Reconciliation of interests as the aim of MSP

In this chapter, it is argued, firstly, that MSP is aimed at achieving sustainable devel-opment. Secondly, it is argued that because sustainable development is firmly based on the idea of reconciliation between environmental, social and economic develop-ment, all of the instruments which aim at implementing sustainable developdevelop-ment, such as Ecosystem Based Management and MSP, attempt to reconcile competing interests in a rational and equitable way. The third argument in this chapter is that aiming at sustainability does not mean only balancing competing interests in the use and protection of the marine environment, but also reconciling social needs such as the functioning of the legal system and rule of law, with the environmental, eco-nomic and other social aspects of sustainability. Reconciliation within sustainable development has to take into consideration all of the aspects of sustainability, and the rational functioning of the legal system can be seen as one element of social sus-tainability. Developed legal systems have certain valuable characteristics in governing our social world and these have to be taken into account when conjuring up new governance instruments which aim at implementing sustainable development.¹⁰

9 See on the scarce space in Belgium, Frank Maes, Jan Schrijvers and An Vanhulle: A Flood of Space. Towards a Spatial Planning Structure Plan for Sustainable Management of the North Sea (Belgian Science Policy, 2005), available at <http://www.unesco-ioc-marinesp.be/uploads/documentenbank/b29ecdecdd3c-1025c24b1f6473656633.pdf> (visited 30 January 2013) at 120–121.

10 In this line of thought, the law is not seen purely as a means to achieve sustainability but also as an instru-ment that has its own valuable characteristics, such as procedural safeguards, predictability etc. These can be seen as inherent parts of the social world of sustainability. On the law as a means of achieving sustain-ability, see Louis Kotzé, ‘Towards a Tentative Legal Formulation of Environmental Governance’, in Ed Couzens and Tuula Honkonen (eds), International Environmental Lawmaking and Diplomacy Review 2009, University of Eastern Finland – UNEP Course Series 9 (University of Eastern Finland, 2010) 3–20, at 19.

With regard to the aims of MSP, Ehler and Douvere have recognized that:

[a] key problem with various existing definitions on marine spatial planning is that they refer to planning and management of human activities and protection of the marine environment as if they were synonymous. They are not, however, and the lack of consistency in the use and application of both terms is one of the main reasons why fruitful discussions and interactions on the need of marine spatial planning regularly fail to go any further.¹¹

Some may view MSP mainly as an instrument of environmental protection, where-as others view the primary purpose of planning instruments where-as being to advance economic interests.¹² As this paper will demonstrate below, both views are misleading because they do not take sustainable development, which MSP is supposed to imple-ment, seriously.¹³

Since its wider popularization in the 1980s, the idea of sustainable development has been influential and widely accepted in international environmental policy and law.¹⁴ No doubt, a big part of this success is a result of the concept’s somewhat vague for-mulation and simultaneous adoption of at least seemingly conflicting views in a way that environmental, social and economic development were seen as mutually reinforc-ing instead of conflictreinforc-ing aims.¹⁵ What the idea of sustainable development seems to be implicating is that it is not impossible to achieve a high level of social, environmen-tal and economic conditions at the same time.¹⁶

11 Charles Ehler and Fanny Douvere, The Need for a Common Vocabulary for Marine Spatial Planning in Ecosystem-based Marine Management (UNESCO, 2007), available at <http://www.unesco-ioc-marinesp.

be/uploads/documentenbank/04f55833a70d8ecb2b712f5c2d23d710.pdf> (visited 12 March 2013) at

12 Charles Siegel, Unplanning. Livable Cities and Political Choices (Preservation Institute, 2010) at 27.7.

13 Although it has not been univocally accepted that the primary purpose of MSP is to achieve sustainable development, this paper will attempt to provide credible arguments as to why reconciliation of interests in line with the idea of sustainable development should be the aim of any MSP.

14 Marie Claire Cordonier Segger and Ashfaq Khalfan, Sustainable Development Law: Principles, Practices and Prospects (Oxford University Press, 2004) at 15–50. However, debates still remain on the legal status of sustainability. The legal conversation around sustainability focuses very often on whether sustainable development is hard law or soft law and whether the idea of sustainability has legal validity. Usually, the conversation has revolved around whether sustainable development can be seen as customary tional law, since it is quite clear that it cannot be regarded as hard law on the basis of the various interna-tional agreements that refer to it.

