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GOVERNING SHARED OFFSHORE ELECTRICITY INFRASTRUCTURE IN THE NORTHERN SEAS

Published online by Cambridge University Press:  31 October 2013

Volker Roeben
Volker Roeben*
Affiliation:
Professor, Swansea University, [email protected].
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Abstract

Through the joint ‘North Seas Countries Offshore Grid Initiative’ the states bordering the North Seas are establishing shared large-scale offshore electricity infrastructure in order to exploit their offshore wind energy resources. The article argues that this international governance of oceans space comes about legally because international law, European law and national law each fulfil a specific function. The climate regime provides the normative impetus, the law of the sea allocates competences, and European law contains principles of cooperation, which are then implemented through coordinated national law. International law, European law and national law thus become functionally integrated. This analysis has significance beyond shared offshore electricity infrastructure. It illustrates the way in which the functional integration of international law, European law and national law is emerging as a distinct legal institution in its own right, separate and distinct from the various legal orders themselves.

Keywords

comparative lawconcepts of international lawEU lawinternational and European energy lawinternational environmental lawlaw of the seapublic international law
Type
Articles
Information
International & Comparative Law Quarterly , Volume 62 , Issue 4 , October 2013 , pp. 839 - 864
Copyright
Copyright © British Institute of International and Comparative Law 2013 

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References

1 The Future We Want, Outcome document of the United Nations Conference on Sustainable Development, para 190, UN General Assembly resolution 66/288, Annex, UN Doc A/RES/66/288 (11 September 2012).

2 The topic of focus of the thirteenth meeting of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea, 29 May–1 June 2012, was ‘marine renewable energies’, report on the work of the ICP at its 13th meeting, UN Doc A/67/120, and report of the Secretary General (UN), Oceans and the Law of the Sea, A/67/79 (31 August 2012).

3 Belgium, Denmark, France, Germany, Ireland, Luxembourg, the Netherlands, Sweden, the United Kingdom, and the European Commissioner for Energy signed the Political Declaration on the ‘North Seas Countries’ Offshore Grid Initiative’ on 7 December 2009 (North Sea, the Channel, Irish Sea, Celtic Sea covering a surface area of about 760,000 km²), <http://www.benelux.int/pdf/pdf_fr/act/act0170_NorthSeasCountriesOffshoreGridInitiativePoliticalDeclaration.pdf> (NSCOGI).

4 See UK Parliament, House of Commons Energy and Climate Change Committee, Energy and Climate Change: Seventh Report ’A European Supergrid’, September 2011, <http://www.publications.parliament.uk/pa/cm201012/cmselect/cmenergy/1040/104002.htm> (European Supergrid Report); European Commission (EU), ‘Energy Infrastructure Priorities for 2020 and Beyond: A Blueprint for an Integrated European Energy Network’ COM (2010) 677, 26 (17 November 2010), approved by the European Council, 4 February 2011, and Council (EU), 28 February 2011 (doc 6207/1/11 REV 1) (Energy infrastructure).

5 European Commission (EU), Renewable Energy: A Major Player in the European Energy Market, SWD (2012) 163.

6 The European Wind Energy Association, Oceans of Opportunity, 2009, 27, <http://www.ewea.org/fileadmin/ewea_documents/documents/publications/reports/Offshore_Report_2009.pdf> (Oceans of Opportunity). The UK's current Round 3 of wind farm leases extends to the continental shelf. Denmark has the offshore wind tenders of Horns Rev 3 and Kriegers Flak. In the German EEZ, two clusters are in action, and the large ‘0ffshore-Windpark Amrumbank West’ is planned for 2013–15.

7 Energy infrastructure (n 4) 26.

8 Oceans of Opportunity (n 6) 8–9, 25.

9 Energy Infrastructure (n 4) 26.

10 ENTSO-E, Offshore Transmission Technology (November 2011, update 16 October 2012) 24, <https://www.entsoe.eu/resources/publications/system-development/north-seas-grid-development>.

11 The wind energy potential of the Northern seas is investigated through EU-funded projects see Commission (EC), Offshore Wind Energy COM (2008) 768, 9 (13 November 2008). See also Joint Declaration on Cooperation in the Field of Research on Offshore Wind Energy Deployment signed by Germany, Denmark, Sweden and Norway, December 2007, para 8b, <http://www.regjeringen.no/upload/OED/pdf%20filer/JointDeclaration-D-S-DK-041207.pdf>.

12 Energy security points in the same direction, European Council (EU), Presidency Conclusions, 19/20 March 2009, Doc 7880/1/09 REV1, paras 24–28; see Barton, B, Redgwell, C, Ronne, A and Zillman, DN (eds), ‘Introduction’ in Energy Security: Managing Risk in a Dynamic Legal and Regulatory Environment (Oxford University Press 2004)CrossRefGoogle Scholar 1, 5.

