Adjacency and due regard: The role of coastal States in the BBNJ treaty

Abstract

In the negotiations for the new treaty on biodiversity beyond national jurisdiction (BBNJ), a fundamental question will be the relationship between the regime for areas beyond national jurisdiction (ABNJ) and areas under coastal State jurisdiction. Adjacency has been raised as a concept that might assist in bridging these areas. It has been suggested that adjacency is a legal principle that could give coastal States additional rights or responsibility in relation to biodiversity in ABNJ proximate to their own national maritime jurisdictions. However, there has never been an accepted principle in the law of the sea that coastal States have priority over other States in ABNJ. We propose that due regard is a more appropriate lens to address this issue and one that would be consistent with existing principles under the United Nations Convention on the Law of the Sea (UNCLOS). References to adjacent coastal States can be found in the draft text considered by the Intergovernmental Conference. The article analyses challenges arise in defining adjacent States as well as applying due regard to elements of the package. It considers the use of adjacency in the draft texts issued for the third and fourth sessions of the Intergovernmental Conference, as well as proposals made by delegates.