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Updated March 27, 2023
The Biodiversity Beyond National Jurisdiction Agreement
(High Seas Treaty)
On March 4, 2023, United Nations (U.N.) member
to ensure conservation and sustainable use of marine
countries finalized the text of an international legally
biodiversity in areas beyond national jurisdiction. The
binding instrument to address marine biodiversity on the
Department of State’s Bureau of Oceans and International
high seas (international waters). This agreement is the first
Environmental and Scientific Affairs led the U.S.
single international instrument to address biodiversity on
delegation in the negotiation of the BBNJ Agreement. The
the high seas as a whole. The instrument is commonly
most recent intergovernmental conference ran from
referred to as the Biodiversity Beyond National Jurisdiction
February 20 to March 3, 2023; negotiations ran past the
(BBNJ) Agreement or the High Seas Treaty. The high seas
scheduled dates and concluded March 4, 2023. Delegations
comprise about 95% of the global ocean by volume (Figure
intend to reconvene at a later date to formally adopt the
1) and include unique ecosystems rich in biodiversity, such
text. Should the BBNJ Agreement be adopted, the Senate
as hydrothermal vents and deep-sea coral gardens.
may consider the advantages and disadvantages of ratifying
it.
Certain commercial activities on the high seas that may
affect the marine biodiversity, such as fishing, shipping,
Background
seabed mining, and dumping, are covered by international
UNCLOS establishes a legal regime governing activities
agreements. The United States is a party to some but not all
on, over, and under the global ocean. The Senate has not
of these agreements. According to the U.S. Department of
ratified UNCLOS. However, members of the executive
State, the high seas have only limited governance and are
branch have stated that some portions of UNCLOS reflect
often unmonitored. Congress generally has expressed
customary international law. The Senate has ratified other
interest in various aspects of domestic and international
agreements developed under the UNCLOS rubric without
marine biological conservation. Under the Constitution, the
being a party to UNCLOS. For example, the United States
Senate provides advice and consent to ratify international
is a party to the 1995 U.N. Fish Stocks Agreement, which
agreements, including those aimed at the conservation and
was adopted after UNCLOS entered into force. The United
sustainable management of the global ocean.
States also could become a party to the BBNJ Agreement
through Senate ratification without ratifying UNCLOS.
Figure 1. The High Seas
Four Themes of the BBNJ Agreement
The BBNJ Agreement has four themes:
Area-Based Management Tools. Conservation efforts for
marine biodiversity on the high seas under the agreement
focus primarily on establishing new marine protected areas
(MPAs). MPAs are to be identified based on the best
available science and, where available, relevant traditional
knowledge of Indigenous peoples, among other criteria. An
MPA provides protection for all or part of the natural
resources within it by prohibiting or limiting certain
activities that could harm its biodiversity. To date, the
largest international MPA is in Antarctica’s Ross Sea. It
was established by the Commission for the Conservation of
Source: Il ustration created by CRS using the Sovereign Limits
Antarctic Marine Living Resources, of which the United
database (sovereignlimits.com).
States is a member. There are also MPAs within countries’
Notes: The figure is an il ustration only and not for official purposes
exclusive economic zones (EEZs). The National Oceanic
of identifying specific boundaries for the high seas, exclusive
and Atmospheric Administration (NOAA) MPA Inventory
economic zones (EEZs), or territorial sea limits. The darker blue
estimates nearly 1,000 U.S. MPAs cover 26% of U.S.
areas represent the high seas (i.e., areas beyond national jurisdiction),
marine waters (including the Great Lakes).
and the lighter blue areas represent EEZs, within which coastal
nations have jurisdiction over both living and nonliving resources.
Environmental Impact Assessment (EIA). The agreement
provides an EIA framework (i.e., global standard) for
The BBNJ Agreement is a legally binding instrument under
identifying and evaluating the potential impacts of an
the 1982 U.N. Convention on the Law of the Sea
activity in areas beyond national jurisdiction. If a party to
(UNCLOS) and was officially proposed by the U.N.
the agreement determines that an activity under their
General Assembly in June 2015. The agreement is intended
control may pollute or cause significant harm to the marine
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The Biodiversity Beyond National Jurisdiction Agreement (High Seas Treaty)
environment, the party is required to conduct an EIA.
poorer ones. The inclusion of the CHP may be an issue of
Further, the agreement directs parties to communicate EIA
congressional interest, as it was in prior discussions of
reports to the clearing-house mechanism established by the
UNCLOS.
agreement, thereby making reports publicly available.
A goal of the BBNJ Agreement is to expand the coverage
Marine Genetic Resources (MGRs). The agreement
of protections for living resources. Blanket protections for
promotes accessibility to MGRs collected in areas beyond
the high seas could help cover geographic areas that lack
national jurisdiction. MGRs are “any material of marine
conservation-focused bodies (e.g., regional fisheries
plant, animal, microbial or other origin containing
management organizations) or agreements. The final BBNJ
functional units of heredity of actual or potential value.”
