Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 241
Offshore Wind Worldwide 2023
6. REAL ESTATE
6.1 Rights over land to be secured
The rights needed to be obtained by an RE
developer depend on the location of the
OSW plant and its grid connection, whether
it be the internal waters and territorial sea
of the Philippines (collectively, Philippine
waters), or its exclusive economic zone (EEZ).
The Philippine waters are:
(a) the internal waters, which are those
within the archipelagic baselines of the
Philippines (baselines);94 and
(b) the territorial sea, which is the open sea
beside shores up to a maximum of 12
nautical miles counted from the baselines.95
The Philippines has sovereignty and jurisdiction over these Philippine waters.96
On the other hand, the EEZ is the open sea
of 200 nautical miles from the baselines,97
where the Philippines has "sovereign rights
for the purpose of exploring and exploiting,
conserving and managing the natural resources, whether living or non-living, of the
waters superjacent to the seabed and of
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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."98 Other states enjoy
freedom of navigation, overflight, freedom
to lay submarine cables and pipelines, and
other related acts that are internationally
recognized as lawful uses of the sea.99
There are also other rights needed to be
obtained by an RE developer for its grid
connection or transmission lines built on
non-water-related lands, which may either
be private or of the public domain.
6.2 OSW plant and grid connection in
Philippine waters
(a) Foreshore Lease Agreement
Foreshore lands are that part of land
immediately in front of the shore, which
is between high and low water marks and
alternately covered with water and left
dry by the flux and reflux of the tides.
The right to use foreshore lands for an
OSW plant by a private party is granted
through a lease contract called the Foreshore Lease Agreement (FLA).100 This
is a contract between the grantee and
94 1987 Constitution, Article I.
95 United Nations Convention on the Law of the Sea [hereinafter referred to as "UNCLOS"], Article 3.
96 UNCLOS, Article 2; 1987 Constitution, Article I.
97 UNCLOS, Article 57.
98 UNCLOS, Article 56(1)(a).
99 UNCLOS, Article 58, states that "[i]n the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions
of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other
internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and
pipelines, and compatible with the other provisions of this Convention…".
100 Public Land Act, Section 61 in relation to Section 59 and 60; Department of Environment and Natural Resources [hereinafter referred to as "DENR"],
Administrative Order No. 2004-24 [hereinafter referred to as "DENR FLA Rules"].
