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The oceans brim with promise. Technological advances are enabling discoveries of new oil and gas resources and the harnessing of renewable energy from ocean winds, tides, currents, and thermal gradients. Offshore wind power, for example, is said to have the potential to supply a third of the world’s current annual electricity consumption, and wave energy could fulfill a tenth of global energy needs. But is the prevailing legal regime able to govern these multiple, often competing, uses in an effective, efficient, and sustainable manner? A knowledgeable and dynamic panel of women moderated by Catherine Redgwell of the University of Oxford tackled this question on April 9th at the 109th ASIL Annual Meeting.
The panelists set the stage by highlighting the problems arising from the increasing use of oceans to meet global energy demands. Maria Gavouneli of the University of Athens noted that multiple renewable and nonrenewable energy activities often take place in restricted areas of the sea where jurisdiction is unclear because boundaries have yet to be delimited and joint development agreements are yet to be concluded or implemented. As exemplified by the Eastern Mediterranean region, the situation is further complicated by overlapping legal regimes such as the United Nations Convention on the Law of the Sea (UNCLOS), environmental law, investment law, domestic regulation and European Union law.
Another challenge identified by Rachael Salcido of the Pacific McGeorge School of Law is the paucity of scientific data on the deepwater environment. This makes it difficult to understand the impacts of marine energy activities on each other and on the environment. As Salcido pointed out, while marine renewable energy activities generally have more benign impacts than those related to fossil fuels and other nonrenewable sources, marine renewable energy convertors and installations can have significant negative effects that must be understood and mitigated.
Seline Trevisanut of the Utrecht Center for Water Oceans and Sustainability also emphasized the need to understand the impact of marine energy activities. She noted that the cumulative effects of marine energy activities both on the environment and on the activities themselves remain unknown. Without knowledge of the compatibility of the activities, no synergies can be exploited. In Trevisanut’s opinion, an integrated, interdisciplinary and inter-sectoral approach for marine energy would improve the legal regime governing energy at sea and help resolve many of the problems raised by the panelists. She identified the law of the sea, energy law, and climate change law as the three main regimes governing marine energy and advocated greater communication and integration between the regimes. Although Trevisanut welcomed nascent efforts to interact and exchange information across these regimes, she believed efforts are hindered by the absence of a secretariat for UNCLOS.
Gavouneli agreed with the three legal regimes governing marine identified by Trevisanut but emphasized the preeminence of one of them, the law of the sea. For Gavouneli, the key role of the law of the sea in establishing a general framework for various aspects of ocean governance and defining jurisdiction makes it the foundational starting point for the integration of the marine energy activities.
Gavouneli also suggested that three existing tools could be used to improve the integration of marine activities and address problems arising from the new uses of marine energy: 1) the obligation to conduct environmental impact assessments (a principle now well-established under customary international law even though there is no consensus on the content of such assessments); 2) the requirement to have due regard to other uses of the seas; and 3) the use of marine spatial planning.
Salcido generally agreed with Gavouneli, but questioned whether environmental impact assessments are sufficient to promote the sustainability of the oceans. In her opinion, integrative evaluation tools that specifically seek to understand cumulative impacts are essential.
The panelists’ remarks ignited a lively discussion that touched upon the desirability of an ocean governance dispute settlement mechanism; the evolution of the due regard requirement; regional-level integration, and the importance of international environmental law to marine energy governance.
Tafadzwa Pasipanodya is an associate at Foley Hoag LLP in Washington, DC. She advises sovereign states in international disputes against other states and corporations.