link to page 1 link to page 1 
December 15, 2022
The Biodiversity Beyond National Jurisdiction Agreement
(Treaty of the High Seas)
For over a decade, United Nations (U.N.) member countries
ocean and its living resources and to address maritime
have discussed creating an international legal framework to
activities that might threaten biodiversity. State’s Bureau of
address marine biodiversity on the high seas. The high seas
Oceans and International Environmental and Scientific
comprise about 95% of the global ocean by volume (Figure
Affairs leads the U.S. delegation in these negotiations. The
1) and include unique ecosystems rich in biodiversity, such
most recent intergovernmental conference took place in
as hydrothermal vents and deep-sea coral gardens. Certain
August 2022. It was suspended with an anticipated
commercial activities on the high seas that may affect the
resumption, and possible conclusion, of negotiations in
marine environment, such as fishing, shipping, seabed
January 2023. Should the BBNJ Agreement be adopted,
mining, and dumping, are covered by international
Congress may consider the advantages and disadvantageous
agreements. The United States is a party to some of these
of ratifying it.
agreements, but no single agreement addresses biodiversity
on the high seas as a whole. According to the U.S.
Background
Department of State (State), the high seas have only limited
UNCLOS establishes a legal regime governing activities
governance and are often unmonitored. Congress is
on, over, and under the global ocean. Although the U.S.
interested in various aspects of domestic and international
Senate has not ratified UNCLOS, members of the executive
marine biological conservation. One role of Congress is the
branch have stated that some portions of UNCLOS reflect
ratification of international agreements, including those
customary international law. The Senate has ratified other
aimed at conservation and sustainable management of the
agreements developed under the UNCLOS rubric without
global ocean.
being a party to UNCLOS. For example, the United States
is a party to the 1995 U.N. Fish Stocks Agreement (also
Figure 1. The High Seas
known as the Straddling Fish Stocks Agreement), which
was adopted after UNCLOS entered into force. Likewise,
the United States could become a party to the BBNJ
Agreement with Senate ratification.
Four Themes of the BBNJ Agreement
According to draft text referred to during the August 2022
negotiations, the BBNJ Agreement has four themes:
Area-Based Management Tools. Conservation efforts for
marine biodiversity on the high seas would focus primarily
on establishing new marine protected areas (MPAs). The
best available science and traditional knowledge of
indigenous peoples, among other criteria, would be required
to identify MPAs. An MPA provides protection for all or
Source: Il ustration created by CRS using the Sovereign Limits
part of the natural resources within it by prohibiting or
database (sovereignlimits.com).
limiting certain activities that could harm its biodiversity.
Notes: The figure is an il ustration only and not for official purposes
To date, the largest international MPA is in Antarctica’s
of identifying the high seas, exclusive economic zones (EEZs), or
Ross Sea. It was established by the Commission for the
territorial sea limits. The darker blue areas represent the high seas
Conservation of Antarctic Marine Living Resources, of
(i.e., areas beyond national jurisdiction), and the lighter blue areas
which the United States is a member. There are also MPAs
represent EEZs, within which coastal nations have jurisdiction over
within countries’ exclusive economic zones. The National
both living and nonliving resources.
Oceanic and Atmospheric Administration estimates there
are nearly 1,000 U.S. MPAs covering 26% of U.S. marine
A new implementing instrument under the 1982 U.N.
waters (including the Great Lakes).
Convention on the Law of the Sea (UNCLOS), officially
proposed by the U.N. General Assembly in June 2015,
Environmental Impact Assessment (EIA). The agreement
would address conservation and sustainable use of marine
would determine how to implement Article 206 of
biological diversity in areas beyond national jurisdiction;
UNCLOS, which aims to observe, measure, evaluate, and
the instrument is commonly referred to as the Biodiversity
analyze how planned activities may pose a risk to the
Beyond National Jurisdiction (BBNJ) Agreement or the
marine environment—these elements make up the general
Treaty of the High Seas. Ongoing multilateral negotiations
elements of an EIA. If parties to the agreement believed
on the agreement focus on opportunities to protect the
activities under their control could cause significant harm to
https://crsreports.congress.gov
The Biodiversity Beyond National Jurisdiction Agreement (Treaty of the High Seas)
the marine environment, the parties would be required to
developed nations have reiterated their commitment to
conduct an EIA. Further, the draft agreement would direct
capacity development in lieu of application of the CHM
parties to publish and communicate EIA reports to the
principle.
competent international organization, thereby making the
reports available to all countries.
