Abstract
The Biodiversity Beyond National Jurisdiction (BBNJ) Agreement marks a significant step in governing global commons, yet faces implementation challenges regarding marine genetic resources (MGRs). Key limitations include ambiguous definitions of derivatives, tension between freedom of high seas and common heritage principles, and uncertain benefit-sharing models. In response, this paper proposes three improvements: (1) expanding MGRs interpretation under the Vienna Convention to include derivatives, accompanied by a clarifying negative list; (2) implementing a phased benefit-sharing mechanism that progressively incorporates common heritage principles as MGRs approach commercialization; and (3) developing a hybrid model combining monetary and non-monetary contributions with minimum standards to ensure benefits for developing States. These solutions would enhance marine biodiversity protection while ensuring equitable distribution of MGR benefits.
1 Introduction: the international legal dilemma of governing MGRs
On June 19, 2023, after 17 years of preparation and negotiation, the BBNJ Agreement was formally adopted by all 193 UN member states. As the first legally binding international instrument governing the high seas, the BBNJ Agreement establishes a unified legal framework for the governance of marine biodiversity in areas beyond national jurisdiction (ABNJ) (). It has been widely praised as “the dawn of a new era for the oceans” and “a victory for international law, the global commons and multilateralism.” (). However, the BBNJ Agreement marks the conclusion of negotiations rather than the realization of fair and equitable benefit-sharing (). Key ambiguities remain, particularly regarding the governance of MGRs (). Due to their significant potential in pharmaceuticals and biotechnology, MGRs in ABNJ are increasingly valued in scientific research and the emerging blue economy (). Yet access to and control over these resources—particularly through patents—remain largely concentrated in developed States, prompting concerns among developing nations about exclusion and inequity ().
Three core issues remain unresolved: first, whether derivatives should be legally classified as part of MGRs; second, whether the applicable legal principle should be the freedom of the high seas or the common heritage of humankind; and third, whether benefit-sharing should be mandatory or voluntary, and monetary or non-monetary in form. Against this backdrop, this article begins with a comprehensive assessment of the strengths and weaknesses of the BBNJ Agreement. It then examines the core controversies surrounding benefit-sharing of MGRs in ABNJ and analyzes their underlying legal and political causes. The article proceeds to critically evaluate the Agreement’s relevant provisions and institutional design, and concludes with targeted recommendations to address global imbalances in benefit-sharing and promote a more equitable and sustainable regime for governing MGRs in ABNJ.
2 Comprehensive evaluation of the benefit-sharing mechanisms in the BBNJ agreement
The newly enacted BBNJ Agreement protects the status of the ABNJ as a global ecological commons and effectively eliminates the fierce disputes between States over benefit-sharing. However, the benefit-sharing of MGRs in ABNJ under the BBNJ Agreement will be of limited utility and proceed slowly. From a biological perspective, the restriction of MGRs to genetic functional units may fail to meet benefit-sharing requirements adequately. From an ecological view, the principle of the common inheritance of mankind applies solely in the ABNJ, ignoring the coordination with legal practice within national jurisdictions. Politically, the principle of the common heritage of mankind poses a challenge to the prioritization of national interest (). In economic terms, the premise of benefit-sharing is the generation of benefits, while excessive monetary benefits may hinder the formation of commercial interest chains of MGRs in ABNJ. As a result, more negotiations will be required to perfect the benefit-sharing in the BBNJ Agreement. As scholars have noted, exploitative interests can work rapidly, whereas building democratic will and consensus typically takes time ().
2.1 The positive impact of the BBNJ agreement on MGRs
First, the BBNJ Agreement clarifies the legal status of digital sequence information, aligning with the broader shift toward recognizing the digitalization of genetic resources. Traditional international legal norms have often focused primarily on the material form of MGRs in ABNJ, thus overlooking the informational nature of genetic material (). The BBNJ Agreement pays attention to the significant impact of modern biotechnology on marine living resources and recognizes the dynamic scalability of the concept of MGRs (). In other words, the BBNJ Agreement holds that if something can express or perform a certain genetic function, regardless of its form, it should be considered a genetic resource (). In essence, digital sequence information contains the genetic expression of marine organisms, unlocking the value of genetic resources in digital form (). The digitization procedure is actually the process of converting the materialized genetic information into a digital format. As a result, even digital sequence information that lacks physical form can still obtain physicality through the digitalization process. The BBNJ Agreement covers the digital sequence information in the characterization of genetic resources, effectively avoiding the narrow interpretation of the benefit-sharing of MGRs in ABNJ by some developed States, and further protecting the marine rights and interests of developing States ().
Second, The BBNJ Agreement incorporates the principle of the common heritage of mankind and introduces adjustments to the established application of the principle of freedom of the high seas (). Although many scholars consider these two principles to be in tension or even in conflict (), in fact the principle of the common heritage of mankind provides “a legal regime based on a stronger competitive equilibrium” while ensuring freedom of the high seas (). Specifically, in order to avoid the adverse effects of maritime power on other States on the high seas, and to take due account of the “residual maritime rights” () of others, the scope of the freedom of the high seas ought to be qualified by law (). The BBNJ Agreement lists the principle of the common heritage of mankind among the general principles, indicating that the freedom of the high seas would be further constrained to a certain extent. On the one hand, the common heritage of mankind embodies the common good of all mankind, comprising the concepts of sustainable development, distributive justice and intergenerational equity (). It compresses both qualitatively and quantitatively the applicable space of the freedom of the high seas. On the other hand, under the reasonable constraints of the principle of the common heritage of mankind, the worldwide community will steadily shift from unrestricted sharing of maritime space to organized and supervised sharing of natural resources, and the Mare Liberum of the 17th century will also evolve into the Mare Geneticum of the 21st century ().
