Report on
Marine Spatial Planning
Prepared for the Maritime Policy Task Force of the European Commission
by Dr. Inken von Gadow,
Brussels, July 2006
1
Contents
Intention of this Report .............................................................................................................. 4
I. What is Marine Spatial Planning? ........................................................................................... 4
II. Spatial Planning in the Green Paper ...................................................................................... 5
1. Coordination of maritime activities.................................................................................... 5
2. Economically and environmentally sustainable development of coastal regions .............. 5
3. Spatial Planning and ICZM ................................................................................................ 6
4. Mapping ............................................................................................................................. 6
5. Existing experience and tools for spatial planning............................................................. 6
III. International Law Framework to Marine Spatial Planning .................................................. 6
1. The Territorial Sea ............................................................................................................. 6
a) In General: Full Jurisdiction of the Coastal State .......................................................... 7
b) Exception: Innocent Passage – Implications on Marine Spatial Planning ..................... 7
aa) General ..................................................................................................................... 7
bb) Legislative Power ..................................................................................................... 8
cc) Enforcement Power .................................................................................................. 9
2. Straits Used for International Navigation ......................................................................... 10
3. The Exclusive Economic Zone......................................................................................... 10
a) The Concept of Functional Jurisdiction / Sovereign Rights ........................................ 10
b) The Sovereign Rights in Detail .................................................................................... 11
aa) Exploring and Exploiting, Conserving and Managing the Living Natural Resources
...................................................................................................................................... 11
bb) Exploring and Exploiting, Conserving and Managing the Non-Living Natural
Resources ..................................................................................................................... 12
cc) Production of Energy from the Water, Currents and Winds .................................. 12
dd) Artificial Islands, Installations and Structures ....................................................... 12
4. The Continental Shelf....................................................................................................... 13
5. Restrictions Imposed by Part XII UNCLOS (Protection and Preservation of the Marine
Environment) ........................................................................................................................ 14
a) Art. 192, 193 UNCLOS ............................................................................................... 14
b) Art. 195 and Art. 194 II UNCLOS .............................................................................. 14
c) Art. 194 V, Art. 211 VI of UNCLOS: MPAs, PSSAs ................................................. 15
d) Developments Not Reflected in UNCLOS .................................................................. 16
6. Conclusions on the International Law Framework .......................................................... 17
IV. EU Legal Framework ......................................................................................................... 17
1. Relationship of UNCLOS and Community Law ............................................................. 17
2. Existing EU/EC Legal Instruments Having Impact on Marine Spatial Planning ............ 18
a) The Common Fisheries Policy ..................................................................................... 18
aa) Council Regulation (EC) No 2371/2002 ................................................................ 18
bb) Regulations concerning the "Darwin Mounds" ..................................................... 19
cc) Fisheries-legislation 'de lege ferenda' ..................................................................... 19
(1) COM (2002) 535 final – Fisheries Protection Zones ......................................... 19
(2) COM (2002)511 final - Aquaculture .................................................................. 19
b) The FHH- and the Bird-Directive (Natura 2000) ........................................................ 20
c) Strategic Environmental Assessment (SEA-) Directive 2001/42/EC and the
Environtmental Impact Assessment (EIA-) Directive 85/337/EEC ................................. 20
d) Water Framework Directive (WFD) and related Directives ........................................ 21
2
e) Industrial Installations and the Integrated Pollution Prevention and Control Directive
(IPPC) ............................................................................................................................... 22
f) Exploitation of Hydrocarbons Directive ....................................................................... 22
g) Legislation and Activities on Integrated Coastal Zone Management .......................... 23
aa) Development of ICZM ........................................................................................... 23
(1) Resolution 92/C 59/01 ........................................................................................ 23
(2) Resolution 94/C 135/02 ...................................................................................... 23
(3) Recommendation 2002/413/EC .......................................................................... 24
bb) Preliminary Conclusions ........................................................................................ 25
cc) Reconciliation of ICZM and Marine Spatial Planning ........................................... 25
dd) Impact of Climate Change on ICZM and Marine Spatial Planning....................... 26
h) Trans-European Networks - "Motorways of the Sea" ................................................. 27
i) Planned Marine Strategy Directive ............................................................................... 28
j) Monitoring of Compliance ............................................................................................ 29
aa) Galileo .................................................................................................................... 29
bb) INSPIRE ................................................................................................................ 30
cc) GMES ..................................................................................................................... 30
3. Conclusions on the EU Legal Framework ....................................................................... 31
V. Networks, Initiatives, Activities etc. ................................................................................... 31
1. ESPON ............................................................................................................................. 31
2. Interreg III ........................................................................................................................ 32
3. CEMAT ............................................................................................................................ 32
4. ESDP ................................................................................................................................ 34
Conclusions: Potential Points of Common Interest in View of EU Action ............................. 34
1. Raising Awareness ........................................................................................................... 35
2. The Need for Integrated Planning Procedures ................................................................. 35
3. The Need for Common Documentation ........................................................................... 35
4. The Need for Common Substantive Rules and Tools ...................................................... 36
3
Intention of this Report
The report is meant to serve several purposes:
Firstly, the report defines the scope and contents of marine spatial planning (under I.).
Secondly, the report (under II.) sums up the content of the Green Paper on marine spatial
planning. Thirdly, it shall provide background knowledge for the Maritime Policy Task Force
(MPTF) on the legal framework for marine spatial planning in International Law (under III.)
and in the EU (under IV.). Furthermore, the report is not only concerned with legal
instruments. It also identifies (under V.) programs, activities, networks etc. that can be used in
order to develop marine spatial planning and control of compliance with spatial planning laws
in the future.
The report, understood not as an exhaustive work but as a working document, shall be a place
where, by continuously updating it as the work on marine spatial planning moves on,
knowledge on recent developments, meetings, activities etc. can be accumulated.
The report does not cover legislation already in place in the Member States and experiences of
Non-Member-States (Australia, Canada). A detailed analysis of this had to be left for an
external study and workshops.
I. What is Marine Spatial Planning?
Spatial planning presupposes a great number of conflicting uses of the space. The idea of
spatial planning is to overcome sectoral perspectives, that take into account only separately
the different uses of the sea and the different attempts at protection and conservation of
marine eco-systems. Marine spatial planing aims at minimizing and preventing conflicts by
spatially separating conflicting uses and combining those uses that are compatible or even
interdependent.
Spatial planning-instruments exist for land space. They can usually not be applied or
transferred to the sea for several reasons. One of these reasons is that the seas and oceans have
one dimension more than the land-space which planning concepts have to take into account
(sea: surface, water column, seabed, subsoil and airspace; land-space: surface, soil, airspace).
Besides, important premises of spatial planning on land do not exist on the seas and oceans:



there is no private property on the seas;
there is no human settlement on the seas;
there are no barriers, pollution spreads easily, marine eco-systems can cut across
national boundaries.
Spatial planning laws for land-use intent to solve conflicts that arise from the development of
human settlement and have to take into account property rights, whereas they are less
concerned with trans-boundary protection and conservation of the environment. Especially the
trans-boundary effects of the different uses of the seas and oceans create the need for common
action on the international or European level.
The uses of the sea that have to be coordinated by marine spatial planning are:
 the placement of off-shore installations (petroleum and natural gas platforms)
 fisheries activities
 shipping routes
 the placement of pipelines and submarine cables
4




sediment extraction
the placement of off-shore windfarms
the placement of dumping grounds for dredged material and ammunition
the placement of special nature conservation zones (MPAs, PSSAs, …).
Furthermore, integrated and eco-system-based marine spatial planning will have to take into
account the land-sea-interface. Spatial planning in coastal-land-areas has to be included in the
concept. This can be done in the framework of Integrated Coastal Zone Management (ICZM).
Instruments and procedures for marine spatial planning need to be developed. Marine spatial
planning activities will have to take into account the need for surveillance ("maritime
domaine awareness") and enforcement of rules concerning the use of the sea. For these
purposes good data on the uses of the sea are needed.
Maritime spatial planning procedures, maritime surveillance and data collection, in order to
be most effective, must be carried out according to international and European law either on
the national level in cooperation with other states concerned or on the European or
international level.
Therefore, the existing framework of international and European law has to be identified.
Also, the potential points of common interests in view of EU action have to be defined.
II. Spatial Planning in the Green Paper
European coastal regions are becoming more and more attractive, maritime activities are
increasing. The Green Paper states that the development of the coastal regions inevitably
brings with it pressures on space and the environment. In the aftermath of the 1992 Rio
Summit of Environment and Development spatial planning has been identified as an
important ocean management tool. This has been taken up by the Green Paper:
1. Coordination of maritime activities
The Green Paper calls for a comprehensive system of ecosystem-based spatial planning for
European coastal waters. It describes spatial planning as a means of coordinating the
placement of off-shore renewable energy installations and of coordinating off-shore
installations with fisheries activities, shipping routes and port infrastructure. Therefore, spatial
planning also has to deal with licensing, promoting or placing restrictions on maritime
activities.1
2. Economically and environmentally sustainable development of
coastal regions
By coordinating all maritime activities spatial planning also ensures protection of the marine
environment. This has already been stated by the Thematic Strategy for the Marine
Environment. Furthermore, spatial planning will not only help to coordinate the various
activities in coastal regions but also to provide financial security for investment decisions of
private parties as well as of the public sector. Spatial planning can ensure that investment
decisions will not be hampered by uncertainty with respect to whether an activity will be
1
Chapter 2.7 of the Green Paper.
5
licensed for a particular site. Overall, an innovative spatial planning can help to ensure an
economically and environmentally sustainable development of coastal regions.2
3. Spatial Planning and ICZM
A successful spatial planning has to be coherent with national and international coastal zone
management strategies which the Member States have been encourage to adopt by the
recommendation of the European Parliament and the Council of May 2002 (2002/413/CE).
