and environment of Antarctic limit the survival and reproductionof Antarctic Fauna and Flora, microorganisms and other biologicalresources. Although the rich type and unique characteristics of theAntarctic biological resources are different from those of other regions ofthe world. They have unique resistance darkness, low temperatureresistance, high-salt-resistant, anti-radiation adaptability. The materialswhich contain functional units of heredity and potential or actual value,which extract from the Antarctic biological resources with this ability, arethe Antarctic biological genetic resources. They have the same ability toadapt to the environment and the unique survival characteristics as thebiological resources which is a carrier. Their huge economic benefits,commercial and medical value, and great strategic significance play animportant role in the global economy and the sustainable development of human society. Moreover, the Antarctic Treaty frozen the territorialsovereignty of the Antarctic. The pendency of Antarctic legal status leadthat Antarctic resources of ownership is unknown. Based on the greatvalue and major interests hidden behind of Antarctic biological geneticresources, countries not only began to widely carry out the Antarcticbiological genetic resources exploration and development activities andscientific research; but also used the genetic resources and their derivativeproducts, technologies widely and gradually in human society;Meanwhile triggered a competition for the international community to thesovereignty of the Antarctic, and reopen the controversy over thelegitimacy of the claim to sovereignty over the Antarctic territory,especially Antarctic waters, and caused coveted and competition for theworld of Antarctic organisms and their genetic resources. When theinternational disputes of the Antarctic and its biological genetic resourcesrise to the legal level, they also triggered a series reality and legal issuesabout genetic resources exploration and development, commercialapplications, access and benefit-sharing, the protection of resources andecological environment.In the the international context of the Antarctic territorial sovereignty freeze and fierce resources disputes, from "use" and "protect"which is the same process at two levels of the Antarctic biological geneticresources, the article will guide and regulate the behaviour of resourceutilization and protect resources, environment and related interests inorder to achieve the ultimate goal of "take advantage on the basis of theprotection, protect on the basis of use" and seek a certain balance betweenthe utilization and protection. So to build or improve the regulatorysystem of laws to regulate the use and protection of the the Antarcticbiological genetic resources of human activities are the core of this study.However, the establishing of the legal regulatory system should clear theconnotations and nature of the Antarctic biological genetic resources andtheir utilization behaviour, divide the stage of utilization behaviour andclear the differences and relations of it and bioprospecting, define thelegal status of Antarctic and biological genetic resources as a precondition.Later, for the utilization and protection of the core issues, the article firstanalyse the limitations and applicable of the existing international lawand the Antarctic Treaty System, then refine and comply with the relevantinternational legal principles, determine the appropriate authorities andthe regulatory body, at last build a special legal regulation system. Firstly, overview the reality and legal background of the utilizationand protection of Antarctic bioprospecting and genetic resources, anddefine the meaning and nature of related concepts. The Antarctic as arange of background research is at south of60degrees latitude, consistsof land and islands, and has a unique geographical configuration, extremeclimate and rich biological resources. The materials which containfunctional units of heredity and potential or actual value, which extractfrom the Antarctic biological resources with this ability, are the Antarcticbiological genetic resources. So biological resources is the carrier of thegenetic resources, the rich biodiversity of Antarctic also reflects thediversity of genetic resources, and the Antarctic and its rich and uniquebiodiversity are the value premise of the genetic resources. Owning totheir huge economic benefits, commercial and medical value, and greatstrategic significance, the activities of Antarctic bioprospecting are in theascendant, also widely used in the process of promoting global economicdevelopment and the survival of the human society and sustainabledevelopment. Not only restart the Antarctic sovereignty dispute andintense resource disputes and also led to a series of legal issues. Thearticle analyses and refers to the discussion of the Antarctic Treaty Consultative Meeting on the concept of bioprospecting and the provisionof the mineral Convention on the division of the stage of Antarcticmineral resource activities, divides the stage of Antarctic biologicalgenetic resources activities at the two levels of its utilization andprotection, defines "Bioprospecting" as broad and narrow sense. Thereforthe "Prospecting","Exploration","Development" of Antarctic biologicalgenetic resources is narrow bioprospecting, and other utilization ofgenetic resources which include commercial applications andbenefit-sharing is generalized bioprospecting. On the one hand, differentstages means different nature of