13 Agenda 21, 1992, paras 4.18, 9.9–9.12 and 9.18, in Report of UNCED, vol I Resolutions Adopted by the Conference, resolution 1, annex II, UN Doc A/Conf.151/26/Rev.1.

14 Johannesburg Plan of Implementation of the World Summit on Sustainable Development, 2002, paras 7(e), 9(a) and (c), 20, 59(b) and 62(j), UN Doc A/CONF.199/20.

15 The Future We Want (n 1) para 128.

16 Report of G8 Renewable Energy Task Force, July 2001, <http://www.g8.utoronto.ca/meetings-official/g8renewables_report.pdf>; Leaders' Declaration, Hokkaido Toyako Summit, Environment and Climate Change, 8 July 2008, para 27, <http://www.mofa.go.jp/policy/economy/summit/2008/doc/doc080714__en.html>; Leaders’ Joint Statement: Promoting the Global Agenda, Annex I ‘Concluding Report of the Heiligendamm Process’, L'Aquila, Italy, 9 July 2009, paras 40–43, <http://www.g8italia2009.it/static/G8_Allegato/06_Annex_1__HDP_Concluding.pdf>.

17 The Future We Want (n 1), Annex, para 252; and the initiative of the Secretary-General on Sustainable Energy for All, referenced in para 129.

18 United Nations Framework Convention on Climate Change, adopted 9 May 1992, entered into force 21 March 1994, 1771 UNTS 107 (FCCC).

19 Kyoto Protocol to the United Nations Framework Convention on Climate Change, adopted 10 December 1997, entered into force 16 February 2005, 2303 UNTS 148 (KP).

20 Decision 1/CMP.6, ‘Outcome of the Work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its Fifteenth Session’, preamble para 4 (11 December 2010) in Report of the Conference of the Parties serving as the meeting of the Parties on its Sixth Session, Addendum, Part Two, Doc FCCC/CP/2010/9/Add.1.

21 For the regime's future development see the Durban decisions of 11 December 2011 that foresee a second commitment period from 2013 with QELROs for the EU member states (Decision 1/CMP.7, ‘Outcome of the Work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its Sixteenth Session’ in Report of the Conference of the Parties serving as the meeting of Parties on its Seventh Session, Addendum, Part Two, FCCC/KP/CMP/2011/10/Add.1).

22 Information on the policies adopted needs to be included in the regular national communications of Annex I Parties to the FCCC Secretariat.

23 Oberthür, S and Ott, HE, The Kyoto Protocol (Springer 1999)CrossRefGoogle Scholar 103, 110. The negotiating history of the subchapeau of art (1)(a) Kyoto Protocol reveals that all proposals included a general commitment to take policies and measures. The uses of not just ‘implement’ but also ‘further elaborate’ indicate a dynamic character as the outcome of the negotiations. The policies listed in nos i–viiii are not mandatory but indicative, as reflected in the term ‘such as’. See F Depledge, ‘Tracing the Origins of the Kyoto Protocol: An Article by Article History’, UN Doc FCCC/TP/2000/2, art 2(1)(a) paras 40, 42, 53. Generally for obligations of conduct ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, annexed to GA Resolution 56/117, Commentary on art 12, para 11, in Report of the ILC, Fifty-third session, UN Doc A/56/10.

24 cf art 2(1)(a)(v) Kyoto Protocol, ‘market instruments’.

25 Art 2(1)(b) first sentence Kyoto Protocol in connection with art 4(2)(e)(i) FCCC requires Annex I Parties to coordinate on renewables, including relevant economic and administrative instruments. Art 2(1)(b) second sentence Kyoto Protocol covers information sharing. See F Depledge (n 23) art 2(1)(b) para 8.

26 Art 2(1)(b) third sentence Kyoto Protocol empowers the meeting of the Parties to facilitate such cooperation, and art 2(4) Kyoto Protocol to coordinate national policies and measures, for instance through a code of best practice. Cooperation between Annex I and non-Annex I Parties on renewable technology is fostered under art 4(5) FCCC for which an implementing framework was agreed as part of the Marrakesh Accords. In addition, the cooperative flexible mechanisms Clean Development Mechanism (CDM) and Joint Implementation apply to renewables, and methodologies have been developed by the Executive Board of the CDM.

27 United Nations Convention on the Law of the Sea, adopted 10 December 1982, entry into force 16 November 1994, 1833 UNTS 397 (UNCLOS or Convention).

28 Agreement Relating to the Implementation of Part XI UNCLOS, adopted 28 July 1994, entry into force 28 July 1996, 1836 UNTS 42; Agreement for the Implementation of the Provisions of UNCLOS Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted 4 December 1995, entry into force 11 December 2001, 2167 UNTS 88.

