Regionalism and Marine Environmental Protection: the Case of Offshore Energy Production

Abstract

At the global level, the rules which directly or coincidentally regulate offshore energy production activities stand out as being mostly sectoral and recommendatory. Global agreements do not offer concrete environmental standards applicable to offshore energy production activities, but they create normatively modest obligations of conduct, which allow States wide discretion in their implementation. By contrast, most of the specific environmental rules and standards concerning energy activities at sea have been developed at the regional level. The role of regional agreements appears to be embraced by UNCLOS, which accommodates and, in certain instances, encourages the development of regional agreements for the protection of the marine environment. The multitude of references to regional rules and forms of cooperation in UNCLOS is indicative of the significance of regionalism to address certain sources of pollution. However, not all energy-producing marine regions are subject to normatively specific rules and standards to regulate these activities. Theoretically, the absence of such standards might have significant environmental repercussions. Given the interconnectedness of seas and oceans, the success of a regional agreement in achieving its environmental objectives depends considerably on the consistent efforts in the other areas of the world to equally protect and preserve the marine environment. Against that background, it is crucial to examine not only the relevance of regional agreements for the geographical areas they were developed to protect but also whether the regional rules and standards can offer solutions, which may be applicable in other marine regions. In particular, it is important to assess the legal relevance of these region-specific rules and standards for other marine areas, for which there are no specific rules on the environmental regulation of offshore energy production activities. The aim of this paper is two-fold as it purports to examine the role of regional agreements for the regulation of offshore energy production activities both within and beyond their geographical scope of application. On that account, the contribution first examines the role of regional agreements in identifying, adapting and updating the standard of diligence that States must exercise in the respective marine areas. In that respect, it briefly discusses the relevant normative and institutional developments in four selected regions, namely the Mediterranean Sea, the Baltic Sea, the North-East Atlantic and the Arctic Ocean. Drawing on these developments, it extrapolates the significant contribution of the regional agreements in developing future-proof and inclusive regulation of offshore energy production activities. In addition, the paper posits that insofar as these regional agreements could inform the interpretation of the duty to protect the marine environment in the context of offshore energy production under UNCLOS, they could also shape the required standard of care at the global level. For that reason, it discusses whether, and under which conditions, regional rules and standards inform and enrich the interpretation and implementation of the duty to protect the marine environment under UNCLOS.