Introduction: The Biotechnological Gap in the Law of the Sea

The high seas have long been understood as a space in which no State may lawfully assert sovereignty, yet the biological wealth contained within them remained comparatively under-regulated. Marine genetic resources (MGRs) found in areas beyond national jurisdiction (ABNJ) occupy a particularly complex position because they combine the scientific and commercial value of genetic material with a maritime legal order historically structured around freedom of navigation, fishing, marine scientific research, and other uses of the high seas.

The United Nations Convention on the Law of the Sea (UNCLOS), adopted in 1982, established the principal legal framework for the oceans but did not expressly create a comprehensive regime for the collection, utilization, commercialization, or benefit sharing of marine genetic resources located beyond national jurisdiction. The Convention was negotiated before the contemporary development of marine biotechnology, genomic sequencing, digital sequence information (DSI), and sophisticated bioprospecting techniques. Consequently, the relationship between marine scientific research, commercial exploitation, intellectual property, and equitable benefit sharing remained uncertain.

This regulatory gap became increasingly significant as scientific advances demonstrated that microorganisms, invertebrates, algae, and other marine organisms may contain genetic and biochemical properties with substantial pharmaceutical, industrial, agricultural, cosmetic, and technological applications. The economic value of a marine organism may therefore lie not in harvesting the organism as a commodity, but in identifying, sequencing, reproducing, modifying, or utilizing particular genetic or biochemical characteristics.

The adoption of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, commonly known as the BBNJ Agreement, on 19 June 2023 marked a major development in this field. The Agreement entered into force on 17 January 2026 and became the third implementing agreement to UNCLOS. Among its four principal substantive pillars, the first specifically addresses marine genetic resources, including questions concerning the fair and equitable sharing of benefits. (United Nations)

The BBNJ Agreement represents neither a simple extension of the common-heritage regime applicable to the Area nor an unrestricted continuation of the traditional freedom-of-the-high-seas model. Instead, it establishes a specialized regime combining access, notification, transparency, scientific cooperation, capacity building, technology transfer, data sharing, and monetary and non-monetary benefit sharing.

This article examines the legal architecture governing MGRs under the BBNJ Agreement. It first considers the unresolved status of MGRs under the traditional law of the sea, then analyzes the substantive and procedural obligations established by Part II of the Agreement. It subsequently examines digital sequence information, intellectual property, traditional knowledge, institutional mechanisms, enforcement, dispute settlement, and the relationship between the BBNJ regime and other international legal instruments. Finally, it evaluates whether the Agreement has successfully reconciled the competing principles of freedom of the high seas, equity, conservation, scientific freedom, and common interests.

1. What Is the Legal Status of Marine Genetic Resources in International Waters?

The legal status of marine genetic resources in areas beyond national jurisdiction has historically been one of the most difficult questions in contemporary international ocean law.

ABNJ comprise both the high seas and the Area. The distinction is fundamental. The Area and its mineral resources are governed by Part XI of UNCLOS and are subject to the principle of the common heritage of mankind. By contrast, the high seas are governed principally by Part VII of UNCLOS and are characterized by freedoms enjoyed by all States.

This distinction created an important conceptual problem for MGRs.

Marine genetic resources may be physically located in the water column, on the seabed, within marine organisms, or associated with ecosystems extending across different maritime jurisdictions. Their legal treatment therefore cannot automatically be derived from the regime applicable to mineral resources of the Area.

1.1 Freedom of the High Seas

Article 87 of UNCLOS recognizes several freedoms of the high seas, including freedom of navigation, overflight, fishing, construction of installations, laying of submarine cables and pipelines, and marine scientific research, subject to the conditions established by international law.

The traditional high-seas regime is therefore not based upon exclusive ownership. Rather, it establishes a system in which States may exercise recognized freedoms while respecting the interests and rights of other States.

This creates an important distinction between freedom of access and freedom of appropriation.

The fact that a State or private entity may lawfully conduct scientific research in the high seas does not necessarily mean that the entity acquires an unrestricted proprietary claim over all subsequent scientific, technological, or commercial benefits generated from biological material collected during that research.

The BBNJ Agreement does not expressly characterize MGRs as the property of States or as resources subject to national sovereignty. Instead, it creates a regulatory framework governing activities involving such resources.

This is one of the most important conceptual characteristics of the Agreement: the BBNJ regime largely regulates activities and benefit flows rather than resolving the underlying question of ownership through a conventional property-law model.

2. Common Heritage Versus Freedom of the Seas

The central political and doctrinal conflict surrounding MGRs has traditionally been expressed through two competing approaches.

