CRAFTING AN INTERNATIONAL LEGAL FRAMEWORK FOR RENEWABLE ENERGY ON THE HIGH SEAS.

Date22 June 2021
AuthorHutchins, Todd Emerson
  1. Introduction 486 II. Ocean Renewable Energy Renaissance and the Push to the High Seas 489 A. Wind Power 489 B. Wave Power 491 C. Biomass Conversion 493 III. The Existing Framework for High Seas Resources 494 A. Balancing High Sea Freedoms with Resource Rights 494 B. LOSC's Silence Regarding High Seas OREs 497 1. The Right of All Nations to Develop ORE on the High Seas 498 2. OREs as 'Installations' Under the LOSC 499 C. Problems with the Status Quo 501 1. Insufficient Flag State Regulation 501 2. Threat to Navigational Freedoms 502 3. Lack of Environmental Safeguards 502 4. National Appropriation of High Seas Resources 505 5. Spatial Discontinuity Created by ORE 506 6. Lack of Judicially Recognizable Standards for Resolving ORE Disputes 507 IV. Potential Approaches to High Seas ORE Management 507 A. Extending Coastal State Exclusive Economic Control 508 B. Non-Contiguous Exclusive ORE Development Zones 508 C. Regional Organizations 509 D. Universal Internationalist Management Authority 510 V. How the United Nations Should Implement a Hybrid Approach 511 VI. Conclusion 513 I. INTRODUCTION

    Modern civilization relies on electricity to power everything from cities and cars to computers and commerce, yet the fossil fuels currently relied upon are insufficient to meet growing demands, unsustainable, and environmentally dangerous. (1) The oceans offer alternative potential energy sources. New technological advances herald an ocean renewable energy (ORE) "renaissance" due to the advent of floating wind turbines, wave energy devices, and efficient marine biomass conversion processes. (2) With increasing demand, promising technologies, and a number of factors pushing projects further from shore, ORE development on the high seas beyond national jurisdiction is not a matter of if, but rather when and how. If left unregulated, disorderly development will result in inequitable resource allocation and environmental damage. Regulatory, financial, and energy plans for ORE resources must be coordinated to prevent irreparable harm to marine ecosystems and geopolitical disputes. (3)

    The United Nations Convention on the Law of the Sea (LOSC) allocates ocean resources, such as fish stocks and undersea oil, among states; however, its drafters never contemplated vast ORE farms on the "high seas" (4)--the open ocean beyond areas where the coastal state exercises jurisdiction over natural resources on the surface and in the water column. (5) The LOSC's silence regarding high seas OREs starkly contrasts with its detailed provisions for resource allocation in other maritime zones, including, for example, absolute coastal state resource control in the territorial sea; (6) coastal state sovereign rights to living and nonliving resources outside the territorial sea up to 200 nautical miles (nm) from the baselines in the Exclusive Economic Zone (EEZ); (7) coastal state sovereign rights to the resources of the continental shelf, which may legally extend up to 350 nm or more from the baseline depending on ocean floor topography; (8) and shared international communal rights to mineral resources on the deep seabed, which is the seafloor beyond the continental shelf, (9) managed by the LOSC-created International Seabed Authority for the benefit of all mankind. (10) Silence on ORE in the LOSC means that default rules for the high seas resources allocation apply, thus the LOSC permits all states equal and extensive "freedoms of the high seas" in those areas beyond national jurisdiction. (11) Consequently, the current Law of the Sea framework permits all states to develop high seas OREs but provides no guidelines on how such resource development should be allocated, managed, and operated.

    This constitutes a substantial gap in the LOSC's framework. Top scientists and policymakers have called for a framework for high seas ORE management, but alarmingly, to date, there is scant legal scholarship on the topic. (13) No scholars have considered an international legal framework to manage ORE development on the high seas. Yet, the discussion must occur before it is too late. Without clear delimitation of rights and responsibilities, uncertainty may stymie development or, alternatively, result in marine environment destruction due to free-for-all exploitation. (14) The time has come for the United Nations Secretary General to initiate a process for establishing a new international implementing agreement to allocate and manage high seas OREs.

