Abstract
After almost two decades of discussions and negotiations, the legally binding instrument on biodiversity beyond national jurisdiction (‘BBNJ’) was adopted on 19 June 2023, of which Environment Impact Assessment (‘EIA’) is one of the key pillars. Given that EIA in the new instrument is proposed with a view to the conservation and sustainable use of marine life in areas beyond national jurisdiction, flag States should mainly have an obligation to regulate EIA by applying their domestic legislation. However, for some activities involving many vessels, marine structures, and cables, EIA by flag States may not work effectively. EIAs for offshore windfarm activities may be particularly difficult. Against this background, this study explores how international legal rules should regulate EIAs of offshore windfarms established in areas beyond national jurisdiction. In particular, this study considers which States should have EIA obligations from the perspective of both lex lata and lex ferenda.
1 Introduction1
After almost two decades of discussions and negotiations, the text of a new legally binding instrument on biodiversity beyond national jurisdiction (‘BBNJ’) was adopted on 19 June 2023,2 of which Environment Impact Assessment (‘EIA’) is one of the key pillars. Given that EIA in the new instrument is proposed with a view to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (‘ABNJ’),3 flag States will mainly have the obligation to regulate EIA by applying their domestic legislation. In fact, in the drafting process for the new instrument, several States emphasised the role of the flag State for EIA in ABNJ.4
However, during drafting and negotiations for the new instrument, the US stressed the responsibility of non-flag States to provide EIA, based on Article 206 of the United Nations Convention on the Law of the Sea (‘UNCLOS’), which provides general rules relevant to EIA.5 Article 206 does not limit the authority to regulate EIA only to flag and coastal States. According to Article 206, when States have ‘jurisdiction or control’ over an activity which may cause environmental harm, they shall undertake an EIA. Moreover, some activities which are expected to be conducted on the high seas would cast doubt on the effectiveness of EIA conducted only by flag States, especially under the current situation in which the custom of a flag of convenience prevails. Offshore windfarms, which are expected to be launched in ABNJ in the near future, are an activity which will face difficulties with regard to EIAs, because multiple vessels and marine structures under different flag States are used for these projects.
Against this background, this article explores how international legal rules should regulate EIAs of offshore windfarms established in ABNJ. For this purpose, Section 2 outlines the current situation of offshore windfarms and their legal regulation under domestic and international law. Then, Section 3 analyses the EIA framework for offshore windfarms beyond national jurisdiction from the perspectives of both lex lata and lex ferenda. Finally, the conclusion summarises the future implications of the EIA system for offshore windfarms in ABNJ.
2 Current Approaches to Regulation of Offshore Windfarms
2.1 Domestic Legal Frameworks Applicable to the Offshore Windfarm Industry: Toward the Future
2.1.1 Construction and Operation of Offshore Windfarms
The offshore windfarm industry has increasingly received attention as a key form of renewable energy. Article 2(1)(a) of the Paris Agreement under the United Nations Framework Convention on Climate Change sets a goal of limiting global warming to well below 2°C and pursuing efforts to limit it to 1.5°C above pre-industrial levels. Windfarms are expected to contribute to achieving these goals.6 Alongside other renewable energies, windfarm operations—including offshore windfarms—have already been started. These operations are expected to expand energy generation substantially in the future, owing to intensive investment in the field.7
No offshore windfarms have been established on the high seas to date, but given these factors and technological developments it is likely that offshore windfarms could be established in the high seas in the future.8 Offshore windfarms closer to coastal areas are easier to install and operate, because the cost of transporting materials from the land and for electrical transmission through seabed cables decreases with closer distances to the shore.9 However, offshore windfarms installed further away from coastal lines also have some advantages. First, the distance from the land guarantees the strength of the wind, making electrical power more efficient.10 Moreover, coordination between the offshore windfarm and other activities, such as navigation and fishing, which is required in the coastal area, is not necessarily needed on the high seas. Hutchins lists the advantages of offshore windfarms on the high seas as:
the availability of ocean space beyond local jurisdiction, reduced permitting costs, lower taxation, the invention of floating, self-aligning turbines (permitting placement in very deep waters and maximizing efficiencies), investments in undersea power transmission cables, and lack of interference with coastal vantages, nearshore fishing, or recreational boating.11
Offshore wind turbines can be divided into two types: bottom-fixed offshore wind turbines that are rooted to the seabed; and floating wind turbines (‘FWT’). The former are used near coastal areas, and it is expected that the latter would largely be used in areas far from the land and at great depth.12 Therefore, it is highly likely that turbines on the high seas would be FWT, though technology advancements would be needed to support this and submarine cables would need to be attached to the turbine to transmit electricity from the high seas to land.13
Additional vessels, including specific vessels like self-elevating platform (‘SEP’) vessels and dynamic positioning system (‘DPS’) vessels, are utilised when building offshore windfarms and to maintain them.14 Moreover, when the offshore workload is extended, it is vital to provide an accommodation facility.15 Most vessels used for offshore windfarm operations are legally categorised as vessels under international law, though the status of FWTs and accommodation facilities is unclear under international law.
2.1.2 Current State Legislation
Although offshore windfarms have not been operated in ABNJ yet, many States have recently introduced legislation on offshore windfarms within their waters into their domestic legal systems. This legislation is important for understanding how States regulate offshore windfarm industries and envisage the framework for offshore windfarms in ABNJ. For example, Japan introduced the Act on Promoting Utilization of Sea Areas in Development of Power Generation Facilities Using Maritime Renewable Energy Resources in 2018, to promote the offshore windfarm industry.16 In 2019, Canada adopted the Canadian Energy Regulator Act,17 and in 2021, Australia introduced the Offshore Electricity Infrastructure Act,18 which was followed by its regulations adopted in 2022.19 In 2023, the US also started to modernise its regulations for future offshore wind energy resources.20 Although the content of domestic legislation differs from State to State, such domestic laws share three commonalities.21
First, States currently focus on offshore windfarms within their maritime areas and not on the high seas.22 In the case of Japan, for example, in accordance with Article 2(5) of the new legislation, ‘promotion zones for the development of marine renewable energy power generation facilities’ can be established only within territorial or internal waters. Therefore, some commentators claim that offshore windfarms should be allowed to be installed within Exclusive Economic Zones (‘EEZs’).23 Japan started to consider such expansion to EEZs in a manner consistent with international law in 2022.24 Similarly, US federal legislation provides for offshore windfarms within the Ou‑ ter Continental Shelf defined in US domestic legislation,25 namely, the Outer Continental Shelf Lands Act.26 In addition, the Australian Act provides the rules for the Commonwealth offshore area, which covers territorial waters and EEZs as well as their seabed and subsoil beneath.27
Second, States typically control the operator of the offshore windfarm. For example, under Japanese legislation business operators must obtain the permission of the Minister of Land, Infrastructure, Transport and Tourism when developing offshore windfarms.28 In the case of the US, the Department of the Interior, especially the Bureau of Ocean Energy Management, has the authority to provide a lease.29 Similarly, Part II of the Australian Regulation established a licensing Scheme and authorises the Minister for Climate Change and Energy to grant licenses to offshore windfarm operators.30 Coastal States adopt this policy based on the shared understanding that coastal States have the power to regulate offshore windfarms within their EEZs, and that the system to request prior permission is efficient.
