The Common Heritage of Humankind Principle and Marine Genetic Resources: A Critical Assessment of the BBNJ Process

Abstract

Abstract This article explores the negative implications of the biological diversity of areas beyond national jurisdiction (‘BBNJ’) process for the common heritage of humankind (‘CH’) principle, focusing on the discussions over its applicability to Marine Genetic Resources (‘MGRs’). This article argues that the CH under the United Nations Convention on the Law of the Sea for deep-sea mineral resources was neither necessary nor desirable for MGRs governance. An analysis of the BBNJ process demonstrates that CH’s exploitation bias is still persistent, which makes this principle politically controversial and prevents the principle from embracing sustainable development. Indeed, Article 7 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 stipulates the CH as a general principle of the new BBNJ regime. However, the BBNJ negotiations failed to articulate how the CH principle can contribute to managing the living resources, MGRs, in areas beyond national jurisdiction. This finding would cast doubt on the alleged potential of the CH principle to govern a broad range of subjects or resources other than deep-sea minerals.