29 Vienna Convention on the Law of Treaties, done 23 May 1969, entry into force 27 January 1980, 1155 UNTS 331 (VCLT).

30 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, ITLOS Sea-bed Disputes Chamber, 1 February 2011, paras 57–58; Case Concerning the Gabčikovo-Nagymaros Project (Hungary v Slovakia) (1997) ICJ Reports 7, para 112.

31 Convention for the Protection of Submarine Telegraph Cables, adopted 14 March 1884, entry into force 1 May 1888, British and Foreign State Papers, Vol. LXXV 357–367; 163 CTS 391, Australian Treaty Series 1901 No 1 (electronic), as amended by the Declaration on the Protection of Submarine Cables of 1 December 1886 and the Protocol on the Protection of Submarine Cables of 7 July 1887 (Cable Convention) <http://www.iscpc.org/information/Convention_on_Protection_of_Cables_1884.pdf>.

32 See Coffen-Smout, S and Herbert, G, ‘Submarine Cables: A Challenge for Ocean Management’ (2000) 24 Marine Policy 441CrossRefGoogle Scholar; Wagner, E, ‘Submarine Cables and Protections Provided by the Law of the Sea’ (1995) 19 Marine Policy 127CrossRefGoogle Scholar. Submarine cables for climate monitoring and disaster warning are considered by the ITU, IOC/UNESCO and the World Meteorological Organization, Oceans and the Law of the Sea (n 2) para 57.

33 ILC Draft Articles concerning the Law of the Sea, art 61(1) read as follows: ‘All States shall be entitled to lay telegraph, telephone of high-voltage power cables and pipelines on the bed of the high seas’. See commentary on draft art 61, para 3; commentary on art 27, para 4, in Report of the ILC, Eighth session, ILC Yb 1956, vol II, Part Two (1956 ILC Draft Articles).

34 Art 61(1) of the ‘Text of the articles’ adopted by the Second Committee of the First UN Law of Sea Conference only mentions ‘submarine cables’, UN Doc A/CONF.13/L.17/Add.l, Official Records, Vol IV, Annex. This was meant to comprise all cables and achieve terminological unification across the articles, see Proposal by USA, Doc A/CONF.13/C.2/L.108; and the earlier proposal by Italy, Doc A/CONF.13/C.2/L.102. The previous debate in the committee had shown the extension of the right to lay cables to power cables as suggested by the 1956 ILC Articles to be uncontroversial, Official Records, 30th meeting, para 16 (France); para 18 (Italy), para 22 (Venezuela). The uniform terminology of submarine cables was then retained in arts 2, 26 of the High Seas Convention and art 4 of the Continental Shelf Convention.

35 The United Kingdom has claimed an ‘Exclusive Fisheries Zone’ under the Fisheries Act 1976 section 1, where it exercises rights equivalent to an EEZ in the water column. Sections 84–89 of the UK Energy Act 2004 (EA 2004) established Renewable Energy Zones (REZ), founded in art 56(1)(a) UNCLOS. Schedule 4 para 1 of the UK Marine and Coastal Access Act 2009 amended EA 2004 section 84(4) so that REZ and EEZ now are basically identical; see Plant, G, ‘Offshore Renewable Energy: Smooth Permitting, Environmental Assessment and Fair Use Allocation’ (2003) 13 Journal of Water Law 85Google Scholar.

36 Literature on submarine cables let alone high voltage power cables is scant. Recent contributions are Redgwell, C, ‘International Regulation of Energy Activities’ in Roggenkamp, M, Redgwell, C, Del, I Guayo and Rønne, A (eds), Energy Law in Europe (2nd edn, OUP 2007) 13, 63–4Google Scholar; Zeuschner, R, ‘Pipelines and Cables: The Offshore Transportation of Oil, Gas and Renewable Energy’ (2011) International Energy Law Review 311Google Scholar.

37 cf Cable Convention (n 31) art I.

38 See Churchill, RR and Lowe, AV, The Law of the Sea (3rd edn, Manchester University Press 1999) 205–7Google Scholar, 455 (cable laying freedom of ‘immersion’ involving the seabed).

39 See 1956 ILC Draft Articles (n 33), commentary on art 61(2)—which corresponds to art 79(2) UNCLOS: ‘(t)he coastal State is obliged to permit the laying of cables’.

40 Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction, vol V, UNGA, Official Records, Twenty-eighth Session, Supplement No 21 (A/9021) (China).

41 The Continental Shelf (1075, mimeo.) art 6 (Informal Group of Juridical Experts), reproduced in Platzöder, R, Third United Nations Law of the Sea: Documents vol XI (Oceana Publications 1987)Google Scholar 501, 502.

42 A/CONF.62/WP.8/Rev.1/Part II, art 65.

43 Proposal by Denmark (1977) (mimeo.) art 67 (RSNT II), reproduced in IV Platzöder (n 41) 470.

44 138th plenary meeting (1980) para 150, XIV Off. Rec. 61 (Denmark).

