European Commission. Legal aspects of maritime spatial planning. Summary report

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1 European Commission SOCIO-ECONOMIC STUDIES IN THE FIELD OF THE INTEGRATED MARITIME POLICY FOR THE EUROPEAN UNION Legal aspects of maritime spatial planning Summary report

2 Socio-economic studies in the field of the Integrated Maritime Policy for the European Union The role of Maritime Clusters to enhance the strength and development in European maritime sectors Executive summary Legal aspects of maritime monitoring & surveillance data Summary report Legal aspects of marine environmental data Summary report Legal aspects of maritime spatial planning Summary report The economics of climate change adaptation in EU coastals areas Summary report To be published: Study on tourist facilities in port Legal aspects of shipping in Arctic EU role in international organisations Europe Direct is a service to help you find answers to your questions about the European Union. Freephone number (*): (*) Certain mobile telephone operators do not allow access to numbers or these calls may be billed. Manuscript completed in October More information on the European Union is available on the Internet ( Cataloguing data can be found at the end of this publication. Luxembourg: Office for Official Publications of the European Communities, 2009 ISBN European Communities, 2009 The content of this report does not reflect the official opinion of the European Communities. Responsibility for the information and views expressed therein lies entirely with the authors. Reproduction is authorised provided the source is acknowledged. Cover pictures: istock / Stephen Collins (DEFRA) / MAES F., SCHRIJVERS J. & VANHULLE A., (ed.)(2005), A Flood of Space. Towards a Spatial Structure Plan for the Sustainable Management of the North Sea, Brussels, Belgian Science Policy, p Printed in Belgium PRINTED ON WHITE CHLORINE-FREE PAPER

3 European Commission Legal aspects of maritime spatial planning Summary report Directorate-General for Maritime Affairs and Fisheries

4 Study done on behalf of the European Commission Directorate-General for Maritime Affairs and Fisheries MARE.E.1 Maritime Policy: Baltic Sea, North Sea and Landlocked Member States European Commission B-1049 Brussels Tel: MARE-E1@ec.europa.eu Executed by Marine Resources Assessment Group Ltd. 18, Queen Street London W1J 5PN United Kingdom Tel: +44 (0) Fax: +44 (0) website:

5 1 Introduction Legal constraints on MSP imposed by international law and EC law International law: the Law of the Sea European Community Law Constraints on specific activities and uses Navigation Fisheries Marine protected areas (MPAs) Laying of pipelines and cables Exploitation of non-living natural marine resources including oil and gas Extraction of sand and gravel Dumping Power generation Mariculture Military activities Carbon capture storage (CCS) Marine scientific research Wrecks and other historic features Recreation and tourism Places of refuge Horizontal, procedural and other constraints International agreements EC legislation Conclusion Measuring progress towards MSP MSP in specific Member States France Germany Greece Poland United Kingdom Relationship between MSP and governance Conclusions...14

6 1. Introduction Increased activity within Europe s marine waters has led inevitably to growing competition for finite maritime space. Competing claims from a range of activities, including fisheries, navigation, oil and gas extraction, and wind and wave energy generation are accompanied by increased pressure on vital marine ecosystems and habitats. These various activities are regulated on a sectoral basis by different agencies on the basis of separate laws. Without the means to coordinate a common approach to the allocation of maritime space among different sectors the problems of overlap and conflict between sectors and individual stakeholders is evident. There are also cross-border issues as developments in the maritime area of one country may well have impacts for another. The relatively new notion of Maritime Spatial Planning (MSP) has emerged as a means of resolving inter-sectoral and cross-border conflicts over maritime space. The background to this Study is the ongoing development of the European Union (EU) Maritime Policy. The year-long public consultation exercise for the Maritime Policy revealed broad stakeholder support for the development of MSP in European Waters. At the outset it is important to note that views vary greatly as to the concept of MSP, its scope, links to existing approaches (e.g. integrated coastal zone management (ICZM) and the Marine Strategy Framework Directive) and indeed even as to the term to be used for MSP. While there certainly are some similarities with land use planning (both make use of plans to reconcile competing claims for space), there are also significant differences including: (a) the dimensional aspect as MSP must address activities on the seabed, in the water column and on the surface; (b) the mobile nature of many maritime activities (such as fishing and navigation) which use space but not permanent structures; and (c) the fact that land use planning takes place against a common background of private land tenure rights which do not have a maritime equivalent. Instead maritime activities are regulated through a range of sectoral laws, plans and licences/permits. The objectives of this Study are: - to examine the constraints imposed on MSP by international and European Community (EC) law relating to a range of specific activities; - to propose a set of indicators to assist in measuring progress towards MSP; - to describe practices for planning and licensing of marine activities in a sample of coastal Member States; and - to assess the relationship between the type of constitutional governance structure of a country and its ability to develop effective MSP. Finally, some preliminary conclusions are developed. 1

