In December 2017, the United Nations General Assembly voted to convene an International Conference to protect marine biodiversity in the high seas through a new treaty. See Robin Kundis Craig, The New United Nations High Seas Treaty: A Primer, 34 Nat. Res. & Env’t, no. 4, Spring 2020. Five and a half years later, that International Conference adopted by consensus “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,” better known as the Biodiversity Beyond National Jurisdiction Treaty, or BBNJ. U.N. A/Conf.232/2023/4 (adopted June 19, 2023). The new treaty opened for signature on September 20, 2023, and will remain open until September 20, 2025.
Designed to become a protocol to the 1982 United Nations Convention on the Law of the Sea (Law of the Sea Convention, or LOSC), 1833 U.N.T.S. 397 (Dec. 10, 1982; in force Nov. 1, 1994), the BBNJ seeks to fill a marine protection jurisdictional gap that LOSC created. Coastal nation parties to the LOSC can claim broad jurisdiction over the ocean’s resources through their exclusive economic zones (EEZs) and continental shelves. These treaty rights give coastal nations fairly broad authority to protect marine biodiversity within the areas under national jurisdiction. For example, a coastal nation’s EEZ extends up to 200 nautical miles out to sea from the nation’s shoreline baseline. LOSC art. 57. Within its EEZ, moreover, the coastal nation has (1) “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil”; (2) sovereign rights “with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds”; (3) jurisdiction over “the establishment and use of artificial islands, installations and structures”; (4) jurisdiction over “marine scientific research”; and (5) jurisdiction over “the protection and preservation of the marine environment.” Id. art. 56(1). With respect to marine biodiversity, moreover, “[t]he coastal State . . . shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation.” Id. art. 61(2).
In addition, party nations are entitled to control over at least 200 nautical miles of continental shelf, regardless of seabed geography, extending out potentially to 350 nautical miles if the continental shelf is very broad. LOSC art. 76(1), (4), (5). “The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources,” which include “the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species. . . .” Id. art. 77(1), (4).
The LOSC also protects the seabed beyond national jurisdiction, known as “the Area,” by declaring that “the Area and its resources are the common heritage of mankind.” Id. art. 136. The International Seabed Authority manages the Area, id. arts. 137, 1(2), and “[a]ctivities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole, . . . taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status. . . .”Id. art. 140(1). The Authority “shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis,” id. art. 140(2), and has a duty to protect the marine environment. Specifically, it must issue regulations to prevent marine pollution, conserve natural resources, and prevent “damage to the flora and fauna of the marine environment.” Id. art. 145.
However, the marine waters beyond nations’ collective EEZs and above the seabed of the Area—the “high seas”—are subject to the LOSC’s “freedom of the seas” default regime. Id. art. 87. All nations, whether coastal or landlocked, enjoy six freedoms in the high seas: (1) “freedom of navigation”; (2) “freedom of overflight”; (3) “freedom to lay submarine cables and pipelines”; (4) “freedom to construct artificial islands and other installations permitted under international law”; (5) “freedom of fishing”; and (6) “freedom of scientific research.” Id. art. 87(1).
The LOSC does impose some conservation duties on party nations with respect to the high seas. Thus, “[a]ll States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.” Id. art. 117. However, in the absence of any entity with lawmaking or enforcement jurisdiction, this conservation obligation boils down to a duty to cooperate. Specifically, “States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They shall, as appropriate, cooperate to establish subregional or regional fisheries organizations to this end.” Id. art. 118.
Protecting marine biodiversity in the high seas, therefore, requires new treaties. The international community first focused on regulating fishing on the high seas. In 1995, the United Nations adopted the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, better known as the U.N. Fish Stocks Agreement (UNFSA). 2167 U.N.T.S. 3 (Aug. 4, 1995; in force Dec. 11, 2001). This protocol to LOSC currently has 93 parties (LOSC itself has 169 parties) and seeks both to facilitate the formation of regional fisheries management organizations (RFMOs), UNFSA art. 8, and to better balance fisheries exploitation with conservation and marine biodiversity protection, using a precautionary approach. Id. arts. 5–7.
In 2020, the United Nations Food & Agriculture Organization (FAO) identified 22 RFMOs around the globe. U.N. FAO, Regional Fisheries Management Organizations and Advisory Bodies 8 (2020). The five largest regulate tuna fishing in most of the world’s oceans. International Seafood Sustainability Foundation, Regional Fishery Management Organizations (RFMOs) (2024). Otherwise, the FAO identified 12 RFMOs that engage in general marine fisheries regulation for multiple species, three RFMOs that manage anadromous stocks like salmon, one that manages halibut, and one that manages whales. U.N. FAO, supra, at 8. Nevertheless, while the number of RFMOs and nations participating in RFMOs both have increased over time, id. at 10–14, the effectiveness of RFMOs in reducing overfishing remains questionable, particularly because most of their governing bodies operate through consensus. Edward Carver, Critics Push for More Transparency at RFMOs That Govern High Seas Fishing, Mongabay (Jan. 31, 2024).