The Green Paper states that although EU policies are a pre-requisite for successful ICZM,
actual solutions to coastal planning and management issues are best found at a regional or
local level. The Green Paper encourages Member States to set up the appropriate planning
process and to use for this purpose existing regional organizations whose activities have
impact on maritime activities, such as HELCOM, OSPAR, the UN-MAP and the Barcelona
Process. According to the Green Paper the EU’s role in the planning process would only be to
lay down the parameters, define the geographic extent of the regions involved and the
elements of planning which are in the common interest. The EU could also provide the tools
to ensure successful planning. The Green Paper stresses that in order to manage successfully
the interaction of coastal and maritime issues across the land-sea-interface, an overall EU
maritime Policy has a major stake in the success of ICZM.3
4. Mapping
For purposes of spatial planning, security and safety the Green Paper recommends to set up
European programs to develop the comprehensive mapping of European coastal waters. The
idea is expressed to develop an Atlas of EU coastal waters as instrument of spatial planning.4
5. Existing experience and tools for spatial planning
The Green Paper calls for a debate on the principles which should underlie effective spatial
planning. It draws attention to the fact that some Member States have already gained some
experience with spatial planning and that Australia and Canada even have implemented
spatial planning systems.
From these experiences it can be drawn that effective spatial planning depends on appropriate
management tools. Among these are systems for the provision of extensive spatial data,
cumulative environmental impact assessment (EIAs) and marine protected areas (MPAs). The
Green Paper, in addition, proposes to organize regular stake-holder conferences.5
III. International Law Framework to Marine Spatial Planning
It is stated in the third background paper of the Green Paper: "The Law of the Sea (UNCLOS
and its related instruments) provides the basic legal framework for the allocation of maritime
space to States, their rights and obligations regarding such space in its different
compartments, and the system for international co-operation towards ocean management and
conservation."6
1. The Territorial Sea
Every State has the right to establish the breadth of its Territorial Sea up to a limit not
exceeding 12 nautical miles, measured from baselines which are determined according to Art.
2
Chapter 4.2 of the Green Paper.
Chapter 3.4, 4.2 and 5.1 of the Green Paper.
4
Chapter 4.1 of the Green Paper.
5
Chapter 4.2 of the Green Paper.
6
Third background paper to GP, p. 3.
3
6
7, 9 and 10 UNCLOS.7 Waters on the landward side of the baseline of the Territorial Sea form
part of the Internal Waters of the State (Art. 8 UNCLOS).
a) In General: Full Jurisdiction of the Coastal State
According to Art. 2 UNCLOS which deals with the legal status of the Territorial Sea, of the
air space over the Territorial Sea and of its bed and subsoil
“1. The sovereignty of a coastal State extends, beyond its land territory and internal waters
and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea,
described as the Territorial Sea.
2. This sovereignty extends to the air space over the Territorial Sea as well as to its bed and
subsoil.
3. The sovereignty over the Territorial Sea is exercised subject to this Convention and to
other rules of international law.”
It follows from this article that the Territorial Sea is regarded as an equivalent to the land
territory and the internal waters. Thus, the coastal state has full jurisdiction (legislation and
enforcement) with respect to marine spatial planning in the Territorial Sea.
According to Art. 11 UNCLOS, outermost permanent harbour works which form an integral
part of the harbour system are regarded as forming part of the coast, that means of the internal
waters. However, Art. 11 UNCLOS also states that off-shore installations and artificial islands
are not considered as permanent harbour works. Therefore, such installations or artificial
islands will be part of the Territorial Sea if they are within 12 nautical miles from the
baselines.
For the purposes of marine spatial planning it is also important to note that according to Art.
12 UNCLOS roadsteads which are normally used for the loading, unloading and anchoring of
ships, and which would by measuring 12 nautical miles form the baselines normally be
situated wholly or partly outside the outer limit of the Territorial Sea, are included in the
Territorial Sea. Thus, access to such roadsteads is also under the jurisdiction of the coastal
state.
b) Exception: Innocent Passage – Implications on Marine Spatial
Planning
aa) General
The only exception to the full jurisdiction of the coastal state in the Territorial Sea is the right
of innocent passage. According to Art. 17 UNCLOS ships of all states, whether coastal or
land-locked, enjoy the right of innocent passage though the Territorial Sea. Art. 18 UNCLOS
defines the meaning of “passage”8, Art. 19 UNCLOS defines the meaning of "innocence"
with respect to passage through the Territorial Sea9.
7
Art. 3 UNCLOS.
Art. 18 UNCLOS: “1. Passage means navigation through the Territorial Sea for the purpose of:
(a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal
waters; or
(b) proceeding to or from internal waters or a call at such roadstead or port facility.
8
7
bb) Legislative Power
However, the coastal state retains some legislative power relating to innocent passage which
also allows for national legislation on marine spatial planning.
According to Art. 21 UNCLOS which deals with laws and regulations of the coastal State
relating to innocent passage
“1. The coastal State may adopt laws and regulations, in conformity with the provisions of
this Convention and other rules of international law, relating to innocent passage through the
Territorial Sea, in respect of all or any of the following:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the coastal State;
(f) the preservation of the environment of the coastal State and the prevention, reduction and
control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State.
2. Such laws and regulations shall not apply to the design, construction, manning or
equipment of foreign ships unless they are giving effect to generally accepted international
rules or standards.
3. The coastal State shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of innocent passage through the Territorial Sea shall
comply with all such laws and regulations and all generally accepted international
regulations relating to the prevention of collisions at sea.”
2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in
so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or
for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.”
9
Art. 19 UNCLOS: “1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of
the coastal State. Such passage shall take place in conformity with this Convention and with other rules of
international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the
coastal State if in the Territorial Sea it engages in any of the following activities:
(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal
State, or in any other manner in violation of the principles of international law embodied in the Charter of the
United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration
or sanitary laws and regulations of the coastal State;
(h) any act of wilful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the
coastal State;
(l) any other activity not having a direct bearing on passage.”
8
These legislative powers with respect to regulations on innocent passage can be attributed to
the different uses of the sea that have been identified above10. This exercise indicates in which
subject matters the right of innocent passage can be restricted by marine spatial planning
laws:
Placement
of
off-shore
installations
Fisheries
activities
Art.
21
(1)
UNCLOS
a)
b)
Shipping
Routes
x
Placement of
off-shore
windfarms
Placement of
dumping
grounds
Placement of
MPAs
/
PSSAs
x
d)
e)
g)
Sediment
extraction
x
x
c)
f)
Placement of
pipelines and
submarine
cables
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
h)
The table shows that with respect to each activity that require spatial planning, Art. 21
UNCLOS provides a legal basis for legislation which can restrict the right of innocent
passage.
It should be noted that Art. 22 UNCLOS develops further Art. 21 I a UNCLOS.11
cc) Enforcement Power
UNCLOS also provides to a certain extend for enforcement power of the coastal state in order
to prevent non-innocent passage (Art. 25 I UNCLOS), to prevent a breach of the regulations
on innocent passage (Art. 25 II UNCLOS) or to suspend innocent passage in cases of
emergency (Art. 25 III UNCLOS). Suspension of innocent passage is also possible in
archipelagic waters (Art. 52 UNCLOS).
Enforcement regulations are concerned with actions to combat dangers already existing when
the enforcement action takes place. Marine spatial planning ideally is an anticipatory action
dealing with the prevention of dangers that result from conflicting uses. However, as it has
already been stated, also legislation on marine spatial planning has to be enforceable. Art. 25
10
See under I.
“1. The coastal State may, where necessary having regard to the safety of navigation, require foreign ships
exercising the right of innocent passage through its Territorial Sea to use such sea lanes and traffic separation
schemes as it may designate or prescribe for the regulation of the passage of ships.
2. In particular, tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or
noxious substances or materials may be required to confine their passage to such sea lanes.
3. In the designation of sea lanes and the prescription of traffic separation schemes under this article, the
coastal State shall take into account:
(a) the recommendations of the competent international organization;
(b) any channels customarily used for international navigation;
(c) the special characteristics of particular ships and channels; and
(d) the density of traffic.
4. The coastal State shall clearly indicate such sea lanes and traffic separation schemes on charts to which due
publicity shall be given.”
11
9
II UNCLOS can serve as a legal basis for the enforcement of laws on marine spatial planning
that restrict innocent passage (the subject matters in which this is possible are indicated in the
table above).
2. Straits Used for International Navigation
Through straits used for international navigation there can be either Transit Passage or
Innocent Passage. The regulations concerning Transit Passage (Art. 37 ff. UNCLOS) apply to
straits which are used for international navigation between one part of the High Seas or an
EEZ and another part of the High Seas or an EEZ. The regulations on Innocent Passage apply
to straits used for international navigation between a part of the High Seas or an EEZ and the
Territorial Sea of a foreign state.
It is important to note that neither transit passage nor innocent passage through straits used for
international navigation can be suspended by the coastal state (Art. 44, 45 II UNCLOS) which
means that Art. 25 UNCLOS cannot be applied. The third background paper to the Green
Paper points out, that this "regime restricts in practise the means of intervention of coastal
states over the passing ships and their possibility to exercise legislative jurisdiction on the
transiting ships, despite the fact that any pollution incident in these zones presents an
imminent risk for neighbouring states. The jurisdiction to regulate maritime safety and
pollution prevention is thus limited to enacting laws and regulations that have either been
established at international level or which were approved by IMO."12
The UNCLOS-provisions cannot be overruled by EC-legislation. According to the ECJ's
judgment of 30 May 2006 in the Mox Plant Case (Commission v. Ireland) UNCLOS is an
integral part of the EC's legal order and, therefore, has to be applied by all Member States.13 It
follows that there is a strong need for international regulations on spatial planning with
respect to shipping routes in straits used for international navigation. These regulations must
lay the basis for intervention in case of pollution by a transiting ship.
3. The Exclusive Economic Zone
The Exclusive Economic Zone (EEZ) has to be established explicitly by the coastal state. It
shall not extend beyond 200 nautical miles from the baselines from which also the breadth of
the Territorial Sea is measured (Art. 57 UNCLOS).
