Liability in ocean observation: applying UNCLOS and the BBNJ regime in the South-West Indian ocean

1 Introduction

The ocean functions as the Earth's primary thermal and chemical sink, absorbing the emissions of industrial activity which contributes to over 90% of the trapped heat and nearly a third of anthropogenic carbon dioxide (CO₂) emissions (IPCC, 2022). The consequence, however, of this service is ocean acidification, deoxygenation, biodiversity loss and pollution. Ocean observation, in this regard, becomes an essential endeavor rather than a niche scientific pursuit. This article argues that ocean observation is no longer a mere technical phenomenon and it is exposing gaps in the existing legal frameworks calling for a new liability regime. This work aims to identify these gaps with a particular focus on South West Indian Ocean (SWIO).

The current ocean governance architecture is often hampered by insufficient verifiable data. While international regimes, protocols, and conventions proliferate, their effectiveness is ultimately a function of their ability to “obtain accurate information” (Bodansky, 2010, p. 234). Ocean observation technologies serve as the critical enabling mechanism, by providing the data to translate legal principles into enforceable law.

Ocean observation relies on the collection and analysis of environmental data. Data collection on the ocean's physical, chemical, and biological state has evolved from SONAR (Sound Navigation and Ranging) to a global network of satellites, autonomous gliders, and floats with sensors (Riser et al., 2016). This underpins the scientific assessments produced by the IPCC. Data streams from satellites and buoys can now trace pollutants back to their source, furnishing the forensic evidence required for possible liability claims. Today, with the advent of marine geoengineering and carbon sequestration schemes, the stakes are exponentially higher for observing the impacts resulting from these activities which can alter the fundamental chemistry of the regions in the ocean.

UNCLOS is a monumental achievement and its provisions have proven to be adaptive through the progressive interpretation by the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ). However, technological developments of the 21st century present regulatory challenges that were not contemplated during the United Nations Conference on the Law of the Sea—I, II and III. This legal lacuna is most glaring in Areas Beyond National Jurisdiction (ABNJ), which constitute nearly half of Earth's surface. 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 (BBNJ Agreement), which came into force on 17 January 2026, is an attempt to improve this legal architecture. Its four pillars of marine genetic resources, area-based management tools, environmental impact assessments (EIAs), and capacity-building, are all, without exception, dependent on foundation provided by UNCLOS and the data generated through ocean observation.

Before the entry into force of the BBNJ Agreement, the laws that shaped EIA in ABNJ lay scattered among different treaties and regulations. Such dispersion weighed heavily upon those States whose capacity was slight, raising the threshold of precaution required for activities in ABNJ. Ocean observation, like many other activities beyond national jurisdiction, requires the efforts of different nations, regions, legal instruments and stakeholders (Maulida, 2022). Conducting a credible EIA for activities such as a deep-sea mining operation or a marine geoengineering project may be a futile exercise without a long-term baseline data of pre-existing conditions of the marine environment. This baseline is a product of sustained observation.

Located in the Indian Ocean, the SWIO region is of significance for global trade and marine ecological systems, while supporting populations whose livelihoods and food security are directly tied to the ocean's health. The primary objective of this analysis is to interrogate the scope for establishing effective liability regimes underpinned by ocean observation and to propose conceptual frameworks to enhance liability for ocean observation in SWIO. A secondary objective is to elucidate the specific implications of this analysis for the SWIO Region, focusing on the nexus of technology and law. The paper therefore examines the SWIO's ecological foundations and argues that its conservation depends upon the responsible deployment of ocean observation technologies, which are not mere scientific tools but also enablers of compliance, enforcement, and the operationalisation of legal principles, including due diligence and the duty to prevent transboundary harm.

2 Setting the stage

2.1 South West Indian Ocean region

SWIO, far from a barren maritime expanse, represents a critical space for international environmental law and ocean governance through interconnected systems, from Large Marine Ecosystems (LMEs) to Ecologically or Biologically Significant Marine Areas (EBSAs) within and beyond national jurisdictions. The Convention on Biological Diversity (CBD, 1992) in its ninth Conference of the Parties (COP) adopted seven scientific criteria for identifying EBSAs (Decision IX/20) and distinguishes them from other marine classification systems such as LMEs by their specific purpose and scientific criteria. They are designations made on the scientific basis established in the COP decision and are not default marine protected areas by law. The SWIO region hosts a range of EBSAs and its functionalities directly challenge the adequacy of current legal frameworks applicable to the region.

In terms of the regimes in place, the region is home to instruments, frameworks and bodies (IFBs) such as Indian Ocean Tuna Commission, the Indian Ocean Rim Association, South Western Indian Ocean Fisheries Commission, Southern Indian Ocean Fisheries Agreement, The Nairobi Convention and the Indian Ocean Commission. Each of these IFBs has a specific functional mandate, none explicitly addresses the liability frameworks for observation technologies. Notwithstanding the IFBs, the legal and ecological narrative of the SWIO is driven by its physical realities, dominated by two major current systems that define its LMEs and influence global climate (Figure 1).

The Agulhas Current LME is a major western boundary current, transporting warm, saline water southward along the African coast affecting States in South-East African coast such as Mozambique, South Africa and Madagascar. Its legal and ecological relevance is twofold. First, its instability generates large, swirling rings that leak into the South Atlantic, a process critical for global thermohaline circulation (Beal et al., 2011). This positions the SWIO as a regulator of global climate, a fact with implications for international environmental law and climate regimes. Second, the current's dynamics drive regional productivity as its eddies and meanders enhance vertical mixing, elevating nutrient levels and supporting significant fisheries for species like tuna, sardine, and anchovy (Biastoch et al., 2024). This LME also features high levels of endemism, particularly among reef fish and benthic invertebrates, granting it the status of a global biodiversity hotspot (Van Niekerk et al., 2012). The economic and food security of coastal States is therefore directly tied to the health of this current system.

To the north, the Somali Coastal Current LME presents a paradigm of extreme seasonality governed by the Indian Monsoon and shaping the coasts of Oman, Somalia and Yemen. During the Southwest Monsoon, intense wind-driven upwelling brings nutrient-rich waters to the surface, creating one of the most productive seasonal fishing grounds in the world (Schott and McCreary, 2001). This system supports major pelagic fisheries that are essential for the coastal populations of Somalia, Kenya, and Tanzania. The intensity of this upwelling is acutely sensitive to climate variability, making the region vulnerable to climate-related impacts on food security and economic stability (Sun et al., 2022).

