Introduction
In recent times, the conservation and sustainable use of marine biodiversity, particularly marine genetic resources (MGRs), from overexploitation and unsustainable use have evolved into an issue of global concern, due to the growing knowledge among the international community regarding the potential values of MGRs found in areas beyond national jurisdiction (ABNJ).1 Recent technological advancements in the knowledge of deep-sea ecosystems and the emergence of biotechnology have highlighted the significant scientific, commercial and industrial value of the genetic material present in MGRs and consequently, marine scientists and bio-prospectors2 have demonstrated a growing interest in exploring and exploiting these resources.3
Nevertheless, States are not able to equally access or utilize MGRs as only a few have necessary infrastructure including technology and research capabilities to fully benefit from their utilization.4 Without robust regulation of scientific exploration in ABNJ and proper interpretation of freedom of marine scientific research,5 developing and the least developed countries could be excluded from access to scientific research into MGRs and sharing the benefits deriving from these resources which may violates their rights to share scientific technological advancement and the resulting benefits.6
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The conflicting legal frameworks governing the exploitation of deep-sea resources, including the applicability of the freedom of the high seas or common heritage of mankind (CHM), have created substantial ambiguities and inconsistencies between developing and developed countries concerning the legal regime governing these resources.7 In order to overcome the existing uncertainties regarding the protection and preservation of marine biodiversity, the international community established a negotiation process on a legally binding framework to address conservation and sustainable use of biological diversity beyond national jurisdiction, leading to the adoption of the High Seas Biodiversity Treaty. This new treaty was finally adopted on June 19, 20238 as a new implementing agreement within the framework of the United Nations Convention on the Law of the Sea (UNCLOS) after almost two decades of intense negotiations at the international level.9
It came as no surprise that the ideological divergences between the global north and south10 particularly against the backdrop of their economic development and technological advancements, were made evident during the course of negotiations to conclude a legally binding agreement, particularly with regard to the legal nature of MGRs and the applicability of the common heritage of mankind concept to MGRs activities.11 As a result, opinions fluctuated on the application scope of the CHM concept during the negotiations and they were subject to contentious debates throughout the prolonged negotiations leading to the final adoption of the Agreement. According to the developing countries’ argument, since the new agreement is being developed for the conservation and sustainable use of MGRs in ABNJ as an implementing agreement under the UNCLOS, the application of the common heritage principle to MGRs must be based on the same logic as the Convention. Nevertheless, developed countries continuously referred to the freedom of the high seas, while addressing the legal nature of MGRs.12 To practically address such legal conflict, some efforts have been made to bridge the ideological gap by adopting a pragmatic approach, focusing on access and benefit-sharing, rather than the CHM principle, to satisfy the demands of its proponents. This emerging trend aimed to disregard the concept of the CHM from the process of negotiations on the governing principles and replace it with merely a reference to access and benefit-sharing regime applicable to MGRs. Subsequently, at the tense last hour of negotiations, States agreed to include the principle of “common heritage of humankind”13 and “freedom of marine scientific research, together with other freedoms of the high seas” as “general principles and approaches” in article 7 of the BBNJ Agreement.14
The inclusion of CHM concept as a guiding principle after years of intense debates has presented the most recent achievements of progressive development of international law of the sea concerning conservation and sustainable use of biological diversity in areas beyond national jurisdiction. The current text of the BBNJ Agreement establishes an equitable access and benefit-sharing regime for MGRs, under which, any benefits derived from the MGRs utilization must be shared fairly and equitably with all the international community, with due consideration to the special situations of developing and least developed countries and their interests.15
The key considerations in this article revolve around a paradigm shift from the CHM towards a more pragmatic benefit-sharing regime and whether all component parts of the CHM principle including sustainable equity and more specifically, inter-generational and intra-generational equity are adequately captured in the BBNJ Agreement. In order to answer these questions, this article first addresses the existing disregarded question of ownership and legal status of MGRs under international biodiversity regime governing preservation and sustainable use of marine biodiversity. The discussions will be followed by answering the question of applicability of the CHM principle to MGRs in ABNJ and specification of legal implications resulting from the application of CHM to MGRs, taking into consideration the requirements set out in the BBNJ Agreement.
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Historical and legal attributes of considering marine genetic resources as common heritage of mankind
The principle of the Common Heritage of Mankind (CHM) has emerged as a noteworthy concept in international law, particularly with respect to the utilization and preservation of global common resources. As the resources in global commons are freely exploited by powerful States who have advanced technological information and knowledge, it was suggested that a system beyond non-ownership of the high seas and the common heritage paradigm is needed, and the CHM principle can fully represent it.16However, issues of enforcement related to the CHM remain contentious; without a robust mechanism for compliance, states may prioritize national interests over global responsibilities. Additionally, the interpretation of what constitutes "common heritage" can vary significantly among states. Some nations may view it through an economic perspective, focusing on resource extraction, while others emphasize conservation and sustainable use of such resources.17
As global challenges such as environmental degradation and resource depletion became more pronounced, the need for a unified approach to managing shared resources became more evident than ever. Subsequently, understanding the underlying roots of CHM requires an exploration of historical, philosophical, and legal contexts. This Part of the article will address the underlying Roots of the Common Heritage of Mankind Principle as well as the key elements and legal consequences arising out of applying CHM as an ocean resources governance principle.
