Harnessing the Wind Down Under: Applying the UNCLOS Framework to the Regulation of Offshore Wind by Australia and New Zealand

Abstract This article considers how the 1982 United Nations Convention on the Law of the Sea (UNCLOS) applies to the production of energy from wind in waters under national jurisdiction, with a focus on the nascent regulatory frameworks for offshore wind in Australia and New Zealand. It explores the particular characteristics of offshore wind—which raise different regulatory issues than traditional offshore activities such as fishing and oil and gas exploitation—and explores how key provisions of UNCLOS will affect the way in which coastal states regulate offshore wind in their waters. Against this backdrop, it considers how the international law framework might apply in the specific context of Australia and New Zealand, where domestic legal frameworks are currently being established to regulate vast and valuable offshore wind resources.


Introduction
Not only are the maritime domains of Australia and New Zealand among the largest in the world, but they have enormous (and as yet untapped) potential for the production of electricity from offshore wind.The Global Wind Energy Council estimates that Australia's waters within 200 km (or approximately 108 nautical miles [NM]) of the coast have the technical potential to support 4,963 gigawatts (GW) of fixed and floating offshore wind generation capacity 1 -which is orders of magnitude greater than Australia's current total energy generation capacity of just 95 GW across all sources. 2 The situation is similar in New Zealand, where the waters within 200 km of the coast are thought capable of supporting 2,252 GW of offshore wind, 3 which is more than enough to exceed the country's current total generation capacity of 10 GW. 4 Given these natural riches, and the rapid deployment of offshore wind in other regions (particularly Europe and Asia) over the last decade,5 it is perhaps surprising that Australia and New Zealand have yet to authorize the construction of a single offshore wind farm between them.Recently, however, the governments of both countries have signalled their interest and intent to develop an offshore wind industry, including through the introduction of relevant regulatory frameworks.Following the entry into force of the Offshore Electricity Infrastructure Act 2021 (Cth) (OEI Act) in June 2022,6 a legislative framework is now in place to enable the establishment of offshore wind farms in Australian waters for the first time.New Zealand is also progressing work on a new regulatory framework for offshore renewable energy, which is expected to be in place by 2024. 7 With this relatively blank regulatory canvas in mind, this article investigates how key aspects of the 1982 United Nations Convention on the Law of the Sea (UNCLOS)8 apply to the production of energy from wind in waters under national jurisdiction, 9 and what this might mean for the regulation of offshore wind in Australian and New Zealand waters.The first section explores the characteristics of offshore wind.It outlines the basic practicalities involved in producing energy from wind at sea and transmitting it to land, considers the differences between offshore wind activities and the other objects of coastal state regulation in areas under national jurisdiction, and looks at the distinguishing characteristics that are likely to affect the offshore wind industry in Australian and New Zealand waters, as compared to the more developed offshore wind industries in the waters of other regions (particularly Europe).The second section asks what aspects of the UNCLOS framework will be relevant to coastal state regulation of offshore wind, focusing on issues where the exercise of coastal state jurisdiction is most likely to impact the user rights of other states.In this context, it explores five key areas in which rules in UNCLOS will affect the rights and obligations of coastal states in respect of offshore wind, considering in each case how these provisions apply in different maritime zones, and how these issues might (or might not) particularly affect Australia and New Zealand.The third section concludes the article with some brief observations about the potential implications of offshore wind for the UNCLOS regime in general, and for Australia and New Zealand in particular, and some conclusions about how coastal states can approach the regulation of this rapidly emerging offshore industry in a way that continues to appropriately balance the broad range of rights and interest in the waters adjacent to their coasts.

The Characteristics of Coastal State Jurisdiction Over Offshore Wind
Even though wind is only mentioned in one provision of UNCLOS-and then only in the context of one maritime zone 10 -it is nonetheless clear that coastal states have extensive discretion to regulate the production of energy from wind in all the maritime zones under national jurisdiction.In the territorial sea, this is a consequence of the same sovereignty that coastal states exercise in their land territory. 11In the exclusive economic zone (EEZ), it is part of the coastal state's sovereign rights to explore and exploit natural resources, including "activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds," 12 and its jurisdiction over "the establishment and use of artificial islands, installations and structures," including with regard to customs, fiscal, health, safety and immigration laws and regulations. 13f course, like everything under UNCLOS, these rights are balanced by a range of general and specific duties.In the territorial sea, the general duty is not to hamper the innocent passage of foreign vessels. 14In the EEZ, all states must exercise their rights with due regard for the rights and duties of other states (an obligation that applies reciprocally to both the coastal state and other states engaged in activities in the EEZ). 15In this respect, the coastal state's due regard must include respect for the rights of all states to exercise the freedoms of navigation and overflight, the freedom to lay submarine cables and pipelines, and freedoms associated with other internationally lawful uses of the sea in the EEZ. 16eyond this, UNCLOS contains a range of specific provisions that are relevant to the production of energy from offshore wind, including with respect to: the legal characterization of offshore wind activities; the location of offshore wind infrastructure; measures for the safety of navigation; the establishment of safety zones; and the laying and protection of submarine cables.All of these issues are discussed in detail in the next section.But in order to properly understand how these provisions might apply to the production of energy from offshore wind, it is useful to start by considering some practical issues: How is energy produced from offshore wind; how is offshore wind different from the other objects of coastal state regulation; and what are the distinguishing features that are likely to affect the regulation of offshore wind in Australian and New Zealand waters?

What Is Involved in Producing Energy From Offshore Wind?
In simple terms, the production of energy from offshore wind involves the use of fixed or floating offshore wind turbines to convert wind into electricity, which is transmitted to offshore substations through submarine cables laid on or under the seabed.At these substations the electricity is converted to a higher voltage and then transmitted to land via further submarine cables, where it enters the electricity grid for use by consumers. 17aking into account all the practicalities involved in producing, transmitting, storing and using electricity generated from offshore wind, the best locations for offshore wind facilities are those that: • have high and consistent wind speeds; • have appropriate water depths for fixed (down to 90 m) or floating (deeper than 90 m) turbines; and • are located close to population centers and existing electricity transmission infrastructure, or in an area where electricity is required to support energy-intensive industry (such as mining, steel and iron ore production, or the production of other energy products such as green hydrogen).18

