How to Make Benefit-Sharing Possible: The Absence of a Disclosure of Origin System Under the BBNJ Agreement and the Way Forward

Abstract

The entry into force of the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement marks the institutionalization of benefit-sharing for marine genetic resources from the high seas. However, the Agreement fails to establish an obligation to disclose the origin of such resources, constituting a fundamental gap in the implementation chain of benefit-sharing. This absence not only makes it difficult to ascertain the origin of marine genetic resources and their digital sequence information, thereby depriving monetary benefit-sharing of a measurable basis and exacerbating information asymmetries that render non-monetary benefit-sharing a mere formality, but also fundamentally undermines the enforceability of the entire benefit-sharing mechanism. From a causal perspective, the lack of a disclosure of origin system stems both from the strategic bargaining dynamics between developed and developing countries and from a deeper jurisprudential tension between the equitable values underlying benefit-sharing and the private logic of intellectual property rights. The governance practices under the Convention on Biodiversity and its Nagoya Protocol, particularly the challenges arising from the absence of a disclosure of origin requirement, offer important lessons for the BBNJ Agreement. In light of these implementation difficulties, a multi-pronged approach should be pursued along three dimensions: technological traceability, institutional alignment, and multilateral governance. Specifically, technology should be leveraged to enable end-to-end traceability of resources; mandatory disclosure rules should be established through a combination of international and domestic legislative measures; and implementation should be reinforced through multilateral cooperation and industry self-regulation. These efforts would help effectively align the benefit-sharing system with the intellectual property regime, thereby realizing the goals of fairness, justice, and sustainable use of the marine commons that the BBNJ Agreement seeks to advance.