I. INTRODUCTION
‘Global climate change is one of the greatest challenges of our time’,Footnote 1 and renewable energy from the oceans will play a critical role in mitigating it.Footnote 2 Exploiting the full potential of marine renewable, and above all, wind energy requires feeding this electricity into and distributing it through large-scale offshore infrastructure that spans the marine jurisdictional zones of several states. Designing, installing and operating such a grid is the purpose of the ‘North Seas Countries Offshore Grid Initiative’ (NSCOGI), signed by the states bordering on the Northern seas, including the UK, and which is to be implemented by 2030.Footnote 3 This initiative is not only of high practical importance, both regionally, for the participating European states,Footnote 4 and globally, as a test case in waters with great wind-energy potential, but it is also is an instance of international governance of shared marine energy infrastructure. This article examines the legal form of this novel development in ocean governance which, it is argued, takes the form of international law, European law and coordinated national law working together, with each of these legal orders fulfilling a specific function in order to achieve the overall objective of governing shared marine infrastructure.
The article proceeds as follows. Part II sets out the challenge posed by shared offshore electricity grids for ocean space governance. Parts III–VI then explain how the legal response to this challenge combines international, European and national law. Part III addresses the role of the international climate regime; Part IV considers the role of the law of the sea; Part V looks at the contribution of European law; Part VI examines the role of coordinated national laws. Part VII then analyses the functional integration of international law, European law and national law as a distinct legal phenomenon. By way of conclusion, Part VIII seeks to draw more general lessons from the harvesting of wind energy in the Northern seas for the functional integration of international, European and national law in other spheres.
II. GOVERNING SHARED OFFSHORE ELECTRICITY INFRASTRUCTURE
Offshore wind energy generation is a commercial reality.Footnote 5 Yet, exploiting its full potential does not only depend on the generative capacity. It requires an offshore electricity infrastructure connecting the wind energy ‘harvested’ in offshore waters with onshore centres of consumption.Footnote 6 An offshore electricity grid links wind farms across jurisdictional zones and aggregates the electricity output of the several production sites,Footnote 7 thus mitigating the volatility of offshore wind energy productionFootnote 8 and securing the stability of supply which is critical for modern economies, an advantage further strengthened if the grid is linked to onshore energy storage facilities. Such a grid also allows trading in energy between the producers, enhancing the efficiency of offshore wind energy exploitation and increasing the return on private investments in wind farms.Footnote 9 The more ‘meshed’ or interconnected the grid is, the greater are the likely gains from enhanced effectiveness and efficiency. Such gains will be greater again if the grid is extensive in scope, has a large energy capacity and links several national markets. Designing, installing and operating large-scale offshore electricity grids has become possible due to the so-called High Voltage Direct Current (HVDC) technology which permits the transmission of electricity over long distances. Submarine power cables using this technology are then interconnected by way of nodes installed on platforms above water.Footnote 10
However, shared large-scale offshore electricity infrastructure of this nature cuts across the jurisdictional zones of the various states and thus raises issues flowing from the international governance of ocean space. Such governance is based on four legal foundations: first, that there is agreement that states ought to cooperate in the use of ocean space; second, there needs to be a secure allocation of competences concerning ocean use between states as a precondition for such cooperation; third, there need to be agreed principles concerning such cooperation; and fourth, a structure needs to be established within which coordinated decisions can be taken. The NSCOGI aims to establish a shared electricity grid across the Northern seas for the harvesting of its wind energy resourcesFootnote 11 and it is premised on the belief that these foundations can be provided by international law of the climate and of the sea, European law, and regionally coordinated national law, each of which will be considered in the following sections.
III. THE IMPETUS FOR GRID GOVERNANCE. THE ROLE OF THE INTERNATIONAL CLIMATE REGIME
The international climate regime provides the impetus for the participating states to exploit marine renewable energy through large-scale offshore electricity infrastructure.Footnote 12 The use of renewable energy as a climate change mitigation strategy has been politically required by Agenda 21,Footnote 13 the Johannesburg Plan of Implementation,Footnote 14 the outcome document of the Rio+20 conference on sustainable development,Footnote 15 as well as by the G8 Heiligendamm process.Footnote 16 These documents emphasize that advanced technology is a key means of implementation.Footnote 17 The international climate regime based on the 1992 UN Framework Convention on Climate ChangeFootnote 18 and the 1997 Kyoto ProtocolFootnote 19 concretizes these non-binding statements and provides an underpinning of binding international law obligations. Annex I Parties are responsible for taking the lead in mitigation efforts through binding international law,Footnote 20 including quantified emissions reduction obligations under Article 3 of the Kyoto Protocol, and this includes the states bordering the Northern seas.Footnote 21 Article 2(1)(a)(iv) Kyoto Protocol obliges these states to meet their climate commitments, inter alia, by promoting, developing and increasing the use of renewable energies.Footnote 22 This provision spells out policies and priorities, the furtherance of which is an obligation of conduct over time.Footnote 23 It includes using technological means as they become available and (flexible) economic means, including cost-effective transboundary markets.Footnote 24 Parties have to cooperate to that end.Footnote 25 Their cooperation may be aided by the meeting of Parties to the Kyoto Protocol, although that has not yet happened.Footnote 26 The climate regime thus provides the impetus for a policy of cooperative offshore wind energy exploitation through ancillary infrastructure. For realizing this policy objective, however, it looks to external legal frameworks.