  2. OCEAN RENEWABLE ENERGY RENAISSANCE AND THE PUSH TO THE HIGH SEAS

    Due to significant investment in ORE research and development, the technology has shifted from the "fringe" to mainstream, creating a robust offshore energy industry. (15) Today, OREs are being commercially developed and deployed around the globe. (16) With the rapid increase of electrical output from OREs, (17) experts anticipate ocean wind, wave energy, and biomass will become important sources of energy in the near future. (18)

    1. Wind Power

      Since the early 2000s, global wind power capacity increased dramatically and now satisfies over 5% of humanity's energy demand. (19) In Denmark, wind constitutes over 40% of the energy supply, while in Germany, Ireland, Portugal, Spain, Sweden, and Uruguay, wind represents over 10% of the power share. (20) Although offshore wind projects in 2019 produced just ".3% of global power generation ... its potential is vast" and energy output is expected to surge. (21) In Europe and Australia, ocean wind farms have proliferated as higher offshore winds allow turbines to spin on average 10-20% faster than those on land. (22) As of 2020, the global offshore wind market has grown nearly 30% each year for the last decade, 150 new projects are in development, and by 2040, "offshore wind power capacity is set to increase by at least 15-fold worldwide by 2040, becoming a $1 trillion business" and will "match [ ] capital spending on gas- and coal-fired capacity over the same period." (23) The European Commission has committed [euro]800 billion (roughly $971 billion) to increase offshore wind production by twenty-five times current capacity by 2050. (24) In the United States, thirty offshore wind projects are in development. (25) The U.S. Department of Energy explains that, as these projects proliferate, they also tend to move further offshore due to more consistently strong winds. (26) Other factors pushing deployment of OREs into the high seas include the availability of ocean space beyond local jurisdiction, (27) reduced permitting costs, (28) lower taxation, (29) the invention of floating, self-aligning turbines (permitting placement in very deep waters and maximizing efficiencies), (30) investments in undersea power transmission cables, (31) and lack of interference with coastal vantages, nearshore fishing, or recreational boating. (32) Environmental concerns may also drive wind farms further out into the high seas. In nearshore waters, spinning wind turbines inadvertently kill a large number of coastal migratory birds in spinning blades; similar concerns, however, do not exist further at sea. (33) Multinational conglomerates are "moving quickly into the floating offshore wind space," indicating that "the technology is ready for widespread commercial deployment." (34) Individually, these turbines are growing larger as increased rotor diameter means greater power with longer, more aerodynamic blades. (35) Collectively, massive scale is also necessary for economic viability and to justify substantial initial investment. Consequently, proposed developments are sprawling, multi-turbine wind farms covering vast expanses of ocean space. (36) The largest, Hornsea One, consists of 174 seven-megawatt wind turbines that are 100 meters tall. (37) Located seventy five miles offshore in the North Sea, Hornsea One has spinning blades larger than the London Eye, spans 600 square miles (larger than the Maldives archipelago), and powers over one million homes. (38) Off the United States' eastern seaboard, mega-wind-projects will come online by 2025, including the 250-square mile Ocean Wind Project (three times larger than the District of Columbia). (39) For now, these projects are within the national jurisdiction of EEZs, but the need for greater scale and higher wind efficiencies will push future projects further offshore into the high seas. (40)

    2. Wave Power

      Wave power is another promising ORE, which captures the kinetic potential energy of ocean waves. According to the International Energy Association, wave energy alone may someday fulfill all human energy demands since it is more constantly reliable than other OREs. (41) Though not yet commercially viable, new technological breakthroughs suggest this may change quickly. The two most common wave energy technologies are attenuators and point absorbers. (42) Structurally, attenuators are long, semi-submerged floating devices that span up to 180 meters, have diameters of four meters, and are made of over 1,350 tons of steel. (43) Each attenuator consists of hinged articulated sections which push hydraulic rams, driving generators to produce electricity as waves pass. (44) In 2008, the first commercial system failed due to buoyancy tank leaks, (45) but engineers appear to have overcome such problems, prompting a wave of new projects. The European Marine Energy Centre (EMEC) installed an attenuator off Scotland, and fifty more are planned or are in development in United Kingdom, Portugal, Hawaii, and Oregon. (46) Estimates of the amount of power that might be produced by wave energy projects are staggering. Attenuator designers claim their projects can yield three times more power than a wind farm in the same amount of space and time. (47) The six wave energy projects planned off the coast of Scotland are expected to produce four times the energy as a nuclear power plant and the U.S. Department of Energy reports wave power may become the dominant source of energy for the U.S...

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