Third, the various forms of benefit-sharing stipulated in the BBNJ Agreement respond to the interests of different States and are highly acceptable and operable. On the one hand, monetary benefits might provide developing States with an adequate, stable and predictable source of financing for the development of marine resources. In the case of obvious discrepancies in the ability of the international community to acquire MGRs in ABNJ, monetary benefits could to some extent adjust the unfair initial distribution of marine rights and interests (). On the other hand, non-monetary benefits may contribute to the free global flow of technology and information and may deepen international cooperation on MGRs in ABNJ. Even least developed States and landlocked developing States have opportunities to participate in the development and utilization of MGRs in ABNJ through capacity building and research cooperation (). At the same time, the enthusiasm for research and development in developed States may be continued ().
2.2 Critical analysis of the benefit-sharing mechanisms in the BBNJ agreement
The BBNJ Agreement incorporates a benefit-sharing system in open and inclusive legislation designed to promote intergenerational equity, international solidarity, and sustainable development. However, each State plays a dual role in the negotiations: as an interpreter of the international community interests and a guarantor of its special interests (). This has prevented the core issues of the “package deal” from being substantively resolved.
First, the BBNJ Agreement adopts a restrictive definition of MGRs in ABNJ, potentially limiting the scope of benefit-sharing. This narrower scope has been criticized for undermining the principle of “equitable and efficient utilization of their resources” in the UNCLOS preamble and the “fair and equitable sharing of the benefits arising out of the utilization of genetic resources” set out in the CBD. By requiring the presence of genetic functional units, the Agreement effectively excludes derivatives from being considered genetic resources. However, derivatives—while lacking functional units—are still closely linked to the inheritance of marine organisms. They can be understood not only as metabolic by-products but also as forms of genetic information or as results of the human use of genetic resources (). With the diversification of biotechnology, recent studies emphasize the need for a broader conceptualization of MGRs to ensure inclusive benefit-sharing (). Rather than defining derivatives as genetic resources, the BBNJ Agreement classifies them under the undefined category of derivatives within the notion of “utilization,” thereby subjecting them only to notification requirements while excluding them from access and collection provisions (). This approach has raised concerns regarding the Agreement’s capacity to address the complexity of MGRs. The Nagoya Protocol, in contrast, may offers a more flexible framework that some scholars view as better aligned with evolving scientific and legal interpretations ().
Second, the provisions of the BBNJ Agreement on the common heritage of mankind remain only at the level of abstract principles and lack operational details for national practice to follow. To begin, the BBNJ Agreement puts forward the principle of the common heritage of mankind only in a general manner without clarifying what basic elements it contains and how the different elements should be understood. Although the “ordinary meaning” of words is inevitable to some extent, too vague a concept of the common heritage of mankind could easily lead to disagreements in interpretation (). Moreover, the BBNJ Agreement fails to provide quantitative tools or allocation mechanisms to operationalize the principle of the common heritage of mankind, rendering benefit-sharing implementation highly uncertain. For example, scholars have long debated whether this principle implies preferential treatment for developing States or placing all States on an equal footing (). Without a clear legal framework, the common heritage of mankind may be more subject to political discretion rather than legal certainty, potentially undermining equitable governance of MGRs (). Ultimately, the principle in the BBNJ Agreement remains highly abstract, rendering it challenging to impose concrete constraints on state practices in ABNJ. While some scholars argue that the principle has been progressively formalized within the UNCLOS framework and partially evolved toward customary international law—particularly through its application to regional mineral resources and extension to MGRs—traditional customary law necessitates consistent and widespread state practice accompanied by opinio juris (). Essentially, the principle of the common heritage of mankind is neither the product of “instant custom” nor jus cogens, but functions more as a philosophical ideal (). This underlying divergence is distinctly evident in the BBNJ negotiation records. Developing States assertively advocate for the principle’s status as customary international law, while developed States emphasize its foundation in treaty law (). Although the principle has gained a certain degree of normative traction, the precise nature of its obligations remains contingent on the nuanced implementation and robust enforcement mechanisms within the agreement.
Third, the benefit-sharing model in the BBNJ Agreement may not fully align with the construction of a fair and equitable international economic order. On the one hand, while MGR derivatives in ABNJ possess potential economic value, their commercialization process is highly uncertain, and their monetary value at the research and exploration stage is not as immediately apparent as mineral resources (). Many MGRs may never generate substantial economic benefits, as their value often depends on extensive research, technological breakthroughs, and successful integration into commercial applications. Therefore, the direct imposition of monetary benefit-sharing obligations on MGR exploitation without considering the long and unpredictable research and development cycle may create unintended disincentives for marine biotechnology research (). Empirical studies in innovation economics have shown that excessive financial burdens on early-stage biotechnological research can deter private sector investment and slow down scientific progress (). In this context, balancing monetary benefit-sharing with incentives for continued R&D remains a critical challenge. On the other hand, the implementation of non-monetary benefit-sharing provisions in the BBNJ Agreement faces practical difficulties. The development and application of genetic resources are closely linked to intellectual property rights and proprietary technologies, making it unrealistic to expect nations or private entities to freely or indiscriminately share advanced biotechnologies. Lessons from existing international frameworks, such as UNCLOS and the Nagoya Protocol, demonstrate that while these agreements include provisions on non-monetary benefits such as knowledge transfer and capacity-building, their enforcement has been inconsistent and often limited in effectiveness (). Furthermore, the mere transfer of sophisticated technology to nations lacking the infrastructure or expertise to utilize it does not necessarily contribute to equitable benefit-sharing. Therefore, it has been proposed that a pragmatic consensus is needed to implement benefit-sharing, ensuring that all parties have opportunities to participate and benefit without rigid adherence to equal or monetary exchange models.
