The Art of Balancing Interests at Sea: Due Regard and Large-Scale Offshore Wind Power

The ocean is progressively transforming into the last frontier to pursue ambitious climate objectives, including deploying a broad spectrum of renewable energy technologies, e.g., wind, tidal, wave, solar and thermal energy. Yet the ocean is already a crowded space, and several conflicts may accompany the development of large-scale offshore electricity infrastructure. Those conflicts may be environmental (user-environment conflicts) or competition may ensue over the use of the same space (user-user conflicts)

These trade-offs are not always evident in policy instruments where climate action is often framed positively, but such action does not always lead to win-win scenarios. Acknowledging the social, environmental, economic, and legal dilemmas arising from climate action is a necessary first step to dealing with relevant conflicts. This is particularly important in the case of offshore wind power, as most countries around the world are planning to scale up this technology. Such expansion is primarily taking place in exclusive economic zones (EEZs).

The EEZ: a sui generis maritime zone

Unlike the territorial sea, where the coastal State exercises territorial sovereignty, article 56 of the United Nations Convention on the Law of the Sea (UNCLOS) describes the sovereign rights, jurisdiction and obligations of the coastal State in the EEZ. The sovereign rights relate exclusively to the exploration, exploitation and conservation of natural resources, including energy production from wind. Concerning sovereign rights, in the 1982 Tunisia Libya Continental Shelf case, Judge Oda, in his dissenting opinion, explained that: “so far as [SG1] the development of the natural resources of the sea is concerned, its competence in the Exclusive Economic Zone is equivalent to that it enjoys in the territorial sea.” 

While this is a suitable interpretation, UNCLOS introduces an important caveat in article 56(2). According to this article, while exercising its rights and performing its duties, the coastal State must have due regard for the rights of other States. Third States, while exercising their rights or fulfilling their obligations, also have a reciprocal due regard duty towards the coastal State. An immediate conclusion that can be drawn is that sovereign rights are not absolute. Therefore, arguing that a coastal State has the right to exploit wind energy does not necessarily mean that it has an absolute priority over the rights of other States to use a particular marine space. 

 In the EEZ, coastal States also have jurisdiction as provided in article 56(1)(b) UNCLOS over:

  1. The establishment of artificial islands, installations and structures.
  2. Scientific research
  3. The protection of the marine environment. 

It is important to note that territorial sovereignty and sovereign rights are more comprehensive than jurisdiction. According to Churchill et al. jurisdiction implies different legislative and enforcement authority levels, the boundaries of which are established by UNCLOS and other relevant international legal instruments, such as the Convention on Biological Diversity (CBD). An illustrative example of the limitations a coastal State may face concerns the prevention of ship source pollution in the EEZ, where coastal States can only enforce international standards as provided in article 211(5) of UNCLOS. In other words, the coastal State lacks legislative jurisdiction in this regard.

Overall, a constant feature of the EEZ is the need to balance the coastal States and other States’ rights. This is why “due regard” is particularly salient in this maritime zone.

Due Regard obligation: nature and extent 

Due regard is an obligation of conduct that requires reconciliation of competing interests to avoid undue interference as far as possible. In the 2015 Chagos Marine Protected Area case, the Arbitral Tribunal declined “to find in this formulation any universal rule of conduct,” which implies that due regard must be analyzed on a case-by-case approach. According to the Tribunal, the extent of care depends on the nature, importance, and anticipated impairment of the right. Usually, the actions required to discharge due regard obligations include consultation between the relevant parties. While the consultation length may vary, the obligation would not be fulfilled if consultations are rushed or relevant information is not shared between the consulting parties. Conducts that could amount to a breach of consultation obligations were also discussed in the Lake Lanoux arbitration. Such conducts include: “unjustified breaking off of the discussions, abnormal delays, disregard of the agreed procedures, systematic refusals to take into consideration adverse proposals of interests.”

Due regard requires parties to act in good faith, making it a flexible standard. The objective of due regard is not to establish a hierarchy between competing or overlapping interests but rather to find alternatives to “mutual supportiveness” between the interests at stake. Therefore, as Forteau argues, due regard must not be seen “in terms of prevalence, but in terms of complementary and equal respect.”

Large-Scale Offshore Wind Power: Winners and Losers 

Coexistence can be an alternative to reconcile various interests competing for the same marine space. In fact, States could comply with due regard obligations by fostering coexistence. Yet, while rights holders are theoretically equal, certain marine activities tend to be prioritized, often causing displacement of other activities.

Coastal States have ample discretion to select areas for the deployment of offshore wind as this activity falls within their sovereign rights, placing them in a privileged position. However, navigation ranks high in importance when planning for areas of development. This follows from maritime safety regulation and the provisions contained in UNCLOS, which may limit the legislative and enforcement jurisdiction of the coastal State. Maritime safety standards are of utmost importance to reduce the risks of collisions and allisions by securing enough maneuvering space for vessels. For this reason, according to article 60(7) of UNCLOS, coastal States cannot build offshore wind structures and installations “where interference may be caused to the use of recognized sea lanes essential to international navigation.” Furthermore, the International Maritime Organization (IMO) recommends that States assess the impact of offshore wind power on maritime safety. These impacts may include radar interference and limited maneuverability. In addition, the IMO also suggests that offshore structures are not established within routing systems or near their terminations. As a result, maritime safety may, in practice, constrain the ability of coastal States when planning to develop large-scale offshore wind power. In areas with intensive maritime traffic, coexistence may not be possible, especially if exclusive areas are selected for wind power to minimize collision risks.

While navigation is a maritime use that enjoys a high priority, the growth of large-scale offshore wind power has led to the displacement of fisheries. The conflicts are not only spatial but also temporal. From a spatial perspective, in Europe, the safety of offshore wind structures and installations stands out as a major factor driving this displacement. According to article 60(4) of UNCLOS, the coastal State may “establish reasonable safety zones around such artificial islands, installations and structures.” In safety zones, measures to ensure the safety of navigation may be adopted. To support coexistence, some states allow fishing with passive gear in safety zones. From a temporal perspective, fisheries may face significant restrictions during offshore wind construction, maintenance, and dismantling. However, coexistence could be actively promoted during the operational phase of the wind farms. 

Final Reflections

As competition for resources and diversification of activities at sea increases exponentially, so does the potential for conflicts over marine space. Due regard is a valuable standard that reflects the understanding that the rights conferred to States are not absolute and can be challenged if abused. Rather than hierarchy, at the core of due regard lie accommodation, reconciliation, and balance. Yet, in practice, in the development of large-scale offshore wind power it appears that certain interests, such as navigation, are prioritized in the name of maritime safety. At the same time, fisheries are constantly displaced despite regulatory efforts to ensure coexistence. 

Due regard is also compatible with policy efforts promoting the coexistence of several uses in the same ocean space. Coexistence among different ocean users is an essential first step to ensure that benefits and risks are distributed fairly. However, there are significant challenges that need to be addressed. For instance, it is crucial to map the trade-offs of various policy objectives, such as energy security, environmental protection, and economic prosperity. Additionally, it is important to consider the legal, political, and ethical aspects when prioritizing marine uses.

Gabriela Argüello, JD, is an Associate Senior Lecturer at the School of Business, Economics and Law at the University of Gothenburg. She is also a research fellow financed by The Royal Swedish Academy of Letters, History and Antiquities.