The common heritage of mankind concept under international law; underlying roots, legal bases and constituent elements
Careful analysis of the underlying roots of the common heritage of mankind principle
The CHM principle is deeply rooted in philosophical discussions about collective ownership and stewardship. Scholars such as Grotius laid the groundwork for modern notions of international law by arguing for the commonality of certain resources. Grotius, in "Mare Liberum" argued that the sea should be free for all to use, which aligns with the CHM's ethos.18 Moreover, contemporary thinkers like Richard Falk have emphasized the ethical dimensions of CHM, arguing that it embodies a moral obligation to protect resources for future generations.19 This perspective aligns with sustainable development principles, advocating for equitable access and responsibility towards global commons.
The theoretical origins of the CHM principle go back to the distinction between two concepts of res communis and res nullius, indicating that global elements of humanity should not be exploited by some countries or their nationals.20 The global commons concept refers to common areas that can only be managed by the international community as a whole and are not owned by national jurisdictions, the concept of which has primarily been used to establish an international legal framework for the management of areas considered as global commons, despite rigorous efforts to extend its application to other areas such as technology transfer and cultural property. According to some researchers, the combination of the words "humanity" and "heritage" suggests that the interests of present and future generations and environmental protection should be taken into serious consideration when using of global commons.21
The concept of CHM has emerged in early 1960, where it began to gain traction in discussions surrounding global common governance and resource management. When the application of the CHM principle to the deep sea area and its resources was proposed, many newly industrialized and developed countries opposed it and considered the existing legal regime sufficient to govern human activities in the Area. Developing countries, instead, supported this principle due to their economic interests, without reaching a consensus on its nature and constituent elements.22 The common heritage of mankind concept has been interpreted in a variety of ways due to the ideological controversies between developed and developing countries.
This principle is foundational to various international treaties and agreements, most notably the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and previously, the 1972 UNESCO World Heritage Convention. The term itself was first explicitly used in the 1967 Declaration of Principles Governing the Sea-Bed and the Ocean Floor, which emphasized that these areas should not be subject to national appropriation but rather belong to all humanity.23
The Common Heritage of Mankind principle represents a significant evolution in international law, reflecting humanity’s widespread recognition of shared responsibilities towards global resources. Its roots lie in historical developments, philosophical discourse, and legal frameworks that advocate for collective stewardship and collective global resource management. In other words, the notion of common heritage of mankind reflects a shift from a nationalistic approach to resource management towards a more collective understanding of global stewardship, particularly in areas where national interests may clash with this concept.24
This is not surprising that the uncertainties over the CHM principle under contemporary international law originated some controversial debates regarding the precise legal requirements of the CHM concept, its legal attributes and applicability of this principle to Area and its pertinent resources, including MGRs in ABNJ.25 Since most of MGRs are found near hydrothermal vents which are located in the seabed or deep ocean floor,26 the debate on the legal regime significantly focuses on those located in the seabed and its subsoil, namely the Area.27 This principle is particularly relevant to marine biological diversity in ABNJ, which covers around two-thirds of the world’s oceans and is considered as global commons not subject to national jurisdiction. Next part of the article explores the key elements, legal bases and implications of CHM principle as a guiding principle.
Key elements and legal bases and consequences of CHM as a resource governance principle
The CHM concept consists of elements and bases that regulate the activities of States in the deep sea area, although the content of these elements and the precise nature of activities authorized by them have not been clearly defined.28 According to some scholars, there is a general consensus on the constituent elements of the CHM principle, although there is no consensus on its legal status.29 The first constituent element of the CHM principle that enjoys consensus among scholars is that of non-ownership and non-appropriation.30 According to the principle of non-appropriation, no State or person can own common heritage spaces or resources.
Another significant element pertaining to the CHM concept suggests that “the use of common heritage shall be carried out in accordance with a system of cooperative management for the benefit of all humankind”.31 In the context of legal status of MGRs in ABNJ, the CHM principle represents the idea that certain resources are considered as the common heritage of all humanity and should be managed and preserved in a way beneficial to present and future generations.
Moreover, one of the constituent elements of the CHM concept dealing with prohibition of military uses, highlights that the CHM shall be reserved for only peaceful purposes. Subsequently, the fourth element pertaining to the CHM concept maintains that protection of areas shall be carried out in a way to ensure inter-generational and intra-generational justice, recognizing the common global resources in ABNJ should be managed as a heritage belonging to present and future generations as well.
The final but the most significant element lied in the CHM concept, is the equitable sharing of benefits associated with the sustainable use of the genetic resources, while paying particular attention to the interests and special needs and priorities of developing States and particularly least-developed countries in order to enhance their capacities through equitable transfer of marine technology. The equity element implies distributive justice perspectives with all its temporal consequences and is regarded as the most controversial aspect of the CHM principle.32 Developed countries have always had some different perspectives when it comes to a realization of capacity building commitments. According to the author’s experience in participating in various multilateral forums and negotiations, such initiatives are typically viewed as providing aid to developing nations, solely on their request, taking into account the diverse political and socioeconomic situations of the targeted society, rather than being commitment-based.