45 A/CONF.62/WP.10 (ICNT, 1977) art 79, VIII Off. Rec. 1, 17.

46 The coastal state may in turn provide for their protection limiting innocent passage, art 21(1)(c). A vessel used for laying cables is not in innocent passage within the meaning of art 19, see Mudrić, M, ‘Rights of States Regarding Underwater Cables and Pipelines’ (2010) 29 Australian Resources Energy Law Journal 235, 236Google Scholar.

47 In the case of the 2011 UK–Netherlands Interconnector ‘BritNed’ the respective national TSOs formed a joint venture to fund and operate the interconnection, which was licensed by both the UK and the Netherlands. The ‘NordLink’ interconnector from Norway to Germany planned to be laid on the Norwegian, German and Danish continental shelves is registered in Norway and will require licensing both there and in Germany.

48 This is also practice of the offshore wind generation projects in the Northern seas, where foreign producers have assumed responsibility also for the offshore grid system, while the national TSO is responsible for the onshore connection. Examples are ‘Rödsand II’, which lies between the German island of Fehmarn and the Danish island of Lolland and ‘London Array’ in the Thames Estuary.

49 cf Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), ITLOS case No 16 (14 March 2012), paras 475–476, for due regard obligations of states under the Convention.

50 This follows from the cross-reference of art 58(1) to art 87(1)(c), which subjects the freedom to lay cables on the continental shelf to Part VI. But see also Nelson, D, ‘Submarine Cables and Pipelines’ in Dupuy, R-J and Vignes, D (eds), A Handbook on the Law of the Sea (Martinus Nijhoff 1991) vol II, 977, 986Google Scholar, who sees art 56(3) as pertinent. But art 56 does not cover cable laying.

51 See Churchill and Lowe (n 38) 209. Cable Convention (n 31) art VIII, also allocates jurisdiction on these matters to the flag state.

52 cf Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), (2010) ICJ Reports 14, para 187; Responsibilities Opinion (n 30) para 111.

53 See Mudrić (n 46) 247–8; Green, MP and Burnett, DR, ‘Security of International Submarine Cable Infrastructure: Time to Rethink’ in Nordquist, MH, Wolfrum, R, Norton, J Moore and Long, R (eds), Legal Challenges in Maritime Security (Martinus Nijhoff 2008)Google Scholar 557; Kaye, S, ‘International Measures to Protect Oil Platforms, Pipelines, and Submarine Cables from Attack’ (2007) 31 TulMarLJ 377, 398Google Scholar.

54 For the Northern seas states, European law on the marine environment and namely the Directive (EC) No 92/43 on the conservation of natural habitats and of wild fauna and flora, [1992] OJ L 206/7 may be such rules of international law not incompatible with art 58(1).

55 The UK Crown Estate's permission is needed for the rights to lay, maintain and operate cables and pipelines on the seabed within 12 nm for which it is landlord. It only asks to be informed of cables and pipelines that transit the UK continental shelf, as other activities may be impacted. Other states such as Germany pursuant to the Federal Law on Mining subject all cables to an authorization procedure in regard to conflicting activities. The ‘NorNed’ interconnector cable from Netherlands to Norway thus required authorization to transit the German EEZ. For practice in Asia see Y Takei, ‘Law and Policy for International Submarine Cables in the Asia-Pacific Region’, AsianSIL Working Paper 2010/13, fns 39–42.

56 Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment of 19 November 2012 (nyr) para 138.

57 Para 139 (there Art 121 paras 1 through 3 on islands).

58 A Party to UNCLOS may be required to comply with art 79 even vis-à-vis a non-Party given the Convention's forming the ‘legal order’ of the oceans; cf Colombia v Nicaragua, para 126.

59 Compare R Beckman, ‘Submarine Cables: A Critically Important but Neglected Area of the Law of the Sea’, Indian Society of International Law, 7th International Conference on Legal Regimes of Sea, Air, Space and Antarctica, 15–17 January 2010, New Delhi, 3 with DR Burnett, ‘Testimony before the US Senate Committee on Foreign Relations’, October 2007, 2–3.

60 UNCLOS, art 56(1)(a). cf Leary, D and Esteban, M, ‘Climate Change and Renewable Energy from the Ocean and Tides: Calming the Sea of Regulatory Uncertainty’ (2009) 24 International Journal of Marine and Coastal Law 617, 617CrossRefGoogle Scholar.

61 cf Scott, KN, ‘Tilting at Offshore Windmills: Regulating Wind Farm Development within the Renewable Energy Zone’ (2006) 18 JEL 89, 96CrossRefGoogle Scholar.

62 UNCLOS, art 192.

63 Responsibilities Opinion (n 30) paras 117–120. Including safe navigation, see IMO resolution A. 671(16) of 19 October 1989 on safety zones and safety of navigation around offshore installations and structures.

