“The world’s finest wilderness lies beneath the waves.”
-Robert Wyland (American Muralist)
In the ancient epic of Samudra Manthan, when the Devas (gods) and Asuras (demons) churned the ocean, they sought amrita (nectar of immortality) but found treasures beyond imagination, such as Lakshmi (goddess of wealth), Kamadhenu (wish-fulfilling cow), Airavata (celestial elephant), and even a poison of catastrophic potency (halahala).
Today, as nations churn the high seas for Marine Genetic Resources (hereinafter referred to as “MGRs”), the question is stark: whether those who are technologically capable will share the nectar of discovery or hoard it at the cost of future generations? The Patent regime under TRIPS, when conflated with UNCLOS and its newly enforced BBNJ Treaty, unfolds many legal complexities in the context of MGRs.
On one hand, the TRIPS empowers developed nations and corporate conglomerates with patent rights over “patentable inventions
[1]”, such as in domains of digital sequence information[2](hereinafter as “DSI”) and bioprospecting
[3] in areas beyond national jurisdiction (hereinafter as “ABNJ”), but can developing nations of the global south like India afford to allow such monopolisation of MGRs? On the other hand, the UNCLOS, along with its third implementing agreement, BBNJ, advocates for the benefit-sharing obligations and dissemination of the common heritage of mankind.
Yet the inherent ambiguity in these instruments leaves room for diversion, allowing benefit-sharing provisions to be bypassed. These arrangements matter more for effective ABNJ governance of maritime resources, specifically for small island developing States (SIDS), least developed countries (LDC), and coastal and landlocked developing countries having limited scientific and technological infrastructure[4].
The MGRs embody a dual legacy. The nectar of innovation and prosperity through it must reach the Global South, while the poison of ecological risk and unsustainability must be confronted collectively.
This article addresses the Patent Conundrum embedded within the current international legal framework governing the High Seas.
The High Seas: The Contested Blue Battlefield
The UNCLOS defines the High Seas as all parts of the ocean, not included in the Exclusive Economic Zone (EEZ) of any state party
[8]. (The terms High Seas and ABNJ are used interchangeably for ease of understanding.
The MGRs found in the oceans alongside other maritime resources hold immense commercial, technological, and ecological significance, with the potential to shape the very future of humankind on Earth. These include the genetic pattern of marine organisms, unique DNA, novel molecules, active biological compounds, amino acids, enzymes, and chemical compounds that have actual potential value for drug discovery and enhancement of drugs for certain complex diseases, where medical science currently has limited solutions.
This also helps scientists and researchers to understand the marine biodiversity and its evolutionary pathways. These MGRs are largely untapped and unknown to human scientific advancement to date, and have profound implications for human evolution. The biotechnological innovations emerging from these resources could revolutionize medicine, strengthen humanity’s response to pressing ecological challenges, and help avert future crises born of environmental uncertainty.
The Current Patent Regime Under TRIPS
The current international legal framework governing the innovations and explorations from MGRs in the ABNJ is, though highly regulated, vaguely defined. The TRIPS, having 166 state parties, through its article 27(1)[9]obligates every member to grant a patent for any invention in the field of technology, provided that it is a new, novel, inventive step which is capable of industrial application for the period of twenty (20) years under article 33[10].
This right is subject to exceptions laid down in article 27(2) and 27(3)[11] that is “to protect Public order or morality, including to protect human, animal, or plant life or health or to avoid serious prejudice to the environment.” Though limited exceptions under Article 30 exist, it fails to provide adequate protection required for shared beneficial development of MGRs for the developing countries.[12]
No TRIPS exception for common heritage resources exacerbates this situation. To illustrate the same, consider this example. If a company discovers a novel enzyme in a deep-sea hydrothermal vent organism and engineers a commercially valuable product from it, TRIPS Art. 27 requires all WTO members (including India) to allow patenting of that invention, regardless of where the organism was found[13]. The above-stated exception provision does not trigger in the cases of MGR-derived inventions.
The foundational premise of the TRIPS is to bring intellectual property firmly into the framework of international trade law under the WTO. To consolidate the fragmented framework of IPR across treaties, instruments, conventions, and legal covenants.
Through this point of view, such exclusive rights giving and innovation supporting system looks perfect, but the time has changed, and the byproduct of technological advancement (which the West and Global North achieved through sustained monopolisation of resources for centuries) confers greater advantage under TRIPS. The global south cannot afford to lose another domain from its hand. In light of this, the UNCLOS provides some ray of hope.
