Biological Diversity and Related Issues

Yellow and blue fish swimming through coral reef
The diversity of fish and other reef organisms rival tropical rain forests. (NOAA Photo Library)

Biodiversity Home

The Millennium Ecosystem Assessment (“MEA”) defines biodiversity (or biological diversity) as “the variability among living organisms from all sources, including terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species, and of ecosystems.” (MEA at 18.) The report notes that biodiversity is important for healthy and resilient ecosystems and provides a number of ecosystem services that are essential for human well-being. However, the report also finds that human activity is significantly and irreversibly threatening biodiversity across the globe.

The primary international legal instrument recognizing the importance of biodiversity and committing to its conservation is the Convention on Biological Diversity. Under this framework agreement, there are two protocols: the Cartagena Protocol on Biosafety and the Nagoya Protocol on Access and Benefit-sharing. Within the United Nations, as a whole, a process is currently underway to develop an international legally binding instrument under the United Nations Convention on the Law of the Sea (“LOSC”) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.

Convention on Biological Diversity

The main objectives of the Convention on Biological Diversity (“CBD” or “Convention”) are: (1) conservation of biological diversity; (2) sustainable use of its components; and (3) fair and equitable sharing of benefits arising from genetic resources. Article 1. Parties to the Convention agree to take action to protect components of biodiversity within their national jurisdiction and to ensure that activities under their control do not damage the environment of other States or of areas beyond national jurisdiction. Article 3 and Article 4. Parties also agree to take measures to facilitate access to genetic resources and technologies relevant to conservation and sustainable use of biodiversity. Article 15 and Article 16.

CBD Parties have identified Marine and Coastal Biodiversity as one of seven Thematic Programs of Work. The five elements of the Marine and Coastal Biodiversity Program of Work are: (1) Integrated Marine and Coastal Management; (2) Marine and Coastal Living Resources; (3) Marine and Coastal Protected Areas; (4) Mariculture; and (5) Invasive Alien Species. In 2010, the CBD Conference of the Parties (“COP”) created a Strategic Plan for Biodiversity 2011-2020 (COP 10 Decision X/2) that included a list of targets known as the Aichi Biodiversity Targets (some of which specifically address oceans). Additionally, based on an earlier COP decision establishing a process and criteria to identify Ecologically or Biologically Significant Marine Areas (“EBSAs”), the COP has identified marine areas that meet the EBSA criteria and continues to facilitate regional workshops to locate EBSAs for future listing as meeting the EBSA criteria. Management of areas, such as the EBSAs, that are outside the jurisdiction of any State is currently being discussed at the United Nations as a part of the negotiations to develop an international legally binding instrument on marine biodiversity.

At present, 195 nations and the European Union are Parties to the Convention, which entered into force December 29, 1993. The U.S. signed the Convention in June 1993 and transmitted it for Senate advice and consent to ratification in November 1993. While the Senate Foreign Relations Committee voted in support of ratification in 1994, the full Senate has not acted. The current Administration does not seek Senate action at this time. See Administration’s Treaty Priority List for the 111th Congress (2009). 

Cartagena Protocol on Biosafety

The Convention on Biological Diversity has been supplemented by the Cartagena Protocol on Biosafety, which entered into force in September 2003. A list of current Parties to the Protocol is available here. The Protocol, which the U.S. has not signed, seeks to protect biological diversity from the potential risks posed by living modified organisms. Under the Protocol, a “living modified organism” is “any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology.” Article 3. The risk from these organisms is regulated by the Protocol through designated procedures for transboundary movement, transit, handling, and use of all living modified organisms that may have adverse effects on the conservation and sustainable use of biological diversity. Article 4. Specifically, the Protocol establishes a process for the exporter to obtain an advance informed agreement from the importing State that ensures that the State has adequate information regarding the exporter, the living modified organism, and the intended use of the organism. Article 8 and Annex I. Additionally, the Protocol established a Biosafety Clearing-House to facilitate the exchange of “scientific, technical, environmental and legal information on, and experience with, living modified organisms.” Article 20. 