7 2. Legal constraints on MSP imposed by international law and EC law 2.1 International law: the Law of the Sea International law is the body of law that regulates the rights and duties of States and other actors, such as international organisations, recognised by international law. The Law of the Sea is the branch of international law that is concerned with the sea and maritime affairs. The sources of the Law of the Sea include customary international law as well as a range of conventions, treaties and agreements, the most important of which is the 1982 United Nations Convention on the Law of the Sea (LOSC). The elements of LOSC that are most relevant to this Study are generally held to be declaratory of customary international law. The scope of LOSC is extremely broad. It seeks to reconcile a range of competing interests including the rights of coastal States, land-locked States and flag States. Part of this balance is achieved through the division of the sea into maritime zones. Although LOSC does not contain any specific provisions on MSP, the ability of coastal States to engage in MSP takes place in the context of these different zones. Internal waters are waters landward of the baseline of the territorial sea (described in the next paragraph) and can include bays, estuaries and ports. A coastal State has full sovereignty over its internal waters and can, in most circumstances, restrict entry into them. Consequently a coastal State enjoys the widest possible freedom to undertake MSP within its internal waters. Figure 1 Maritime zones 1 Every coastal State has the right to a territorial sea up to a limit of 12 nautical miles (nm) from a baseline (normally the low water line). A coastal State has sovereignty over its territorial sea, subject to the right of innocent passage by foreign vessels and special rules for certain international straits. The effect is that navigation is the main constraint on MSP in the territorial sea. Beyond the territorial sea a coastal State may claim an Exclusive Economic Zone (EEZ) that can extend up to 200 nm from the baseline for the territorial sea. Within its EEZ a coastal State has sovereign rights for the purposes of exploring, exploiting, conserving and managing living and nonliving natural resources (e.g. fish and hydrocarbons) and other activities for the economic exploitation and exploration of the zone (such as the production of energy from the water, currents and winds) as 1 Based on the diagram contained in Churchill, R.R. & Lowe, A.V. The Law of the Sea, 3rd ed, Manchester, 1999 at page 25. 2

8 well as jurisdiction with regard to artificial islands, installations and structures, marine scientific research and the protection of the environment. The competence of a coastal State to undertake MSP in its EEZ is therefore restricted to these issues and may not derogate from the rights enjoyed by other States in such waters including the freedom of navigation and the right to lay submarine cables. Within the Mediterranean Sea, the Member States have not claimed EEZs, although several Member States have established different types of zones for varying purposes. A Member State may undertake MSP within any such zone in connection with the purpose(s) for which the zone was created (which in any event may not go beyond the purposes for which an EEZ can be established). A coastal State has a continental shelf comprising the soil and sub-soil of the submarine areas that extend beyond its territorial sea to the outer end of the continental shelf or up to 200 nm from the baseline if the continental shelf does not extend that far. In other words some States may be entitled to an outer continental shelf that extends beyond 200 nm. A coastal State has sovereign rights for the purpose of exploring its continental shelf and exploiting its natural resources (such as the harvesting of sedentary fish species, drilling, tunnelling etc. As with the EEZ, something less than full sovereignty is conferred and it follows that the right of a coastal State to undertake MSP in respect of its continental shelf is restricted to activities that relate to the exercise of its sovereign rights. Finally, no state may claim sovereignty over the high seas, the international commons beyond the EEZ, and consequently no coastal State has the requisite legal capacity to give unilateral effect to MSP in the high seas: the most that any State acting alone can do is to regulate the activities on the high seas of its nationals and vessels that fly its flag. The legal regime created by LOSC is supplemented by a number of non-binding instruments such as codes of conduct as well as a range of international agreements of both global and regional application. 2.2 European Community Law The EC is party to LOSC (as are all of the Member States) and must respect and give effect to its provisions. Furthermore case law of the European Court of Justice has confirmed that EC law applies throughout Member State EEZs in European waters. While EC law does not directly address MSP, as will be seen it is nevertheless relevant to this topic primarily as regards fisheries and environmental protection within the EEZs of the Member States and on the high seas as regards the conduct of Member State nationals and ships flying their flags. 2.3 Constraints on specific activities and uses Navigation As regards the safety of navigation, LOSC does not set out binding rules but rather identifies where authority to make such rules lies. Although not named as such, the International Maritime Organisation (IMO), an agency of the United Nations, is recognised to be this body. The IMO Assembly in 1997 delegated the Maritime Safety Committee to act on the IMO s behalf in these matters. The 1974 International Convention for the Safety of Life at Sea (SOLAS) forms the legal basis of ship routeing measures in the EEZ and on the high seas, including a minority that have mandatory, as opposed to the more common, recommendatory character. More than 120 traffic separation schemes have been adopted to date within European waters. Moreover, in the EEZ the freedom of navigation can only be derogated from by the coastal State as a result of the exercise of the sovereign rights to exploit the resources of the EEZ or of the exercise of its jurisdiction, such as the creation of artificial islands, installations and structures and of safety zones around offshore installations. Those installations and safety zones may not however be established where they could interfere with recognized sea lanes essential to international navigation. 3

9 It should be noted that in the context of rules on the control of pollution of the marine environment, coastal States are entitled to take measures restricting navigation but are not entitled to legislate unilaterally on navigation even if this is necessary for the protection of sensitive marine areas. By contrast, in its territorial sea (other than in straits used for international navigation) a coastal State itself can impose the use of specified sea lanes and traffic separation schemes. When establishing such measures the coastal State is obliged to take into account the recommendations of the IMO, customary practices and the nature and density of the traffic. The EC has adopted a number of directives in order to transpose international agreements on security of shipping traffic or taken steps of its own to enhance safety of ships. However these instruments have no direct bearing on MSP, with the exception of the Vessel Traffic Management Directive 2002/59/EC (the VTM Directive ) which inter alia requires Member States to draw up plans whereby ships in distress may, if the situation so requires, be given refuge in their ports or any other sheltered area in the best conditions possible Fisheries The basic regime for fisheries under international law is set out in LOSC which expressly recognises the sovereignty of the coastal State over living marine resources in its territorial waters and sovereign rights over such resources in the EEZ. Within such waters a coastal State can regulate access largely, though not entirely, as it sees fit. While LOSC recognises the freedom of fishing enjoyed by all States on the high seas it also requires them to cooperate to ensure the conservation and management of high seas living marine resources. To this end, a number of agreements have been concluded to establish regional fisheries management organisations to jointly manage such stocks, although management measures taken by such bodies are only directly binding on vessels that fly the flags of States that are party to those agreements. The EU and Member States are party to a number of such agreements. This basic regime has been supplemented by the 1995 UN Fish Stocks Agreement that is concerned with the management of straddling stocks (those which occur in both the EEZ and the adjacent high seas) and highly migratory species. At EC level, the management of fisheries resources is governed by the Common Fisheries Policy (CFP) which applies to community waters essentially the EEZ and territorial seas in Europe - and community fishing vessels: vessels which fly the flag of a Member State. The legal regime for the CFP is contained in a large number of regulations. Council Regulation (EC) No 2371/2002 establishes a legal basis for the adoption of measures concerning the conservation and management of fisheries resources and the limitation of environmental impacts. It also endorses the ecosystem approach. The net effect is that with the exception of the territorial sea where Member States may take nondiscriminatory measure for conservation and management including the zoning of no-take zones there is little scope for MSP in terms of commercial fishing. 4