The rationale for a benefit-sharing element of the CHM is captured in Arvid Pardo’s statements, warning against the failure to implement the CHM, i.e. “intolerable injustice which reserves the plurality of the world’s resources for the exclusive benefit of less than a handful of nations.”33From this perspective, the CHM initiative aimed to restore dignity to underprivileged nations and put an end to "humiliating financial hand-outs", by providing the most impoverished members of the international community with the opportunity to access marine technology and equal opportunities to engage on a basis of equality in the management and development of these highly valuable resources.34This reinforces the notion that benefit-sharing reflects the need to promote the economic growth of developing countries and particularly, the least developed countries. Afterwards, Pardo's original concept of a CHM regime substantially differed from the UNCLOS 1994 Implementation Agreement,35relatively affecting the goal of equitable distribution of benefits including the mandatory transfer of technology to developing and least developed countries.36
The CHM principle, deeply rooted in the idea of shared ownership, shared stewardship and shared responsibility for global commons and highly valuable resources, aligns with the overarching goals of UNCLOS to promote sustainable and equitable access to and utilization of genetic resources while taking into account the protection and preservation of the marine environment.37 This concept serves as a cornerstone for any future legal framework pertaining to the law of the sea and also a reflection of the recent transformation in the existing legal doctrine, as seen in the development of the new regime governing marine biological diversity conservation in the oceans.38 Substantially, the CHM implies that common resources are the shared heritage of all humankind and should be maintained for the benefit of present and future generations. However, opinions vary on how this principle should be applied to MGRs in ABNJ, particularly in light of recent developments in international law of the sea and biodiversity law for the past few decades.
The following part of the present article aims to maintain a holistic and equitable approach to address the disregarded question of the ownership of MGRs in ABNJ and the legal implications thereof. The paper will finally seize the opportunity to introduce the idea of applying the CHM concept to MGRs in ABNJ as a unique opportunity to develop a modern international legal and normative framework that promotes equitable access to the results of the utilization of MGRs and final goal of fair and equitable transfer of information and technology to the countries in need.
Attributes of MGRs in ABNJ as CHM: legal and policy justifications
The question of ownership of MGRs and the ideological disagreement between global north and south
The discussions surrounding the need for global action toward addressing the risks posed by human activities on the marine environment began with the efforts initiated by the intergovernmental and non-governmental organizations in 1980s and 1990s.39 There were glimmers of hope for the development of a new legally binding instrument that would regulate and control unbridled human activities in ABNJ. Afterwards, in 1999, the first proposal for a new framework for ocean governance was made at the annual meetings of the United Nations Informal Consultative Process on Oceans and the Law of the Sea (UNICPOLOS) and then the General Assembly Resolution (33/54) adopted on November of that same year, addressed ocean-related matters. Based on the outcomes of the fifth meeting of the UNICPOLOS in 2004, recommendations were made to the General Assembly to establish a working group on conservation of marine biodiversity in ABNJ, to precisely negotiate the conservation and sustainable use of marine biodiversity.40 From that time onwards, the question of legal status of MGRs has remained a contentious issue and the main reason for ideological disagreement between global south and global north.41
Over time and throughout the informal negotiations of the UNICPOLOS, the origins of conflicts between States and their conflicting interests regarding the applicable legal framework governing sustainable use of MGRs in ABNJ gradually became evident, especially at its eighth meeting in June 2007.42 The Consultative Process failed to reach consensus at the end of this meeting, due to the disagreements regarding the application of the CHM principle as a legal regime governing the ownership of benefits arising out of MGRs. The Group 77 and China argued that the legal regime governing biological resources should be similar to that for mineral resources in the Area under Article 11 of the Law of the Sea Convention and referred to Resolution 49/27 of the General Assembly in 1970, which declared that all deep-sea resources in the Area are CHM and marine living genetic resources should generally be subject to this very legal regime. In contrast, most of the developed countries emphasized that the freedom of the high seas as stipulated in the Part XI of UNCLOS is applicable to all marine living resources, including MGRs.43
The most contentious issues addressed in the 2011 Ad Hoc Open-ended Informal Working Groups revolved around the principal question of whether MGRs in the Area are subject to the legal regime of Part VII (freedom of the high seas) or Part XI (common heritage of mankind).44 Ultimately, in 2011, the Group 77 and China reached a consensus on the need to develop an implementing agreement within the framework of the Convention on the Law of the Sea to describe the legal system governing MGRs in areas they believe are subject to the CHM principle. This shift led to the recommendations by the Working Groups including to enforce the existing legal regime or possibly developing a new implementing agreement under UNCLOS.45
Afterwards, the UN General Assembly adopted Resolution 69/292 in 2015 entitled "Development of an International Legally Binding Instrument under UNCLOS on the Conservation and Sustainable use of Marine Biological Diversity of Areas beyond National Jurisdiction"46 which underlined the need to elaborate the text of an international legally binding instrument to regulate conservation and sustainable use of marine biological diversity of ABNJ with a view to developing the instrument as soon as possible.47 As a result, negotiations for the drafting of this binding instrument to govern activities related to marine biological resources in ABNJ were initiated in the form of “Preparatory Committee”48 to conclude and adopt a legally binding instrument on conservation and sustainable use of MGRs in ABNJ. After all, the General Assembly decided to convene the Intergovernmental Conference (IGC) under its Resolution 72/249 of 24 December 2017 to review the recommendations made by the Preparatory Committee.49 After a two-year delay due to the COVID-19 pandemic, the resumed fifth session of the IGC was able to further elaborate the draft of the text of the Agreement which was later adopted on June 202350
For the purpose of this article, what is crucial is to be able to define the legal status of MGRs in a way more consistent with the principles of equitable access, intergenerational justice and sustainable development. This may involve developing specific legal regimes that address the unique characteristics of MGRs and promotes the sustainable use and conservation of MGRs for the benefit of all. The next part of this section will explore the legal status of MGRs in ABNJ, focusing on the specific frameworks, procedures, and legal regimes governing these resources.
