MSP as a planning instrument

Marine spatial planning is a planning instrument and this means that the temporal scope of MSP is aimed at the future in order to reach certain desired goals. As with land-use planning, this planning for the future in MSP consists of two parts. Firstly, a textual formulation of the important goals, priorities and principles of the plan-ning; as well as the reasons for adopting the plan and guidance for the interpretation of the plan. Secondly, a spatial plan usually includes also a map, which indicates the spatial distribution of different activities.⁶⁸ The key aspect of MSP is that it is place-based or area-place-based, which means that it covers only a certain geographical area and does not concentrate on a certain sector or on an environmental problem as a whole.⁶⁹ It takes all of the uses of the marine environment into consideration at the same time, but does this only in a certain, defined area. It has been claimed that place-based measures of marine management, such as zoning, can aid in targeting economic and ecological goals simultaneously.⁷⁰ According to Agardy:

[t]he quest for a more holistic approach to ocean governance leads naturally to an increased use of place-based management. The basic premise of place-based marine management is that regulators can delineate a particular area of the ocean (large or small) and create a governance regime for that area that simultaneously addresses all values to be protected and all activities of concern.⁷¹

Until recently, the idea of planning, let alone zoning, has been mainly thought of as a terrestrial instrument. Jay argues that this is closely related to the basic purposes of planning in controlling the development and use of (terrestrial) space. This control has usually been based on land ownership and parcelling of land by visible and ac-curate boundaries. Furthermore, terrestrial planning has usually had the objective of making organized construction and settlement possible. Jay suggests that the marine environment, by its very nature, resists all the above basic elements of terrestrial plan-ning.⁷² However, with the present prospects of major offshore wind-farms, as well as of renewable marine energy, spatial planning on marine areas is starting to share more and more elements with terrestrial land-use planning.⁷³

68 For a good overview of planning and spatial planning in general and their relationship to MSP, see Backer, ‘Trans-boundary Maritime Spatial Planning’, supra note 5, at 280–281.

69 Ehler and Douvere, ‘New Perspectives’, supra note 7, at 78. See Agardy, Ocean Zoning, supra note 31, at 13: ‘Marine Spatial Planning (MSP) is a generic term describing the process leading to place-based marine management’.

70 Arkema, Abramson and Dewsbury, ‘Marine Ecosystem-based Management’, supra note 28, at 531.

71 Craig, Comparative Ocean Governance, supra note 4, at 94.

72 Jay, ‘Built at Sea’, supra note 32, at 175.

73 Ibid. at 177. The building of wind farms has been one major driver behind the development of MSP in many of the European Countries. See UNESCO, ‘MSP around the World’, available at <http://www.

unesco-ioc-marinesp.be/msp_around_the_world> (visited 13 June 2013). On specific wind farm projects, see, for instance, Hendrik Schoukens, An Cliquet and Frank Maes, ‘Wind Farm Development in the Belgian Part of the North Sea: A Policy Odyssey without Precedent’, Zeitschrift für europäisches Umwelt- und Planungsrecht (2012) 304–312.

On the other hand, it has to be stated that the unique characteristics of marine spa-tial planning differentiate it somewhat from terrestrial planning – as Jay has suggest-ed.⁷⁴ In the view of the Commission of the European Union,

MSP does not replicate terrestrial planning at sea, given its tri-dimensionality and the fact that the same sea area can host several uses provided they are compat-ible. However, in the same way that terrestrial planning set up a legally binding framework for the management of land, MSP should be legally binding if it is to be effective.⁷⁵

In contrast to terrestrial planning, the nature of the marine environment offers dif-ferent possibilities for accomplishing reconciliation between difdif-ferent interests – even within the same spatial area. This is made possible by the three-dimensional and temporal allocation of activities as well as the compatibility between certain interests to exist in the same area spatially and temporally. Despite this advantage, the present writer agrees with Eagle, Sanchiro and Thompson in their assessment that any zoning system within MSP should first prioritize a certain use or uses in a particular area of the zone. However, the zoning should also ‘permit non-priority uses where that use can be conducted in a manner consistent with the overall purpose of that zone’.⁷⁶ In contrast to terrestrial planning, marine spatial planning should be firmly based on reconciliation between interests. This can be accomplished by not only zoning space for different activities and separating the uses and interests but also by accommodat-ing multiple, compatible uses in the same area or part of the zone.

The lack of property rights in water areas has been used as an argument against MSP and any efforts to zone the marine areas. It has also been used as an argument to highlight that terrestrial land use planning principles cannot be used in marine areas.