10 2.3.3 Marine protected areas (MPAs) While LOSC does not require the establishment of MPAs it is the source of the authority of States to create and enforce them. LOSC imposes a number of general obligations on States to protect the marine environment in sea areas under their jurisdiction as well as, in principle, the high seas, including measures to protect ecosystems and habitats. The option of declaring specific areas in which certain activities may be prohibited or restricted is posited, subject to the restriction against unjustifiable interference with the activities of other States in the exercise of rights and duties conferred by LOSC. The fact that no State may claim sovereignty over high seas by definition precludes the unilateral declaration by a State (or group of States) of an enforceable MPA in the high seas. Nevertheless informed opinion now takes issue with the former assumption that high seas MPAs are impossible per se as it is open to States: (a) to agree among themselves to establish high seas MPAs (even though enforcement against (the vessels of) third States cannot be undertaken); (b) to adopt measures in the form of recommendations; or (c) to act through the IMO to declare an area of the high seas to be a Particularly Sensitive Sea Area (PSSA). Furthermore, absent obligations to the contrary, States may enforce high seas MPAs by making access to their own ports conditional on compliance with applicable MPA rules, although this approach may provoke controversy among those with a freedom of navigation mindset. Two instruments adopted under the auspices of IMO are of particular relevance. The International Convention for the Prevention of Pollution from Ships (MARPOL) defines certain special areas in which mandatory methods for pollution control are required and MARPOL also provides the legal basis for the declaration of PSSAs. Under the Regional Seas Programme of the United Nations Environment Programme (UNEP), the Convention for the Protection of the Marine Environment and Coastal Regions of the Mediterranean (the Barcelona Convention ) is of relevance to this Study. The 1995 Protocol to the Barcelona Convention Concerning Mediterranean Specially Protected Areas and Biological Diversity in the Mediterranean recommends the establishment of MPAs in the Mediterranean. Other relevant regional agreements include the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) and the Convention on the Protection of the Marine Environment of the Baltic Sea Area (the Helsinki Convention ). Both conventions are strong drivers for the establishment of MPAs. A major constraint as regards the high seas persists due to the incomplete international legal framework. For a long time the consensus has been that there was neither a mandate at the appropriate level i.e. in the context of LOSC nor a process for the designation of integrated MPAs, for the purpose of the conservation and sustainable use of marine biodiversity. However, efforts in particular in the context of the Convention on Biological Diversity (CBD) will have to be closely watched. Two EC directives contain legal tools that could be used for the establishment of MPAs. These are Council Directive of 2 April 1979 on the conservation of wild birds (79/409/EEC) (the Birds Directive ) and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive ). These directives also apply in the EEZ and each Member State is required to establish a national list of sites in proportion to the representation within its territory of the natural habitat types and the habitats of species listed in the Directives. Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (the Marine Strategy Framework Directive ) reinforces this requirement as Member States will be required to draw up national action plans with marine protected areas being an essential part of it. However with respect to the EEZ there appears to be scope for minimizing competition or overlap between existing legal regimes on nature protection (competence of Member States) on the one hand and fisheries (competence of the EC) on the other in order to provide for the designation of integrated MPAs. 5

11 2.3.4 Laying of pipelines and cables While Article 58 of LOSC expressly recognises the freedom of all States to lay submarine cables and pipelines within the EEZ, Article 79(3) provides that the delineation of the course of such pipelines on the continental shelf is subject to the consent of the coastal State. In other words the coastal State has limited spatial planning powers over the laying of pipelines and cables in contrast to the full range of planning powers over such activities within the territorial sea Exploitation of non-living natural marine resources including oil and gas Deriving from their sovereignty over their territorial seas and the sovereign rights that they hold over their EEZ and continental shelf, coastal States face few if any constraints over the spatial planning of oil and gas extraction and the exploitation of other non-living natural resources. Such rights are recognised in the Hydrocarbons Directive 94/22/EC which seeks to ensure that access to such resources, through licensing, are non-discriminatory. The directive also specifies that if geographical areas for prospecting, exploration and production of hydrocarbons are not delimited on the basis of a prior geometric division of territory, they should be determined on the basis of technical and economic criteria. HELCOM Recommendation 18(2) on offshore activities dealing with installations relating to the exploration and exploitation of the seabed and its subsoil calls for the exclusion of such activities within the Baltic Sea Protected Areas and for them to be subject to prior environmental impact assessment (EIA). Similarly the Offshore Protocol of the Barcelona Convention requires the establishment of a licensing regime for such activities in the Mediterranean Sea Extraction of sand and gravel The basic regime under LOSC regarding non-living natural resources also applies to sand and gravel extraction. The only relevant regional instrument is HELCOM Recommendation 19/1 on Marine Sediment Extraction in the Baltic Sea Area which sets out a number of guidelines Dumping LOSC imposes general duties on States to adopt legislation and take such other measures as may be necessary to prevent, reduce and control pollution as a result of marine dumping and to ensure that any such dumping is authorised. It also foresees that dumping may not be carried out within the territorial sea and EEZ without the permission of the coastal State. It also grants coastal States the right to enforce generally accepted international rules and standards against foreign vessels. In terms of regional agreements, OSPAR imposes a general obligation on the Parties to take all possible steps to prevent and reduce pollution as a result of dumping at sea and prohibits the dumping of wastes other than those listed in an Annex. Furthermore, the dumping of certain wastes or matter is subject to authorisation or regulation. The Helsinki Convention permits the dumping of dredged material at sea on the basis of an appropriate authorisation although certain specific guidelines must be followed if the material contains specified harmful substances. At the international level, the original 1972 London Convention prohibited the dumping of certain types of waste (in category I), required a special permit for the dumping of wastes listed in category II, and a general permit for wastes listed in category III. The 1996 Protocol was agreed to further the London Convention and eventually replace it. A number of Member States are party to the protocol which prohibits all waste incineration at sea, waste storage on the seabed and the dumping of all other waste apart from waste types contained in a reverse list of substances that may be dumped at sea. At the EC level, the principal instrument is the Waste Framework Directive 75/442/EEC (as amended) which also applies to the disposal of wastes to the ocean or seas including seabed insertion. 6

