A new Issue Brief on ocean energy was published today by the Institute for Sustainable Development and International Relations (IDDRI). The paper brought together authors from 9 different institutions from across the world to set out the key legal issues and challenges for the development of ocean energy.
Ocean energy is a novel renewable energy resource being developed as part of the push towards a ‘Blue Economy’. The literature on ocean energy has focused on technical, environmental, and, increasingly, social and political aspects. Legal and regulatory factors have received less attention, despite their importance in supporting this new technology and ensuring its sustainable development.
The paper sets out some key legal challenges for the development of ocean energy technologies, structured around the following core themes of marine governance: (i) international law; (ii) environmental impacts; (iii) rights and ownership; (iv) consenting processes; and (v) management of marine space and resources.
- Ocean energy is bringing unique challenges to marine governance frameworks, with legal and regulatory issues frequently cited as a major non-technical barrier to development.
- By requiring exclusive occupation of ocean space, ocean energy is effectively privatising a common good and creating potential for conflict with other rights-holders and existing marine users.
- Uncertainties regarding the environmental interactions of ocean energy devices must be better accommodated in regulatory processes, based on adaptive and risk-based management strategies.
- Marine Spatial Planning has rapidly developed as a tool for managing ocean spaces, though it is not yet clear how ocean energy, and other new marine industries, can be integrated into these processes.
The Issue Brief can be downloaded for free from IDDRI’s website.
At the January 2015 meeting of the BBNJ Working Group, States took the historic step of agreeing to open negotiations for a new legally binding international agreement on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction.
During the previous meeting (June 2014), a strong coalition for the opening negotiations developed, with longstanding proponents such as the EU and G77 being joined by the newly vocal States of the African Union, Caribbean Community (CARICOM), and the Pacific. However, some key states, including the US, Canada and Russia, remained reluctant to open negotiations for a new UNCLOS IA, concerned that the need for such an agreement had not been established, and that a new global instrument could interfere with existing regional and sectoral arrangements.
At this meeting, the third and final meeting on the question of opening negotiations, these divisions continued, but States were finally able to reach a compromise following intensive discussions that lasted until the early hours of the morning. States clashed over the question of whether the discussions should lead to legally binding instrument and whether or not the Preparatory Commission would make substantive recommendations on the elements of an international legally binding instrument. There had been some concern that the recommendations from the Working Group would essentially lead to little more than a continuation of the same informal UN discussions. As part of reaching consensus, no deadline was set for finalising the treaty.
The Working Group recommends the establishment of a preparatory committee, prior to an intergovernmental conference, to make substantive recommendations on the elements of a draft text. This preparatory committee shall start its work in 2016 and will report to the UNGA on progress by the end of 2017. The Working Group recommends that the UNGA decide on the convening and on the starting date of an intergovernmental conference before the end of its seventy-second session. The recommendations reaffirm the package deal agreed on in 2011, namely: marine genetic resources; area-based management tools, including marine protected areas; environmental impact assessments; and capacity building and technology transfer.
The recommendations will now be approved by the UNGA by September 2015, with work to begin in the Preparatory Committee next year.
The catchily titled Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction recently met in New York (June 16-19). This was the second of three meetings convened to discuss the possibility of negotiating a new international agreement on high seas biodiversity. I was live tweeting the event using the #BBNJ hashtag, and IISD has released their briefing on the discussions. IDDRI and IASS will shortly publish a briefing paper on the negotiations, focussing on next steps towards a potential agreement.
In short, the negotiations continued the positive and collaborative spirit established during the last meeting in April, and there is now a clear and vocal majority in favour of negotiating a new agreement. Nonetheless, many questions remain unanswered, and there are a number of key debates that will likely necessitate a lengthy and intense negotiation process.
The EU and the G77 and China continue to argue for an IA to UNCLOS, and they are now joined by African Union, the Caribbean Community, and the Pacific States, while a handful os States remain reluctant to negotiate a new IA, including the US, Russia, Canada, Korea, Japan and Iceland.
The June meeting saw some convergence on a number of issues. There was broad support for maintaining the deadline set at Rio+20 and avoiding a prolongation of the current process. States also agree that UNCLOS provides the authority for such an agreement and that it should form the basis of negotiations and that negotiations must follow the package deal agreed in 2011. There is also an emerging consensus in favour of focussing on the practical realities of ABS rather than on legal debates regarding resource ownership.
Beyond these limited elements of convergence, a number of debates on substantive issues intensified and demonstrated the likely ‘battle lines’ of future negotiations, including:
- whether an IA should fill only legal gaps or whether it should have a broader vision;
- how an IA will respect the mandates of existing organisations;
- how fisheries will be treated;
- the role of a new IA in implementing and enforcing EIA and MPAs;
- the relevance of the distinction between the regional and global approaches to oceans governance; and
- eventual institutional arrangements
The working group will have one more meeting in January 2015 to formulate its recommendations to the UN General Assembly in August, yet many questions remain about how this process will proceed.