While 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 (BBNJ Agreement) has pioneered the establishment of a benefit-sharing regime for marine genetic resources (MGRs), persistent divergences between developing and developed countries have posed substantial challenges to its implementation. The current legal framework is overly schematic and insufficient to guide practice, leaving many issues unresolved. To explore the solutions for these issues, this article adopts a legal functionalist approach grounded in the principle that “form follows function”. First, this article categorizes the unresolved issues into four types: ambiguous terms in the Agreement, uncertain legal nature of benefit-sharing modalities, weak operability resulting from incomplete guiding rules, and inadequate monitoring rules. Second, it derives potential solutions from a legal functionalist perspective. This approach emphasizes the instrumental value or functionality of law. By focusing on facilitating the achievement of the Agreement’s intended functions and goals, this approach can help steer ongoing international rule-making activities and overcome negotiation deadlocks. Under such an approach, the core guiding principle for problem solving is to make rules operational by addressing conflicts, giving due regard to diverse concerns, and fostering broad consensus among negotiating parties. Finally, this article tentatively applies this approach to specific unresolved issues, including: adopting broader definitions of key terms; designing relatively light monetary benefit-sharing rules that combine mandatory and voluntary mechanisms; facilitating ex situ access through multilateral mechanisms; clearly delineating the respective scope of application of different technology transfer modalities; and strengthening supporting information disclosure and traceability rules. Concurrently, this article suggests that the design and implementation of rules should take into account the needs of marine scientific research, data confidentiality, financial and administrative burdens, and the legitimate rights and interests of stakeholders.

The conclusion of the BBNJ Agreement marks a pivotal advancement in the development of the international law of the sea, particularly through the integration of Strategic Environmental Assessment (SEA) into the governance of areas beyond national jurisdiction. This article analyzes the requirements of SEA under the BBNJ Agreement and explores the potential challenges for states to meet its requirements by critically examining the legal frameworks and national practices on SEA in the European Union, the United States and Canada, and Pacific Small Island Developing States. It identifies persistent challenges such as legal fragmentation, disparities in institutional and technical capacity, and the absence of coordinated implementation mechanisms across jurisdictions in current SEA practices. The practice of SEA in ABNJ remains disjointed, hindering the formation of a cohesive international regime. To address these gaps, the article advances three strategic recommendations: (1) the development of non-binding technical guidance by the BBNJ Agreement’s Scientific and Technical Body to promote harmonized SEA practices; (2) the establishment of international coordination mechanisms to resolve conflicts between national and sectoral SEA rules; (3) the embedding of SEA-specific capacity-building and technology transfer support into the Agreement’s implementation architecture to empower developing states; and (4) leveraging Marine Protected Areas under the BBNJ framework as entry points for operationalizing SEA. As of 2024, MPAs cover only about 1.45% of the total ABNJ surface. Incorporating SEA into the planning and management of these MPAs under the BBNJ regime can support more transparent and evidence-based expansion efforts, contributing to the achievement of the global 30×30 target. These approaches aim, as outlined above, to overcome structural and normative barriers while enhancing the role of SEA in protecting marine biodiversity and ensuring sustainability in ABNJ.

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