Document Type : Research Paper

Authors

• Sassan Seyrafi ¹
• Asma Salari ²

¹ Assistant Professor, Department of Public Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran

² Assistant Professor, International Law, Faculty of Literature and Humanities, University of Neyshabur, Neyshabur, Iran

Abstract

Introduction

Among the challenges facing the global community is the urgent need to reduce global warming caused by greenhouse gas emissions—which results in climate change—while at same time meeting the world’s increasing demand for energy. Shifting energy production from non-renewable to renewable sources is widely regarded as one of the most effective ways to mitigate global warming and address the climate crisis. Marine renewable energy refers to renewable energy derived from various natural resources in the marine environment. It encompasses four main types: ocean energy obtained from the kinetic or chemical energy of seawater (e.g., waves, tides, and ocean currents), geothermal energy derived from submarine geothermal resources, bioenergy generated from marine biomass, and wind energy from turbines installed in offshore areas. While the first three types are still at different stages of research and development, marine wind energy—commonly referred to as offshore wind energy—has already been commercialized on an industrial scale. Wind energy is generated both onshore and offshore; however, offshore wind currently represents only about 7 percent of global installed wind power capacity. This limited share is primarily due to the significantly higher cost of generating electricity offshore compared to onshore production. Despite these challenges, the offshore wind industry continues to expand, as wind resources generally increase with distance from the shore, resulting in greater energy output. Nevertheless, greater distance also means deeper waters, which substantially raise the costs of offshore wind projects. From the perspective of the Law of the Sea, the establishment of offshore wind farms in relatively shallow waters means that these installations are primarily located within the territorial sea of coastal states. However, as offshore wind projects expand into deeper waters, an increasing number of such installations are expected to be constructed within the 200-nautical-mile exclusive economic zone (EEZ) of coastal states. The unique legal regime of the EEZ—set out in Part V of the United Nations Convention on the Law of the Sea (UNCLOS)—raises a range of questions regarding the regulation of various aspects of offshore renewable energy activities within the EEZ. In addition to issues concerning its legal status under the EEZ regime, offshore wind energy development in the EEZ presents two principal challenges under the Law of the Sea: ensuring navigational safety and safeguarding the marine environment. In light of these focal points, the current study sought to examine offshore wind power production within the EEZ from the perspective of the Law of the Sea.

Literature Review

Despite the significant growth of the offshore wind sector over the past two decades, the body of international legal literature on offshore wind energy production remains relatively limited. In particular, there appears to be a scarcity of studies specifically addressing offshore wind production within the EEZ. In Persian legal scholarship, Rezaee (2017) provides an overview of the rights and duties of states concerning the development of marine renewable energies. In “Rights and Duties of Countries in Using Marine Renewable Energies,” Rezaee (2017) offers a concise discussion of renewable energy activities in the EEZ and on the continental shelf. In English-language legal literature, Scott (2006) examined wind energy generation in the EEZ with reference to issues such as navigational safety and marine environmental protection. However, the analysis primarily focused on U.K. domestic law rather than on international law. Other scholars (e.g., Castelos, 2014; Crossley, 2019; Neves, 2021; Young, 2015) explored marine renewable energy within the broader context of the Law of the Sea, briefly addressing how offshore wind production in the EEZ is regulated under that framework. Similarly, Scovazzi and Tani (2014) and Giannopoulos (2018) focused on the environmental dimensions of offshore energy production. Overall, there remains a notable gap in the legal literature concerning a comprehensive and independent examination of offshore wind energy production within the EEZ.

Materials and Methods

The present study aimed to identify and analyze the Law of the Sea rules governing offshore energy production within the EEZ. It adopted a doctrinal approach and an analytical–descriptive method to examine the normative content of relevant legal sources. The data was collected primarily through library-based research. The analysis began with the UNCLOS, which provides the fundamental international legal framework for all activities conducted in the EEZ. In addition, various other binding and non-binding international instruments were examined. These included resolutions adopted by the International Maritime Organization (IMO), as well as law-making treaties such as the Convention on Biological Diversity (CBD), the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the London Convention) and its 1996 Protocol, and the Convention on the Conservation of Migratory Species of Wild Animals (CMS Convention), among others.

Results and Discussion

The UNCLOS provides a comprehensive legal framework for wind energy production within the EEZ. The provisions of Part V of UNCLOS, which establish the legal regime of the EEZ, set out the fundamental principles regulating offshore wind energy development. In essence, the coastal state enjoys an exclusive sovereign right over all forms of marine energy production in its EEZ, including electricity generation from offshore wind turbines. Accordingly, the coastal state possesses the exclusive right to construct, authorize, and regulate the construction, operation, and use of offshore wind farms within its EEZ. Furthermore, the coastal state exercises full jurisdiction over installations and structures associated with offshore wind energy plants. With respect to maritime safety, Article 60 of UNCLOS lays down the basic provisions concerning the safety of offshore structures and installations, which also apply to wind farms. These provisions are complemented by the more detailed requirements contained in IMO Resolutions A.671(16) and A.672(16)—both adopted in 1989—which are considered binding through the so-called rule of reference. In addition, soft-law instruments such as the International Organization for Marine Aids to Navigation (IALA) Council Recommendation R0139 (O-139) and IALA Guideline G1162 provide practical guidance on the marking of offshore wind farms. Concerning the protection of the marine environment, the coastal state’s obligations under Part XII of UNCLOS—particularly Articles 192, 193, and 194—require it to protect and preserve the marine environment of the EEZ from the adverse effects of offshore wind energy activities. These obligations are reinforced by other international instruments, including the Convention on Biological Diversity (CBD) and the Convention on the Conservation of Migratory Species of Wild Animals (CMS Convention). These environmental obligations are characterized as due diligence obligations, meaning that the coastal state must take all necessary measures to prevent offshore energy activities in the EEZ from causing harm to the environment of other states or to areas beyond national jurisdiction. The duty to prevent transboundary environmental harm is further supported by the procedural obligation to conduct an environmental impact assessment for offshore wind farm projects. Finally, with respect to the decommissioning of offshore wind farms in the EEZ, the relevant rules and procedures established under the London Convention, as amended by the 1996 Protocol, must be complied with. 
 5. Conclusion
Overall, it seems that there are no significant legal lacunae that would hinder the development of offshore wind energy production in the EEZ, as its principal aspects are regulated by UNCLOS and a range of other relevant legal instruments. 

Keywords

• Renewable Energy
• Offshore Wind Farm
• Marine Turbine
• Navigational Safety
• Marine Environment
• Exclusive Economic Zone
• The Law of the Sea

Main Subjects

• International Law