Enter the BBNJ. The BBNJ allows nations and coalitions to create “area-based management tools” on the high seas and in the Area. BBNJ arts. 1(2), 17–26; see also Craig, supra. “Area-based management tools” are “a tool, including a marine protected area, for a geographically defined area through which one or several sectors or activities are managed with the aim of achieving particular conservation and sustainable use objectives. . . .” BBNJ art. 1(1). After review and recommendations from the treaty’s Scientific and Technical Body, id. art. 20; extensive consultation with affected Indigenous peoples and nations, id. art. 21; and the Conference of the Parties’ approval, id. art. 22(1), the area-based management tool becomes binding on the parties. Id. art. 23(3). Thus, the BBNJ protects marine biodiversity primarily by allowing specific areas of the high seas and seafloor to be protected from human activity. However, parties have 120 days after the Conference of the Parties vote to object to a particular area-based management tool, at which point they are not bound by it. Id. art. 23(4). Moreover, if part of the management area falls within national jurisdiction, or if the area comes within the competence of another management regime, the BBNJ area-based management tool (or part thereof) ceases to be in force. Id. art. 22(6), (7).
The BBNJ also has three other major parts. First, it provides for “[t]he fair and equitable sharing of benefits arising from activities with respect to marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction. . . .” BBNJ art. 9(a). While all nations are free to explore marine genetic resources and sequence the genomes of marine organisms found in the high seas and the Area, “[n]o State shall claim or exercise sovereignty or sovereign rights over marine genetic resources of areas beyond national jurisdiction.” Id. art. 11(1), (4). Instead, such research advances the scientific knowledge of all humanity and must be carried out for peaceful purposes. Id. art. 11(6), (7).
Second, the BBNJ requires party nations to assess the environmental impacts of the activities that they authorize in the high seas and on the Area. Specifically, “Parties shall ensure that the potential impacts on the marine environment of planned activities under their jurisdiction or control that take place in areas beyond national jurisdiction are assessed as set out in this Part before they are authorized.” Id. art. 28(1). The BBNJ does not define what it means by “jurisdiction and control,” but in context the party nation must at least have the authority to prevent the activity from proceeding if its environmental impacts are too significant. Id. art. 34(1).
Assuming that an activity meets the “jurisdiction and control” threshold, Parties must use a screening process whenever “a planned activity [beyond national jurisdiction] may have more than a minor or transitory effect on the marine environment, or the effects of the activity are unknown or poorly understood,” and then conduct a full assessment if, on the basis of the screening, “the Party has reasonable grounds for believing that the activity may cause substantial pollution of or significant and harmful changes to the marine environment. . . .” Id. art. 30. Moreover, environmental impact assessments are also required when an activity within national jurisdiction—i.e., within the EEZ or on a nation’s continental shelf—“may cause substantial pollution of or significant and harmful changes to the marine environment in areas beyond national jurisdiction. . . .” Id. art. 28(2). Either way, “[a] decision to authorize the planned activity . . . shall only be made when, taking into account mitigation or management measures, the Party has determined that it has made all reasonable efforts to ensure that the activity can be conducted in a manner consistent with the prevention of significant adverse impacts on the marine environment.” Id. art. 34. Moreover, party nations must continue to monitor the actual impacts of any activities that they permit, id. art. 35, and reassess their authorizations if adverse impacts emerge. Id. art. 37.
Finally, the BBNJ requires parties to engage in capacity building and technology sharing to benefit, in particular, small island developing nations and least developed countries. Id. art. 41(1). Moreover, “Parties shall promote and encourage economic and legal conditions for the transfer of marine technology to developing States Parties, taking into account the special circumstances of small island developing States and of least developed countries, which may include providing incentives to enterprises and institutions.” Id. art. 43(3). The triggers for and parameters of these obligations are somewhat vague, however.
The BBNJ will become effective 120 days after the 60th nation ratifies it. Id. art. 68(1). Eighty-one nations, including the United States, signed the treaty within the first three days after it opened for signature; as of mid-June 2024, nine other nations have added their names. United Nations, Depository: Chapter XXI Law of the Sea (as updated Apr. 8, 2024). However, after almost 10 months, only seven nations—in chronological order, Palau, Chile, Belize, Seychelles, Monaco, Mauritius, and Micronesia—have actually ratified the BBNJ. This pace suggests that, as for the Fish Stocks Agreement before it, it will be several years before the BBNJ comes into force.
Whether the United States will ratify the BBNJ remains an open question. In the past—including for the LOSC itself—the United States has found technology-sharing requirements and barriers to exploitation of genetic resources to be reasons not to ratify treaties—indeed, similar provisions are one reason why the United States has not ratified the LOSC itself (although it is a party to the Fish Stocks Agreement, which contains no such requirements). Moreover, its approval statement to the United Nations contained a long series of limiting interpretations for the BBNJ, emphasizing in particular that “[w]e do not interpret anything in this Agreement as authorizing or permitting any waiver or undermining of existing intellectual property rights and obligations under international or national law; requiring mandatory disclosure of trade secrets, protected undisclosed or confidential information; requiring mandatory disclosure in patent applications of the origin or source of marine genetic resources; or requiring compulsory licenses.” UN Gen. Assembly, Compilation of Statements Made by Delegations 113 (Aug. 3, 2023).