The SWIO hosts several ecologically significant areas, some of which lie in ABNJ and therefore its management will test the efficacy of the BBNJ Agreement, making these areas not merely scientifically interesting but also tangible subjects for the application of international legal principles. In this region, the Saya de Malha Bank, one of the world's largest submerged seagrass meadows, is a prime example of an ecosystem that qualifies on four CBD criteria out of the seven, for an EBSA. Its ecological role as a nursery ground for marine fauna is well-established. More critically, from a legal and climate governance perspective, its vast seagrass beds constitute a significant long-term carbon sink, a service categorized as “blue carbon” (Unsworth et al., 2019; Laffoley and Baxter, 2016). The degradation of Saya de Malha would thus represent a dual failure: a loss of biodiversity and an irreversible release of stored carbon, directly engaging issues of State responsibility for the global commons. In addition, the Bank's legal significance emerges indirectly, not as an EBSA but as a reference point for Article 17(c) of the BBNJ Agreement for ABMT. Furthermore, its remote location presents certain technological as well as legal challenges.

In addition, seamounts like the Walters Shoal function as biological hotspots in SWIO. Their topography interrupts deep-ocean currents, creating localized upwelling that concentrates nutrients and attracts aggregations of pelagic fish and predators (Rogers, 2018). Their hard substrates support fragile and often endemic benthic communities, including cold-water corals and sponges (Samadi et al., 2006). From a legal standpoint, these features are focal points for potential conflicts between high-seas freedoms, conservation objectives, and future resource exploitation since their vulnerability to bottom fishing and deep-sea mining makes them a priority for implementing area-based management tools under the BBNJ Agreement.

The South-West Indian Ridge (SWIR) introduces another layer of legal and ecological complexity. Its hydrothermal vent fields host unique chemosynthetic ecosystems, sustained not by sunlight but by chemical energy, and host species with high rates of endemism (Rogers et al., 2012). The discovery of these systems, such as the “Longqi” vent field, has immediate implications for the governance of marine genetic resources (Tao et al., 2012). Furthermore, the potential for deep-sea mining on the ridge presents a direct challenge to the regime of EIAs, as establishing a credible baseline for such extreme and poorly understood environments is a daunting task.

Notwithstanding the above-mentioned ecosystems and ecological significance of the region, the Mozambique Channel plays a dynamic and vital role in SWIO, wherein its character defined by mesoscale eddies influences the dispersal and connectivity of marine life (Lutjeharms, 2006). These currents serve as a critical migratory passage for the cetaceans and a seasonal larder for the immense, filter-feeding whale shark (Rohner et al., 2015). Adjacent to these pelagic spaces, the fringing coral reefs of the islands stand as vibrant, yet profoundly vulnerable, biotic community, increasingly susceptible to mass bleaching (Ateweberhan et al., 2013). Furthermore, the abyssal plains of SWIO nurture communities of xenophyophores, sea cucumbers and other fauna. In addition, the topography of canyons and fracture zones supports nutrient cycling in the seafloor (Rogers, 2018).

2.2 Ocean observation

The ocean plays a major role in every part of human existence, from providing nutrition for fish stocks, nourishing mangroves which allow for coastal protection or carbon sequestration; yet, its functioning and its varying ecosystems are widely unknown until this day (Hermes et al., 2022). Ocean observation, in attempting to bridge this gap, encompasses the systematic collection of physical, chemical and biological data. It is foundational for the understanding of weather phenomena or special phenomena like Indian Ocean dipole, tsunamis or cyclones by analyzing the interplay of temperature, current and winds. Ocean observation is essential for detecting long-term climate trends, assessing ecosystem changes, and improving predictive models used in disaster preparedness and climate mitigation (Hermes et al., 2022).

Due to its size, no single instrument or platform can capture all relevant variables at once. Instead, observation relies on a distributed system of complementary technologies (Hermes et al., 2022). The Global Ocean Observing System (GOOS), led by the Intergovernmental Oceanographic Commission, plays a central coordinating role by defining essential ocean variables (EOVs) for different scientific disciplines, promoting standardization, and supporting national and regional cooperation [(Global Ocean Observing System (GOOS), 2025)]. A wide array of vessels, equipment and methods is used to observe the ocean from the surface down to the seabed (von Jackowski, 2025). Article 1(10) of the BBNJ Agreement includes a definition of marine technology, which, as held very broadly, would also include technologies and equipment used for ocean observation. The following section will give examples on technologies used in ocean observation.

2.2.1 Ocean observation technologies

At the water surface, moored and drifting buoys are used to measure parameters such as surface temperature, air temperature, pressure, currents and precipitation (Lin and Yang, 2020). Moored buoys, by definition, usually remain at a relatively fixed location, whereas drifting buoys flow with the current. Both are predominantly constructed from plastics (Lin and Yang, 2020).

Autonomous surface vehicles (ASVs) serve a range of functions for a multitude of tasks, on the surface or within the water column. Highly adaptable in design and function, ASVs can be equipped with specialized sensors tailored to specific missions (Whitt et al., 2020). ASVs are usually used for real-time study. Most ASVs tend to operate on a pre-programmed basis or through a pilot, only a few operate fully autonomously [(Ocean Observatories Initiative (OOI), 2025)]. While their benefit is their flexibility and their possibility to be moved around, they face risks such as communication loss, navigational hazards, and interference with shipping (Lin and Yang, 2020).

Within the water column, Argo (Array for real-time geographic oceanography) floats provide profiles of temperature, salinity, and biogeochemical variables to depths of 2,000 meters and are widely distributed throughout the world seas (Euro-Argo ERI, 2025; UC San Diego (UCSD) Argo, 2025; Lin and Yang, 2020). Operating on 10-day cycles throughout an operational life-span of 4 to 5 years, they drift at mid-depth (1,000m), descend to 2,000m, and then ascend to collect vertical profiles before transmitting data via satellite (UC San Diego (UCSD) Argo, 2025). The time spent at the surface during this transfer is between 15 min and 1 h, just enough time to signal its location via GPS and receive new instructions. Argo floats can experience data inaccuracy due to ocean turbulence and present challenges associated with loss of communication or disposal (Lin and Yang, 2020).

More lasting are underwater gliders. These devices, equipped with sensors, can measure physical, biogeochemical and acoustic parameters across the water column for several months or even a year. They can adjust their buoyancy and may be re-programmed throughout their cycle. Similar to Argo floats, a satellite connection is essential for underwater gliders, creating a risk of loss when satellite connection fails, e.g., due to poor sea conditions (Ocean Gliders, 2025; Lin and Yang, 2020).