How Does Offshore Wind Differ From the Other Objects of Coastal State Regulation?
The sovereign rights of coastal states in the EEZ are stated in equal terms to apply to "the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds." 19In practice, however, there are some important differences between these various resources and activities.In the specific context of wind, this includes some fundamental distinctions that arise both from the nature or character of the wind itself as a "resource," and the activities involved in the "production" of energy from that resource.For example, while nonliving resources such as oil and gas are nonrenewable, and living resources such as fish are only renewable within certain harvesting limits, wind is a genuinely renewable-or nonexhaustible-resource. 20 Moreover, wind energy is not something that can simply be harvested, captured, or extracted at sea and transported to land by a vessel; rather, it must be harnessed in place to generate electricity, and the resulting product transmitted to land. 21As a result, in contrast to the living and nonliving resources of the water column and seabed, there is no meaningful limit on the amount of offshore wind available for the production of energy, and it is difficult to "steal" and unlikely to be subject to unauthorized exploitation. 22These characteristics could have significant implications for determining what is required to give effect to the coastal state's sovereign rights (or the nature and extent of its "functional" jurisdiction) 23 with respect to offshore wind.
Other important differences arise from the infrastructure involved in the activity of producing energy from offshore wind.For example, fishing vessels are mobile and can share ocean space with other users, and while oil and gas platforms are generally fixed, they have a relatively small spatial footprint.In contrast, offshore wind farms commonly occupy a much larger area, in a relatively dense way-multiple installations and structures (in the form of turbines and substations) are connected to each other and to land by a network of submarine cables, occupying the water column, seabed, and subsoil, and even impacting the airspace above. 24Moreover, in order to minimize the losses from transmission of energy to shore, offshore wind farms are likely to be located closer to the coast than offshore oil and gas installations, including in high-traffic areas near ports, which are close to transmission infrastructure.As a result, offshore 20 this point is well made in a master's thesis submitted at the University of Oslo in 2005: carola Fink, "the International regulation of Offshore wind Farms under the 1982 law of the Sea convention (UnclOS)" (University of Oslo, 2005) 41-42, available at: https://www.duo.uio.no/handle/10852/20424(accessed 18 march 2023). 21there are potential exceptions to this, such as the possibility of constructing artificial islands at sea to use electricity generated by offshore wind turbines "in place" to generate other products (in particular hydrogen), which can then be utilized directly by ships or transported to other places for use.See further westra, note 17, 99-105. 22However, depending on their location, it is possible for one offshore wind farm to put another in the "shade" by generating wakes that can reduce wind speed and deplete the output of turbines in adjacent areas, including across maritime boundaries.while this has been described as "wind theft," it is a question of the overall planning and location of wind farms, rather than unauthorized access to resources by individuals.wind could encroach on the freedom of navigation and conflict with other user rights to a greater extent than either fisheries or oil and gas production.
In a more positive vein, like offshore oil and gas, the installations and structures used in offshore wind are likely to help provide artificial habitats for marine life. 25In addition, unlike the pipelines used for oil and gas, the submarine cables required to transmit electricity generated by offshore wind do not pose a risk of creating oil spills or gas leaks (although there is still a good deal of uncertainty about the likely effects of the electromagnetic fields that are caused by high-voltage submarine cables). 26

What Are the Key Characteristics of Offshore Wind in Australian and New Zealand Waters?
In addition to understanding how offshore wind is different from other objects of offshore regulation, it is also useful to consider how it might differ between regions, particularly in light of geographical differences.In this respect, the vast, isolated maritime zones of Australia and New Zealand present a very different canvas for producing energy from offshore wind than some of the crowded, contested maritime spaces in other regions-in particular, the North Sea, which alone hosted 77 percent of all the installed offshore wind capacity in Europe in 2019. 27In the large maritime zones of Australia and New Zealand, offshore wind could be installed over larger areas and in many cases further from land than is possible in areas with multiple adjoining EEZs, which are often less than a full 200 NM.
For example, a 2018 study on offshore wind capacity in the North Sea and the Baltic Sea examined 43 offshore wind farms, for which the areas ranged from a minimum of 0.0 km 2 (with turbines arranged in a single straight line) to a maximum of 125.7 km 2 , with an average overall size of 32.06 km 2 . 28In contrast, Australia's Offshore 25  However, this can have both desirable and undesirable effects.For example, offshore wind installations may provide artificial habitats for invasive or other nonnative species that negatively affect the natural environment and its endemic species. 26For example, there is some evidence that the magnetic fields produced by high-voltage submarine cables affect the swimming activity of fish and crustacean larvae (and thus their ability to disperse), possibly impacting population dynamics.Nonetheless, it is already clear that wind farm developers are keen to secure the maximum area allowable, with the intention of locating wind turbines across the whole area of their license. 32Large wind farms also seem likely in New Zealand, although there is currently no specific regulatory framework to support them.For example, the South Taranaki Offshore Wind Project proposes to occupy an area of 230 km 2 . 33ot only is the geographic area available for offshore wind in Australia and New Zealand much larger than those in many other regions, it is also home to much less shipping traffic-particularly when contrasted with the busy waters of Europe and Asia.On a positive note, this might reduce the extent to which offshore wind farms will generate concerns about the safety of navigation, or other user conflicts.However, this will depend on a number of factors, including the size of these wind farms, how close to the coast they are, and how the geographic areas that they occupy are regulated.For example, notwithstanding the enormity of Australia's EEZ, the majority of the offshore wind farms currently under development are proposed to be located in areas between just 5 and 30 km (2.6 and 16.1 NM) from the coast, and close to major ports, population centers, and industry hubs. 34Accordingly, notwithstanding the more limited demands of shipping in their waters, Australia and New Zealand may nonetheless be faced with complex considerations regarding how to balance user rights and manage the safety of navigation in a way that has not often been required in this region.
Another critical element in the design and operation of a regulatory regime for offshore wind in Australia and New Zealand is the need to ensure that it appropriately takes into account the rights and interests of First Nations peoples.This includes Dogger Bank, Sofia, Hornsea 1, and east anglia One), the average size was only 101.1 km 2 , with a minimum size of 0.6 km 2 and a maximum size of 593 km 2 : westra, note 17, 176-233. 29australia, OeI regulations, s 7. 30 chris Bowen, "Unlocking the power of Offshore wind," 5 august 2022 (media release), available at: https://minister.dcceew.gov.au/bowen/media-releases/unlocking-power-offshore-wind(accessed 18 march 2023). 31australia, Offshore Electricity Infrastructure (Declared Area OEI-01-2022) Declaration 2022.this declaration relates to an area off the coast of Gippsland in victoria.In this area, applications may now be made for a "feasibility license," which enables license holders to undertake the scoping operations and feasibility studies necessary to apply for the "commercial license" necessary to establish and operate a wind farm.a second declaration, in relation to an area offshore from the Hunter valley in new South wales, is expected to be made during 2023, following a public consultation.See https://consult.dcceew.gov.au/oei-hunter(accessed 24 may 2023). 32For example, the Greater Gippsland Offshore wind project seeks a license area of 700 km 2 in the area that has been declared off the coast of Gippsland, victoria: see Greater Gippsland Offshore wind project, referral pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth), epBc act referral number 2022/09379, commenced 24 august 2022, available at: https://epbcpublicportal.awe.gov.au/all-referrals(accessed 18 march 2023). 33Source: https://southtaranakioffshorewindproject.com/ (accessed 18 march 2023).See also catherine Groenestein, "new Zealand's First Offshore wind Farm Gets Underway in taranaki," Taranaki Daily News, 2 november 2022, available at: https://www.stuff.co.nz/taranaki-daily-news/news/300728999/new-zealands-first-offshor e-wind-farm-gets-under-way-in-taranaki (accessed 18 march 2023). 34See, e.g., renew economy, Offshore Wind Farm Map of Australia, available at: https://reneweconomy.com.au/offshore-wind-farm-map-of-australia (accessed 18 march 2023).
native title rights (in Australia) 35 and Treaty of Waitangi principles (in New Zealand),36 as well as commercial and cultural fishing, and environmental and cultural rights more generally.Without proper processes in place to manage competing user rights in the offshore space, conflicts may arise between the construction and operation of offshore wind infrastructure, and the rights and interests of First Nations peoples-including with respect to protecting underwater cultural heritage, intangible cultural heritage, and sites of spiritual significance, engaging in cultural activities, ensuring the preservation of environmental values, and participating in commercial opportunities.While a detailed examination of this issue is beyond the scope of this article, it is important to recognize that it will require careful consideration in relevant domestic regulatory frameworks. 37inally, it is worth recalling that Australia and New Zealand have multiple interests in relation to the international legal regime for offshore wind-they are not only coastal states seeking to establish their own offshore wind industries, but island countries with economic and strategic interests dependent on preserving the freedom of navigation and effective and efficient international shipping routes.As such, beyond the possible advantages of interpreting the UNCLOS framework for the regulation of offshore wind in a way that suits their interests as coastal states, Australia and New Zealand have a strategic interest in ensuring that the overall balance of rights and interests established in the UNCLOS framework is maintained.To understand this better, we need to consider what aspects of the UNCLOS framework are relevant to the regulation of offshore wind.