The UNCLOS with BBNJ: A Ray of Relief Amidst Tension
The UNCLOS, mainly meant for regulating the navigational and resource rights of states across the world’s oceans, carries within it a provision that fundamentally reorients the question of ownership. Article 136, which declares the area and its resources to be the “common heritage of mankind” (hereinafter as “CHM”).[14] On the surface, this appears perfect. If the deep seabed and its resources belong to all of humanity collectively, how can a single nation or a private corporation hold a twenty-year exclusive patent over something derived from it?
The inconvenient answer lies in the textual scope of Article 136 itself. UNCLOS was negotiated and finalised in 1982 during an era when the commercial significance of marine biological material was barely imagined. The definition of resources was kept limited to solid, liquid, or gaseous mineral resources under Article 133. MGRs are explicitly absent from the text.
This textual gap is not a minor drafting oversight; instead, it’s the legal foundation upon which the entire TRIPS-BBNJ conflict is built. If the CHM principle does not legally extend to MGRs under UNCLOS, then the common heritage argument loses its most powerful ground.
It is against this backdrop that the 2023 agreement on the conservation and sustainable use of marine Biological Diversity of Areas Beyond National Jurisdiction(BBNJ) was adopted after nearly two decades of negotiations, finally arriving as the third implementing agreement under UNCLOS.[15] Article 7(b) of the BBNJ Agreement affirms the CHM principle as a guiding norm specifically for MGRs in ABNJ, effectively extending the spirit of Article 136 to MGRs and other maritime resources for the first time in a binding international instrument.[16] Article 14 establishes a legal obligation of “Fair and equitable sharing of benefits” in both monetary and non-monetary terms, arising from the utilisation of MGRs, and associated DSI.[17]
However, on closer look, the BBNJ Agreement does not fully declare MGRs as “common heritage” in pure legal terms. The title of Article 7 states this to be a “General Application and approaches[18]”, not a strict legal rule. The Agreement further provides that it shall be implemented in a manner “consistent with the rights and obligations of Parties under relevant international agreements (such as TRIPS)”, under Article 5(2)[19]. The result is a benefit-sharing system subordinated to the patent regime it was designed to counterbalance.
The Post-Access Appropriation Lacunae
The structural contradiction becomes starkest when one examines the “post-access appropriation” problem. Imagine an Indian research ship and NCPOR together, collect organisms from ABNJ, sequence their DNA, and upload the DSI and MGRs related data to a public database as mandated by Article 244 of UNCLOS[20]. Later, an international biotech company downloads that data and uses the same to create a valuable commercial pharmaceutical compound, and patents it in India itself, which, as a TRIPS signatory, India cannot refuse, to be later used in a monopolistic manner in Indian markets.
At no point did the company “access” MGRs in a way that triggers BBNJ provisions since Article 11 covers only physical access, not DSI[21]. TRIPS also never asks where the idea came from. So, no benefit‑sharing applies as per BBNJ. It’s the classic example of “The ocean gave openly, the corporation claimed privately”.
This is the system India and the Global South face today. The Indian scientific work subsidises foreign private wealth, even though the underlying resource is a common heritage under BBNJ.
Does A Solution Exist?
It is essential to assess the BBNJ Agreement’s own internal remedy, the Capacity Building and Transfer of Marine Technology Committee ( hereinafter referred to as “CBTMT”) under Article 46[22]. The ClearingHouse Mechanism established under Article 51[23] mandates technology transfer, scientific training, enhanced transparency, and facilitates international cooperation and infrastructure development for developing states, operating alongside the CBTMT in a coordinated feedback loop[24], but the CBTMT carries a structural defect that is fatal to its promise as a solution to the patent conundrum. It only addresses who can participate in marine science, not who profits from it[25].
The case for reform rests on what fair sharing can actually achieve. A multilateral fund under BBNJ, supported by patent royalties from MGR-based inventions, could finance public health research in the very countries whose ocean heritage made those discoveries possible. The idea need not be utopian but only enforceable.
Amendments to TRIPS and Corrections in BBNJ
First, amending TRIPS Article 29 to obligate the applicants to disclose the geographical or biological origin and proof of BBNJ benefit-sharing compliance. Second, amending TRIPS Article 30 to create an explicit exception for MGRs-derived inventions that permits compulsory licensing in favour of BBNJ’s multilateral benefit-sharing fund.
Third, designing the BBNJ’s Clearing house mechanism provisions as a mandatory DSI disclosure and traceability registry, so that even sequence-based inventions remain tethered to benefit-sharing obligations without requiring a WTO TRIPS amendment.