At the seafloor, cabled seafloor observatories (CSOs) collect data on temperature, salinity and acoustics and may even provide photographic evidence. The CSO is connected to land via cable, allowing for fast and broad data transmission [School of Ocean and Earth Science and Technology (SOEST) of the University of Hawaii, 2021; Lin and Yang, 2020]. The benefit of CSOs is that their location is easy to mark on a map, making them less of a hazard to navigation. However, the cable connection requires the CSO to remain at a fixed location, giving it very little flexibility while their construction and positioning costs are relatively high (Lin and Yang, 2020). As recent occurrences affecting communications and electricity cables in the Baltic Sea have demonstrated, cables can be sabotaged (Schaller, 2025; Pedrozo, 2025) or may be vulnerable to accidental damage. Depending on the depth of their location, CSOs may not be easily recovered and may need to be left at their location after their purpose has been served.

In addition to CSOs, distributed acoustic sensing (DAS) is emerging in ocean observation. Initially intended to be used to protect cables and sense the area around it, DAS now enables detection of seismic activity, vessel movements, tides or ocean currents across long distances (Yang et al., 2025; Mata Flores et al., 2023; Shinohara et al., 2022). The way DAS functions is that a measurement instrument is attached to an optical fiber to observe the strain or strain rate of the optical fiber by sending repeated impulses and using scattering techniques. While promising, DAS can introduce acoustic noise that may negatively affect marine life and is subject to the same physical vulnerabilities as cabled infrastructure.

Autonomous underwater vehicles (AUVs) are similar to ASVs and can navigate along the ocean floor to measure parameters or conduct geological and geophysical research. AUVs come in different shapes and sizes, depending on their mission and may be used for longer periods of time. AUVs are equipped with navigational devices and sensors, allowing them to be tracked but also to move autonomously. (Fernandes Coelho and Rogers, 2023; Lin and Yang, 2020). Depending on the depth of the operation, these devices pose certain risks. When navigating in the deep ocean, preventing component failures becomes challenging. If the guiding algorithm is not fully developed, AUVs may demonstrate operational errors or lose connections making them a risk to the vulnerable environment and even to navigation in some instances. A study referring to the EU Gliders for Research, Ocean Observation and Management (GROOM) project found that leakage, equipment failure and collision with vessels are expected risks when deploying AUVs (Brito et al., 2014).

Ocean observation typically relies on a combination of vessels, satellites and several of the aforementioned technologies, forming a vast network, to produce comprehensive datasets and track the desired factors over a longer period of time (von Jackowski, 2025). This while generating large volumes of data, may result in increased risks to the marine environment.

2.2.2 Ocean observation in SWIO

The ecological value of the SWIO is clear. However, without the capacity to monitor it, any legal framework designed for its protection will be rendered largely declaratory. Observation is the prerequisite for credible EIAs. As a foundational matter of international environmental law, an EIA is only as robust as the baseline data against which impacts are measured. For any activity in the SWIO's ABNJ, be it deep-sea mining or large-scale geoengineering, a credible baseline is exclusively, as mentioned in the introduction, a product of sustained observation. Technologies like the global Argo float network, which provides continuous data on the water column's physical and biogeochemical state, are indispensable for establishing these baselines (Riser et al., 2016). Without this long-term, empirical data, EIAs risk becoming speculative exercises, failing the due diligence requirement inherent in customary international law.

The principle that States have a duty not to cause transboundary environmental harm is well-established (Maljean-Dubois, 2021). This is where modern observation technologies become a force multiplier for the law. Data streams from satellites can track illegal oil discharges or unlicensed fishing vessels in the major fishing area in SWIO (FAO, 2025). Networks of sensors on gliders and moorings can trace pollutant plumes to their source and model their dispersion. This capability to provide evidence is what transforms the liability into a tangible and actionable claim. However, it is only State obligations that are explicitly recognized by the compliance mechanisms under the BBNJ Agreement and not liability (Art. 28 BBNJ Agreement). The paper will delve into details concerning responsibility and liability in the subsequent sections.

In this scheme of things, the management of climate change impacts demands an observational infrastructure. The rapid warming of the Agulhas Current and the acidification of the SWIO's waters are not hypotheticals; they are measurable trends with direct consequences for the region's LMEs and EBSAs (Biastoch et al., 2024). Autonomous observation systems are critical for tracking these changes, providing the data needed for States to fulfill their obligations related to monitoring, and reporting under international climate and biodiversity conventions.

The South-West Indian Ocean is a region of undeniable ecological significance, whose dynamics are central to global climate regulation and regional economic stability. Its LMEs are engines of productivity, while its EBSAs in the high seas are reservoirs of unique biodiversity and provide globally relevant ecosystem services. The legal frameworks to protect this region, from UNCLOS to the BBNJ Agreement, are in place. However, their effectiveness is not guaranteed by their existence alone. The bridge between legal principle and practical conservation is built with data, the essential tool for establishing baselines, conducting credible EIAs, enforcing regulations, and attributing liability.

Given the importance of the act of ocean observation and the technologies that enable the same, it needs to be borne in mind that this is dovetailed by risks and challenges to the marine environment because of the nature of operations of these technologies. The following section will dwell upon some of the risks and challenges posed by ocean observation technologies.

2.3 Risks and challenges

The deployment of ocean observation technologies raises important questions concerning regulatory oversight and ocean governance (Figure 3). Ocean observation must be conducted in a manner that is holistic and sustainable, necessitating a variety of technology, covering a vast area. For reliable results and to properly monitor changes, ocean observation projects must span over a long period of time and thus require a continuous and significant amount of funding.

Additionally, these technologies, albeit directed at simply observing the ocean rather than interfering with it, they may nevertheless cause substantial damage to the marine environment or to other objects and equipment within the ocean. Many of the risks resemble those of commercial shipping, such as obstructing navigation, causing collisions with vessels, installations, structures or other equipment, spills, or waste, including toxic waste, or even harm to marine life (Hubert, 2011). Other effects include noise, light or thermal pollution incidental to the operation. The anchoring of fixed equipment such as moored buoys or CSOs may impact marine life and ecosystems on the seabed, while chemical hazards may arise from accidental or operational spillage (Hubert, 2011).

The movement of floating devices may not be controlled precisely, leading to a risk of collision with other installations, equipment or even vessels. Detachment of components or breaking during a collision or in the course of operation could result in damage to other installations, equipment or vessels as well as untraceable floating debris in the ocean, presenting a risk to marine life. The same risks arise when communication or control of such devices is lost. Especially given the fact that Argo floats are intended to “die”, meaning they drift in the ocean, corrode, sink to and pollute the seafloor (UC San Diego (UCSD) Argo, 2025), it may lead to biological effects, such as the introduction of foreign species and substances into fragile marine ecosystems.