Third, when constructing and operating offshore windfarms, business operators are required to conduct EIAs. For example, the Enforcement Order of Japanese EIA Act was amended in 2011 to incorporate windfarm construction, including offshore windfarms.31 Therefore, offshore windfarm construction is currently subject to the Japanese EIA procedure. Moreover, offshore windfarms within the Australian maritime area are subject to EIA under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).32 In this way, State practice indicates that EIAs must be conducted when constructing offshore windfarms.
2.2 Basic Framework for Offshore Windfarms in Areas beyond National Jurisdiction
2.2.1 Freedom of the High Seas
Although the UNCLOS is considered a constitution for the ocean,33 it does not have rules specially addressing offshore windfarms. However, this does not mean that offshore windfarms were not envisaged when the UNCLOS was adopted, and thereby not regulated by the UNCLOS. Article 56 of the UNCLOS refers to the possibility of offshore windfarms within a coastal State’s EEZs.34 This provision states:
the coastal State has: (a) sovereign rights … with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds …35
However, it must be noted that this is applied only to the EEZ, and the high seas system does not have any counterpart to the EEZ of coastal States. Instead, the freedom of the high seas reflected in Article 87 of the UNCLOS guarantees the right of all States to engage in multiple activities, possibly including offshore windfarm construction and operation. Article 87 states:
The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.36
As the expression inter alia indicates, the freedom of the high seas is not exclusively limited to the activities provided in subparagraphs (a) to (f) of paragraph 1. Therefore, windfarm operations may be included in the activities allowed under Artitcle 87 pursuant to its provision for the ‘freedom of the high seas’. This interpretation is supported by the activities manifestly allowed in the subparagraphs. Whether fixed-bottom or floating, offshore windfarms usually take the form either of artificial islands or other installations provided in Article 87(1)(d). Compared to Article 56(1)(b), which grants coastal States jurisdiction over ‘the establishment and use of artificial islands, installations and structures’, the reference to ‘structures’ is missing in Article 87(1)(d). However, given the unclear distinction between installations and structures and the interchangeable usage of these terms, the term ‘other installations’ under subparagraph (d) can be interpreted to cover structures too.37 As such, this article describes all ‘artificial islands, installations and structures’ simply as ‘marine structures’ without any distinction. Unlike the other freedoms mentioned in paragraph 1, the freedom provided in subparagraph (d) was not reflected in the Convention on the High Seas adopted in 1958,38 probably because it was not realistic when the convention was adopted. However, due to technological developments and as the result of the extension of the continental shelf to the seabed area beneath the high seas, this freedom was inserted in the UNCLOS.
In addition to the installation of marine structures, laying submarine (or floating) cables is essential for offshore windfarms. On this point, subparagraph (c) manifestly allows all States to lay submarine cables. Moreover, Articles 112 through 115 provide rules related to submarine cables laid on the seabed of the high seas. For example, Article 112(2) provides that EEZ rules found in Article 79(5) of the UNCLOS apply to the high seas as well. According to this provision, when laying down new submarine cables, States should have due regard for cables already in position and activities to repair them.39 These provisions of the UNCLOS do not provide rules under which States can exercise jurisdiction over the cables in position—unlike the case of vessels, over which flag States have exclusive jurisdiction. Admiralty courts will usually resolve any disputes related to damage caused to submarine cables through civil proceedings under maritime law.40
Indeed, Article 89 of the UNCLOS prohibits States from claiming sovereignty over the high seas. With regard to this provision, offshore windfarm operations usually occupy some areas of the ocean, and therefore, there is a possibility of assimilating such activities with claiming sovereignty over some part of the high seas. However, it could conversely be argued that establishing a windfarm can be distinguished from claiming sovereignty given the uniqueness of the nature of sovereignty, namely, its permanent and exclusive nature.41
Given the foregoing, it can be concluded that the freedom of the high seas covers offshore windfarm operations.42
2.2.2 Ship/Vessel or Marine Structure
If the freedom of the high seas covers offshore windfarm construction and operations, the question of who should regulate such activities on the high seas arises. In this context, the flag State is expected to play an important role due to its exclusive jurisdiction over vessels. As shown above, ordinary vessels are used for offshore windfarm construction and operations, such as establishing turbines as well as future maintenance and repair activities.43 As for such ordinary vessels, the existing framework is quite simple. Flag States exercise their jurisdiction based on Article 92 of the UNCLOS, which codifies the flag State principle. If other unique vessels, like SEP vessels and DPS vessels, are also regarded as vessels, the same principle is applied.
However, the legal status of FWT for offshore windfarms in ABNJ is unclear, especially in relation to their status as a ship. Under the UNCLOS, there is no clear definition for ships or vessels.44 Some International Maritime Organisation (‘IMO’) treaties—which are incorporated into the UNCLOS system through rules of reference—define ships.45 However, in practice, it is left to States to decide the status of ships and vessels under the UNCLOS.46
FWTs have two different statuses under domestic law. Some States implicitly categorise a FWT as a ship, because the definition of ship in their domestic legislations is broadly stipulated.47 The Belizean Ships (Registration) Act of 2010, for example, reads:
‘ship’ or a ‘vessel’ means and includes every description of vessel, boat or other craft used in navigation including but not limited to, for the avoidance of doubt, oil rigs, submarines, floating docks, vessels under construction, any hull made from any floating material and intended for the maritime trade and any structure capable of use in a marine environment which the Registrar may consider appropriate for its registration as a ship.48
Meanwhile, other States do not categorise FWTs as ships or vessels. For example, Canada defines a vessel as ‘a boat, ship or craft designed, used or capable of being used solely or partly for navigation,’49 clearly excluding the purposes for which FWTs are used. Similarly, UK domestic legislation defines ‘ship’ to include ‘every description of vessel used in navigation’.50 In the process of establishing domestic legislation to introduce offshore windfarms within the Japanese EEZ, an expert committee established by the government concluded that FWTs should be regarded as a maritime structure.51
If FWTs are categorised as a ship, it is obvious that flag States have exclusive jurisdiction. However, under the UNCLOS, it seems more rational that FWTs should be categorised as marine structures for the following four reasons. First, as ships are granted freedom of navigation, ships are clearly supposed to move. However, FWTs are fixed at a designated point on the ocean surface, though they are capable of movement. Second, and relatedly, while FWTs could be regarded as ships because of their capability for movement, the same thing cannot be said for fixed turbines. Given that both types of turbine are used in the same manner for the same purpose the same status and treatment should ideally be provided under both domestic and international law. Third, some obligations imposed on vessels, such as rescuing a person under Article 98 of the UNCLOS, are not appropriate for FWTs.52 Fourth, since the flag State principle is too strong to make the ocean governance framework ineffective against some threats, like Illegal, Unreported and Unregulated (‘IUU’) fishing, another model in which non-flag States can intervene more efficiently should be designed. Unlike vessels that are supposed to move from State to State, FWTs are not necessarily subject to coastal and port State jurisdiction. Therefore, regulation of FWTs by monitoring States would be particularly important as compared to regulation in the case of ordinary vessels.