Attributing MGRs in ABNJ as CHM; application scope, legal and policy attributes and justifications
For the purpose of the following study, it is essential to delineate the legal status of MGRs in ABNJ as common heritage of mankind as well as its legal justifications. Such a complex and sophisticated analysis requires careful consideration into current regimes and existing mechanisms under the law of the sea, biodiversity law and customary law viewpoints. Furthermore, a more general international legal perspective suggests that the incorporation of the CHM principle into the BBNJ Agreement or any future mechanism concerning MGRs conservation can be justified through a rigorous application of interpretation methods based on the ordinary meaning to be given in relevant context and in the light of object and purpose of such frameworks.51 This part of the article raises several arguments that may be supported by such methods of interpretation defined by the Vienna Convention in order to answer the key concerns surrounding the identification of MGRs in ABNJ as part of the CHM, as well as the legal and policy implications of such designation.
The legal framework surrounding CHM has evolved significantly over the decades. The UNCLOS is perhaps the most comprehensive treaty that embodies this principle. First and foremost, the MGRs activities within ABNJ fall under the common heritage principle based on the empirical law’s perspective towards interpretation of UNCLOS. Article 136 states that "the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, are the common heritage of mankind."52 This provision establishes a legal basis for shared governance and equitable resource distribution. Having carefully examined the textual and systematic interpretation of the provisions of UNCLOS, it turns out that the CHM principle extends to resources within the Area, activities conducted in the Area, and independent access to resources within the Area potentially including MGRs.53Additionally, the Convention on Biological Diversity recognizes genetic resources as part of the CHM, emphasizing the need for equitable sharing of benefits arising from their utilization.54 These legal instruments reflect a growing consensus among states regarding the necessity of collective management of global resources as common heritage of humankind.
Moreover, the nature of MGRs as outlined in the BBNJ Agreement supports their inclusion under the common heritage of mankind principle. Despite the apparent limitation scope of the definition of the resources stipulated in Article 133(a) of UNCLOS, the preparatory works and discussions from the United Nations Conference on the Law of the Sea indicate no intention to exclude non-mineral resources from the common heritage principle's application. The requirement for any implementing agreement to uphold the common heritage principle, prohibiting derogation as emphasized in Article 311(6) of UNCLOS, reinforces the principle's relevance and applicability.
From geological perspective, the location and characteristics of MGRs support their classification under the common heritage principle. The definition of the Area in UNCLOS encompasses "the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction", aligning with the Area's classification. This principle is characterized by and centred on conservation, sustainable use and equitable exploitation and underpins the BBNJ Agreement's objectives.
Another legal argument in legal attribution of MGRs as CHM asserts that the practice of bioprospecting for MGRs in ABNJ does not qualify as a high seas freedom and as such, bioprospecting for MGRs in the water column does not constitute a high seas freedom under Article 87 of UNCLOS. Additionally, activities subject to the common heritage principle must not violate the prohibition of making claims based on marine scientific research, as per Article 248 of UNCLOS and as a result, bioprospecting activities do not meet the criteria for genuine marine scientific research.
Moreover, from a constitutional standpoint, it is imperative to acknowledge that Parties to UNCLOS -as the constitution of the ocean- are obliged to incorporate the common heritage principle into the proposed implementing agreement on BBNJ. Furthermore, even non-parties to UNCLOS may be bound by customary international law principles enshrined in the Convention,55 among others, the common heritage of mankind principle in UNCLOS, thereby underscoring the broad implications of this principle beyond States’ treaty obligations.56
A fair recognition of such a broad range of implications promotes global justice, sustainable equity, responsible resource management, and collaboration among nations with regard to the governance of MGRs. This approach cultivates a common awareness of our shared obligation and collective responsibility to safeguard the marine environment for both present and future generations, in addition to ensuring compliance with existing regulatory frameworks.
Taking this perspective, one could observe that incorporating the common heritage principle into the regulation of MGRs in ABNJ, through possible justification ingrained in customary international law, underscores the policy imperatives to place a high priority on conservation, equitable access, and benefit-sharing in the management of such resources.57 This approach reflects the customary law commitment to sustainable development and international cooperation in addressing global challenges related to biodiversity conservation, ocean governance and more recently climate change adaptation and mitigation.58 According to such an interpretation, the common heritage principle can be regarded as a customary norm that governs the exploitation and conservation of MGRs in ABNJ for the interests of present and future generations.59
Subsequently, the inclusion of the common heritage principle enhances conservation efforts by regulating access to resources and promoting a fair and reasonable international cooperation through benefit-sharing, technology transfer, and capacity-building. This principle of CHM, regarded as customary international law,60 transcends legal disputes and presents an opportunity for the international community to address ecological biodiversity challenges in a responsible and equitable manner, reflecting the collective responsibility towards shared resources advocated by international biodiversity law. This approach will be further elaborated upon in the next parts of this article.
A fair and equitable benefits-sharing regime under the BBNJ Agreement; legal and policy implications for sustainable equity and management of marine common resources
The applicability of the CHM concept and its inclusion in the BBNJ treaty’s text were the subject of extensive deliberations throughout the negotiation process leading to the adoption of the Agreement, mainly during the resumed session of IGC-5.61As a result, the common heritage principle was included in square brackets within the BBNJ draft62 and was later incorporated into the agreement as a guiding principle during the last hour of the said negotiations. The incorporation of this concept as a guiding principle represented the most recent achievements resulting from the progressive development of international law of the sea concerning conservation and sustainable use of biological diversity.
Apart from these observations, however, we need to look into the benefit-sharing provisions of the BBNJ Agreement in more detail in order to address the questions regarding whether the BBNJ Agreement appropriately incorporates all constituent elements of the CHM. Additionally, this should also be addressed in terms of whether the BBNJ Agreement successfully designs a sophisticated benefit-sharing approach towards the sustainable management of genetic resources in ABNJ. The BBNJ Agreement’s benefit-sharing requirement will be further examined in more detail in the section that follows in order to determine any potential benefits and drawbacks arising from such a more practical approach towards benefit-sharing as well as any potential legal and policy ramifications for long-term sustainable equity and inter-generational justice.