Relevant Aspects of the UNCLOS Framework
While UNCLOS does provide clarity in terms of ascertaining which state has jurisdiction (and which type of jurisdiction) in the various maritime zones, it does not provide a particularly clear framework for the development of offshore wind energy. 38onetheless, it is possible to draw on a range of provisions in UNCLOS to flesh out a reasonably satisfactory framework for the regulation of offshore wind, even if-as with most issues in UNCLOS-some of the rights and duties remain rather ambiguous or open-ended, and not all the issues likely to arise in practice are addressed in detail.This section discusses five key issues needing to be addressed in relation to UNCLOS and offshore wind.These are the issues that are most likely to affect the rights and obligations of coastal states in respect of offshore wind, and in relation to which the exercise of coastal state jurisdiction is most likely to impact the user rights of other states.In each case, consideration will be given to how these provisions apply in different maritime zones, and how these issues might (or might not) particularly affect Australia and New Zealand.
Before considering these issues, however, it is important to recall the general proposition that in exercising its sovereign rights to regulate offshore wind in the EEZ pursuant to Article 56(1)(a) of UNCLOS, the coastal state is bound to have "due regard" for the rights and duties of other states-and that other states have a duty to exercise their own rights with "due regard" for the rights and duties of the coastal state. 39This "reciprocal" duty of due regard was subject to helpful interpretation in the Chagos Arbitration, in which the Arbitral Tribunal noted that when one state is contemplating activities likely to affect the rights of another state in the EEZ, it must consider the nature of the rights held by the other state and their importance; the extent to which the activities under contemplation are likely to impair those rights; the nature and importance of the activities to the state itself; and the availability of any alternatives. 40The Tribunal also noted that in the majority of cases, the making of this assessment would likely involve some consultation with the other state. 41ccordingly, in addition to the specific requirements and duties discussed in the following, to the extent that the activity of producing energy from wind in the EEZ is likely to affect the user rights of other states, the coastal state should consider all the circumstances of the case and the nature of the rights concerned, the extent of the impairment (to the rights of other states), benefit (to the coastal state), and availability of alternatives, and, notably, should undertake consultation.

Legal Character of Offshore Wind Infrastructure
The first issue to resolve is how the actors and activities involved in generating electricity from offshore wind are to be characterized under UNCLOS, given its limited and somewhat ambiguous approach to definitional issues.
We can start with the legal character of "wind" itself.Pursuant to Article 56(1)(a) of UNCLOS, the coastal state has sovereign rights for the purpose of "exploring and exploiting, conserving and managing the natural resources," both living and nonliving, of the waters of the EEZ, and the seabed and subsoil, and with regard to "other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds."This raises the question of 39 UnclOS, arts 56(2) and 58(3). 40
whether offshore wind itself is properly considered a "natural resource" for the purposes of the UNCLOS framework, or whether it is only relevant as part of an "activity" pursuant to which energy is produced. 42In this respect, it seems reasonable to accept Reisman's characterization of a "resource" as something that "yields substantial benefits to human beings and which may be purposefully exploited." 43As a result, it could be argued that coastal states have sovereign rights for the purpose of exploring and exploiting offshore wind as a "natural resource," as well as with regard to the "production of energy" from offshore wind.This may seem like definitional hair-splitting, but is worth clarifying in order to lay the foundations for other questions about the nature and extent of coastal state jurisdiction over offshore wind activities. 44nother issue of characterization arises in relation to the "units" involved in the production of energy from offshore wind.Over the course of its exploration, construction, operation, and decommissioning, more than 30 types of vessels are likely to be involved in a wind farm, from small crew transfer vessels and large "hotel vessels" to accommodate construction crew at sea, right through to floating cranes and large "jack-up" vessels that can elevate themselves out of the water using large legs, in order to do their work at sea unhindered by waves. 45Although many of these can comfortably and appropriately be characterized and regulated as "ships" for the purpose of UNCLOS, there is less certainty about the wind turbines and substations that make up the wind farm itself-particularly with the advent of floating turbines, which may be constructed in port, towed to their destination, and anchored or moored to the seabed in a style characteristic of some of the offshore units involved in oil and gas exploration. 46While these floating turbines evidently share some similarities with "ships," to characterize them in this way would have a range of consequences-in particular, they would need to register with and be subject to the jurisdiction of a "flag state," and the coastal state would not have the same jurisdiction to regulate them as "installations" or "structures" under Article 60 (or to establish safety zones). 47rticle 60 of UNCLOS had its genesis in Article 5 of the 1958 Geneva Convention on the Continental Shelf, 48 which referred to the coastal state's jurisdiction with respect to "installations and other devices necessary for its exploration and the exploitation of its natural resources."This provision was further elaborated during the negotiation of UNCLOS, with the United States' proposal that "installations" be defined to include "all off-shore facilities, installations or devices other than those which are mobile in 42 Galea, note 9, 105-106.43 michael reisman, "Key International legal Issues with regard to Ocean thermal energy conversion Systems" (1981)  11 California Western International Law Journal 425, 428.See also the definitions discussed by Galea, note 9, 105-107.44 For example, given its location in the airspace above the eeZ, it might be argued that offshore wind does not fall within the category of natural resources "of the waters superjacent to the seabed and of the seabed and its subsoil" to which sovereign rights apply under article 56(1)(a).See also the discussion below about the coastal state's jurisdiction over submarine cables used in connection with the "exploitation of its resources" pursuant to art 79(4) (notes 103-104 and associated text). 45See, e.g., westra, note 17, 106-107.46 See, e.g., alexander Severance and martin Sandgren, "Flagging the Floating turbine Unit: navigating towards a registrable, First-ranking Security Interest in Floating wind turbines" (2014) 39(1) Tulane Maritime Law Journal 1. 47 woolley, note 24, 40-41.48 convention on the continental Shelf (Genva), adopted 29 april 1958, entered into force 10 June 1964, 499 UntS 311.
their normal mode of operation at sea" (emphasis added). 49Accordingly, it seems clear that offshore wind turbines and substations should be considered to constitute "installations" or "structures" within the meaning of Article 60, rather than "ships" within the meaning of Article 92.As Woolley points out, this interpretation is both credible in practice, given the current state of technology of floating turbines (which still need to be towed by ships in order to reach their destination, and once installed must be subject to regulations to ensure that shipping is protected from them, and vice versa), and consistent with how the relevant terms are used in UNCLOS "to allocate certain rights, duties, and powers to specified states." 50

