International Law and Offshore Energy Production: Marine Environmental Protection through Normative Interactions

Abstract

Against the backdrop of the convoluted international legal framework regulating offshore energy production, the research examines how the standard of marine environmental protection is shaped through normative interactions between UNCLOS and other relevant international and supranational instruments. To that end, the thesis explores legal mechanisms that govern normative interactions in international law, and in particular, interactions within the context of the law of the sea. It considers that the legal fragmentation and the ensuing normative interactions do not unavoidably lead to genuine conflicts. Instead, it is posited that the interplay between UNCLOS and global and regional instruments can shape and enhance the level of marine environmental protection required of States in regulating offshore energy production. The thesis explores the normative implications of both inter- and intra-systemic normative interactions for the interpretation and implementation of the duty to protect and preserve the marine environment. In respect of intra-systemic interactions, it studies how global and regional environmental agreements can add flesh to the bare bones of the dynamic environmental framework under UNCLOS. Specifically, the first part examines the interplay between UNCLOS and global instruments that directly or indirectly regulate offshore energy production. Apart from the environmental agreements, the international environmental regulation of offshore energy production is equally affected by other international obligations of States, such as the duty to protect foreign investments under international investment agreements. For that reason, the first part of the research then discusses the implications of inter-systemic interactions between investment and marine environmental law. The author argues that the investment obligations of States do not necessarily impact the standard of marine environmental protection. However, given the specificities of the investment regime, arbitral tribunals have a strong say in interpreting the sovereign discretion and duty of States to regulate offshore energy production. Although global environmental agreements contain a wealth of benchmarks to determine the standard of diligence expected of States in the regulation of offshore energy production, most of them lack normative concreteness and do not address crucial aspects of offshore energy production activities. On that account, the second part of the thesis delves into a comparative analysis of the rules and standards established in the context of four marine regions, namely the Mediterranean and Baltic Sea, the North-East Atlantic and the Arctic Ocean. It highlights the significance of regionalism, as regional arrangements contain rules and standards directly applicable to offshore energy production activities. Besides, the institutional framework of regional agreements adapts standards to regional specificities, provides mechanisms for accommodating scientific, technological and environmental developments, and assists in State compliance. The second part of the study also examines the interplay between EU law and regional sea agreements to reveal how their cross-fertilization can enhance the substantive and procedural environmental rules and, most importantly, strengthen their enforcement across the EU. The thesis posits that regional rules and standards not only serve as best practices to be adapted to the needs of other marine regions but, under certain conditions, are also legally relevant for the interpretation and application of UNCLOS’ rules.