IV. COMPETENCES FOR THE GRID. THE LAW OF THE SEA
The 1982 UN Convention on the Law of the SeaFootnote 27 lays the groundwork for such cooperation by determining which state is competent for each element of an offshore grid with legal certainty.
A. The Applicability of UNCLOS to a New Use of the Oceans?
There are, however, a number of objections to the applicability of the UNCLOS framework which need to be addressed. First, the use of offshore grids could not have been foreseen by the drafters of the 1982 Convention, since both the relevant provisions of climate law and the technological advances that make this possible had yet to happen. It may then be argued that a special implementing agreement needs to be negotiated in order to strike an appropriate balance between the interests at stake, as in the case of the Agreement on Part XI or the UN Fish Stocks Agreement.Footnote 28 However, these agreements modify or concretize certain Convention provisions or principles and this does not mean that a special implementing agreement is required whenever a new use of the ocean arises. Second, it might be objected that Article 59 of the Convention assumes that there may be lacunae in its allocation of competences, for instance because of factual developments, that need to be dealt with on the basis of equity and all relevant circumstances. But Article 59 provides a residual resolution mechanism only in those cases where the Convention provisions fail to provide an answer after they have been interpreted in accordance with Articles 31, 32 Vienna Convention on the Law of Treaties,Footnote 29 including dynamic interpretation in the light of changed circumstances.Footnote 30
In the present context, such dynamic interpretation relates to the issue of whether HVDC power cables can be brought within the UNCLOS framework. The 1884 Cable Convention, the model for subsequent codifications of the law of the sea as regards cables, only concerns communication cables.Footnote 31 Until recently, practical interest in cable laying has been focused on such cables which are today made of fibre glass rather than copper.Footnote 32 But the 1956 ILC Draft Articles on the Law of the Sea already extended the notion of cables to include power cablesFootnote 33 and this understanding informed the 1958 Geneva Conventions and subsequently UNCLOS.Footnote 34 Submarine cables within the meaning of UNCLOS thus already include power cables, including the large power cables with HVDC technology that will be used in the construction of any offshore grid. This is an example of the dynamic interpretation of the Convention to changed factual circumstances. The Convention is therefore applicable to the central element of offshore grids and consequently to this novel use of the oceans.
B. Allocating Jurisdiction over Cables, Installations and Wind Energy
The principal contribution of UNCLOS to offshore grid governance lies in determining the regulatory competence over the individual elements of which such governance comprises. The Convention does so through its usual sectoral approach. Under that approach, the Convention allocates jurisdiction to states for any given ocean use through one of two models: the competence of all states (the flag state principle) or the competence of a single state, the coastal state. Since the North Sea is entirely comprised of either the exclusive economic zones (EEZs) or equivalent zones and the continental shelves of the states bordering it,Footnote 35 these zones will be considered in the following two subsections.
1. The right of all states to lay cables on the continental shelf
The competent regulator for cable laying and operation beyond the territorial sea is the flag state. This follows from the provisions on submarine cables in Part VI of the UNCLOS concerning the continental shelf.Footnote 36 Article 79(1) grants all states, the coastal state and other states, the right to lay such cables on the continental shelf, ie to regulate the activity and to reap its benefits. The right also comprises ancillary operational activities, on the basis of Article 79(2) and (5), which guarantee unimpeded maintenance and repair of cables. In line with historical developments,Footnote 37 Article 79 thus safeguards the right of cable laying on the continental shelf, which is defined generally by Article 87(1)(c) as a high seas freedom and is strengthened by Article 112 which provides a ‘right’ to lay cables on the seabed of the high seas which is opposable to other states and enforceable against private actors.Footnote 38 As is the nature of all high seas rights and freedoms, the flag state principle applies and it is the flag state, be it a coastal or other state, which has the authority to regulate cable laying by persons under its jurisdiction.