12 2.3.8 Power generation The basic maritime zoning provisions of LOSC conferring sovereignty on a coastal State within its territorial sea and sovereign rights with regard to inter alia activities for economic exploitation and the production of energy from the water, currents and winds confer broad powers on coastal States to undertake MSP in respect of power generation. In addition, LOSC confers on the coastal State the exclusive right to construct artificial islands and other structures within such waters which might be necessary for power generation, although these may not interfere with recognised sea lanes essential to international navigation. At the regional level, OSPAR has issued guidance on the environmental impact and location of wind farms Mariculture No specific reference is made to mariculture in LOSC. The general regime also applies to rights and obligations associated with this activity. For example, whenever establishing special areas for mariculture purposes in the EEZ, the coastal State is required to have due regard to the freedoms of navigation and communications. However, as mariculture is actually practised primarily in proximity to the coast, the regime applying to the territorial sea is of most interest. Subject to constraints spelled out above (see 2.3.1) the coastal State may regulate to keep passing traffic away from any fish farms Military activities Within its territorial sea a coastal State may temporarily suspend the right of innocent passage in order to undertake military exercises provided prior notice is given. Thus LOSC does not permit the permanent zoning of special areas for military activities pursuant to MSP. Opinion is split as to the lawfulness of military exercises undertaken by a third country in the EEZ without the consent of the relevant coastal State. However, the ability of a coastal State to regulate foreign military exercises within such waters is negligible as provisions concerning the protection of the marine environment such as routeing measures may not be extended to foreign warships Carbon capture storage (CCS) For a long time the legal regime for CCS in subseabed formations has been unclear. Neither LOSC nor the London Convention directly addressed the issue. However, a 1996 amendment to the latter included carbon dioxide for CCS into the reverse list of wastes described above. This amendment enables CCS beneath the seabed provided certain standards are complied with. In June 2007 the relevant annexes to the OSPAR Convention were amended and when they enter into force this will allow for sub-seabed CCS subject to a number of specified conditions and procedures. Finally, in January 2008 the European Commission proposed a new directive to create a legal framework for CCS within the EC addressing inter alia site selection, exploration permits as well as providing for a non-binding review procedure for draft permit conditions and the designation of national competent authorities. The draft directive also proposes that CCS sites will be subject to EIA Marine scientific research LOSC expressly recognises the exclusive rights of coastal States to regulate, authorize and conduct marine scientific research in their territorial sea. Within the EEZ and on the continental shelf the coastal State also has the right to regulate marine scientific research by other countries and international organisations but may only withhold its consent under specific conditions laid down in Article 246(5). A number of other agreements concerned with the protection of the marine environment, such as the Berne Convention, provide for derogations from protection measures in defined circumstances for the purpose of marine scientific research. 7

13 Wrecks and other historic features LOSC imposes a general duty on States to protect archaeological and historical objects found at sea and to collaborate to this end, although this duty does not affect the rights of identifiable owners, the law of salvage or laws and practice with respect to cultural exchanges. Somewhat anomalously, the coastal State is given a jurisdiction of 24 nm from the baseline as far as controlling traffic in underwater cultural heritage objects, but LOSC is silent as to the EEZ and continental shelf. The 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage, which is not yet in force, is intended to enable States to effectively protect such heritage. It proposes in situ conservation as the primary option and confers exclusive regulatory rights on coastal States in respect of activities within their territorial seas. A specific international cooperation regime is foreseen for heritage within the EEZ and on the continental shelf Recreation and tourism There are no specific rules on tourism as such under international or EC law that have an impact on MSP Places of refuge Customary international law recognises a general obligation to open otherwise closed ports to vessels in distress. A limited number of international agreements contain provisions on places of refuge and, while these do not necessarily amount to a general obligation on coastal States to accommodate ships in distress, their combined effect may be to limit their range of options for dealing with such scenarios. Furthermore, the VTM Directive requires Member States to establish plans for the identification of places of refuge for ships in distress. 2.4 Horizontal, procedural and other constraints International agreements The 1991 Espoo Convention, to which the EC and all Member States are party, requires the environmental impact of certain listed activities that are likely to cause a significant transboundary impact to be assessed at an early stage of planning and before a decision is taken to authorise them. Furthermore it imposes a general obligation on contracting parties to notify and consult each other with regard to major projects likely to have significant adverse transboundary impacts. A number of the listed activities (e.g. pipelines, ports) have implications for MSP. In 2003 a protocol on Strategic Environmental Assessment (SEA) was adopted which, once in force, will require the parties to evaluate the environmental consequences of their draft plans and programmes. The OSPAR convention does not specifically refer to EIA but does require consultation in cases where pollution from one party may prejudice the interests of other parties. The Barcelona Convention is also silent as regards EIA, however the Offshore Protocol encourages the use of this tool while the new ICZM Protocol requires it EC legislation The SEA Directive 2001/42/EC requires an assessment of the effects of certain plans and programmes which are likely to have significant effects on the environment. Authorities that prepare and/or adopt such plans or programmes must prepare a report on their likely significant environmental effects and alternatives, propose mitigation measures, consult environmental authorities and the public, and take the report and the results of the consultation into account during the preparation process and before the plan or programme is adopted. Information must also be made available on the plan or programme as adopted and how the environmental assessment was taken into account. The SEA Directive applies to plans and programmes which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, and which set the framework for future development consent of projects listed in Annexes I and II to the EIA Directive. It also contains specific provisions on transboundary consultation. 8