3 Core disputes over benefit-sharing of MGRs in ABNJ
Given that the UNCLOS serves as the cornerstone of international law for global ocean governance, marine activities, including benefit-sharing of MGRs in ABNJ, should adhere to its provisions. However, the “deepest of ironies” lies in the fact that while MGRs in ABNJ are increasingly attracting commercial and scientific interest, UNCLOS does not mention them at all (); although they can be freely acquired on the high seas, there are no official international mechanisms to ensure their fair and equitable utilization (). This situation gives rise to diverse interpretations and irreconcilable divergences among nations regarding the benefit-sharing of MGRs in ABNJ. Behind these significant divergences lies a complex interplay among States characterized by differing economic strengths, geographical locations, resource endowments, and developmental capacities. The following outlines substantive differences that persist unresolved within the BBNJ “package deal”.
3.1 The legal ambiguity of derivatives of MGRs
Derivatives of MGRs in ABNJ are considered to have potential socio-economic value. Some studies suggest that the DNA and RNA derivatives extracted from MGRs in ABNJ exhibit multiple functions, including anti-cancer, anti-oxidation, anti-fungal, anti-viral, anti-tuberculosis, and anti-ultraviolet properties (). While research on these derivatives is still at a relatively early stage, and the likelihood of obtaining monetary benefits from MGRs in ABNJ remains highly uncertain, the possibility of significant economic value has drawn substantial attention from various States (). However, since the international community has not reached a consensus on the legal status of MGR derivatives, their role in the benefit-sharing framework for MGRs in ABNJ remains unresolved. Some developed States argue that the genetic information contained in the derivative and the derivative itself are two distinct subjects of rights (). Consequently, they assert that only the genetic resource itself—rather than its derivatives—should be subject to the benefit-sharing mechanism.
However, many developing States argue that derivatives are composite resources consisting of tangible biological vectors and intangible genetic information (). Therefore, they assert that derivatives should be included in the benefit-sharing mechanism. For instance, member states of the Caribbean Community (CARICOM), including Haiti, Antigua, and Jamaica, have proposed to the Preparatory Commission that gene sequencing data and derivatives belong to MGRs in ABNJ. According to their position, neither the samples collected in situ nor ex-situ samples, data, and related information obtained through computer simulation should be excluded from MGRs in ABNJ (). Similarly, biodiversity-rich States such as South Africa contend that the exclusion of derivatives, biochemicals or metabolic extracts from international law would significantly reduce benefit-sharing opportunities. Reflecting this stance, many of these states have enacted benefit-sharing laws that extend beyond the scope of the CBD (). Additionally, several developing States advocate defining derivatives by referencing international legal instruments like the Nagoya Protocol to ensure a more uniform concept of “genetic resources”. Article 2(C) of the Nagoya Protocol defines the technological application of biological systems, organisms, or their derivatives as the “utilization of genetic resources”, without requiring that the derivatives contain functional units of heredity (). Based on this understanding, many developing states maintain that derivatives should be recognized as part of MGRs in ABNJ and thus be subject to benefit-sharing.
The reasons are as follows: on the one hand, derivatives exist in many forms and have various connections to naturally occurring genetic resources (). On the other hand, the criterion for determining whether derivatives fall within the scope of benefit-sharing obligations seems to be biological origin rather than biological form (). In recent years, derivatives of MGRs in ABNJ have begun to become “de-materialized” and are moving towards “digitalization.” Some developed States employ cutting-edge biotechnology to sequence specific genetic resources and synthesize the extracted genetic sequence information into derivatives, thus facilitating the development and utilization of MGRs in ABNJ (). This activity bypasses the benefit-sharing regulations on tangible genetic resources in the CBD and the Nagoya Protocol, significantly harming the marine interests of developing States (). Although experts agree that digital sequence information is merely a placeholder that may be replaced by other terms in the future, there is ongoing debate over its concept and legal attributes, which hinders the implementation of benefit-sharing ().
3.2 Theoretical tensions in the application of legal principles
The international community holds varying opinions regarding the legal principles applicable to MGRs in ABNJ. In practice, some states contend that MGRs in ABNJ should be governed by the principle of the common heritage of mankind, similar to mineral resources in the international seabed area (the Area) (). Conversely, others argue that MGRs in ABNJ should be subject to the principle of freedom of the high seas, as enshrined in UNCLOS, without the need to establish a new international legal regime (). There are also heated controversies and divergent positions on applicable principles, without a predominant viewpoint ().
3.2.1 The modern applicability limits of the freedom of the high seas principle
The freedom of the high seas evolved from freedom of the seas. Since Hugo Grotius advanced the “freedom of the seas” theory in Mare Liberum, the freedom of the high seas from national jurisdiction and the freedom of activities on the high seas have been the dominant paradigms of international maritime law (). Regarding the applicable principle in ABNJ, States like the US and Japan advocate adhering to the custom of freedom of the high seas, which operates on a first-come, first-served basis, benefiting all States (). This argument is reasonable to some extent. The freedom of the high seas allows MGRs in ABNJ to remain characterized as common property. In the ancient Greek view, Aristotle stated that water is not bounded by a boundary of its own substance (). In Roman law practice, the sea was regarded as “res communis omnium or common and free to all” (). According to natural law theory, Grotius also explained that the free-flowing and inexhaustible ocean was the common property of mankind, reinforcing the historical foundation of the freedom of the seas (). Treating MGRs in ABNJ as common property means that they are enjoyed by the global community as a whole and are not subject to exclusive control. In other words, while states may access and utilize these resources, the common property approach generally prevents any single state from acquiring exclusive jurisdiction through pre-occupation ().