In the case of marine structures, the UNCLOS is silent on which States have rights and obligations. Therefore, even if some actors establish marine structures, a State might not regulate those structures. This scenario should be avoided to protect the marine environment on the high seas. Therefore, it is essential to designate which State shall be in charge of overseeing such structures. On this point, Elsner and Suarez argue that the State which allows the construction and operation of installations should have jurisdiction as a flag State.53 Kojima points out that the framework of the sponsoring State provided in Part XI and its implementing agreement should be consulted.54
2.3 Conditions to Conduct Offshore Windfarm Activities under the UNCLOS
2.3.1 Due Regard
The fact that States are allowed to engage in offshore windfarm activities under the principle of the freedom of the high seas does not mean those activities are not subject to conditions. One condition to be complied with in using the high seas is the due regard principle. Article 87(2) of the UNCLOS provides as follows:
These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.55
As the text indicates, due regard is basically paid to the interests of other States. Since installations of FWTs are allowed consistent with freedom of the high seas, operating an offshore windfarm itself should not be regarded as amounting to a breach of the due regard obligation. However, it must also be noted that offshore wind power plants require multiple installations, not just one installation, and thereby need significant space.56 Considering such factors, offshore windfarm activities could be contrary to the obligation of due regard if some States use the same maritime space for navigation, fishing, and mining activities, for example. However, the fact that offshore windfarms could facilitate navigation and fishing activities would allow States to satisfy the due regard condition more easily. Offshore turbines are sometimes used as a lighthouse for safe navigation.57 Additionally, they can provide both a positive and a negative impact on the living resources in the sea, for example, by providing shelter.58 With regard to the relationships among offshore windfarm activities, Article 79(5) can be applied mutatis mutandis. It would be reasonable that earlier interests are respected, since the installation of offshore turbines would have a huge cost, and the operators usually expect a long-term operation.
Certainly, it would be difficult to harmonise offshore windfarm activities with deep seabed mining. However, recent practices which expand the scope of due regard to the interest of protecting the environment must be noted. While the scope of the due regard obligation was originally limited to require due regard to the interests of other States, now environmental interests—in other words, the interest of the international community as a whole—can be considered when evaluating due regard obligations. For example, according to the commentary for the customary rules of international humanitarian law, due regard is directly paid to the marine environment itself, even during armed conflict.59 In this context, an EIA can also be a part of the obligation to pay due regard, as the EIA may contribute to mitigating negative impacts of an activity on the marine environment. Therefore, States may be more able to demonstrate that they comply with due regard obligations by conducting EIAs.
Furthermore, it should be noted here that the duty of due regard is triggered when exercising the freedom of the high seas. Therefore, it is important which States are regarded as exercising the freedom of the high seas when constructing and building offshore windfarms. If the flag State principle is applied to maritime structures, flag States are regarded as exercising such freedom. However, it is not so obvious to what extent other States can be considered to be exercising this freedom, and therefore have the obligation to pay due regard including any responsibilities to conduct EIAs.
2.3.2 General Obligations to Protect the Marine Environment
Another condition is provided in Part XII of the UNCLOS, which performs an essential function for protecting the marine environment. Part XII has been applied irrespective of maritime areas,60 including the high seas. Nevertheless, the UNCLOS rules to protect the marine environment are comparatively vague and expected to evolve through incorporating external rules and standards.61 In particular, general obligations provided in Articles 192 and 194 have such a characteristic.
Article 192 stipulates ‘States have the obligation to protect and preserve the marine environment’. Although it is difficult to discern a concrete obligation from this provision, it shows the general direction of the UNCLOS on this matter. Article 194(1) obliges States to take all measures ‘necessary to prevent, reduce and control pollution of the marine environment.’ Furthermore, under paragraph 2, States are required to avoid causing damage by pollution through ‘activities under their jurisdiction or control’ (emphasis added). Paragraph 5 stipulates that particular attention should be paid to rare or fragile ecosystems and habitats of endangered species.
Although Article 194 itself does not provide concrete obligations, States have been regarded as violating this provision at times.62 In particular, this provision does not take the form of rules of reference; it also can be a clause to incorporate external rules and standards, as demonstrated in the South China Sea arbitration.63
As for the undertaker of the relevant obligations, paragraph 2 is important. It indicates that if activities are under States’ jurisdiction and control, such States have a duty to prevent the regulated activities. Under international law, the concept of jurisdiction is understood to mean the competence to make and enforce law on the basis of sovereignty.64 Since no States can claim sovereignty over the high seas, States must basically rely on the nationality principle, which can be divided into several types, referring to jurisdiction over natural person nationals, legal person nationals, or vessels with the regulating State’s nationality.65 While the national States of vessels—namely the flag States—have responsibility under such rules of jurisdiction, on a literal interpretation of Article 194, non-flag States that do not have nationality-based jurisdiction could nonetheless have obligations over activities where they have control, which is examined in the next section.
3 EIAs for Offshore Windfarms in ABNJ
3.1 EIAs under the UNCLOS and the BBNJ Instrument
Section 4 of Part XII of the UNCLOS concerns monitoring and environmental assessment, and consists of three Articles, namely, Articles 204 through 206. Article 204 obliges States to monitor the risks or effects of pollution of the marine environment (paragraph 1), especially when they permit or engage in activities which could cause such pollution. Article 205 obliges States to publish reports on the information acquired through monitoring under Article 204. Then, Article 206, the most relevant Article for the matter of EIAs, provides:
When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205.66
Article 206 provides that ‘substantial pollution or significant and harmful changes’ to marine environment is a criterion for conducting an EIA. It also addresses which States must conduct the EIA. According to Article 206, States shall regulate EIA when planned activities are ‘under their jurisdiction or control’. Although this expression is used in Article 194(2), given the wide meaning of both jurisdiction and control, its meaning is not necessarily obvious.
As previously mentioned, the BBNJ instrument was adopted on 19 June 2023. It took almost 20 years to finalise, and even in an intergovernmental conference in the last five years (2018–2023), five drafts—namely, the Draft Text,67 Revised Draft text,68 Further Revised Draft text,69 Refreshed Draft text and Further Refreshed draft70—were negotiated and adopted. During this drafting process, expressions such as ‘more than a minor or transitory effect on the marine environment’71 or simply ‘have an effect’72 were considered as potential candidates as criteria to regulate EIA. By literal interpretation of these expressions, and given the fact that ‘more than a minor or transitory effect on the marine environment’ is imported from the 1991 Protocol on Environmental Protection to the Antarctic Treaty, which requires more strict regulation for the protection of the environment,73 ‘substantial pollution or significant and harmful changes’ is the most minimal criterion for States to be obliged to regulate EIA.
Eventually, the final text adopted a two-stage approach. First, States shall conduct screening if activities have ‘more than a minor or transitory effect’ (Article 30(1) of the BBNJ instrument). Then, if States consider that activities ‘may cause substantial pollution of or significant and harmful changes’ as a result of the preceding screening process, they shall conduct EIAs (Article 30(1)(b)). Given that the exact same expression as used in Article 206 of the UNCLOS is introduced in Article 30 (1)(b), it is rational that the latter adopts the same criterion for conducting EIA. Even though this criterion is not strict and instead rather vague, EIA seems to be required for offshore windfarm activities. This is because the impact of offshore windfarms could be tremendous and potentially regarded as ‘substantial pollution’, including because offshore windfarms can be a cause of biological disturbance and underwater noise.74 This possible impact is evidenced in State practice, with many States requesting EIAs for the construction of offshore windfarms under the current framework, namely Article 206.75 Therefore, it is natural to read the BBNJ instrument as requiring EIA for offshore windfarm operations.