64 Responsibilities Opinion paras 122, 136.

65 Responsibilities Opinion paras 122, 135.

66 UNCLOS, art 206 and customary international law give little guidance on their conduct, Responsibilities Opinion (n 30) para 149; cf Pulp Mills on the River Uruguay (n 52) para 205.

67 cf UNCLOS, art 208(3); also art 211(2).

68 See Wolfrum, R, Die Internationalisierung staatsfreier Räume (Springer 1984)CrossRefGoogle Scholar.

69 For renewable energy Leary and Esteban (n 60) 617; M-Z Gao, A and Y-C Juang, K, ‘The International Legal Regime on the Exploitation of Offshore Geothermal, Wave, Tidal and OTEC Energy: In Search of Legal Challenges and Solutions’ (2006) 24 International Energy Law and Taxation Review 267Google Scholar. For non-renewable energy further Üsenmez, E, ‘The UK's Energy Security’ in Paterson, J, Gordon, G and Üsenmez, E (eds), Oil and Gas Law: Current Practice and Emerging Trends (Dundee University Press 2011) 33Google Scholar.

70 See Offshore Transmission Technology (n 10).

71 See Posner, E and Sykes, A, ‘Economic Foundations of the Law of the Sea’ (2011) 104 AJIL 569CrossRefGoogle Scholar.

72 For wind energy projects in Asian-Pacific countries supported by regional cooperation see M Esteban and Leary, D, ‘Current Developments and Future Prospects of Offshore Wind and Ocean Energy’ (2012) 90 Journal of Applied Energy 128Google Scholar. Cooperative fora on offshore grids would be the International Renewable Energy Agency and the International Energy Agency; cf Oceans and the Law of the Sea (n 2) para 61.

73 Birnie, P, Boyle, A and Redgwell, C, International Law and the Environment (3rd edn, OUP 2009) 394Google Scholar.

74 cf Pulp Mills on the River Uruguay (n 52) paras 58–63.

75 Case Concerning Oil Platforms (Iran v USA), (2003) ICJ Reports 161, para 41; Pulp Mills on the River Uruguay (n 52) para 66.

76 ILC Study Group, Fragmentation of International Law, Difficulties Arising from the Diversification and Expansion of International Law, Report, para 467, UN Doc A/CN.4/L.682, and Draft Conclusions, para 20(a), UN Doc A/CN.4/L.682/Add.1, in Report of the ILC, Fifty-eighth session, UN Doc A/61/10; ILC Yb 2006, vol. II, Part Two (Report on Fragmentation).

77 cf Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal, (2002) ICJ Reports 86, para 79; Report on Fragmentation, paras 473–475.

78 The MOX Plant Arbitration (2003) demonstrated differing views about the implications of UNCLOS, art 123 for regional cooperation. But even Ireland's argument that the UK was insufficiently cooperative on measures to defend against terrorist attacks on the Sellafield nuclear plant turned on the attendant environmental obligations of the UK, rather than on nuclear energy use as such. Permanent Court of Arbitration, MOX Plant Case (Ireland v UK) (2003, withdrawn); ITLOS, The MOX Plant Case (Ireland v United Kingdom) (Provisional Measures) Case No 10 (3 December 2001).

79 Convention for the Protection of the Marine Environment of the North-East Atlantic, adopted 22 September 1992, entry into force 25 March 1998 (OSPAR). OSPAR has issued guidance on the location, operation and removal of offshore wind farms, including associated power cables, OSPAR ‘Guidance on Environmental Considerations for Offshore Wind Farm Development’ (2008-3). OSPAR's definitions of offshore installations and offshore pipelines underscore its restricted remit, see Decision 98/3 on the Disposal of Disused Offshore Installations, excluding ‘any part of an offshore installation which is located below the surface of the sea-bed’.

80 UNCLOS sets forth discrete cooperative obligations. The Responsibilities Opinion (n 30) paras 142–143, for instance, identifies the obligation for states to cooperate with the International Seabed Authority.

81 The MOX Plant Case (n 78), para 82; Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore) (Provisional Measures), ITLOS Case No 12 (8 October 2003) para 92.

82 Art 2(2) Kyoto Protocol contains an obligation to cooperate through the IMO on mitigating the climate impact of navigational uses of the sea. MARPOL 71/78, Annex VI was amended in 2006 to extend to greenhouse gas emissions other than exhaust. In July 2011, the 62nd session of the IMO's Marine Environment Protection Committee adopted further amendments in the form of the mandatory Energy Efficiency Design Index for new ships. At its 63rd session in 2012, the Committee considered complementary market-based measures, MEPC 63/23, section 5.

83 This rationale runs through the jurisprudence of the ITLOS. In the Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures), ITLOS Case Nos 3 & 4 (27 August 1999), parties were to cooperate on living resources management through the SBT Conservation Convention. Straits of Johor (n 81) suggests means of cooperatively delimiting a maritime boundary. Similarly, Pulp Mills on the River Uruguay (n 52) para 77 envisages states jointly managing a shared river environment; also Gabčikovo-Nagymaros (n 30) paras 140–141.

