Basic elements of MSP

Apart from the problem of setting the right aims, MSP also has to possess effective tools for achieving these aims. Ehler and Douvere have tried to summarize the ele-ments of MSP in the following way:

[t]he comprehensive marine spatial plan is usually long-term, general in nature and policy oriented and is implemented through more detailed zoning maps, zoning regulations and a permit system. Individual permit or licensing decisions can then be made based on the zoning maps, that in turn reflect the vision of the comprehensive marine spatial plan…⁴¹

Most commonly, MSP is regarded as a holistic and integrated process, which aims at identifying, allocating⁴² and reconciling ecologically, economically and socially impor-tant uses of the marine space.⁴³ It is commonly thought that identification of differ-ent uses of the marine environmdiffer-ent 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.⁴⁴ Allocation and reconciliation are necessary because the outputs

39 Ehler and Douvere, ‘New Perspectives’, supra note 7, at 80.

40 As a governance instrument, MSP also has close connections to Integrated Coastal Zone Management (ICZM); indeed, ICZM contains most of the characteristics which are generally attributed to MSP. See, for instance, European Commission, ‘Towards a European Integrated Coastal Zone Management (ICZM) Strategy – General Principles and Policy Options. A Reflection Paper’ (1999), available at <http://

ec.europa.eu/environment/iczm/pdf/vol1.pdf> (visited 26 February 2013). For instance, in the EU the biggest difference between MSP and ICZM are their spatial dimensions. While ICZM is an integrated management tool for the coastal zone and the sea-land interface, MSP covers the Exclusive Economic Zone, see European Commission: Maritime spatial planning at Definition and scope. See European Com-mission, ‘Maritime Spatial Planning’, available at <http://ec.europa.eu/maritimeaffairs/policy/maritime_

spatial_planning/index_en.htm> (visited 26 February 2013); European Commission, Maritime Spatial Planning in the EU – Achievements and Future Development (2011), available at <http://ec.europa.eu/

maritimeaffairs/documentation/publications/documents/com_2010_771_brochure_en.pdf> (visited 26 February 2013) at 10. On ICZM, see the paper by Botero Saltarén et al in Part III of the present Review.

41 Ehler and Douvere, ‘New Perspectives’, supra note 7, at 79.

42 EC COM (2008) 791 final, supra note 5, at 9: ‘MSP operates within three dimensions, addressing ac-tivities (a) on the sea bed; (b) in the water column; and (c) on the surface. This allows the same space to be used by different purposes. Time should also be taken into account as a fourth dimension, as the compatibility of uses and the “management need” of a particular maritime region might vary over time.’

43 Ehler and Douvere, Marine Spatial Planning, supra note 3, at 21.

44 See, for instance, Maes, Schrijvers and Vanhulle: A Flood of Space, supra note 9, where the working group first identified the present uses of the marine environment in a certain area and then analyzed the impacts

of the marine environment are limited, and the marine environment cannot usually meet all of the conflicting needs simultaneously without management.⁴⁵

Currently, marine spatial planning can be described broadly as consisting of four main principles:⁴⁶ 1) the principle of fit; 2) the principle of multiple use; 3) the prin-ciple of stakeholder involvement; and 4) the prinprin-ciple of adaptive management.⁴⁷ The principle of fit usually means the management tools which aim at avoiding or mini-mizing conflicts or mismatches between ‘biophysical systems, socioeconomic activi-ties and governance practices’. 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’. In some cases, this means solving conflicts by adjusting the activities which it is antici-pated will conflict so that they could coexist. However, in severe conflicts one has to resort to spatially separating the conflicting interests so that they would not interfere with each other.⁴⁸ Adaptive management is usually taken to mean ‘managing accord-ing 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’.⁴⁹

In addition to the four principles outlined above, one of the big problems which MSP tries to tackle is the current practice of allocating space in the marine environ-ment on a single sector basis and without consideration being given to cross-sectoral objectives or to a plan-based approach.⁵⁰ As more and more activities are competing

that each individual use has on the marine environment and also laid out different scenarios of how the competing interests relating to the use of ocean space could be reconciled and the conflicts between those interests alleviated and solved.

45 Ehler and Douvere, Marine Spatial Planning, supra note 3, at 18; UNESCO, ‘Marine Spatial Planning Iniative: Marine Spatial Planning (MSP)’, available at <http://www.unesco-ioc-marinesp.be/marine_spa-tial_planning_msp> (visited 28 June 2012). For instance, in the Belgian part of the North Sea, studies showed that the need for the marine space was almost three times larger than the available space See Maes, Schrijvers and Vanhulle: A Flood of Space, supra note 9, at 121–122.

46 A principle is understood here as meaning a management principle, not a legally binding principle.

47 On some occasions, marine spatial planning has also been referred to as a principle of international marine environmental law. See Nilufer Oral, ‘Integrated Coastal Zone Management and Marine Spatial Planning for Hydrocarbon Activities in the Black Sea’, 23 International Journal of Marine and Coastal Law (2008) 453–476 at 464. However, this description of MSP as a principle of international marine environmental law appears confusing in two respects. Firstly, MSP is an instrument that aims at implementing a princi-ple (sustainable development) and contains certain principrinci-ples that operationalize this aim. MSP has close relations to multiple principles of international environmental law but it seems hard to conceive of it as a principle in its own right. Secondly, MSP is presently a collection of certain highly regarded ideas of how we should organize the governance of marine areas. However, naming the instrument as a principle may present MSP as a legally (softly) binding instrument, which it currently is not, at least in its entirety.