As for which States must conduct an EIA, Article 28 of the BBNJ instrument separately stipulates EIA for activities conducted in ABNJ (paragraph 1) or in the maritime areas of some States (paragraph 2). As this paper focuses on offshore windfarms built on the high seas, paragraph 1 is relevant. According to paragraph 1:
Parties shall ensure that the potential impacts on the marine environment of planned activities under their jurisdiction or control, which take place in areas beyond national jurisdiction, are assessed as set out in this Part before they are authorized.76
In the same way as Article 206 of the UNCLOS, the BBNJ instrument provides that States shall regulate EIAs when they have ‘jurisdiction or control’ over activities. This reference to ‘jurisdiction or control’ was consistently provided in all the drafts,77 with some even providing a definition for this expression. Therefore, in order to determine the scope of the EIA obligation for States vis-à-vis offshore windfarms, the next subsection examines the meaning of ‘jurisdiction or control’ by referring to such previous drafts as well as other relevant rules of international law.
3.2 The Meaning of Jurisdiction or Control
Unfortunately, ‘jurisdiction or control’ is not defined in the final text. However, Article 1(2) of the Draft Text stipulates that ‘[a]ctivity under a State’s jurisdiction or control’ means ‘an activity over which a State has effective control or exercises jurisdiction’.78 While this definition is duplicated in the Revised Draft text,79 brackets enclosed the whole paragraph in the Further Revised Draft text,80 and it was finally deleted in the Further Refreshed Draft.81 However, given that the preparatory work of a treaty can be used as an aid to interpretation, as provided in Article 32 of the Vienna Convention on the Law of Treaties,82 the above definition may provide clues for interpreting the concept of ‘jurisdiction or control’. On this point, ‘exercises jurisdiction’ looks not to add new factors to the concept of ‘jurisdiction’. On the other hand, the term ‘effective control’ seems to narrow down the scope of ‘control’. Based on such understanding, this subsection examines the meaning of ‘jurisdiction’, ‘effective control’ and ‘control’, respectively.
3.2.1 Jurisdiction
Under international law, the term ‘jurisdiction’ generally means the competence to establish and enforce domestic law,83 especially public law. When exercising its jurisdiction, a State must have a legally recognised basis for exercising jurisdiction, such as the territoriality or nationality principles. Since no State may claim sovereignty over the high seas, the territorial principle plays no role in this space. This has meant that the nationality principle is the most important for regulating jurisdictional claims on the high seas. This principle of nationality can be considered in three formats in the maritime domain, namely as applying to vessels, private individuals and corporations.
First, the nationality of vessels, namely, the flag State principle, plays an essential role on the high seas. Article 92 of the UNCLOS provides exclusive jurisdiction to the flag State. Based on the unit theory, this flag State principle covers not only the vessel itself but also the persons and their belongings on board.84 Moreover, the ITLOS emphasised its exclusiveness in the recent Norstar Case. According to the ITLOS, neither enforcement jurisdiction nor prescriptive jurisdiction can be applied by non-flag States on the high seas.85 If this were accepted, it would lead to the situation that only flag States could regulate activities conducted on the high seas. Currently, the insufficient performance of flag States has become a cause of problems, including IUU fishing. Furthermore, the ITLOS’s understanding deviates from the shared practices of non-flag States to apply prescriptive jurisdiction based on other bases, including the personality principle under which States have jurisdiction over crimes conducted by or against their nationals. Thus, it is questionable to what extent this understanding would prevail and be accepted.86 Whilst it must be considered to what extent the flag State principle allows non-flag States to exercise prescriptive jurisdiction, it is clear that flag States have jurisdiction over vessels on the high seas, and some consider the flag State principle should also be applied to marine structures as shown above.87 Given that activities related to the construction and operation of offshore windfarms are conducted either on vessels or marine structures, it is clear that flag States have jurisdiction over such activities.
Additionally, under international law, States have jurisdiction over private individuals who have their nationality based on the personality principle.88 Therefore, States can regulate the conduct of their own nationals even on the high seas. However, given that a sole person cannot proceed with an offshore windfarm project as a planned activity under Article 206, it would be insufficient to analyse jurisdiction over the windfarm from the perspective of the State of nationality of those who worked for the offshore windfarm.
Given such a fact, the State of nationality of a corporation, namely the home State, is best placed to regulate EIAs for the windfarm, because companies which plan the offshore windfarm project and try to gain benefits therefrom usually have clout regarding the resulting offshore windfarm project. Although corporations are allowed to have and change nationality more flexibly,89 home States exercise jurisdiction over legal persons under international law. This may create complexities—including need for a theory regarding the piercing of the corporate veil—in situations in which corporations deviate from the duty or burden to respect human rights or protect the environment by leaving such duty and burden to their subsidiary company, another legal personality under domestic law.90
3.2.2 Effective Control and Control
The term ‘effective control’ has traditionally been used under international law in various contexts. Probably, one of the most conventional ways of using this term is as a criterion for attributing the conduct of private individuals to the State as is provided in Article 8 of the International Law Commission’s (‘ILC’) Articles on State Responsibility.91 Certainly, if the construction and operation of an offshore windfarm is attributable to a State, that State may have an incentive to regulate EIAs. However, the mere fact that vessels, private individuals, or companies engaging in offshore windfarm activities have a nationality of one State does not establish that State’s ‘effective control’.92 In order to make offshore windfarm activities attributable to States through the criterion of effective control, ‘planning, direction and support’ by the State is needed.93 The US might use ‘effective control’ in such meaning in the BBNJ negotiations because it claimed that licensing or funding can be regarded as exercising such control.94
Under the UNCLOS, the term ‘control’ is used in various ways. The most famous usage might be Article 33, which allows coastal States to exercise ‘control’ over their contiguous zones. While coastal States may exercise jurisdiction in other maritime areas, such as territorial waters, EEZ, and Continental Shelf, ‘control’ is granted for coastal States only over their contiguous zones. To clarify the meaning of control, it is helpful to compare it with ‘jurisdiction’. The difference between the two concepts was considered when the ILC researched both the regime of the territorial waters and that of the high seas.95 Following the discussion within the ILC, ‘control’ does not include the authority to punish someone. Namely, if an individual commits a crime within the contiguous zones, coastal States cannot simply apply their domestic criminal law to punish that person.96 Given that control in this context indicates a reference to a right to control, and not an obligation to control, the ‘control’ under this provision cannot be imported directly into the EIA obligations. However, the idea that control does not amount to jurisdiction may indicate that some States have an obligation to regulate EIAs even if they do not have jurisdiction, though it would be difficult for such States to comply with such obligations.
The provision more directly connected to Article 206 is Article 194(2), which also uses the expression ‘jurisdiction or control’, as shown above.97 The expression of Article 194(2) originates from principle 21 of the Stockholm Declaration, and when the expression was introduced the meaning of control was criticised as too vague, with some commentators claiming it was not necessary.98 Czybulka argues that ‘jurisdiction or control’ covers not only the territorial sea, EEZ, and continental shelf, but also their national flag.99 However, given that flag States also have jurisdiction over their own vessels, this understanding does not fully explain the added value of the term ‘control’. On this point, Blitza emphasises that the insertion of ‘control’ ‘aims to cover instances in which there is a factual rather than a legal link between the activities conducted and the State concerned’.100
Cabus connects the concept of control with the obligation of due diligence, arguing that ‘control is a necessary precondition to the fulfilment of due diligence obligations.’101 The due diligence obligation is utlised to make States responsible for the activities of private actors, even if the activities in question are not attributable to States.102 As shown in the South China Sea arbitral award, this due diligence obligation could play an important role, especially in the context of marine environment protection.103 As due regard obligations can incorporate the obligation to regulate EIAs, the due diligence obligation could also absorb the same obligations. In other words, if a State has control and regulates EIAs, it would be regarded as fulfilling its due diligence obligations more easily.