In recent years, there has been a growing emphasis on access and benefit-sharing (ABS) mechanisms for MGRs, which focus on ensuring that benefits derived from the utilization of genetic resources are shared fairly, equitably and sustainably. This approach is consistent with the direction of international law of the sea and oceans' follow-up regimes, ensuring equitable access to and sharing of benefits as well as sustainable utilization of marine common resources belonging to all humanity. For this purpose, the next section of the current article will address the specific characteristics of the ABS regime applicable to MGRs related activities. Then, we will examine the legal, policy and governance implications resulting from a more pragmatic benefit-sharing approach. The main focus of this part of the article will be on sustainable equity and intergenerational fairness perspectives in management of MGRs as marine common resources in the high seas, while acknowledging that there are several other principles regarding sustainable management of MGRs that may be applicable but not discussed in the following part.
The BBNJ Agreement and a fair and equitable benefits-sharing regime
Characterisation of the access and benefits-sharing regime applicable to MGRs activities under the BBNJ Agreement
One of the most important legal implications resulting from the application of the CHM concept to MGRs in ABNJ is the requirement concerning fair and equitable access to and sharing of benefits. A fair and equitable benefit-sharing regime recognizes the States’ commitments to ensure that the benefits derived from the utilization of marine biological diversity in ABNJ are shared fairly and equitably and preserved in the interests of the international community as a whole, including future generations. The BBNJ Agreement has outlined a particular benefit-sharing regime, mainly under Article 11 which addresses the benefit-sharing mechanism. Issues surrounding current benefit-sharing regime under the BBNJ Agreement that apply to MGRs in ABNJ would be the primary focus of the following debate, with careful consideration to the obligations set forth in the Agreement.
The provisions contained in the Part II of the BBNJ Agreement include an effort to establish a mutually supporting framework between access and benefit-sharing regime and the regime applicable to MGRs. The main focus of this part of the Agreement lays on fair and equitable benefit-sharing, capacity building, particularly for countries in special situations, marine scientific research, and transfer of marine technology.63 This covers sharing of monetary and non-monetary benefits requirements, ranging from digital sequence information (DSI), transfer of marine technology, and capacity building to biodiversity preservation and conservation perspectives.64 Accordingly, issues surrounding the fair and equitable access to and benefit-sharing mechanism that apply to ABNJ are the main topic of the discussions in the section that follows, with careful consideration given to the obligations outlined in the BBNJ Agreement.
The MGRs provisions that were developed during the two decades of negotiations and finally revolve around some forms of benefit-sharing, ranging from financial compensation to technology transfer, the 2011 package and beyond serves as evidence for this assertion.65 However, there was significant disagreement about whether or not monetary benefits would be included in the benefit-sharing regime until the very end of the first part of the fifth session of the IGC.66 Even after that, the modalities of such inclusion remained subject to intense discussions among negotiating Parties. An initial compromise that unlocked a lot of goodwill was that monetary benefits shared under the BBNJ Agreement would only be used for capacity building and advancement of the objectives of the Agreement.67
In order to advance the objectives of this Agreement, Part II of the BBNJ Agreement establishes additional guidelines for how MGR-related activities will be governed by this instrument and how both monetary and non-monetary benefits from their utilization will be shared and equitably distributed. Accordingly, it will be the responsibility of future Parties to guarantee that entities falling under their jurisdiction adhere to the new regulations and requirements enshrined in the instrument.68
One of the key provisions of the BBNJ Agreement is the establishment of its own Access and Benefit-Sharing Committee and a Clearing-House Mechanism to facilitate the sharing of MGRs and associated data.69 The purpose of designating such mechanism is to facilitate the exchange of information on MGRs between countries and organizations to advance scientific research and development while guaranteeing the equitable distribution of benefits. Among other things, these regulations include a notification system that creates transparency and permits the monitoring of these provisions at various stages of the value chain.70Additionally, the Agreement stipulates that monetary benefits must be deposited into a “special fund” that will support the implementation of assistance and capacity-building activities ensuring that all benefits shared from MGR-related activities will be directed toward the objectives of the BBNJ Agreement.71 According to the BBNJ Agreement, developed countries will be responsible for paying into the Special Fund with contributions potentially including milestone payments, commercialization payments, periodic fees, and other forms yet to be decided by the future Conference of Parties (COP).72
Legal regime applicable to digital sequence information (DSI) on MGRs in ABNJ
The extensive non-monetary benefits resulting from activities involving MGRs and digital sequence information to be shared include access to DSI and their samples, transfer of marine technology, capacity building, and enhanced technical and scientific cooperation.73 DSI among other rapidly evolving technical concepts is becoming increasingly important in the field of genomics as it allows researchers to analyse genetic data more efficiently and effectively.74 The term represents a contemporary dispute about how to handle knowledge about the molecular composition of genetic resources in the context of conservation, sustainable use, and access to genetic resources, and benefit-sharing.75 New emerging technologies are enabling the development of products solely based on digital information regarding the molecular composition of genetic resources.76 However, the technology advancement raises questions about ownership and control over marine genetic resources, especially in cases where DSI is used to develop new products or technologies.77
The discussion surrounding the regulation of digital sequence information bears significant ramifications for access and benefit-sharing regimes. These frameworks are intended to ensure that the benefits of using genetic resources are shared equitably among the communities from which they are originated or obtained.78 Some scholars argue that DSI should be subject to the same access and benefit requirements as physical genetic resources, while others believe that this would be impractical and could hinder potential advances in scientific research.79
As far as it relates to the DSI characteristics and specifications in the BBNJ Agreement, the history of negotiations shows a significant shift in terms of DSI acknowledgment and anticipating a specific multilateral mechanism tailored for benefit-sharing activities concerned with DSI.80 The agreement in its preamble acknowledges that “the generation of, access to and utilization of digital sequence information on marine genetic resources of areas beyond national jurisdiction, together with the fair and equitable sharing of benefits arising from its utilization, contribute to research and innovation and to the general objective of this Agreement”.81
According to the BBNJ Agreement, the activities with respect to MGRs and DSI on MGRs in ABNJ “shall be carried out exclusively for peaceful purposes”82 and are in “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”.83 This primary principle should govern all MGRs and DSI on MGRs activities in ABNJ “taking into particular consideration the interests and needs of developing States”.84 The very concept refers to a close ties lied in the DSI and CHM considerations. From the author’s point of view, the final inclusion of such concept along with defining a mechanism for DSI benefit-sharing has definitely been a significant milestone achieved by the proponents of the DSI, benefit-sharing and CHM concepts mostly from developing countries.