In the EU neither the UK nor the Mediterranean States have so far declared an EEZ. Some of
these Member States who have not formally declared an EEZ are, however, exercising
equivalent sovereign rights over their off-shore marine environment (for example the UK). In
the Mediterranean a number of Member States have established Fisheries Protection Zones
(Spain, Malta) or environmental protection zones (France).14
a) The Concept of Functional Jurisdiction / Sovereign Rights
In the EEZ all states enjoy the freedoms of the High Seas – navigation, overflight, laying of
submarine cables and pipelines, construction of artificial islands and other installations
permitted under international law, fishing and scientific research (Art. 58, 87 UNCLOS). The
coastal state only has certain “sovereign rights” in the EEZ and therefore only limited or so-
12
Third background paper to the GP, p. 10.
ECJ, judgment of the Court of 30 May 2006, Case C-459/03, Comission v. Ireland, para. 82.
14
See on this in more detail the third background paper to the GP, p. 15.
13
10
called “functional jurisdiction”. The scope of this functional jurisdiction is set out in Art. 56
UNCLOS:
“1. In the exclusive economic zone, the coastal State has:
(a) 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, and with regard to other activities for the economic exploitation
and exploration of the zone, such as the production of energy from the water, currents and
winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive
economic zone, the coastal State shall have due regard to the rights and duties of other States
and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in
accordance with Part VI.”
Thus, in the EEZ the coastal state can only legislate on marine spatial planning (and enforce
such legislation) with respect to these rights.
Furthermore, even with respect to these “sovereign rights” the coastal state is not totally
unrestricted. Firstly, the coastal states has to pay attention to the protection and preservation
of the marine environment (Art. 56 I b) (iii) UNCLOS, Art. 192 ff. UNCLOS). Therefore, the
coastal state has to exercise sovereign rights in a sustainable manner. This also applies to
spatial planning-activities. Secondly, restrictions are imposed by the interaction with EClegislation which applies, according to a judgement of the European Court of Justice of 20
October 2005, also to the EEZ.15
b) The Sovereign Rights in Detail
aa) Exploring and Exploiting, Conserving and Managing the Living
Natural Resources
The coastal state determines the allowable catch of the living resources in its EEZ (Art. 61
UNCLOS). It gives other states access to the surplus of the allowable catch that it cannot
harvest itself (Art. 62 UNCLOS). All these measures have to be taken with due regard to the
duty to ensure the maintenance of the living resources (Art. 61 II UNCLOS). The ICJ has
decided that in international law measures aimed at conserving and managing natural
resources can satisfy various technical requirements.16 This is important for the purposes of
marine spatial planning. Measures aimed at conserving and managing the natural resources
are thus not confined to determining the allowable catch. They could also include the
determination of zones where fishing activities are prohibited or restricted.
15
See further under IV. 1.; ECJ, judgment of the Court of 20 October 2005, Commission v. UK, Case C-6/04,
para. 117.
16
ICJ, Fisheries Jurisdiction Case, Spain v. Canada, judgment of 4 th Dec. 1998:“70. According to international
law, in order for a measure to be characterized as a "conservation and management measure", it is sufficient that
its purpose is to conserve and manage living resources and that, to this end, it satisfies various technical
requirements.”
11
However, the Member States of the EC are bound by the Common Agricultural Policy of the
EC and the Common Fisheries Policy (Art. 3 I e and Art. 32 I 2 EC Treaty, Art. 6 EC Treaty).
The EC has exclusive competence on fisheries policy. Zones where fishing activities are
prohibited or restricted belong to the measures to be established by the Council in order to
ensure exploitation of living aquatic resources that provides sustainable economic,
environmental and social conditions.17 The exclusive EC competence on fisheries policy and
the priority of EC law do not allow for stricter rules on zones where fishing activities are
prohibited or restricted under national law.
bb) Exploring and Exploiting, Conserving and Managing the Non-Living
Natural Resources
According to Art. 56 I a UNCLOS the coastal state also has sovereign rights for the purpose
of exploring and exploiting, conserving and managing the non-living natural resources,
especially of the seabed and subsoil. These rights are dealt with in more detail in part VI of
UNCLOS on the Continental Shelf which Art. 56 III UNCLOS refers to.
cc) Production of Energy from the Water, Currents and Winds
Since the coastal state enjoys sovereign rights with regard to the production of energy from
the water, currents and winds, it has the power to legislate on the authorization and placement
of renewable-energy-installations, such as off-shore windfarms, and to enforce such rules.
dd) Artificial Islands, Installations and Structures
The rights relating to artificial islands, installations and structures are set out in more detail in
Art. 60 UNCLOS.18 For the purposes of marine spatial planning it is especially important that
17
Art. 2 I and Art. 4 II b ii of Council Regulation (EC) no 2371/2002 of 20 Dec. 2002 on the conservation and
sustainable exploitation of fisheries resources under the Common Fisheries Policy.
18
Art. 60 UNCLOS:
1. In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize
and regulate the construction, operation and use of: (a) artificial islands; (b) installations and structures for the
purposes provided for in article 56 and other economic purposes; (c) installations and structures which may
interfere with the exercise of the rights of the coastal State in the zone.
2. The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures,
including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.
3. Due notice must be given of the construction of such artificial islands, installations or structures, and
permanent means for giving warning of their presence must be maintained. Any installations or structures which
are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally
accepted international standards established in this regard by the competent international organization. Such
removal shall also have due regard to fishing, the protection of the marine environment and the rights and duties
of other States. Appropriate publicity shall be given to the depth, position and dimensions of any installations or
structures not entirely removed.
4. The coastal State may, where necessary, establish reasonable safety zones around such artificial islands,
installations and structures in which it may take appropriate measures to ensure the safety both of navigation and
of the artificial islands, installations and structures.
5. The breadth of the safety zones shall be determined by the coastal State, taking into account applicable
international standards. Such zones shall be designed to ensure that they are reasonably related to the nature and
function of the artificial islands, installations or structures, and shall not exceed a distance of 500 metres around
them, measured from each point of their outer edge, except as authorized by generally accepted international
standards or as recommended by the competent international organization. Due notice shall be given of the
extent of safety zones.
6. All ships must respect these safety zones and shall comply with generally accepted international standards
regarding navigation in the vicinity of artificial islands, installations, structures and safety zones.
12
according to Art. 60 IV to VII UNCLOS the coastal state may establish safety zones around
artificial islands, installations and structures in which it may take appropriate measures to
ensure the safety both of navigation and of the artificial islands, installations and structures.
The safety zones must be “necessary” (Art. 60 IV UNCLOS). They shall not exceed a
distance of 500 meters around them, measured from each point of their outer edge, except as
authorized by generally accepted international standards or as recommended by the competent
international organization (IMO); due notice shall be given of the extent of safety zones (Art.
60 V). Furthermore, Artificial islands, installations and structures and the safety zones around
them may not be established where interference may be caused with the use of recognized sea
lanes essential to international navigation (Art. 60 VII UNCLOS).
4. The Continental Shelf
The Continental Shelf of a coastal State comprises the seabed and subsoil of the submarine
areas that extend beyond its Territorial Sea throughout the natural prolongation of its land
territory to the outer edge of the continental margin, or to a distance of 200 nautical miles
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.19 The EC has consistently
contested the legality of coastal States jurisdiction claims beyond the limits of the 200nm EEZ
or over the water column above the Continental Shelf that extends beyond the 200 nm limit
("creeping jurisdiction"). The procedures for the delimitation of the Continental Shelf have
been prepared by the UN-Commission on the Limits of the Continental Shelf.20
The regimes of the EEZ and of the Continental Shelf are adjusted to each other since the
superjacent waters of the Continental Shelf are the EEZ of the coastal state if it has
established an EEZ. Therefore, the rights of the coastal state over the Continental Shelf do not
affect the legal status of the superjacent waters (or of the air space) above those waters (Art.
78 I UNCLOS).
As in the EEZ the coastal state only enjoys functional jurisdiction over the Continental Shelf.
The jurisdiction is according to Art. 77 I UNCLOS limited to sovereign rights for the purpose
of exploring and exploiting natural resources. These consist of the mineral and other nonliving resources of the seabed and subsoil together with living organisms belonging to
sedentary species, that is to say, organisms which, at the harvestable state, either are immobile
on or under the seabed or are unable to move except in constant physical contact with the
seabed or the subsoil (Art. 77 IV UNCLOS). Unlike in the EEZ these rights do not depend on
express proclamation (Art. 77 III UNCLOS). The sovereign rights over the Continental Shelf
are regarded as belonging exclusively to the coastal state – no one may undertake to explore
or exploit the natural resources of the Continental Shelf without the consent of the coastal
state (Art. 77 II UNCLOS).
Therefore, the coastal state has the power to legislate on marine spatial planning measures for
the exploitation and exploration of the Continental Shelf. The coastal state may for example
legislate on the placement of petroleum / natural gas platforms and drilling in general. This
7. Artificial islands, installations and structures and the safety zones around them may not be established where
interference may be caused to the use of recognized sea lanes essential to international navigation.
8. Artificial islands, installations and structures do not possess the status of islands. They have
no territorial sea of their own, and their presence does not affect the delimitation of the
territorial sea, the exclusive economic zone or the continental shelf.
19
20
Art. 76 I UNCLOS.
See on this the third background paper to the GP, p. 15, 16.
13
right is already implied in the provisions of Art. 77 UNCLOS. It is also explicitly stated in
Art. 81 UNCLOS.
Furthermore, although all states are entitled to lay submarine cables and pipelines on the
Continental Shelf (Art. 58 I, 78 II UNCLOS), the coastal state has jurisdiction over cables and
pipelines used in connection with the exploration of its Continental Shelf or exploitation of
the resources of the Continental Shelf. The coastal state also has the right to establish
conditions for cables or pipelines entering its territory or Territorial Sea (Art. 79 IV
UNCLOS).
As far as artificial islands, installations and structures on the Continental Shelf are concerned,
the UNCLOS regulations on the Continental Shelf refer again to the regulations on the EEZ,
that is Art. 60 UNCLOS.