All states may thus lay cables freely on any continental shelf without having to consult on the delineation of the course of the cable. The coastal state must give its consent.Footnote 39 Whilst the coastal state may impose reasonable restrictions on cable laying in order to safeguard its exclusive rights to explore the continental shelf and to exploit its resources, according to Article 79(2) these restrictions must not impede the laying or maintenance of cables by flag states. The coastal state cannot take measures to prevent pollution from cables, nor can it determine the course of any cables laid on its continental shelf by other states. This results from the clear wording of Article 79(2), (3) which, whilst granting these rights to coastal states in relation to pipelines on its continental shelf, does not do so as regards cables. This bifurcation may surprise. Yet the Convention's negotiating history ‘confirms’ within the meaning of Article 32 VCLT that it was indeed intended that the general rights of the coastal state to reduce pollution and to delineate courses should only apply to pipelines and not cables. A proposal made in the Sea-Bed Committee had sought to make the delineation of the course of both pipelines and submarine cables by a foreign state subject to coastal state consent.Footnote 40 Indeed, this had already been suggested by the ILC in its 1956 commentary on draft Article 61(2), paragraph 3, but this was not reflected in Article 4 of the 1958 Continental Shelf Convention. At UNCLOS III, the draft produced by the Evensen group of juridical experts only required coastal state consent for the delineation of the course of pipelines and only referred to the prevention of pollution from pipelines by coastal states.Footnote 41 It is not apparent why the Evensen group restricted the requirement of coastal state consent to the delineation of the course of pipelines. The fact that the draft also provided for coastal state control over pollution from pipelines suggests that it was concerned about the specific environmental pollution threat which they posed, with this justifying extending coastal state powers over pipelines but not over cables. The Informal Single Negotiating Text (ISNT) followed the Evensen draft.Footnote 42 Coastal state efforts at the conference were then concentrated on making the laying of pipelines subject to coastal state consent.Footnote 43 It was argued that there was ‘a very great difference between the laying of a cable and the laying of a pipeline’, presumably with respect to the potential harm that pipeline spillage may cause to the coastal state's marine environment.Footnote 44 The Informal Composite Negotiating Text (ICNT), which contained what, in essence, became Article 79 of the Convention, continued to only require that the coastal state consent to the delineation of the course of a pipeline traversing its continental shelf.Footnote 45
This is confirmed by the structure of Article 79(4) which sets out the competences of the coastal state in respect of cables. Cables may only enter in a coastal state's territorial sea with its consent, and this also covers grid cables connecting to a landing point onshore. Thus, unlike the continental shelf, states have to obtain the consent of the coastal state to lay a cable within its territorial sea, and the coastal state may set conditions regarding the route of the cable and impose transit charges.Footnote 46 This would also apply to interconnector cables between two countries that connect to the national grid of a coastal state.Footnote 47 According to Article 79(4), the coastal state has jurisdiction over those cables used ‘in connection’ with the ‘exploration and exploitation of the shelf's natural resources’. This does not cover grid cables serving wind energy harvested above water. However, the coastal state also has jurisdiction over cables used ‘in connection’ with ‘the operation of artificial islands, installations and structures under its jurisdiction’. Wind farms located on the continental shelf are examples of such installations and cables connecting such wind farms to an offshore electricity grid are ancillary to them. As a consequence, the coastal state has jurisdiction over such export cables, including the delineation of their course.Footnote 48 Since the large interconnector cables between states and the platform to grid connections do not serve to ‘operate’ specific wind farms, they do not fall under the exclusive jurisdiction of the coastal state, but under the normal rules of flag state jurisdiction. The Convention thus attributes cable laying competences on the continental shelf on the basis of traditional high seas freedoms, with functionally limited exclusive coastal state rights. The Convention provides a coordinating mechanism in respect of the overlapping rights by states, by stipulating in Article 79(5) that all states engaged in laying cables must have due regard for cables already in position, as well as not prejudice the repair of existing cables.Footnote 49 Article 58 also safeguards the high seas freedom of all states, including the coastal state, to lay cables in the water column of the EEZ. Article 58 accords Article 79 lex specialis status for cables insofar as the continental shelf is concernedFootnote 50 and addresses both the laying and the subsequent operation of submarine cables from specialized ships. The operation of the submarine cable is a ‘lawful use of the sea related’ to the freedom of cable laying and according to Article 58(2) the flag state is exclusively competent to prescribe and enforce the rules that fall within the scope of Articles 113–115. Accordingly, the flag state is to enact those laws and regulations ‘necessary’ to ensure protection of cables from interference by private parties.Footnote 51 These are obligations of conduct for the flag states.Footnote 52 The flag state is also required, by Article 58(3), to ensure that those involved in cable laying comply with coastal state laws and regulations pertaining to the water column.Footnote 53 Such rules may relate to the exclusive rights and competences of the coastal state for the exploitation of the natural resources of the EEZ and the protection of its marine environment. Such coastal state rules are to be complied with if they are ‘in accordance with the Convention’ or ‘other rules of international law not incompatible’ with Article 58(1).Footnote 54 By binding coastal state powers in this way, Article 58(3) ensures that rules adopted by coastal states under Article 56 do not unduly interfere with the right of flag states to lay cables under Article 58(1). Article 79(5) on due regard for all cables, Article 79(2) on safeguarding mineral exploitation rights and Article 58(3) then provide the bases for the coastal state to balance the right to lay cables on the continental shelf with competing uses of the seabed and the water column.Footnote 55