The first approach emphasizes the freedom of the high seas. According to this perspective, marine scientific research and access to biological material in international waters should remain open to all States, subject to environmental and conservation obligations. Imposing extensive benefit-sharing obligations could potentially discourage research and innovation.

The second approach emphasizes equity and common interests. Developing States have argued that the technological and financial capacity to undertake deep-sea exploration is highly concentrated among a relatively small number of States, corporations, and research institutions. Without benefit sharing, the legal freedom to access MGRs could translate into a practical system in which technologically advanced actors capture most of the economic value.

The resulting asymmetry is particularly important because the initial act of collecting a microorganism may have relatively limited economic value, while subsequent genomic research, patenting, product development, licensing, and commercialization may generate substantial profits.

The BBNJ Agreement represents an attempt to move beyond this binary debate. It does not simply declare all MGRs to be the common heritage of mankind. Nor does it leave their utilization entirely to the traditional freedom-of-the-high-seas regime.

Instead, it establishes a system of fair and equitable benefit sharing linked to conservation and sustainable use.

3. The BBNJ Agreement as a Specialized Regime

Part II of the BBNJ Agreement is dedicated to:

Marine Genetic Resources, Including Questions on the Sharing of Benefits

The regime applies to activities concerning MGRs and DSI on MGRs of ABNJ. Article 10 establishes the temporal and substantive scope of application. As a general rule, the Agreement applies to activities concerning MGRs and DSI collected or generated after the Agreement enters into force for the relevant Party. Parties may, however, make the specific exception permitted by Article 10 concerning utilization of resources collected or generated before entry into force. (United Nations)

Article 10 also excludes fishing regulated under relevant international law and fishing-related activities, as well as fish and other living marine resources taken through fishing, except where they fall within the concept of utilization regulated under Part II. Military activities are similarly treated separately. (United Nations)

This is significant because it prevents the BBNJ regime from automatically converting ordinary fishing activities into MGR utilization.

4. The Principle of Fair and Equitable Benefit Sharing

The core legal obligation appears in Article 14.

The Agreement provides that benefits arising from activities concerning MGRs and DSI on MGRs of ABNJ shall be shared in a fair and equitable manner and shall contribute to the conservation and sustainable use of marine biological diversity of ABNJ. (Lovdata)

This formulation is legally significant for several reasons.

First, benefit sharing is not presented merely as an optional act of international solidarity. It is incorporated into the legal architecture of the Agreement.

Second, the purpose of benefit sharing is not simply redistribution. The Agreement expressly connects benefits with the broader objectives of conservation and sustainable use.

Third, the term "fair and equitable" provides flexibility. Rather than establishing a single rigid formula applicable to every scientific or commercial activity, the Agreement establishes a framework under which the Conference of the Parties can develop modalities and mechanisms appropriate to evolving technological and commercial conditions.

5. Monetary and Non-Monetary Benefits

One of the most important features of the BBNJ system is its recognition that benefits cannot be understood exclusively in monetary terms.

Non-monetary benefits include, among other things:

• access to samples and sample collections;

• access to scientific information;

• information contained in notifications;

• open and accessible scientific data;

• capacity building;

• scientific cooperation;

• participation in research programmes;

• technology transfer;

• cooperation between research institutions;

• enhanced participation of scientists from developing States; and

• other benefits determined by the Conference of the Parties.

The Agreement also requires relevant MGRs and DSI subject to utilization to be deposited in publicly accessible repositories and databases, together with the relevant standardized batch identifiers, within the timeframe specified by the Agreement. (Eur-Lex)

This architecture reflects an important understanding of modern biotechnology: scientific knowledge itself is a benefit.

For developing States, access to samples, sequencing data, research infrastructure, scientific networks, training, and technology may sometimes be more valuable than a direct financial payment.

6. Comparative Legal Architecture

The comparison demonstrates that the BBNJ Agreement occupies an intermediate position.

It is more centralized than the traditional high-seas regime but less territorially sovereign than the Nagoya model. It also differs fundamentally from the Area's mineral regime because the BBNJ Agreement does not simply classify MGRs as mineral resources belonging to a common heritage.

7. Access to Marine Genetic Resources

The BBNJ Agreement does not establish a conventional licensing system in which an international authority grants exclusive exploration concessions.

Instead, it establishes a system centered on notification, transparency, identification, traceability, and subsequent benefit sharing.

Article 12 requires information concerning planned in-situ collection of MGRs in ABNJ to be notified to the Clearing-House Mechanism generally six months, or as early as possible, before collection. The notification includes information concerning the nature and objectives of the collection, research subject matter, geographic area, methods, timing, and relevant institutions. (Lovdata)

This approach preserves the scientific freedom to conduct research while creating an international information trail.

