From norm to practice: post-agreement challenges and responses in the BBNJ marine genetic resource access and benefit-sharing regime

To build consensus, the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement extensively adopted open-ended, principled, and flexible provisions, while deferring discussions on certain contentious issues. This has left key legal questions unresolved after the adoption of the Agreement, ranging from the legal status of marine genetic resources in areas beyond national jurisdiction (ABNJ) to the specific rules, scope, and modalities for access and benefit-sharing, and even intellectual property protection. To address these issues, this article explores pathways for the future improvement of the ABNJ marine genetic resources governance system. Based on clarifying core disputes and assessing potential challenges, it proposes five specific directions: First, a stage-based interpretive approach under which freedom of marine scientific research guides the access stage and equitable benefit-sharing guides the commercialization stage; second, a tiered and classified access-management system based on access purposes and transformation risks, so as to balance research facilitation with regulatory intensity; third, the progressive inclusion of “derivatives” in the definition of marine genetic resources to expand the scope of benefit-sharing; fourth, a phased and diversified benefit-sharing mechanism to strengthen implementation capacity and broaden funding sources; and fifth, the alignment of the BBNJ mechanism with the WIPO Treaty, establishing a patent-information-transparency and benefit-tracking mechanism centered on the standardized batch identifier in the ABNJ context.