While the legal framework for damage caused by offshore activities and especially ocean observation in areas under national jurisdiction is governed by the coastal States, a clear liability framework for ocean observation in ABNJ, unlike oil pollution by vessels or high seas crimes, does not exist (Figure 2). Rather, the relevant rules are spread across applicable conventions, such as UNCLOS, the BBNJ Agreement, the CBD and regional frameworks such as the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) or non-binding scientific standards and rules, such as those, given out by GOOS and other specialized organizations. Notwithstanding either the context specific implementation of the above-mentioned sources or their scientific authority in the case of GOOS, they highlight the difference in States' and a given region's capacity in enforcement, which remain non-binding unless they are duly ratified into municipal laws or incorporated as treaty obligations. Particularly in terms of protecting marine biodiversity and fragile marine environments, clear and binding rules should be implemented in ABNJ.

3 Applicable rules for ocean observation under UNCLOS

UNCLOS provides the foundational legal framework, governing jurisdiction over maritime zones and the activities conducted therein. While UNCLOS does not explicitly refer to ocean observation as a distinct legal regime, it highlights the importance of protecting and preserving the marine environment by use of technological and scientific practices and information.

Ocean observation consists of multiple activities, each governed by distinct rules. The composite nature of this is subject to the type, such as navigation, MSR, installation of equipment, data transmission and the retrieval of equipment, all of which is accompanied by legal consequences. Moreover, ocean observation technologies may be deployed from shore or from a vessel. Ocean observation could also be entirely conducted through a vessel. The use of technological devices to gather ocean data and the interrelation between them would fall under the category of Marine Scientific Research (MSR) (Art. 243 UNCLOS; Oxman, 1984), while the liability for research vessels is subject to the general regime governing liability for ships under UNCLOS. Therefore, the following will assess the provisions on MSR under UNCLOS and their applicability to ocean observation, the liability provisions of UNCLOS applying to research vessels and the liability provisions regarding pollution.

3.1 Marine scientific research

One of the main freedoms under UNCLOS is the conducting of MSR while balancing sovereign interests (Art. 238). MSR is not expressly defined in UNCLOS, nor by any court or tribunal. Researchers argue that it should not be defined as this allows for adoption and accommodation of new methods, technologies and needs (Yu, 2023). While not requiring a strict definition, the limits of MSR need to be clear in order to avoid ambiguity and prevent exploitation of resources under the pretense of MSR. A longstanding distinction made by many scholars is that from hydrographic surveying and monitoring of pollution risks (Oxman, 1984). Hydrographic surveying refers to mapping ocean and seabed features, such as elevations and depth [International Hydrographic Organization (IHO), 2021], whereas MSR is focused on biological, physical and chemical conditions such as current, temperature and pressure.

Some authors note that the exploration of natural resources in the EEZ or the International Seabed Area (Area) constitutes to MSR (Yu, 2020; Daniel, 2005). However, UNCLOS (Art. 56(1)) and the ISA regulations maintain to distinguish these two (Yu, 2020; Oxman, 1984). The UN Secretary-General has made a distinction between “pure or fundamental research” which is aimed at the increase of knowledge and “applied research” which is used for a subsequent exploitation of natural resources [(United Nations General Assembly (UNGA), 2007)]. Ocean observation and therefore MSR, as defined under this article, would fall under the category of pure fundamental research, while exploration of natural resources for later exploitation is applied research.

MSR is only recognized for peaceful purposes. UNCLOS recognizes that MSR may be conducted by States, international organizations or natural or juridical persons (Art. 246(2), Art. 247 and Art. 263(2)). Under Art. 263 in connection with Art. 235, States and international organizations are to be held responsible for wrongful acts and violations of UNCLOS and will be held liable for actions resulting in pollution damage. This liability pertains to preserving the marine environment and providing for prompt and adequate compensation and mechanisms thereto.

States and international organizations (hereinafter also referred to as “entity” or “entities”) are generally obliged to cooperate through information sharing (Art. 242), concluding bilateral or multilateral agreements (Art. 243) and publishing or disseminating information and knowledge (Art. 244). Ocean observation technologies deployed must bear identification markings indicating the relevant State it is registered under and the international organization it is operated under and may not interfere with safety at sea, of navigation or aviation (Art. 262).

Similar to the remainder of the Convention, the rights and duties of States vary by maritime zones. In areas under national jurisdiction, MSR is subject to the jurisdiction or limited jurisdiction of the coastal State. MSR is one of the high seas freedoms, included in Art. 87. Nevertheless, the conducting entity needs to ensure to prevent pollution, conserve the marine environment and its natural resources and adhere to safety requirements of vessels (and also research equipment). Flag States bear responsibility for ensuring vessels registered under their flag comply with international standards for pollution prevention. The vessel operator/owner can be held liable under municipal law for pollution damage (with due regard to 1976 LLMC). Additionally, the flag State may be held responsible under the Draft Articles of State Responsibility if it does not exercise due diligence to ensure that vessels, flying its flag, comply with international law (International Tribunal for the Law of the Sea, 2015). The 2015 ITLOS Advisory Opinion on IUU fishing clarifies that flag States are to adopt legislation, conduct inspections and ensure effective enforcement mechanisms. In light of recent events, it must be stressed that the vessels or individuals engaged in MSR may be liable for breaking or injury of submarine cables and pipelines subject to Art. 113 and applicable laws of the respective flag State of the vessel (see Halog et al., 2023 and Guilfoyle et al., 2022). Therefore, in the ocean observation technologies, flag States, to prevent pollution, must, prescribe technical standards for observation equipment, demand pre-deployment EIAs, maintain equipment registries and investigate incidents related to research vessels. In practice, this raises the issue of flags or registries of convenience, where technical and environmental protection regulation remains lose and monitoring scarce. Looking at the development of ocean observation technologies, and given that the flag State retains exclusive jurisdiction in ABNJ, pollution and collision risks posed by research equipment will unavoidably increase. Hence, proper monitoring needs to be ensured by all flag States.

In the International Seabed Area, known as the Area, MSR must comply with the general provisions contained in UNCLOS (Art. 257), especially those referring to the protection of the environment and the prevention of pollution, as well as the rules and regulations of the International Seabed Authority (ISA) (Art. 137, 138 and 145). If MSR equipment enters an area under national jurisdiction, prior notification is required (Pastra et al., 2025; Fernandes Coelho and Rogers, 2023).