Location of Offshore Installations and Structures
With these definitional issues resolved, the next question is where offshore wind installations can be located.While coastal states have a broad discretion to determine the location of offshore wind installations and structures in waters under their national jurisdiction, 51 this right is subject to the explicit recognition of the various navigational rights expressed to apply in different maritime zones under UNCLOS. 52nder the regime for the territorial sea (as well as those governing passage through international straits and archipelagic waters), 53 the rights of the coastal state are commonly viewed as equating to a requirement not to unreasonably prevent or hinder innocent passage. 54In the context of offshore wind, this can be given a "conciliatory interpretation," to the effect that it is possible to construct installations and structures provided they "do not wholly obstruct or interfere unreasonably with a foreign vessel's right of innocent passage." 55A slightly different formulation is given by Reisman, who suggests-not unreasonably, in light of the coastal state's rights to regulate innocent passage under Article 21-that "from a practical standpoint, it would appear that not only may the coastal State alone use its territorial waters for [offshore energy activities], but it may establish such operations even at the expense of innocent passage users." 56In a similar vein, Woolley suggests that states conducting innocent passage "should accept a certain amount of interference by coastal States in order to exploit energy production possibilities in sovereign waters, although not to the extent that 49 See Satya nandan and Shabtai rosenne (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Volume II (martinus nijhoff publishers, 1993) 575. 50woolley, note 24, 41. 51 UnclOS, arts 2 (territorial sea), 34 (straits), 49 (archipelagic waters), and 60(1)(b) (eeZ). 52David leary and miguel esteban, "climate change and renewable energy From the Ocean and tides: calming the Sea of regulatory Uncertainty" (2009) 24(4) International Journal of Marine and Coastal Law 617, 637. 53throughout this article, references to coastal state rights and responsibilities in archipelagic waters reflect the position that coastal states have sovereignty over the waters, air space, seabed, and subsoil enclosed by archipelagic baselines, which may be exercised subject to part Iv of UnclOS (art 49).references to international straits reflect the fact that in straits used for international navigation (as defined in art 37), the sovereignty or jurisdiction of states bordering the straits may continue to be exercised subject to part III of UnclOS (art 34). to the extent that straits fall within art 45(1) rather than art 37, the regime of innocent passage (including the appurtenant rights and responsibilities of the coastal state) applies subject to art 45(2).references to international straits in this article do not include those straits referred to in art 36, where there is another route of similar convenience through the eeZ or high seas, and the regime of those maritime zones thus applies. 54UnclOS, arts 2, 24, 44, 52, and 53.See, e.g., das neves, note 9, 219; leary and esteban, note 52, 633. 55 this would preclude innocent passage completely or otherwise interfere with it unreasonably." 57Regardless of which formulation is used, the result is the same: Innocent passage through waters under sovereignty may be reasonably affected by the establishment of offshore wind infrastructure, but not unreasonably prevented or wholly obstructed.
In the EEZ the situation is slightly different, since Article 60(7) of UNCLOS provides that coastal states may not establish installations or structures (or safety zones around them), "where interference may be caused to the use of recognized sea lanes essential to international navigation." 58Unfortunately, like many other things, these "sea lanes" are not defined any further in UNCLOS, nor does any international body have the explicit responsibility for designating them.As the competent international organization responsible for developing "generally accepted standards" for the safety of navigation under UNCLOS, the International Maritime Organization (IMO) has recommended that "as far as practicable, oil rigs, platforms and other similar structures are not established within routeing systems adopted by IMO or near their terminations." 59The IMO also recommends that governments "study the pattern of shipping through offshore resource exploration areas at an early stage so as to assess potential interference with marine traffic" and ensure that exploitation of natural resources in the EEZ "does not seriously obstruct sea approaches and shipping routes." 60nder the circumstances, it seems sensible to assume that, at a minimum, in deciding where to locate offshore wind facilities, coastal states must respect any IMO-approved schemes. 61Beyond that, we can adopt Scott's view that "given the potential spatial extent of an offshore development, no development should take place within areas that are of significance to navigation even where there is no IMO traffic separation scheme or routing measure in place." 62In this respect, to inform their identification of the routes or areas which are likely to constitute "sea lanes essential to international navigation" for the purpose of Article 60(7), coastal states might take some inspiration from the description of archipelagic sea lanes set out in Article 53 of UNCLOS, which are expressed to include "all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels."And as Proelss notes, the scope of Article 60(7) should be taken to include not only "traditional shipping lanes that are substantially used for international navigation" through the EEZ, but 57 woolley, note 24, 51. 58In addition, wherever such installations and structures are located, coastal states must give due notice of their construction, and maintain a permanent means of warning of their presence (UnclOS, art 60(3)). 59ImO assembly resolution a.572 (14) straits used for international navigation, and approaches to internationally relevant ports and harbors. 63otwithstanding the size and relative isolation of their waters, these limitations on coastal state discretion have implications for the regulatory approaches of Australia and New Zealand.First, it will be necessary to take a holistic approach to the location of offshore wind farms in the territorial sea, taking into account other uses such as offshore oil and gas exploitation, marine protected areas, and navigational hazards, to ensure that (once all these uses are considered at once) the establishment of offshore wind farms does not have the practical effect of preventing innocent passage through the territorial sea.Second, the establishment of offshore wind facilities must not obstruct straits used for international navigation-in particular (for Australia) Bass Strait and Torres Strait, and (for New Zealand) Cook Strait, including with respect to both the passage of vessels and the overflight of aircraft.Third, careful consideration should be given to any proposal to locate offshore wind facilities near existing traffic separation schemes or other routing measures, regardless of whether they are in the territorial sea or the EEZ. 64For Australia, this includes the IMO-approved schemes in place with respect to: • the Torres Strait and the Great Barrier Reef, off the coast of Queensland (both of which are designated as "Particularly Sensitive Sea Areas" and subject to a range of measures designed to increase navigational safety) 65 ; • Bass Strait and Wilson's Promontory, off the coast of Victoria (both of which are subject to traffic separation schemes designed to protect offshore installations and the safety of shipping) 66 ; and • Cape Leeuwin and Chatham Island, off the southwest coast of Western Australia (both of which have traffic separation schemes intended to protect larger vessels from exposed and potentially dangerous shores due to the presence of frequent strong southwesterly winds, the possibility of breakdown, and the potential time taken for a response vessel to arrive in the area). 67ile New Zealand does not have any mandatory systems of routing, care should be taken with respect to any proposals to locate offshore wind installations near existing "areas to be avoided." 68Finally, both countries should give consideration to whether there are any other areas of significance to navigation in their EEZ, even if they are not subject to formal IMO schemes.

