Opinion: Stemming the Threat of Biopiracy on the High Seas

A new treaty deems genetic resources obtained from international waters to be common property. It was long overdue.

The high seas — the vast span of ocean that lies beyond any nation’s jurisdiction — are our largest global commons. On average 4,000 meters deep, these waters comprise 95 percent of Earth’s biosphere. From their sun-speckled shallows to their lightless depths, the high seas contain a vast array of life forms, from microbes to blue whales, and many other species that have yet to be discovered. Until recently, these genetic resources were, legally speaking, in a no-man’s-land; they were owned by everyone or by no one, depending on whom you asked. If a private company wanted to harvest some biological resource from these depths for profit, there was little that would stop them.

That has now changed. On March 4, following nearly 20 years of negotiations, United Nations member states secured the first treaty to offer meaningful protection to the high seas. The deal — which is set to be formally adopted in June — has been heralded as a once-in-a-generation opportunity to preserve ocean health. One aspect of the treaty, crucial to its acceptance by the Global South, is that it recognizes the high seas’ genetic resources as common property. In doing so, it moves the world one step closer to eradicating biopiracy, the unauthorized harvesting of genetic resources for commercial gain.

The term biopiracy was first coined in 1993 by an environmentalist, Pat Roy Mooney, to name what he saw as an alarming trend: Western institutes and corporations taking, and patenting, biological and genetic resources from developing nations without compensating them. In biodiversity hotspots such as the Amazon rainforest, natural resources were turned into a vast array of products, worth billions to overseas companies. Yet locals were reaping few, if any, of the profits. In 1981, for instance, the U.S. pharmaceutical giant E.R. Squibb and Sons, now Bristol-Myers Squibb, began selling a blood pressure medicine named captopril, developed using the venom of a South American pit viper. The medicine, at its commercial peak in 1991, had annual sales of $1.6 billion, yet none of the profits were shared with native knowledge holders in Brazil, from whom Squibb likely learned of the venom’s health benefits.

In 2010, the U.N. adopted the Nagoya Protocol, which intended to prevent biopiracy by mandating that profits from the commercialization of a land’s genetic resources be shared with that land’s original stewards and traditional knowledge holders. But the law pertained only to physical samples collected from national territories. It omitted the high seas, and it did not address the biopiracy of digital sequence information, or decoded DNA. Today, digital sequence information holds the biggest opportunity for commercializing genetic resources: In many cases, a company need not harvest physical specimens to derive lucrative products from them; they can download, from public databanks, digital sequence information that provides the instructions for making a compound, or even a new life form, from scratch. When the Spanish company PharmaMar licensed Kahalalide F, an anti-tumor compound extracted from Hawaiian sea slugs, to Medimetriks, a U.S. firm testing it for psoriasis, Medimetriks needed only the sequence data to begin creating the compound synthetically in a lab.

If a private company wanted to harvest some biological resource from these depths for profit, there was little that would stop them.

The High Seas Treaty. which is an amendment to the U.N. Convention of the Law of the Sea, must be ratified by 60 U.N. member states before it goes into effect. The U.S., having never ratified UNCLOS, may well refuse to sign on, though many environmental law experts believe the country may play by the treaty’s rules. Once enforced, it will regulate the use of high seas’ genomes in both physical and digital form, arguably making it the strongest international agreement yet to counter the threat of biopiracy.

And not a moment too soon. Ocean life-forms are the basis of numerous successful drugs, including remdesivir, a Covid treatment inspired by compounds isolated from a sea sponge. Similarly, the breast cancer drug Halaven, or eribulin mesylate, is also derived from a sea sponge, and generates more than $300 million in sales annually. As researchers explore further offshore, the genomes they encounter could lead to products potentially worth billions of dollars. An enzyme taken from a microbe from the middle of the Atlantic Ocean is already being used to develop biofuels. The value of the global marine biotechnology market — including pharmaceutical, biofuel, and chemical products — is projected to reach $6.4 billion by 2025.

The move to share the spoils of the high seas is also a win for conservation. Among other things, the treaty will require nations with pharmaceutical or chemical industries that profit from high seas resources to make regular payments into a global fund for the conservation and sustainable use of the high seas. It is a small but meaningful step toward preserving the ocean genome, the wealth of genetic material held in all marine life forms. That bounty is currently threatened by climate change, pollution, overfishing, and the encroachment of new industries such as deep-sea mining. The High Seas Treaty will also mandate that data from genomes sourced offshore be made openly available, and that scientists from developing countries be given opportunities to partake in this burgeoning field of research.

In biodiversity hotspots such as the Amazon rainforest, natural resources were turned into a vast array of products, worth billions to overseas companies.

A considerable challenge now lies ahead. Although the High Seas Treaty will become law for the nations that sign on to it, as with the Nagoya Protocol, nations will have to implement their own rules to comply with it; some will be laxer than others. Developing fair rules for this fast-moving industry will be complex. As genetic engineering evolves, it will throw up new moral dilemmas, and create new gray areas. With artificial intelligence, it is becoming much easier to create novel products that combine a vast multitude of gene sequences sourced from different jurisdictions, including but not limited to the high seas. Scientists at the German chemical company BASF, for instance, have decoded the gene sequence that produces omega-3 fatty acids in a marine microbe and spliced it into a rapeseed plant to make omega-3-enriched canola oil, for human consumption. Genomes altered by genetic engineering are arguably no longer natural products, but derivatives whose creation requires intellectual input. There’s a real risk that such technological advances will be used to obfuscate, and circumvent, the treaty’s mandates on benefit sharing.

If these challenges can be managed, however, the ocean genome could support a lucrative, sustainable, and equitable enterprise. It could form the basis for a relatively harmless ocean-based industry, and provide recipes for innovation, including drugs that treat deadly disease. If we share its benefits fairly, the high seas — one of Earth’s last remaining frontiers — could genuinely enrich humanity.

Olive Heffernan is a science journalist who writes on oceans and climate change for international publications. She is the author of a book on the high seas, forthcoming in spring 2024.