Installations, which may include observation platforms, are again subject to the rules of the specific maritime zone with the specialty that none of such may be considered islands and thus generate maritime zones of its own, except for a 500m safety zone (Art 259 and 260). The construction and use of such installations and structures is subject to the general rules of the respective maritime zones. This means that for purposes of ocean observation, if within the national jurisdiction, the entities must request the use and installation of technologies with the competent coastal State. The construction of artificial islands and other installations is, just like MSR, one of the High Seas freedoms and subject to the provisions relating to the Continental Shelf and therefore the EEZ (Art. 87). In the Area, such are subject to the rules of the ISA and with due regard to shipping, navigation or special maritime zones (Art. 147).

Responsibility and liability for MSR activities under UNCLOS are largely attributed to the State or international organization, conducting MSR. This means that if a research team or research equipment causes pollution or negatively affects the marine environment, the State or organization under which the activity is conducted, is liable under UNCLOS. Nevertheless, individuals and vessels may be subject to liability under municipal laws I flag State jurisdiction. If submarine pipelines or cables are damaged, liability is attributed to the individual persons or vessels, engaged therein. At the same time, other States remain liable toward the coastal States for MSR activities conducted under the jurisdiction of the latter (Wegelein, 2005).

3.2 Research vessels

When ocean observation is undertaken by use of a non-military vessel, the rules of UNCLOS apply. In the Territorial Sea, vessels are subject to the jurisdiction of the coastal State.

In the EEZ, coastal States exercise jurisdiction i.e., over the exploration of natural resources and MSR (Art. 56). Although Art. 58 grants certain freedoms of the High Seas in the EEZ, MSR is notably not among them. Vessels, to the extent that they are actively engaged in MSR, are subject to the relevant laws of the coastal State and may be liable under its municipal laws. Beyond that, the general principles and principles governing vessels on the High Seas apply.

On the High Seas, vessels operate under the reigning principles of freedom of navigation and freedom of MSR, provided that these are exercised for peaceful purposes. The flag State retains exclusive jurisdiction in regards to liability (Art. 91 and Art. 94), ensuring compliance with international rules and standards relevant to the prevention of pollution and harm to the marine environment, caused by vessels flying their flag (Art. 217) or in the event of collision e.g., with other vessels or installations (Art. 97). For violations of flag State provisions by the research vessel, the shipowner or master may be liable subject to the respective municipal laws of the flag State. As a safety net, liability insurance for third-party damage in the form of P&I insurance is required for vessels to enter most ports. Additionally, research vessels are not exempt from the UNCLOS provisions on hot pursuit, boarding, inspection and arrest.

If the ocean observation endeavor is sponsored by a government and conducted by a government vessel, responsibility and liability is attributed to the flag State (Art. 31 and Art. 32), unless the government vessel is engaged in commercial activity. The same limitation applies to the High Seas, where only government vessels engaged in non-commercial service enjoy absolute immunity to enforcement measures (Art. 96). The law stays silent on whether this distinction applies to deployed research equipment or remotely operated vessels. Ocean observation projects tend to require a variety of technology and equipment, where some may be partially sponsored or owned by a State. To what extent the State is responsible in cases of partial sponsorship requires further examination.

3.3 Pollution

One of the main objectives of UNCLOS 1982 is the protection and preservation of the marine environment (Oxman, 1984). As previously mentioned, States have the general obligation to protect and preserve the marine environment (Art. 192 – 194). The provisions refer particularly to the release of toxic, harmful and noxious substances or pollution from installations and devices operating in the marine environment or pollution from the use of technologies. This would include pollution from lost research devices and equipment or accidental spills.

Risks and effects of pollution are to be monitored by the States and reports shall be made available to others (Art. 204 f). The same applies to the effects of activities. The responsible State is generally under whose jurisdiction and control the activity is conducted. As highlighted above, this may be the flag State of a research vessel, the State of registration of research equipment or any State engaged or participating in the activity, or, when conducted in the Territorial Sea or EEZ, the respective coastal State. States are obliged to cooperate in the prevention of pollution, in the sharing of information regarding pollution and research (Art. 198 – 200). It is important to stress that the rules on pollution and the rules on MSR under UNCLOS are intended to complement rather than restrict each other, neither part is intended to prevail over the other.

In summary, liability attribution is contingent upon the specific activity within the observation chain that caused harm. For example, collision during navigation invokes rules that are different from seabed impact during installation or leaking of liquids or gases from equipment. Subsequently, liability for ocean observation calls for a horizontal coordination across regimes that ought to be vertically integrated and which are currently not in existence. This coordination gap is addressed by the authors in section 6 of this paper.

4 Scope and application of the BBNJ agreement

Whereas the regime under UNCLOS has already been applied to ocean observation for many years, the application and boundaries under the BBNJ Agreement are yet to be implemented. It seems likely that for ocean observation, States must evaluate the potential impacts of deploying observation technologies, especially where the risks are uncertain or where equipment may disturb ecosystems, generate pollution, or introduce cumulative effects. At the same time, ocean observation plays a major role for the assessment of the impact that an activity has on the marine environment (Art. 28 BBNJ Agreement). The following part aims at assessing the applicability and regime of the BBNJ Agreement in relation to ocean observation.

4.1 Scope of application and relationship to UNCLOS

The BBNJ Agreement, as its official title says, applies, according to its Art. 3 to ABNJ under UNCLOS. Art. 1(2) of the BBNJ Agreement clarifies that ABNJ include the High Seas and the Area, which has been the idea from the first preparatory committee (United Nations, 2016). Being an implementing agreement to UNCLOS (United Nations, 2016), the provisions of the BBNJ Agreement with due regard to the mandate of the ISA are applicable for the conservation of biodiversity in the seabed, water column and the ocean surface, beyond national jurisdiction.

During the negotiations of UNCLOS, it became clear that the environmental protection of the seas and its resources was one of the main goals of the parties. UNCLOS contains several articles relating to the management of resources within national jurisdiction, categorized by their own particularities, for example by distinguishing sedentary, catadromous and anadromous stocks or minerals. UNCLOS Art. 204 refers to the monitoring and assessment of the risks and effects of pollution. UNCLOS Art. 206 requires States to assess the potential effects of activities under their jurisdiction and control, in particular to substantial pollution or substantial harmful effects on the environment. While EIAs and strategic environmental assessments (SEAs) are not explicitly mentioned, some authors opine that these are what Art. 204 of UNCLOS and especially Art. 206 is aiming at (Song et al. 2024); Shi and Chen (2020). Others, however, believe that the EIA is inconsistent with the scope of UNCLOS since they extend beyond the obligations contained therein and because the BBNJ agreement has been concluded thereafter (see Art. 237 and 311 UNCLOS; Shi and Chen, 2020). Nevertheless, it needs to be noted that ITLOS has categorized EIAs as “customary international law” in its advisory opinion relating to the international seabed (International Tribunal for the Law of the Sea, 2011).

