It’s an eye-catching statistic: A single company, the multinational chemical giant BASF, owns nearly half of the patents issued on 13,000 DNA sequences from marine organisms. That number is now helping fuel high-stakes global negotiations on a contentious question: how to fairly regulate the growing exploitation of genes collected in the open ocean, beyond any nation’s jurisdiction.
The overarching goal of the talks, which open tomorrow at the United Nations in New York City, is crafting a new agreement to protect biodiversity in the high seas, which include two-thirds of the ocean. Much of discussions, which will run until 17 September, are expected to focus on long-standing proposals to establish protected zones where fishing and development would be limited or banned. But the negotiations also aim to replace today’s free-for-all scramble for marine genetic resources with a more orderly and perhaps fairer regime.
Many developed nations and industry groups are adamant that any new rules should not complicate efforts to discover and patent marine genes that may help create better chemicals, cosmetics, and crops. But many developing nations want rules that will ensure they, too, share in any benefits. Scientists are also watching. A regulatory regime that is too burdensome could have “a negative impact” on scientists engaged in “noncommercial ocean research,” warns Robert Blasiak, a marine policy specialist at the Stockholm Resilience Centre.
It is not the first time nations have wrangled over how to share genetic resources. Under another U.N. pact, the 2010 Nagoya Protocol, 105 countries have agreed to rules to prevent so-called biopiracy: the removal of biological resources—such as plant or animal DNA—from a nation’s habitats without proper permission or compensation.
Those rules don’t apply in international waters, which begin 200 nautical miles from shore and are attracting growing interest from researchers and companies searching for valuable genes. The first patent on DNA from a marine organism was granted in 1988 on a sequence from the European eel. Since then, more than 300 companies, universities, and others have laid claim to sequences from 862 marine species, a team led by Blasiak reported in June in Science Advances. Extremophiles have been especially prized. Genes from worms found in deepsea hydrothermal vents, for example, are now used in cosmetics. And BASF has patented other worm DNA that the company believes could help improve crop yields. The conglomerate, based in Ludwigshafen, Germany, says it found most of its 5700 sequences in public databases.
“There’s nothing illegal about what they did,” Blasiak says. But the trend has helped catalyze global discussions about whether and how to share any benefits that arise from high seas patents.
It may take years for nations to agree on a marine biodiversity treaty; the talks now underway are just a first round. But an “ideological divide” between developing and developed countries has, so far, “led to stalemate” on how to handle marine genetic resources, says Harriet Harden-Davies, a policy expert at the University of Wollongong in Australia.
Most developing nations want to expand the “common heritage” philosophy embedded in the 1982 United Nations Convention on the Law of the Sea, which declares that resources found on or under the seabed, such as minerals, are the “common heritage of mankind.” Applying that principle to genetic resources would promote “solidarity in the preservation and conservation of a good we all share,” South Africa’s negotiating team said in a recent statement. Under such an approach, those who profit from marine genes could, for example, pay into a global fund that would be used to compensate other nations for the use of shared resources, possibly supporting scientific training or conservation.
But developed nations including the United States, Russia, and Japan oppose extending the “common heritage” language, fearing burdensome and unworkable regulations. They argue access to high seas genes should be guaranteed to all nations under the principle of the “freedom of the high seas,” also enshrined in the Law of the Sea. That approach essentially amounts to finders keepers. But, traditionally, countries have balanced unfettered access with other principles, such as the value of conservation, in developing rules for shipping, fishing, and research in international waters.
The European Union and other parties want to sidestep the debate on the “common heritage” language while addressing the potential unfairness of marine bioprospecting. One influential proposal would allow nations to prospect for high seas genes, but require that they publish the sequences they uncover. Companies could also choose to keep sequences private temporarily, in order to be able to patent them, if they contribute to an international fund that would support marine research by poorer nations. “Researchers all around the world should be put all on a level playing field,” says Arianna Broggiato, a Brussels-based legal adviser for the consultancy eCoast, who co-authored a paper on the scheme this year in The International Journal of Marine and Coastal Law.
Many researchers, meanwhile, hope whatever rules emerge don’t stifle science. Some complain that the Nagoya Protocol, for example, has sometimes led to burdensome paperwork, complicating even studies aimed at protecting biodiversity. Worse, many say, is a recent proposal to use the pact to regulate the use of not just genetic material, but also publicly available gene sequences.
It’s also possible that nations ultimately won’t reach a new agreement and will maintain the status quo. But if developed nations continue to claim valuable genetic information from the high seas, developing nations could have little incentive to protect those waters, warns marine policy expert Thembile Joyini, a New York City–based adviser to South Africa’s government. “You want all of us,” he said recently, speaking as an individual and not representing his government, “to have the feeling that we all own the ocean.”
*Correction, 4 September, 11:50 a.m.: This story has been updated to correct the size of the zone of international waters surrounding national coastlines.