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 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.

The Interplay between the CAOF Agreement and BBNJ Agreement: A Chinese Perspective

“…Adjacency has been proposed as a concept that might bridge the ABNJ and areas under coastal state jurisdiction [30] (p. 3). At the IGC and during PreCom, some delegations proposed the principle of adjacency, which means that coastal states should have priority rights over measures taken and activities conducted in the ABNJ adjacent to their maritime areas [31] (p. 42).…”

“…Instead of adjacency, "due regard" has been regarded as the most appropriate principle that could balance the rights of adjacent coastal states in BBNJ negotiations [30] (p. 3). The proposal to incorporate adjacency into the ILBI has been opposed by some delegations, who are concerned that it would imply that adjacent coastal states might enjoy greater interest, or greater rights, in ABNJ than other states [30] (p. 2). Accordingly, the ideas of due regard and adjacency were advocated side-by-side at the fourth session of PreCom in July 2017 [35].…”

The Voice of Science on Marine Biodiversity Negotiations: A Systematic Literature Review

“…5 requires cooperation among Parties in ABNJ "for the conservation and sustainable use of biological diversity" for implementation of Art. 8 on in situ conservation, including the establishment of MPAs (Elferink, 2018;Gjerde et al, 2019) Art.6 provides an example of a way to encourage biodiversity action at the sectoral level (Gjerde et al, 2019) 10 % of coastal and marine areas to be protected by 2020: provides a foundation for conservation decisions (Evans et al, 2015;; provides broad ABM obligations for States to establish a system of protected areas (Durussel et al, 2017) OSPAR commission signed statement for establishment of "ecologically coherent, representative network of well-managed MPAs" with main assessment criteria being adequacy/viability, representatively, replication, and connectivity" (Evans et al, 2015) (Long, 2019) states at the stage of proposals for activities, literature points to the term "potentially affected States" as being more appropriate (Mossop and Schofield, 2020).…”

“…The interplay between frameworks receives much attention, namely: between the future BBNJ agreement and the existing fisheries framework (Matz-Luck and Fuchs, 2014;Marciniak, 2017), UNCLOS (Gjerde et al, 2019), and the ATS (Johnson, 2017;Li, 2018). Other issues include how the BBNJ agreement can enhance the performance of existing governance frameworks in the southern hemisphere (Warner, 2017), the special circumstances of the Arctic and implications for the BBNJ agreement (De Lucia, 2017;Kraabel, in press), "forum shopping" in institutions (Tsuru, 2017), the role of coastal states in BBNJ, and adjacency and due regard (Elferink, 2018;Mossop, 2018;Mossop and Schofield, 2020).…”

Data_Sheet_1.pdf

“…The interplay between frameworks receives much attention, namely: between the future BBNJ agreement and the existing fisheries framework (Matz-Luck and Fuchs, 2014; Marciniak, 2017), UNCLOS (Gjerde et al, 2019), and the ATS (Johnson, 2017;Li, 2018). Other issues include how the BBNJ agreement can enhance the performance of existing governance frameworks in the southern hemisphere (Warner, 2017), the special circumstances of the Arctic and implications for the BBNJ agreement (De Lucia, 2017; Kraabel, in press), "forum shopping" in institutions (Tsuru, 2017), the role of coastal states in BBNJ, and adjacency and due regard (Elferink, 2018;Mossop, 2018;Mossop and Schofield, 2020).…”