‘Due Regard’ Obligations under the 1982 UN Convention on the Law of the Sea: The Laying of Cables and Activities in the Area

Abstract

This article examines in detail the obligations of ‘due regard’ found in the 1982 UN Convention on the Law of the Sea (LOSC). It considers the way these are reflected in the International Seabed Authority (ISA) current Prospecting and Exploration Regulations, and then looks at the way that ‘due regard’ obligations have been considered by international courts and tribunals and by scholars. It then considers the specific ‘due regard’ issues raised by cable laying, and the modalities for settlement of disputes that may arise from such activities.

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

“…Provisions in UNCLOS that govern the relationship between the rights and interests of States in areas beyond the territorial sea, on the whole, tend to be balanced and reciprocal in nature [27]. The obligation to have "due regard" to the rights and interests of other States appears in many places, including in the balancing of interests in the EEZ and in the high seas [26,27]. 4 Notably, UNCLOS does not expressly require States exercising high seas freedoms to have due regard to coastal State rights other than in relation to straddling and highly migratory fish stocks.…”

“…5 . Nevertheless, it has been argued that the principle of due regard is a general organising principle in the law of the sea [28] and that due regard could be considered a customary international law rule "necessarily implied in the need to ensure coexistence between the customary freedoms of the high seas, the rights in the Area, and the rights of coastal States in the EEZ and on the continental shelf" [27].…”