Multiple uses of the sea and the growing demand for the limited resource of marine space can lead to (1) competing claims between different sectors (e.g. between sea fisheries and marine aquaculture installations or between offshore renewable energy production and maritime shipping lanes) and (2) increasing competition between sectors and environmental/ecological interests (e.g. between coastal and marine tourism and marine biodiversity conservation). In addition to competition and ambiguities caused by poor planning in general, the current situation is exacerbated by single-sector59 marine zoning (if zoning exists at all) such as no-take zones/reserves (marine protected areas for biodiversity conservation) that exclude commercial and recreational fishing sector activities (Klein et al. 2010).
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) states in its preamble60 that the problems of ocean space are closely interrelated and need to be considered as a whole. Planning of marine space is a logical way to structure the rights and obligations of EU member states and a practical tool to assist in the management of this (EU 2014c). Marine or maritime spatial planning (MSP)61 has
rapidly become the most commonly endorsed management regime for sustainable development in the marine environment (Flannery et al. 2016: 121). It is a subactivity of the overall planning activity of sea use management (Douvere and Ehler 2009). The sea use management toolkit includes, inter alia:
59 There are basically two ways of managing marine space: single-sector management (i.e. one economic sector or human activity at a time) or integrated management (i.e. across multiple sectors, activities, agencies or levels of organisation).
60 http://www.un.org/depts/los/convention_agreements/texts/unclos/preamble.htm [accessed 24/5/2016].
61 The terms ‘maritime spatial planning’ and ‘marine spatial planning’, both abbreviated to MSP, are both used in the literature. There is no appreciable difference in meaning. The European Commission (2008b: 2) favours ‘maritime’ over ‘marine’ spatial planning to underline the holistic cross-sectoral approach of the process. Other authors use ‘marine’ spatial planning (e.g. Douvere 2008, Ehler and Douvere 2009) to emphasise planning is ultimately bound by the environmental limits of the marine system (Gilbert et al. 2014). Given the IMP-dominated context of this thesis, I use ‘maritime spatial planning’.
• Ecosystem-based integrated management • Maritime spatial planning
• Comprehensive ocean zoning (applying MSP to specific places, separating incompatible uses and protecting vulnerable ecosystems from particular threats)
• Regulatory mechanisms (policies and laws set limits; licensing and permits allow activity)
• Codes of conduct
• Certifications (e.g. Marine Stewardship Council) • Economic incentives
• Decision support (including geographic information and decision support systems)
Clear spatial and temporal allocations of three-dimensional space in the marine environment can help avoid conflicts between different, potentially competing uses (or non-uses) and integrate human activities into an ecosystem approach (Douvere 2008; Douvere and Ehler 2009). As Ehler and Douvere (2009) remind us, ‘we can only plan and manage human activities in marine areas, not marine ecosystems or components of ecosystems’ (p. 18). The EU (2014c) directive establishing a framework for MSP obliges member states – in keeping with the objectives of the MSFD – to apply an ecosystem-based approach to MSP in order to ‘promote the sustainable growth of maritime economies, the sustainable development of marine areas and the sustainable use of marine resources’ (p. 137). In addition, the MSP Directive requires an ecosystem-based approach to be adapted to the specific ecosystems and other specificities of the different marine regions.
EU MSP
The IMP (European Commission 2007a) identifies MSP as a key cross-cutting policy tool for improved decision-making and furthering the objectives of integrated policy making (including implementing the Blue Growth strategy). The MSP Directive (EU 2014c) requires member states to, in a transparent way, plan
(in consultation with stakeholders, authorities and the public), establish and implement maritime spatial plans that take into account various anthropogenic pressures and land-sea interactions, and which apply a transboundary approach.62
MSP is a process of analysing the spatial and temporal distribution of human activities in marine areas and allocating parts of three-dimensional marine space (or ecosystems) to specific uses, to achieve ecological, economic and social objectives that are usually specified through a political process (Ehler and Douvere 2009: 18; UNESCO 2016). In this regard, the European Commission (2010f) considers MSP to be
‘a process for planning and regulating all human uses of the sea, which also sets out to protect the marine ecosystems in which these activities take place and safeguard marine biodiversity’ (p. 6).
MSP is designed to promote the rational organisation and multipurpose use of the sea by balancing sectoral interests and using marine space more efficiently, thereby contributing to sustainable development. MSP provides a framework for arbitrating between competing human activities and managing their impact on the marine environment (European Commission 2008b). In addition, MSP ‘should provide enhanced legal certainty to those who are developing activities at sea’ (European Commission 2010f: 6). Indeed, the European Commission’s emphasis is on the role of MSP in creating new opportunities for economic ‘blue growth’ and job creation in Europe by providing greater confidence and certainty for investors, equal opportunities for all maritime sectors and environmental sustainability (European Commission 2010f; EU 2014c).
The MSP Directive provides an EU-wide framework for MSP. Member states remain responsible for designing and determining the format and content of maritime spatial plans within their marine waters (EU 2014c). To ensure consistency and legal clarity, the directive requires member states to design the
62 For effective cross-border cooperation, member states are obliged to consult and coordinate their maritime spatial plans with relevant member states and cooperate with third-country authorities in the marine region concerned (EU 2014c: 138).
geographical scope of MSP to conform with existing EU legislative instruments and international maritime law, in particular UNCLOS. The MSP Directive promotes synergy (and, where relevant, coordination of timelines) with the aims of other EU directives including the MSFD, Water Framework Directive, Birds Directive and Habitats Directive); the CFP reform framework regulation on the conservation and sustainable exploitation of fisheries resources (Council Regulation 2371/2002); various European Commission communications (e.g. the EU Strategy on adaptation to climate change63); as well as with the relevant aims of EU regional policy ‘including the sea-basin and macro-regional strategies’ (EU 2014c: 137).
EU ICZM
The European Commission (2013a) communication that led to the MSP Directive had consisted of a proposal to establish a framework for both MSP and integrated coastal management or ICZM. According to the EU-funded Mare Nostrum (2014) project, the intention was to require member states to prepare ICZM strategies for coastal planning and management in addition to the maritime spatial plans. However, the adopted directive text (EU 2014c) contained only the MSP component, along with a general stipulation that member states’ MSP processes ‘should take into account land-sea interactions’ (pp. 136 and 138). The European Commission’s press release of 17 April 201464 made no explicit mention of the fate of the original ICZM component of the directive. Mare Nostrum (2014) explains the reasoning as follows:
‘According to Mare Nostrum Project Head Prof. Rachelle Alterman, the ability of member states to reach an agreement on an ICZM directive has been in doubt for some time, since under the European Union’s existing legal structures, policy areas such as land-use planning, property rights and building permits are under the authority of member states alone, with little intervention by the EU. The willingness to change that is apparently not yet ripe, she added.
63 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: An EU Strategy on adaptation to climate change. COM(2013) 216 final, 16/4/2013. Brussels: European Commission. 64 http://europa.eu/rapid/press-release_IP-14-459_en.htm
Pablo Gorostiza Frieyro of Spain’s Port Institute for Studies and Cooperation in the Valencian Region (FEPORTS), a Mare Nostrum partner, said that opposition to EU legislation on coastal management had come mainly from the regional level. He pointed to a position paper published last year by the Committee of the Regions, a group that represents the interests of regional and local governments in the EU legislative process, which argued that a directive on ICZM would impinge upon regional and local governments’ spatial planning powers.’ Meanwhile, the EU Recommendation on ICZM (EU 2002a) and the EU-ratified Protocol to the Barcelona Convention on ICZM in the Mediterranean (EU 2009) remain the principle guidance to member states regarding integrated coastal planning and management for sustainable coastal development. As Mare Nostrum (2014) point out, such norms are largely flexible and provide plenty of room for local discretion; there are no direct mechanisms to enforce implementation of coastal management strategies as there would have been under the European Commission’s intended coherent framework directive for MSP and ICZM for improving land-sea interface planning and management. The MSP Directive merely states that MSP ‘should aim to integrate the maritime dimension of some coastal uses or activities and their impacts’ (p. 138). Nevertheless, the text is clear that the MSP Directive
‘does not interfere with Member States’ competence for town and country planning, including any terrestrial or land spatial planning system used to plan how land and coastal zone should be used. If Member States apply terrestrial planning to coastal waters or parts thereof, this Directive should not apply to those waters’ (EU 2014c: 138).