The Netherlands

MSP has also been adopted in the Dutch part of the North Sea (DPNS).¹¹⁷ With 58 000 km², the DPNS is considerably larger than the Belgian part. The drivers behind the MSP are quite similar to those in the BPNS, and the current and future uses also come close to those identified in the GAUFRE report addressed above. The MSP on the DPNS is not legally binding, but has the status of a policy instrument.¹¹⁸ However, the MSP is closely connected to other legal instruments, such as permitting and environmental impact assessment, as was the case also in Belgium.¹¹⁹

The starting point of the MSP in the DPNS is free passage of shipping. Limitations on fishing rights are also considered, as they conflict with wind farms and ecologi-cally important areas:

[f]ree passage for shipping is guaranteed by international routing measures and a system of nationally established clearways, within which no fixed objects may be placed. Most ecological areas are situated in the northern part of the Dutch Continental Shelf and are too far from the coast to be eligible for other functions.

This means that most of the time conflicts can be avoided. An important point of attention is the decrease in space for fishing because more and more space is

114Ibid. at 352–358.

115 On the main economic drivers, see Douvere et al, ‘The Role of Marine Spatial’, supra note 26, at 183.

116 Some scholars have concluded that the windfarms and ecological criteria are conflicting because windfarms were allocated space before a comprehensive biological evaluation of the BPNS was finished. See Agardy, Ocean Zoning, supra note 31, at 104.

117 Policy Document on the North Sea 2009–2015 (2009); Integrated Management Plan for the North Sea 2015, available at <http://www.unesco-ioc-marinesp.be/uploads/documentenbank/4cf76ef0978d9e21b 00ffa0460eb0221.pdf> (visited 7 February 2013); UNESCO, ‘MSP Around the World/The Netherlands’, available at <http://www.unesco-ioc-marinesp.be/spatial_management_practice/the_netherlands> (vis-ited 5 February 2013).

118Ibid.

119 Integrated Management Plan for the North Sea 2015 at 3.

being used for functions that are incompatible or difficult to combine with fish-ing: for example, ships cannot be permitted to sail in wind farms and conditions may well be imposed on fishing activities in ecological areas in future.¹²⁰

One of the immediate differences from the viewpoint of reconciliation is that the Dutch have considerably more marine space at their disposal when planning the marine area. This has some clear implications for the success of reconciling interests because most of the problems can be solved by spatial and temporal allocation. This can be seen from the map of the MSP, in which only ecologically important areas, military restricted areas and sand extraction areas partially overlap on the spatial scale.¹²¹ Other interests have been zoned in such a way that they do not cause major disturbance to one another. It is also interesting to note that while the Dutch have considerable space at their disposal, they have adopted a system of prioritizing be-tween certain interests in the zone of MSP. This has been done by creating a hierarchy of interests which is based on the level of legal protection each interest enjoys, as was suggested earlier in chapter 2.

3.1.3 Germany

Germany has adopted legally binding MSPs for the German part of the North Sea (GPNS) as well as the Baltic Sea EEZ under Germany’s jurisdiction. The size of the MSP in the German part of the North Sea is around 28 600 km². The main driver behind the MSP has been reconciling the accelerating demands for maritime trans-port and offshore wind farms with environmental protection.¹²² Although the MSP recognizes multiple compatible interests, such as shipping, pipelines and cables, the MSP is based on the premise that shipping, due to its value of over 50 billion euros annually, and the estimated increase of more than 100 per cent by the year 2025, shall be given priority over other uses. Other priority areas are established for pipe-lines and cables and wind energy developments. The priority area status means that uses that are incompatible with the priority use are prohibited in the area that is re-served for priority use.¹²³ This priority is justified by and in line with UNCLOS and International Maritime Organization (IMO) regulations, which are legally bind-ing.¹²⁴ However, offshore wind power plants are not allowed in the Natura 2000

120Ibid. at 2.

121Ibid. at 8.

122 Spatial Plan for the German Exclusive Economic Zone in the North Sea – Text section, unofficial transla-tion, available at <http://www.bsh.de/en/Marine_uses/Spatial_Planning_in_the_German_EEZ/docu-ments2/Spatial_Plan_North_Sea.pdf> (visited 7 February 2013) at 7. See also UNESCO, ‘MSP Around the World/Germany’, available at <http://www.unesco-ioc-marinesp.be/msp_practice/germany_north_

baltic_seas> (visited 5 February 2013).