The UNCLOS regime is therefore sufficiently flexible to absorb these technological developments within Article 79(1)–(5) and the need for coordination with competing uses of the sea. This is particularly important since it is unclear whether Article 79 in part or as a whole reflects customary international law. The recent ICJ judgment in Colombia/Nicaragua emphasizes that ‘several of the most important provisions’ of UNCLOS are reflective of customary international law,Footnote 56 and it acknowledges that a Convention provision can form an ‘indivisible regime’ in customary law.Footnote 57 That might be relevant to Article 79, paragraph 1 of which is arguably fundamental and paragraphs 2–5 of which might then form part of an ‘indivisible regime’,Footnote 58 although views in the literature are divided on this.Footnote 59
2. Exclusive competences of the coastal state for wind energy exploitation and connector nodes of the grid
In sharp contrast with the law on cables, UNCLOS provides that the coastal state is the sole competent regulator for both the wind energy fed into the grid and the above water connector nodes of the grid. The lead provisions on these uses of the water column are found in Part V on the EEZ, which provides that the coastal state has the exclusive right to exploit the non-living resources of the water column, including wind energy.Footnote 60 This pertains both to regulation of wind energy production and reaping its economic value when fed into a grid. The coastal state is the sole competent regulator for the above water connector nodes of offshore grids, since these ‘installations or structures’ facilitate the commercial exploitation of wind energy harvested in the EEZ and thus the economic exploitation of the EEZ, in accordance with Articles 60(1)(b) and 56(1)(a). The coastal state's comprehensive rights in relation to such installations are set out in detail in Article 60(2)–(8), which, by virtue of Article 80, are also applicable to the continental shelf.Footnote 61
3. Marine environmental protection
Determining which state has competence in respect of the various elements of the grid is the critical connecting factor as regards the obligations contained in the Convention regarding marine environmental protection. Part XII UNCLOS imposes on all states parties the obligation to protect and preserve the marine environment.Footnote 62 This is balanced with the duty to respect the rights of third states, provided for in Article 194(4). This general obligation is concretized by a series of specific standards that are applicable to offshore electricity infrastructure. They relate to: controlling pollution of the marine environment, including the introduction of ‘energy’ (Article 1(1), (4)); controlling pollution from ‘the use of technologies under their jurisdiction or control’ (Article 196(1)), which includes HVDC technology; minimizing pollution ‘to the fullest possible extent’ from ‘installations and devices’ operating in the marine environment (Article 194(3)(d)). ‘Installations’ include the nodes and platforms of the grid and the term ‘devices’ might be understood to extend to cables. This follows from Article 194(3)(c) on ‘devices’ used for the resources of the sea-bed.
Protection and preservation of the marine environment in this respect encompasses measures for preventing accidents and dealing with emergencies, ensuring the safety of operations, and regulating the design, equipment, and operation of such installations or devices. Measures must also be taken in the planning and operation of the offshore grid to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life (Article 194(5)). These are obligations of due diligence that depend on the level of risk and the activities involved and may vary over time.Footnote 63 They are concretized by supplementary principles such as ‘use of best environmental techniques’Footnote 64 and ‘the precautionary approach’.Footnote 65 The Convention also prescribes the use of environmental impact assessments, if only in general terms.Footnote 66 The national legislation to prevent, reduce and control pollution of the marine environment from the seabed-related activity of the grid must be ‘no less effective than international rules, standards and recommended practices and procedures’.Footnote 67 These standards are subject to continuous development by competent organizations.
C. Developing International Grid Governance under the Law of the Sea
It emerges from the above that, with certain exceptions, the Convention provides that cable laying in the EEZ or continental shelf is the right of every state, while wind energy exploitation and regulation of above water installations are exclusive coastal state rights. This right of all states to lay cables in the EEZ of coastal states is judicially enforceable through the procedures of Part XV Section 2 (Article 297(1)(a)), as is the concomitant obligation of the flag state to comply with coastal state laws when doing so (Article 297(1)(b)). The Convention approach is thus one of ‘nationalizing’ energy infrastructure rather than submitting it to an ‘internationalizing’ regulatory principle. The former refers to empowering individual states to act in their national interest, the latter to states acting in a common interest.Footnote 68 Consequently, matters concerning energy infrastructure are covered by national law, and there is as yet almost no international law directly applicable to marine (renewable) energy or on transmission infrastructure.Footnote 69 Exercising their competences under the Convention, the states bordering the Northern seas have so far encouraged national point-to-point solutions connecting their offshore wind farms with one national onshore landing point.Footnote 70
National regulation of ocean space uses will often yield overall efficient outcomes.Footnote 71 Yet, as the efficient exploitation of offshore wind energy depends on large-scale electricity infrastructure, states need to cooperate across jurisdictional zones on the basis of a common objective and by coordinating the exercise of their respective rights over wind energy, cables, and installations accordingly. This is certainly so for states operating in the particular geographical context of the Northern seas and in comparable settings. But in principle this holds true whenever states intend efficiently to exploit their offshore wind energy resources.Footnote 72 Such cooperation includes joint planning of a grid, authorization and regulatory oversight, and transborder cost sharing. No conflict with UNCLOS arises, since Parties remain free to exercise their conventional rights in any way they prefer, including cooperatively. To the contrary, the Convention provides the basis for cooperation by determining in a legally certain manner what each state may do in regard to offshore electricity infrastructure.