8. The BBNJ Standardized Batch Identifier

One of the most innovative features of the Agreement is the creation of a “BBNJ” standardized batch identifier.

Following the relevant notification, the Clearing-House Mechanism is designed to generate a standardized identifier that can accompany information relating to the resource throughout its subsequent scientific and commercial life. (wetten.overheid.nl)

The importance of this mechanism becomes apparent when considering the life cycle of an MGR:

Collection → Sample Storage → Genetic Sequencing → Scientific Research → Publication → Patent → Product Development → Commercialization

Without a traceability mechanism, it can become extremely difficult to determine whether a commercially valuable product is derived from a marine genetic resource collected from ABNJ.

The identifier therefore has the potential to create a chain of provenance.

It can connect:

1. the original collection;

2. the geographical location;

3. the sample;

4. DSI;

5. scientific publications;

6. patents;

7. commercial products; and

8. benefit-sharing obligations.

This is particularly important in an era in which biological resources can be transformed into digital information and subsequently used without the physical sample ever moving again.

9. Digital Sequence Information: The New Frontier

The emergence of digital sequence information represents perhaps the most difficult technological issue for the BBNJ regime.

Traditional genetic-resource regulation was developed around physical material. A scientist collected a biological sample, transported it to a laboratory, analyzed it, and potentially developed a commercial application.

Modern biotechnology can break this chain.

A sample can be sequenced once, after which the resulting genetic information can be uploaded to a public database and downloaded by researchers anywhere in the world.

The original physical organism may never again be accessed.

This creates a fundamental regulatory question:

Can benefit-sharing obligations follow genetic information after the physical resource has disappeared from the chain of custody?

The BBNJ Agreement answers this question, at least in principle, by expressly incorporating DSI on MGRs into the Part II framework.

The Agreement therefore represents an important shift from resource-based regulation toward resource-and-information-based regulation.

10. The Problem of Digital Traceability

DSI creates several enforcement difficulties.

Suppose a research institution collects a microorganism from ABNJ and sequences its genome. The sequence is uploaded to an international database without the original physical sample being transferred.

Years later, another laboratory downloads the sequence, identifies a commercially valuable enzyme, modifies the relevant gene, and develops a pharmaceutical or industrial product.

At what point does utilization occur?

Who must provide notification?

Which State is responsible?

How can the original sequence be identified?

How can the economic contribution of the original MGR be calculated?

These questions demonstrate why the BBNJ standardized batch identifier is potentially crucial.

The Agreement's monitoring system is intended to establish a continuous informational connection between collection and subsequent utilization.

The Preparatory Commission's work on the Clearing-House Mechanism has specifically recognized the need for globally unique and persistent identifiers capable of supporting information about research, publications, patents, utilization, and commercialization. (United Nations)

11. Traditional Knowledge and Indigenous Peoples

The BBNJ Agreement also recognizes the relationship between MGRs and traditional knowledge.

Article 13 addresses traditional knowledge associated with MGRs in ABNJ held by Indigenous Peoples and local communities.

Parties are required to take appropriate legislative, administrative, or policy measures with the aim of ensuring that such traditional knowledge is accessed only with the free, prior and informed consent or approval and involvement of the relevant Indigenous Peoples and local communities. Access and use are to occur on mutually agreed terms. (Lovdata)

This provision introduces an important human dimension into what might otherwise appear to be a technologically driven regulatory regime.

The significance lies not only in preventing unauthorized exploitation of knowledge, but also in recognizing that valuable information about marine biodiversity may exist outside conventional scientific institutions.

12. Intellectual Property Rights

Intellectual property presents another major tension.

Commercial utilization of MGRs may result in:

• patents;

• proprietary genetic technologies;

• pharmaceutical products;

• industrial enzymes;

• cosmetics;

• biotechnology applications;

• research tools; and

• other commercially valuable innovations.

The BBNJ Agreement does not abolish the patent system or establish a general prohibition on intellectual-property protection for inventions derived from MGRs.

Instead, it seeks to increase transparency regarding the origin and utilization of MGRs.

This creates an important distinction between ownership of an invention and responsibility arising from the utilization of a marine genetic resource.

A patent holder may therefore retain intellectual-property rights while simultaneously being subject to transparency and benefit-sharing rules arising from the underlying MGR activity.

The practical effectiveness of this approach will depend heavily on the integration of BBNJ information systems with national patent and regulatory systems.

13. Monitoring and Transparency

Article 16 establishes monitoring and transparency through three principal mechanisms:

1. notification to the Clearing-House Mechanism;

2. use of BBNJ standardized batch identifiers; and

3. reporting by Parties concerning implementation and benefit sharing.