Routing and Safety of Navigation
Once the location of an offshore wind farm has been decided upon, the coastal state has some specific rights-and some explicit obligations-with respect to the safety of navigation in the vicinity of that farm.Once again, the situation differs between areas under sovereignty (where the coastal state has a greater ability to establish laws and regulations relating to passage) and those under sovereign rights (where the freedom of navigation generally prevails).This may require particular consideration in situations where an offshore wind farm straddles both the territorial sea and the EEZ, and thus falls under two different jurisdictional regimes from an UNCLOS perspective.
In the territorial sea, the coastal state may establish laws and regulations relating to the safety of navigation and the regulation of maritime traffic, the protection of facilities and installations, and the protection of cables and pipelines. 69This extends to the right to designate sea lanes and traffic separation schemes to ensure the safety of navigation, "taking into account" the recommendations of international organizations, channels customarily used for international navigation, special characteristics of particular ships and channels, and the density of traffic. 70Due publicity must be given to all such laws, regulations, and schemes, 71 and the vessels of other states must comply with them, and with all generally accepted regulations relating to the prevention of collisions at sea. 72 Similar rights and duties apply in international straits and archipelagic waters, with the addition of a requirement that sea lanes and traffic separation schemes "conform to" generally accepted international regulations, a requirement to refer proposals for traffic separation schemes to the competent international organization with a view to their adoption, and passage rights for aircraft in routes normally used for international navigation. 73eyond the territorial sea, UNCLOS requires coastal states to give "due notice" of the construction of installations and structures in the EEZ, and to maintain permanent means for giving warning of their presence, 74 and provides that all states must comply with generally accepted international standards regarding navigation in the vicinity of installations and structures. 75However, UNCLOS does not specifically provide any right for coastal states to establish sea lanes or traffic separation schemes in the EEZ.Nonetheless, the IMO clearly envisages both that this may be necessary-including in connection with offshore wind activities-and that it should be subject to IMO consideration.This is reflected in IMO Resolution A.572 (14), which states that "a Government proposing a new routeing system or an amendment to an adopted routeing system, any part of which lies beyond its territorial sea, should consult IMO," 76 and that 69 UnclOS, art 21. 70 UnclOS, art 22. there are various measures that can be utilized to ensure the safety of navigation, depending on the particular situation, including not only traffic separation schemes, but safety zones, "areas to be avoided," "no anchoring areas," "ship reporting systems," and "vessel traffic systems": Galea, note 9, 111-112. 71UnclOS, arts 21(3) and 22(4). 72UnclOS, art 21. 73 UnclOS, arts 41, 42, 53, and 54. 74UnclOS, art 60(3). 75UnclOS, art 60(6). 76ImO, note 59, [3.8].
In planning to establish multiple structures at sea, including but not limited to wind turbines, Governments should take into account, as far as practicable, the impact these could have on the safety of navigation, including any radar interference.Traffic density and prognoses, the presence or establishment of routeing measures in the area, and the manoeuvrability of ships and their obligations under the 1972 Collision Regulations should be considered when planning to establish multiple structures at sea.Sufficient manoeuvring space extending beyond the side borders of traffic separation schemes should be provided to allow evasive manoeuvres and contingency planning by ships making use of routeing measures in the vicinity of multiple structure areas. 77ese rights and obligations with respect to routing and the safety of navigation are likely to be important considerations for Australia and New Zealand as they develop offshore wind in their waters-particularly where offshore wind farms occupy large areas that are relatively close to the coast.In Australia, for example, the Greater Gippsland Offshore Wind Project is proposing to seek a license area of 700 km 2 in waters 10 to 43 km (5.3 to 23.2 NM) off the coast of Gippsland, Victoria, in which it appears that 139 "bottom-fixed" turbines would be distributed fairly equally across the whole area, with approximately 3 km between each pair of turbines. 78The Star of the South Project is proposing to seek a license for an adjacent area, covering 496 km 2 in waters 7 to 25 km (3.7 to 13.4 NM) off the coast of Gippsland, to host up to 200 bottom-fixed turbines. 79In New Zealand, the South Taranaki Offshore Wind Project is proposing to host 65 turbines in a 230-km 2 area, located 22 km (12 NM) off the west coast of the North Island.
The regulatory framework for these large offshore wind farms will need to be designed in a way that takes into account both the navigational freedoms and the safety of navigation of foreign vessels, bearing in mind also the need to prevent pollution and protect the marine environment.This will require consideration about whether vessels need to pass through these areas in order to access ports or navigate safely, and if so what sort of traffic separation schemes or other safety measures might be required (taking into account the views of the IMO).Alternatively, consideration will need to be given to whether it is safe or reasonable to expect vessels to detour around the outside of these areas (including in terms of navigational hazards, time, cost, and greenhouse gas emissions), and what sort of effect this might have on traffic density elsewhere.In this context, there is much to be gained from the European offshore wind experience, where many of the mistakes have already been made and lessons learned. 80