The question then is whether UNCLOS also contains a model for the cooperative exercise of these competences. While the Convention specifies a range of models for cooperative oceans governance, none of them fits here. It is true that the North Sea meets the definition of an enclosed or semi-enclosed sea contained in Article 122.Footnote 73 Article 123 provides that the states bordering such seas should cooperate in the exercise of their ‘rights’ under the Convention. But Article 123 only addresses the management of living resources and marine environmental protection, subject matters that are also the object of other provisions concerning cooperation elsewhere in the Convention. Marine renewable energy exploitation by means of cables and installations does not figure here. Nor can it be brought in through interpretation. Arguments for an extensive interpretation could be based on Article 31(1) VCLT, according to which UNCLOS and its individual provisions need to be seen in light of their object and purpose,Footnote 74 or on the basis of Article 31(3)(c) VCLT, which requires that account be taken of external ‘relevant rules of international law applicable in the relations between the parties’, including other conventions,Footnote 75 such as international climate regime based demands for cooperation on marine renewable exploitation. Both arguments presuppose that the treaty provision under consideration is open textured,Footnote 76 which is the case for Article 123 UNCLOS. Yet neither Article 31(1) nor Article 31(3)(c) VCLT may be used to turn treaty law on its head,Footnote 77 which would be the result if Part XI UNCLOS were extended to matters that the Convention otherwise makes subject to national regulation.Footnote 78 State practice corroborates this analysis, for instance, cooperative action under the Convention for the Protection of the Marine Environment of the North-East Atlantic has been limited to setting marine environmental standards for wind farms.Footnote 79 Finally, the Convention does not contain a general obligation for its Parties to cooperate.Footnote 80 Of course, the obligation to cooperatively protect the marine environment from the effects of any use of the sea in transborder settings is well established both under the Convention and under customary international law.Footnote 81 But this obligation cannot easily be extended to cooperation on using the oceans to mitigate climate change,Footnote 82 and, in any event, it does not establish benchmarks for such cooperative action in this matter.
Yet the Convention is not a closed catalogue as regards cooperative oceans governance. To the contrary it is open towards novel forms. This openness is reflected in the jurisprudence of the International Tribunal for the Law of the Sea, which seeks to proceduralize and operationalize the idea of cooperation on ocean matters of common concern.Footnote 83 This includes regional mechanisms such as the European Union (EU).
V. PRINCIPLES OF COOPERATION. THE EUROPEAN LAW FRAMEWORK FOR OFFSHORE ELECTRICITY INFRASTRUCTURE
Establishing international grid governance requires a set of principles. As such, principles are not yet available internationally, they must be generated de novo in appropriate fora, such as the European Union.