15 Klaus Bosselman, ‘The Concept of Sustainable Development’, in Klaus Bosselmann and David Grinlin-ton, Environmental Law for a Sustainable Society (New Zealand Centre for Environmental Law, 2002) at 87 states that the idea of sustainable development can simultaneously facilitate a view holding that sustain-able development poses a threat to the on-going economic growth and prosperity and, on the other hand, a view that sustainability is just another form of ‘growth-obsessed industrialism’. See also Cordonier Seg-ger and Khalfan, Sustainable Development Law, supra note 14, at 15; and Robert Costanza and Bernard C. Pattern, ‘Defining and Predicting Sustainability’, 15 Ecological Economics (1995) 193–196.

16 However, some scholars have been somewhat sceptical as to whether this aim can be achieved. See, for instance, David W. Pearce and Edward B. Barbier, Blueprint for a Sustainable Economy (Earthscan, 2000) at 30. See also Tuomas Kuokkanen, ‘Perspectives within the Climate Change Regime’, in Ed Couzens and Tuula Honkonen (eds), International Environmental Law-making and Diplomacy Review 2010, Univer-sity of Eastern Finland – UNEP Course Series 10 (UniverUniver-sity of Eastern Finland, 2011) 41–49, who at

The vague formulation, and adoption of aims which are at least to some extent con-flicting, within the idea of sustainable development has led to a situation in which sustainability is used to justify economic growth at the same time as demanding radical changes to the current social and economic structures of societies on the basis that the carrying capacity of the earth will not sustain the present level of social and economic pressure. As Holling has noted:

[s]ustainable designs driven by conservation interests often ignore the needs for an adaptive form of economic development that emphasizes human economic enterprise and institutional flexibility. Those driven by economic and industrial interests often act as if the uncertainty of nature can be replaced with human engineering and management controls, or be ignored all together. These are not wrong, just too partial.¹⁷

Advancing only certain interests was never the idea of sustainable development.

Rather, the idea of reconciliation or balancing between the environmental, social and economic aspects was and still is paramount.¹⁸ This idea of reconciliation behind sustainability is neatly characterized by the International Court of Justice (ICJ) in the Gabčikovo–Nagymaros case:

[t]hroughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind – for present and future generations of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instru-ments during the last two decades. Such new norms have to be taken into con-sideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development [own emphasis].¹⁹

42 states that ‘[t]he new paradigm [sustainable development] was to optimize short-term economic in-terests and long-term environmental concerns. This did not, though, lead to a harmony of inin-terests.

Rather, the reconciliation brought the two elements under the framework [of sustainable development]’.

17 Crawford S. Holling, ‘Theories for Sustainable Futures’, 4 Conservation Ecology (2000), available at

<http://www.consecol.org/vol4/iss2/art7/> (visited 6 February 2013).

18 See Gro Harlem Brundtland, Our Common Future (Oxford University Press, 1987) at 20: ‘[t]he “environ-ment” is where we all live; and “develop“environ-ment” is what we all do in attempting to improve our lot within that abode. The two are inseparable’; ‘2005 World Summit Outcome’, UNGA Res. A/60/1, adopted by the General Assembly on 15 September 2005 para. 48: ‘… [t]hese efforts will also promote the integration of the three components of sustainable development – economic development, social development and environmental protection – as interdependent and mutually reinforcing pillars’; and Bosselman, ‘The Concept’, supra note 15 at 87. However, many scholars have emphasized that the concept of sustainabil-ity has many meanings depending on the context of its use. For instance, sustainabilsustainabil-ity in social sciences and natural sciences has completely different meanings. See, for instance, Louis Kotzé, ‘Towards a Tenta-tive Legal Formulation of Environmental Governance’, supra note 10, at 17.

19 Gabčikovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports (1997) 7, at para. 140.

Despite the idea of sustainable development, or the idea of balancing between eco-logical, social and economic considerations, becoming more acceptable in recent years, the overall condition of the marine environment has by many standards been deteriorating and conflicts among different users of the marine resources and space are multiplying.²⁰ As was noted earlier, many scholars have pinpointed the reason behind this as being the failure in governance mechanisms. In other words, we do not possess the tools needed to implement the idea of sustainability in reality.²¹ Ecosystem Based Management (EBM) has been described as one of the tools for implementing the idea of sustainable development and helping to address the gov-ernance problems relating to marine issues.²² The argument is that in order to achieve sustainability, we need to adopt an ecosystem approach, which ‘considers the entire ecosystem, including humans. The goal of ecosystem-based management is to main-tain an ecosystem in a healthy, productive and resilient condition so that it can provide the goods and services humans want and need’.²³ Within the context of the Convention on Biological Diversity (CBD),²⁴ EBM is defined as a ‘strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way. Application of the ecosystem approach will help to reach a balance of the three objectives of the Convention’ (own emphasis).²⁵ In order for the goals of EBM to be achieved in marine areas, place-based and inte-grated management systems are needed, which allow for a vast amount of informa-tion from different sectors to be taken into account when deciding whether a certain

20 See, for instance, UNEP, Global Synthesis: A report from the Regional Seas Conventions and Action Plans for the Marine Biodiversity Assessment and Outlook Series (UNEP Regional Seas Programme, 2010) passim.