84 The Kyoto Protocol was approved by Council Decision 2002/358/EC concerning the approval, on behalf of the EC, of the Kyoto Protocol and the joint fulfilment of commitments thereunder, [2002] OJ L 130/1. Art 4 Kyoto Protocol is the international basis for the EU's internal burden sharing. See Scott, Joanne, ‘The Multi-level Governance of Climate Change’, in Craig, P and de Búrca, G (eds), The Evolution of EU Law (2nd edn, OUP 2011)Google Scholar, 805, 807.

85 See Commission (EC), Analysis of Options to Move Beyond 20% Greenhouse Gas Emission Reductions and Assessing the Risk of Carbon Leakage COM (2010) 265 (26 May 2010).

86 Directive (EC) No 2009/28 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives (EC) 2001/77 and 2003/30/EC, [2009] OJ L 140/16, art 3. This is part of the Europe 2020 strategy to reduce CO2 emissions by 20 per cent and obtain 20 per cent energy from renewables by 2020, European Council, 8/9 March 2007, Presidency Conclusions, Doc 7224/1/07 REV. The EU is on track to meet these targets, Commission (EU), A Roadmap for Moving to a Competitive Low Carbon Economy in 2050 COM (2011) 112 (8 March 2011), p 3.

87 The national target of the UK is 15 per cent.

88 Directive 2009/28 (n 86) arts 6, 7, 8, 9 and art 11.

89 Commission (EC), Offshore Wind Energy: Action Needed to Deliver on the Energy Policy Objectives for 2020 and Beyond COM 2008(768) (13 November 2008); European Supergrid Report (n 4) paras 20–23.

90 UNCLOS was approved by Council Decision 98/392 concerning the conclusion by the EC of UNCLOS and the 1994 Agreement relating to the implementation of Part XI thereof, [1998] OJ L 179/1. The Convention is a mixed agreement binding both the EU and its member States. The EU is recognized in UNCLOS, art 305(1)(f), Annex IX, art 1.

91 [2010] OJ C 83/01, entry into force 1 December 2009. See Case C-459/03 Commission v Ireland [2006] ECR I-4635, para 108; otherwise, member states remain competent for implementing the Convention, para 107. UNCLOS then becomes European law falling under the exclusive jurisdiction of the Court, paras 123. However, UNCLOS as European law cannot be directly enforced before EU or national courts, Case C-308/06, Intertanko and Others [2008] ECR I-4057, paras 64–65.

92 TFEU, art 114.

93 TFEU, arts 170–172.

94 TFEU, arts 191–193.

95 TFEU, art 194, introduced by the Treaty of Lisbon [2007] OJ C 306, entry into force 1 December 2009.

96 Case C-6/04 Commission v United Kingdom [2005] ECR I-9017, para 117.

97 The third internal electricity energy market package of 2009 consists of Directive (EC) No 2009/72 ([2009] OJ L 211/55 and Regulations (EC) No 713/2009, [2009] OJ L 211/1 and 714/2009, [2009] OJ L 211/15. For offshore applicability: UK Office of the Gas and Electricity Markets, ‘Offshore Electricity Transmission: Further Consultation on the Enduring Regulatory Regime’, p 12, <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/42543/424-condoc-offshore-electricity-transmission.pdf>.

98 Commission (EC), An EU Energy Security and Solidarity Action Plan. Second Strategic Energy Review COM (2008) 781 (13 November 2008), approved by the Council (EC), 19 February 2009 (Press release 6670/09).

99 Energy infrastructure (n 4) 25–8. Renewables electricity generation is expected to more than double from 2007 to 2020 of which up to 12 per cent are expected to come from offshore notably the Northern seas, 6, 21.

100 Regulation (EU) No 347/2013 of the EP and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations 713/2009/EC 714/2009 and 715/2009/EC, OJ L 115/39, so that the first list of projects of common interest to implement this priority corridor can be established by 30 September 2013.

101 Annex I of the Regulation defines it as an ‘integrated offshore electricity grid in the North Sea, the Irish Sea, the English Channel, the Baltic Sea and neighbouring waters to transport electricity from renewable offshore energy sources to centres of consumption and storage and to increase cross-border electricity exchange’.

102 Commission (EU), Proposal for a Regulation Establishing the Connecting Europe Facility COM (2011) 665 (19 October 2011). The Council agreed on a partial general approach on the proposed regulation at first reading, Doc 10479/12 (7/8 June 2012).

103 cf Commission (EU), Impact Assessment Accompanying the Document Proposal for a Regulation of the European Parliament and of the Council on Guidelines for Trans-European Energy Infrastructure and Repealing Decision No 1364/2006/EC SEC(2011) 1233, 22.

104 [2010] OJ C 83/01, entry into force 1 December 2009.