The BBNJ Agreement does not contradict the emphasis on marine environmental protection put forward by UNCLOS in Articles 192–194 as well as the principles of marine environmental law such as the no harm principle and the precautionary approach and the ecosystem-based approach (United Nations General Assembly (UNGA), 2020). Rather, it operationalizes the environmental responsibilities articulated in UNCLOS by providing a structured process for identifying, evaluating, and mitigating environmental risks.

4.2 The EIA regime under the BBNJ agreement

Before engaging in any activity in ABNJ, States need to conduct an EIA (Art 28(1); 30(1) (a) BBNJ Agreement). Thereby, consideration must be given to potential consequences activities might have on the marine environment—particularly pollution, changes to the ecosystem or unsustainable use, as well as the effects on other States' resources and interests in proximity to the planned activity. This also includes transboundary pollution and economic, social, cultural or human health impacts. An EIA must be conducted especially if the effects are unknown or poorly understood. This is an expression of the precautionary approach, meaning that when there is a threat of serious or irreparable harm to the environment and lack of certainty, action shall be taken to avoid environmental harm [Guilfoyle et al., 2022; United Nations General Assembly (UNGA), 1992]. However, the BBNJ Agreement fails to expressly bar activities which may cause substantial pollution or detriments to the marine environment.

4.2.1 Stages of the EIA process

The BBNJ Agreement separates the EIA process into four stages (Art. 31): Screening; scoping; impact assessment and evaluation; and prevention, mitigation and management of potential adverse effects.

At the screening stage, the parties determine whether an EIA must be conducted. Screening must allow the party to determine “whether it has reasonable grounds for believing that the planned activity may cause substantial pollution of or significant and harmful changes to the marine environment (…)” (Art. 30(1) (a)). Special consideration is to be given to cumulative impacts and possible alternatives. This focus on highly impactful activities has been criticized by several organizations and authors as the definition of such is not clear and most activities, related to MSR would not require an EIA [e.g. Wang and Li, 2025; Deutsche Forschungsgemeinschaft (DFG), 2022].

An EIA would be required for activities of ocean observation when the risk of pollution or damages to the marine environment cannot be fully excluded, or if the risks of new technologies are not foreseeable. The agreement provides for several instances, where an EIA does not need to be conducted, e.g. if an equivalent EIA has already been completed or global, regional or national legal instruments are already in place that are directly aiming at the prevention of pollution by such activity. This determination must be made available through the ‘clearing house mechanism'. Other parties may then express their views and concerns upon which the planning party may reevaluate its determination. Subsequently, the scientific and technical body, established by the BBNJ Agreement, may review and respond to such determination.

During scoping, the parties consider possible impacts, especially cumulative impacts, outside and within national jurisdiction wherein impact assessment and evaluation refers to the actual assessments of potential impacts, transboundary and cumulative effects that the activity may have. It is assumed that this does not only refer to the environment but also the impacts, referred to in the scoping stage. The last stage, prevention, mitigation and management of potential adverse effects requires parties to analyse measures for these purposes in light of the assessed impacts. Where warranted, parties should prepare an environmental management plan. In each of these stages, parties must consult ‘the best available science and scientific information'(Art. 31). Reference is made to relevant traditional knowledge of indigenous people and local communities. Beyond these principles, the obligation of States to use the best available technologies, as laid down in the ICJs Pulp Mills case, remains unaffected (International Court of Justice, 2010).

4.2.2 Adaptive management

All States and stakeholders as defined in Art. 32(3) of the agreement may participate in the process by submitting comments after notification of the party, planning the relevant activity. Although the Scientific and Technical Body reviews and comments on EIA documentation (Art. 33), the final decision to proceed with the activity remains with the planning State (Art. 34(1)). Once the planned activity has commenced, the conducting party is required to monitor and report any impacts of that activity. In cases where new or unforeseen impacts are registered, States must submit a review through the clearing-house mechanism (Art. 37(2)).

4.2.3 Strategic environmental assessments

Art. 39 of the BBNJ Agreement refers to SEAs, which are conducted in light of a certain plan or activity, taking into consideration its effects and possible alternatives (Song et al., 2024; Shi and Chen, 2020; Craik and Gu, 2019). SEAs are not a novelty as they have already been referenced in other treaties such as the Espoo convention and in relation to the Convention on Biological Diversity (each by supplementary protocol/resolution) (Shi and Chen, 2020). Albeit closely related, the difference to EIAs is that SEAs are conducted at an earlier stage on a broader level (Shi and Chen, 2020). Hence, the consideration of alternatives, or as UNEP put it “SEA extends the aims and principles of EIA to the higher levels of decision-making when major alternatives are still open and there is far greater scope than at the project level to integrate environmental considerations into development goals and objectives.” (Abaza et al., 2004). This means, SEAs may be conducted when an activity is not yet planned or when it still needs to be decided which activity will be conducted or how it should be conducted.

Notwithstanding the above, it needs to be criticized that the BBNJ Agreement fails to implement provisions on how adverse effects caused by activities under States' jurisdiction and control shall be remedied. It is noteworthy that the Agreement does not provide for any remedial mechanism if an EIA is not properly conducted. Given the vast regime of EIAs in existing international environmental law and now the BBNJ, it makes sense to conduct an EIA or SEA before engaging in ocean observation. This is not merely due to the aforementioned environmental impacts but also the coverage of devices within the ocean. Albeit most devices are relatively small when compared to the vast area covered by the High Seas. To comprehensively observe all possible parameters and factors, a broad variety of equipment is needed. This may result in increased noise pollution, harm to marine life, chemical or biochemical pollution or even damage arising from collisions.

4.3 Liability under the BBNJ agreement

Despite the BBNJ Agreement's detailed provisions on procedures, one of its notable limitations is the absence of substantive liability provisions. Although liability has been a point of consideration in the preparatory committee and the Intergovernmental Conference (United Nations General Assembly (UNGA), 2018; United Nations, 2017b,a, 2016) no substantive provisions are included in the Agreement. The BBNJ Agreement focuses on procedures prior to conducting activities and their general principles, rather than regulating the conduct of such activities in ABNJ per se.

