Resolution of marine biotechnology issues requires US engagement with existing UNCLOS framework
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The European Union has tried to bridge the gap between developed and developing countries by proposing that a new Implementing Agreement be developed to address the marine environment more broadly. The EU would like to see such an agreement treat the issue within a broader context of the sustainable use of all marine resources and alongside ventures such as carbon sequestration, ocean fertilization, and the mitigation of ocean noise and pollution. The EU proposal is pragmatic in that it seeks to avoid the ideological question related to the legal status ofmarine genetic resources, namely, whether they are part of the "common heritage," and instead focuses on the governance questions of how they can be used sustainably and how their benefits can be shared equitably. The United States continues to sit on the sidelines of these negotiations with the untenable view that patenting deep sea organisms is simply part of the customary freedom of the high seas. The United States will not be successful in imposing a unilateral view and will likely have to accommodate the concerns of developing countries and approach the issue within the broader context of sustainable use that the European Union has identified. It must either re-engage on this issue, or else be left behind.
There is considerable debate currently on how UNCLOS can govern marine genetic resources and without consensus, patent holders cannot enjoy the protections necessary in the global marketplace to spur continued investment in genetic resources. The U.S., as a non-party to UNCLOS, lacks standings to contribute to or lead these debates and puts its own marine biotechnology industry at a disadvantage as a result.