A. Absorbing Climate Priorities within European Law
The EU is indeed obligated to further climate objectives. The EU and its member states are party to both the Framework Convention on Climate Change and the Kyoto Protocol, and they are to meet their quantified emission reduction obligations under the Kyoto Protocol jointly.Footnote 84 As a matter of political prioritization as to how best to achieve these objectives, European secondary law has absorbed the climate regime's goal of mitigation through renewable energies set forth in Article 2(a)(iv) of the Kyoto Protocol.Footnote 85 Directive 2009/28 sets out the legally binding target that 20 per cent of the overall energy consumption in the EU is to be from renewable energies by 2020.Footnote 86 Annex I sets a binding target for each member state to be translated into national renewable energy action plans.Footnote 87 The directive permits flexibility mechanisms which allow member states to support renewable generation outside their borders through ‘statistical transfers’ and ‘joint projects’ with another member state or a third state, and two or more may develop joint support schemes.Footnote 88 Much of this renewable energy is expected to be coming from the Northern seas on the basis of a shared offshore grid.Footnote 89
B. Developing Principles of Offshore Grid Governance
In line with these priorities, the EU has been developing principles for offshore grid governance. It is a party to UNCLOS, as are all its member states,Footnote 90 and in the internal division of competences between the EU and its member states implementation of the Convention becomes a European competence to the extent that the Union actually passes legislation on the basis of the Treaty on the Functioning of the European Union (TFEU).Footnote 91 It has relevant competences in the areas of the internal market,Footnote 92 trans-European energy infrastructures,Footnote 93 environmental protectionFootnote 94 and now also energy policy.Footnote 95 European legislation under these shared competences (Article 4 TFEU) extends to the EEZs and continental shelves of the member states.Footnote 96 Thus, European harmonization of market access and regulatory regimes for the internal electrical energy market is applicable offshore.Footnote 97 Of particular importance to the offshore grid is Electricity Directive 2009/72 concerning common rules for the internal market in electricity which unbundles ownership of electricity generation from ownership and operation of transmission-systems and from the supply to end-customers. Regulation 714/2009 requires Transmission Systems Operators (TSOs) to cooperate on regional and European 10-year network development plans for electricity in the framework of the ‘European Network of TSOs’ (ENTSO-E) and develop ‘network codes’, which are of critical importance to the offshore grid. Regulation 713/2009 requires national regulators to cooperate on cross-border investments such as the grid within the ‘Agency for the Cooperation of Energy Regulators’ (ACER), and defines conditions for access to cross-border electricity transmission networks. Yet enhanced efficiency of the electricity energy market will not by itself bring about the interconnected energy infrastructure needed to absorb increasing electricity generation from renewables. For that purpose, the European Commission's Second Strategic Energy Review (2008) first identified the objective of offshore grid development in the Northern seas,Footnote 98 an objective that has been concretized through subsequent European law-making. In 2010 the Commission tabled the so-called European Energy Infrastructure Package that sets out a list of priority trans-European electricity networks, including an offshore grid across the Northern seas.Footnote 99 In 2011, it proposed a Regulation on trans-European electricity infrastructure under Articles 172, 288(1) TFEU, which was adopted by the European Parliament and the Council in March 2013.Footnote 100 Regulation 347/2013 defines a toolbox for projects of common interests within identified priority electricity corridors, of which the ‘Northern Seas offshore grid’ is one.Footnote 101 It envisages regional groups formed by member states, with the Commission participating in the planning and governance of such transnational electricity infrastructure. Its common regime includes rules on authorization and, critically for there to be trade in renewables through the grid, the regulation of cross-border cost allocation. Coordination of national authorization processes is envisaged, with each member state designating one national competent authority which will be responsible for facilitating and coordinating the permit granting process for projects of common interest and issuing a comprehensive decision, along with the introduction of time limits and guidelines. The Regulation retains the standard regulatory model of electricity infrastructure based on regulated tariffs collected from the users (the ‘user pays’ principle). National regulators are to agree on common principles in relation to cost-allocation of interconnection investments and related tariffs. While infrastructure development is to be largely private investment driven, a separate regulation will make supporting European funding available.Footnote 102
The European regulatory framework thus defines relevant principles of grid cooperation, but not their application to individual offshore energy infrastructure projects. This is due to the division of competences between the Union and its member states. Article 171(1), (2) TFEU empowers the Union to determine priorities for trans-European networks and to regulate the relevant principles.Footnote 103 The extent of European harmonization of the national procedures is subject to subsidiarity control under Article 5(3) Treaty on European Union (TEU).Footnote 104 And planning, authorization, and regulation of the grid with the associate cable laying and any offshore installations remain with the member states, as does offshore wind energy policy.Footnote 105 The European legislation on principles for cooperative grid governance thus needs to be complemented by action of the littoral states of the Northern seas.Footnote 106 These in turn have absorbed the objective of increased use of marine renewables in their own national legislation.Footnote 107 The existing national infrastructure comprises radial links connecting offshore generation to the onshore grid and interconnectors. In most states the national Transmission Systems Operators play a significant role in the planning, financing, construction and ownership of offshore infrastructure, while one or more government ministries are responsible for site identification and regulation of offshore generation.Footnote 108 Accordingly, the functional licensing procedure for the right of the TSO to own and operate transmission assets needs to be distinguished from the general planning and consent procedures.Footnote 109
VI. GOVERNANCE STRUCTURE. THE INTERGOVERNMENTAL NSCOGI AS A REGIONAL GROUP
