Due Regard Obligations in Areas beyond National Jurisdiction

Abstract

Due regard obligations require both States and non-State actors to reasonably consider the rights or interests of other States or non-State actors when exercising their own rights and performing their duties. This article examines how due regard obligations should be interpreted in areas beyond national jurisdiction (ABNJ) in light of the adoption of 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). As human activities in ABNJ increase, due regard obligations become crucial for balancing the competing rights and interests of States, non-State actors and relevant institutions, frameworks and bodies (IFBs). The literature and case law have mainly addressed conflicts between coastal and flag States concerning the application of due regard obligations within national jurisdictions. Different dynamics arise in ABNJ from potentially conflicting activities and disagreements between States with the same rights or interests, or those between States, non-State actors and IFBs. This article addresses this gap by analysing the new dynamics of due regard that are expected to arise concerning marine genetic resources and area-based management tools with the implementation of the BBNJ Agreement.