48 Young et al, ‘Solving the Crisis’, supra note 26, at 27–29.

49 Ana Parma et al, ‘What Can Adaptive Management Do for Our Fish, Forests, Food and Biodiversity?’, 1 Integrative Biology (1998) 16–26 at 26.

50 Ehler and Douvere, Marine Spatial Planning, supra note 3, at 19. Craig, Comparative Ocean Governance, supra note 4, at 93 has also stated that this fragmentation in governance could potentially lead to a regu-latory chaos, in which case multiple authorities regulate different aspects of the same marine space ‘…

while pursuing individual and often conflicting priorities’.

for the finite resource of marine space, conflicts are bound to escalate over time.⁵¹ 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.⁵² Consequently, one might add the principle of integration to the list of principles within MSP. Gilliland and Daffoley have also associated MSP with delivering better regulation, implementing multiple legal principles of interna-tional environmental law – such as the precautionary principle⁵³ and the polluter pays principle⁵⁴ – and enabling compliance with international, regional and national ob-ligations.⁵⁵

Ehler and Douvere have argued that MSP consists of ten steps:

1) identifying need and establishing authority;

2) obtaining financial support;

3) organizing the process through pre-planning;

4) organizing stakeholder participation;

5) defining and analysing existing conditions;

6) defining and analyzing future conditions;

7) preparing and approving the spatial management plan;

51 See also Charles Ehler and Fanny Douvere, Visions for a Sea Change, Report of the First International Workshop on Marine Spatial Planning, Intergovernmental Oceanographic Commission and the Man and the Biosphere Programme (UNESCO, 2006), available at <http://www.belspo.be/belspo/northsea/publ/

sea%20change%20vision%20.pdf> (visited 1 August 2013) at 18.

52 Gilliland and Laffoley, ‘Key Elements’, supra note 22, at 788.

53 According to Art. 15 of the Rio Declaration (UN Declaration on Environment and Development, Rio de Janeiro, 14 June 1992, UN Doc. A/CONF.151/5/Rev.1 (1992), 31 International Legal Materials (1992) 876), the precationary principle can be taken to mean the following: ‘[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation’. However, at this point it is quite clear that the precautionary principle is not yet a binding principle of international law despite of the fact that it does enjoy some normative support from non-binding legal instruments, see Nicolas de Sadeleer, ‘Lessons from International, EU and Nordic Legal Regimes’, in Nicolas de Sadeleer (ed.), Implementing the Precautionary Principle (Earthscan, 2007) at 382.

54 The polluter pays principle is defined in the OECD Recommendation of the Council on the Guiding Principles concerning International Economic Aspects of Environmental Policies (26 May 1972 – C(72)128) in the following way:

[t]his principle means that the polluter should bear the expenses of carrying out the above-mentioned measures decided by public authorities to ensure that the environment is in an acceptable state. In other words, the cost of these measures should be reflected in the cost of goods and services which cause pollution in production and/or consumption. Such measures should not be accompanied by subsidies that would create significant distortions in international trade and investment.

Philippe Sands, ‘International Environmental Law: An Introductory Overview’, in Philippe Sands (ed.), Greening International Law (The New Press, 1994) at xxxiv, has stated that the legal status of the principle in international law is somewhat unclear. However, it does enjoy some normative support in some inter-national instruments, such as principle 14 of the Rio Declaration and the OECD Council Recommenda-tions as cited above. Within the EU, the legal status of the principle is stronger as it is incorporated in the primary and secondary legislation of the EU. The polluter pays principle is used, for instance, in the Art.

191 of the Treaty on European Union (OJ C326, 26 October 2012) and in the Directive on environmen-tal liability with regard to the prevention and remedying of environmenenvironmen-tal damage (2004/35/EC, OJ L143, 30 April 2004).

55 Gilliland and Laffoley, ‘Key Elements’, supra note 22, at 788–789.

8) implementing and enforcing the spatial management plan;

9) monitoring and evaluating performance; and 10) adapting the marine spatial management process.⁵⁶

As a process, then, MSP is adaptive and comprises complementary progressive cycles of planning which can be improved over time by learning from past experiences relat-ing to the process. This means developrelat-ing and mouldrelat-ing the instrument as scientific knowledge of the ecological and environmental conditions of the planned area in-crease and as the emphasis placed on certain interests in the marine area develop and change over time. Adaptability is presently considered as one of the key aspects of MSP.⁵⁷

The planning process should also include wide stakeholder participation. In general, all the individuals, groups and organizations that are affected by or interested in the MSP can be considered stakeholders in the process. However, involving too many stakeholders at the wrong stage of the process or in the wrong way can distract the process from the anticipated results and takes a lot of time. For these reasons, stake-holder participation should be assessed taking into account certain criteria which can be used to evaluate the importance of a certain stakeholder to the MSP-process. For instance, existing legal rights as well as knowledge and skills and historical and cul-tural relations to the resources, or the degree of economic and social reliance on the resources to be allocated in the planning-area are criteria that should be taken into account when deciding on the extent of stakeholder participation.⁵⁸