3.3 States Undertaking Obligations from the Perspective of Lex Ferenda
3.3.1 How Should States Have Obligations?
As explained so far, in accordance with the criteria of ‘jurisdiction or control’, multiple States can exercise jurisdiction over offshore windfarm projects. For example, if multiple vessels under different flags are employed, various flag States may exercise their jurisdiction over each vessel respectively. If the flag State principle is also applied to marine structures, each flag State of FWTs would have an obligation to regulate EIA under their jurisdiction. Given that States with control (factual links) over the activities also have an obligation to regulate EIAs, multiple States would have obligations for a single offshore windfarm project.
However, when multiple States have obligations for some parts of offshore windfarm projects, it would be difficult to assess the cumulative impacts which States are obliged to assess under the BBNJ instrument.104 Most offshore windfarm projects entail the establishment of many windmill turbines and the deployment of submarine cables,105 as well as the involvement of various specific vessels. Furthermore, other activities, such as fishing or navigation, which must be taken into account when assessing the cumulative impact of such a project, may also be conducted near offshore windfarms. Therefore, the assessment of cumulative impact is vital, and for that purpose, it may be most efficient and appropriate for a single State to have an obligation to regulate the EIA for the offshore windfarm project comprehensively. In addition, it would be convenient for business operators to undergo a single EIA process. If there is a risk that multiple and unexpected EIA procedures would be applied, it would be a heavy burden for the operator to adjust its projects to various legislative requirements. Thus, arguably, a single State should have the duty to request business operators to conduct EIA in accordance with its domestic laws.
3.3.2 Which States Should Have an Obligation?
If one State is supposed to have an obligation to regulate EIAs, which States should have that obligation? During the drafting of the BBNJ instrument some delegates asserted by reference to Article 206 that flag States should have the obligation.106 For most of the activities, especially those conducted by vessels, it would be natural to expect flag States to have this obligation. However, as shown above, it looks inappropriate to leave the burden on flag States for offshore windfarm projects, where multiple flag States may be involved.
Under such circumstances, there are four other expected States which could exclusively have an obligation to regulate EIA. First, exporting States, whose ports are used for transporting the materials and pieces of equipment for offshore windfarms. Exporting States gain relevance because they form a focal point from which giant turbines can be transported into the maritime space, providing also unique facilities for offshore windfarm projects. This idea is similar to the liability of a launching State under space law.107 Considering that such a focal port is essential to construct and maintain offshore windfarms, such exporting States can have control over the offshore windfarm projects to some extent. If exporting States try to stop offshore windfarm activities, they could block transportation access, which is essential not only when establishing windfarms, but also for providing maintenance to them.
Second, connecting States may be involved, as the States to which electricity developed through the offshore windfarms is first transmitted. Considering that resources exploited in the maritime domain must be transported to land through a port, this idea is similar to the function of Port States in relation to IUU fishing. Given the importance of electricity transmission, it would be possible to consider that such connecting States also have control over offshore windfarm activities. By cutting off the electricity supply, connecting States may impose sanctions on offshore windfarm activities if necessary.
However, two concerns arise in connection with exclusive responsibility for conducting EIAs to exporting or connecting States. First, multiple States are still likely to be exporting and connecting States. For instance, when offshore windfarms are established on the part of the high seas at almost the same distance from more than two coastal States, several States’ ports can be used, and produced electricity can be transmitted directly to multiple States’ territories. Therefore, the framework to oblige exporting and connecting States cannot determine a single State which exclusively applies its domestic EIA legislation. Second, landlocked States would not have an obligation to regulate the EIA under such a framework. Certainly, this framework does not directly prohibit landlocked States and their nationals from planning offshore windfarms. However, the fact that landlocked States’ domestic rules on EIA are not used could make it difficult for them to engage in offshore windfarm projects, which might conflict with the interests of landlocked States protected under the UNCLOS.108
The home States of a corporation that leads offshore windfarm projects may be another contender for EIA obligations. Since home States may exercise jurisdiction over their own corporations based on the nationality principle, they can have control over the projects led by their own national corporations. Corporations often establish a conglomerate to work together when constructing and managing windfarms. Therefore, sometimes it would be difficult to determine which corporation leads the project and their relevant home State. On this point, if the license or authorisation system—as proposed by the US and which Article 28(1) of the BBNJ instrument reflects—is introduced, the possible fourth contending State for regulation of EIAs would be the licensing or authorizing State. Currently, how to conduct offshore windfarm projects in ABNJ is not specifically regulated by international law.109 Thus, from both theoretical and legal perspectives, a corporation can start an offshore windfarm project on the high seas without needing any authorization from any State. However, if States consider EIA should be conducted for offshore windfarms, even on the high seas, they should introduce a domestic licensing system together. The licensing State’s obligation would be similar to the obligations imposed upon Sponsoring States in the framework for the Area. However, while obtaining sponsorship from a State Party is a condition for corporate actors to conclude a mining contract with the International Seabed Authority,110 licensing States would unilaterally permit corporate actors to engage in offshore windfarm projects without consulting any international organisations. States have started to accumulate experience in regulating offshore windfarms within their waters. Such experience should be utilised and, if possible, a similar system should be introduced to handle offshore windfarms in ABNJ efficiently.111
4 Conclusion
Even though the text of the BBNJ instrument has been finalised, the rules for EIA have not been sufficiently elaborated. According to Article 38, the standards and/or guidelines are expected to be developed by a Scientific and Technical body established under the BBNJ instrument. Such standards and/or guidelines and interpretation of relevant articles of the BBNJ instrument should throw the weight of obligations to conduct the EIA on the home States of corporations which lead the offshore windfarm project, as the State that has control over the planned activities. By doing so, States and industries could take a balanced approach to starting new offshore windfarm activities in ABNJ, and ensure that effective EIAs for marine environment protection are conducted.
Aside from offshore windfarms, the ocean has much potential to exploit natural resources and combat climate change. For example, offshore solar, tidal and wave energy generation could be introduced on a mass scale,112 for which it is likely that the framework of marine structures and seabed cables for offshore windfarms can be utilised. In addition, Carbon Captured Storage can be held at the seabed,113 and the technology of blue carbon is also receiving increased attention.114 However, as the decision to make the BBNJ instrument indicates, the protection of the marine environment is also vital. EIA can play an essential role in using marine natural resources in a way compatible with the conservation of its environment.
Under the existing framework, States may enjoy the freedom of the high seas. However, it seems difficult for them to start new activities on the high seas if there is a risk of deteriorating the marine environment, since they have fears of being labelled as non-environmentally friendly States. In this context, the successful conclusion of the BBNJ instrument will facilitate States’ activities in ABNJ. Certainly, they cannot engage in activities in any manner they like. However, as Arrticle 30(1) of the BBNJ instrument states, where ‘the effects of the activity are unknown or poorly understood’, States should undertake a screening process, and in doing so, their activities can be perceived as taking care of the marine environment in accordance with international law. Even though some technical hurdles exist, offshore windfarms can be a leading new activity in ABNJ, and therefore, EIAs for such activities need to be conducted efficiently, as is proposed in this paper.
Acknowledgements
The paper derives from a presentation at the Eighth International Four Societies Conference. The author would like to thank the organizers and participants, especially Prof. Donald R. Rothwell and Prof. Cymie Payne for their valuable comments. The author is also grateful to Prof. Atsuko Kanehara, the former president of JSIL, for her continuous support. This work was supported by JSPS KAKENHI Grant Numbers 19H00567 and 21H00667.