14 The EIA Directive 85/337/EC requires an assessment of the environmental impacts of certain types of project that are likely, due inter alia to their nature, size or location, to have significant effects on the environment before consent is given. EIA is mandatory for projects included in Annex I of the directive, while for those listed in Annex II determination of the need for EIA takes place on a case by case basis. Among the projects listed in these annexes are a number that may take place in the maritime area. The Habitats Directive provides for a special impact assessment procedure in connection with the compatibility of plans and projects with the conservation objectives of sites protected under its auspices. Finally, the broad scope of the Water Framework Directive 2000/60/EC means that it has a number of implications for MSP in terms of the zoning and protection of coastal water bodies, the relationship between MSP and the river basin management plans that it calls for and the relationship between the administrative arrangements necessary for the implementation of the directive and those relating to MSP. 2.5 Conclusion In conclusion, Member States encounter relatively few constraints under international or EC law with regard to MSP in their internal waters and territorial seas. Subject to the duty not to hamper the innocent passage of foreign vessels, MSP may involve the prohibition of fishing as well as the regulation of navigation subject to consultation with the IMO. Consultation with neighbouring States will also be necessary in cases where plans or projects may result in significant adverse environmental impacts across borders. Within the EEZ, MSP may be undertaken with regard to the most important marine-related activities including the exploration, exploitation, conservation and management of living and non-living natural resources. Constraints on MSP derive from the freedom of navigation of other States as well as the laying of pipelines. However, within the EC, commercial fishing in the EEZ is regulated pursuant to the CFP and the extent to which Member States can regulate fisheries conservation aspects in the context of the designation of MPAs for nature conservation is an issue in need of further clarification. With regard to their continental shelves, Member States may undertake spatial planning measures relating to the exercise of their sovereign rights over living and non-living natural resources on the seabed. Again there are a number of exceptions as regards, for example, navigation and the laying of cables. With regard to the high seas there is virtually no scope for MSP as such by individual States: the planning of maritime space on the high seas requires international cooperation. Finally, horizontal and procedural requirements under international and EC law have a direct impact on how MSP is undertaken. 9

15 3. Measuring progress towards MSP In the absence of universally agreed definitions for MSP, let alone a binding legal instrument at EC level, how can the relative progress of MSP be assessed? In order to assist in this respect a simple set of draft indicators are proposed together with instructions for their use. As progress can only be measured by reference to an objective, for the purpose of this exercise, the following general overall objective of MSP in the European context is proposed: MSP should ensure the sustainable use and development of maritime areas under Member State jurisdiction, with the notion of sustainability including ecological, social and economic aspects. In order to achieve this overall objective, the following sub-objectives are proposed: - to prevent or reduce conflict between different sectoral interests in the maritime areas; - to simplify the process of permitting and licensing activities that take place within the maritime area; - to take account of the fact that Europe s maritime spaces are shared between different jurisdictions (at both inter-state and intra-state levels); and - to establish transparent and accountable decision making mechanisms that enable the effective coordination or integration of different sectoral interests, including the environment. From the outset it must be acknowledged that the development of reliable indicators is not an easy task. Simple yes/no indicators can by their nature give little idea of relative progress. Consequently a graded scoring guidepost is proposed with one or more scenarios posited for each numeric value. Clearly, though, the complexity of MSP is such that it is difficult to establish purely objective criteria just as it is unrealistic to assume that there is a single correct approach to MSP. Equally it is important to stress that the proposed indicators are not benchmarks towards a clearly defined outcome. The proposed indicators, with a brief explanation as to why they were selected, are: - Policy and legal framework: this issue is considered essential for the promotion of MSP and also in enabling cross-sectoral integration; - Information management: data and information are fundamental to the management of any natural resource; - Permitting and Licensing: these already play a key role in the maritime area and the key issue is not whether permitting is provided for but the extent to which it is coordinated across sectors and permitting procedures are simple and transparent; - Consultation: this is necessary to ensure that different sectoral objectives and priorities for maritime space are taken into account as well as to reduce the risk of conflict between different sectors/interest groups; - Sector conflict management: this indicator is proposed due to the real risk of conflict in the absence of MSP; - Cross-border cooperation: this indicator is proposed due to the high degree to which MSP in the waters of one European country is likely to be affected by activities in a neighbouring state. Other boundaries include land-sea boundaries and borders between different administrations; - Implementation of MSP: finally this indicator is proposed to assess the degree to which MSP actually takes place: how it is translated from policy and law into practice. 10