While the terrestrial instrument may not be directly applicable to marine areas, the lack of property rights also creates possibilities for the zoning of marine areas. Sanchi-ro has argued that zoning efforts could create gSanchi-roup pSanchi-roperty rights in which case the holders of certain interests would belong to a certain group and manage the area jointly. According to Sanchiro, this would ‘provide stewardship incentives and lead to rationalization of uses’.⁷⁷

MSP is usually deployed in areas under national jurisdiction and the exclusive eco-nomic zone (EEZ).⁷⁸ In addition, transboundary MSP projects are becoming

increas-74 In addition, Peel and Lloyd, ‘The Social Reconstruction’, supra note 3, at 374, have argued that one must be careful when contemplating the transfer of terrestrial planning instruments to marine environments, stating that ‘[t]here is little evidence that land-based policy solutions will readily transfer offshore’.

75 COM (2008) 791 final, supra note 5, at 10.

76 Josh Eagle, James N. Sanchirico and Barton G. Thompson, ‘Ocean Zoning and Spatial Access Privileges:

Rewriting the Tragedy of the Regulated Ocean’, 17 New York University Environmental Law Journal (2008) 646–668 at 654.

77 ‘Comprehensive Ocean Zoning: Answering Questions about This Powerful Tool for EBM’, 2 Marine Ecosystems and Management (2008) 1–4 at 2.

78 On the areal aspects of MSP, see Backer, ‘Trans-boundary Maritime Spatial Planning’, supra note 5, at 280.

ingly common. The main legal instrument regulating planning in respect of marine areas is the United Nations Convention on the Law of the Sea (UNCLOS), which divides marine areas into internal waters, archipelagic waters, territorial waters, con-tiguous zone, EEZ and continental shelf. The regimes under UNCLOS define the rights of states within these areas. Article 8 of UNCLOS states that waters on the landward side of the baseline⁸⁰ of the territorial sea form part of the internal waters of the state. Article 3 of UNCLOS states that every state has the right to establish a territorial sea which extends up to 12 nautical miles (nm) from the baseline. An ar-chipelagic state may draw straight arar-chipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1 (Article 47 of UNCLOS). The coastal state has sovereignty over its internal waters, archipelagic waters and territorial sea (Articles 2 and 49 of UNCLOS).⁸¹

According to Article 33 of UNCLOS, the contiguous zone extends 24 nm from the baselines from which the territorial sea is measured. The coastal state has a right to exercise control over the contiguous zone to (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; and (b) punish infringement of the above laws and regulations committed with-in its territory or territorial sea.

The EEZ extends a maximum of 200 nm from the baseline. In the EEZ, the sover-eignty of the coastal state is limited and, according to Article 56 of UNCLOS, the coastal state possesses only certain sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil.

The continental shelf is the final marine zone under partial state control. The conti-nental shelf comprises the seabed and subsoil of the submarine areas that extend beyond a coastal state’s territorial sea throughout the natural prolongation of its land

79 See, for instance, the Plan Bothnia project between Sweden and Finland. More information on Plan Bothnia, see <http://planbothnia.org/about/> (visited 4 February 2013). See also the MASPNOSE project between the United Kingdom, the Netherlands, Germany and Denmark; for more information, see

<http://www.wageningenur.nl/en/show/Maspnose-Maritime-spatial-planning-in-the-North-Sea.htm>

(visited 13 June 2013). A multitude of legal instruments have a direct connection to the drafting and implementation of an MSP. On a regional level, and with regard to transboundary issues in the EU, for instance, the directive on assessment of the effects of certain plans and programmes on the environment (SEA-directive, 2001/42/EC, OJ L197, 27 June 2001) lays down some legal obligations with regard to access to information and consultations between countries while the MSP is being drafted. See SEA-di-rective, Art. 7.

80 There are numerous methods and exceptions to the definition of the baseline but the general rule is pro-vided in Art. 5 of UNCLOS: the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state.

81 This sovereignty is complete in internal waters, in which even the right to innocent passage does not apply.

The coastal state can in a similar fashion exert full sovereignty in archipelagic waters with the exception that freedom of innocent passage, as defined in Art. 19 of UNCLOS, has to be allowed.

territory to the outer edge of the continental margin, or to a distance of 200 nm from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. However, the outer limit of the continental shelf shall not in any case exceed 350 nm (Article 76 of UNCLOS). The coastal state has a sovereign right to exploit natural resources in its continental shelf as stipulated in Article 77 of UNCLOS.

From a planning perspective, it is interesting to note that by recognizing certain rights of coastal states and creating legally binding zones, UNCLOS has been respon-sible for lessening the gap between terrestrial and marine spatial planning by elimi-nating some of the key-problems of spatial planning in marine areas.⁸²