However, the freedom of the high seas cannot be adequately adapted to the current context of international ocean governance. First, Grotius’ assertion of the freedom of the high seas was based on the limited capacity for ocean development and the perceived inexhaustibility of ocean resources. However, advancements in modern marine technology and a growing world population have led to the overexploitation of marine resources, revealing the limitations of Grotius’s concept of common goods and the freedom of the high seas (). Second, the principle of the freedom of the high seas is relative and has been diminished in the evolution of international maritime law (). Numerous international agreements and legal instruments indicate a general trend towards the erosion and conceptualization of the freedom of the seas (). Therefore, the exploitation of MGRs in ABNJ is unlikely to be exclusively governed by the principle of the freedom of the high seas, given the increasing regulatory constraints under international agreements. Third, the traditional principle of freedom of the high seas faces growing challenges from emerging concepts of equity and shared responsibility in ocean governance. Developing States contend that broad interpretations of this freedom perpetuate unequal access to marine resources, indicating that this principle alone cannot satisfy modern demands for fairness and sustainability (). Thus, while the principle of the freedom of the high seas remains foundational to contemporary international maritime law, its application is increasingly constrained by numerous multilateral treaties and evolving customary international law (). Scholars have noted that, from the perspective of positive law, whether in peacetime or wartime, regardless of geographical space or the content of rights, restrictions on the freedom of the high seas have persisted for hundreds of years and are becoming increasingly stringent ().
3.2.2 The equity challenges of the common heritage of mankind principle
The potential exploitation of MGRs in ABNJ presents significant economic and governance challenges. Unlike traditional resource extraction, the primary concern is not the physical depletion of MGRs but rather the competitive rush to collect, sequence, and privatize digital sequence information through intellectual property rights (). This open-access nature of MGRs has led to a race among developed States and private entities to secure exclusive control over valuable genetic information. Some scholars characterize this rush as an economic inefficiency or market failure, where the costs of excessive sampling, data collection, and patenting far outweigh the potential long-term benefits to society (). In this context, the real issue is not resource depletion but rather the economic waste caused by the rush to identify, capture, and protect information.
In response to these concerns, many States advocate applying the principle of the common heritage of mankind to the exploitation of MGRs in ABNJ, emphasizing sustainable development and equitable benefit-sharing. For instance, G77/China has argued that this principle should serve as the legal foundation for distributing the benefits derived from MGRs, asserting that it is crucial for biodiversity conservation and the sustainable use of genetic resources (). Similarly, the African Group contends that the common heritage of mankind is a fundamental principle of UNCLOS, designed to establish a fairer and more resilient framework for ocean governance. According to this perspective, the benefit-sharing mechanism for MGRs should reflect this principle to prevent the monopolization of genetic resources by a few technologically advanced States ().
The rationale for applying the common heritage of mankind principle to MGRs lies in the attributes of genetic resources, the universal dispersal, and the historical practice of reciprocity (). When landlocked States, geographically disadvantaged States, African coastal states, and small island developing states cannot equitably share the benefits of MGRs in ABNJ, this principle can help correct the inequity of benefits among States (). Additionally, this principle not only reconciles the imbalance of maritime interests between a few developed States and developing States but also fully considers the rights and opportunities of future generations to utilize marine resources from a long-term perspective of intergenerational equity. However, the principle of the common heritage of mankind has not yet developed into international customary law due to its unclear content (). For example, the US has historically interpreted the common heritage of mankind as another expression of the freedom regime through an “open access interpretation” (). Similarly, the “equitable sharing of benefits, implying distributive justice” under the common heritage of mankind is widely controversial (). These examples reflect that the principle of the common heritage of mankind has not yet met the two main elements of international custom. Nevertheless, since the principle has an institutional basis in instruments such as UNCLOS and the Moon Agreement, it has gained the support of many States and is applied in specific fields.
The value of the common heritage of mankind is broadly acknowledged (), but its application to MGRs in ABNJ faces numerous obstacles. First, intellectual property rights regimes may undermine its effectiveness. If MGRs are considered part of the common heritage of mankind, no State should be able to appropriate them exclusively (). However, developed States and private entities can establish de facto control over MGRs through patents on digital sequence information, exacerbating the North-South divide and reinforcing existing economic imbalances (). Second, MGRs are not explicitly recognized as part of the common heritage of mankind in international law. The scope of the common heritage of mankind is currently restricted to mineral resources and excludes biological resources. Although some academics have attempted to use the interpretive tools of the Vienna Convention on the Law of Treaties to demonstrate that MGRs can be included in the common heritage of mankind, these interpretations do not offer compelling evidence to support or refute their claims (). Third, the principle of the common heritage of mankind does not provide effective guidance for the conservation of BBNJ (). Its focus on benefit-sharing through resource utilization offers limited tools for addressing the ecological imperatives of long-term biodiversity protection. Finally, the principle of the common heritage of mankind advocates the “community” of MGRs, which opposes the will of sovereigns to “nationalize” them. Sovereignty is restricted by the sovereign itself, and requiring sovereign States to undertake heavy benefit-sharing obligations means that States must relinquish sovereign rights. This partly explains why the US, Russia, and Japan consistently insisted during the formulation of the BBNJ Agreement that the common heritage of mankind applies to the mineral resources in the Area, but not to the MGRs in ABNJ ().