Parties must periodically report to the Access and Benefit-Sharing Committee concerning implementation of Part II. (Nemzeti Jogszabálytár)

This represents a significant shift from the traditional model of ocean governance.

Historically, enforcement in the high seas has often depended on flag-State jurisdiction and sector-specific organizations.

The BBNJ model supplements that structure with information governance.

Instead of attempting to physically police every scientific expedition, the Agreement seeks to make the legal status and subsequent use of resources traceable through standardized information.

14. The Clearing-House Mechanism

The Clearing-House Mechanism is central to the functioning of the MGR regime.

It is intended to operate as an international information platform through which States and relevant actors can provide and access information concerning MGR activities.

Its functions include facilitating:

• pre-collection notifications;

• post-collection information;

• standardized batch identifiers;

• access to relevant scientific information;

• transparency concerning utilization;

• information concerning repositories and databases;

• monitoring; and

• benefit-sharing information.

The practical significance of the mechanism was demonstrated even before its full operationalization. In July 2026, Ireland submitted the first reported pre-collection notification under Article 12. Because the permanent Clearing-House Mechanism was not yet operational, the United Nations assigned an interim reference number, BBNJ-MGR-TEMP-2026-001. (United Nations)

This development is particularly important because it demonstrates that the MGR provisions are no longer merely prospective treaty obligations: implementation has begun.

15. The Access and Benefit-Sharing Committee

The Agreement establishes an Access and Benefit-Sharing Committee as a specialized institutional body.

The Committee has an important advisory and implementation-related function.

It may:

• receive and examine information;

• facilitate exchange of information;

• consider best practices;

• consider methodologies concerning benefit sharing;

• examine the use of DSI;

• consider data governance;

• exchange information with relevant international, regional, subregional and sectoral organizations; and

• make recommendations to the Conference of the Parties.

This institutional design is important because the legal and technological environment surrounding MGRs will evolve rapidly.

A treaty negotiated in 2023 cannot realistically anticipate every form of genetic engineering, sequencing technology, data architecture, or commercial biotechnology that may emerge during the coming decades.

The Committee therefore serves as part of the Agreement's adaptive governance architecture.

16. The Conference of the Parties

The Conference of the Parties (COP) is expected to play a decisive role in transforming the treaty's general obligations into operational rules.

Among the most important future questions are:

• how monetary benefits will be calculated;

• when monetary payments will arise;

• how commercialization will be treated;

• how DSI will be monitored;

• how databases will interact with the Clearing-House Mechanism;

• what reporting standards will apply;

• how benefits will be distributed;

• what indicators will measure equity;

• how compliance will be evaluated; and

• how new scientific technologies will be incorporated into the regime.

The first meeting of the COP is scheduled for 11–22 January 2027 at United Nations Headquarters in New York. (United Nations)

Accordingly, the BBNJ Agreement's legal architecture is now operational, but many of its most consequential practical rules will emerge through institutional implementation.

17. Monetary Benefit Sharing

The most politically sensitive component of the regime concerns monetary benefits.

The fundamental problem is determining when a payment should be triggered.

Several possible models exist.

17.1 Upfront Payments

A user could make a payment at the beginning of the research or collection process.

The advantage is administrative simplicity.

The disadvantage is that most MGRs have uncertain commercial value at the time of collection.

17.2 Milestone Payments

Payments could arise when research reaches specified stages, such as:

• successful identification of a useful genetic property;

• patent application;

• patent grant;

• clinical development;

• regulatory approval; or

• commercialization.

This model better reflects the economic life cycle of biotechnology.

17.3 Revenue-Based Payments

A percentage of revenues generated from products utilizing MGRs could be directed to the BBNJ financial mechanism.

This approach more directly links payment to commercial success but creates substantial problems of accounting, causation, valuation, and enforcement.

17.4 Periodic or Tiered Contributions

Another possibility is a tiered model under which payments are determined according to indicators such as the scale of utilization or the aggregate level of relevant activities.

Such mechanisms could reduce the difficulty of tracing individual products to individual genetic resources.

The final operationalization of monetary benefit-sharing therefore represents one of the most consequential tasks for the COP.

18. Distribution of Benefits

Benefit sharing cannot be effective unless there is an institutional mechanism capable of receiving and distributing financial resources.

The BBNJ Agreement establishes a financial mechanism, including a special fund, within its broader institutional architecture.

The purpose is not simply to transfer money from one State to another.

The Agreement links financial benefits to:

• conservation;

• sustainable use;

• capacity building;

• developing States;

• scientific research;

• technology;

• institutional development; and

• participation in marine scientific activities.

This is especially important for landlocked developing States and developing States with limited marine research infrastructure.

The BBNJ framework therefore conceives benefit sharing as both redistributive and developmental.