Safety Zones
Closely related to questions of routing and the safety of navigation is the complicated issue of safety zones.Once again, as a starting point, we must draw a distinction between areas under sovereignty, and those under sovereign rights.While UNCLOS 77 Ibid,[3.14]. 78 does not specifically address the coastal state's right to establish safety zones in areas under sovereignty, this nonetheless falls within the coastal state's general rights to establish laws and regulations for the safety of navigation, including by establishing sea lanes and traffic separation schemes (discussed above), 81 as well as the right to take steps to prevent passage that is not innocent 82 -provided such zones do not unreasonably hinder or prevent innocent passage. 83Similar rights and duties would apply in international straits and archipelagic waters, taking into account the additional limitations in relation to routing and the safety of navigation described above (including the passage rights of aircraft). 84The coastal state's rights with respect to safety zones in areas under sovereignty are thus broader than those described for the coastal state in the EEZ under Article 60 of UNCLOS, and could be interpreted to address issues beyond strictly "safety"-related measures.
In the EEZ, Article 60 of UNCLOS specifically provides that coastal states may "where necessary, establish reasonable safety zones" around installations and structures, "in which they may take appropriate measures to ensure the safety of both navigation and of the … installations and structures." 85Such zones must be "designed to ensure that they are reasonably related to the nature and function" of the installations and structures, "and shall not exceed a distance of 500 metres around them," except as established in generally accepted international standards or recommended by the competent international organization, and due notice must be given of their extent. 86Like the installations and structures themselves, safety zones must not be established where they may cause interference with the use of recognized sea lanes essential to the safety of navigation.As a result, the likely need for a safety zone should be considered up front, as part of the overall consideration about what constitutes an appropriate location for offshore wind installations. 87All states must require their vessels to respect these safety zones and comply with generally accepted international standards regarding navigation in their vicinity. 88he IMO has provided specific guidelines for giving effect to Article 60, including with respect to the publication obligations of coastal states, flag state obligations, and the measures to be followed in reporting violations of safety zone regulations. 89However, these refer to (and appear to be based on) considerations arising from the regulation of oil and gas exploration and exploitation, and do not reflect the practical issues associated with establishing safety zones in relation to offshore wind infrastructure.For example, while it is unlikely that a 500-m safety zone around an oil and gas installation-or even a small group of oil and gas installations-will unreasonably affect navigation, a 500-m safety zone around each of 200 wind turbines in a 496-km 2 area (to use the Star of the South Project as an example) 90 will have a much greater effect on the navigational rights of foreign vessels.Consideration also needs to be given to other issues such as traffic density, ship size, and maneuverability, and in cases where offshore wind farms are located next to each other, corridors between them providing safe passing distances might be needed.
The current practice in relation to the implementation of safety zones around offshore wind turbines is rather mixed.Some states, such as the United Kingdom, apply 500-m safety zones to each individual turbine during the construction phase and then reduce these to 50 m around each turbine during the operational phase. 91Other states, including Norway and Germany, provide for ongoing safety zones of up to 500 m "from the outer edge of the facility," 92 thus implying an exclusion zone around the whole offshore wind farm-although presumably this will only be consistent with UNCLOS if the individual turbines within the farm are no further than 1 km apart (and even then, consideration will need to be given to the reasonableness of the approach, taking into account factors such as the size and location of the wind farm). 93he Netherlands has adopted a more differentiated approach for its wind farms in the North Sea.In most wind farms, vessels of 24 m or less are able to navigate through the wind farm subject to the observance of certain safety requirements (including transiting only during the daylight, carrying an AIS transponder, remaining tuned to VHF channel 16 for any instructions, and not alighting on the installations).Vessels longer than 24 m must go around the outside of the wind farm. 94In some other offshore wind farms in the Netherlands' waters, a shipping corridor has been established within the wind farm, which allows for transit by vessels up to 45 m, subject to various rules of passage. 95nce again, the size and location of offshore wind facilities in Australian and New Zealand waters are likely to affect the way in which (and perhaps even the period during which) safety zones are established in this region.At present, Australia's legislation provides that safety zones can be declared with a radius of up to 500 m around offshore electricity infrastructure at sea level, and that rolling or mobile safety zones may be established around a vessel or group of vessels that are progressively working on the installation of infrastructure. 96The explanatory material that accompanied the legislation notes that safety zones are intended to be established on a short-term basis, such as to prevent entry during construction or address an urgent safety issue such as fallen or broken infrastructure that may cause a hazard. 97However, the Australian 91 See, e.g., United Kingdom, Energy Act 2004 s 95. 92See, e.g., norway, Regulations on the Marking and Establishment of Safety Zones Associated with Facilities for Renewable Energy Production 2016 s 4; Germany, Offshore Wind Energy Act (WindSeeG) 2017 s 53(2). 93proelss, "article 60," note 59, 477. 94See netherlands ministry of Infrastructure and water management, "code of conduct for Safe passage through Offshore wind Farms" (February 2018), available at: https://www.noordzeeloket.nl/publish/pages/190545/code-of-conduct-for-safe-passage-through-offshore-wind-farms.pdf(accessed 29 may 2023).However, some wind farms in the Dutch eeZ (such as the "Gemini" wind farm) remain closed to through shipping, owing to their greater distance from shore and the relatively high costs of installing monitoring and law enforcement systems. 95See, e.g., netherlands ministry of Infrastructure and water management, "code of conduct for Safe passage through Borssele wind Farm pass," available at: https://www.noordzeeloket.nl/publish/pages/191533/code-of-conduct-for-safe-passage-through-borssele-wind-farm-pass.pdf(accessed 29 may 2023). 96australia, OeI act, s 136. 97 government has more recently indicated that it intends to rely on the right to apply 500-m safety zones around individual offshore wind installations. 98This may require further consideration and clarification to ensure that both navigational freedom and the safety of navigation are adequately protected, in light of the size and layout proposed for some of the offshore wind farms in Australia's waters.
In the case of New Zealand, the Continental Shelf Act 1964 provides a basis for 500-m safety zones to be established around any "installations or devices in, on, or above the continental shelf," and for such measures as are necessary for the protection of the installation or device, including prohibition on the entry of ships into the safety zone. 99However, these provisions were established (and have been applied) primarily in the context of offshore oil and gas exploration, 100 and it remains to be seen whether a different approach is adopted in the regulatory framework for offshore renewable energy that is currently under consideration.
In practice, safety zones for offshore wind installations will need to be considered on a "case-by-case" basis, since what constitutes a "reasonable" safety zone, with "appropriate" measures that are "reasonably related" to their nature and function, will differ in the circumstances of each case, taking into account issues including geography, navigational hazards, and other marine uses and users in the area.Beyond this, there are a range of further interesting questions that might be explored as practice develops, concerning the spatial and functional extent of the coastal state's jurisdiction in relation to safety zones, both in the context of offshore wind and more generally.For example, to what extent do safety zones extend to the water column below and the airspace above-and in the situation of large offshore wind farms, how does this affect the freedom of overflight in the EEZ?To what extent can a coastal state apply environmental protection standards within a safety zone?And, noting that offshore wind installations will likely constitute "critical infrastructure" for the coastal state, to what extent can "security" measures (rather than merely "safety" measures) be applied in safety zones?

Submarine Cables
The production of energy from offshore wind requires not only installations and structures to generate electricity, but submarine cables to transmit it to land for use.In this respect, as with the other issues discussed above, coastal states are free to install submarine cables in the territorial sea and other zones under sovereignty, provided they do not unreasonably hinder or prevent the passage of foreign vessels. 101hey also have the right to adopt and enforce laws and regulations for the protection of cables in these areas, 102 and to establish conditions for cables entering the territorial 98  sea from the continental shelf. 103Since this right is based on the coastal state's sovereignty (and not tied to the coastal state's resource-related rights), such conditions may extend to other (non-resource-related) matters-although they may only be applied within the territorial sea, and not in the EEZ. 104n the EEZ, all states-including the coastal state-have the freedom to lay submarine cables on the continental shelf pursuant to Article 79(1) of UNCLOS, provided they exercise due regard for cables or pipelines already in position. 105Beyond this, Article 79(4) makes clear that coastal states also have jurisdiction over cables constructed or used in connection with the exploitation of the resources of their continental shelf, or the operations of installations or structures under their jurisdiction. 106n this respect, in contrast to pipelines carrying oil and gas resources (which are extracted from the seabed and subsoil of the continental shelf), it is not clear whether energy generated from wind in the airspace above the continental shelf constitutes a "resource" of the continental shelf that would justify the exercise of coastal state jurisdiction over submarine cables in the sense intended by the first limb of Article 79(4). 107onetheless, under the other limb of Article 79(4), coastal states still have jurisdiction in relation to submarine cables carrying electricity generated from offshore wind on the basis that they are being used in connection with the operation of installations or structures under their jurisdiction.
There is thus no difficulty in establishing that coastal states have jurisdiction over both the installations and structures used to generate electricity from offshore wind, and the cables used to transmit it to land.In the context of submarine cables, the key challenge for coastal states will be how to manage not only the safety but the security of these cables-which are likely to constitute "critical infrastructure" supplying the coastal state's energy needs-particularly in light of incidents such as the sabotage of the Nord Stream pipelines 108 and cuts to submarine cables in Europe. 109otwithstanding the jurisdiction over submarine cables available pursuant to Article 79(4) of UNCLOS, very few states have enacted legislation criminalizing damage to submarine cables. 110This may be due to the limited rights of coastal states to exercise jurisdiction in relation to cables on their continental shelf other than in situations where those cables are used in connection with the exploitation of resources or the operations of installations and structures.In any case, legislation on this issue is likely to become more relevant and more common as submarine cables are used not only to transmit electricity generated offshore into the territory and transmission infrastructure of the coastal state, but to export it through the waters and into the territories of other states. 111his is an area in which Australia and New Zealand, as island countries dependent on submarine telecommunication cables for their connection to the rest of the world, 112 already have established practices that could be adapted to the protection of submarine cables transmitting electricity generated by offshore wind installations.In Australia, for example, Schedule 3A of the Telecommunications Act 1997 (Cth) provides for protection zones to be created over submarine cables of national significance in Australian waters (defined to include the territorial sea, EEZ, and continental shelf beyond 200 NM) and for the prohibition or restriction of activities in protection zones likely to damage submarine cables.Under this framework, it is an offense to damage a submarine cable within a protection zone and significant criminal and civil penalties apply. 113The concept of submarine cable protection zones might be a useful starting point for regulating submarine cables associated with offshore wind while balancing the user rights of other marine industries-particularly with multiple wind farms vying for connection points on the coast.
In New Zealand, the Submarine Cables and Pipelines Protection Act 1996 establishes offenses and penalties for damage to submarine cables, but these apply only within New Zealand's territorial sea, or with respect to persons on board New Zealand-flagged vessels or of New Zealand nationality. 114The Act also provides for the creation of protection zones, within which fishing and anchoring are prohibited, and it is an offense to damage a submarine cable whether willfully or negligently. 115However, since the Act only prohibits fishing and anchoring, and not other activities, there is potential for the framework to be expanded to more fully utilize New Zealand's coastal state jurisdiction with respect to submarine cables connected with the exploitation of offshore wind in the EEZ.

