The unfree commons:freedom of marine scientific research and the status of genetic resources beyond national jurisdiction

For close to two decades, negotiations on the status of marine genetic resources beyond national jurisdiction under a new UN Treaty oscillated between the common heritage of mankind and the freedom of the high seas, while draft modalities were constituted by this binary in unacknowledged ways. The final text of the new Biodiversity Beyond National Jurisdiction (BBNJ) Treaty bridges the longstanding normative dissonance by crafting a freedom of marine scientific research juxtaposed with the common heritage of humankind. This paper argues that the principle is a specific carve-out from the freedom of scientific research in UNCLOS, enumerated as one of the freedoms of the high seas. The principle of freedom of marine scientific research is best conceived as a property-protected activity tethered to marine genetic resources. It derives legitimacy and content from the common heritage regimes in UNCLOS as well as the operative elements of Part II of the BBNJ Treaty that address the equitable use of marine genetic resources and digital sequence information on marine genetic resources. As such, the principle is a progressive move away from static commons status towards a functional and contingent response to the enclosure of marine genetic resources, aimed at equitable resource use.