This article reflects the law and developments in this field as at 19 June 2023.
Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc. A/CONF.232/2023/4 (19 June 2023) <https://www.un.org/bbnj/sites/www.un.org.bbnj/files/draft_agreement_advanced_unedited_for_posting_v1.pdf>.
For a discussion on EIAs at the drafting process of the BBNJ instrument: see Meinhard Doelle and Gunnar Sander, ‘Next Generation Environmental Assessment in the Emerging High Seas Regime? An Evaluation of the State of the Negotiations’ (2020) 35(3) The International Journal of Marine and Coastal Law 498. See also Kahlil Hassanali, ‘Internationalization of EIA in a New Marine Biodiversity Agreement under the Law of the Sea Convention: A Proposal for a Tiered Approach to Review and Decision-making’ (2021) 87 (March) Environmental Impact Assessment Review 106554: 1–8.
See, eg, Australia, ‘Note No 146/2016’, Submission by Australia to the Preparatory Committee established by General Assembly Resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 6 December 2016, <https://www.un.org/depts/los/biodiversity/prepcom_files/rolling_comp/Australia.pdf>. See also, Norway, ‘Comments by Norway’, Submission to the Preparatory Committee established by General Assembly Resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, December 2016, <https://www.un.org/depts/los/biodiversity/prepcom_files/rolling_comp/Norway.pdf>.
United States, ‘United States Submissions’, Submission to the Preparatory Committee established by General Assembly Resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 20 December 2016, <https://www.un.org/depts/los/biodiversity/prepcom_files/rolling_comp/United_States_of_America.pdf >; United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994) (‘UNCLOS’).
Paris Agreement, opened for signature 22 April 2016, 3156 UNTS 1 (entered into force 4 November 2016).
It is said that ‘offshore wind power capacity is set to increase 15-fold, by 2040, becoming a $1 trillion business’: International Energy Agency, Offshore Wind Outlook 2019 (Special Report, November 2019) 13. See also Adrijana Buljan, ‘Offshore Wind Investments to Reach USD 810 Billion by 2030—Rystad Energy’, offshoreWIND.biz (online, 30 April 2021)
Chatham Partners, ‘Offshore Wind in High Seas: Unlimited Potential beyond National Control?’, (Report, 9 December 2019) 9 <https://chatham.partners/site/assets/files/1452/chatham-partners-offshore-wind-farms-in-high-seas.pdf>; Todd Emerson Hutchins, ‘Crafting an International Legal Framework for Renewable Energy on the High Sea’ (2021) 51(2) Environmental Law 485, 489; Paul Elsner and Suzette Suarez, ‘Renewable Energy from the High Seas: Geo-spatial Modelling of Resource Potential and Legal Implications for Developing Offshore Wind Projects beyond the National Jurisdiction of Coastal States’ (2019) 128 (May) Energy Policy 919, 920.
Chatham Partners (n 8) 8.
Elsner and Suarez (n 8) 921 fig 1.
Hutchins (n 8) 490.
Miriam Noonan, ‘The benefits of hybrid bottom-fixed and floating wind sites’(Report, Catapult Offshore Renewable Energy, 11 January 2021) <https://ore.catapult.org.uk/wp-content/uploads/2021/01/AI-paper-Floating-hybrid-sites-final-2021.01.11.pdf>.
For cable system for FWTs, see Ryota Tanioki et al, ‘Dynamic Cable System for Floating Offshore Wind Power Generation’ (2017) 84 (April) SEI Technical Review 53, 53–8.
Jochem Tacx, Building an Offshore Wind Farm: Operational Master Guide (2019) 5–16; Zhiyu Jiang, ‘Installation of offshore wind turbines: A technical review’ (2021) 139 (April) Renewable and Sustainable Energy Reviews 110576: 1–21, 1, 3–4. It is said that such specific vessels would run short, especially in the Asian region: see Ann Koh, ‘There Aren’t Enough Ships to Install Giant Wind Turbines Across Asia’, Bloomberg (online, 2 February 2023) <https://www.bloomberg.com/news/articles/2023-02-01/asia-faces-shortage-of-ships-to-install-offshore-mega-wind-farms?leadSource=uverify%20wall>.
Specific accommodation vessels are designed for Offshore windfarm activities. See ‘Offshore Accommodation Vessels for Offshore Windfarm Activities’, Offshore Technology (online, 2 May 2016) <https://www.offshore-technology.com/contractors/design-engineering-construction/heavyliftsea/pressreleases/pressoffshore-accommodation-vessels/>.
Canadian Energy Regulator Act, SC 2019, c 28, s 10.
Offshore Electricity Infrastructure Act 2021 (Cth).
Offshore Electricity Infrastructure Regulations 2022 (Cth).
Renewable Energy Modernization Rule, 88(19) Fed Reg 5968 (30 January 2023).
Although Europe advances offshore windfarm technologies and markets, their laws are also similar, for example, the licensing system see Guido Wustlich and Michael Heugel, ‘Legal Framework Conditions for the Licensing of Offshore Wind Farms’ in Julia Köller, Johann Köppel, and Wolfgang Peters (eds), Offshore Wind Energy: Research on Environmental Impacts (Springer, 2006) 15, 15–9. For UK and French legislation, see Nicolas Boillet and Gaëlle Guéguen-Hallouët, ‘A Comparative Study of Offshore Renewable Energy Legal Frameworks in France and the United Kingdom’ (2016) 30(1) Ocean Yearbook 377, 401.
Elsner and Suarez (n 8) 924.
Aarata Kisugi,
Andrew Lee, ‘Japan warned to go beyond territorial seas with floating wind or risk falling behind’, Recharge (online, 10 November 2022) <https://www.rechargenews.com/wind/japan-warned-to-go-beyond-territorial-seas-with-floating-wind-or-risk-falling-behind/2-1-1351842>.
As for the recent US trend, see Adam Vann, ‘Offshore Wind Energy Development: Legal Framework’ (Report No R40175, Congressional Research Service, 28 February 2023) <https://sgp.fas.org/crs/misc/R40175.pdf>.
Outer Continental Shelf Lands Act, 43 USC ch 29 (2017).
Offshore Electricity Infrastructure Act 2021 (n 18) pt 2, art 8.
Japanese Act No 89 of 2018 (n 16) art 10.
Laura B Comay and Corrie E Clark, ‘Offshore Wind Energy: Federal Leasing, Permitting, Deployment, and Revenues, Congressional Research Service’, (Report No 46970, Congressional Research Service, 18 November 2021) 8–10 <https://crsreports.congress.gov/product/pdf/R/R46970/1>.
Offshore Electricity Infrastructure Regulations 2022 (n 19).
Enforcement Order of the Environmental Impact Assessment Act (Japan): Cabinet Order No 346 of 1997 was amended by Cabinet Order No 340 of 2011. Enforcement Order of the Environmental Impact Assessment Act (Japan) (Cabinet Order No 346 of December 3, 1997)’ Environmental Impact Assessment Network (Web Document) <http://assess.env.go.jp/files/5_global/Enforcement%20Order%20of%20the%20EIAt%20Act.pdf>;
Offshore Electricity Infrastructure Act 2021 (n 18) art 115(1)(c). See also Tim Power, ‘Offshore wind projects: Assessing the environmental impact: Australia’, JDSUPRA (online, 29 April 2019) <https://www.jdsupra.com/legalnews/offshore-wind-projects-assessing-the-74248/>.
