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Updated July 14, 2023
The Biodiversity Beyond National Jurisdiction Agreement
(High Seas Treaty)
On June 19, 2023, the United Nations (U.N.) adopted an
to ensure conservation and sustainable use of marine
international legally binding instrument to address marine
biodiversity in areas beyond national jurisdiction. The
biodiversity on the high seas (international waters). This
Department of State’s Bureau of Oceans and International
agreement is the first single international instrument to
Environmental and Scientific Affairs led the U.S.
address biodiversity on the high seas as a whole. The
delegation in the negotiation of the BBNJ Agreement. The
instrument is commonly referred to as the Biodiversity
U.N. adopted the BBNJ Agreement by consensus on June
Beyond National Jurisdiction (BBNJ) Agreement or the
19, 2023, and the agreement will enter into force 120 days
High Seas Treaty. The high seas comprise about 95% of the
after the 60th nation ratifies it. The Senate may consider the
global ocean by volume (Figure 1) and include unique
advantages and disadvantages of ratifying the BBNJ
ecosystems rich in biodiversity, such as hydrothermal vents
Agreement.
and deep-sea coral gardens.
Background
Certain commercial activities on the high seas that may
UNCLOS establishes a legal regime governing activities
affect the marine biodiversity, such as fishing, shipping,
on, over, and under the global ocean. The Senate has not
seabed mining, and dumping, are covered by international
ratified UNCLOS. However, members of the executive
agreements. The United States is a party to some but not all
branch have stated that some portions of UNCLOS reflect
of these agreements. According to the U.S. Department of
customary international law. The Senate has ratified other
State, the high seas have only limited governance and are
agreements developed under the UNCLOS rubric without
often unmonitored. Congress generally has expressed
being a party to UNCLOS. For example, the United States
interest in various aspects of domestic and international
is a party to the 1995 U.N. Fish Stocks Agreement, which
marine biological conservation. Under the Constitution, the
was adopted after UNCLOS entered into force. The United
Senate provides advice and consent to ratify international
States also could become a party to the BBNJ Agreement
agreements, including those aimed at the conservation and
through Senate ratification without ratifying UNCLOS.
sustainable management of the global ocean.
Four Themes of the BBNJ Agreement
Figure 1. The High Seas
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
Antarctic Marine Living Resources, of which the United
States is a member. There are also MPAs within countries’
Source: Il ustration created by CRS using the Sovereign Limits
exclusive economic zones (EEZs). The National Oceanic
database (sovereignlimits.com).
and Atmospheric Administration (NOAA) MPA Inventory
Notes: The figure is an il ustration only and not for official purposes
estimates nearly 1,000 U.S. MPAs cover 26% of U.S.
of identifying specific boundaries for the high seas, exclusive
marine waters (including the Great Lakes).
economic zones (EEZs), or territorial sea limits. The darker blue
areas represent the high seas (i.e., areas beyond national jurisdiction),
Environmental Impact Assessment (EIA). The agreement
and the lighter blue areas represent EEZs, within which coastal
provides an EIA framework (i.e., global standard) for
nations have jurisdiction over both living and nonliving resources.
identifying and evaluating the potential impacts of an
activity in areas beyond national jurisdiction. If a party to
The BBNJ Agreement is a legally binding instrument under
the agreement determines that an activity under their
the 1982 U.N. Convention on the Law of the Sea
control may pollute or cause significant harm to the marine
(UNCLOS) and was officially proposed by the U.N.
environment, the party is required to conduct an EIA.
General Assembly in June 2015. The agreement is intended
Further, the agreement directs parties to communicate EIA
https://crsreports.congress.gov
The Biodiversity Beyond National Jurisdiction Agreement (High Seas Treaty)
reports to the clearing-house mechanism established by the
congressional interest, as it was in prior discussions of
agreement, thereby making reports publicly available.
UNCLOS.
