Opening a new epoch of global ocean governance : a challenge for just benefit-sharing from the marine biodiversity of areas beyond national jurisdiction

Abstract: The new legal framework for marine biodiversity of areas beyond national jurisdiction (BBNJ) will be formally developed under the United Nations due to demands to fill a legal gap addressing BBNJ loss and justly sharing benefits from BBNJ. Since there is no global legal framework for BBNJ even though related agreements exist (i.e., United Nations Convention on the Law of the Sea and Convention on Biological Diversity), the safeguard has been required to conserve BBNJ. Simultaneously, unjust benefit-sharing from BBNJ is blamed, especially the utilization of marine genetic resources that possibly result in enormous benefits. Since such resources in the high seas and the seabed have been used on a first-come-first-serve basis, only some states have explored and exploited them yet all states have a legal right to access. Therefore, this situation leads the Global South’s complaints about unjust benefit-sharing from BBNJ. To change the current status, a discussion of the new framework of BBNJ is in place taking into account the existing agreements. The new agreement is expected to contribute to achieving Sustainable Development Goals, especially Goal 14. Aiming to examine how the new framework will be achieved with a focus on the demand for more justly sharing benefits from BBNJ, this research employed two stages of reviewing the discussion. In the first stage, I compare norms of the existing global agreements, which affect on the discussion of just benefit-sharing in the new agreement through regime theory. I scrutinize the norms and their formation process by a constructivist approach. In the second stage, I focus the environmental justice context with employing the three dimensions of justice that Schlosberg (2004 & 2007) propose. Through document analysis from the latest discussion, I identify the expected just benefit-sharing in the new instrument. Although the first-come-first-serve basis has been applied BBNJ, norms could be changed by technological developments and social circumstance, and then they lead to change regimes. The lessons learned from the existing agreements and the current discussion from the view of justice showed that consensus and sufficient participation to the new agreement would be one of the keys to achieving the just benefit-sharing. While the pressures from high-levels may push forward the negotiation, a satisfactory agreement is essential for effective implementation of the new agreement. Intellectual property rights differentiate this issue from other commons. Observing the intergovernmental conference and other external pressures will determine specific factors for the achievement of just benefit-sharing.