Elisabeth M Borgese, ‘A Constitution for the Oceans’ in Elisabeth M. Borgese and David Krieger (eds), Tides of Change: Peace, Pollution, and Potential of the Oceans (Mason/Charter, 1975) 340, 340.
See Alexander Proelss, ‘Article 56: Rights, Jurisdiction and Duties of the Coastal State in the Exclusive Economic Zone’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (C H Beck/Hart/Nomos, 2017) 418, 428.
UNCLOS (n 5) art 56 (emphasis added).
Ibid art 87.
Aldo Chircop and Peter L’Esperance, ‘Functional Interactions and Maritime Regulation: The Mutual Accommodation of Offshore Wind Farms and International Navigation and Shipping’ (2016) 30(1) Ocean Yearbook 439, 468.
‘Commentary on Article 27’ [1956] II Yearbook of the International Law Commission, 278; Convention on the High Seas, opened for signature 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962).
Dorota Jadwiga Englender, ‘Article 79: Submarine Cables and Pipelines on the Continental Shelf’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (C H Beck/Hart/Nomos, 2017) 618, 627–8.
Douglas R Burnett and Lionel Carter, International Submarine Cables and Biodiversity of Areas beyond National Jurisdiction (Brill, 2017) 21–2.
See Salah E Honein, The International Law Relating to Offshore Installations and Artificial Islands: An Industry Report (Lloyd’s of London Press, 1991) 18.
Several authors take the same position; see Chie Kojima,
Rahul Chitteth Ramachandran et al, ‘Floating Offshore Wind Turbines: Marine Operations Challenges and Opportunities’ (2022) 7(2) Wind Energy Science 903, 903–24.
This lack of definition has recently received attention in the context of autonomous vessels; see, eg, Sabrina Hasan, ‘Analysing the Definition of “Ship” to Facilitate Marine Autonomous Surface Ships as Ship under the Law of the Sea’ (2022) Australian Journal of Maritime & Ocean Affairs (advance).
John E Noyes, ‘Interpreting the 1982 Law of the Sea Convention and Defining its Terms’ in George K Walker (ed), Definitions for the Law of the Sea: Terms not Defined by the 1982 Convention (Martinus Nijhoff, 2012) 45, 57–8.
See Gotthard Mark Gauci, ‘Is It a Vessel, a Ship or a Boat, Is It Just a Craft, Or Is It Merely a Contrivance?’ (2016) 47(4) Journal of Maritime Law & Commerce 479, 479.
See, eg, The General Merchant Marine Law (No 57 of 6 August 2008) (Panama), art 168(7); Merchant Shipping Act 1973 (Malta), c 234, art 2.
Merchant Ships (Registration) Act (No 22 of 23 October 2010) (Belize), s 2.
Canada Shipping Act, SC 2001, c 26, art 2.
Merchant Shipping Act 1995 (UK) c 21, s 313. Although the UK legislation is similar to the Belizean Act, it does not list the examples to be regarded as ship. Therefore, given the ordinary meaning of vessel and navigation, a literal interpretation seems not to include FTWs in the definition of vessel or ship. However, Severance and Sandgren take different position and claim that text and jurisprudence do not provide a clear answer on this point: see Alexander Severance & Martin Sandgren, ‘Flagging the Floating Turbine Unit: Navigation Towards a Registerable, First-Ranking Security Interest in Floating Wind Turbines’ (2014) 39(1) Tulane Maritime Law Journal 1, 43. They also indicate that Norway and the US adopt an in-between position with the use of ‘deemed vessel’, which is not identital to vessel, but is similar to it: at 73–4.
Elsner and Suarez (n 8) 925. However, for this requirement, it is currently being debated whether unmanned vessels also can deviate from such obligations, and if so, ships would be divided into several categories; thus, this third reason would not work in the future.
Elsner and Suarez (n 8) 925. See also Stéphane Audrand, ‘L’éolien offshore—un défi pour la sécurité et la sûreté maritimes’ [Offshore wind—a challenge for maritime safety and security], Accueil Theatrum Belli [Welcome to the Theatre of War] (online, 10 January 2022) https://theatrum-belli.com/leolien-offshore-un-defi-pour-la-securite-et-la-surete-maritimes/ [tr author].
Kojima (n 42) 39–40.
UNCLOS (n 5) art 87(2) (emphasis added).
Chatham Partners (n 8) 12–3.
‘MGN *** (M + F) Safety of Navigation: Offshore Renewable Energy Installations (OREIs): Guidance to mariners operating in the vicinity of UK OREIs’, GOV.UK (online, 7 November 2022) <https://www.gov.uk/government/consultations/consultation-on-the-review-of-marine-guidance-note-mgn-372/mgn-mf-safety-of-navigation-offshore-renewable-energy-installations-oreis-guidance-to-mariners-operating-in-the-vicinity-of-uk-oreis>; Raza Ali Mehdi et al, ‘Improving the Coexistence of Offshore Wind Farms and Shipping: an International Comparison of Navigational Risk Assessment Processes’ (2018) 17(3) WMU Journal of Maritime Affairs 397, 397–434.
G Van Hoey et al, Overview of the effects of offshore wind farms on fisheries and aquaculture (Final Report, European Comission, 2021), 67–8.
International Committee of the Red Cross, Practice relating to Rule 44 Due Regard for the Natural Environment in Military Operations Section A General, International Humanitarian Law Databases (online, 27 May 1977) <https://ihl-databases.icrc.org/en/customary-ihl/v2/rule44>; Gaunce argues that duty of due regard has the characteristic of a duty to the international community: Julia Gaunce, ‘On the Interpretation of the General Duty of “Due Regard”’ (2018) 32(1) Ocean Yearbook 27, 59.
The South China Sea Arbitration (Philippines v China) (Awards) (2020) 23 RIAA 515 [927] (‘The South China Sea Arbitration’).
On this point, see Lan Ngoc Nguyen ‘Expanding the Environmental Regulatory Scope of UNCLOS through the Rule of Reference: Potentials and Limits’ (2021) 52(4) Ocean Development & International Law 419, 419–44. See also Makoto Seta, ‘The Contribution of the International Organization for Standardization to Ocean Governance’ (2019) 28(3) Review of European, Comparative and International Environmental Law 304, 306–9.
See Award in the Arbitration regarding the Chagos Marine Protected Area (Mauritius and the United Kingdom of Great Britain and Northern Ireland) (Awards) (2018) 31 RIAA 365, [541].
The South China Sea Arbitration (n 60), 526 [956].
Frederick A Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Recueils des Cours [Course Collections] 1, 9.
From the perspective of criminal law, the flag State principle is categorized as a form of territorial principle; See, Ilias Bantekas, ‘Criminal Jurisdiction of States under International Law’ (2011) Max Planck Encyclopedia of Public International law, [6]–[7]. However, given the nature of the principle, States establish the condition to acquire and give nationality, which can be categorised as a form of the nationality principle from the perspectives of international law.
UNCLOS (n 5) art 206 (emphasis added).
Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, Draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (A/CONF.232/2019/6), (17 May 2019) (‘Draft Text’).
Intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (A/CONF.232/2020/3), (18 November 2019) (‘Revised Draft’).
Intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, Further revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (A/CONF.232/2022/5), (1 June 2022) (‘Further Revised Draft’).
These two drafts were circulated in the fifth session held in August, 2023. While the information on the former is not published, that on the latter became opened in December 2022; Intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, Further refreshed draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (A/CONF.232/2023/2), (12 December 2022) (‘Further Refreshed Draft’).
