Access to energy and environmental protection under UNCLOS

Purpose—This essay offers some reflections on the interplay between energy and environmental protection under the framework of UNCLOS.

Design, Methodology, Approach—In light of recent developments, the provisions of UNCLOS, relevant legal instruments and case law, this essay discusses the energy characteristics of UNCLOS; how UNCLOS seeks to balance access to energy and environmental protection; and the role UNCLOS is likely to play in this field in the coming years.

Findings—The adoption of UNCLOS in 1982 marked the culmination of global efforts to achieve, among others, two crucial goals: First, legal certainty for coastal states to access marine energy resources of the continental shelf and the exclusive economic zone. Second, guarantees that energy activities within national jurisdiction or control would not cause damage to the environment of other states or the global commons. However, the relevance of UNCLOS in balancing energy and environmental objectives in the 21st century depends on UNCLOS’ ability to facilitate transformative normative change.

Practical Implications—When balancing access to energy with environmental protection, due diligence duties under UNCLOS require the introduction of robust environmental energy policies, legislation, and administrative controls applicable to the activities of both public and private actors. Such controls are necessary to prevent or mitigate the risk of transboundary harm to other states or the global commons.

Originality, Value—This essay presents a less discussed aspect of UNCLOS, namely the nexus between energy and marine environmental protection. It shares some perspectives on how UNCLOS can be used to evaluate the legality of energy activities, both domestically and internationally, against environmental standards states have already agreed to. UNCLOS could encourage further efforts to address the impacts of climate change, in line with the general obligation to protect the marine environment. However, it depends on states themselves utilizing UNCLOS, including through recourse to international courts and tribunals.