07/12/2013 11:46 am ET Updated Sep 11, 2013

Ocean Bio-Prospecting

We all know that the ocean is a valuable source of protein. We all know that the ocean is an increasingly valuable source of minerals and metals. But we don't all know the true value of the ocean as a pharmacological source with deep implication for the development of new medicines for present and future diseases, indeed as an enormous contribution to global public health.

As with fishing and mining, bio-prospecting has a policy frame for regulation and governance, but all three structures take the form of international agreements and treaties that are filled with undefined areas of application, incomplete regulatory systems, limited if any enforcement, and challenges exclusive to the ocean where vast expanse lies outside boundaries of national, territorial regulatory and management jurisdiction.

Until the mid-1950s, the ocean had long been subject to the freedom-of-the-sea doctrine -- a 17-century principle that limited national rights and jurisdiction over the oceans to a narrow belt of sea surrounding a nation's coastline. Subsequently, the United Nations convened three conferences on the Law of the Sea producing four conventions dealing respectively with the territorial sea and the contiguous zone, the high seas, fishing and conservation of living resources in the high seas and the continental shelf. In 1970 after years of intensive efforts, the UN Assembly unanimously declared the seabed and ocean floor beyond the limits of national jurisdiction to be the common heritage of mankind and convened a conference in 1973 which would lead to establishing the International Seabed Authority, based in Kingston, Jamaica, to organize, administer, and adjudicate all such exploitative activities in the open sea

The Seabed Authority today, for example, presides over various exploration contracts for poly-metallic nodules and sulphides. The contracts are with various international research organizations, national governments of France, the Russian Federation, China, India, Korea, and others, and several small private corporations, some most probably representing foreign investors. The effect of this endeavor is small, as for the moment recovery of such resources is complicated and expensive. But it is there, and the Law of the Sea and the Authority's existing Mining Code may not be up to the regulatory challenge should the economic circumstances change.

But it is the pharmaceutical exploration that should also be of great concern. Again, there are structures in place -- the Convention on Biological Diversity foremost among them. But this exploration is less physical in a way, and much more complicated, with the knowledge and value available from ocean resources located everywhere -- in the length of the water column, coral reefs, deep ocean vents, and the sea floor. The issues are many: access, research costs, transaction costs, intellectual property and patent issues, regulatory structure, benefit-sharing, fairness and equity issues, and the right to traditional knowledge sustained by indigenous peoples. All the major pharmaceutical companies and research institutions are already fully engaged in the drug development and profit implications of these resources, make no mistake about it.

At a conference on bioscience and the ocean, sponsored in 2012 by the New York Academy of Sciences, the extent of this research potential was apparent, with presentations on the synthesis of DNA from ocean species such as sponges and mollusks, imitating certain biological functions that could be applied to disease in humans. A significant number of new drugs in preliminary testing for cancer treatment are derived this way from the information decoded from marine plants and animals. A very recent U.S. Supreme Court decision clarified one of the larger questions for such research: by protecting knowledge derived from the discovery of such natural processes from the exclusivity of patent protection, while nonetheless permitting "ownership" of processes invented or synthesized from them for manufacture and application as vaccines or medicines beneficial to human health. It is a profound distinction, and a major step toward protection of such ocean resources over time. It is interesting to note, however, that this U.S. judicial decision notwithstanding, the United States Congress has not approved either the UN Convention on Biological Diversity or the UN Convention on the Law of the Sea, even though both are now international law, having been ratified by the requisite number of nations.

Frankly, this enormous potential is as threatened by ocean acidification, the changing pH of the ocean with its impact on all macro and microscopic organisms, as it is on governance and the profit motive. All these ocean challenges add up to the same question that we have not yet answered: how do we control ourselves and our actions so that the benefits of the world ocean will be available to us for all time to come?