105 TFEU, art 194(2) guarantees each member state the ‘right to determine the conditions for exploiting its energy resources’.

106 From the perspective of the EU, this is also an efficiency consideration as decentralized decision-making allows for experimentation; see Eberlein, B, ‘Experimentalist Governance in the Energy Sector’ in Sabel, C and Zeitlin, J (eds), Experimentalist Governance in the European Union: Towards a New Architecture (OUP 2010) 61Google Scholar.

107 Art 22 of Directive 2009/28 (n 86) requires member states to submit a report to the Commission on progress in the promotion and use of energy from renewable sources by 31 December 2011, and every two years thereafter. The reports are available at <http://ec.europa.eu/energy/renewables/reports/2011_en.htm>. For use of renewables as part of their climate policies, see also the latest (fifth) national communications of Annex I Parties under the FCCC, <http://unfccc.int/national_reports/annex_i_natcom/submitted_natcom/items/4903.php>. The key UK legislation is the 2008 Energy Act.

108 Comprehensively NSCOGI, Working Group 2 Market and Regulatory Issues, Final Report Deliverable 1, Incompatibility of national market and regulatory regimes (13 January 2012), <http://www.benelux.int/NSCOGI/NSCOGI_D1_Final.pdf>. In Denmark, France, Germany, Ireland, and Sweden offshore extension of the national onshore grid is the responsibility of the national TSOs, while in Belgium and the Netherlands grid development is the responsibility of the wind farm developer, and the UK tenders the connection of each new offshore wind farm separately, cf Energy infrastructure (n 4), 26; Tscherning, R, ‘The European Offshore Supergrid and the Expansion of Offshore Wind Energy in Germany, Ireland and the United Kingdom’ (2011) 20 European Energy and Environmental Law Review 76, 79Google Scholar.

109 Twenties-project: Offshore Interconnectors: Challenges and Barriers for Consenting (31 May 2011) 11, <http://www.twenties-project.eu/node/18>.

110 <http://www.eu-norway.org/news1/Norway-joins-cooperation-on-energy-grid-in-the-North-Sea>.

111 The North Seas Countries' Offshore Grid Initiative, Memorandum of Understanding (MOU), 3 December 2010. <http://www.ewea.org/fileadmin/files/library/publications/research-notes/MoU_definitief.pdf>.

112 See the letters of intent of ACER, Annex 4, the national regulatory authorities, Annex 5, and ENTSO-E, Annex 6 of the MOU (n 111).

113 See EU Coordinator, Fourth Annual Report, 15 November 2011, Annex II (Fourth Report), <http://ec.europa.eu/energy/infrastructure/tent_e/doc/off_shore_wind/2011_annual_report_annex2_en.pdf>. Mr Adamowitsch was appointed in 2007 as European Coordinator for the offshore wind power in Northern Europe (North Sea–Baltic Sea) pursuant to Decision (EC) 1364/2006 laying down guidelines for trans-European energy networks (TEN-E), [2006] OJ L 262/1.

114 The mandates, objectives, timeframes and methodologies of the Working Groups are set out in Annexes 1, 2 and 3 of the MOU.

115 de Búrca, Further G and Scott, J (eds), Law and New Governance in the EU and the US (Hart 2006)Google Scholar.

116 cf de Búrca and Scott ibid, ‘Introduction’ for the relation between new (informal) governance and law.

117 MOU (n 111) Annex 3, pt 1.

118 MOU (n 111) Annex 3, pt 6. The Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, entry into force 10 September 1997, 1989 UNTS 309 (Espoo Convention) is a regional treaty concluded within the UNECE, which the 2001 amendment— not yet force—opens to all UN member states. The EU, its member states and Norway are party to the Convention.

119 Directive No 85/337/EEC of the Council on the assessment of the effects of certain public and private projects on the environment, [1985] OJ L 175/40, and Directive No 2001/42/EC of the EP and the Council on the assessment of the effects of certain plans and programmes on the Environment, [2001] OJ L 197/30.

120 Pulp Mills on the River Uruguay (n 52), para 204; Responsibilities Opinion (n 30) para 145. The EU is bound by customary international law, Case C-366/10 The Air Transport Association of America and Others, Judgment of 21 December 2011 (nyr) para 101. Customary international law does not determine the content of an EIA, but the Espoo Convention concretizes that obligation for its Parties; cf Pulp Mills on the River Uruguay, para 205.

121 NSCOGI (Initial Findings), Working Group I Grid configuration, Final Report (16 November 2012), <http://www.benelux.int/NSCOGI/NSCOGI_WG1_OffshoreGridReport.pdf>. On p 58, the report confirms the results of the earlier study OffshoreGrid: Offshore Electricity Infrastructure in Europe, October 2011, prepared by 3e, a team of seven industry partners, <http://mainstream-downloads.opendebate.co.uk/downloads/OffshoreGrid_report_complete_[1].pdf>. See also OFGEM, Memorandum (ESG 09), European Supergrid Report (n 4).