3.3 Implementation challenges in benefit-sharing mechanisms
Benefit-sharing reflects the pursuit of a fair and equitable framework by developing States and their refusal to accept a situation where a few States seek the majority of benefits from MGRs in ABNJ. However, some economically developed States argue that the essence of benefit-sharing is rooted in the movement of developing States to promote a new international economic order (). Regarding the specific implementation mechanism, there are evident divergences among stakeholders on the mode and type of benefit-sharing.
3.3.1 Voluntary vs. mandatory benefit-sharing modes
Currently, the necessity for benefit-sharing is widely acknowledged in the international community, but there is considerable disagreement on the model of benefit-sharing to be chosen. At the second session of the intergovernmental meeting to agree on options for the BBNJ Agreement, participants proposed two types of benefit-sharing models: voluntary and mandatory (). The voluntary model entails the signing of a contract by the Parties after discussion and negotiation to specify their respective rights and obligations, whereas the mandatory model involves the adoption of binding international legal instruments to facilitate the realization of benefit-sharing objectives. The positions of States regarding the selection of a benefit-sharing model are widely divergent and remain polarized (). For instance, G77/China prefers a mandatory model, while the US, Japan, South Korea, and Russia favor a voluntary model. Despite a more moderate stance, the EU, Norway, Canada, and Singapore are inclined to remain anti-regulatory ().
By contrasting and evaluating the benefit-sharing models, it becomes evident that both models have their own advantages and disadvantages when applied to the actual utilization of MGRs in ABNJ. Consequently, the voluntary model aligns more with the traditions of the market economy and the requirements of biotechnology development, making it conducive to promoting and implementing the benefit-sharing mechanism. In the Nagoya Protocol, States can share benefits according to the terms of the contract, and this mechanism is underpinned by the voluntary model (). However, the voluntary model tends to result in users of genetic resources exploiting their dominant position to coerce developing States into accepting inequitable terms. The absence of a comprehensive monitoring mechanism could render the voluntary model a means for developed States to abuse the interests of the marine, and the concept of benefit-sharing would lose its meaning ().
In contrast, the primary feature of the obligatory model is that it requires resource users to undertake benefit-sharing activities within a legal framework, thereby aiming to create a relatively equitable pattern of benefits. For example, the International Treaty on Plant Genetic Resources for Food and Agriculture (PGRFA) stipulates in its benefit-sharing mechanism that the acquirers of genetic resources should pay benefits from commercialization according to a specific mechanism and a reasonable share (). The mandatory model establishes a minimum standard for benefit-sharing, which aims to reverse the unfavorable position of the relatively weak and avoid the rising transaction costs associated with constant negotiations. However, there is greater resistance to setting up mandatory model legislation at the international level, and reaching a consensus among States on the benefit-sharing standards that can be followed is difficult. Therefore, even if mandatory arrangements can be made for the benefit-sharing of MGRs, it may not produce the expected binding force ().
3.3.2 Monetary vs. non-monetary forms of benefit-sharing
Benefits arising from the utilization of MGRs in ABNJ may be monetary or non-monetary (). The former is expressed in currencies such as biological development fees and sample acquisition fees, while the latter is expressed in non-monetary forms such as technology, databases, and publications. This classification is stipulated in international law-making experiences such as CBD and PGRFA. While the sharing of non-monetary benefits was largely endorsed by delegates during the BBNJ Agreement’s negotiation phase, significant debates arose regarding the sharing of monetary benefits (). Some States believed that both monetary and non-monetary benefits could have a positive impact on stakeholders, while others claimed that the burden of monetary benefits would exceed the potential benefits of the entire system, potentially inhibiting the research and development of MGRs in ABNJ, and ultimately leading to the failure of realizing even non-monetary benefits (). In this regard, the US expressed its opposition to including monetary benefits and emphasized that benefit-sharing should focus on capacity building and protection ().
In comparison to non-monetary benefits, monetary benefits can directly and pragmatically address the unfair initial distribution of maritime rights and interests in ABNJ. When some developed States commercialize MGRs in ABNJ, monetary benefits can make up for the unfairness caused by the monopoly of intellectual property rights (). However, the limitation of monetary benefits lies in its failure to account for the significant manpower, material, and financial resources required for the actual development of MGRs in ABNJ. Regardless of the development cost of MGRs, focusing solely on the sharing of monetary benefits could discourage marine powers from pursuing further research and development (). Additionally, monetary benefits alone do not fully adhere to the fair principle of benefit-sharing, which is generally based on the idea of “input more, gain more.” For these reasons, non-monetary benefits such as cooperative research, personnel training, and technology transfer are essential components of an effective benefit-sharing mechanism. However, it is important to note that while non-monetary benefits may not substantially burden resource development States, marine technology is closely tied to a State’s core competitiveness and sensitive commercial secrets. Consequently, it is practically challenging to require States that acquire MGRs in ABNJ to fulfill non-monetary benefit-sharing obligations.
4 Legal analysis of benefit-sharing rules in the BBNJ agreement
Based on the above analysis, States with diverse national conditions and geographical regions have substantial disputes over the legal characteristics of derivatives, the applicable principles, and the implementation mechanism of benefit-sharing. However, if the dispute over the legal nature of derivatives cannot be resolved, the scope of benefit-sharing as a legal system cannot be determined (). Without clarifying the principle and implementation mechanism of benefit-sharing, the goal of achieving a fair and equitable distribution of marine benefits cannot be realized. As the third implementing agreement of UNCLOS, the BBNJ Agreement addresses the core disputes in ABNJ in a flexible manner, and to some extent, restructures the pattern of high seas and regional maritime interests.