123 Spatial Plan for the German Exclusive Economic Zone, supra note 122, at 5 and 12.

124 Shipping and maritime transport and fisheries as well as marine protected areas may be considered as enjoying a high level of legal protection in this regard. At the international level, UNCLOS forms the basis for any MSP system in the EEZ, and in Art. 58 of UNCLOS shipping is granted a special status under the Convention by guaranteeing freedom of navigation. Laying of cables and pipelines is granted similar status under Art. 58. On the territorial waters, freedom of innocent passage (Art. 17 of UNCLOS) is granted to maritime transport, but it can be restricted to a certain extent by the legislation of the con-tracting state. Under Art. 62 of UNCLOS, the concon-tracting states are granted the right to regulate, for

protection sites,¹²⁵ and power plants shall not obstruct the safety and efficiency of navigation.¹²⁶ When discussing and giving legal protection to fisheries, mariculture and protection of environmental interests, the MSP uses much softer language:

‘negative impacts … shall be avoided’, and mariculture facilities, for instance, shall preferably be located in combination with existing installations.¹²⁷

The German MSP for the North Sea considers every activity or claim for space in the EEZ and evaluates the priorities and other interests which have to be taken into account. The priority uses described above are given most weight in these evaluations, and other uses are reconciled on the terms of these priority uses. For instance, exploi-tation of non-living resources (sand and gravel extraction) shall maintain appropriate distance from existing pipelines and submarine cables, whereas fisheries and cultural heritage sites ‘shall be taken into account’. ¹²⁸

Looking at the map of the spatial plan in the GPNS, it seems that the most pressing conflicts may arise between marine protected areas and sand and gravel extraction which are located on the same marine space.¹²⁹ According to the non-technical sum-mary of the German MSP:

[a] large range of physical and chemical changes of the ground and water take place due to sediment dredging: substrate removal and changing of the bottom topography, changing of the hydrographic conditions, formation of vanes of turbidity, remobilization of chemical substances and sedimentation of suspended materials. Sand and gravel extraction also results in increased shipping traffic and noise emissions due to the shipping operation and dredging work. ¹³⁰

instance, seasons and areas of fishing within the EEZ under their jurisdiction. Article 192 of UNCLOS also stipulates that all states have the obligation to protect and to preserve the marine environment. Under Art. 8 of the CBD, contracting parties shall establish marine protected areas which are legally binding towards other uses if implemented by regional or national legislation. In the European context, the Birds Directive (79/409/EEC, OJ L103, 25 April 1979) and Habitats Directive (92/43/EEC, OJ L206, 22 July 1992) form such a legal basis. A multitude of other international and regional instruments also have to be addressed when resolving conflicts between the interests of a certain marine area. For an overview of the international legal instruments which are relevant to MSP, see Maes, ‘The International Legal Frame-work’, supra note 82, at 797–810. By IMO regulations is meant, for instance, the Traffic Separation Scheme under IMO which is incorporated into the Rule 10 of the Convention on the International Regulations for Preventing Collisions at Sea, London 20 October 1972, in force 15 July 1977, 1050 United Nations Treaty Series 16.

125 Natura 2000 is an EU-wide nature and biodiversity protection network which has been put forward by EU-level legislation and further implemented by national legislation. See further European Commission,

‘Natura 2000 network’, available at <http://ec.europa.eu/environment/nature/natura2000/> (visited 13 June 2013).

126 Spatial Plan for the German Exclusive Economic Zone, supra note 122, at 19.

127Ibid. at 24.

128Ibid. at 9–10.

129 Spatial Plan for the German Exclusive Economic Zone in the North Sea – Map, available at <http://www.

bsh.de/en/Marine_uses/Spatial_Planning_in_the_German_EEZ/documents2/MSP_DE_NorthSea.pdf>

(visited 7 February 2013).

130 Spatial Plan for the German Exclusive Economic Zone in the North Sea – Non-technical summary (North Sea), available at <http://www.bsh.de/en/Marine_uses/Spatial_Planning_in_the_German_EEZ/docu-ments2/Report-NorthSea.pdf> (visited 7 February 2013).at 25.

The GPNS includes large MPAs, which make a full reconciliation between interests difficult, especially between shipping and MPAs, as well as sand and gravel extraction and the MPAs. In addition, shipping and the extraction of sand and gravel seem to overlap spatially but they may be temporally reconciled. The MPAs are protected under the EU legislation under which certain activities can be exceptionally allowed within the MPA if they do not hamper the purpose for which the MPA is protect-ed.¹³¹ This makes possible the overlapping of two seemingly conflicting uses of space and allows reconciliation between interests without the need to exclude either.

Another source of potential conflict is considered to be that between maritime trans-port and wind farms in the MSP. According to Kannen:

[d]ealing with spatial conflicts between different sea uses depends mostly on their compatibility or incompatibility. In the German North Sea offshore, wind farm-ing is the best example because it is the latest actor, supported by national policy targets and interferes significantly with other sea uses because of its huge de-mands for space. In particular, offshore wind farms and shipping are incompat-ible within the same locations due to the risk of collisions, which led to sepa-rated zones for these activities in the spatial plan.¹³²

However, looking at the map of the MSP, one might argue that the wind power plants and other interests have been reconciled quite successfully on the spatial scale.¹³³