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Document Type

Comment

Abstract

The vast spaces of the open ocean make it an intriguing location for extracting renewable energy. Oceans make up over seventy percent of the earth’s surface, and are almost completely devoid of permanent structures. The oceans also produce incredible amounts of wind and wave power. Winds are stronger over oceans than over land, and offshore turbines can be built larger than onshore turbines, producing exponentially more energy. Wave power, too, while lacking an onshore counterpart, strengthens in deeper water. Both technologies, if employed extensively across the world’s oceans, would significantly reduce the need to produce electricity from other sources, if not render additional technologies unnecessary. Of course, scattering wind turbines and wave-powered buoys across the oceans is, at this point, a daydream. Offshore wind power is in its infancy, and the technology to install or float turbines in water more than thirty meters deep is still being developed. Likewise, wave power technology is still being tested, and large commercial farms are not yet a reality. Additionally, once the technology exists to allow for the proliferation of wind and wave-power installations, financial and other concerns may stall growth. On the other hand, there is a lot of energy to be derived from the world’s oceans, and there is a market back on shore for electricity derived from renewable sources. While still in early stages, deep ocean renewable technology is being developed, and perhaps we are closer than we realize to wind and wave generators on the high seas. If that is the case, existing international laws would have to respond to this new situation. Would it be possible, then, for a willing nation to extract wind or wave power from the high seas? What regulatory steps would need to be taken? What additional regulations or regimes, if any, need to be established? Despite concerns about cost and feasibility, international demand for cleaner and more reliable sources of electricity is driving developers to look at offshore wind and wave power as viable potential energy sources. In 2007, the European Union (EU) was producing 1100 megawatts (MW) of electricity from offshore farms, with a goal of producing up to 40 gigawatts (GW) by 2020. Although operational farms only existed in the EU as of the beginning of 2009, offshore wind farms are being planned or constructed in countries around the world, including China and the United States. Likewise, the world’s first wave farm opened in Portugal in 2008, and increases in capacity are already planned. Additional farms are being planned or researched for Scotland, Australia, and the United States. Thus, while it is not imminent, it is also not impossible to imagine ocean energy-gathering technologies operating on a much larger scale across the world’s oceans. Such a situation would need to be supported by international laws of the sea, of course. Currently, the Third United Nations Convention on the Law of the Sea (UNCLOS) provides fairly clear jurisdiction for countries to establish offshore energy farms off their coasts. Under UNCLOS, a coastal state has the exclusive right to exploit non-living resources found in its internal waters, territorial seas, and exclusive economic zones (EEZs). But beyond the 200 nautical mile boundary of the EEZ–the “high seas”–the right to construct a wind or wave farm is uncertain. Under UNCLOS, the high seas are a commons: open to the use and exploitation of (most) resources by all countries so long as their activities do not interfere with the high seas freedoms of other nations. Even before the recent interest in ocean-based energy, some began to question whether the UNCLOS high seas regime (or, “Freedom of the High Seas”) provided enough regulation for these vast areas. A factor that surely contributes to the absence of more defined regulation on the high seas is the type of activity in the area. The most common activities, fishing and navigation, are specifically defined as high seas freedoms under UNCLOS. Other than fishing, resource extraction on the high seas has mainly focused on mining of polymetallic nodules from the seafloor, a controversial practice regulated under UNCLOS by the International Seabed Authority. The freedom to collect renewable resources, however, is not explicitly mentioned in UNCLOS. In this Comment, I will examine the history of the high seas, and explain how it has developed to regulate the extraction of fish and minerals. I will consider whether the extraction of renewable resources is possible under the current UNCLOS regime and, if not, whether regulations based on the current fishing and deep seabed mining systems would serve as effective models for a renewable energy regime. This Comment concludes that while the development of high seas renewables under UNCLOS may currently be possible, a new set of regulations that encourages both the speedy development of energy projects and international cooperation would be effective and, important to the ethic of the high seas, fair. In Part II of this Comment, I will look at the development of wind and wave power and their potential on the high seas. In Part III, I will examine the origins of the idea of the high seas as a commons, and discuss whether that model is still relevant. In Part IV, I will discuss how high seas resource extraction is currently handled by international law. Finally, Part V examines possible avenues for the regulation of renewable energy extraction on the high seas.

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