Regulation 347/2013 envisages regional groups as the governance structure for the transnational electricity infrastructure. This dovetails with the existing practice of the Northern seas bordering states cooperating on marine renewable energy matters within the intergovernmental Pentalateral Energy Forum. In December 2009, these states signed the political Declaration on the North Sea Countries Offshore Grid Initiative, which Norway, as a non-EU member but a key player because of its hydro-storage capacities, joined later.Footnote 110 The NSCOGI envisages a private-investment driven offshore grid with a time horizon of 2030 under a common framework relating to planning, authorization, regulation and investment. It is a forum for cooperation chaired by the participating governments on a rotating basis, assisted by the Benelux secretariat. A Memorandum of Understanding (MOU) signed by the participating states at the end of 2010 operationalizes this offshore infrastructure initiative.Footnote 111 It establishes a regional governance structure aimed at the coordinated exercise by the participating states of their UNCLOS rights with respect to cable laying, installations and marine renewable energy. The MOU involves key public and private stakeholders. These are the states, but also their regulators and the European Agency of Electricity Regulators (ACER), as well as the private operators of the electricity transmission systems through their forum of cooperation (ENTSO-E), and the European Commission.Footnote 112 This multi-level and public–private structure serves to enhance the effectiveness and legitimacy of its outcomes, although neither NGOs nor civil society as such are involved. Industry and research have been consulted through the ‘Adamowitsch group’.Footnote 113 A Steering Group composed of government and Commission representatives oversees, and a Programme Board consisting of representatives of the Steering Committee and representatives of the national regulators (ACER and ENTSO-E) manages, the work of three working groups.Footnote 114 The mandate of Working Group 1 is to design grid scenarios, on the basis of existing governmental and industry policies and planning. Centralized decision-making is excluded, ensuring that responsibility for the configuration of the grid will remain with the Transmission System Operators. The second Working Group is concerned with market and regulatory issues such as oversight and access. The third Working Group is to identify where the incompatibility of national regimes on authorizations and planning acts as barrier to fast and coordinated procedures. The governance structure of the MOU ties in with models of decentralized governance increasingly used where the realization of EU objectives depends on the bottom-up coordination of national laws rather than their full harmonization.Footnote 115 The normative output of this governance structure is to be informal.Footnote 116 Non-binding standards may be developed for the coordination of national laws, procedures and planning, and not necessarily their harmonization, which can then be implemented into binding national law by the participants. The MOU's machinery is also set up to integrate the existing legal framework, as defined by European and international law,Footnote 117 particularly on environmental impact assessments in accordance with the Espoo ConventionFootnote 118 and the two European Directives.Footnote 119 Carrying out an environmental impact assessment in transboundary projects is also a requirement of customary international law.Footnote 120
The MOU delivered a report at the end of 2012 that recommended continuing the approach of realizing the grid through intergovernmental cooperation. This outcome is not a blueprint, but a suggestion that cooperation between the Northern seas countries should continue to be the way to proceed in developing the electricity infrastructure needed to absorb the renewable capacity. The report comprises reports from each Working Group. That of WG I identifies and compares two scenarios: ‘radial’—point-to-point connection of offshore wind farms and shore-to-shore interconnectors, which implies continuing with uni- or bilateral solutions between countries, and ‘meshed’—coordinated interconnector design that can form links between three or more states via offshore nodes, which implies multilateral cooperation between the Northern seas states on joint cross-border assets, with the latter enjoying an efficiency advantage.Footnote 121 The report integrates the process of bilateral and multilateral transborder infrastructure cooperation in the Northern Seas including the several shore-to-shore interconnector projects currently being planned or constructed between states.Footnote 122 Thus the Northern seas grid in all likelihood will be realized in a stepwise manner, i.e. hubs of wind energy production will be connected to interconnectors.Footnote 123 To remove barriers for realizing such a meshed grid, Working Group II has drawn up a set of principles to be used as guidelines for the development of cross-border infrastructure. The principles cover issues such as planning, grid design, financing, operation of assets, ownership of assets and system charges. The aim is to move towards a more common approach on the necessary investments. As there are currently no arrangements at international, European or national level for paying for integrated assets combining interconnection and offshore generation, WG II proposed that the national TSO finances infrastructure and that the relevant regulator approves efficient costs.Footnote 124 For trading in renewables there would need to be common models on support schemes for offshore renewable energy and agreed solutions on how to apportion costs for cross-border projects between states. In its future work, the WG will take account of the mechanisms that the novel European infrastructure Regulation 347/2013 contains.Footnote 125 In order to remove barriers on planning and authorization, WG III has initially drawn up a set of general principles for NSCOGI states to use as guidelines for the authorization of cross-border transmission infrastructure.Footnote 126 The objective is to coordinate rather than harmonize national procedures. The Espoo Convention is identified as an effective standard for conducting of environmental impact assessments of transboundary grid projects, engaging both ‘parties of origin’ in whose territorial sea or EEZ construction will take place and other parties which may be affected by the project in some way.Footnote 127 The Espoo Convention applies ‘as a minimum’ at the project level (Article 2(7)), and its additional Protocol on Strategic Environmental Assessment obliges Parties to undertake environmental impact assessments on policies, plans and programmes as well.Footnote 128 The Espoo Convention cannot be applied directly since cable laying is not listed in its Appendix I,Footnote 129 but Parties could agree specifically that it apply to grid projects in two ways. Parties may agree to treat a non-listed activity as if it were listed because it is likely to cause a significant adverse transboundary impact. Criteria for identifying such impact are set forth in Appendix III (Article 2(5)). Implementation of the Convention can also be by separate international agreement guided by the elements listed in Appendix VI (Article 8). A precedent for such ad hoc agreed application of the Convention is the Baltic ‘Nordstream pipeline’.Footnote 130 Finally, Appendix I could be amended to include submarine cables in the normal amendment procedure (Articles 10, 14).