19. Capacity Building and Technology Transfer

Financial payments alone cannot eliminate the technological inequality underlying the MGR debate.

A State may receive a financial benefit from marine biotechnology while remaining completely dependent upon foreign laboratories for:

• sampling;

• sequencing;

• bioinformatics;

• genomic analysis;

• biotechnology;

• patenting;

• pharmaceutical development; and

• commercialization.

For this reason, capacity building and transfer of marine technology are essential components of the BBNJ architecture.

The Agreement's broader framework specifically recognizes capacity building and marine technology transfer as one of its four major substantive pillars. (United Nations)

The long-term objective should therefore be to transform developing States from passive beneficiaries into active participants in marine biotechnology.

20. The Relationship with the Nagoya Protocol

The BBNJ regime is frequently compared with the Nagoya Protocol.

The comparison is understandable because both regimes address access to genetic resources and fair and equitable benefit sharing.

However, important differences exist.

The Nagoya Protocol primarily operates in a world of national jurisdiction.

A State can regulate access to genetic resources occurring within its territory and establish conditions for access.

ABNJ are fundamentally different.

No individual State possesses sovereign ownership over the high seas.

Consequently, the BBNJ Agreement cannot simply reproduce the bilateral consent model of the Nagoya Protocol.

Instead, it creates a multilateral access and benefit-sharing architecture.

This distinction is one of the most important contributions of the BBNJ Agreement to international environmental law.

21. Relationship with the Common-Heritage Regime of the Area

The BBNJ Agreement must also be distinguished from the common-heritage regime applicable to mineral resources of the Area.

Under UNCLOS Part XI, mineral resources of the Area are governed by a specialized institutional system involving the International Seabed Authority.

The BBNJ Agreement does not transfer MGR governance to the International Seabed Authority.

This separation reflects the different legal histories and economic characteristics of marine genetic resources and seabed minerals.

Nevertheless, overlap may arise where MGRs are collected from organisms associated with seabed ecosystems in the Area.

This creates difficult questions regarding:

• competence;

• institutional coordination;

• environmental regulation;

• scientific research;

• data sharing; and

• the relationship between BBNJ institutions and existing sectoral bodies.

22. The Role of International Jurisprudence

International jurisprudence has not yet produced a definitive ruling on the legal status of MGRs under the BBNJ Agreement.

This is unsurprising because the Agreement entered into force only in 2026.

Nevertheless, jurisprudence concerning the law of the sea provides important principles.

The North Sea Continental Shelf Cases emphasized the relevance of equitable considerations in maritime delimitation.

The South China Sea Arbitration clarified several aspects of the relationship between UNCLOS rights and marine environmental obligations.

The Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area Advisory Opinion of the Seabed Disputes Chamber of ITLOS emphasized the significance of due diligence and environmental responsibility in activities occurring beyond national jurisdiction.

These decisions do not directly resolve the MGR question.

Their importance is methodological.

They demonstrate that the law of the sea increasingly treats ocean freedoms as rights exercised within a broader framework of international responsibilities.

The BBNJ Agreement builds upon this evolution by transforming transparency, environmental responsibility, cooperation, and equitable benefit sharing into more specific treaty obligations.

23. The Principle of Due Diligence

One of the most important principles emerging from international environmental jurisprudence is due diligence.

States increasingly have obligations not merely to refrain from directly causing harm but also to take reasonable measures to prevent activities under their jurisdiction from causing environmental damage.

This principle is particularly relevant to MGR activities.

A State may not itself conduct an expedition. A private company or university may conduct the collection.

Nevertheless, if the entity falls under the jurisdiction or control of a Party, the State may be required to establish appropriate domestic legislative, administrative, and policy measures.

The BBNJ Agreement therefore operates substantially through national implementation.

International obligations must be translated into:

• domestic legislation;

• research regulations;

• institutional procedures;

• data requirements;

• reporting systems;

• patent-related disclosures where appropriate;

• scientific-repository rules; and

• enforcement mechanisms.

24. Enforcement Challenges

The greatest weakness of the MGR regime may not lie in its substantive principles but in enforcement.

Several problems are immediately apparent.

24.1 Identification

A genetic sequence may circulate through multiple databases without a clear indication of its origin.

24.2 Attribution

A commercial product may contain thousands of genetic components, making it difficult to determine which MGR contributed to its commercial value.

24.3 Jurisdiction

A sample may be collected by a vessel registered in one State, funded by an institution in another State, analyzed in a third State, sequenced in a fourth, and commercialized by a corporation incorporated in a fifth.

24.4 Corporate Structures

Multinational corporations may distribute research and development activities across multiple jurisdictions.

