The Doctrine of Dynamic Equilibrium: Analyzing “Due Regard” as the Balancing Mechanism in the Law of the Sea
Author: Aayush Bhardwaj
The Law of the Sea works on a tension of structures: round the clock development of coastal State jurisdiction on the one hand, and freedom of the international community on the other. This tension is more carefully controlled in no other provision than in the Principle of Due Regard, emphasized throughout various provisions of UNCLOS[1], such as Articles 56(2)[2], 58(3)[3], 87(2)[4] and 246(3)[5]. Although apparently deceptive, due regard has become a doctrine of dynamic equilibrium, an instrument by which rights and duties are being struck in fluid maritime domain.
“Due Regard” as a Relational Standard”
An in-depth examination of the drafting history reveals that the term Due Regard lacks provisional definition in UNCLOS, which was purely a deliberate omission. The Virginia Commentary (Vol. II, p. 561) also clarifies that due regard was deliberately incorporated as a contextual standard by the drafters, So the States could balance out the interests depending on the “nature of the rights involved, the geographic circumstances and any activity undertaken.”
According to an International Law Scholar Bernard Oxman[6], Due regard has been described as a relational obligation placed in a manner that imposes these freedoms and obligations upon sovereign rights holding them within a grid of competing freedoms and obligations. Oxman always stressed that it is not a descriptive (aspirational) word but a prescriptive one that sets a legally binding responsibility of care.
On a similar note, Judge Tullio Treves of ITLOS observes in his concurring opinion in the M/V Saiga Case that due regard stipulates that States take in the case, measures commensurate to the foreseeable effects of their operations on rights of others, which is a principle akin to the principle of reasonableness in General International Law.[7]
These interpretations substantiates the claim that “due regard” is a procedural duty (because it should take into account the rights of other States) and a substantive restriction (because it prevents the actions which can result into the ineffectiveness of the rights of other States).
Judicial Clarification: Case Law as the Architecture of Dynamic Balance
UNCLOS tribunals have been instrumental in transforming the concept from broadly framed to enforceable legal doctrine.
(a) The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom, 2015)[8]
This remains the most important articulation of “due regard.” The Annex VII Tribunal held that:
“Due regard requires an objective standard of reasonableness and proportionality in light of the rights held by other States.”
The Tribunal found the UK in breach of Article 56(2) because it failed to meaningfully consider Mauritius’ fishing rights before declaring an MPA. Importantly, the Tribunal clarified that consultation is a core element of due regard transforming it from a vague expectation into a concrete procedural requirement.
(b) The South China Sea Arbitration (Philippines v. China, 2016)[9]
Tribunal dealt with due regard concerning the rights of EEZ and conventional fishing endeavors. It maintained that Article 56(2) asks the States that they must not in ways that are unreasonable, obstruct the freedom of navigation of other States and the legitimate fishing rights of those States.
The proportionality was the basis of the analysis of the Tribunal, the more intrusive is a measure, the higher is the degree of justification.
(c) M/V “SAIGA” (No. 2) (ITLOS, 1999)[10]
In this case, ITLOS upheld the fact that the rights of the Coastal States in the EEZ have to balance with freedom of navigation in Article 58.
The Court emphasized that any actions involving enforcement should show some “practical accommodation of rights and thereby indicated non-statically the due regard.
All these precedents create a jurisprudential system in which due regard is a multi-dimensional balancing mechanism, which modulates based on circumstances, effect and urgency.
The Doctrine of the Dynamic Equilibrium: The Real Workings of Balance
Due regard is a dynamical balance, a process of re-calibration, as opposed to a rule. Its core components include:
(a) Contextual Flexibility
In contrast to hard and fast rules of territory, due regard varies with whether or not the activity is:
1. Scientific research,
2. Military operations,
3. Resource exploitation,
4.Sea protection or marine environmental.
5.Navigational conduct.
As an example, Article 246(3) requires that coastal State rights be given due regard to in case of a marine scientific research undertaken in the EEZ, i.e. the level of the authorized interference is activity-specific.