Marine Genetic Resources (MGRs). The agreement
A goal of the BBNJ Agreement is to expand the coverage
promotes accessibility to MGRs collected in areas beyond
of protections for living resources. Blanket protections for
national jurisdiction. MGRs are “any material of marine
the high seas could help cover geographic areas that lack
plant, animal, microbial or other origin containing
conservation-focused bodies (e.g., regional fisheries
functional units of heredity of actual or potential value.”
management organizations) or agreements. The BBNJ
For example, MGRs may be of value in developing
Agreement allows existing international bodies and
pharmaceuticals and cosmetics. The agreement prohibits
agreements to continue regulating high seas fisheries,
any nation from claiming or exercising sovereignty over
shipping, and seabed mining without applying the
MGRs. The agreement states that activities with MGRs and
agreement’s EIA framework. Some conservationists
digital sequence information on MGRs are for the benefit of
expressed concerns about exempting these commercial
all humanity, with particular consideration for developing
activities from this EIA framework. The Senate may
nations. Benefits derived from such activities are to be
consider whether the BBNJ Agreement and existing
shared in a fair and equitable manner and contribute to the
international agreements to which the United States is a
conservation and sustainable use of marine biodiversity.
party—including the 1995 U.N. Fish Stocks Agreement—
The agreement outlines that non-monetary benefits include
would be redundant or complementary.
access to samples and digital sequence information, transfer
of marine technology, and data sharing, among others.
The BBNJ Agreement may further support protections for
threatened and endangered marine species by allowing for
Capacity Building and Transfer of Marine Technology.
the establishment of large-scale MPAs on the high seas;
The agreement requires parties to develop and implement
approximately less than 1% of the high seas currently are in
mechanisms for capacity building, including financing
MPAs. Newly established MPAs would contribute to the
research programs and dedicated initiatives, to help
global target to protect 30% of the global ocean by 2030,
developing nations fulfill the obligations of the agreement.
for which over 100 countries, including the United States,
Under the agreement, capacity-building and the transfer of
have announced their support. Some stakeholders and
marine technology initiatives may include sharing data and
countries (e.g., Russia, China) have not supported
information in user friendly formats; information
establishing certain international MPAs because some
dissemination, such as marine scientific research and EIAs;
activities may be prohibited or limited within MPA
and developing and strengthening institutional capacity and
boundaries (e.g., fishing). Countries may establish MPAs
national regulatory frameworks.
within their EEZs, and the United States can establish new
MPAs within its EEZ without the Senate ratifying the
Considerations for Congress
BBNJ Agreement. Alternatively, Senate ratification of the
Demand for certain marine resources, such as seafood,
BBNJ Agreement may be seen to demonstrate U.S. global
seabed minerals, and MGRs, is expected to grow over the
leadership and support U.S. international commitments
next few decades. Current and emerging maritime activities
aimed at protecting the ocean, such as those made at Our
intended to meet these growing demands may contribute to
Ocean Conferences.
marine biodiversity loss. Although there are international
and U.S. federal protections for threatened and endangered
Congress has supported domestic marine biological
marine species, the protections afforded from instruments
conservation efforts and directed the federal government to
may be limited in scope or challenging to enforce. The
regulate certain marine commercial activities occurring
BBNJ Agreement may influence the regulation of certain
within the U.S. EEZ that have the potential to affect marine
high seas activities, management and use of marine
biodiversity. Congress could continue, or may consider
resources, and marine conservation efforts. The Senate may
increasing, support for domestic marine biodiversity
consider the advantages and disadvantages of ratifying the
conservation efforts in addition to or in lieu of ratifying the
agreement.
BBNJ Agreement. For example, some Members in the 118th
Congress expressed the need for a national strategy for
Policymakers reported that the most contentious aspect of
protecting biodiversity (both terrestrial and marine; H.Res.
the BBNJ Agreement negotiations was whether the
195). Congress also has directed federal agencies to
common heritage principle (CHP) should apply to MGRs.
monitor marine commercial activities conducted by foreign
The BBNJ Agreement adopted the CHP. In UNCLOS, the
nations to help safeguard marine biodiversity (e.g., High
CHP establishes that all activities occurring on the
Seas Driftnet Moratorium Protection Act; Title VI of the
international seabed (e.g., seabed mining) must be carried
Fisheries Act of 1995, P.L. 104-43) and may consider
out for the benefit of all humanity. In BBNJ Agreement
whether to continue to support these initiatives or
negotiations, developing nations (i.e., G77) contended that
implement new ones regardless of the United States
MGRs should be considered common heritage, whereas
becoming a party to the BBNJ Agreement.
developed nations countered that, under UNCLOS, the
CHP applies only to seabed minerals. The mechanism for
Caitlin Keating-Bitonti, Analyst in Natural Resources
benefit sharing has not been determined, but it may
Policy
redistribute income from wealthier member countries to
poorer ones. The inclusion of the CHP may be an issue of
IF12283
https://crsreports.congress.gov
The Biodiversity Beyond National Jurisdiction Agreement (High Seas Treaty)
Disclaimer
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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
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https://crsreports.congress.gov | IF12283 · VERSION 3 · UPDATED