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States have acknowledged that the new internationally legally binding instrument (ILBI) for the conservation and sustainable use of marine biodiversity beyond national jurisdiction must take account of the interests of coastal states with continental shelves that extend beyond 200 nautical miles. This article argues that the ILBI should go beyond repeating the existing legal position as set out in international treaties and customary international law. In particular, the concept of sedentary species is unhelpful in the context of a legal regime governing the use of marine genetic resources. The article makes a number of suggestions for possible inclusions in the ILBI to clarify the relationship between the continental shelf regime and the regime for biodiversity beyond national jurisdiction.

Natural and human stressors in the high seas act across a wide range of spatial and temporal scales. These include direct interaction such as fisheries bycatch or indirect interaction like warming oceans and plastic ingestion. Area-based management tools (ABMTs), such as marine protected areas and time-area closures, are a widely accepted and a broadly successful form of management used to mitigate localized human impacts on marine species and ecosystems. Protection provides an opportunity for population recovery, which can then propagate outside of the closure. As the United Nations negotiates a new treaty on the conservation and sustainable use of biodiversity beyond national jurisdiction, efforts to design and implement high seas ABMTs at appropriate scales are critical to ensure that these spatial protection measures are most effective and climate-ready in the face of changing oceans. Here we identify the four most important temporal scales – contemporary, intra-annual, multi-annual and multidecadal – for aligning high seas ABMTs to relevant ecological, oceanographic and atmospheric processes. From this, we explore how managers and decision-makers can integrate this knowledge when implementing a new treaty.

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In the negotiations for the new treaty on biodiversity beyond national jurisdiction (BBNJ), a key 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 acceptance 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.