Tag Archives: common heritage of mankind

Who Owns the Genes in the Seas?

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 negotiations that took place at the UN in September 2018 aim, inter alia, to replace today’s free-for-all scramble for marine genetic resources with a more orderly and perhaps more just 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 for a sequence from the European eel, which spends part of its life in freshwater. 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 deep-sea hydrothermal vents, for example, encode polymers 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…

It may take years for nations to agree on a marine biodiversity treaty; [A]n “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, although countries traditionally 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 and seek a middle ground. 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 concept this year in The International Journal of Marine and Coastal Law.

Exceprts from Eli Kintisch U.N. tackles gene prospecting on the high seas, Science, Sept. 7, 2018

Regulating Mining in the Deep Seabed

Interest in mining the deep seabed is not new; however, recent technological advances and increasing global demand for metals and rare-earth elements may make it economically viable in the near future  Since 2001, the International Seabed Authority (ISA) has granted 26 contracts (18 in the last 4 years) to explore for minerals on the deep seabed, encompassing ∼1 million km2 in the Pacific, Atlantic, and Indian Oceans in areas beyond national jurisdiction However, as fragile habitat structures and extremely slow recovery rates leave diverse deep-sea communities vulnerable to physical disturbances such as those caused by mining (3), the current regulatory framework could be improved. We offer recommendations to support the application of a precautionary approach when the ISA meets later this July 2015….

The seabed outside of national jurisdictions [called the “Area” in the United Nations Convention on the Law of the Sea (UNCLOS)] is legally part of  the “common heritage of mankind” and is not subject to direct claims by sovereign states. The common-heritage principle imposes a kind of trusteeship obligation on the ISA, created under UNCLOS in 1994, and its member states, wherein “the interests of future generations have to be respected in making use of the international commons”; those interests include both resource exploitation and environmental protection …

Efforts focused on the Clarion-Clipperton Fracture Zone (CCZ) in the abyssal Pacific provide a useful model. The CCZ as the largest known concentrations of high-grade polymetallic nodules, with potentially great commercial value . The scale of impacts that would be associated with nodule mining in the CCZ may affect 100s to 1000s of km2 per mining operation per year . In 2007, an international workshop brought together expert representatives from ISA and the scientific and international ocean law communities to develop design principles and recommendations for a network of marine protected areas (MPAs) in the CCZ off-limits to mining, to be considered by the ISA as part of a regional environmental management plan. The workshop used a recent assessment of biodiversity, species ranges, and gene flow in the CCZ to develop recommendations honoring existing mining exploration claims while incorporating accepted principles of ecosystem management ..

In 2012, the ISA pioneered a precautionary approach in the CCZ when it provisionally adopted the deep seabed’s first environmental management plan that included Areas of Particular Environmental Interest (APEIs), a modified version of the recommended MPA network from the 2007 workshop. The design principles used in developing the APEIs included (i) compatibility with the existing legal framework of the ISA for managing seabed mining and protecting the marine environment. (ii) minimizing socioeconomic impacts by honoring existing exploration claims; (iii) maintaining sustainable, intact, and healthy marine populations; (iv) accounting for regional ecological gradients; (v) protecting a full range of habitat types; (vi) creating buffer zones to protect against external anthropogenic threats (e.g., mining plumes); and (vii) establishing straight-line boundaries to facilitate rapid recognition and compliance (12)….

Meanwhile, the ISA continues to grant exploration contracts for large areas of other deep-sea habitats in the Indian, Atlantic, and Pacific Oceans. Preexisting or new exploration claims (up to ∼75,000 km2 for nodules) can erode the effectiveness of protected-area networks by preempting protection of critical habitats and by limiting population connectivity by causing excessive spacing between MPAs. We thus recommend that the ISA consider suspending further approval of exploration contracts (and not approve exploitation contracts) until MPA networks are designed and implemented for each targeted region.

Excerpts from L. M. Wedding et al., Managing mining of the deep seabed, Science 10 July 2015: