wind farms and other energy—generating projects, zones for aquaculture projects,
marine protected areas, safety zones around ship wrecks and offshore installations.
This is besides construction activities by coastal states such as building artificial
islands and jetties, expanding harbours, etc. Ships taking passage through territorial
seas have no option, but to comply with such regulatory provisions of coastal states.
But, it must be emphasised here that not all marine spatial planning areas are
necessarily disadvantageous to the exercise of innocent passage. Sea lanes, traffic
separation schemes and routeing measures
42 serve to enhance safety of navigation,
including for ships undertaking innocent passage.
43 The Maritime Spatial Planning
for the German Baltic Sea EEZ which came into effect on December 10, 2009 as a
legally binding statutory ordinance
44 serves as a good example for emulation.
Following analysis of ship traffic based on Automatic Identification System (AIS)
information, Germany has designated the main shipping routes as priority areas
45
that must be kept free from obstacles such as wind farms. Priority areas are similarly
designated for offshore wind energy so as to not conflict with other uses and the
marine environment.
46 The bottom line is that shipping is the lifeblood of the global
economy and, therefore, recognised shipping lanes not only deserve to be kept free
from obstacles when designating reservation areas but also merit special weight in
the balancing of competing interests. Rather than traffic regulation, maritime spatial
planning efforts should be directed towards protection
47 of recognised traffic routes.
4.2 Spatial Dimension: Environmental Attribution
The set of derogations from the UNCLOS regime are expanding, and not limited to
the right of innocent passage alone; moreover, they appear to be burgeoning with
each passing day. Two examples cited by Breide and Saunders
48 are illustrative of
the case. The first example of derogation is the requirements imposed by the 2005
EU Directive consequent to the sinking of the Prestige in 2002, which is directly in
conflict with the UNCLOS regime for pollution control. EU Directive 2005/35 on
ship-source pollution expands potential liability to additional parties beyond those
42 Ten routeing measures are relevant for MSP—traffic separation schemes, traffic lanes, separation
zones, roundabouts, inshore traffic zones, recommended routes, deep-water routes, precautionary
areas and areas to be avoided (Maes 2008, pp. 797–810).
43 Maes (2008), pp. 797–810.
44 http://www.bsh.de/en/Marine_uses/Spatial_Planning_in_the_German_EEZ/index.jsp.
45 PartiSEApate (2013).
46 For example, France is establishing offshore wind farms in its territorial seas, under the SaintNazaire, Fécamp and Courseulles-sur-Mer projects, except in the Mediterranean Sea where the
floating offshore wind projects will take place in the EEZ, given significant conflicts of use in the
territorial sea (Michalak 2018, p. 456).
47 Nico Nolte. Legal aspects. BSH.
48 Breide and Saunders (2008).
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
235
marine protected areas, safety zones around ship wrecks and offshore installations.
This is besides construction activities by coastal states such as building artificial
islands and jetties, expanding harbours, etc. Ships taking passage through territorial
seas have no option, but to comply with such regulatory provisions of coastal states.
But, it must be emphasised here that not all marine spatial planning areas are
necessarily disadvantageous to the exercise of innocent passage. Sea lanes, traffic
separation schemes and routeing measures
42 serve to enhance safety of navigation,
including for ships undertaking innocent passage.
43 The Maritime Spatial Planning
for the German Baltic Sea EEZ which came into effect on December 10, 2009 as a
legally binding statutory ordinance
44 serves as a good example for emulation.
Following analysis of ship traffic based on Automatic Identification System (AIS)
information, Germany has designated the main shipping routes as priority areas
45
that must be kept free from obstacles such as wind farms. Priority areas are similarly
designated for offshore wind energy so as to not conflict with other uses and the
marine environment.
46 The bottom line is that shipping is the lifeblood of the global
economy and, therefore, recognised shipping lanes not only deserve to be kept free
from obstacles when designating reservation areas but also merit special weight in
the balancing of competing interests. Rather than traffic regulation, maritime spatial
planning efforts should be directed towards protection
47 of recognised traffic routes.
4.2 Spatial Dimension: Environmental Attribution
The set of derogations from the UNCLOS regime are expanding, and not limited to
the right of innocent passage alone; moreover, they appear to be burgeoning with
each passing day. Two examples cited by Breide and Saunders
48 are illustrative of
the case. The first example of derogation is the requirements imposed by the 2005
EU Directive consequent to the sinking of the Prestige in 2002, which is directly in
conflict with the UNCLOS regime for pollution control. EU Directive 2005/35 on
ship-source pollution expands potential liability to additional parties beyond those
42 Ten routeing measures are relevant for MSP—traffic separation schemes, traffic lanes, separation
zones, roundabouts, inshore traffic zones, recommended routes, deep-water routes, precautionary
areas and areas to be avoided (Maes 2008, pp. 797–810).
43 Maes (2008), pp. 797–810.
44 http://www.bsh.de/en/Marine_uses/Spatial_Planning_in_the_German_EEZ/index.jsp.
45 PartiSEApate (2013).
46 For example, France is establishing offshore wind farms in its territorial seas, under the SaintNazaire, Fécamp and Courseulles-sur-Mer projects, except in the Mediterranean Sea where the
floating offshore wind projects will take place in the EEZ, given significant conflicts of use in the
territorial sea (Michalak 2018, p. 456).
47 Nico Nolte. Legal aspects. BSH.
48 Breide and Saunders (2008).
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
235