24.5 Confidentiality

Commercial actors may resist disclosure of information considered commercially sensitive.

24.6 DSI

Digital information can be replicated indefinitely at negligible cost.

These factors make conventional enforcement mechanisms inadequate on their own.

25. The Central Problem of Causation

Perhaps the hardest legal issue will be causal attribution.

Suppose a pharmaceutical company develops a drug after studying a marine microorganism.

The original organism provides one biochemical property, but the final product is created through:

• genetic modification;

• synthetic biology;

• chemical engineering;

• laboratory optimization;

• clinical research; and

• manufacturing technology.

What proportion of the product's value should be attributed to the original MGR?

International law rarely provides simple answers to such questions.

The BBNJ system therefore needs flexible rules capable of avoiding an impossible demand for precise economic attribution.

A workable regime may ultimately need to focus less on determining the exact percentage of a product's value attributable to a particular organism and more on establishing predictable obligations triggered by defined forms of utilization.

26. The High Seas as a Data Governance Space

The BBNJ Agreement may ultimately prove to be as important for data governance as for biological-resource governance.

Marine genetic resources increasingly generate digital information.

Once genetic information becomes digital, traditional concepts of physical possession become less meaningful.

A database can be copied.

A sequence can be transmitted instantaneously.

A genetic algorithm can identify functional properties without further physical sampling.

Consequently, future ocean governance will increasingly involve:

• metadata;

• digital identifiers;

• databases;

• provenance;

• interoperability;

• data access;

• scientific repositories;

• patent databases; and

• digital monitoring.

The BBNJ standardized batch identifier can therefore be understood as a legal bridge between physical biological resources and digital information systems.

27. The BBNJ Agreement and Scientific Freedom

An important criticism of benefit-sharing regimes is that excessive regulation could discourage marine scientific research.

This concern should not be underestimated.

Deep-sea research is already extremely expensive.

Research vessels, remotely operated vehicles, autonomous underwater vehicles, laboratories, sequencing facilities, and specialized personnel require significant investment.

If researchers face unpredictable legal obligations, they may avoid collecting samples from ABNJ.

The BBNJ Agreement attempts to avoid this result by relying heavily on notification and transparency rather than prior international licensing.

This is an important regulatory choice.

The system is designed to make research traceable rather than impossible.

28. Developing States and the Equity Dimension

The political legitimacy of the BBNJ Agreement depends heavily on whether developing States perceive it as producing meaningful benefits.

Historically, advanced marine biotechnology has been concentrated in technologically capable States and private institutions.

This creates an asymmetry:

Access may be formally open to everyone while meaningful utilization remains practically available only to some.

The BBNJ Agreement attempts to address this structural inequality through:

• capacity building;

• technology transfer;

• scientific cooperation;

• access to samples;

• open data;

• research partnerships;

• training;

• financial benefits; and

• institutional participation.

This approach is particularly significant for small island developing States, least developed countries, landlocked developing countries, geographically disadvantaged States, and other developing States identified in the Agreement's institutional architecture. (United Nations)

29. The Special Position of Small Island Developing States

Small island developing States have a particularly strong interest in the success of the BBNJ Agreement.

Many such States possess extensive maritime interests but limited financial and technological capacity to undertake deep-ocean research.

Their geographical relationship with the ocean gives them a direct stake in:

• marine conservation;

• ocean science;

• marine biotechnology;

• climate resilience;

• genetic resources; and

• equitable international governance.

The BBNJ Agreement's recognition of their special circumstances therefore has both legal and political importance.

30. The First Implementation Phase: 2026–2027

The entry into force of the Agreement on 17 January 2026 marked the beginning of a new phase.

The current implementation period is particularly important because the treaty's institutional infrastructure is still being developed.

The United Nations has indicated that, pending full commencement of the BBNJ Secretariat and operationalization of the Clearing-House Mechanism, relevant notifications are being handled provisionally by the Division for Ocean Affairs and the Law of the Sea. (United Nations)

The first reported pre-collection notification in July 2026 demonstrates that Parties are beginning to operationalize the MGR notification regime. (United Nations)

At the same time, preparatory work has continued on:

• the Clearing-House Mechanism;

• financial arrangements;

• the special fund;

• reporting;

• institutional structures; and

• technical standards.

The first COP meeting in January 2027 will therefore be a critical milestone. (United Nations)

31. Key Legal Uncertainties

Despite its significance, the BBNJ Agreement does not eliminate every legal uncertainty.

At least six questions remain particularly important.

First: What precisely constitutes “utilization”?

The boundary between scientific research and utilization may be difficult to determine.

Second: How will DSI be treated?

The Agreement recognizes DSI, but the practical architecture for tracking its global circulation remains under development.