The BBNJ Agreement also tackled the question of whether its provisions on MGRs would also apply to DSI,85 following the CBD's precedent in designating a multilateral benefit-sharing structure for DSI coming from national jurisdictions.86 More importantly, the question of whether DSI from MGRs in ABNJ fall under CHM or freedom of the high seas was discussed during the course of the BBNJ negotiations.87 In light of the final text of the BBNJ Agreement, which does not explicitly define DSI, the Conference of the Parties (COP) will determine whether to align the two ideological systems in a way that might support future monetary benefit-sharing methods, including DSI.88
Legal, policy and governance implications resulting from a more pragmatic benefit-sharing approach for sustainable management of marine common resources as common heritage of humanity
The international biodiversity law has gradually shifted towards a more practical approach to the legal regime applicable to MGRs, which emphasizes benefit-sharing and moves away from the CHM concept. Through a critical analysis of this evolving trend, the main premise of this article revolves around the legal and policy implications of such a practical shift for sustainable management of marine common resources that are regarded as common heritage of humanity.89 The current study, therefore suggests that while benefit-sharing is an essential component of an adequate regime to ensure fairness and sustainable equity in using of genetic resources and may present opportunities for innovative solutions in accessing and utilizing MGRs sustainably, it is also crucial to acknowledge the broader interpretation of the underlying implications enshrined in the CHM concept resulting from its application.
The following part of the study attempts to address the BBNJ Agreement’s approach towards a more pragmatic benefit-sharing mechanism while examining the legal implications of such a paradigm shift and considering whether important legal implications inherent in the CHM principle and its constituent elements may be overlooked in favour of a benefit-sharing approach. The article will further analyse whether the BBNJ Agreement captures all attributions and connotations arising out of the CHM concept, particularly fair and equitable sharing of benefits as well as inter-generational and intra-generational equity.
Moving away from CHM towards a more pragmatic benefit-sharing approach? The BBNJ Agreement’s inclination and legal consequences
The concept of the CHM has long served as a fundamental principle in multilateral negotiations regarding the governance of marine genetic resources. However, in recent years, there has been a notable shift towards a more pragmatic benefit-sharing approach within international law, emphasizing on equitable access and fair distribution of benefits arising out of MGRs. This paradigm shift from the CHM principle to a more restricted and practical perspective reflects a increasing acknowledgement of the necessity to tackle concerns surrounding issues of equity, fairness, and sustainability in the utilization of MGRs’ benefits. Such a transition not only aims to ensure that all stakeholders, particularly those from developing nations, have equitable access to MGRs but also seeks to establish mechanisms for the fair sharing of benefits that arise from their utilization.
Nevertheless, this emerging trend poses concomitant potential implications for the legal status of MGRs in ABNJ. By moving away from the CHM concept from the process of negotiations on the governing principles which inherently promotes collective stewardship and shared responsibility, there is a risk of undermining the foundational principles of equity and distributive justice that have historically guided the negotiations. Instead, the focus on a purely benefit-sharing regime could lead to a framework that prioritized economic gain over equitable access and sustainability, raising concerns about the potential marginalization of vulnerable communities in the process of MGRs governance.
As discussed in the introductory parts of this paper, a historic analysis through the past rounds of BBNJ negotiations suggests that the most contentious issue addressed in the 2011 Ad Hoc Open-ended Informal Working Group’s discussions revolved around the principal question of whether MGRs in the Area are subject to the legal regime of freedom of the high seas or common heritage of mankind.90 Although the CHM principle was at the centre of discussions in the Informal Working Group, it was not included in the final recommendations presented by the General Assembly in 2011,91 because of the fact that consensus could not be achieved on the legal regime applicable to MGRs.92 From that time onward, a pragmatic approach was taken towards the results of the working groups, emphasizing "benefit-sharing" rather than a direct indication of the CHM principle to facilitate a widespread consensus and avoid ideological conflicts between countries while streamlining the future agreement’s implementation.93
The common heritage of mankind principle embodies a holistic approach to sustainable management of marine common resources, emphasizing the need for preservation and conservation of resources to ensure their long-term availability and sustainability for future generations and promoting the equitable distribution of benefits among generations. Under this perspective, the shift towards a more pragmatic benefit-sharing approach to MGRs raises significant concerns regarding the potential effects of this paradigm shift on sustainable equity including inter-generational and intra-generational equity principles.