5. Restrictions Imposed by Part XII UNCLOS (Protection and
Preservation of the Marine Environment)
Part XII of UNCLOS on the protection and preservation of the marine environment relies on
and needs to be interpreted in the light of many other conventions on the protection and
preservation of the marine environment.21 By stating only general rights and duties of states it
serves as an umbrella convention to all other conventions and treaties relating to the marine
environment.
a) Art. 192, 193 UNCLOS
Art. 192 UNCLOS imposes on state parties the general obligation to protect and preserve the
marine environment. This obligation restricts the sovereign rights of states to exploit their
natural resources in the EEZ and on the Continental Shelf. Art. 193 of UNCLOS states
explicitly:
"States have the sovereign right to exploit their natural resources pursuant to their
environmental policies and in accordance with their duty to protect and preserve the marine
environment."
All measures concerning spatial planning will have to take into account this obligation.
b) Art. 195 and Art. 194 II UNCLOS
Other obligations which are of importance with respect to spatial planning measures are
imposed by Art. 195 and Art. 194 II UNCLOS:
"Art. 195 UNCLOS: In taking measures to prevent, reduce and control pollution of the
marine environment, States shall act so as not to transfer, directly or indirectly, damage or
hazards from one area to another or transform one type of pollution into another."
"Art. 194 II UNCLOS: States shall take all measures necessary to ensure that activities under
their jurisdiction or control are so conducted as not to cause damage by pollution to other
States and their environment, and that pollution arising from incidents or activities under
their jurisdiction or control does not spread beyond the areas where they exercise sovereign
rights in accordance with this Convention."
21
International and EC-instruments related with the seas and oceans can be found in the 9 th background paper to
the GP under http://ec.europa.eu/maritimeaffairs/suppdoc_en.html.
14
Art. 195 UNCLOS generally deals with transferring damage or hazard from one sea area to
another, non-regarding if these areas are under the jurisdiction of different states or the same
state or part of the High Seas. In contrast, Art. 194 II UNLCOS more specifically imposes on
states the duty not to damage the environment of sea areas under the jurisdiction of other
states or of the High Seas by measures carried out within the maritime areas where the
polluting state exercises sovereign rights.
Art. 194 II and Art. 195 of UNCLOS express an old principle of customary international
environmental law which has been developed not only by the literature but also in many
judgments of international arbitration courts and of the International Court of Justice such as
the Trail Smelter-Case or the Lac Lannoux-Case: sic utere ut alienum non laedas.
This prohibition of trans-boundary pollution and of transferring damage or hazards to other
sea areas in general will have to be kept in mind, when areas in the sea are designated for
which permission can be granted by national authorities for the placement of dumping
grounds or the placement of dumping grounds. It is not only a duty which has to be respected
when an incident has occurred, it also imposes due diligence. To fulfill these obligations
states have to take preventive measures: An assessment of the effects of off-shore exploitation
activities or the placement of off-shore dumping grounds is needed, based on reliable data.
Also a surveillance of such activities is necessary once they are carried out. In the case of
possible trans-boundary pollution all preventive measures have to be carried out in
cooperation with states that might be affected.
c) Art. 194 V, Art. 211 VI of UNCLOS: MPAs, PSSAs
Art. 194 V UNCLOS places the obligation on parties to take measures necessary to protect
and preserve rare or fragile ecosystems:
"The measures taken in accordance with this Part shall include those necessary to protect and
preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or
endangered species and other forms of marine life."
This provision obliges states to elaborate instruments that are tailored to the requirements of
certain ecosystems and, therefore, sometimes also to certain areas of the sea.
Moreover, Art. 211 VI UNCLOS attributes to states the right to set up, with the consent of
IMO, clearly defined areas in their EEZ where the adoption of special mandatory measures
for the prevention of pollution from vessels is required:
"6.(a) Where the international rules and standards referred to in paragraph I are inadequate
to meet special circumstances and coastal States have reasonable grounds for believing that a
particular, clearly defined area of their respective exclusive economic zones is an area where
the adoption of special mandatory measures for the prevention of pollution from vessels is
required for recognized technical reasons in relation to its oceanographical and ecological
conditions, as well as its utilization or the protection of its resources and the particular
character of its traffic, the coastal States, after appropriate consultations through the
competent international organization with any other States concerned, may, for that area,
direct a communication to that organization, submitting scientific and technical evidence in
support and information on necessary reception facilities. Within 12 months after receiving
such a communication, the organization shall determine whether the conditions in that area
15
correspond to the requirements set out above. If the organization so determines, the coastal
States may, for that area, adopt laws and regulations for the prevention, reduction and
control of pollution from vessels implementing such international rules and standards or
navigational practices as are made applicable, through the organization, for special areas.
These laws and regulations shall not become applicable to foreign vessels until 15 months
after the submission of the communication to the organization.
(b) The coastal States shall publish the limits of any such particular, clearly defined area.
(c) If the coastal States intend to adopt additional laws and regulations for the same area for
the prevention, reduction and control of pollution from vessels, they shall, when submitting
the aforesaid communication, at the same time notify the organization thereof. Such
additional laws and regulations may relate to discharges or navigational practices but shall
not require foreign vessels to observe design, construction, manning or equipment standards
other than generally accepted international rules and standards; they shall become
applicable to foreign vessels 15 months after the submission of the communication to the
organization, provided that the organization agrees within 12 months after the submission of
the communication."
Whereas Art. 211 VI UNCLOS only provides the legal basis for special areas with regard to
the prevention of pollution from vessels, Art. 194 V UNCLOS is concerned with the
protection of the eco-system as such. Therefore, UNCLOS provides an all-embracing legal
basis for spatial planning on Marine Protected Areas (MPAs) / Particularly Sensitive Sea
Areas (PSSAs) for the protection and preservation of the marine environment in all sea areas
in which a state party enjoys sovereign rights. It places on state parties the obligation to
elaborate on this legal basis through other global conventions, regional agreements or national
measures.
The instruments that have been developed on this legal basis within the framework of IMO
and its related instruments22, the work the Convention on Biological Diversity with respect to
MPAs and the work of the UN General Assembly on the protection of marine biodiversity in
areas beyond national jurisdiction are described in more detail in the third background paper
on the GP.23
d) Developments Not Reflected in UNCLOS
UNCLOS, having been signed in 1982 (enty into force in 1994,) does not reflect recent
developments in international environmental law, especially the outcomes of the Rio Summit
of 1992 (Rio-Declaration, "Agenda 21") or the Johannesburg Summit of 2002. Among these
are the precautionary principle (Art. 15 of the Rio-Declaration), the principle of sustainable
development and the concept of integrated coastal zone management (Agenda 21, chapter 17)
and the eco-system approach. Agenda 21 and the Rio-Declaration only have the effects of
"soft law". However, these principles, concepts and approaches are meanwhile incorporated
in binding treaties that exist within the UNCLOS-framework, such as the CBD-Convention of
1992. Furthermore, as "soft law" they serve as means for the interpretation of existing legal
instruments, that is UNCLOS itself and all conventions and treaties that exist under the
"UNCLOS-umbrella".
22
23
MARPOL 73/78, Annexes I, II, V; SOLAS 74/78, Art. 15 (j) IMO Convention, IMO Res. A.927 (22).
Third background paper on the GP, p. 16-21.
16
Therefore, the obligations imposed by UNCLOS on states parties and activities concerning
the seas and oceans – and which provide legal basis' or require marine spatial planning - have
to be carried out with due attention to the precautionary principle, the principle of sustainable
development, the concept of integrated coastal zone management and the eco-system
approach.
6. Conclusions on the International Law Framework
UNCLOS and the related Conventions and instruments provide a broad framework for
legislation on marine spatial planning in the different maritime zones and for the enforcement
of this legislation with respect to all the uses of the sea that have been identified as needing
marine spatial planning. The following articles of UNCLOS were mentioned especially as
legal foundations for marine spatial planning measures: Art. 2, 11, 12 (Territorial Sea), Art.
21, 22, 25 II (Innocent Passage through the Territorial Sea), Art. 56, 60 IV-VII, 61 (EEZ),
Art. 77, Art. 78 (referring to Art. 56), Art. 81 (Continental Shelf).
Certain restrictions are imposed by:
 the right of innocent passage through the Territorial Sea,
 the right of innocent passage and transit passage through straits used for international
navigation,
 the fact that in the EEZ and on the Continental Shelf sates only have functional
jurisdiction,
 the interaction with EC-law,
 by the duties which follow from environmental law, especially the due diligence
concerning trans-boundary pollution, the principle of sustainable development, the
concept of integrated coastal zone management and the eco-system approach.
It is important to note that marine environmental law has a twofold effect on marine spatial
planning measures. Considering the extent of the different uses of the sea and the pressure
they create for the marine environment, the basic obligation imposed by Art. 193 UNCLOS to
protect and preserve the marine environment can only be fulfilled when the uses of the sea are
coordinated by marine spatial planning measures. Thus, marine environmental law requires
marine spatial planning. At the same time, marine environmental law restricts marine spatial
planning by imposing duties such as the prohibition of trans-boundary pollution or by
prescribing procedures for the establishment of MPAs/PSSAs.
IV. EU Legal Framework
1. Relationship of UNCLOS and Community Law
There is a strong interdependency between the United Nations Convention on the Law of the
Sea (UNCLOS) and EC-law within the European Union. The European Court of Justice (ECJ)
in its judgment of 30 May 2006 (Commission v. Ireland) on the Mox Plant Case concluded
that UNCLOS is since the accession of the EC to the Convention an integral part of the
European Community's legal order.24 Furthermore, in its judgment of 20 October 2005
(Commission v. UK) on the transposition of the Habitats Directive by the UK as well as in
earlier judgments, the Court expressed the opinion that EC law applies to all maritime areas
24
ECJ, judgment of the Court of 30 May 2006, Case C-459/03, Comission v. Ireland, para. 82.