Other Issues
There are many other issues that could be explored with respect to coastal state jurisdiction over offshore wind-in particular, questions associated with the protection and preservation of the marine environment, 116 and with the decommissioning of installations and structures. 117While they are beyond the scope of this article, which is focused on issues for early consideration as new regulatory frameworks are established for offshore wind, these issues will also need to be the subject of serious consideration by states (and by the international community) in the context of offshore renewable energy.However, given the coastal state's jurisdiction over the installations and structures associated with offshore wind, perhaps this consideration will be less in terms of the "rights" that may be exercised with respect to these issues than in terms of the "duties" that must be fulfilled.No doubt new and different questions about coastal state enforcement jurisdiction will also emerge as new regulations on all the issues discussed in this article become more common.
In addition, the offshore wind industry is constantly evolving, presenting new and emerging developments that will require further consideration in the context of UNCLOS.One such development is the construction of artificial islands adjacent to wind farms, whether to serve as hubs for the storage of electricity to provide stability for the onshore grid (stored in batteries or in the form of hydrogen) or as locations for the production of hydrogen at sea using electricity generated from wind power.Plans for the first island of this sort are already well under way in Europe, in the form of a multistate offshore electricity grid project. 118These developments may raise further questions about jurisdiction over submarine cables, particularly in cases where electricity generated by offshore wind in the waters of one coastal state is transmitted through submarine cables-potentially over the seabed of a second state or even third state-to enter the waters and the territory of another state. 119In the future, interesting questions may also arise under UNCLOS in relation to the use of autonomous or remotely operated vessels to service and repair offshore wind infrastructure, as well as autonomous offshore wind turbines.120

Conclusion: The Implications of Offshore Wind Jurisdiction
Questions about the ability of the UNCLOS framework to govern the exploitation of renewable energy sources have been under consideration since before the Convention was even adopted.When asked by the United Nations Conference on New and Renewable Sources of Energy in 1981 to consider the international legal framework for the exploitation of renewable ocean energy sources in the draft Convention, American lawyer Stephen Joseph concluded that "the international legal situation on the whole is very favourable for the projected ocean energy exploitation scenarios.National laws may, however, present problems which need to be resolved." 121 Reviewing the situation 40 years later, this conclusion seems to hold-at least in the case of offshore wind.Drawing on the legal and practical issues examined above, this section makes some concluding observations about the potential implications of offshore wind for the UNCLOS regime (and the EEZ regime) in general, and for Australia and New Zealand in particular.

The Balance of Rights and Interests in the EEZ
As das Neves has observed, in taking up the opportunities of new offshore renewable energy projects, "States must face additional challenges of designing regulatory frameworks that accommodate the intricacies of each form of offshore renewable energy." 122This idea has been a key theme of this article, and it is true for the regulatory frameworks of both national and international law.In order to interpret the international law framework in a way that most appropriately regulates the conduct of offshore wind activities, we must start by considering their operational intricacies.It is clear that offshore wind activities are distinctly different from the other ocean uses regulated by international law: They occupy a larger geographic space in a denser way, affecting not only the surface area, but the water column, the seabed and subsoil below, and the airspace above, for an extended-and possibly indefinite-period.These characteristics must necessarily have implications for the coastal state's jurisdiction over offshore wind activities under UNCLOS, particularly in the EEZ, where the sovereign rights of the coastal state must be balanced effectively with the user rights of other states.
The coastal state's sovereign rights over offshore wind in the EEZ are exclusive and functional.They are exclusive in the sense that if the coastal state does not exploit its offshore wind resources, no one else may do so without its consent. 123And they are functional in the sense that they must be "extensively interpreted to include whatever powers are needed to ensure that the coastal State enjoys its rights in full." 124But to meaningfully determine the practical extent of this functional jurisdiction, it is necessary to consider the policy goal-or purpose-it is intended to fulfill. 125This is clearly identified in the two linked purposes set out in Article 56(1)(a) of UNCLOS: first, the "exploration and exploitation" of wind as a natural resource; and second, the "production of energy" from that resource.As a result, the coastal state has the practical right to: • assess, examine, evaluate, and investigate the wind resources in its waters ("explore"); • harvest, extract, make use of or derive benefit from them ("exploit"); and • make, manufacture, or create energy from them ("produce"). 126t these functional rights also have functional limits.In particular, these rights do not relate to the area of the EEZ, but only to the wind itself and the right to generate energy from it.Beyond this, the exercise of the right must strike a reasonable, workable balance with the rights of other states in the EEZ-the rights to navigate freely and safely, to fly overhead, and to lay submarine cables below.To ensure an appropriate balance, consideration must be given to the difference between: • the jurisdiction that is required with respect to tangible, harvestable resources such as oil, gas, and fisheries, which occupy a spatially and temporally limited footprint that allows maritime spaces to be shared with other users, and which are (ultimately) nonrenewable, and 122 das neves, note 9, 216. 123International law commission, "articles concerning the law of the Sea with commentaries" (1956) II Yearbook of the International Law Commission 265, 297. 124edward Duncan Brown, The International Law of the Sea: Volume 1 (Dartmouth publishing company, 1994) 220. 125See, e.g., maria Gavouneli, Functional Jurisdiction in the Law of the Sea, ed vaughan lowe (martinus nijhoff publishers, 2007) 69; richard Barnes, Sovereignty, Property and Maritime Zones (Hart publishing, 2018) 297. 126Oxford english Dictionary Online, available at: http://www.oed.com(accessed 18 march 2023).
• the jurisdiction that is required to regulate more intangible, "transformable" resources such as offshore wind, which require the use of a large maritime space on a semipermanent basis, and which are nonexhaustible.
These differences affect not only the extent but the nature of coastal state jurisdiction with respect to these issues-and if the balance of rights and interests embedded in the EEZ regime is to be maintained, it will be important to ensure that the interpretation of the coastal state's rights over offshore wind does not result in jurisdiction that is "spatial" or "territorial" rather than "functional." In this respect, it is important to acknowledge that-even more than the allocation of sovereign rights over resources under Article 56(1)(a)-the subject matter regulated by Article 60 of UNCLOS has the potential to enhance the "territorial imprint" of the coastal state's sovereign rights and jurisdiction in the EEZ, by allowing coastal states to reserve large areas of the EEZ to construct and operate artificial islands, installations, and structures, which may grow even larger with the establishment of safety zones around them. 127While the growth of offshore wind-and the increase in deployment of installations, structures, and safety zones-may contribute to realizing the underlying tendencies of the EEZ "as a zone within which the coastal state is entitled to exercise limited spatial jurisdiction," 128 it is nonetheless important to maintain a clear focus on the sui generis nature of this zone as an area of functional (and not spatial) jurisdiction.And yet, at the same time, full recognition must be given to the requirements of that functional jurisdiction.This could be a difficult balance for international law to strike-at least initially.In this respect, the decision of the Tribunal in the Chagos Arbitration regarding the application of the reciprocal due regard rule is likely to be a useful starting point for coastal (and other) states. 129

