Marine biodiversity beyond national jurisdiction

New Zealand signed a new treaty for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (the BBNJ treaty) on 20 September 2023.
An image of a jellyfish swimming in dark waters.

Nearly two-thirds of the ocean lies outside the national jurisdiction or control of any country. These areas are the high seas (waters beyond any country’s Exclusive Economic Zone) and the deep seabed area (the seabed beyond any country’s continental shelf). They contain an exceptional level of biodiversity, from pelagic fish like tuna to deep-sea sponges. Scientists estimate there are still over 2 million yet-to-be identified species in the high seas, and little is known about deep sea coral reefs.

We use some species directly, particularly fish, and others can be impacted indirectly by human activities. There are already rules for taking or using resources from the high seas and deep seabed, including for fishing, shipping and mining.

Pressures on marine biodiversity from these activities and new uses are expected to increase, as are the impacts of climate change and ocean acidification. United Nations (UN) countries decided further rules were needed to deal with these pressures in a coordinated way.

Negotiations towards a new UN treaty

Negotiations towards a new UN treaty for the conservation and sustainable use of biodiversity in these areas (known as Biodiversity Beyond National Jurisdiction, or BBNJ) began in 2018 and concluded in 2023.

The goal of these negotiations was to address gaps in the international framework governing marine biodiversity in the high seas. New Zealand was an active participant, leading, at different stages, the negotiations on area-based management tools and dispute settlement provisions of the treaty text.

On 19 June 2023, 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 (the BBNJ treaty), also known as the High Seas biodiversity treaty, was adopted by consensus at the UN. New Zealand signed the BBNJ treaty on 20 September 2023.

What does the BBNJ treaty cover?

The BBNJ treaty comes under the umbrella of the UN Convention on the Law of the Sea (UNCLOS). It does not apply to countries’ own marine areas (e.g. territorial sea and EEZ), only to areas beyond any country’s jurisdiction (the high seas and the deep seabed).

It has four areas of focus: access and use of marine genetic resources; area-based management tools (for example, marine protected areas); environmental impact assessments for activities in the high seas; and capacity-building and the transfer of marine technology for developing states. The BBNJ treaty also addresses ‘cross-cutting issues’ including its relationship with other international law of the sea instruments.

The BBNJ treaty is ultimately about stewardship responsibilities for the ocean and its resources. It provides a platform for improved international cooperation on the conservation and sustainable use of marine biodiversity.

Marine genetic resources

Marine genetic resources (MGRs) are the genetic material of marine organisms that may have use or value for humanity. Marine scientific research into MGRs could help to develop new medicines or compounds for use in food or industrial processes.

Prior to the BBNJ treaty, there was no specific legal regime for MGRs under UNCLOS. The BBNJ treaty fills this gap by setting out rules around the collection of MGRs from areas beyond national jurisdiction. It also provides that benefits (such as findings from scientific research, or royalties from products with MGR materials) will be shared fairly and equitably between countries, with a focus on developing countries.

Area based management tools including marine protected areas

Area based management tools (ABMTs), including marine protected areas (MPAs), allow human activities in marine areas (such as fishing, shipping or mining) to be controlled by countries in a comprehensive and integrated manner.

They are essential for conserving, and ensuring the sustainable use of, marine biodiversity. For years there has been lack of cross-sectoral cooperation (that is, tools that regulate all human activities in an area rather than each activity separately) around ABMTs in the high seas. The BBNJ treaty sets out new rules and procedures to help countries cooperate in the establishment of ABMTs in areas beyond national jurisdiction. It makes clear these will not include any areas within any country’s jurisdiction.

Environmental impact assessments

In some circumstances, UNCLOS requires environmental impact assessments (EIAs) to be conducted for activities in the high seas. Prior to the BBNJ treaty there was little guidance on when EIAs are needed or how much information is required.

The BBNJ treaty sets out a framework that ensures EIAs are conducted consistently and comprehensively, without cutting across countries’ responsibilities and decision making. The EIA provisions Part IV of the BBNJ treaty establish processes, thresholds and other requirements for conducting, monitoring and reporting for EIAs.

Capacity-building and the transfer of marine technology

Many developing states wish to build their marine scientific and technological capacity so they can participate fully in the conservation and sustainable use of marine biodiversity.

The BBNJ treaty promotes capacity-building for, and transfer of technology to, developing states. This builds on existing obligations under UNCLOS, including to promote the transfer of marine science and technology (UNCLOS Art. 268). The BBNJ strengthens the implementation of these obligations and sets out processes for better coordinating capacity building in developing states.

Cross-cutting issues

The BBNJ treaty also addresses issues that cut across all four areas. It makes clear that the BBNJ treaty should not undermine existing relevant legal instruments and frameworks, or relevant global, regional, and sectoral organisations, but should promote coherence and coordination with those bodies.

The BBNJ treaty complements existing agreements and regulatory bodies in the international oceans governance framework, it does not replace them.

The treaty establishes a new institution, the Conference of Parties (COP), which will be the forum through which countries cooperate to implement the BBNJ treaty (including, for example, agreeing the modalities for benefit-sharing). Under the COP, several subsidiary bodies will also help facilitate the operation of the treaty, including a scientific and technical body that will consult with existing scientific bodies across the oceans governance framework.

What happens now?

Internationally, the focus is on ratification and implementation. Signature and ratification from 60 States is required for the Treaty’s entry into force. Discussions are under way at the UN to establish a Preparatory Commission that will agree the rules, procedure and budget for the first Conference of Parties. New Zealand remains engaged in the preparatory commission process.

New Zealand has signed but not yet ratified the BBNJ treaty. Domestically, decisions on whether to ratify international treaties are taken by Cabinet. You can find more about New Zealand’s process for ratifying and implementing international treaties

Find out more

You can read the New Zealand delegation’s negotiating mandate for the BBNJ treaty.

You can find the Cabinet Paper agreeing that New Zealand sign the BBNJ treaty.

You can find the full text of the BBNJ treaty(external link) at the UN’s website and the current list of signatories and ratifications(external link) at the UN’s website.

Country statements during negotiations, including New Zealand's, can be found on the UN BBNJ website(external link).


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