17
over which a Member State has jurisdiction and to the extent that the Member State has
jurisdiction, thus also to the EEZ of the United Kingdom.25
It follows that UNCLOS is not only integral part of EC-law but also defines the scope of its
application in a geographical sense.
It is important to note that a state only has jurisdiction over the maritime zone up to 200
nautical miles measured from the baselines – and consequently that EC-law only applies - if
the Member State has explicitly established an EEZ according to Art. 57 UNCLOS, or if it is without having established an EEZ explicitly - actually exercising sovereign rights in this
zone. The latter applies to the United Kingdom. Also, EC-law can only apply to the extent
that a Member State exercises sovereign rights in the maritime zone beyond the Territorial
Sea. If such rights are only exercised with respect to fisheries, EC law only applies in this
respect. This is of importance in the Mediterranean Sea where some Member States have only
established Fisheries Protection Zones.
2. Existing EU/EC Legal Instruments Having Impact on Marine
Spatial Planning
a) The Common Fisheries Policy
aa) Council Regulation (EC) No 2371/2002
The Common Fisheries Policy, especially Council Regulation (EC) No 2371/2002 of 20 Dec.
2002 on the conservation and sustainable exploitation of fisheries resources under the
Common Fisheries Policy was already mentioned.26 It enables the Council in Art. 4 II g), (ii)
to establish zones where fishing activities are prohibited or restricted. This regulation restricts
the right of Member States to establish such zones themselves under Art. 61 UNCLOS.
Art. 17 II of Council Regulation (EC) No. 2371/2002 authorises Member States only in the
waters up to 12 miles from baselines to restrict fishing to fishing vessels that traditionally fish
in those waters from ports on the adjacent coast. This right is without prejudice to the
arrangements for Community fishing vessels flying the flag of other Member States under
existing neighbourhood relations between Member States. Such neighbourhood-arrangements
are contained in Annex I of the Regulation, fixing for each Member State the geographical
zones within the coastal bands of other Member States where fishing activities are pursued
and the species concerned.
The zones established according to Council Regulation (EC) No. 2371/2002 and the duty
under international environmental law as well as under EC-law to establish such zones which
follows from the duty to guarantee a sustainable development of fish stocks, will have to be
taken into account when legislation on marine spatial planning is developed.
25
ECJ, judgment of the Court of 20 October 2005, Case C-6/04, para. 117; ECJ, judgment of the Court of 24
November 1992, Case C-286/90, Anklagemyndigheden v. Peter Michael Poulsen and Diva Navigation Corp.,
Case C-286/90, European Court Reports 1992 I, 6019, para. 24 ff.; ECJ, judgment of the Court of 4 October
1979, Case 141/78, France v UK, European Court Reports 1979, 2923, para. 6; ECJ, judgment of the Court of 16
February 1978, Case 61/77, Comission v. Ireland, European Court Reports 1978, 417, para. 47-51.
26
See under III. 3. b) aa).
18
bb) Regulations concerning the "Darwin Mounds"
The Commission regulation (EC) No 1475/2003 of 20 August 2003 prohibits in accordance
with Council Regulation (EC) No 2371/2002 vessels from using bottom-trawl or similar
towed nets operating in contact with the bottom of the sea in the specific area of an
aggregation of deep-water corals north-west of Scotland (the so-called "Darwin Mounds").
The regulation was extended by Commission regulation (EC) No 263/2004 of 16 February
2004 for six months. Permanent protection of the habitat concerned is now ensured by an
amendment to Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of
fishery resources through technical measures for the protection of juveniles of marine
organisms. Council Regulation (EC) No 850/98 also lays down in its Article 2 specific areas
in which technical conservation measures have to be applied.
These regulations are another example for measures requiring marine spatial planning, based
on EC-law.
cc) Fisheries-legislation 'de lege ferenda'
(1) COM (2002) 535 final – Fisheries Protection Zones
The Communication from the Commission to the Council and the EP COM (2002) 535 final
of 9 October 2002 lays down a Community Action Plan for the conservation and sustainable
exploitation of fisheries resources in the Mediterranean Sea under the Common Fisheries
Policy. The measures foreseen in the Action Plan include a concerted approach to declaring
fisheries protection zones (FPZs). As it has already been stated above27, the present situation
as regards declarations of EEZs or of FPZs is very inconsistent. The concerted declaration of
FPZs, of up to 200 miles from baselines, is regarded by the Commission as an important
contribution to improving fisheries management, given that about 95 % of Community
catches are taken within 50 miles of the coast in the Mediterranean. With the concerted
declaration of FPZs, it would be possible to set up a wide range of measures which restrict the
free access of fishing vessels from third countries or simply to establish these zones for the
purpose of controlling foreign vessels.28
(2) COM (2002)511 final - Aquaculture
Competition for maritime space is also acknowledged by the Communication of the
Commission to the Council and the EP COM (2002) 511 final of 19 September 2002 in a
proposed Strategy for the sustainable development of European Aquaculture. It is proposed
that fish cages should be moved further from the coast. The Commission also concludes that
future aquaculture development should be based on Integrated Zone Strategies and
Management Plans which consider aquaculture in relation to all other existing and potential
activities and take account of their combined impact on the environment.29
The Commission's Communication COM (2002) 535 final on FPZs and COM (2002)511 final
on aquaculture zones do not yet have impact on marine spatial planning. They may have,
though, in the future if they evolve into binding legal instruments.
27
28
COM (2002) 535 final, p. 14 f. It has to be borne in mind that FPZs, unlike EEZs, refer exclusively to the
jurisdiction over fishery resources. Other questions of jurisdiction (mineral resources, navigation rights etc.)
remain unaffected by the establishment of FPZs.
29
COM (2002) 511 final, p. 13.
19
b) The FHH- and the Bird-Directive (Natura 2000)
Another legal foundation for measures having impact on spatial planning in order to protect
natural resources is the FHH-directive (92/43/CEE) concerning the protection of natural and
semi-natural habitats and wild fauna and flora, adopted by the Council on 21 May 1992. It
does not replace but complements the Directive on Wild Birds (79/409/EEC). In addition to
this Directive's Special Protection Areas, it provides for Special Areas of Conservation
(SACs) which are extended to other groups of species and types of habitats. Special Areas of
Conservation and Special Protection Areas form together the NATURA 2000 network.30 The
establishment of this network in the marine environment is a key contribution of the EU to
meeting the commitment of the 2002 World Summit on Sustainable Development to
establishing a globally representative system of marine and coastal protected areas by 2012.
Habitats, animal and plant species whose conservation requires the designation of special
areas of conservation are listed in the annexes of the directives. Special Areas of Conservation
under the FHH-Directive are designated in three stages: Member States must first draw up
lists of sites hosting natural habitat sand wild fauna and flora following the criteria set out in
the annexes. On the basis of the national lists and by agreement with the Member States, the
Commission will then adopt a list of sites of Community importance. At the last stage, the
Member State must then designate the chosen sites of Community importance as a special
area of conservation within six years following the designation by the Commission.31
The Commission can also initiate a bilateral consultation procedure when it considers that a
site which hosts a priority natural habitat type or a priority species has not been included in
the list. If the result of the consultation is unsatisfactory, the Commission must forward a
proposal to the Council.32
For the special areas of conservation the Member States shall establish the necessary
conservation measures involving, if necessary, management plans specifically designed for
the sites.33
According to the judgment of the ECJ of 20 October 200534 the FHH- and the Bird-Directive
also apply to the EEZ of Member States which, according to UNCLOS, exercise sovereign
rights in the EEZ. Therefore, the establishment of conservation areas under the FHH- and the
Bird-Directive are measures which are mandatory under Community law and which have
impact on marine spatial planning.
c) Strategic Environmental Assessment (SEA-) Directive 2001/42/EC and
the Environtmental Impact Assessment (EIA-) Directive 85/337/EEC
According to Art. 3 II of the Directive of the EP and of the Council of 27 June 2001 on the
assessment of the effects of certain plans and programs on the environment, an environmental
assessment shall be carried out for all plans and programs,
"(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste
management, water management, telecommunications, tourism, town and country planning or
30
Art. 3 of the FHH-Directive.
Art. 4 of the FHH-Directive.
32
Art. 5 of the FHH-Directive.
33
Art. 6-16 of the FHH-Directive.
34
See
31
20
land use and which set the framework for future development consent of projects listed in
Annexes I and II to Directive 85/337/EEC, or
(b) which, in view of the likely effect on sites, have been determined to require an assessment
pursuant to article 6 or 7 of Directive 92/42/EEC."
Art. 3 II (b) SEA-Directive addresses the special areas of conservation under the FHHDirective. These areas, requiring spatial planning, therefore, also require environmental
impact assessment.
The plan and programmes addressed in Art. 3 II (a) SEA-Directive can be such that require
marine spatial planning. Annex I of Directive 85/337/EEC on the assessment of the effects of
certain public an private projects on the environment mentions trading ports (Nr. 8), Annex II
of Directive 85/337/EEC mentions salmon breeding (1. g), reclamation of land from the sea
(1. h), deep drillings (2. b), extraction of minerals (2. c), extraction of petroleum (2. f),
extraction of natural gas (2. g), industrial installations for the production of electricity (3. a),
shipyards (4. g), oil and gas pipeline installations (10. h), yacht marinas (10. j), holiday
villages, hotel complexes (11. a).
Thus, spatial planning measures will often address projects that also require an environmental
impact assessment. The environmental impact assessment can – as already concluded in the
Green Paper - help to ensure that spatial planning measures follow a holistic approach and are
based on the eco-system approach.
d) Water Framework Directive (WFD) and related Directives
The purpose of the Directive 2000/60/EC of the EP and of the Council of 23 October 2000
establishing a framework for Community action in the field of water policy is to establish a
framework for the protection of inland surface waters, transitional waters, coastal waters and
groundwaters. The WFD sets a framework for comprehensive management of water resources
in the European Community, within a common approach and with common objectives,
principles and basic measures. The WFD integrates existing legislation on the Community
level on water quality. The main activities for the implementation of the WFD will take place
in the context of River Basin Management Projects led by local authorities.