16 A table containing the draft indicators is attached as Annex A. In addition, in the main report instructions are provided for using the draft indicators. Finally, the indicators were tested, as required by the Terms of Reference for the Study, and the outcome of this is described in more detail in Part Six below. 4. MSP in specific Member States Practices for planning and licensing marine activities in a sample of coastal Member States were next considered in the context of MSP. The Member States selected for this exercise were France, Germany, Greece, Poland and the United Kingdom (UK). The selection of these particular Member States, which was agreed with the European Commission, was made for a number of specific reasons, namely that these States: (a) have made variable progress as far as MSP is concerned; (b) are adjacent to different European seas; (c) contain a mix of old and new Member States; and (d) relevant to Part Five, have a range of different constitutional governance structures. A detailed report was prepared for each country. In summary, key findings of these reports are as follows. 4.1 France Although France has a long maritime tradition, this sector has historically been less of a focus than in some nearby countries. This is reflected in the legal framework where the focus of legislation in the territorial waters is an extension of the concept of terrestrial public domain and focuses exclusively on the seabed without considering the water column. Likewise the spatial planning tools that have been developed for the coastal zone tend to focus on terrestrial activities including those that use marine waters. The management of maritime zones is unintegrated and characterised by a sectoral approach, although some recent developments, such as ICZM represent a shift towards a more holistic approach. One example is a 2006 legislative amendment that permits the creation of marine parks in the French territorial sea with the possibility of extension into the EEZ. In addition the law establishes a new specialised agency to coordinate the national network of MPAs. One of the main tools for MSP is the Sea Enhancement Scheme (SES) introduced in 1983 which can be used to set out the fundamental orientations for the management of land and maritime areas. Although only two SES have been established to date, it is seen as a valuable tool that will play a central role in marine planning for the next few years. As France moves to review its maritime policy a number of key issues will need to be considered including the distribution of powers between different levels of government, the development of appropriate decision making processes and the balance between economic development and environmental protection. 4.2 Germany In Germany the debate over MSP began in the mid-1990s, in response to heightened interest in the potential for increased economic activity in offshore areas particularly in connection with wind energy exploitation (which will be necessary to enable Germany to achieve its ambitious carbon dioxide reduction targets). A stable and predictable planning framework was seen as a prerequisite. The first steps were taken in 2002 with introduction of a mechanism for the designation of areas in the EEZ that are particularly suitable areas for wind farms as well as legislation for the establishment of MPAs in the EEZ. While the Länder were required to extend their spatial structure plans into their respective parts of the territorial sea, a 2004 amendment to the Federal Spatial Planning Act conferred the necessary competence on the Federal Government to organise spatial planning in the EEZ. Spatial plans for the territorial seas adjacent to Lower Saxony and Mecklenburg-Western Pomerania were adopted in 2006 and 2005 respectively while the extension of the state spatial plan of Schleswig-Holstein into the 11

17 territorial sea is ongoing. Consultation has recently closed on spatial plans for the German EEZ in the Baltic and North Seas. In accordance with the Federal Spatial Planning Act, these may contain binding goals and non-binding principles that decision makers must take into account. They may also designate priority areas where certain activities are prohibited. Overall the system seeks to balance a comprehensive approach with sufficient flexibility while involving a broad range of stakeholders. Nevertheless it is too early to assess the success of this system for MSP. 4.3 Greece In Greece spatial planning of maritime activities is governed by a broad range of regulations, including transposed international and European legislation. A holistic approach is absent and instead specific maritime activities are mainly addressed in sectoral legislation. Often the planning of a maritime activity is ruled by a number of regulations, and the same legislation may apply to a range of different activities. Furthermore, many authorities have jurisdiction depending on the activity implemented in the marine environment. Recently, the regulatory background for spatial planning seems to be improving through the elaboration of the National Spatial Plan and certain sectoral spatial plans; however, there do not seem to be any developments in the short and medium term towards a comprehensive practice for MSP. 4.4 Poland The planning of maritime activities in Poland is regulated by a complex set of international, EC and national legislation. National legislation applicable is partly specific to maritime activities (e.g. fishing, shipping) and partly of a general nature (environmental protection, nature conservation, as well as general requirements of spatial planning and construction permits). It seems there are no major problems in application of this legislation (no major legal constraints) although some of the requirements are often neglected (e.g. SEA requirements). In practice MSP is not too developed: no formal spatial plan for maritime areas has yet been adopted, so all the activities are authorised by individual decisions. 4.5 United Kingdom Planning of maritime activities in the UK is regulated by a complex array of international, EC, regional, national, devolved and local legislative controls. Much of this legislation is sectoral, applying to specific activities or users of the marine environment. The management of UK waters is complicated by the devolution of responsibility for domestic affairs from central government to Wales, Scotland and Northern Ireland. There are many overlapping jurisdictions for maritime planning and licensing, with a duplication of powers and no single authority with an overview of all activities being planned in the maritime environment. The development of a new Marine Bill may help to overcome some of the existing legal constraints. A draft Marine Bill was published in April 2008, with the aim of introducing a new legislative framework for the seas, based on MSP. 12

18 5. Relationship between MSP and governance Among the variables faced by each Member State in terms of MSP, one potentially important issue concerns the constitutional governance structure. Among the Member States mentioned in the previous Part, France, Greece and Poland are unitary States, Germany is a federal State while the UK comprises four separate countries (England, Northern Ireland, Scotland and Wales). The management of UK waters is further complicated by the devolution of responsibilities from central government to Wales, Scotland and Northern Ireland with the result that the territorial seas are the responsibility of the relevant devolved administrations. The proposed Marine Bill will set out a series of overall policies and objectives for all UK waters from which a number of regional/local plans will be developed across the four administrations. And as described above, in Germany the Länder are responsible for MSP in the territorial sea with the Federal Government responsible for the EEZ. So what is the relationship between governance structure and MSP? To a certain extent it could be considered premature to consider this question given the relative lack of overall progress with regard to MSP. At the same time while it might seem reasonable to assume that centralised governance structures would favour progress on MSP the findings of this Study do not seem to support this assumption. Germany with its federal set-up and rather complex system of shared jurisdictions has made considerable progress in extending and adapting its traditional spatial planning regime to its marine areas. In the more centralised States France, Greece and Poland, MSP has progressed to variable degrees while the progress of the UK seems to be somewhere in between. Although the sample size is clearly small, this leads to the preliminary conclusion that the type of governance structure of a country may not necessarily affect that country s ability to develop and implement MSP. Centralisation may be useful to a certain degree to ensure the coordination of national plans but decentralisation may also facilitate improved consultation and conflict prevention/resolution. Currently it seems that one of the key driving factors for the introduction of more integrated, comprehensive MSP systems is the extent of competing economic demands on maritime space and the level of interest in developing economic activities there. Therefore while the governance structure of a country does not necessarily appear to assist or hamper the development of MSP, it is likely to affect the type of MSP that emerges. One issue is the degree to which legislation used for MSP can also address activities in the water column and on the surface of the sea. 13