Key Issues for Australia and New Zealand
Achieving an appropriate regulatory balance will be a key challenge for all coastal states, including Australia and New Zealand, where vast maritime zones with world-class offshore wind resources are driving proposals for large licensing areas within which to install turbines, substations, and submarine cables.Many of these areas are located close to ports, maritime industry, and other high traffic areas, and in some cases also to existing oil and gas areas, and even international straits-meaning that consideration will need to be given to whether traffic separation schemes or other navigational safety measures will be required, as well as to the potential location and legal regime of safety zones.In addition, suitable locations and protection measures will need to be considered for the high-voltage submarine cables that will transmit the electricity to land.All of these measures will need to be considered in the light of multiple objectives: the safety of shipping, the safety of offshore wind infrastructure (installations, structures and submarine cables), marine scientific research, the protection of electricity supply and the protection and preservation of the marine environment, and in the 127 proelss, "article 60," note 59, 466. 128Yoshifumi tanaka, The International Law of the Sea (cambridge University press, 2015) 132. 129Chagos Arbitration [519].
context of a wide range of domestic user rights and interests, from the traditional rights of First Nations people to the requirements of national security, recreational and commercial fishing, tourism, and recreational activities.
While each aspect of coastal state jurisdiction over offshore wind seems manageable on its own, a clear-eyed understanding of the big picture will be necessary to ensure that the regulatory framework is designed in a way that takes account of the cumulative effect impact of all relevant laws and policies and avoids unintended consequences.For Australia and New Zealand, it will be particularly important to consider how the potential size of offshore wind farms will affect the regulations that apply within them, in order to avoid any claims of "territorialization" of the EEZ, and to ensure that practice in this region does not set any unfortunate precedents for other regions (where the primary interests of Australia and New Zealand lie in protecting free and efficient navigation).Nonetheless, both countries are also entitled (and perhaps in a domestic sense, obliged) to ensure that UNCLOS is interpreted and applied in a way that allows them to enjoy their sovereign rights to the full, and to manage the production of energy from their offshore wind resources to maximum effect.
Given the way that the "reciprocal due regard" test is framed in the Chagos Arbitration, a useful starting point for coastal states might be to identify their key regulatory objectives in relation to the regulation of offshore wind-such as the protection of the marine environment from the risk of oil spill pollution by vessels or ensuring the security of offshore wind installations and submarine cables as critical infrastructure.This would enable coastal states to evaluate the relative priority or importance of different objectives, explore the primary and alternative options that might be available to achieve them, and consider how they relate to the rights and duties of other states in the area.While there will inevitably be some hard decisions to make, the clarity and transparency of this approach would provide a useful basis for consultation with particularly affected states, and a defensible way to justify decisions about coastal state regulation over this new industry.
On the "functional" nature of the coastal state's sovereign rights in the eeZ generally, see, edward Duncan Brown, "the exclusive economic Zone: criteria and machinery for the resolution of International conflicts between Different Users of the eeZ" (1977) Maritime Policy Management 325, 333; alexander proelss, "the law on the exclusive economic Zone in perspective: legal Status and resolution of User conflicts revisited" (2012) 26 Ocean Yearbook 87, 101.24For example, offshore wind developments have the potential to affect aviation communications (including See, e.g., Dan van der Horst and Saskia vermeylen, "wind theft, Spatial planning and International relations" (2010) 1(1) Renewable Energy Law and Policy 67; J. K. lundquist et al, "costs and consequences of wind turbine wake effects arising from Uncoordinated wind energy Development" (2018) 4(1) Nature Energy 26; eirik Finserås et al, "Gone with the wind?wind Farm-Induced wakes and regulatory Gaps" (6 December 2022), available at: SSrn: https://ssrn.com/abstract=4294614(accessed24 may 2023).23communicationsbetween aircraft and air traffic controllers) and to interfere with radar systems (including ship-based radar).See Olivia woolley, "renewable energy and the law of the Sea" in James Kraska and Young-Kil park (eds), Emerging Technology and the Law of the Sea (cambridge University press, 2022) 35, 53; Jennifer Salerno et al, Supporting National Environmental Policy Act Documentation for Offshore Wind Energy Development Related to Navigation (United States Department of the Interior, Bureau of Ocean energy management, 2019) 9.
Electricity Infrastructure Regulations 2022 (Cth) (OEI Regulations) provide for the issuance of individual licenses in areas of up to 700 km 2 .29While the Australian government has announced that there are six regions which it plans to open up for the conduct of offshore electricity infrastructure activities, 30 at the time of writing just one area (albeit covering 15,000 km 2 ) had been formally "declared" under the OEI Act.31 montserrat abad castelos, "marine renewable energies: Opportunities, law, and management" (2014) 45(2) Ocean Development & International Law 221, 226.
, of 19 October 1989, General Provisions on Ships' Routeing [3.10].However, if the positioning of these installations within such routing systems cannot be avoided by the coastal state, the resolution asks the coastal state to submit temporary or permanent amendments to the relevant scheme to the ImO. as proelss notes, this suggests that the article 60(7) limitation operates only insofar as it does not make the exercise of the coastal state's sovereign rights impossible: alexander proelss, "article 60" in alexander proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (verlag c H Beck oHG, 2017) 464, 479. 60ImO assembly resolution a.671(16) of 30 november 1989, Safety Zones and Safety of Navigation Around Offshore Installations and Structures [1]. 61woolley, note 24, 52. 62Scott, note 9, 101.