• New legislation an opportunity for SL to improve its maritime governance

The BBNJ, more specifically the ‘Biological diversity of areas Beyond National Jurisdiction’ is an agreement under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine resources.

Sri Lanka signed the agreement on 20 February and presented the instrument of ratification on 16 September. Although domestic laws and regulations are under preparation yet, the presentation of the instrument of ratification in such a short time demonstrates the State commitment for better ocean governance. In comparison, Sri Lanka signed UNCLOS on 10 December 1982 but ratified it only on 19 July 1994, a good 12 years after signature.

The BBNJ agreement more commonly known as the ‘High Sea Treaty’ comprises 76 articles in 12 parts and 2 Annexes. It’s important this island State’s youngsters read the BBNJ agreement in full, to understand the contents, structure and also follow up on the evolution of the agreement in years to come, till it gets enforced in ‘120 days after the deposit of the 60th instrument of ratification, approval, acceptance or accession’. 

Morocco was the 60th State to submit ratification on 19 September and Sri Lanka was the 58th State to present the instrument of ratification. The agreement will come into force from 17 January 2026 and is among the fastest implemented global agreements. The agreement is unique as it addresses the issues of high seas governance and monitoring.

Sri Lanka has 200 nautical miles (one nautical mile is equivalent to 1.8 Kilometres) of Exclusive Economic Zone (EEZ) under the provisions of UNCLOS where sovereign rights for living and non-living resources of the water column and the seabed (including the sub soil) lie within our jurisdiction. The BBNJ is applicable beyond these 200 nautical miles and when we secure our claim for the Continental Shelf under the provisions of UNCLOS, BBNJ will apply beyond the outer limit of Sri Lanka’s margin.

The BBNJ will apply for the water column and the seabed in this oceanic space beyond Sri Lanka’s maritime jurisdiction. If you compare the two images where the BBNJ applicable area beyond EEZ and the BBNJ applicable area after securing the continental shelf claim as applicable in the Indian Ocean region to understand the geo-strategic posture of provisions under UNCLOS and BBNJ. This picture representation is an eye-opening illustration of the island nation’s posture in overall Indian Ocean governance due to its unique geographical location and what jurisdiction it’s bound to play.

This understanding is vital for an island State like us in securing our national interests, as several declarations by State parties hint at ‘reservations’ these State parties have on the agreement. The agreement is new and just like the UNCLOS will take several more years to be absorbed by the State apparatus. And in years to come this BBNJ agreement will likely be interpreted at various viewpoints just as how UNCLOS is interpreted today by interested State parties. 

Nevertheless, now there is a global consensus on how to govern or administer the high seas, and State parties have agreed on the articles and the parts of the agreement. It is the duty of the Conference of Parties (CoP) to steer the agreement following the foot-steps of the State Party meeting for UNCLOS, in making the oceans protected for common-good of the global members.

In a recent round table conference held under the auspices of the Regional Centre for Maritime Studies (RCMS) of the Sir John Kotelawala Defence University (KDU) highlighted the need for furthering Sri Lanka’s commitment to the BBNJ that goes beyond mere signing and ratification. The discussion looked at various spheres which required Sri Lanka to look at, from strengthening domestic laws and regulations to expanding the diplomatic reach, to playing an active role in numerous regional and global fora. In order to understand why Sri Lanka needs to actively represent the global fora and identify what primarily is our national interests related to the BBNJ.

Sri Lanka’s national interests on oceans around us expands to the Bay of Bengal (closest and bordered sea space), the Laccadive Seas (again bordered), and the Arabian Sea (furthest and not bordered). Each of these three oceanic spaces carry commonalities and distinctive differences at same time in shaping Sri Lanka’s status in arenas such as climate (and weather), socio-political and economy.

Thus, maritime security architecture from Maritime Domain Awareness and the Law enforcement capacity, along with this island nation’s ability to grasp the marine science studies comes to the forefront with these agreements. We should examine the following real-time applications in these scenario-based studies for better clarity in understanding the oceanic relations to our political and geo-strategic posture that would have inter-linked, cross-linked, and networked effects for the islanders.