As some scholars suggest, any attempt to exclude the CHM principle may perpetuate an unfettered access and unregulated approach to resource exploitation of commonalities that prioritizes private corporations’ interests over environmental conservation and distributive justice.94 Such interpretation underscores the significance of equitable access and benefit-sharing in the governance of marine resources, aligning with distributive justice principles while reducing inter-generational inequalities.95A potential concern associated with concentrating solely on benefit-sharing suggests that crucial components of the CHM principle can be overlooked, which might result in legal uncertainties and ambiguities over the ownership and legal status of MGRs as well as equitable access and sustainable management of these resources.
A paradigm shift under BBNJ Agreement; implications for sustainable equity including inter-generational and intra-generational equity and sustainable management of marine common resources
This part of the article attempts to identify the implications arising out of the paradigm shift towards a pragmatic benefit-sharing approach for sustainable management of marine common resources including inter-generational and intra-generational equity.
Sustainable equity paradigm emphasizes the responsibility to ensure that present exploitation and utilization of shared resources do not compromise the ability of future generations to enjoy their rights and fulfil their obligations.96 Inter-generational and intra-generational equity are two wings of the doctrine of sustainable equity, aiming to find a proper balance between the two concepts.97 While intra-generational equity intersects with the concepts of equitable approach and justice across the communities and states within present generation, inter- generational equity recognizes the rights and responsibilities of the current and future generations to sustainably preserve and manage marine natural resources.98
The legal implications of the stipulated paradigm shift and the potential disqualification resulting from this approach include important considerations in the governance of MGRs and its legal attributes. From the perspective of the present article, navigating these legal ramifications requires careful consideration of how to strike a balance between the benefit-sharing’s objectives and overarching implications from the CHM notion. In the first place, under a benefit-sharing framework, inter-temporal characteristics pertaining to the benefits derived from MGRs can serve as a barrier to maintaining inter-generational equity and the rights of future generations to these resources. The temporal feature means that the benefits accrued from MGRs might not become apparent right away, and they might take years or decades to materialize, which raises concerns about how to ensure that MGRs are accessible and advantageous to future generations in a just and equitable manner.99
Secondly, the inter-generational equity requires balancing short-term benefits with long-term sustainability of natural resources, ensuring their availability for future generations while maintaining ecosystem health and integrity. However, legal scholars have raised particular concerns about the potential disqualification of the CHM principle under a benefit-sharing regime, as it may prioritize short-term benefits over long-term sustainability and equitable access.100 Particularly speaking, the substantiation of the sustainable equity and especially Inter-generational justice paradigms may be jeopardized if the MGRs benefits are exploited in the interim without considering the long-term sustainability of these resources. It is imperative to achieve equilibrium between the utilization of MGRs for present benefits and guaranteeing their continued availability for future generations which requires adopting conservation measures, promoting responsible practices, and mitigating negative impacts on marine ecosystems to preserve the integrity of MGRs.101
The equitable benefit-sharing mechanism outlined in the context of the BBNJ Agreement presents a significant step towards enhancing equity and sustainability in the governance of MGRs. As indicated in previous parts of this article, Part II of the Agreement has thoroughly developed a fair and equitable sharing regime concerning monetary and non-monetary benefits, ranging from DSI, transfer of marine technology, and capacity building to preservation and conservation of biodiversity.102 However, there still remain a set of unanswered questions about what constitutes the definition of a fair and equitable benefit-sharing mechanism, how to ensure that transparency requirements are met, and how to address imbalances in the distribution of monetary and, particularly, non-monetary benefits among all the stakeholders. Additionally, the ambiguities surrounding the definition of marine scientific research in the UNCLOS and more specifically the BBNJ Agreement,103 along with the uncertainties associated with sharing research results and technology transfer, may lead to acknowledge the necessity of striking a balance between the rights, freedoms, as well as responsibilities concerning marine scientific research in ABNJ.104 A future COP meeting should go deeper into these topics.
Furthermore, after carefully examining the BBNJ Agreement, it can be argued that a comprehensive balance between the benefit-sharing requirements and the more futuristic and anthropological components drawn from the CHM concept has not been achieved by the benefit-sharing mechanism set forth in the Agreement, especially where the sustainable equity components are concerned. One could therefore argue that the BBNJ Agreement has only partially captured these elements with regard to the question of how the paradigm shift towards a more practical benefit-sharing approach affects the sustainability paradigm and most notably, the two concepts of inter-generational equity and intra-generational equity. Such an approach towards the sustainability paradigm would hinder the BBNJ Agreement’s ability to achieve its objectives and fully capitalize on the well-acknowledged CHM components.
In order to remedy the existing loophole in the BBNJ Agreement’s framework concerning the incorporation of sustainable equity paradigm and its component parts, it is imperative to envision more robust institutional safeguards for inter-generational and intra-generational equity within the BBNJ benefit-sharing mechanisms. Such safeguards could be ranged from institutional mechanisms to envisaging more focused capacity building activities and knowledge and technology transfer mechanisms with a view to equitable implementation of the BBNJ agreement mostly in line with the common heritage of mankind and sustainable equity requirements. These robust safeguards must be taken into consideration in order to advance sustainable development and address inequalities in access to MGR resources, while ensuring the equitable outcomes for the right holders from present and future generations. Such institutional mechanisms could integrate governance, policy, and legal frameworks to monitor and assess the effects of benefit-sharing arrangements on future generations’ access to MGRs. In addition and along the same lines, more focused planning to encourage current and future generations’ engagement in the sustainable MGRs management would help guarantee that inter-generational equity concerns are sufficiently addressed and not overlooked.105
Although the CHM concept has not been implemented as envisaged by international law, further development of the CHM concept has been prompted by the recent advancements concerning the regulation of the MGRs in ABNJ and generally sustainable management of the oceans. A proper determination of the CHM concept, going beyond merely equitable sharing of benefits along with its constituent elements pertaining to intra-generational and inter-generational equity, can also promote transparency and accountability in the utilization of MGRs by ensuring that parties fulfil their obligations under the agreement and contribute to the sustainable management of marine biodiversity. Over and beyond, a comprehensive legal framework containing proper identification of the futuristic principles of international environmental law106 emanating from the CHM concept entails ensuring comprehensive management of the shared resources and their transparent regulatory procedures, while emphasizing the governments’ adherence to their environmental obligations to guarantee both distributive and conservation perspectives.
