The term 'areas beyond national jurisdiction' (ABNJ) refers to maritime zone where no littoral state has any obligation for management. Put more simply, approximately two thirds of the high sea of world's ocean fit within this term. Because of their unique biophysical features, management and enforcement needs, such areas in ocean need legislative emphasis.
The 1972 Stockholm Conference on Human Environment first specifically addressed the significance of marine environment conservation and protection. However, it did not provide any rules or standards for protection of marine environment. The 1992 Rio Conference on Environment and Development, urged States to act in all possible ways to address the degradation of marine environment. The provisions of the 1982 UNCLOS consolidate the rights of coastal states over maritime zones adjacent to their territories. Article 56 enables the coastal states to exploit marine resources within the Exclusive Economic Zone (EEZ), whereas Article 76 allows coastal states to conduct offshore activities ranging from economic exploitation to energy production. Article 194 further enumerates that exploration and exploitation of marine resources should be managed in such manner that would minimise the potential of pollution, accidents or emergencies to the fullest possible extent.
Under the rubric of 'Biodiversity of Areas beyond National Jurisdiction', section 128 of the draft Bangladesh Maritime Zones Act of 2019 enumerates that government may initiate programs for ensuring conservation as well as sustainable use of marine biodiversity of areas beyond national jurisdiction. The provisions of Clause 4 of section 128 also pick up the discussion on the significance of management of marine protected areas. A vital takeaway from the provision is that the wordings of this sub-clause emphasise on enhancing the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction; and on facilitating research support to monitor the management system.
In 2008, the FAO International Guidelines for the Management of Deep-sea Fisheries in the High Sea advocates coastal states to adopt national policy for better alignment with international law relating to areas beyond national jurisdiction. According to the FAO (Food & Agriculture Organisation) and the UN Environmental Program, a national policy on ABNJ should include number of issues encompassing: sustainable use of marine living resource; prevention of impacts on vulnerable marine ecosystems; incorporation of policy relating to IUU fishing; endorsement of precautionary and ecosystem approach. Furthermore, national policy should also highlight the requisite measures to effectively materialise those issues.
However, regarding the draft Maritime Zones Act, 2019, all is not what it seems. The draft law has had the scope to update and strengthen legal elements that a littoral state like Bangladesh should take into account. Keeping in mind with the fragility of marine environment and uncertainty associated with marine exploration and exploitation activities, the draft Maritime Zones Act of 2019 should have some measures associated with strict and continuous monitoring mechanism in fulfilling coastal state's obligation of exercising due diligence mentioned in article 208 of the 1982 UNCLOS.
The functions of such monitoring mechanism can be carried out through establishing national scientific and technological body for exchanging and integrating maritime information on biodiversity among neighboring littoral states. To identify any infringement of legal provision and to review exploration activities, there is urgent necessity to establish a system of maritime database and information bank. Such maritime dataset is also helpful for state mechanism in multiple ways: to forecast the requirement of international cooperation and coordination required in which maritime sector; to submit report to international institutions to highlight state's compliance of international law obligations and recommendations for future drafting of hard law and soft law. However, in the draft Maritime Zones Act, there is no mention of such 'comprehensive' legislative, administrative or database construction measures to formulate such body.
In latter days, various fast track maritime projects (i.e., construction of sea ports, coal power plants and LNG terminals) are currently underway in the coastal areas adjacent to Sonadia, Mongla, Pyra and Matarbari. The offshore gas blocs in the Bay of Bengal are revving up for drilling and explorations. The marine biodiversity of these areas is experiencing fast pedestal of change. The vista of gargantuan development is getting filled to the brim. However, measures in mapping out any elaborate impact on those areas' marine ecosystem still remains as distant foghorn. Serious pollution from land-based activities may spread beyond the limits of the place of origin. It may also affect the maritime areas beyond internal water and territorial sea.
The draft Maritime Zones Act of 2019 lacks any specific provision about how these existing heavy development projects will make a face-off with the marine biodiversity and ecosystems. The Act has surely missed the opportunity to synchronise and address the spirit of marine environment protection with these intensified development projects.
Nonetheless, the success or failure of the law lies with its implementation through the national institutional and administrate apparatus. As of the time of preparing this write up, it would be prudent to opine that whether the law would be a turning point or simply a passing phase remains to be appraised.
The writer is Teaching Assistant, Texas Tech University, USA.