The BBNJ Agreement may further support protections for
threatened and endangered marine species by establishing
Marine Genetic Resources (MGRs). The agreement
new MPAs on the high seas; approximately less than 1% of
would aim to protect accessibility to marine genetic
the high seas currently are in MPAs. Newly established
resources (MGRs), which are any genetic materials of
MPAs would contribute to the global target led by the High
marine plant, animal, microbial or other origin containing
Ambition Coalition for Nature and People to protect 30% of
functional units of heredity of actual or potential economic
the global ocean by 2030, of which over 100 countries,
value. For example, MGRs may be of value in the
including the United States, have announced their support.
development of pharmaceuticals and cosmetics. The
In addition, the protection of “blue carbon ecosystems”
agreement would not allow any nation to claim or exercise
within MPAs could help regulate the global climate by
sovereignty over MGRs. It also would consider MGRs
absorbing atmospheric carbon dioxide. However, some
collected from areas beyond national jurisdiction as
stakeholders and countries have not supported establishing
common heritage of mankind (CHM), meaning MGRs are
certain international MPAs because some activities (e.g.,
available for everyone’s use and benefit, including Small
fishing) may be prohibited or limited within MPA
Island Developing States, Landlocked Developing
boundaries. In 2022, for example, Russia and China vetoed
Countries, and Least Developed Countries. Benefits could
proposals to establish new MPAs in the Southern Ocean.
be shared in the form of access to samples, transfer of
technology, and data sharing, among others.
One potential goal of the BBNJ Agreement would be to
expand the coverage of protections for living resources.
Capacity Building and Transfer of Marine Technology.
Blanket protections for the high seas could help cover
The agreement would require parties to design and
geographic areas that lack conservation-focused
implement mechanisms for capacity building, including
organizations or agreements. However, some organizations
financing dedicated initiatives, to help developing nations
are concerned the BBNJ Agreement might be redundant
fulfill the obligations of the agreement. The agreement
with other international agreements, including the
would aim to foster transparency of research activities on
Straddling Fish Stocks Agreement. Some have further
MGRs, as well as strengthen marine scientific research
proposed that the BBNJ Agreement should have sector-
capabilities of developing nations, by improving
specific criteria for environmental protection guidelines,
international scientific collaboration and promoting the
such as EIAs specific to fisheries and seabed mining.
transfer of marine technologies.
The inclusion of fisheries in the BBNJ Agreement also has
Considerations for Congress
been debated. Some countries (e.g., Russia, Iceland) appear
Demand for certain marine resources, such as seafood,
to favor excluding fisheries. Both Russia and Iceland are
seabed minerals, and MGRs, is expected to grow over the
Arctic Council members. Although fishing in the Arctic is
next few decades. Current and emerging maritime activities
rare, interest in fishing in Arctic areas beyond national
intended to meet these growing demands may contribute to
jurisdiction may increase as the extent of summer sea ice
marine biodiversity loss. Although there are international
declines and global demand for fish grows. Currently, some
and U.S. federal protections for threatened and endangered
areas of the high seas are managed by regional fishery
marine species, the protections afforded from these
management organizations (RFMOs). RFMOs are
agreements, statutes, regulations, and guidelines may be
international bodies made up of countries that operate under
limited in scope or challenging to enforce. The adoption of
international agreements to manage specific areas or certain
the BBNJ Agreement may influence the regulation of
species or species groups. Parties to RFMOs adhere to
certain high seas activities, management and use of marine
fisheries management and conservation measures, such as
resources, and marine conservation efforts. Congress may
limiting catch numbers or no-take, within the boundaries of
consider the advantages and disadvantageous of ratifying
the RFMOs. RFMOs do not cover all of the high seas,
the agreement, including the application of the CHM
though; for example, the South China Sea and the Arctic
principle, establishment of new international MPAs,
Ocean have no RFMOs. Some organizations (e.g., the
overlap with other international agreements, and inclusion
Global Tuna Alliance) recognize the role the BBNJ
of fisheries.
Agreement may play in sustainably managing high seas
biodiversity, emphasizing that the agreement may
Policymakers report that the most contentious aspect of the
complement RFMO management measures, especially in
BBNJ Agreement negotiations is whether MGRs should be
areas that have RFMOs.
considered CHM. Some stakeholders want the agreement to
address existing inequalities in sharing the benefits accrued
Caitlin Keating-Bitonti, Analyst in Natural Resources
from areas beyond national jurisdiction. Developing nations
Policy
(i.e., G77) would like MGRs to be considered CHM.
Developed nations argue that under UNCLOS, the CHM
IF12283
principle applies only to seabed minerals. Certain
https://crsreports.congress.gov
The Biodiversity Beyond National Jurisdiction Agreement (Treaty of the High Seas)
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.
https://crsreports.congress.gov | IF12283 · VERSION 1 · NEW