Agreement text allows existing international bodies and
For example, MGRs may be of value in developing
agreements to continue regulating high seas fisheries,
pharmaceuticals and cosmetics. The agreement prohibits
shipping, and seabed mining without applying the
any nation from claiming or exercising sovereignty over
agreement’s EIA framework. Some conservationists
MGRs. The agreement states that activities with MGRs and
expressed concerns about exempting these commercial
digital sequence information on MGRs are for the benefit of
activities from this EIA framework. The Senate may
all humanity, with particular consideration for developing
consider whether the BBNJ Agreement and existing
nations. Benefits derived from such activities are to be
international agreements to which the United States is a
shared in a fair and equitable manner and contribute to the
party—including the 1995 U.N. Fish Stocks Agreement—
conservation and sustainable use of marine biodiversity.
would be redundant or complementary.
The agreement outlines that non-monetary benefits include
access to samples and digital sequence information, transfer
The BBNJ Agreement may further support protections for
of marine technology, and data sharing, among others.
threatened and endangered marine species by allowing for
the establishment of large-scale MPAs on the high seas;
Capacity Building and Transfer of Marine Technology.
approximately less than 1% of the high seas currently are in
The agreement requires parties to develop and implement
MPAs. Newly established MPAs would contribute to the
mechanisms for capacity building, including financing
global target to protect 30% of the global ocean by 2030,
research programs and dedicated initiatives, to help
for which over 100 countries, including the United States,
developing nations fulfill the obligations of the agreement.
have announced their support. Some stakeholders and
Under the agreement, capacity-building and the transfer of
countries (e.g., Russia, China) have not supported
marine technology initiatives may include sharing data and
establishing certain international MPAs because some
information in user friendly formats; information
activities may be prohibited or limited within MPA
dissemination, such as marine scientific research and EIAs;
boundaries (e.g., fishing). Countries may establish MPAs
and developing and strengthening institutional capacity and
within their EEZs, and the United States can establish new
national regulatory frameworks.
MPAs within its EEZ without the Senate ratifying the
BBNJ Agreement. Alternatively, Senate ratification of the
Considerations for Congress
BBNJ Agreement may be seen to demonstrate U.S. global
Demand for certain marine resources, such as seafood,
leadership and support U.S. international commitments
seabed minerals, and MGRs, is expected to grow over the
aimed at protecting the ocean, such as those made at Our
next few decades. Current and emerging maritime activities
Ocean Conferences.
intended to meet these growing demands may contribute to
marine biodiversity loss. Although there are international
Congress has supported domestic marine biological
and U.S. federal protections for threatened and endangered
conservation efforts and directed the federal government to
marine species, the protections afforded from instruments
regulate certain marine commercial activities occurring
may be limited in scope or challenging to enforce. The
within the U.S. EEZ that have the potential to affect marine
adoption of the BBNJ Agreement may influence the
biodiversity. Congress could continue, or may consider
regulation of certain high seas activities, management and
increasing, support for domestic marine biodiversity
use of marine resources, and marine conservation efforts.
conservation efforts in addition to or in lieu of ratifying the
The Senate may consider the advantages and disadvantages
BBNJ Agreement. For example, some Members in the 118th
of ratifying the agreement.
Congress expressed the need for a national strategy for
protecting biodiversity (both terrestrial and marine; H.Res.
Policymakers reported that the most contentious aspect of
195). Congress also has directed federal agencies to
the BBNJ Agreement negotiations was whether the
monitor marine commercial activities conducted by foreign
common heritage principle (CHP) should apply to MGRs.
nations to help safeguard marine biodiversity (e.g., High
The BBNJ Agreement text adopted the CHP. In UNCLOS,
Seas Driftnet Moratorium Protection Act; Title VI of the
the CHP establishes that all activities occurring on the
Fisheries Act of 1995, P.L. 104-43) and may consider
international seabed (e.g., seabed mining) must be carried
whether to continue to support these initiatives or
out for the benefit of all humanity. In BBNJ Agreement
implement new ones regardless of the United States
negotiations, developing nations (i.e., G77) contended that
becoming a party to the BBNJ Agreement.
MGRs should be considered common heritage, whereas
developed nations countered that, under UNCLOS, the
Caitlin Keating-Bitonti, Analyst in Natural Resources
CHP applies only to seabed minerals. The mechanism for
Policy
benefit sharing has not been determined, but it may
redistribute income from wealthier member countries to
IF12283
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The Biodiversity Beyond National Jurisdiction Agreement (High Seas Treaty)
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