Third: How will monetary benefits be calculated?

The treaty establishes the obligation of fair and equitable benefit sharing, but detailed modalities require further institutional development.

Fourth: How will patents be linked to MGRs?

A robust connection between the BBNJ identifier and patent systems will be essential.

Fifth: How will non-Part actors be addressed?

Companies and research institutions may operate across jurisdictions involving Parties and non-Part States.

Sixth: How will BBNJ interact with sectoral organizations?

The ocean is governed through numerous regional and sectoral instruments. Avoiding conflicting obligations will be essential.

32. Non-Part States and Universal Participation

The effectiveness of the Agreement depends heavily on broad participation.

Marine genetic resources are inherently transboundary in their scientific and commercial implications.

If major research or biotechnology States remain outside the system, regulatory gaps could persist.

The United Nations has expressly emphasized that the objective of the Agreement will be most effectively achieved through universal participation. (United Nations)

This creates a structural challenge.

A multilateral benefit-sharing system works best when the major actors responsible for:

• collecting;

• sequencing;

• researching;

• patenting; and

• commercializing

MGRs participate in the same regulatory system.

33. Dispute Settlement

The BBNJ Agreement is embedded within the broader dispute-settlement architecture of UNCLOS.

This is significant because disputes involving MGRs may involve several interconnected questions:

• interpretation of BBNJ obligations;

• marine scientific research;

• environmental obligations;

• jurisdiction;

• access to information;

• compliance with notification requirements;

• interpretation of benefit-sharing obligations; and

• interaction with other treaties.

The availability of international dispute settlement provides a mechanism for resolving disagreements concerning the interpretation and application of the Agreement.

However, litigation should not be viewed as the primary method of governance.

Given the technical nature of MGR disputes, institutional cooperation, expert committees, scientific bodies, and standardized information systems will likely be more important in day-to-day implementation.

34. A Functional Interpretation of the BBNJ Regime

The BBNJ Agreement can ultimately be understood through four functional principles.

34.1 Access

Scientists and institutions must be able to undertake legitimate marine research.

34.2 Transparency

Activities must be visible through standardized notification and data systems.

34.3 Equity

Benefits arising from utilization must be shared fairly and equitably.

34.4 Conservation

The ultimate purpose of benefit sharing is connected to the conservation and sustainable use of marine biological diversity.

These principles create a regulatory chain:

Access → Notification → Identification → Research → Utilization → Commercialization → Benefit Sharing → Conservation

This chain represents the core architecture of the BBNJ MGR regime.

35. Critical Assessment

The BBNJ Agreement is a major advancement, but its success should not be assumed.

Its greatest strength is that it recognizes the realities of twenty-first-century biotechnology.

Marine genetic resources are no longer merely physical biological specimens.

They are sources of:

• genetic information;

• biochemical knowledge;

• digital sequence information;

• scientific discoveries;

• patents;

• commercial technologies; and

• pharmaceutical and industrial products.

The Agreement responds to this reality by combining physical-resource governance with digital traceability.

Its second major strength is its attempt to reconcile apparently competing principles.

It does not abolish freedom of scientific research.

It does not transform all ABNJ resources into property of an international organization.

Instead, it introduces obligations concerning transparency and benefit sharing while preserving a broad framework for scientific access.

Its principal weakness, however, is implementation.

The effectiveness of the system will depend on whether States establish sufficiently strong domestic legislation and whether the international institutions develop reliable digital infrastructure.

A treaty cannot track genetic resources if the information necessary for tracking them is never reported.

36. Toward a More Effective MGR Governance Model

Several reforms could strengthen implementation.

36.1 Interoperable Databases

The BBNJ Clearing-House Mechanism should be interoperable with:

• GenBank;

• EMBL-EBI;

• DDBJ;

• patent databases;

• scientific repositories;

• biobanks; and

• other relevant biodiversity information systems.

36.2 Persistent Identifiers

The BBNJ identifier should remain associated with the resource and relevant DSI throughout its scientific and commercial life.

36.3 Patent Integration

National and international patent systems should develop mechanisms allowing applicants to disclose or verify the origin and BBNJ identifier of relevant MGR-derived material where appropriate.

36.4 Commercial Traceability

Products developed through utilization should be traceable to relevant BBNJ records.

36.5 Strong National Legislation

Parties should establish clear domestic rules applicable to universities, companies, research institutes, vessels, and other actors under their jurisdiction.

36.6 Scientific Cooperation

Developing States should not merely receive financial benefits; they should gain access to research infrastructure and scientific expertise.

37. Toward a New Concept of Ocean Equity

The BBNJ Agreement represents a broader transformation in international ocean law.

