Transboundary Marine Spatial Planning and International Law

Daud Hassan, Tuomas Kuokkanen, Niko Soininen, Daud Hassan, Tuomas Kuokkanen, Niko Soininen

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9780415739702
• eBook ISBN: 9781317810582
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho medioambiental

Marine Spatial Planning (MSP) is an integrated and comprehensive approach to ocean governance and is used to establish a rational use of marine space and reconcile conflicting interests of its users. MSP allows both a high level of environmental protection and a wide range of human activities and emphasizes coordinated networks of national, regional and global institutions.

This book focuses on the framework of international law behind MSP and especially on the transboundary aspects of MSP. It first sets out a general framework for transboundary MSP and then moves on to compare and assess differences and similarities between different regions. Specific detailed case studies include the EU with the focus on the Baltic Sea and North Sea, the Bay of Bengal and Great Barrier Reef in Australia. The authors examine the national and regional significance of MSP from an integrated and sustainable ocean governance point of view. They also show how transboundary MSP can create opportunities and positive initiatives for cross-border cooperation and contribute to the effective protection of the regional marine environment.

Part I

Introduction

Chapter 1

Marine spatial planning as an instrument of sustainable ocean governance

Niko Soininen and Daud Hassan

Need for new forms of governance

All living organisms, including humans, rely on the Earth’s ecosystems and ecosystem services to provide such things as food, water, minerals, energy, transportation, disease management, climate regulation, spiritual fulfilment and aesthetic enjoyment.¹ The marine environment has the vital diversity of marine and estuarine animals and plants that are an integral part of the natural and cultural heritage of the earth (Kelleher and Kenchington, 1991). Oceans also present an enormous and nearly untapped reserve of genetic resources for humankind.² Despite the paramount importance of the marine environment, its condition is declining. A study by a group of leading scientists concluded that, ‘the loss of marine biodiversity is increasingly impairing the ocean’s ability to produce seafood, resist diseases, filter pollutants, maintain water quality and recover from perturbations such as over-fishing and climate change’ (Worm et al., 2006; United Nations Environmental Programme, 2010).

Over the past 50 years, humans have changed ecosystems, including marine ecosystems, more rapidly and extensively than in any comparable period in human history (World Resources Institute, 2005). Protection of the marine environment is increasingly becoming a problem as more and more people and industries compete for limited marine space and ecosystem services provided by the marine environment. The finite nature of resources is causing conflicts among human uses (human–human conflicts) as well as conflicts between human uses and the environment (human–environment conflicts). The conflicts are growing and will continue to accelerate in the future. These conflicts have mostly been dealt with reactively instead of proactively, and a holistic view which would take into account all the aspects and sectors of marine governance has been lacking.³ This has led many scholars to argue that the present situation of conflicts between human uses and between humans and the environment is caused by ‘a failure in the governance of the marine environment’ (Crowder et al., 2006; Pew Oceans Commission, 2003; U.S. Commission on Ocean Policy, 2004; Hall, 2005; Craig, 2012).⁴

Marine Spatial Planning (MSP)⁵ is a relatively new instrument designed to alleviate conflicts between human uses as well as between human uses and the marine environment. According to a popular description, MSP is ‘a process of analysing and allocating parts of three-dimensional marine spaces (or ecosystems) to specific uses or objectives, to achieve ecological, economic, and social objectives that are usually specified through a political process’ (UNESCO, 2013). It ‘allows both a high level of environmental protection and a wide range of human activities’ (Day, 2008, p. 823). MSP can play a proactive role in planning, setting out a future framework and targets for spatial use. Forward-looking planning can therefore supplement or even replace the ad hoc systems of decision-making and regulation (Crowder and Norse, 2008, pp. 772–78; Ehler and Douvere, 2009a, p. 20). This approach is aimed ‘to create and establish a more rational use of marine space and the interactions between its uses, to balance demands for development with the need to protect the environment and to achieve social and economic objectives in an open and planned way’ (UNESCO, 2013). What MSP is promising, then, is a new future-oriented planning process, which takes into account all the sectors related to the governance of marine issues and allocates marine space both geographically and temporally for different purposes (interests), which are deemed politically desirable.⁶

MSP aims at identifying, allocating⁷ and reconciling ecologically, economically and socially important uses of the marine space (Ehler and Douvere, 2009a, p. 21). It is commonly thought that identification of different uses of the marine environment and ecosystem services provided by the marine environment is needed in order to avoid unnecessary conflicts and in order to acquire the knowledge of what resources are to be allocated and the interests and uses that need reconciling.⁸ Allocation and reconciliation are necessary because the outputs of the marine environment are limited, and the marine environment cannot usually meet all of the conflicting needs simultaneously without management (ibid., p. 18).⁹ MSP can also be used to ensure more equitable access to marine resources and the benefits arising from their use. The siting of key industries could be a means for steering development, for instance in rural or structurally weak areas of coast and coastal hinterland. Indirectly, MSP can also be used to facilitate urban regeneration, such as that of former port areas (ibid., p. 5).

