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

The regulation of ocean observation in the context of the United Nations Convention on the Law of the Sea (UNCLOS) and the evolving regime related to the Biodiversity Beyond National Jurisdiction (BBNJ) draws attention to a complex interplay of regimes and the common concern for the ocean stewardship. In this regard, as the drive for ocean observation is expanding, particularly in light of climate change, biodiversity loss and pollution also known as the triple planetary crisis, the legal architecture surrounding the liability for damages arising from ocean observation becomes increasingly critical. This paper will explore the barriers to effective legal accountability in ocean observation, particularly in Areas Beyond National Jurisdiction (ABNJ), where UNCLOS and the BBNJ Agreement along with the United Nations Framework Convention on Climate Change, the Paris Agreement and the Kyoto Protocol, converge within the broader framework of ocean governance to create a nuanced regulatory landscape. The lack of coherent tethering between advancing technological capabilities in ocean observation and the absence of a corresponding liability framework under the regime mentioned above will be examined, with a particular focus on gaps in liability for damage to marine biodiversity, and data collection. Additionally, the legal challenges and opportunities presented by the South West Indian Ocean (SWIO) Region, an oceanic expanse impacted by ocean observation to monitor offshore activities that affect marine biodiversity, will be explored in this paper. The region, characterized by its rich biodiversity, underscores the need for a robust liability framework to address transboundary risks, benefit-sharing and the conservation and sustainable use of the marine environment. By pursuing a detailed analysis of treaty law, case law, customary law and regional cooperation mechanisms, this paper seeks to delineate a path toward a more coherent and accountable regime for ocean observation in ABNJ with a particular focus on SWIO. Preliminary analysis indicates that a fragmented regime interaction raises a barrier to accountability. Consequently, the paper proposes a conceptual liability framework that integrates legal standards with regional cooperation.