Although BBNJ does not address the fishery issues in the agreement and does not place fishing as a focused subject, the high sea fishing of Sri Lanka would stand to be an affected subject if Marine Protected Areas (MPAs) and Area Based Management (ABM) in Part III of the agreement is interpreted by State parties in the southern part of the Arabian Sea. In this region, it is the Sri Lankan high-sea fishers that go this far from Sri Lanka to fish. No other fishermen in the south Asian region goes this far to fish in high-seas, thereby it becomes a national interest for us to monitor, facilitate and coordinate our high-sea fisher folk in the Arabian Sea.

Sri Lanka's Vessel Monitoring System (VMS) already tracks Sri Lankan flagged fishing vessels, and this mechanism is regionally and globally accepted as very comprehensive and credible. Therefore, Sri Lanka needs to expand its diplomatic, naval and fishery reach to island States like Seychelles, and regional organisations like the North Indian Ocean Tuna Commission and western Indian Ocean collaborations to secure Sri Lanka’s national interest. 

This means the need to allocate finances for such representations must go into the thinking of the Government coffers as such engagements, and they should not be measured purely by the money spent. Money needs to be spent in order to be the active member of the region, to secure our national interests. Having no presence in these regional and global fora is as good as having no power there either. This we have seen with developments in the International Seabed Authority (ISA) when India submitted their licensing for explorations of the Afanasy Nikitin Seamount, which I wrote about previously in The Daily Morning.

In the second scenario-based study, let's hypothetically consider the seabed resources towards the southern oceanic space to the island beyond our EEZ, where Environment Impact Assessment (EIA) under Part IV of the BBNJ agreement will come into play. For EIA we need data, we need past data in repository collection, raw data, processed data and simulated data for future.

Has our island State invested in this? Sadly, not yet as governments after governments stay maritime blind and take refuge in moratorium as the latest trend to stay shy from marine science. Under present geo-strategic competition, such marine science capacities and capabilities must be home-grown not relying on one-sided foreign support, as geo-political inclination by such gestures will surely be misinterpreted as with our ports and harbours in the past.  

The development of marine science capacities and capabilities as addressed in Part V of the BBNJ, to be evaluated with Sri Lanka’s national interest in focus not at the expense of political interest. These are all part of ocean governance and governance alone does not mean mere rules and regulations.

Thus, BBNJ will compel the island States to undertake a course-corrections in planning ocean governance to serve national interests. Whilst the Navy can design and build MDA capability, can reach the ocean regions of our national interests, that maritime-reach needs to be supported by science and law.

This makes us look at the third scenario-based study, where Sri Lankan flagged vessels engage in high-sea illegal activity (this can be numerous) with another country vessel (whether flagged or not), and how prepared the Sri Lankan judicial system has provisions to deal with these types of ocean based transnational crimes? 

Fortunately, it was in consideration as our legal authorities have been informed, and are working to address the same under stakeholder engagements. This is the reason why our youth, and state officials need to read the BBNJ agreement and exchange ideas and opinions among their contemporaries in different fields to secure this island nation’s national interest.

The writer is of the opinion they should not rely on seniors to understand these and implement them, as it is evident that our senior policy planning community, including the writer, has failed to change the mindset of the governance despite respective professional standing achieved during long spanned careers.

These are just three scenario-based studies to highlight the variance in Sri Lanka’s national interest for broader understanding of the global ocean governance tools in place. The declarations as available in the treaty webpage, made by several countries points how these countries pro-actively secured their national interest as the new treaty will open another vista of opportunities and challenges.

Thus, let the oceans tomorrow be governed and managed by new thinking and new knowledge. A knowledge based on mutual trust and focus on national interest through robust discussion and consensus is needed. The fact that we have not developed such thus is a failure of governance of our island. We need to correct that failure to elevate our statecraft to be ready to deal with the current and future geopolitical and environmental changes. The BBNJ can be utilised as a new awakening for our island nation, just as UNCLOS has awakened Sri Lanka’s maritime governance in the last decade. Let us look to the ocean and change our perceptions, to best evolve and utilise it in a sustainable manner to achieve our national interests.   

 (The writer is the former Chief Hydrographer/Chief of Staff of the Sri Lanka Navy, who post-retirement writes on the maritime environment and analyses the regional developments in maritime and geostrategic scope. He remains an International Consultant for undersea cables and maritime security)

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(The views and opinions expressed in this article are those of the writer and do not necessarily reflect the official position of this publication)