Ocean energy: seeking the balance between states (exclusive) rights of exploitation and marine biodiversity conservation
Wellington Boigues Corbalan Tebar
(Professor at the Centro Universitário Antônio Eufrásio de Toledo, Presidente Prudente, São Paulo, Brazil. Research Member at the Study Center for the Law of the Sea "Vicente Marotta Rangel" of University of São Paulo (CEDMAR-USP), Brazil.)
In the past few years, the ocean, as a potential resource of energy, caught the attention of the industrial sector. However, the possibility of ocean energy exploitation faces several challenges: the development of the needed technologies; the legal framework; the regulatory framework; the environmental aspects. This paper focused on the international legal framework, specifically with regard to the States (exclusive) rights of exploitation within their national jurisdiction and to biodiversity conservation. In this regard, UNCLOS is the primary legal document to be taken into consideration, since it sets a static legal framework of maritime zones and (to them) correlated jurisdiction(al rights). It seems that the exploitation of ocean energy is possible, but two conditions must be satisfied: (1) The States can exploit the ocean energy resource within their national jurisdiction, but it is questionable if they can conserve exclusive rights resulting from industrial activity, due to the fact that rights of third Parties (namely those related to navigation and fishery) must be taken into account; (2) The (sitting and permitting) procedure that allows exploitation of ocean energy will only be legitimized through: (2.1) the public participation in the decision making process; (2.2) the implementation of an environmental impact assessment (EIA) regarding all stages of exploitation. This will provide for a long term monitoring of impacts that exploitation may cause on marine biodiversity, allowing the adoption of adaptive and risk-based management strategies for dealing with uncertainty.