This initial outcome was endorsed in December 2012 by the Energy Ministers of the NSCOGI participants who recognized that this type of regional cooperation was needed to bring about investment in cross-border infrastructure.Footnote 131 Ministers asked the relevant actors—network operators, ENTSO-E, ACER and national regulators—to continue working with governments and the Commission on possible future grid configurations for the Northern seas, and to develop further concretizing proposals to address the regulatory, market and planning barriers.
VII. INTEGRATING INTERNATIONAL, EUROPEAN AND NATIONAL LAW
Cooperative governance of offshore electricity infrastructure in the Northern seas depends on the combined effect of international, European and national law. This type of interaction does not easily fit any of the received conceptions of the relationship between these legal orders. Concepts of international law such as fragmentation,Footnote 132 the sectoral specialization of treaties,Footnote 133 or a merely general interaction between treaties,Footnote 134 share certain presuppositions, most importantly the essential isolation of each legal order and the definition of its static relationship with others through ‘conflicts’ principles that are ultimately judicially determined. These twin presuppositions also underlie the doctrine of the autonomy of European law from international law as understood by the ECJ,Footnote 135 and the corresponding doctrine of the autonomy of international law from regional law as understood by the ICJ.Footnote 136 The reality of the shared offshore electricity infrastructure in the Northern seas is, however, not compatible with these presuppositions. Here, the relevant international treaties on the climate and the oceans, European law and national law are not isolated from each other. Nor do they interact in an unspecified way. Rather they become functionally integrated in an overarching scheme: each legal order fulfils a specific and indispensable function for dynamically realizing the shared objective of the grid.
This integration is not the work of a central authority. Rather each legal order evolves through autonomous action to fulfil its respective function. Such action bears first of all on the conception of its relationship with external law as being one of complementarity for the achievement of common objectives. This is true for the international climate regime which does not purport to achieve the climate priorities of the international community directly, but depends on other elements of the international law framework, particularly the major pre-existing law-making treaties such as UNCLOS.Footnote 137 The law of the sea in turn absorbs the novel climate priorities set by the international community and realizes them within its own system of governance and through principles of interpretation. The alternative mechanism is law-making through the treaty's machinery, through implementing treaties, or any other suitable arrangements.Footnote 138 But international climate priorities also reach through to any regional organization to which states have transferred relevant responsibilities, and which may draw on its law-making machinery for absorbing and realizing the international community's objective. Here, for example, European secondary law has developed principles that underpin the cooperative harvesting of marine renewable energy through a shared grid. Finally, international climate priorities reach through to the level of national law, where each of the several legal orders is coordinated by states through appropriate regional intergovernmental mechanisms that can then engage not just the states themselves but also with other competent public actors and key private actors.
This functional integration of international law, European law and national law in the pursuit of ocean space governance is transferable to other instances where international law, European and national laws need to work together to bring about an internationally defined objective.Footnote 139 That is not to say that conflicts between international law and (primary) European law cannot arise, only that these instances can be managed through appropriate secondary law-making that seeks to ensure their integration.Footnote 140
VIII. CONCLUSIONS
The article has argued that the objective of shared large-scale offshore electricity infrastructure for marine renewable exploitation as envisaged for the Northern seas can be realized through the functional integration of international law, European law and national law. This integration means that each of these legal orders plays a specific role in achieving the common objective. The international climate regime determines the impetus for establishing offshore electricity grids as a means of mitigating climate change through renewable energy use. The law of the sea defines the competent state for each grid element. European law generates principles for their cooperation, which are then implemented through national law of both EU member states and non-member states coordinated within the intergovernmental mechanism of the NSCOGI. Each of these legal orders fulfils its responsibility through autonomous action and, as a result, each changes structurally.
But the legal ordering of shared offshore electricity grids also is a salient example of a broader trend in the interaction of international, European and national law. That trend does not so much fit any of the general theories which are essentially based on the autonomy of in particular European law, and which focus very much on court-resolved conflicts between them. In reality, increasingly international, European and national law work together. Global energy and environmental objectives have been particular drivers of this trend, but it has also manifested itself with respect to policies ranging from anti-terrorism to international monetary stability. This trend 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.Footnote 141