Traditional ocean law focused primarily on:

• territory;

• navigation;

• fisheries;

• military uses;

• maritime boundaries; and

• seabed resources.

The emerging law of marine biodiversity adds another dimension:

knowledge.

The economically valuable component of the ocean may increasingly be information extracted from biological systems rather than the physical organism itself.

This means that future ocean governance will need to address not only who may enter a maritime space but also:

• who may collect;

• who may sequence;

• who may access data;

• who may patent;

• who may commercialize;

• who benefits; and

• who bears responsibility for conservation.

The BBNJ Agreement is therefore not merely an environmental treaty.

It is also an emerging framework for international governance of marine biological knowledge.

Conclusion

The BBNJ Agreement fundamentally changes the legal environment surrounding marine genetic resources in areas beyond national jurisdiction.

Before the Agreement, the international legal framework offered no comprehensive regime capable of connecting marine scientific research, genetic resources, digital sequence information, commercialization, and benefit sharing. UNCLOS provided the foundational principles of high-seas freedom and marine scientific research, while Part XI established a distinct common-heritage regime for the mineral resources of the Area. Neither framework, however, was designed for the modern biotechnology economy.

The BBNJ Agreement fills an important part of this regulatory gap.

Its contribution does not lie in declaring that marine genetic resources are simply the property of the international community. Rather, it constructs a sophisticated regulatory system based on access, notification, transparency, traceability, scientific cooperation, capacity building, technology transfer, and fair and equitable benefit sharing.

The introduction of the BBNJ standardized batch identifier is particularly significant because it provides a potential bridge between the physical collection of marine organisms and the subsequent digital, scientific, and commercial life of their genetic information. The inclusion of DSI is equally important because it recognizes that modern biotechnology can separate genetic value from the physical biological sample.

Yet the ultimate success of the Agreement remains uncertain.

Its effectiveness will depend on implementation by States, participation by major research and biotechnology actors, the technical reliability of the Clearing-House Mechanism, integration with scientific and patent databases, and the development of workable monetary benefit-sharing modalities.

The first implementation period is already producing practical developments. The United Nations has reported the first pre-collection notification under Article 12, while preparatory work continues on the Clearing-House Mechanism and the financial architecture. (United Nations)

The first Conference of the Parties in January 2027 will consequently be a critical moment in determining whether the BBNJ Agreement evolves into an effective operational regime or remains dependent upon broad principles requiring substantial further development. (United Nations)

Ultimately, the BBNJ Agreement represents a significant movement away from a purely freedom-based conception of the high seas toward a model in which freedom is accompanied by responsibility, scientific access by transparency, utilization by benefit sharing, and exploitation by conservation obligations.

The deeper significance of the Agreement is therefore not simply that it regulates marine genetic resources. It establishes a new legal principle for the twenty-first-century ocean: the benefits generated from biological resources located beyond national jurisdiction should not be disconnected from the international community's shared interest in conserving the marine environment and ensuring equitable participation in ocean science and innovation.

The future development of this principle will determine whether the world's genetic wealth beyond national jurisdiction becomes another source of technological inequality—or a foundation for a more cooperative and equitable global ocean economy.

Selected References

1. United Nations, Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction, adopted 19 June 2023.

2. United Nations, Text of the BBNJ Agreement, Part II, Marine Genetic Resources, Including Questions on the Sharing of Benefits. (United Nations)

3. United Nations, BBNJ Agreement – Official Agreement Portal, including information concerning entry into force, institutional arrangements and implementation. (United Nations)

4. United Nations, Notification 2026-002: Pre-collection notification under Article 12(2), 16 July 2026. (United Nations)

5. United Nations, Notification 2026-001: Focal points for formal communications under the BBNJ Agreement, 10 February 2026. (United Nations)

6. United Nations, Preparatory Commission materials concerning operationalization of the Clearing-House Mechanism. (United Nations)

7. European Commission, Proposal concerning the approval of the BBNJ Agreement, including analysis of Article 12 and benefit-sharing provisions. (Eur-Lex)

8. United Nations Convention on the Law of the Sea, 1982.

9. Convention on Biological Diversity, 1992.

10. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, 2010.

11. International Tribunal for the Law of the Sea, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, 2011.

12. International Court of Justice, North Sea Continental Shelf Cases, Judgment, 1969.

13. International Court of Justice, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010.

14. Permanent Court of Arbitration, South China Sea Arbitration (Philippines v. China), Award, 2016.

15. United Nations, Status of the BBNJ Agreement, United Nations Treaty Collection. (United Nations Treaty Collection)

Official BBNJ text: United Nations — Text of the BBNJ Agreement

Official BBNJ implementation portal: United Nations — BBNJ Agreement