The most striking feature of the Water Framework Directive with respect to spatial planning
is that Member States shall identify the individual river basins lying within their national
territory and assign them to individual river basin districts.35 The administrative management
units, the river basin districts, will, therefore, be based on the natural geographical and
hydrological unit (instead of according to administrative or political boundaries). A river
basin covering the territory of more than one Member State will be assigned to an
international river basin district.36 River basin management plans have to be set up. They have
to take into account protected areas that have been established according to community
legislation.37
The establishment of river basin districts requires spatial planning measures. It has to be
noted, though, that the main area of the WFD are inland waters; coastal waters are covered
35
Art. 3 I WFD.
Art. 3 III WFD.
37
Art. 4 I (C), Art. 6 WFD.
36
21
only up to 1 nautical mile measured from the baselines.38 Therefore, the contribution of the
WFD to marine spatial planning in coastal areas is limited.
e) Industrial Installations and the Integrated Pollution Prevention and
Control Directive (IPPC)
The Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution
prevention and control39 is concerned with minimising pollution from various industrial
sources throughout the European Union.40 Operators of industrial installations covered by
Annex I of the Directive are required to obtain an authorisation (environmental permit) from
the authorities in the EU countries.41
The Directive has no direct impact on marine spatial planning. However, large industrial
installations on the coast will attract logistic opportunities among which port facilities are
very important. Therefore, spatial planning for port facilities will have to take into account if
industrial installations envisaged for the planned region need to obtain and if they will obtain
necessary authorisation.
f) Exploitation of Hydrocarbons Directive
Directive 94/22/EC of the EP and of the Council of 30 May 1994 on the conditions for
granting and using authorizations for the prospection, exploration and production of
hydrocarbons of 30 May 1994 acknowledges that Member States have sovereignty and
sovereign rights over hydrocarbon resources on their territories as laid down by UNCLOS.42
The directive concludes that Member States retain the right to determine the areas within their
territory to be made available to entities (natural or legal persons) for the exercise of the
activities of prospecting, exploring for and producing hydrocarbons.43 However, the Directive
is then not concerned with the determination of these areas but with the procedures of
authorization by the competent authorities to an entity which applies for the exclusive right to
prospect or explore for or produce hydrocarbons in a geographical area. The purpose is to
ensure that there is no discrimination between entities as regards access to and exercise of
these activities.44
The only regulation that might have impact on spatial planning procedures is contained in Art.
6 II of the Directive which reads as follows:
"Member States may, to the extent justified by national security, public safety, public health,
security of transport, protection of the environment, protection of biological resources and of
national treasures possessing artistic, historic or archaeological value, safety of installations
and of workers, planned management of hydrocarbon resources (for example the rate at
which hydrocarbons are depleted or the optimization of their recovery) or the need to secure
tax revenues, impose conditions and requirements on the exercise of the activities set out in
Article 2 (1)."45
38
Art. 2 VII WFD.
OF L 257, 10.10.1996, p. 26.
40
Art. 1 IPPC-Directive.
41
Art. 4 ff. IPPC-Directive.
42
Preamble of the Exploitation of Hydrocarbons Directive.
43
Art. 2 I of the Exploitation of Hydrocarbons Directive.
44
Art. 2 II, Art. 3, Art, 4, Art. 5 of the Exploitation of Hydrocarbons Directive.
45
The activities set out in Art. 2 I of the Directive are the prospecting, exploring for and producing
hydrocarbons.
39
22
This regulation might serve as a legal foundation for imposing conditions and requirements of
a spatial character, establishing the areas not to be exploited for reasons of public safety, for
example the threat of erosion.46
g) Legislation and Activities on Integrated Coastal Zone Management
The Directorate-General Environment (DG ENV) of the European Commission has been
working on Integrated Coastal Zone Management (ICZM) during the past years. In order to
avoid double work, frustration of stakeholders and national administrations and in order to
enhance cooperation with DG ENV, it is important to analyse the relationship between ICZM
and marine spatial planning.
The main questions are:
 Does ICZM only apply to terrestrial coastal zones or also to marine coastal zones?
 Is marine spatial planning a tool for ICZM or is ICZM a tool for marine spatial
planning or are ICZM and marine spatial planning distinct issues?
aa) Development of ICZM
Basic information can be found under http://ec.europa.eu/environment/iczm/home.htm.
(1) Resolution 92/C 59/01
The Council Resolution of 25 February 1992 on the future Community policy concerning the
European coastal zone (92/C 59/01) concludes that there is a clear need for a Community
strategy for “integrated planning and management of the coastal zones” based on the
principles of sustainability and sound ecological and environmental practice. 47 This
formulation seems to indicate that an integrated planning for coastal zones, which would
include spatial planning, and an integrated management of coastal zones are considered as
two different issues. However, the Resolution goes on to invite the Commission “to propose
for consideration a Community strategy for integrated coastal zone management which will
provide a framework for conservation and sustainable use”.48 It follows, that ICZM is meant
to be the general term which includes also (spatial) planning.
The resolution does not state clearly that ICZM covers also marine zones. However, the
formulation “…the European coastal zone, including islands,...” implies, that marine zones
are also to be included in ICZM.
Therefore, according to Resolution 92/C 59/01 ICZM applies to terrestrial and marine areas
and includes spatial planning for these areas.
(2) Resolution 94/C 135/02
The Council Resolution 94/C 135/02 of 6 May 1994 underlines the need for a Community
strategy for integrated coastal-zone management and also invites the Member States to
46
The Directives 93/38/EEC and 90/531/EEC, referred to in the Exploitation of Hydrocarbons Directive, deal
with the entities that apply for authorization for the exercise of the activities of prospecting, exploring for and
producing hydrocarbons as regards their procurement of supplies, of work and of services. They have no impact
on marine spatial planning.
47
Res. 92/C 59/01, third paragraph.
48
Res. 92/C 59/01, last paragraph.
23
strengthen their own efforts with a view to further increasing the protection of coastal zones
throughout the Community.
The Resolution, therefore, does not add to the understanding of the relationship of ICZM and
marine spatial planning.
(3) Recommendation 2002/413/EC
From 1996 to 1999, the Commission operated a Demonstration Programme on ICZM
designed around a series of 35 demonstration projects and 6 thematic studies.49 The
programme was intended to lead to a consensus regarding the measures necessary in order to
stimulate ICZM in Europe.
On 27 September 2000 the Commission adopted a Communication from the Commission to
the Council and the EP on “ICZM: A Strategy for Europe” which is based on the experiences
and outputs of the Demonstration Programme.50 The Commission outlines a European
Strategy on ICZM along the following lines:
 Promoting ICZM within the Member States and at the “Regional Seas” level
 Making EU Policies compatible with ICZM
 Promoting dialogue between European Coastal Stakeholders
 Developing best ICZM practices
 Generating information and knowledge about the coastal zone
 Diffusing information and raising public awareness
 Implementation of the Strategy
The Communication further defines in an Annex the eight principles that became incorporated
in the Recommendation 2002/413/EC of the EP and the Council of 30 May 2002 concerning
the implementation of ICZM in Europe.
The Recommendation 2002/413/EC of the EP and the Council of 30 May 2002 concerning
the implementation of ICZM in Europe is based on the Commission’s Communication
2000/0547 and the Commission’s proposal for this Recommendation51. The Recommendation
identifies in its chapter II – without defining ICZM - eight principles of ICZM:
“(a) a broad overall perspective (thematic and geographic) which will take into account the
interdependence and disparity of natural systems and human activities with an impact on
coastal areas;
(b) a long-term perspective which will take into account the precautionary principle and the
needs of present and future generations;
(c) adaptive management during a gradual process which will facilitate adjustment as
problems and knowledge develop. This implies the need for a sound scientific basis
concerning the evolution of the coastal zone;
49
For further information see: europa.europa.eu/environment/iczm/demopgm.htm.
Contact in DGREGIO = Patrick Salez . He was the "ICZM" person in DGFISH during the demonstration
programme on ICZM (96-2000).
50
COM/2000/0547 final.
51
Proposal for a EP and Council Recommendation concerning the implementation of ICZM in Europe
(COM/00/545 of 8 September 2000).
24
(d) local specificity and the great diversity of European coastal zones, which will make it
possible to respond to their practical needs with specific solutions and flexible measures;
(e) working with natural processes and respecting the carrying capacity of ecosystems, which
will make human activities more environmentally friendly, socially responsible and
economically sound in the long run;
(f) involving all the parties concerned (economic and social partners, the organisations
representing coastal zone residents, non-governmental organisations and the business sector)
in the management process, for example by means of agreements and based on shared
responsibility;
(g) support and involvement of relevant administrative bodies at national, regional and local
level between which appropriate links should be established or maintained with the aim of
improved coordination of the various existing policies. Partnership with and between
regional and local authorities should apply when appropriate;
(h) use of a combination of instruments designed to facilitate coherence between sectoral
policy objectives and coherence between planning and management.”
The Recommendation calls on the Member States to develop national strategies to implement
the principles for ICZM. These strategies shall address both the marine and terrestrial areas of
coastal zones.52 Therefore, spatial planning for marine areas could be regarded as a tool of
ICZM.
bb) Preliminary Conclusions
Whereas the Resolution 92/C 59/01, the Resolution 94/C 135/02 and the Recommendation
2002/413/EC seem to imply that marine spatial planning is being regarded by the EC as a
means of spatial planning, the implementation of ICZM obviously depends on spatial
planning.
Furthermore, marine spatial planning, unlike ICZM, is not confined to the coastal marine
areas but applies to all areas under the jurisdiction of the coastal state and to zones in which
the coastal state at least enjoys certain sovereign rights.
cc) Reconciliation of ICZM and Marine Spatial Planning
In 2004 the German Council of Environmental Advisors published an expertise on marine
environmental protection in the North Sea and the Baltic Sea. The Council stresses the need
for a comprehensive and integrated spatial planning for marine areas as well as for coastal
land areas.53 It calls upon the EC to take upon it the cross-border coordination of such
planning measures, to develop a spatial planning concept for marine areas on the European
level and to use the instrument of a framework directive in order to coordinate the marine
spatial planning measures of the Member States.54
52
Rec. 2002/413, Chap. IV 3. (c).