Currently, marine spatial planning can be described broadly as consisting of four main principles:¹⁰ (1) the principle of fit; (2) the principle of multiple use; (3) the principle of stakeholder involvement; and (4) the principle of adaptive management.¹¹ The principle of fit usually means the management tools, which aim at avoiding or minimizing conflicts or mismatches between ‘biophysical systems, socioeconomic activities and governance practices’ (Young et al., 2007, p. 27). The principle of multiple use is generally taken to mean the idea that there should be a procedure ‘that can mediate among different uses of marine resources and establish priorities when conflicts are unavoidable’ (ibid.). In some cases, this means solving a priori conflict by adjusting the activities in conflict so that they could coexist. However, in severe conflicts one has to resort to spatially separating the conflicting interests so that they do not interfere with each other (ibid., pp. 27–29). Adaptive management is usually taken to mean ‘managing according to plan by which decisions are made and modified as a function of what is known and learned about the system, including information about the effect of previous management actions’ (Parma, 1998, p. 26).

Marine spatial planning is most frequently presented to adopt an integrated approach to marine governance. Traditionally, the use of marine space has been planned on a single-sector basis and without considering either cross-sectoral objectives or a plan-based approach (Douvere et al., 2007, pp. 182–191; Young, et al., 2007, pp. 22–27; Douvere, 2008, p. 764; Ehler and Douvere, 2009a, pp.18–19).¹² This is one of the big problems that MSP tries to tackle. In order to deliver sustainable use of ecosystems, it is of primary importance that all the sectors of economic use and environmental protection as well as social issues are involved in the process (Gilliland and Laffoley, 2008, p. 788).¹³ MSP places sound science and the best available information at the heart of decision-making. It brings federal, state, local, tribal and other stakeholders together to cooperatively develop marine spatial plans, and this process is designed to decrease user conflict, improve planning and regulatory efficiencies, decrease associated costs and delays, engage affected communities and stakeholders, and preserve critical ecosystem functions and services (NOAA, 2013). Consequently, one might add the principle of integration to the list of management principles within MSP.

A comprehensive marine spatial plan is usually long-term, general in nature, policy oriented and is implemented through more detailed zoning maps, zoning regulations, environmental impact assessment and a permit system. Based on an MSP, individual permit or licensing decisions can be made based on the zoning maps that in turn reflect the vision of the comprehensive marine spatial plan (Ehler and Douvere, 2009b, p. 79). MSP has also been associated with delivering better regulation, implementing multiple legal principles of international environmental law – such as the precautionary principle¹⁴ and the polluter pays principle¹⁵ – and enabling compliance with international, regional and national obligations (Gilliland and Laffoley, 2008, pp. 788–89). MSP is not an instrument that would replace other instruments of governance, but rather it complements and is based on them. Marine spatial planning can be legally binding or a mere policy instrument. However, other instruments of governance are needed to safeguard the sustainability of the allocated activities and the effectiveness of the plan. Allocating the space is one problem, limiting the use of that space to a sustainable level quite another (Ehler and Douvere, 2007, p. 11).

MSP brings many of the marine governance instruments together in a holistic manner and integrates different governance mechanisms related to the use of marine space with different sectors¹⁶ and agencies (Ehler and Douvere, 2009a, pp. 18, 22–23).¹⁷ In this way, MSP is an instrument for managing other instruments of governance. From another perspective it can be said that the more traditional instruments are vehicles of implementation for MSP. It also gives other governance instruments a more temporal dimension and a strategic, as well as an anticipatory, nature: it is not enough merely to allocate space and reconcile conflicting interests here and now – future developments and needs also have to be taken into consideration. In a long-term evaluation, it is paramount to understand how ecosystems and different human uses of the marine environment change over time (Crowder and Norse, 2008, p. 772–778; Ehler and Douvere, 2009a, p. 20). MSP provides a means of strategic conflict resolution at a regional rather than a project level. MSP has a central co-ordinating function for which it can bring disjointed decision-making regimes under one umbrella (Heinrichs, 2007, p. 4).

Mediating between different conceptions of sustainability

Marine spatial planning is connected to the emerging concept of the ‘Blue Economy’.¹⁸ From this perspective MSP can be seen as an instrument that helps to boost economic growth and prosperity of a state, and to increase the opportunity for employment (Backer and Frias, 2012, p. 16). MSP provides certainty for investors by increasing investor confidence in regulatory processes and decision-making, especially if coupled with tools such as licensing (Ehler and Douvere, 2009a, p. 5). By facilitating predictability, competitiveness, entrepreneurship and the ability to innovate, MSP provides a means of visualizing future trends and demands and provides a framework for responding to these demands. In turn, this can ensure better access to markets, for instance by providing transport connections, links to other countries, or supporting the development of ports as a key for future competitiveness. The establishment of maritime industry clusters on the mainland and on the coast is one example of this (Heinrichs, 2007, p. 6).

One of the major issues that the Blue Economy tries to untangle and emphasise is the interdependence between the ‘ocean – urban coast – human settlement’ nexus and its effects on the economic, social and environmental sustainability of both the ocean and t...

Table of contents

• Cover Page
• Transboundary Marine Spatial Planning and International Law
• Earthscan Oceans
• Title
• Copyright
• Contents
• List of Illustrations
• Notes on Contributors
• Acknowledgements
• Abbreviations
• PART I: Introduction
• PART II: Marine Spatial Planning in a General Framework
• PART III: Marine Spatial Planning in Transboundary Contexts
• PART IV: Conclusions
• Index