The primary liability-related principle incorporated into the BBNJ Agreement is the polluter pays principle, reaffirmed in Art. 7 (a). This principle suggests that States may be responsible for pollution caused or attributed to them. It is very likely that they may only be held accountable if harm affects another State, e.g., if pollution is reaching another State's jurisdiction. Even in such cases, establishing legal responsibility may prove difficult.

Firstly, determining responsibility and liability poses a great challenge. In practice, ocean observation is mostly conducted by private actors, which may only be held liable under municipal laws. In other instances, ocean observation projects are realized through a cooperation of several States where it will be difficult to find the one State to hold responsible. When looking at EIAs for example, States are responsible for the activity under their jurisdiction and control. Moreover, municipal laws of States may still apply and allow at least for liability of private actors. However, it may be difficult to attribute an activity to an actor or a State or to determine when an activity in ABNJ falls under the jurisdiction and control of a State. When multiple State and non-State actors collaborate on ocean observation projects, neither UNCLOS nor the BBNJ Agreement specify jurisdictional rules for attribution.

As a “safety-net”, responsibility would be determined under the Draft Articles of State Responsibility and customary international law until these questions are resolved or a more specific instrument is adopted (Mendenhall and Hassanali, 2023). The Draft Articles require attributability as well as a breach of an international obligation (Art. 2). Under the Draft Articles, a State is only responsible for private actors, if they are exercising governmental authority (Art. 5) or if their actions are directed by the State (Art. 8). This means, responsibility for a purely private ocean observation project would neither fall under UNCLOS, the BBNJ Agreement, nor the Draft Articles. Additionally, given the vagueness of the requirement on when and how to conduct an EIA in ABNJ, it may prove difficult to establish a clear obligation for a State that could be breached.

Secondly, it is difficult to ascertain the cause of the damage. ABNJ are a shared environment, meaning that they may be entered and used by everyone making it difficult to attribute damages and activities to one or more States or even equipment. Ocean observation is not a singular activity but rather something, requiring the observation of multiple factors, using different equipment in all possible areas with all kinds of observation interests. Technology such as Argo floats are vastly spread throughout the oceans and albeit identifiable, it can be difficult to ascertain which of these caused the damage.

Thirdly, the location of the damage or pollution may lead to jurisdictional issues. Pollution in the ocean is not static. It can spread and travel very easily, the exact origin or location may not be determinable. This leads to uncertainties as to which State may assume jurisdiction over the matter. It is possible that jurisdictions overlap if several maritime zones are affected or if several actors are engaged in the activity.

It remains to be seen how jurisdiction over private actors' conduct in ocean observation is established. May it be by States assuming jurisdiction over their nationals, flag States assuming jurisdiction according to the vessel used for ocean observation, an injured State assuming jurisdiction or a general jurisdiction regime, as present, for example with piracy on the High Seas. Beyond that, each State has different laws that may apply which is why clear rules on jurisdiction are necessary. The BBNJ Agreement does not regulate these issues and rather leaves a lot of room for factual and legal uncertainties. Furthermore, ratione materiae a question which remains unanswered is, what if ocean observing technologies, especially autonomous or floating devices enter into a designated marine protected area, in which the use of such devices is explicitly prohibited?

5 New challenges—New technologies

The rapid evolution of ocean observation technologies presents significant challenges for existing legal frameworks (Figure 3). UNCLOS, negotiated more than four decades ago, could not have anticipated the emergence of autonomous systems, advanced robotics, or artificial intelligence–enabled platforms. These developments offer unprecedented opportunities for scientific discovery, yet they also expose gaps in regulatory oversight and attribution of responsibility. For years, legal scholars have been discussing how to approach these, by quick responses and changes in legislation, by additional interpretation of existing instruments or by drafting supplementary laws and regulations in a manner that they can adapt to these new and emerging technologies (Dong et al., 2024; Fernandes Coelho and Rogers, 2023; Veal et al., 2019).

It is to be expected that autonomous research vehicles and devices will continue to emerge and continue to evolve in their degree of autonomy, the same applies to more enhanced robotics, giving scientists the opportunity to expand their horizon in observing the ocean and reaching places which are not yet reachable (Pastra et al., 2025; Hermes et al., 2022). Future developments may see these systems become fully autonomous, be deployed by autonomous vessels or even capable of self-deployment. The use and regulation of autonomous vessels (or MASS) has been widely discussed more recently and yet, scholars have not come to a conclusion on if and how UNCLOS and the more prominent IMO codes should apply to these new kinds of vessels. This also concerns ocean observation (Pastra et al., 2025). In light of these discussions, it is also considered, giving ASVs and AUVs the status of vessels under UNCLOS, which may be difficult as each State has its own definition of such (Veal et al., 2019). In order to determine liability, it will be necessary to ascertain whether ASVs and AUVs should be considered vessels or devices under international law.

When regulating these new technologies, a balance must be met between strict regulation and safety vs. loose regulation and freedom (Pastra et al., 2025). Moreover, new technologies, especially autonomous technologies lead to issues in attribution of liability. If pollution is caused by an autonomous system, who is responsible? The developer, the producer, the programmer, the operator or the owner? Vessels and research equipments need to be registered with a State; how will a genuine link be established upon such registration (Dong et al., 2024)? How are the activities of such autonomous technologies supervised and monitored, in particular, how will the operator know if the system caused pollution or damage when it has not suffered harm on its own? There are several propositions to answer these questions but thus far, none of them has been put into practice (Dong et al., 2024).

6 Policy recommendations

The current liability regime does not suffice to cover all functions of the wide range of ocean observation technologies. There are many ways to address these issues: by a new liability-focused agreement on ABNJ, by concluding a regional agreement for the SWIO, by requiring mandatory liability insurance for ocean observation projects, by establishing a liability fund, similar to the FUND convention and supplementary protocol or by regional, flag State rules.

As for the insurance or the fund regime, it needs to be determined who will need to be insured or who will contribute to the fund. Should it be the entities, engaged in ocean observation or the State under whose auspices the project is conducted? It is possible that the increased costs may create barriers for ocean observation projects. On the other hand, even if a suitable liability regime is found, a fund or insurance may serve as a safety net.

As for the legal regime, the conclusion of a new treaty appears unlikely, given that liability has been a point of consideration for the BBNJ Agreement but has not been pursued further. Generally, liability is a point of contention for international agreements. Moreover, while a regional agreement of national legislation would be a good starting point, it does not apply to the rest of the world, resulting in a fragmentation of liability. However, clear rules on liability for all activities in ABNJ are essential for the well-being of our oceans and the survival of humankind.