Expertise on marine environmental protection of the North Sea and the Baltic Sea of the German Council of
Environmental Advisors, para. 422, p. 183.
54
Expertise on marine environmental protection of the North Sea and the Baltic Sea of the German Council of
Environmental Advisors, para. 423, p. 183.
53
25
The Council emphasizes that Resolutions and the Recommendation on ICZM do not satisfy
these needs since they are confined to coastal areas and since they rely on voluntary action of
the Member States. ICZM is qualified as an attempt to fill the gap of non existing marine
spatial planning procedures by introducing at least the informal and non-binding instrument of
ICZM. ICZM is regarded as providing cooperative management-instruments for problems and
interests of concurring users. According to the expertise, ICZM falls short of establishing a
long-term development based on thorough planning. It follows that on the one hand ICZM
can encompass more than the classical spatial planning. On the other hand, it falls short of
developing the same level of transparency, bindingness and systematic regulatory power as
formal and legally binding instruments on spatial planning.55
The Green Paper does not offer any explanation for the relationship between marine spatial
planning and ICZM.56 The Expertise of the German Council of Environmental Advisors on
the marine environmental protection of the North Sea and the Baltic Sea regards spatial
planning instruments as having a stronger impact than ICZM.
It must, therefore, be concluded, that the two concepts as well as strategies and policies for
their implementation have to be developed jointly. The geographical scope of spatial planning
is potentially broader since it applies to all areas under the jurisdiction of the coastal state
(terrestrial and marine) and to zones in which the coastal state at least enjoys certain sovereign
rights such as the Continental Shelf and the EEZ. Also, spatial planning is of high regulatory
power since it usually has the nature of a binding law. ICZM, on the other hand, encompasses
all instruments, measures and activities that can be used to manage and reconcile conflicting
uses of coastal areas among which binding laws are only one. In this respect ICZM can be
regarded as the broader concept.
The ideas of marine spatial planning and ICZM can be merged, the aim must be to identify
points of common interests between the Member States and to define the added-value that is
expected from the further activities of the Commission.
dd) Impact of Climate Change on ICZM and Marine Spatial Planning
Coastal areas will have to adapt to the expected rise of the sea level caused by climate change.
The Intergovernmental Panel on Climate Change (IPCC)57 suggested in 200158 three basic
strategies to respond to the threats of coastal erosion and the growth of sea areas:

"Protect, which aims to protect the land from the sea so that existing land uses can
continue, by constructing hard structures (e.g., seawalls) as well as using soft
measures (e.g., beach nourishment)

Accommodate, which implies that people continue to occupy the land but make some
adjustments (e.g., elevating buildings on piles, growing flood- or salt-tolerant crops)
55
Expertise on marine environmental protection of the North Sea and the Baltic Sea of the German Council of
Environmental Advisors, para. 424, p. 183.
56
See under I. 3.
57
The IPCC has been established by WMO and UNEP to assess scientific, technical and socio- economic
information relevant for the understanding of climate change, its potential impacts and options for adaptation and
mitigation. It is open to all Members of the UN and of WMO.
58
The report can be found under: http://www.grida.no/climate/ipcc_tar/wg2/300.htm#661. The suggestions on
the report are further developed by the special expertise of the German Advisory Council on Global Change on
the future of seas and oceans, 2006, p. 54 ff.
26

Retreat, which involves no attempt to protect the land from the sea; in an extreme
case, the coastal area is abandoned."
The IPPC-report suggests "that successful coastal adaptation embraces more than just
selecting one of the technical options to respond to sea-level rise; it is a more complex and
iterative process, with a series of policy cycles. Four steps can be distinguished in the process
of coastal adaptation:
1. Information collection and awareness raising
2. Planning and design
3. Implementation
4. Monitoring and evaluation."
However, the report also states that in reality adaptive responses often are undertaken
reactively rather then in a step-wise, planned, and anticipatory fashion.
It follows that plans on the management of space in coastal land- and sea- areas with respect
to protection, managed retreat or accommodation still need to be developed as a tool to adapt
to the expected results of climate change.
h) Trans-European Networks - "Motorways of the Sea"
In its Transport White Paper of September 2001, the Commission proposed the development
of “Motorways of the Sea” as a “real competitive alternative to land transport.” To help these
lines develop, the White Paper states that European funds should be made available. These
"motorways of the sea" should be part of the Trans-European transport network (TEN-T).
The Trans-European Networks (TEN) were created by the European Union by Articles 154156 of the Maastricht Treaty (1992), with the stated goals of the creation of an internal market
and the reinforcement of economic and social cohesion. This development includes the
interconnection and interoperability of national networks as well as access to such networks.
According with these objectives, the European Commission developed guidelines covering
the objectives, priorities, identification of projects of common interest and broad lines of
measures for the three sectors concerned (Transports, Energy and Telecommunications). The
EP and the Council approved these guidelines after consultation with the Economic and
Social Committee and the Committee of the Regions.59
Three classes of network were defined by the treaty:
 Trans-European transport networks (TEN-T)60,
 Trans-European Enery Network (TEN-E or TEN-Energy),
 Trans-European telecommunications network (eTEN).
In the framework of TEN-T, the “motorways of the sea” concept aims at introducing new
intermodal maritime-based logistics chains in Europe, which should bring about a structural
change in the transport organisation within the next years to come. These chains will be more
59
Decision No 1692/96/EC on Community guidelines for the development of the trans-European transport
network; Decision No 884/2004/EC of the EP and of the Council amending Decision No 1692/96/EC on
Community guidelines for the development of the trans-European transport network.
60
TEN-T is referred to in the Green Paper under 3.4 and 4.3.
27
sustainable, and should be commercially more efficient, than road-only transport. Motorways
of the sea will thus improve access to markets throughout Europe, and bring relief to the overstretched European road system.
The adoption of Article 12a of the TEN-T Guidelines of 29 April 200461 by Council and EP
gives a legal framework for funding the “motorways of the sea”.
Four corridors have been designated for the setting up of projects of European interest:
Motorway of the Baltic Sea (linking the Baltic Sea Member States with Member States in
Central and Western Europe, including the route through the North Sea/Baltic Sea canal) (by
2010);
Motorway of the Sea of western Europe (leading from Portugal and Spain via the Atlantic
Arc to the North Sea and the Irish Sea) (by 2010);
Motorway of the Sea of south-east Europe (connecting the Adriatic Sea to the Ionian Sea and
the Eastern Mediterranean, including Cyprus) (by 2010);
Motorway of the Sea of south-west Europe (western Mediterranean, connecting Spain,
France, Italy and including Malta and linking with the Motorway of the Sea of south-east
Europe and including links to the Black Sea) (by 2010).62
By 2010, a fully fledged network of motorways of the sea should be established throughout
Europe on the corridors mentioned above. This will require marine spatial planning.
i) Planned Marine Strategy Directive
The objective of the planned Directive of the EP and of the Council establishing a Framework
for Community Action in the field of marine environmental policy (Marine Strategy
Directive)63 is to achieve good environmental status of Europe’s marine environment by
2021.64 The Strategy is supposed to deliver the environmental pillar of the future Maritime
Policy. It shall be applicable to all European waters on the seaward side of the baseline form
which the extent of territorial waters is measured extending to the outmost reach of the area
covered by the sovereignty or jurisdiction of Member States including the bed of all those
waters and its sub-soils.65
The Directive will only define common objectives and principles at EU level. No specific
management measures will be set down at EU level.
The most important regulations of the proposed Directive that have impact on spatial planning
are the following:
 The Directive will establish European Marine Regions and identify potential sub-regions
as management units for implementation, on the basis of hydrological, oceanographic and
bio-geographic features.66
61
Decision No 884/2004/EC of the European Parliament and of the Council of 29 April 2004 amending Decision
No 1692/96/EC on Community guidelines for the development of the trans-European transport network;
Corrigendum to Decision No 884/2004/EC of the European Parliament and of the Council of 29 April 2004
amending Decision No 1692/96/EC on Community guidelines for the development of the trans-European
transport network.
62
The link to a map can be found under
http://ec.europa.eu/transport/intermodality/motorways_sea/index_en.htm.
63
COM (2005) 505 final.; 2005/0211 (COD).
64
Art. 1 I of the proposed Marine Strategy Directive.
65
Art. 2 of the proposed Marine Strategy Directive.
66
Art. 3 of the proposed Marine Strategy Directive.
28


Member States will be required to develop in close cooperation with one another Marine
Strategies for the marine waters under their jurisdiction within each Marine Region or
sub-region.67 These Marine Strategies will have to define regional environmental
objectives as well as indicators and monitoring measures to evaluate progress towards
these objectives. Member States will further be requested to develop and implement
measures in order to achieve good environmental status. They will be required to do so in
close collaboration with other Member States and third countries concerned, making use
of regional seas conventions.68
The Directive foresees special situations and areas where it would be impossible for a
Member State to achieve the level of ambition of the environmental targets set, in order to
take into account the particular contexts of certain Marine Regions.69
The envisaged date of 2021 will coincide with the first review of River Basin Management
Plans under the EU Water Framework Directive (WFD). This is supposed to allow for
synergies on the further implementation of both Directives.70 However, the Directive does not
establish a closer link to the existing legal instruments on EU-level with impact on the marine
environment in general and on marine spatial planning in particular. It also does not make use
of the spatial planning-instruments (PSSAs etc.) provided by UNLCOS. Therefore, a legal
instrument that integrates all existing legislation having impact on marine spatial planning
still has to be developed.
j) Monitoring of Compliance
In order to enable enforcement of spatial planning measures, for example the establishment of
shipping routes and fisheries protection zones, maritime surveillance is indispensable. A
common system of maritime surveillance would render surveillance more effective than just
national surveillance. Effective maritime surveillance also depends on reliable data. A
common surveillance system needs common systems of data collection. The Green Paper,
therefore, suggests to consider setting up a European Marine Observation and Data
Network.71 The problems of data collection and monitoring are already addressed through the
Galileo-process, the INSPIRE-initiative and the GMES-process. The development of a
European Marine Observation and Data Network could make use of Galileo, INSPIRE and
GMES. It could use satellite surveillance for repeated data, aerial surveillance for point data
and land based surveillance for continuous data.
aa) Galileo
Galileo is part of the TEN-Ts. It is to be built by the European Union as an alternative to the
Global Positioning System (which is controlled by the military of the United States) and the
Russian GLONASS. The system should be operational by 2010, two years later than
originally anticipated.72
67
Art. 4 of the proposed Marine Strategy Directive.