19 6. Conclusions On the basis of the Study a number of observations can be made and conclusions drawn. These are considered preliminary given that MSP is a relatively new concept and there is as yet limited experience in its implementation across Member States. First of all, EU Member States encounter relatively few constraints under international or EC law with regard to MSP in their internal waters and territorial seas. Constraints for Member States in their territorial seas include the need to undertake EIA in respect of proposed developments and to examine alternatives (but only beyond certain criteria set by the country) and the requirements to consult neighbouring states regarding plans or projects in the territorial sea that may have significant transboundary environmental impacts. Within the EEZ, MSP can be undertaken in connection with the most important maritime related activities including the exploration and exploitation, conservation and management of living and nonliving natural resources. Other constraints that exist for coastal Member States arise in connection with the freedom of navigation (particularly as far as ships routeing is concerned) and which require consultation with the IMO; the limited influence on the laying of cables and pipelines by other States; and the fact that commercial fishing is regulated under the CFP. Similar constraints apply regarding the continental shelf. With regard to the Mediterranean Sea, the ability of Member States to engage in MSP beyond their territorial seas up to 200 nm is limited to the scope of the purpose for which specific protection zones have been claimed (as no EEZs have been declared in this area). With regard to the high seas (beyond 200 nm), the scope for MSP by individual States is extremely limited, although particularly in the context of the establishment of MPAs there is growing interest in multilateral approaches. SEA and EIA requirements established under international and EC law as well as transboundary consultation requirements have implications as to how MSP should be undertaken as does the Water Framework Directive. The national studies for France, Germany, Greece, Poland and the United Kingdom show that progress towards MSP remains variable. Germany has made considerable progress with developing maritime spatial plans for some sub-national regions (up to 12nm) and has recently concluded a public consultation on the national maritime spatial plans for the EEZ. The UK is currently going through the process of drafting a Marine Bill which will address and consolidate a number of MSP issues. France, Poland and Greece still have a wide range of sectoral legislation, and the need for a coordinated MSP approach has not yet arisen given the relatively low levels of conflicting maritime activities. However, instruments are emerging such as the Sea Enhancement Schemes in France that contribute to the objectives of MSP. A preliminary finding is that a country s governance structure does not in itself appear to impact progress in this regard. Key drivers towards MSP include: the intensity of activities and need to resolve potential conflicts; support and demand for planning from the industry; and sufficient resources to address the issue. However, the governance structure and current legislation will affect the type of MSP that emerges. Some of the legal issues that affect the outcomes of MSP in Member States include the degree to which spatial legislation is compatible between land and sea (with implications for the coastal zone); the division of responsibilities for planning and whether it is the central or regional government that plans for the territorial sea and the EEZ; the degree to which the planning legislation covers both the 14

20 seabed and the water column; and the legal form of implementation of MSP e.g. through plans, or principles and criteria. A draft set of indicators, together with instructions for their use, has been prepared and tested on the basis of readily available information. These indicators have also been refined based on discussions with the Commission, and are now based on the following categories: Policy and legal framework; Information management; Permitting and Licensing; Consultation; Sector conflict management; Cross-border cooperation; and Implementation and evaluation of maritime spatial plans. As required by the terms of reference for the Study, the indicators were tested using countries in the Plancoast, Baltcoast and OSPAR reports. The countries selected were: Italy, the Netherlands, Germany and the UK. It was found that there was not sufficient information within these reports to fully assess the indicators. Information from the case studies was used to supplement the assessments for Germany and the UK. This shows that an assessment of the status of these indicators for all Member States would require collection of additional information and validation by the Member States. The next step for the indicators will be to design a detailed methodology for their application across all Member States and then use the results to show how the Commission can support and promote the process of MSP both in each case and Community-wide. 15

21 Annex A A. Policy and legal framework 0 No policy on MSP. Sectoral legislation does not contribute to MSP in any material way. 1 Limited sectoral legislation eg ad hoc zoning of maritime areas for specific sectoral activities. No policy on MSP. 2 Sectoral legislation with no formal mechanisms to coordinate spatially relevant decisions. Draft MSP policy. Annex A - MSP indicators B. Data and information management No /few spatial data exist on biological/ ecological aspects (e.g. marine substrates, habitats, species) and no data on social/economic aspects (e.g. maritime activities). No mechanisms in place for collection or dissemination of relevant information. Basic biological data exist (e.g. depth and substrate type) for most of the coastal zone, but are not easily available to planners/stakeholders but no social/economic data. Biological data exist on marine substrates, habitats, main species of commercial interest and very limited social/economic data on some maritime activities (e.g. location and direct economic value for some activities) for the coastal zone. Lack of coordination on data collection, analysis and synthesis of information. C. Permitting and Licensing Open access no restrictions or requirements for licensing. Unclear/non transparent or contradictory licence requirements. Incomplete licensing regime. No inter agency coordination. Comprehensive licensing regime. Unclear/non transparent procedures. - licences from different agencies with different objectives. OR. - unclear division of competences between different agencie either horizontally or vertically No inter-agency coordination. D. Consultation No consultation required nor taking place on plans or projects. No transparency or information available on plans or projects. Voluntary consultation encouraged for some projects. Information available on request for some projects. Requirement for passive consultation for some projects (eg newspaper adverts, notices) typically late in the process. Information available on request for most projects. 16 E. Sector conflict management No mechanisms for dealing with/reducing conflicts in areas with high potential of conflicts. Ad-hoc mechanisms for dealing with/ reducing conflicts in areas with high potential of conflicts. Indicative (nonbinding) guidelines for dealing with/reducing conflicts plus ad-hoc mechanisms. F. Cross-border cooperation No mechanism for consulting with neighbours or coordinating across other boundaries (land/sea; administrative boundaries) beyond requirements of EC environmental law. Ad hoc mechanisms for consultation across boundaries. Case by case basis. Non-binding national criteria for cross-boundary consultation (beyond requirements of EC environmental law). Limited guidelines available. G. Implementation of MSP No maritime plan (or sectoral plans) outlining maritime planning priorities and no mechanism for preparing a plan. Informal non-binding sectoral plans. Different contradicting sectoral plans. Formal sectoral plans with limited cross-sector and vertical coordination. Sectoral plans reviewed and revised on an ad-hoc basis.