4.1 Normative reconstruction of the legal status of MGRs
The BBNJ Agreement defines MGRs in its “use of terms” section of Part I as “any material of marine plant, animal, microbial, or other origin containing functional units of heredity of actual or potential value” (). This definition consolidates the CBD definitions of “genetic material” and “genetic resources”, with the additional qualifier “marine”. According to the BBNJ Agreement, determining whether something qualifies as an MGR must consider both its value and functional attributes. Regarding value attributes, MGRs must possess economic, ecological, or other forms of value. However, this does not imply that intrinsic or potential value should be disregarded, as the value of MGRs is not easily dismissed due to human cognitive limitations. Marine derivatives have demonstrated multifunctional utility in various research studies. For instance, microbial exopolysaccharides isolated from deep-sea hydrothermal vents are currently being evaluated for their potential applications in tissue regeneration and cardiovascular disease treatment. Research on hydrothermal vent microbes has also contributed to the development of cosmetic ingredients, such as anti-aging creams already available on the market (). Therefore, derivatives may not be categorically excluded from the category of MGRs, as they may possess value attributes similar to those of genetic resources (). In terms of functional attributes, only those with identifiable genetic functions are generally recognized as MGRs. Even if marine derivatives lack genetic material but display biological activity, they are often classified as general biological resources. Consequently, arguments for including derivatives within the scope of genetic resources tend to reflect practical considerations as much as, or even more than, biological science (). However, the debate about whether derivatives fall under the scope of genetic resources remains unresolved, with ongoing discussions suggesting that they may need to be clarified by treaty bodies once the agreement is operational.
While the BBNJ Agreement does not explicitly classify derivatives as genetic resources, it acknowledges that digital sequence information can be deemed equivalent to MGRs in ABNJ for benefit-sharing purposes. From the perspective of value attributes, digital sequence information circumvents the developmental constraints of MGRs and enables recurrent utilization in biological research and manufacturing. In terms of functional attributes, although digital sequence information exists solely in digital form without the carrier of marine organisms, it is based on information generated by decrypting or transcribing genetic units (). Therefore, digital sequence information may not necessarily contravene the fundamental nature of MGRs. While digital sequence information is sometimes classified as a source distinct from physical MGRs or excluded from conventional definitions due to the absence of a material carrier, its contribution to the development and commercialization of MGRs suggests that it could reasonably be subject to fair and equitable benefit-sharing (). From this standpoint, the legal implication of utilizing digital sequence information of MGRs is to undertake the obligation of benefit-sharing.
4.2 Systematic deconstruction of the common heritage of mankind principle
The principle of common heritage of mankind, initially excluded from the Draft BBNJ Agreement (), was ultimately reinstated in the final text under the section on “General Principles and Approaches.” Article 7(2) of the BBNJ Agreement explicitly states that Parties shall be guided by this principle as outlined in the UNCLOS (). Given its significance in shaping international ocean governance, a systematic analysis of this principle is necessary. This analysis examines the three constitutive elements of legal relationships: legal subjects, legal objects, and normative content.
First, with regard to legal subjects, the principle of common heritage of mankind is understood to encompass “all humanity,” including both present and future generations. However, under existing international legal doctrine, recognizing humanity as a whole as a legal subject remains challenging. This is because it has not yet been acknowledged as a subject of international law, and the concept itself is overly abstract and broad. From the perspective of positive international law, the implementation of the common heritage of mankind principle primarily depends on State consent. As collective representatives of humanity, States manage and equitably share MGRs in ABNJ (). While they are empowered to develop these resources (), they cannot claim exclusive ownership. To facilitate the effective implementation of this principle, the BBNJ Agreement introduces a Clearing-House Mechanism as a centralized governance platform (). This mechanism requires Parties to adopt necessary legislative, administrative, and policy measures to fulfill obligations such as information dissemination and environmental impact assessments. Notably, it also addresses the unique challenges faced by Small Island Developing States, ensuring the principle is applied equitably across nations with varying capacities. Overall, the principle of common heritage of mankind is particularly well-suited for conservation efforts, as it “encloses” a global commons within a regulated access regime, rather than free access (). This framework prioritizes the collective interests of humanity, integrating the rights of future generations and broader considerations of global fairness into marine resource governance.
Second, regarding legal objects, the concept of the common heritage of mankind is neither private property in civil law nor public property in political science, but an ancient concept rooted in Roman law. This concept requires that no State “should acquire more than its equitable share of resources” and the world community “should be entitled to take such steps as might be necessary to ensure such an equitable sharing”, which is also in line with the modern principles of the common heritage of mankind (). Initially, the common property of mankind in the BBNJ Agreement must be extraterritorial, and its geographical scope is strictly limited to the ABNJ. The polar region, the deep sea, and the Area have become the main exploration sites for the common heritage of mankind within national law of the sea. Furthermore, the common property of mankind has a shared attribute, meaning it must be open to all States, natural persons and legal persons without distinction (). Although MGRs in ABNJ are currently exploited and utilized by a few developed States, developing States are not excluded from accessing or benefiting from these resources under international law. Finally, the common heritage of mankind has legal attributes, and it must be regulated and adjusted by international law (). MGRs in ABNJ, as the common heritage of mankind, shall be bound by the BBNJ Agreement and cannot be amended or derogated from the principle of the common heritage of mankind in violation of Article 311(6) of UNCLOS.