The VCLT and Indian Approach:-
Another interesting dimension in this comes from a different international legal instrument altogether. The Vienna Convention on the Law of Treaties (VCLT) acts as a general guiding framework for all international treaties, instruments, and covenants for interpretation, application, and other purposes. Article 31(3)(c) of the same mandates that treaties be interpreted alongside “any relevant rules of international law applicable between the parties”.[26]Since almost every WTO member is simultaneously a UNCLOS and BBNJ party, a TRIPS obligation on patents can be interpreted alongside benefit‑sharing obligations under BBNJ.
In practice, the TRIPS cannot be read in isolation. India has already taken this path in Novartis AG v. Union of India (2013)[27], The Supreme Court held that TRIPS is a floor, not a ceiling, and that public-interest obligations shape how its provisions are read. This precedent strengthens India’s claim for a rigid reading of TRIPS, especially for inventions derived from MGRs and DSI.
India, together with the G77 and China, held a clear stance in the BBNJ talks. MGRs must be governed by the common heritage principle, benefit‑sharing must be mandatory, and DSI must be included in the Agreement’s scope.[28]
India specifically linked the BBNJ reform track to its longstanding WTO submissions on disclosure of origin, arguing that the two reform processes must be pursued in tandem rather than in isolation. The honest answer to the section’s question is that the solution exists in legal principle, is supported by precedent, and has been formally proposed by India and its negotiating partners. What it lacks is the international collective political will of those who benefit most from the current asymmetry and unevenness.
Conclusion
When the Devas and Asuras churned the ocean, the nectar of immortality was never meant for one side alone. It was born of a collective struggle, and the texts make clear that hoarding it was against the spirit of the act. Today’s bio prospectors may not carry the cosmic drama of that epic, but the parallel is striking. The high seas or ABNJ are churned, discoveries rise to the surface, and the fight over who claims the nectar continues.
What this article has attempted to demonstrate is that the current legal framework does not resolve that contest. The BBNJ Agreement arrived with hopes and limitations, affirming the CHM principle as a norm, yet it simultaneously subordinates itself to the very IP regime that favours the exploiters for solely commercial interests.
The halahala (the poison) in this context is the legal framework that allows the wealth of the commons to be privatised and patented, while the obligation of conservation remains shared. The international community has consistently shown that it is capable of correcting such asymmetries when the stakes of humanity are greater than any single individual, company or country. The reform must come through a consensus to harness the fruits of fair and equitable sharing of inventions emanating from MGRs.
As international frameworks such as TRIPS, UNCLOS, and the BBNJ Agreement continue to evolve, businesses, innovators, and research institutions must ensure that their intellectual property strategies remain compliant with both domestic and international legal obligations. Seeking professional guidance on patent protection and intellectual property rights can help stakeholders navigate these complex regulatory landscapes effectively.
Author Details: Ojas Rai, Year I Student of B.A. LL.B. (Hons.) at National Law School of India University (NLSIU), Bengaluru
REFERENCES
[1]WTO | intellectual property (TRIPS) – agreement text – standards
[2]What is digital sequence information, and why does it matter for countries and communities?
[3]Bioprospecting – an overview | ScienceDirect Topics
[4]Frontiers | Between technological innovation and the ocean commons: intellectual property and benefit-sharing under the BBNJ agreement
[5]Role of TRIPS agreement and its scope in India – iPleaders
[6]United Nations Convention on the Law of the Sea – iPleaders
[7]BBNJ Agreement: Marine Genetic Resources & Benefit-Sharing – LegalClarity
[8]What Does High Seas Mean in International Law: UNCLOS Defined – LegalClarity
[9]WTO | intellectual property (TRIPS) – agreement text – standards
[10]ibid
[11]ibid
[12]ibid
[13]Marine genetic resources as common heritage of mankind under the BBNJ Agreement; the international community toward a pragmatic benefit-sharing approach? | Biodiversity and Conservation | Springer Nature Link
[14]UNCLOS+ANNEXES+RES.+AGREEMENT, Pg.70
[15]Frontiers | Benefit sharing of marine genetic resources and intellectual property protection under the BBNJ agreement
[16]BBNJ Agreement, Pg. 5
[17]ibid, Pg. 11
[18]ibid, Pg.5
[19]ibid, Pg.4
[20]UNCLOS+ANNEXES+RES.+AGREEMENT,, Pg. 118
[21]BBNJ Agreement, Pg. 10
[22]ibid, Pg. 42
[23]ibid, Pg. 46
[24]Frontiers | Between technological innovation and the ocean commons: intellectual property and benefit-sharing under the BBNJ agreement
[25]Ibid
[26]Vienna Convention on the Law of Treaties (1969), Pg. 13
[27]Novartis Ag vs Union Of India & Ors on 1 April, 2013
[28]Earth Negotiations Bulletin-26 August 2019
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