Revised Draft (n 68) 21.
Further Revised Draft (n 69) 25.
It is also argued that ‘more than a minor or transitory effect’ is the same criterion as ‘substantial pollution or significant and harmful changes’ but based on a literal interpretation, the latter appears looser. See Hassanali (n 3) 4–5.
Ibon Galparsoro et al, ‘Reviewing the Ecological Impacts of Offshore Wind Farms’ (2022) 1 Ocean Sustainability 1:1–8, 3.
Maria Madalena das Neves, ‘Offshore Renewable Energy and the Law of the Sea’ in Elise Johansen, Signe Veierud Busch, and Ingvild Ulrikke Jakobsen (eds), The Law of the Sea and Climate Change: Solutions and Constraints (Cambridge University Press, 2021) 206, 22. Scott also indicates the possible application of Article 206 to windfarm activities: Karen N Scott, ‘Tilting at Offshore Windmills: Regulating Wind Farm Development Within the Renewable Energy Zone’ (2006) 18(1) Journal of Environmental Law 89, 110.
Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (n 2) art 28(1) (emphasis added).
See Article 22 of Draft Text (n 67), Revised Draft (n 68), the Further Revised Draft (n 69), and the Further Refreshed Draft (n 70).
Draft Text (n 67) 4.
Revised Draft (n 68) 4.
Further Revised Draft (n 69) 4.
Further Refreshed Draft (n 70) 3.
Vienna Convention on the Law of Treaties, opened for signature on 23 May 1969, 1155 UNTS 331 (entered into force on 27 January 1980) art 32.
Mann (n 64) 9.
Award in the Arbitration Regarding the Arctic Sunrise (Russia v Netherlands) (Awards) (2019) 32 RIAA 183, [170]–[172].
M/V ‘Norstar’ (Panama v Italy) (Judgment) (2019) ITLOS Reports 2018–2019, 75 [225]. Unfortunately, the Arbitral Tribunal under Annex VII also followed this interpretation: Sindhura Natesha Polepalli, ‘The Award in the Matter of an Arbitration Concerning The “Enrica Lexie” Incident (Perm Ct Arb)’ (2021) 60(2) International Legal Materials, [524]–[527].
See, eg, Arron N Honniball, ‘Exclusive Jurisdiction Exclusive Jurisdiction Revisited: The Diverging Conceptualisation and Application of Article 92 of UNCLOS in the Enrica Lexie Incident Award’ in Pierandrea Leucci and Ilaria Vianello (eds), ASCOMARE Yearbook on the Law of the Sea 2021: Law of the Sea, Interpretation and Definitions 197, 197–230.
Elsner and Suarez (n 8) 925. See also Audrand (n 53).
As a monograph which focuses on this personality principle, see Alla Pozdnakova, Criminal Jurisdiction over Perpetrators of Ship-Source Pollution: International Law, State Practice and EU Harmonisation (Brill, 2012).
Patricia Rinwigati Waagstein, ‘Justifying Extraterritorial Regulations of Home Country on Aterritorial Regulations of Home Country on Business and Business and Human Rights’ (2019) 16(3) Indonesian Journal of International Law 361, 363–4.
See Kevin Crow, International Corporate Personhood Business and the Bodyless in International Law (Routledge, 2021) 153.
Kristen E Boon, ‘Are Control Tests Fit for the Future? The Slippage Problem in Attribution Doctrines’ (2014) 15(2) Melbourne Journal of International Law 1, 9.
‘Commentary on Article 8’ [2001] 2(2) Yearbook of the International Law Commission, 47.
Ibid.
United States Submissions (n 5); ‘BBNJ IGC-2 Highlights: Monday, 1 April 2019’ (2019) 25(191) Earth Negotiations Bulletin 2 <https://enb.iisd.org/events/2nd-session-intergovernmental-conference-igc-conservation-and-sustainable-use-marine/daily-2>.
Special Rapporteur, Francoise, used the concept of control, which had been also used in the Hague Conference in 1930: see ‘Regime of the High Seas’ [1950] 2 Yearbook of the International Law Commission 47.
‘121st Meeting’ [1951] 1 Yearbook of the International Law Commission 327.
Eike Blitza, ‘Article 206: Assessment of potential effects of activities’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (C H Beck/ Hart/Nomos, 2017) 1369, 1375.
Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction: Volume I, GA Res 3029, UN GAOR, UN Doc A/9021 (1973) 87 n 3; Declaration of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14/Rev.1 (16 June 1972) (‘Stockholm Declaration’).
Detlef Czybulka, ‘Article 194: Measures to prevent, reduce and control pollution of the marine environment’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (C H Beck/Hart/Nomos, 2017) 1295, 1306.
Blitza (n 97), 1376.
Tony Cabus, Due Diligence and the High Seas (Routledge, 2022) 49.
Joanna Kulesza, Due Diligence in International Law (Brill, 2016) 113.
Makane Moïse Mbengue, ‘The South China Sea Arbitration: Innovations in Marine Environmental Fact-Finding and Due Diligence Obligations’ (2016) 110 AJIL Unbound 285, 285–6.
Further Refreshed Draft (n 70) 27, 30, 35.
The High Seas Alliance argues that the submarine cable for renewable energy would increase the deployment of submarine cables, which would make the cable laying subject to EIA: How could the EIA provisions of the BBNJ Agreement apply to activities and existing bodies?, 6 (online, July 2021) <https://www.highseasalliance.org/wp-content/uploads/2021/07/FINAL-How-would-the-EIA-provisions-of-the-BBNJ-Treaty-apply-in-practice-7.8.21.pdf>.
See, eg, ‘Note No 146/2016’ (n 4); ‘Comments by Norway’ (n 4).
As for the liability of launching States, see, for example, Biswanath Gupta and K D Raju, ‘Understanding International Space Law and the Liability Mechanism for Commercial Outer Space Activities—Unravelling the Sources’ (2019) 75(4) India Quarterly: A Journal of International Affairs 555, 555–78.
Türk indicates that both coastal and landlocked States enjoy ‘exactly the same rights regarding the freedom of the high seas’: Helmut Türk, ‘Landlocked and Geographically Disadvantaged States’ in Donald R Rothwell et al (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press, 2015) 325, 325–45.
Das Neves claims that offshore renewable energy should be conducted for the benefit of all humankind; das Neves (n 75), 221. Scovazzi and Tani describe the ‘present international law regime for offshore wind-energy development’ as ‘fragmentary’: Tullio Scovazzi and Ilaria Tani, ‘Off-Shore Wind Energy Development in International Law’ in Jonas Ebbesson et al (eds), International Law and Changing Perceptions of Security (Brill, 2014) 244, 258.
Joanna Dingwall, International Law and Corporate Actors in Deep Seabed Mining (Oxford University Press, 2021) 30.
Elsner and Suarez argue ‘Ideally, flag States that initiate offshore wind energy development on the high seas should already possess the experience and know-how of offshore wind projects in their territorial seas or the EEZs’: Elsner and Suarez (n 8), 924.
See, eg, das Neves (n 75) 228, 209–12.
See, eg, Yvette Carr, ‘The International Legal Issues Relating to the Facilitation of Sub-Seabed CO2 Sequestration’ (2007) 14 Australian International Law Journal 137, 137.
Peter I Macreadie et al, ‘The Future of Blue Carbon Science’ (2019) 10 Nature Communications 3998: 1–13.