22 3 Sectoral legislation and specified coordination mechanisms for spatially relevant Clearly defined MSP policy adopted but no MSP legislation yet Adoption of MSP legislation in progress. 4 Comprehensive MSP legislation adopted but not yet implemented. 5 Comprehensive MSP legislation adopted and implemented - Adoption of any necessary subordinate legislation. - Law has stood the passage of time. - No serious litigation. Good biological data exist on marine substrates, habitats, most species of commercial interest and biodiversity, for the coastal zone and some of the EEZ. Some socio-economic data available on some maritime activities (i.e. location and direct economic value), for the coastal zone and some of the EEZ. Some data are available in GIS format. Efforts are underway to collect further data. Data can be accessed where required but may not be well coordinated (eg data held by many different institutions, different formats used, different access procedures). Basic analysis and synthesis of data into useful information. Comprehensive biological data exist on marine substrates, habitats, ecosystem functions, all species of commercial interest, and biodiversity for the coastal zone and most of the EEZ. Some social/economic data exist (i.e. location and direct & indirect economic values) for most sectoral activities in the coastal zone and most of the EEZ. Most data are available in GIS format. Efforts are underway to collate existing data into an integrated, comprehensive GIS-based central data facility. Data are processed into useful information and relatively easy to access where required. Efforts are underway to provide complete coverage of the EEZ. Comprehensive data exist on marine substrates, habitats, ecosystem functions, all species of commercial interest, biodiversity and maritime sectoral activities for the coastal zone and the whole EEZ. Comprehensive social/economic data on maritime activities (i.e. location, economic, social and cultural values) for the coastal zone and the whole EEZ. All data are processed into useful information and available in GIS format and most have been collated into an integrated, comprehensive GISbased central data facility. Data are easily available, and effectively disseminated where required. Several different licences from different agencies. Clear division of competences between institutions, not always effectively implemented. Limited inter-agency coordination with respect to most aspects relevant to the allocation of permits. Information to applicant on permitting process is available. Several different licences required for a specific activity but clear and coordinated procedures. Clear division of competences effectively implemented. Inter-agency coordination with respect to all aspects relevant to the allocation of permits. Easily available and transparent information on permits. Streamlined transparent process with information readily available. No contradictions Simplified and clear procedures. Clear mechanism to coordinate/ manage overall decision making process for the allocation of space. or One stop shop a single application process that can cover multiple licence applications and take into account the overarching MSP objectives. Requirement for active consultation on a limited number of plans (may be sectoral) and projects. Consultation of limited number of representative stakeholders. Information on selected plans and projects made available to the public through a limited number of mechanisms (e.g. meetings). Requirement for active consultation on most plans (may be sectoral and projects) Findings have to be documented. Information on most plans and projects made available to the public through a number of forms (e.g. newspapers, meetings, websites). Requirement for active consultation on all plans and projects. Information on most plans and projects activity promoted to the public through a number of forms (e.g. newspapers, websites, meetings). Findings are reflected in the decision. Consideration documented. Procedures for revisions and consultation on evaluation. 17 Clear procedures and binding principles adopted for conflict resolution. Clearly defined and binding procedures, as well as principles and objectives for decision making. Binding general priorities. Clearly defined procedures, as well as principles and objectives for decision making. Priorities agreed within a geographic context to guide decision making. Compensation measures for persisting conflicts. Mutual rules guiding trans-boundary cooperation, ensuring permanent exchange of Information (e.g. bilateral agreements). Voluntary guidelines on cooperation and coordination across sub-national boundaries (i.e. land/sea boundaries, administrative boundaries). Mandatory transboundary consultation procedures based on binding national criteria and mutual rules guiding co-operation. Guidelines on cooperation and coordination across sub-national boundaries accepted as normal practice (i.e. land/sea boundaries, administrative boundaries. Mandatory transboundary consultation procedures implemented with joint decision making and conflict resolution. Legislation and related mechanisms for cooperation and coordination across sub-national boundaries (i.e. land/sea boundaries, administrative boundaries). Formal sectoral plans and define binding objectives for the overall MSP process Some cross-sector and vertical coordination Sectoral plans reviewed and revised on a regular basis. A comprehensive plan/system with spatially defined priorities in place with some limited implementation. Good cross-sector and vertical coordination. A comprehensive plan/system defining legally binding priorities within a geographic context has been developed and is being effectively implemented at regional and national levels. Effective cross-sectoral and vertical coordination. Monitoring mechanisms in place Regular reviews undertaken and plans evaluated in this light.

23 European Commission Legal aspects of maritime spatial planning Summary report Luxembourg: Office for Official Publications of the European Communities pp. 21 x 29.7 cm ISBN

24 KL EN-C

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