21 Lawrence J. MacDonnel, ‘Sustainable Use of Water Resources’, 2 Natural Resources & Environment (1997) 97–100 at 97: ‘[t]he virtue of sustainability as a concept sufficiently broad to embrace contemporary thinking about human objectives becomes a curse of vagueness when the discussion shifts from general to specific’.

22 See Paul M. Gilliland and Dan Laffoley, ‘Key Elements and Steps in the Process of Developing Ecosystem-based Marine Spatial Planning’, 32 Marine Policy (2008) 787–796. Bruce Pardy, ‘Changing Nature: The Myth of the Inevitability of Ecosystem Management’, 29 Pace Environmental Law Review (2003) at 675–692 has been quite critical of the claim that ecosystems have to be managed instead of left to their own devices. While the present author agrees with Pardy on the notion that ecosystem management is a policy choice and that not every ecosystem should be managed, the author would like to point out that modern ecosystem management instruments are constructed in a way that allows some areas to be pre-served (or maintained in a natural state of non-equilibrium) and other areas to be used more heavily for human purposes. This can be seen especially well in the place-based management instruments designed for marine areas, such as marine spatial planning. Ecosystem management can be a tool of management or non-management. Craig, Comparative Ocean Governance, supra note 4, at 5, has also noted that all the marine governance instruments are anthropocentric and some changes in the environment can be con-sidered as bad from the point of view of ecological and economic productivity. For this reason, some form of management should be established in marine areas.

23 Ehler and Douvere, Marine Spatial Planning, supra note 3, at 24.

24 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, in force 29 December 1993, 31 Inter-national Legal Materials (1992) 822, <http://www.biodiv.org>.

25 See CBD, ‘Ecosystem Approach’, available at <http://www.cbd.int/ecosystem/> (visited 28 January 2013).

The objectives of the Convention are presented in Article 1: 1) conservation of biological diversity; 2) sustainable use of its components; and 3) fair and equitable sharing of benefits arising out of the utilization of genetic resources.

action in a certain area should be allowed or not.²⁶ The idea behind EBM is to move away from traditional single sector-based strategies of environmental governance.²⁷ However, it has been argued that EBM itself is not suitable for the task of achieving sustainability because it operates on too general a level.²⁸ A new governance instru-ment is needed in order to reconcile the conflicts and allocate space between different uses. In marine areas, the tool designed to implement the principles of sustainable development and EBM is MSP.²⁹ Gilliland and Daffoley have argued that achieving sustainable development should be the main aim of MSP:

… MSP should encompass the principles that underpin sustainable develop-ment… [and at the heart of this idea is providing] a balanced view between competing uses, high-lighting where one human activity might preclude an-other, helping avoid or minimise conflicts of interest, and, where possible, opti-mising the co-location of compatible activities.³⁰

Taking into consideration the fundamental aim of reconciliation established above, it is quite clear that MSP should not be viewed purely as either an instrument of environmental protection or as an instrument advancing economic or social inter-ests.³¹ The somewhat idealistic aim of MSP is to achieve all of these objectives at the same time. The rationale of this thinking is to enable maximum utilization as well as maximum protection of biodiversity and ecosystems simultaneously.³² It is true that many MSP systems have close (past or present) linkages to conservation (for instance, marine protected areas), but marine zoning within any MSP can also be used for purposes opposed to this. According to Agardy:

26 Fanny Douvere, Frank Maes, An Vanhulle and Jessie Schrijvers, ‘The Role of Marine Spatial Planning in Sea Use Management: The Belgian Case’, 31 Marine Policy (2007) 182–191; Oran R. Young, Gail Osh-erenko, Julia Ekstrom,Larry B. Crowder, John Ogden, James A. Wilson, Jon C. Day, Fanny Douvere, Charles N. Ehler, Karen L. McLeod, Benjamin S. Halpern and Robbin Peach, ‘Solving the Crisis in Ocean Governance. Place-Based Management of Marine Ecosystems’, 49 Environment (2007) 22–27; Douvere,

‘The importance of’, supra note 7, at 764; Ehler and Douvere, Marine Spatial Planning, supra note 3, at

27 Scott D. Slocombe, ‘Implementing Ecosystem-based Management. Development of Theory, Practice, and 18.

Research for Planning and Managing a Region’, 43 BioScience (1993) 612–622.

