Due Regard Obligation in Areas Beyond National Jurisdiction

Due regard obligations require actors to reasonably consider the rights or interests of others when exercising their own rights and performing their duties. This paper examines how the due regard obligation 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 (LOSC) on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement). As human activities in ABNJ increase, the due regard obligation becomes crucial for balancing competing rights and interests of States, non-State actors and relevant bodies. The literature and international jurisprudence have mainly addressed conflicts between coastal and flag states within national jurisdictions. In contrast, new conflicts regarding the due regard obligation will be pertinent in ABNJ, including conflicts between States with the same rights or interests or those between States, non-State actors, and relevant bodies. This paper addresses this gap by analysing new conflict dynamics regarding the due regard obligation in ABNJ, exploring potential conflict scenarios and providing a framework for understanding and resolving these issues. It provides legal guidance regarding marine genetic resources, area-based management tools and the transfer of marine technology in ABNJ.