(b) Proportionality as a Structural Principle
The Chagos and South China Sea decisions confirm that proportionality is the analytical spine of due regard:
”Measures must be suitable, necessary, and least restrictive of the other State’s rights”
This mirrors the proportionality doctrine applied by the ICJ in Nuclear Weapons Advisory Opinion (1996)[11] illustrating how general international law principles influence UNCLOS interpretation.
(c) Procedural Duties
1. Due regard also incorporates procedural elements:
2. Prior consultation
3. Reason-giving
4. Impact assessment
5. Notification where required
These were emphasized both in the Chagos MPA and by Judge Paik in his statement in the ARA Libertad (Provisional Measures)[12] case. Thus, the dynamic equilibrium doctrine is both procedural and substantive.
Juristic Commentary: The Scholarly Backbone
The major jurists who have shaped modern understanding of “due regard” include:
David Anderson (former ITLOS judge) : In International Journal of Marine and Coastal Law (2008)[13], Anderson notes that “due regard acts as a buffering doctrine, ensuring that the expansion of coastal State rights under UNCLOS III does not suffocate traditional high seas freedoms.”
Kari Olafsson (University of Iceland) : Olafsson’s analysis (Nordic Journal of International Law, 2014)[14] stresses that due regard creates a “functional interdependence” between sovereign rights and international freedoms, preventing either sphere from becoming absolutist.
Natalie Klein : In her book Dispute Settlement in the UN Convention on the Law of the Sea (CUP, 2005)[15], Klein notes that due regard often becomes the “entry point for adjudicative intervention,” because its open-textured nature invites judicial interpretation.
These scholars collectively confirm: “due regard” is the linchpin of balance in the UNCLOS system.
Conclusion
Far from being a mere diplomatic courtesy, the principle of “due regard” forms the legal heart of equilibrium in the Law of the Sea. Its evolution through judicial decisions, treaty interpretation, and juristic commentary has transformed it into a disciplined, proportionality-driven mechanism that ensures peaceful coexistence between coastal State prerogatives and international freedoms.
[1] United Nations. (1982). United Nations Convention on the Law of the Sea. Retrieved from https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
[2] United Nations, 1982, art. 56(2)
[3] United Nations, 1982, art. 58(3)
[4] United Nations, 1982, art. 87(2)
[5] United Nations, 1982, art. 246(3)
[6] Oxman, B. H. (1991). The principle of due regard. In Myron H. Nordquist (Ed.), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. II (pp. 561–562). Dordrecht: Martinus Nijhoff.
[7] Treves, T. (1999). Concurring opinion. M/V Saiga (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), International Tribunal for the Law of the Sea, Judgment of 1 July 1999.
[8] Permanent Court of Arbitration. (2015). Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015. PCA Case No. 2011-03. Retrieved from https://pcacases.com/web/sendAttach/1329
[9] Permanent Court of Arbitration. (2016). South China Sea Arbitration (Philippines v. China), Award of 12 July 2016. PCA Case No. 2013-19. Retrieved from https://pcacases.com/web/sendAttach/2086
[10] International Tribunal for the Law of the Sea. (1999). M/V “Saiga” (No. 2) (St. Vincent v. Guinea), Judgment of 1 July 1999. ITLOS Case No. 2. Retrieved from https://www.itlos.org/en/cases/list-of-cases/case-no-2/
[11] International Court of Justice. (1996). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996. ICJ Reports 1996. Retrieved from https://www.icj-cij.org/sites/default/files/case-related/95/095-19960708-ADV-01-00-EN.pdf
[12] International Tribunal for the Law of the Sea. (2012). ARA Libertad (Argentina v. Ghana), Provisional Measures, Order of 15 December 2012. ITLOS Case No. 20. Retrieved from https://www.itlos.org/en/cases/list-of-cases/case-no-20/
[13] Anderson, D. (2008). Modern Law of the Sea: Selected Essays. Leiden: Martinus Nijhoff Publishers.
[14] Olafsson, K. (2014). Due regard and functional interdependence in the law of the sea. Nordic Journal of International Law, 83(3), 257–276.
[15] Klein, N. (2005). Dispute Settlement in the UN Convention on the Law of the Sea. Cambridge: Cambridge University Press.