In navigating the transition from the CHM principle to a benefit-sharing approach in any future negotiations on MGRs, policymakers and stakeholders must strive to uphold the core values and principles enshrined in the CHM framework. To put it another way, the CHM constitutes the last essential component of the entire system that may connect all the essential elements pertaining to the conservation and sustainable use of marine biodiversity in ABNJ in a coherent manner. Through prioritizing equity, sustainability, transparency, and ocean governance in all future benefit-sharing mechanisms, the international community as a result will be able to establish a governance regime that upholds the spirit of shared ownership embedded in the CHM principle while promoting responsible and equitable utilization of marine genetic resources for the benefit of all of the humanity.
Conclusion
It is now more evident than ever that unsustainable and irresponsible use of marine resources as well as harmful human activities result in unsustainable management of these resources, which lead to serious environmental consequences that have negative impact on present and future generations. In recent years, the international community attempted to regulate conservation and sustainable use of marine biological diversity in ABNJ by creating a legally binding instrument, known as the BBNJ Agreement, in an effort to address the existing uncertainties in the legal framework applicable to marine biodiversity, in particular MGRs. Considering the long-standing ideological discrepancies between the global north and south, the results of the BBNJ negotiation process might be viewed as a first step toward developing countries’ success in persuading technologically advanced States to acquiesce to a legally binding instrument governing the unconstrained MGR-related activities in ABNJ.
The present article looked at the legal ramifications of applying the CHM concept to MGRs in ABNJ and sought to shed light on the international biodiversity law regime that governs marine biological diversity. This article argued for the inclusion of CHM on the basis of legal, policy and justice grounds and further underscored that the CHM concept is the final essential component of the entire framework that connects all legal aspects surrounding the comprehensive conservation and sustainable use of MGRs as invaluable marine common resources. As suggested by this article, one of the most essential elements of the CHM concept is the fair and equitable access and benefit-sharing regime, which has been thoroughly elaborated in the BBNJ Agreement. A careful analysis of the access and benefit-sharing regime over time and in light of international biodiversity law indicates that tremendous efforts have been made to shift away from the CHM toward a more pragmatic approach that thoroughly emphasizes the benefit-sharing aspect. In such an analysis, a pragmatic benefit-sharing regime has been the focus of the discussions, and the main question surrounds whether the BBNJ Agreement has sufficiently addressed essential components of the CHM principle notably sustainability paradigm and intergenerational justice or it has just confined itself to a more pragmatic access and benefit-sharing regime?
According to the findings of the research, the CHM concept goes beyond merely sharing of benefits and represents intra-generational equity and its distributive element among present generations. It could therefore be argued that the BBNJ Agreement has only partially captured these elements with regard to the question of how the paradigm shift towards a more practical benefit-sharing approach affects the sustainability paradigm and most notably, the two concepts of inter-generational equity and intra-generational equity. Such an approach towards the sustainability paradigm would hinder the BBNJ Agreement’s ability to achieve its objectives and fully capitalize on the well-acknowledged CHM components.
In order to remedy the existing loophole in the BBNJ Agreement’s framework concerning the incorporation of sustainable equity paradigm and its components, it is imperative to envision more robust institutional safeguards for inter-generational and intra-generational equity within the BBNJ benefit-sharing mechanisms including more focused capacity building activities and knowledge and technology transfer safeguards towards the implementation of the BBNJ Agreement with a view to equitable implementation of the BBNJ Agreement in line with the common heritage of mankind and sustainable equity requirements. The article concludes that proper determination of the CHM principle to be applied on MGRs in ABNJ, along with its constituent elements including the intra-generational and inter-generational equity principles is necessary in the implementation phase of the agreement. This guarantees that the newly adopted legally binding instrument on conservation and sustainable use of marine biological diversity in ABNJ would create a reasonable, comprehensive, and cohesive balance between distributive and conservation approaches to marine genetic resources and serve the legitimate interests of present and future generations.
This revolutionary approach also entails ensuring comprehensive management and strengthening of transparent regulatory procedures and processes, as well as ensuring governments’ adherence to their environmental responsibilities to guarantee both distributive and conservation perspectives. As a result, one can contend that a notion of shared ownership and stewardship is necessary for the sustainable management of MGRs and underscores the significance of acknowledging collective responsibility in preserving safeguarding and utilizing these resources for the benefit of humankind as a whole. Such a comprehensive approach while functioning as a guiding principle to resolve the contested notion of legal status of MGRs, can be a unique opportunity to develop international legal and normative mechanism that promotes sustainable development and inter-generational equity, provide equitable access to the results of utilization of MGRs and paves the way towards realizing the disregarded notion of a just and equitable economic order as envisaged by the BBNJ Agreement in its Preamble.107
Declarations
Conflict of interest
The authors declare no competing interests.
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