122 The WG 1 Report lists these by country. See also the lists contained in European Supergrid Report (n 4) Annex II, ‘Different Supergrid Proposals and Work Streams in 2011’, and in Offshore Transmission Technology (n 10) 27–34. Links are planned between Norway and the UK (Scotland), UK Department of Energy and Climate Change, ‘One North Sea: Joint Ministerial Statement on Climate Change and Energy Security’, Press Release 2010/096; Scottish Government, Memorandum (ESG 26) for European Supergrid Report, and between Ireland and the UK.

123 NSCOGI WG 1 Report; OffshoreGrid (n 121) 14. For early design suggestions see Working Group for offshore and onshore grid development in Northern Europe, Modular design for the Development of the Offshore/Onshore Grid in the North Sea (March 2009), <http://ec.europa.eu/energy/infrastructure/tent_e/doc/off_shore_wind/2009_off_shore_grid_workshop_opening.pdf>.

124 NSCOGI, Working Group 2 Market and Regulatory Issues, Discussion Paper Deliverable 5, Possible Market Arrangements for Integrated Offshore Networks (13 March 2013), <http://www.benelux.int/NSCOGI/NSCOGI_Discussion_Paper_Possible_Market_Arrangements_Integrated_Offshore_Networks.pdf>.

125 NSCOGI,Working Group 2 Market and Regulatory Issues, Final Report Deliverable 2, Recommendations for Guiding Principles for the Development of Integrated Offshore Cross-border Infrastructure (23 November 2012), <http://www.benelux.int/NSCOGI/NSCOGI_WG2_HighLevelPrinciplesRevisedFinal.pdf>.

126 NSCOGI, Working Group 3 Procedural Guidelines, Final Report Deliverable 2, Procedural Guidelines as a Recommendation to the National Competent Authorities (without date), <http://www.benelux.int/NSCOGI/NSCOGI_WG3_ProceduralGuidelines.pdf>.

127 NSCOGI WG 3 Report, 9.

128 The Protocol on Strategic Environmental Assessment to the Espoo Convention, 21 May 2003, entry into force 11 July 2010, ECE/MP.EIA/2003/2, is now in force for the EU, its member states, and Norway.

129 The ‘list of activities’ in Appendix I as amended, mentions ‘large diameter pipelines’ (No 8), ‘overhead electrical power lines (No 20), and ‘wind farms’ (No 22), but not submarine cables.

130 The Russian Federation has signed but not ratified the Espoo Convention. Yet for the purposes of the Nord Stream project, it has been acting as a ‘Party of origin’ as far as it considers it possible according to its legislation.

131 <http://www.benelux.int/NSCOGI/NSCOGI_PressReleaseDecember2012.pdf>.

132 See Report on Fragmentation (n 76), Conclusions, mitigated by the assumption that international law overall forms a system, paras 1, 17–23.

133 For such an understanding of UNCLOS and the climate regime see Rothwell, D and Stephens, T, The International Law of the Sea (Hart 2010) 168CrossRefGoogle Scholar.

134 See Boyle, A, ‘Further Development of the Law of the Sea Convention: Mechanisms for Change’, (2005) 54 ICLQ 563, 578–84CrossRefGoogle Scholar.

135 For instance Opinion 1/09 on the international European and Community Patents Court, [2011] ECR 1137; Joined Cases C-402/05 P and C-415/05P, Kadi [2008] ECR 6351. See generally Klabbers, J, ‘The Validity of EU Norms Conflicting with International Obligations’ in Cannizzaro, E, Palchetti, P and Wessels, R (eds), International Law as Law of the European Union (Nijhoff 2012) 111Google Scholar.

136 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012 (nyr) para 111.

137 Following established terminology, law-making treaties protect common concerns of the international community, rather than just creating reciprocal obligations for states; see Pauwelyn, J, Conflicts of Norms in Public International Law (Cambridge University Press 2003) 52–89CrossRefGoogle Scholar.

138 cf Simma, B, ‘Foreign Investment Arbitration: A Place for Human Rights?’ (2011) 59 ICLQ 573, 581–4Google Scholar (investment contracts for achieving of human rights objectives in investment law).

139 For examples ranging from solidarity to non-discrimination to the environment see Sabel and Zeitlin (n 106).

140 For instance, the ‘constitutional’ conflict between the international anti-terrorism objective and European fundamental rights has been managed through secondary law-making both at UN and European levels, see Opinion of Advocate General Bot of 19 March 2013 in Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Kadi II, and Council Regulation (EU) No 1286/2009 amending Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, [2009] OJ L 346/42.

141 See MacCormick, N, Institutions of Law (OUP 2007) 31–4CrossRefGoogle Scholar. He primarily focuses on the legal institutions of the constitutional state, but acknowledges that legal institutions can also form outside of this context.