the acts, the define of bioprospectingnature is based on the goals in pursuit of activities directly and intent ofhuman. So "Prospecting","Exploration","Development" belongs toscientific research. On the other hand, different stages means differentbehaviour apply to different protection systems, that is the explorationand development should conserve resource and protect environment,commercial application should strengthen the protection of the patentsystem, benefit-sharing should take into account the protection of thecommon interests of all mankind.Secondly, according to development path mode and academic theories of the international community and theorists existing about legalstatus of the Antarctic and its genetic resources, the paper induce, analyseand argument applicable limitations of theory, and define its legal status.The definition is the foundation to solve its utilization and protection ofthe relevant legal issues and building a system of legal regulation. Thelegal status of Antarctic determines the legal property of the geneticresources. Therefore, we should refine, learn from, and integrate theapplicable meaning of the existing international theories in the validity ofthe Antarctic Treaty, such as "for all mankind the common interests","toexclude claim of sovereignty and any form of possession","peace,scientific research,demilitarization activities,and internationalcooperation","protect and sustainable develop resources, environmentaland ecological","the management and control of international institutionswith the universal representation". These special meaning apply to notonly Antarctic and genetic resources itself, but also its behaviour andenvironmental impact. In view of the special meaning of the legal statusof the Antarctic biological genetic resources is established on the conceptof "Common Heritage of Mankind", and the limitations indicate Antarcticbiological genetic resources as the principle object has its uniqueness. Hence, can not be completely abandoned and can not be directly applied,extending the principle of "Common Heritage of Mankind " is reasonablestage measures. This view has a theoretical basis, practical foundationand practical significance.Thirdly, from "use" and "protect" which is the same process at twolevels of the Antarctic biological genetic resources, in order to achieve theultimate goal of "take advantage on the basis of the protection, protect onthe basis of use", this part will build a perfect legal regulatory system toregulate the use and protection of the the Antarctic biological geneticresources of human activities. The establishment premises on limitationsand application of existing international law and the Antarctic TreatySystem, we should refine and comply with the relevant international legalprinciples, determine the appropriate authorities and the regulatory body,at last build a special legal regulation system. Specifically, above all, theactivities about utilization and protection of Antarctic biological geneticresources should comply with the basic principles of law, such as"safeguarding the peace and stability of the Antarctic region","for thecommon interests of mankind","equitable distribution of its productsderived technology interests ","can not be claim for sovereignty and appropriate","conservation of resources and protection of theenvironment" and so on. Then, the activities about utilization andprotection of Antarctic biological genetic resources should be commonlysubject to the general international law and the Antarctic Treaty System.This paper will analyse the applications and limitations of the system onthe high seas, the continental shelf,"regional" of UNCLOS in Antarctic,learn from the provisions about access and benefit-sharing to geneticresources in CBD and Bonn Guidelines, apply to the terms of thepurposes and resources and environmental protection in the AntarcticTreaty System. All these steps provide the legal basis for the regulatorysystem the Antarctic biological genetic resources utilization andprotection of specific system settings. Once more, we should define theregulated subjects which contribute to the observance of the principles oflaw, international law applies, the implementation of the system ofregulation and supervision of the behavioral effects. So regarding to theactivities about utilization and protection of Antarctic biological geneticresources, ATCM should directly guide and participate in the actualimplementation, the UN should play the role of macro guidance andsupervision of security, SCAR,CEP and other organizations should assisted with ATCM and UN and participate broadly. At last, under theguidance of the principles of international law and environmental law, thepaper will set the specific legal systems which are applicable to eachspecific stage of activities. For example, the permission access systemunder the precautionary principle, the exploration and developmentsystem under the principles of conservation of resources, thebenefit-sharing regime under the principle of common interests, thepatent protection system under the principle of benefit-sharing, theAntarctic environmental protection regime under the principle ofsustainable development, including environmental impact assessmentsystem, Antarctic protected area system and fund system. On this basis,the paper’s purpose is to seek the possibilities of transforming into matureinternational practice system, is to regulate and guide behaviors, andprotect natural resources and the environment of Antarctic. |
PDF Full Text Request