marine genetic resources

Bioprospecting, the harvesting of new chemicals or genes from plants, animals or microorganisms, is a rapidly growing industry of enormous importance to chemical, cosmetic and pharmaceutical companies. Products such as skincare creams, deodorant, aspirin, morphine and a variety of other drugs have their origins in nature. Marine genetic resources (MGRs) in particular have many medical, cosmetic and industrial uses: about 18,000 products have already been made from marine organisms and the number is growing fast. The value of products derived from marine genetic resources alone is currently valued at EUR 41 billion, by way of example, just one enzyme taken from a deep-sea hydrothermal vent used in ethanol production has had an annual economic impact of EUR 123 million. 

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, research institutes and universities have laid claim to sequences from 862 marine species. MGRs have been used in the fight against HIV, cancer, tuberculosis, malaria, arthritis and Alzheimers and, more recently, Ebola and corona viruses. A list of approved marine drugs is available here.

While many of the most diverse MGRs are found in the waters of developing States or in areas beyond national jurisdiction, bioprospecting is an expensive undertaking and only a few States have the capacity to do so: in 2011 only 10 countries owned 90% of MGR patent claims, with just 3 (Germany, Japan and the United States) holding a share of 70% of the claims.

Regulation

The 1992 Convention on Biological Diversity (CBD) provides an international framework governing all genetic resources. These are defined in article 2 thereof as ‘genetic material of actual or potential value’. The Convention promotes the conservation, sustainable use, and the fair and equitable sharing of the benefits arising from the use of genetic resources. In areas beyond national jurisdiction (ABNJ), the Convention applies to processes and activities carried out under the jurisdiction or control of its parties. The Convention was opened for signature in 1992 at the Rio Earth Summit and entered into force in 1993. Since then, a Conference of the Parties has been held , the first in 1994 in the Bahamas. Three additional protocols have been drafted since, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity, The Cartagena Protocol on Biosafety and The Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety.

The High Seas Treaty establishes that “[a]ctivities with respect to marine genetic resources of areas beyond national jurisdiction are in the interests of all States and for the benefit of all humanity, particularly for the benefit of advancing the scientific knowledge of humanity and promoting the conservation and sustainable use of marine biological diversity, taking into particular consideration the interests and needs of developing States”. The treaty decides that “The Conference of the Parties shall decide the modalities for the sharing of monetary benefits from the utilization of marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction” and establishes an access and benefit sharing committee charged with “establishing guidelines for benefit-sharing … providing transparency and ensuring a fair and equitable sharing of both monetary and non-monetary benefits”. The COP will need to start work on these modalities as soon as it is established.

In May 2024, member States of the World Intellectual Property Organization approved a new treaty related to intellectual property, genetic resources and associated traditional knowledge, marking a historic breakthrough that capped 25 years of negotiations. The treaty establishes provisions whereby patent applications based on genetic resources must disclose the country of origin or source of the genetic resources. In particular, where the application is based on traditional knowledge associated with genetic resources, the Indigenous Peoples or local community who provided the traditional knowledge must be disclosed.