28 Katie K. Arkema, Sarah C. Abramson and Bryan Dewsbury, ‘Marine Ecosystem-Based Management:

From Characterization to Implementation’, 4 Frontiers in Ecology and the Environment (2006) 525–532.

29 Deborah A. Sivas and Margaret R. Caldwell, ‘A New Vision for California Ocean Governance: Compre-hensive Ecosystem-based Marine Zoning’, 27 Stanford Environmental Law Journal (2008) 209–270 at 226–227. The authors see MSP as an ecosystem based zoning instrument.

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

31 See EC COM (2008) 791 final, supra note 5, at 2: ‘[o]bjective [of the MSP] is to balance sectoral interests and achieve sustainable use of marine resources’. The Commission of the European Union is currently preparing a directive for an EU-wide framework of the MSP. See also Tundi Agardy, Ocean Zoning. Mak-ing Marine Management More Effective (Earthscan, 2010) at 34.

32 However, Stephen Jay, ‘Built at Sea. Marine Management and the Construction of Marine Spatial Plan-ning’, 81 Town Planning Review (2010) 173–192 at 177 has been quite critical towards the idea that MSP could rationalize the use of marine space. This view is mainly based on scepticism towards MSP’s capabil-ity of controlling the use of the marine environment to the extent required and on the problems of complex objectivities and political settings.

… zonation may also be based on a kind of conservation-in-reverse process, whereby areas not needing as much protection or management as others would be highlighted. Such high-use zones could be ‘sacrificial’ areas, already so de-graded or heavily used that massive amounts of conservation effort would not be cost-effective, or they might be areas determined to be relatively unimportant in an ecological sense.³³

MSP seems to have two fundamental goals, which can both be systematized under the idea of sustainable development. The first goal is to balance and reconcile con-crete interests within a specific marine area. On the other hand, MSP is based very closely on implementing EBM, which is in its own right an implementation mecha-nism for sustainable development. Taking into consideration this linkage between MSP and sustainable development, MSP should be able to balance the different as-pects of sustainable development on a more general level as well. This means that while MSP should be able to deliver sustainable development in the area where it is deployed in balancing and reconciling competing interests, the whole instrument of MSP should be sustainable as well.

The sustainability of a governance instrument,³⁴ such as MSP, can be assessed through multiple criteria: 1) openness, transparency and accountability; 2) fairness and effec-tive services; 3) clear and transparent laws and regulations; and 4) rule of law, among others.³⁵ Rule of law is commonly characterized as referring to, ‘[s]tates where con-duct is governed by a set of rules that are applied predictably, efficiently, and fairly by independent institutions to all members of society, including those who govern’.³⁶ Rule of law has been seen as one of the elements that any governance system aiming at sustainable development should contain.³⁷ Furthermore, the idea of rule of law has been closely connected to achieving the aims of sustainable development or even that the rule of law is a part of sustainability in its social sphere.³⁸

We now have two broad criteria by which any MSP system can be evaluated: firstly, whether MSP succeeds in reconciling and balancing competing interests in a certain marine area; and, secondly, whether MSP itself as a governance instrument can be

33 See Agardy, Ocean Zoning, supra note 31, at 18.

34 In this context, the ‘sustainability’ of a governance instrument refers to a set of criteria a legal or policy instrument has to fulfill in order for it to be described as ‘good’ governance. See further, on the criteria of good governance, OECD ‘Final Report of the Ad Hoc Working Group on Participatory Development and Good Governance’, Part 1 and Part 2 (1997).

35 See ibid. See also Klaus Bosselmann, Ron Engel and Prue Taylor, Governance for Sustainability – Issues, Challenges, Successes (IUCN Switzerland, 2008) at 5–6.

36 Durwood Zaelke, Mathew Stilwell and Oran Young, ‘What Reason Demands; Making Law Work for Sustainable Development’, in Durwood Zaelke et al (eds), Making Law Work: Environmental Compliance and Sustainable Development (Cameron May, 2005) at 38.

37 See Bosselmann et al, Governance for Sustainability, supra note 35, at 517.

37 See Bosselmann et al, Governance for Sustainability, supra note 35, at 517.