Nagoya Protocol on Access and Benefit-sharing

The Convention on Biological Diversity also has been supplemented by the Nagoya Protocol on Access and Benefit-sharing, which entered into force in October 2014. A list of current Parties to the Protocol is available here. The Protocol, which the U.S. has not signed, seeks to provide legal clarity to access and benefit sharing related to genetic resources. First, the Protocol clarifies Prior Informed Consent and Mutually Agreed Terms for access to genetic resources and traditional knowledge. Article 6 and Article 7. Then, it helps to ensure that fair and equitable benefits are exchanged for the use of genetic resources. Article 5. To further this objective, the Protocol provides a non-exhaustive list of monetary and non-monetary benefits to consider. Annex. Additionally, the Protocol established the Access and Benefit-sharing Clearing-House to facilitate information sharing. Article 14. However, the Protocol only addresses genetic resources originating within a Party’s jurisdiction; the use of marine genetic resources in areas beyond national jurisdiction is being discussed at the United Nations as a part of the negotiations to develop an international legally binding instrument on marine biodiversity. 

Biological Diversity Beyond Areas of National Jurisdiction (BBNJ)

In 2004, the UN General Assembly, through Resolution 59/24, paragraph 73, created an Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction. The Working Group focused on area-based management tools, such as marine protected areas and environmental impact assessments, and benefit sharing regimes for marine genetic resources, including capacity-building, the transfer of marine technology, intellectual property rights, and patent law.  

After several meetings of the Working Group in the early 2000’s, the Outcome Document (“The Future We Want”), paragraph 162, of the UN Conference on Sustainable Development in 2012 committed to address the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including through the development of an international instrument under the LOSC. To prepare for the development of an international instrument under the LOSC, UN General Assembly Resolution 68/70, paragraphs 198-200, mandated three additional meetings of the Working Group to be held from 2014-2015. Although no consensus on key issues was reached at these meetings, there was widespread agreement on several points: (1) an international agreement to further conservation of biodiversity beyond national jurisdiction was both feasible and beneficial; (2) any agreement should be open to all nations, including non-parties to the LOSC; (3) the scope should include the Area and the high seas; (4) the parameters should respect the competence of existing organizations such as the International Maritime Organization and regional fishery management organizations and not duplicate their authority; and (5) any agreement should be consistent with the framework of the LOSC. The Working Group then recommended that a preparatory committee be established to formulate elements of a draft text of an international legally binding instrument under the LOSC. See Advance and unedited Outcome of the Ad Hoc Open-ended Informal Working Group, including recommendations and Co-Chairs’ summary of discussions contained in the report of the ninth meeting.

The UN General Assembly adopted the recommendations of the Working Group in Resolution 69/292 in June 2015, which formally initiated the development of an international legally binding instrument on marine biodiversity of areas beyond national jurisdiction. To that end, the UN General Assembly established a Preparatory Committee to assist with substantive recommendations on the elements of a draft text to assist a diplomatic conference to be held after the conclusion of the Preparatory Committee’s work. 

The First Session of the Preparatory Committee established by Resolution 69/292 convened March 28 to April 8, 2016. The Preparatory Committee considered the scope of an international legally binding instrument and its relationship with other instruments; guiding approaches and principles; marine genetic resources, including questions on benefit-sharing; area-based management tools, including marine protected areas and environmental impact assessments; and capacity building and marine technology transfer. See Chair’s Overview of the First Session of the Preparatory Committee established by General Assembly Resolution 69/292; see also Summary of the First Session of the Preparatory Committee on Marine Biodiversity of Areas Beyond National Jurisdiction. The Second Session of the Preparatory Committee is scheduled to convene August 26 to September 9, 2016.    

Additional reference information:
Convention on Biological Diversity (“CBD”) website
Ecologically or Biologically Significant Marine Areas (“EBSA”)
List of CBD Parties
CBD - Treaty Transmittal Package, Senate Treaty No. 103-20
CBD - Senate Foreign Relations Committee Executive Report No. 103-30
Cartagena Protocol on Biosafety website
Nagoya Protocol on Access and Benefit-sharing website
UN Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction
Preparatory Committee established by UN General Assembly Resolution 69/292
Chair’s Overview of the First Session of the Preparatory Committee
International Institute for Sustainable Development (“IISD”) Reporting Services - Highlights of the First Session of the Preparatory Committee on Marine Biodiversity of Areas Beyond National Jurisdiction, including daily reports
IISD Reporting Services - Earth Negotiations Bulletin - Summary of the First Session of the Preparatory Committee on Marine Biodiversity of Areas Beyond National Jurisdiction
Background on Relationship between WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) and the CBD
Review of TRIPS Article 27.3.b

Related Pages:
Law of the Sea Convention
Maritime Zones and Boundaries
Seabed Management
Marine Protected Areas (“MPAs”)
Fisheries
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