Third, in terms of normative content, the common heritage of mankind should be used peacefully for the benefit of all humanity. As one of the principles of the high seas, the principle of the common heritage of mankind is inherently linked to peaceful use of ocean space (). This connection is explicitly reflected in the BBNJ Agreement. Regarding proactive provisions, Article 11 of the BBNJ Agreement stipulates that activities related to MGRs and digital sequence information in ABNJ should be conducted solely for peaceful purposes, with due regard for the interests of other States in ABNJ. This provision echoes the preamble of UNCLOS to “promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources” and “takes into account the interests and needs of mankind as a whole”. In addition, Articles 57 and 58 of the BBNJ Agreement require the Parties to settle disputes by peaceful means. Given the many discrepancies and contradictions in maritime claims, legal applications, and the understanding of objective facts among States, the peaceful settlement of maritime disputes is of special practical significance for ensuring peaceful utilization (). In terms of negative provisions, the BBNJ Agreement mandates that Parties shall not claim or exercise sovereignty over MGRs in ABNJ. The extension of a State’s sovereignty over the common heritage of mankind would be detrimental to the construction of a long-term stable marine environment and would contradict the purpose of peaceful use.
4.3 Institutional innovation of inclusive benefit-sharing models
Regarding the mode of benefit-sharing, the BBNJ Agreement adopts a combination of mandatory mode and voluntary mode. On the one hand, the mandatory model ensures that the acquisition, generation and utilization of MGRs in ABNJ can be carried out within the fair and equitable framework by determining the rights and obligations in advance. For example, the BBNJ Agreement requires the Parties to apply to the Clearing-House Mechanism for standardized batch identifiers, so as to ensure that MGRs and digital sequence information can be identified as originating from ABNJ. Moreover, the Parties should prepare a summary report every two years and submit it to the newly established access and benefit-sharing committee to promote transparent monitoring. On the other hand, the voluntary model, with its flexible and efficient features, can facilitate a consensus on benefit-sharing. For example, the Parties should establish mutually agreed terms with indigenous peoples and local communities when utilizing traditional knowledge in ABNJ. Mutually agreed terms give room for free negotiation between the Parties and create a more equitable trading environment for benefit-sharing of MGRs (). However, the mutual agreement does not mean that the Parties can agree on any benefit-sharing conditions without restriction, and they must nonetheless abide by the minimal legal requirements, principles, and goals of the BBNJ Agreement.
The BBNJ Agreement insists on the parallel existence of monetary and non-monetary benefits when it comes to benefit-sharing types. Article 14(2) of the BBNJ Agreement outlines the main forms of non-monetary benefits, including but not limited to the provision of samples of genetic resources, the sharing of digital sequence information, the disclosure of scientific data, and the transfer of marine technology. However, non-monetary benefits are not typically accompanied by onerous reporting requirements in order to accommodate the special requirements and priorities of least developed States, small island developing States, coastal African States, etc. In addition to non-monetary benefit-sharing, the BBNJ Agreement also requires the Parties to fulfill monetary benefit obligations under the newly established financial mechanism. The Parties shall make payments and contributions related to the product commercialization in stages through the special fund. The access and benefit-sharing committee ought to formulate benefit-sharing guidelines and might make recommendations to the Conference of the Parties on the rate and mechanism of monetary benefits. The above two types of benefit sharing take into account the national conditions and actual needs of different States to the maximum extent, ensuring that all parties can share the results of MGRs in ABNJ.
5 Conclusion and recommendations
The traditional UNCLOS-centered ocean governance system faces significant challenges in addressing non-traditional security issues within global commons (). The BBNJ Agreement represents a paradigm shift, transforming the benefit-sharing of MGRs from a merely ethical practice to a comprehensive legal framework deeply intertwined with sustainable development, indigenous community interests, and intergenerational equity. By establishing a novel legal foundation for global ocean governance, the Agreement seeks to harmonize the diverse and often conflicting interests of individual nations with the collective interests of humanity. Nonetheless, as analyzed above, the Agreement still faces significant gaps: the lack of a clear definition of MGRs and their derivatives creates legal uncertainty; the coexistence of competing principles without coordination mechanisms leads to interpretive conflicts; and the absence of a balanced, operable benefit-sharing model may hinder fair and efficient implementation. This paper offers specific recommendations to strengthen the Agreement’s operability and equity.
5.1 Expanding MGR definitional scope to encompass derivatives
First, it is recommended to adopt a broad interpretative approach that includes derivatives within the benefit-sharing framework. On one hand, this can be justified through the Vienna Convention on the Law of Treaties’ interpretative rules (). From a systematic interpretation perspective, although UNCLOS Article 133 restricts “resources” to minerals, the BBNJ Agreement’s implementation framework should maintain consistency with the CBD regarding the definition of “genetic resources.” According to a purposive interpretation, the BBNJ Agreement’s core objectives are protecting marine biodiversity and equitably sharing MGR benefits.” Excluding derivatives from the benefit-sharing mechanism could create potential loopholes that might allow some corporations to evade obligations through chemical modifications of MGRs, potentially affecting funding for marine conservation and challenging principles of equitable sharing (). On the other hand, the Conference of Parties could establish a negative list explicitly excluding derivative categories that do not constitute MGRs, such as entirely artificially synthesized molecules. Additionally, the framework could initially incorporate direct derivatives with close, traceable relationships to MGRs—such as gene expression products and natural metabolites—before gradually expanding to indirect derivatives. However, this approach may encounter practical difficulties, such as how to clearly distinguish between derivatives that occur naturally in marine organisms and those that are artificially synthesized in laboratories, as well as how to set clear criteria for determining which types of derivatives should be subject to benefit-sharing. For contested derivatives, an expert committee comprising scientists, legal specialists, and industry representatives could issue determinations based on scientific facts and technological capabilities (See Table 1 below).
