IX. Responsibility and liability
Suggestion 1: Jurisdictional scope
States and responsible and liable for processes and activities under the jurisdiction or control of a State, undertaken within or beyond national jurisdiction, that have potential impacts on marine biodiversity and marine environment in ABNJ and to activities related to the utilisation of marine genetic resources in or derived from ABNJ.
For the purposes of this section, processes and activities subject to national jurisdiction and control include activities conducted:
- from their territory;
- within their maritime zones and under their jurisdiction;
- by or from vessels or aircraft flying their flag; or
- by their nationals
Suggestion 2: Liability fund
Establishment of a liability fund to pay the cost of remediation and restoration in case of damage where the responsible party cannot be found or where a State has done its due diligence and nonetheless an activity under its jurisdiction and control has caused damage to BBNJ.
Notes: As was suggested by the Law of the Sea Tribunal, such a fund might fill the liability gap left as a result of the limited liability a state can incur under the doctrine of due diligence. It would be better to have a liability fund than to abandon serious damage that could be remediated. A judicial or quasi-judicial mechanism, which may be ad hoc, will need to be designated to allocate compensation.
References: Advisory Opinion on Deep Seabed Mining