6.1 Conceptual framework for liability

In order to address the liability issues that prevail in the use of such technologies, any durable liability framework must be based on a model that allocates responsibility clearly and avoids onus weakening transboundary environmental claims. In terms of liability regimes, two possibilities have established themselves: strict liability and fault-based liability. In the case of SWIO, a hybrid liability regime can offer a coherent and enforceable structure (Figure 4).

Operating entities, which deploy, operate and retrieve ocean observation technologies and in some instances program the technology for specific operations before deployment, should be subject to strict liability for damage arising from the operation. This being due to the ability of devices and vessels placed in the marine environment can interfere with navigation, damage sensitive ecosystems, or generate operational failures, yet such incidents rarely allow for clear proof of negligence. In this regard, strict liability provides for regulatory certainty, ensuring that compensation does not depend on the (re)construction events occurring in remote locations.

Fault-based liability shall be borne by manufacturers since their responsibilities lie in the technical domain of design integrity, quality control, and adequate instructions for operating observation technologies. This distinction prevents the over-extension of strict liability into areas better governed by engineering standards while preserving the incentives for innovation and providing recourse for redressal where defective equipment causes failure at sea.

These two strands of liability shall be bound by mandatory insurance coverage wherein such insurance ensures that compensation is available even when operators lack sufficient financial capacity to satisfy potential claims. In this regard, claims facilities akin to the International Oil Pollution Compensation Funds for incidents during ocean observation may prove to be helpful (Mason, 2003).

6.2 Liability attribution

The issue remains, who should be liable or how to attribute liability. A possibility is to prescribe State control, meaning that each ocean observation project would require a State that functions as a patron. Such could, however, contravene the freedom of scientific research, e.g., if the State tries to control the research results and findings, especially in ABNJ. In other manners, it would also lead to difficulties, distinguishing MSR from gathering of military information (Oxman, 1984). In the event that private actors are to be liable, their liability needs to be controlled in a manner avoiding excessive liability which would in turn deter ocean observation activities. A possible solution would be to attribute liability to the entities engaged in ocean observation and actually doing the harm but also limiting their liability. The excess amount could be covered by a fund to which all actors, engaging in ocean observation projects shall contribute, based on their respective roles.

It is essential to clarify as to who will claim compensation for damage and to whom the actors are liable to. It could be the soon-to-be-established BBNJ Secretariat or RFMOs or a regional body that will hold the stewardship for SWIO or bodies that might oversee individual marine ecosystems such as the Saya de Malha Bank, the Mascarene Plateau or specific LMEs. This calls for further assessment of the extent of damage caused by observation technology to the marine environment and of the and feasibility of reinstatement measures as well as the progress made through such measures. These reinstatement measures are subject to the type of ecosystem damaged. Given the fact certain restoration measures may take more time than the life span of certain companies (Dernie et al., 2003), the proposed insurance mechanism may contribute to the costs of such assessments, provided they pertain to environmental damage in the context of BBNJ to include reasonable reinstatement measures.

6.3 Addressing institutional and regimental challenges

Since monitoring systems span several maritime zones, cross-jurisdictional enforcement ought to be harmonized among States and stakeholders in the region, either through a regional treaty framework or an inter-institutional framework. Otherwise, even the most well-designed liability regime risks becoming ineffective in cases of transboundary harm and cross-border disputes.

Nevertheless, to build a durable ocean observation system in SWIO is to confront two kinds of regulatory challenges. The first lies in the tangible business of engineering viz., regulation by design of all kinds of ocean observation technologies. The second lies in the regulation by law, where balance needs to be struck between authority and obligation in terms of liability as mentioned above.

Furthermore, there is a pressing need for designing new international funding mechanisms in SWIO. Ocean science in the region is presently financed through short-term project grants that expire when the project ends. A permanent observation network is essential to assess the cumulative impacts of anthropogenic activities and thiswhich requires a continuous flow of funds. Inspiration for this can be drawn from the Global Environment Facility (GEF) but tailored specifically to ocean observation [Global Environment Facility (GEF), 2015]. Altogether, these measures can ensure the observation technologies, which the region's scientific and regulatory futures depend on, are comprehensive and sustainable.

7 Conclusion

In drawing these threads together, it is impossible to ignore the fact that SWIO and the marine eco-systems within compel the law to evolve for their conservation and sustainable use. The argument advanced in this paper, that ocean observation is not a peripheral scientific endeavor but the key component of any meaningful governance regime to protect the region's marine environment. Observation, in this regard, provides the empirical basis to bridge the gap between principle and practice and perhaps the only means by which obligations enshrined in UNCLOS and the BBNJ Agreement can be realized.

UNCLOS, monumental as it is, was shaped in an era when the ocean still seemed immeasurable. Its broad obligations to prevent harm and protect the marine environment rest uneasily against the complexities of autonomous vehicles, drifting buoys, decaying Argo floats, and deep-sea systems that defy easy classification for the purposes of regulation. The BBNJ Agreement promises structure but even there, its silence on liability reveals an unresolved tension between aspiration and enforceability. The acknowledgment of this is inevitable and the existing frameworks clearly indicate how easily law can lag behind nature protection and advancements in technology.

SWIO makes these shortcomings uncomfortably clear. The legal regimes intended to safeguard these LMEs, EBSAs and other marine areas in the region must therefore contend not only with geophysical dynamism but also with lack of regulatory measure in place.

To imagine ocean observation not merely as an act of data collection but as a shared inheritance through which States and other stakeholders may glimpse the same ocean and speak from the same facts is important in this regard. Only from that vantage can EIAs become credible and can the polluter-pays principle mature into something more than a gesture toward accountability.

If the ocean is, as William Wordsworth once wrote of nature, “a motion and a spirit that impels all thinking things” (Wordsworth, 1798), then the task before the international community is not to command these waters through ‘governance' but move in harmony through a ‘stewardship'. In this delicate balance, liability becomes the hinge upon which meaningful stewardship turns. Without it, even the most carefully drafted provisions of UNCLOS and the BBNJ Agreement risk dissolving into well-intentioned abstractions. Only when liability is integrated into ocean stewardship, not as an afterthought but as its moral and operational core, will the law begin to match the ocean's vastness.

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Footnotes

Edited by: Noel Vella, University of Malta, Malta

Reviewed by: Giovanni Ardito, National Research Council (CNR), Italy

Miaomiao Yin, Macquarie University, Australia