Table 1
| Type of Derivative | Definition/Example | Suggested Inclusion | Potential Challenges |
|---|---|---|---|
| Direct derivatives | Gene expression products, proteins, natural metabolites | Mandatory inclusion | High cost of technical traceability; limited monitoring capacity in developing States |
| Indirect derivatives | Molecules modified through chemical or synthetic biology methods | Conditional inclusion | Ambiguity in the “substantive function” criterion; disputes over technical determination |
| Artificially synthesized derivatives | Fully synthetic products based on digital sequence information from MGRs | Inclusion based on DSI provisions | Unclear definition of DSI; disputes over data sovereignty and intellectual property |
| Hybrid-source products | Products combining MGRs with other resources | Inclusion based on proportional contribution | Lack of standardized quantification methods; risk of responsibility evasion through fragmented R&D |
| Negative list exclusions | Synthetic products entirely unrelated to MGRs and not using any associated information | Explicit exclusion | Lag in list updates relative to technological development; potential expansion by developed States to protect industry |
Derivative types of MGRs and their inclusion in benefit-sharing.
5.2 Implementing a phased benefit-sharing mechanism
Second, to reconcile principle divergences within the BBNJ Agreement’s benefit-sharing provisions, a phased benefit-sharing mechanism is recommended. This mechanism integrates the freedom of the high seas principle with the common heritage of mankind principle across different MGR utilization stages, thus avoiding a binary choice dilemma (). In the initial stage, a flexible management approach aligned with high seas freedom principles would permit nations to freely access MGRs after simple registration, facilitating deep-sea biodiversity research. As MGR development progresses toward commercialization, the common heritage principle should be gradually introduced, with clear trigger conditions established at patent application, product development, or market sale stages to activate benefit-sharing obligations. For instance, post-market launch, companies would contribute a percentage of sales revenue as monetary returns to a global fund supporting ocean conservation and developing States’ capacity-building initiatives. To ensure efficient mechanism implementation, a blockchain-based MGR tracking system () could record comprehensive information from sample collection and gene sequencing to product commercialization (). Through smart contracts, companies selling MGR derivatives would automatically calculate applicable royalties for transfer to the BBNJ fund. However, implementing a blockchain system to track MGRs from collection to commercialization requires robust technical infrastructure, interoperability across jurisdictions, and data privacy safeguards (). Developing a universal system that integrates diverse national databases and ensures real-time transparency is complex (). For example, blockchain’s energy consumption and scalability limitations may pose challenges in resource-constrained regions. Simultaneously, differentiated responsibilities could be assigned to various users, with pure research institutions bearing distinct benefit-sharing obligations from commercial entities. This phased approach respects developed States’ concerns regarding early-stage R&D burden reduction while addressing developing States’ demands for equitable commercial revenue sharing. However, this distinction could create loopholes, such as companies outsourcing MGR collection to academic partners to avoid obligations, or researchers being disincentivized from disclosing commercially valuable discoveries (). This issue is reflected in the biotech sector, where pharmaceutical firms often collaborate with universities to access genetic resources, leading to ambiguity about who should bear the benefit-sharing responsibilities.
5.3 Structuring a hybrid Benefit-Sharing Model
Third, the BBNJ implementation mechanism should balance equity and operability by constructing a hybrid benefit-sharing model accommodating all stakeholders’ interests. Regarding monetary benefits, establishing an MGR Benefit-Sharing Fund with progressive allocation mechanisms for commercial revenues would ensure reasonable returns from genetic resource development to global ocean governance (). Specifically, enterprises and research institutions utilizing MGRs and achieving commercial outcomes should contribute a percentage of sales to the fund, supporting developing States’ marine scientific research capacity. For non-monetary benefits, promoting global marine genetic resource database development would enhance data sharing and international scientific cooperation. Developed States should provide developing States with open access to genetic data, experimental techniques, and relevant intellectual property licenses while encouraging regional research center establishment to improve technology transfer feasibility (). To further bridge monetary and non-monetary benefit-sharing divergences, resource developers could be permitted to fulfill obligations through direct monetary payments or non-monetary contributions within certain parameters, while establishing minimum contribution standards ensuring developing States receive substantive benefits from MGR utilization.
In conclusion, BBNJ Agreement implementation should prioritize advancing all humanity’s welfare rather than solely serving developing States’ interests. The benefit-sharing mechanism must address vulnerable groups’ marine welfare while providing maritime powers with practical incentives to balance stakeholder interests. Only through international community collaboration can the BBNJ Agreement protect marine biodiversity while constructing a more equitable, rational, and sustainable global ocean governance system.
Statements
Author contributions
SR: Writing – review & editing. WW: Writing – original draft.
Funding
The author(s) declare that financial support was received for the research and/or publication of this article. This research was funded by the Zhejiang Province Philosophy and Social Science Leading Talents Cultivation Project (Grant No. 23YJRC02ZD) and China Scholarship Council (CSC) Program (Grant No. 202406320076).
Conflict of interest
The authors declare that the research was conducted in the absence of any commercial or financial relationships that could be construed as a potential conflict of interest.
Generative AI statement
The author(s) declare that no Generative AI was used in the creation of this manuscript.
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Summary
Keywords
the BBNJ agreement, marine genetic resources, digital sequence information, benefit-sharing, the common heritage of mankind, the freedom of the high seas
Citation
Rometius S and Wang W (2025) Unlocking the global commons: legal analysis of benefit-sharing for marine genetic resources in the BBNJ agreement. Front. Mar. Sci. 12:1541331. doi: 10.3389/fmars.2025.1541331
Received
07 December 2024
Accepted
08 May 2025
Published
03 June 2025
Volume
12 - 2025
Edited by
Di Jin, Woods Hole Oceanographic Institution, United States
Reviewed by
Mehran Idris Khan, University of International Business and Economics, China
Porter Hoagland, Woods Hole Oceanographic Institution, United States
Updates
Copyright
© 2025 Rometius and Wang.
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*Correspondence: Wei Wang, wang1997@whu.edu.cn
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