Art. 7-15 of the proposed Marine Strategy Directive.
69
Art. 13 of the proposed Marine Strategy Directive.
70
Communication from the Commission to the Council and the EP, COM (2005)504 final, p. 6.
71
Green Paper, 4.1.
72
It is stressed in the European Commission White Paper on European transport policy for 2010, the European
Union needs an independent satellite navigation system. Galileo is Europe's contribution to a global navigation
satellite infrastructure (GNSS). The Management of the European satellite navigation programmes (such as
Galileo and EGNOS) and controlling the use of the funds allocated to them has been entrusted to the European
GNSS Supervisory Authority. The Authority has been established by Council Regulation (EC) 1321/2004 of 12
July 2004.
68
29
Galileo shall enable any individual to determine his or her position or the location of any
moving or stationary object (e.g. a ship) to within one metre thanks to a small cheap
individual receiver.
bb) INSPIRE
The INfrastructure for SPatial InfoRmation in Europe initiative (INSPIRE) aims at making
available relevant, harmonised and quality geographic information for the purpose of
formulation, implementation, monitoring and evaluation of Community policy-making.
The initiative intends to trigger the creation of a European spatial information infrastructure
that delivers to the users integrated spatial information services. These services should allow
the users to identify and access spatial or geographical information from a wide range of
sources, from the local level to the global level, in an inter-operable way for a variety of
uses.73
Currently, a directive of the EP and of the Council, establishing an infrastructure for spatial
information in the European Community (INSPIRE) is under preparation.74 The aim of the
proposed directive is to improve the way in which spatial data held by public authorities
supports environmental policy, by improving the harmonisation of spatial data and the
interoperability of spatial services and ensuring greater sharing of the data between public
authorities and on-line access by the public. The type of spatial data covered is specified in
three annexes to the proposal. The proposed directive would require Member States to take
the following measures:





Establish a network of services that allows to search for, view and access the spatial data
from a one-stop Internet portal,
Make their spatial data sets and services interoperable (i.e. technically compatible) in
accordance with implementing rules adopted by committee procedure,
Produce catalogues of the data held by their public authorities, contain "metadata"
providing certain types of information regarding the data,
Make the spatial data accessible to the public,
Remove obstacles for the sharing of spatial data between public authorities.
cc) GMES
The Global Monitoring for Environment and Security (GMES), a joint initiative of the
Commission and the European Space Agency (ESA), is to enable decision-makers in Europe
to acquire the capacity for global as well as regional monitoring. To this end GMES is to
provide services related to environment and security issues in support of policy needs. GMES
aims at co-ordinating existing as well as new technologies and systems to better meet a
structured demand for information of the part of European, national, regional and local
decision-makers and users.
73
See under: http://www.ec-gis.org/inspire/home.html.
See: proposal of the Commission, COM (2004) 516 final; Communication from the Commission to the EP,
COM (2006)51 final; Common Position of the Council 2004/0175 (COD); EP, recommendation for second
reading, A6-0081/2006; Opinion of the Commission 2004/0174 (COD).
74
30
In the Action Plan (2004-2008)75 the Commission proposes an implementation phase (20042006) and an operational phase (2007 onwards).76
GMES will contribute to the development of the European Spatial Data Infrastructure in
compliance with INSPIRE.77
Compatiblity with Galileo will be ensured and the experiences gained through the Galileo
process will be taken into account.78
3. Conclusions on the EU Legal Framework
The EU legal framework contains a number of obligations that require marine spatial planning
and provide a legal basis for marine spatial planning-measures or -legislation, such as the
Regulation 2371/2002, the FHH- and Bird-Directive or the WFD, Exploitation of
Hydrocarbons-Directive, the Motorways of the Sea (TEN-T), the ICZM-Recommendation,
the planned Marine Strategy Directive. It also contains regulations which have impact on the
way in which marine spatial planning is carried out (SEA- and EIA-Directive, the IPPCDirective and all the regulations that provide legal basis' for marine spatial planning).
However, these legal instruments are not or only little inter-coordinated. In order to develop a
comprehensive system of ecosystem-based spatial planning, they should be review. Common
rules and tools with respect to or having impact on marine spatial planning should be
identified79 and could be transformed into a framework directive on marine spatial planning.
Besides, although there is a close legal interdependency between international law and
Community law, Community legislation does often not refer to the framework provided by
UNLCOS. The provisions on safety zones around artificial platforms and islands of Art. 60
IV-VII UNCLOS, for example, could have been further developed in Community law.
Community law on marine spatial planning would also have to take into account the
prohibition of trans-boundary pollution contained in Art. 195 and 194 II UNCLOS and the
due diligence imposed by these regulations, also with respect to third countries. This requires
rules on the participation of neighbouring states in the planning process.
V. Networks, Initiatives, Activities etc.
Networks, initiatives, activities etc. that exist already might be used as a forum for the further
discussion on and development of marine spatial planning:
1. ESPON
The European Spatial Planning Observation Network (ESPON) is set up to support policy
development and to build a European scientific community in the field of territorial
development. The main aim is to increase the general body of knowledge about territorial
structures, trends and policy impacts in an enlarged European Union.80
75
COM (2004) 65 final; see also the Commission Decision creating a Bureau for GMES, C (2006)673.
COM (2004) 65 final, p. 8, 9.
77
COM (2004) 65 final, p. 13.
78
COM (2004) 65 final, p. 4, 8.
79
See some proposals under "Conclusions" in this report.
80
See under: www.espon.eu.
76
31
2. Interreg III
Interreg III is a Community initiative which aims to stimulate interregional cooperation in the
EU between 2000-06. It is financed under the European Regional Development Fund
(ERDF). The initiative is designed to strengthen economic and social cohesion throughout the
EU, by fostering the balanced development of the continent through cross-border,
transnational and interregional cooperation.81
There is a new Interreg project (Baltic Adriatic and Black Sea parnters) around ICZM and
marine spatial planning called "PlanCoast Project".82 The lead partner is Mecklenburg
Vorpommern who also ran the now finalised 'Baltcoast' project.
According to a description of the Project the PlanCoast project will enhance the sustainable
development of the coastal zones of Baltic Sea, Adriatic Sea and Black Sea, landside as well
as seaside by
A) Developing, introducing and implementing the new field of spatial planning of maritime
areas (sea-use-planning) throughout EU coastal zones in a coherent manner complying to
international standards and facilitating international exchange and comparison of information
while at the same time reflecting local and regional needs,
B) Strengthening the implementation of ICZM in EU coastal zones by enhancing the role of
spatial planning within ICZM and demonstrating the benefits of spatial planning to ICZM by
a selected number of pilot projects,
C) Introducing international comparable GIS databases facilitating the spatial planning
process for coastal zones and maritime areas according to ICZM principles.
3. CEMAT
The Council of Europe’s European Conference of Ministers responsible for Regional/Spatial
Planning (CEMAT) brings together representatives of the 45 Member States of the Council of
Europe. CEMAT holds a ministerial conference every 3 years, 2 seminars or conferences
every year, 2 meetings of the Committee of Senior Officials every year.83
The activities of the Council of Europe, relating to spatial planning, began in 1970 in Bonn
where the first European Conference of Ministers responsible for Regional Planning
(CEMAT) was held.
According to CEMAT spatial planning should be democratic, comprehensive, functional and
long-term orientated:
“democratic: it should be conducted in such a way as to ensure the participation of the people
concerned and their political representatives;
- comprehensive: it should ensure the co-ordination of various sectoral policies and integrate
them in an overall approach;
- functional: it needs to take into account the existence of a regional consciousness based on
common values, culture and interests, sometimes crossing administrative and territorial
81
See under: http://ec.europa.eu/regional_policy/interreg3/index_en.htm.
See under: http://www.cadses.net/en/projects/apprpro.html?projectId=135.
83
See under: http://www.coe.int/T/E/Cultural_Co-operation/Environment/CEMAT/.
82
32
boundaries, while overlooking the institutional arrangements of different countries;
- long-term: it should analyse and take into consideration long-term trends and development.
It should be oriented to economic, social, cultural, ecological and environmental phenomena
and interventions”.
Fundamental documents, which have guided spatial planning policies, have from time to time
been adopted during the activities carried out over the years:
aa)
the European Regional/Spatial Planning Charter, adopted in 1983 at the 6th Session of
the CEMAT in Torremolinos, was incorporated into Recommendation (84) 2 of the
Committee of Ministers to Member States on the European Regional/Spatial Planning
Charter;
bb)
the European Regional Planning Strategy presented at the 8th Session of the CEMAT
in Lausanne in 1988;
cc)
the Guiding Principles for Sustainable Spatial Development of the European
Continent, adopted at the 12th Session of the CEMAT held in Hanover 2000 and
incorporated into Recommendation (2002) 1 by the Committee of Ministers to
Member States on the Guiding Principles for Sustainable Spatial Development of the
European Continent.
The 14th Session of the CEMAT will be held in Portugal in 2006 and will be devoted to the
topic: “Networks for the sustainable spatial development - Build bridges across Europe”.
So far, CEMAT has concentrated only on spatial planning of land space. The issues of spatial
planning for the sea is only touched in the Rec. 1 of the Torremolinos Conference in 1983 on
Planning Policies for Maritime Regions where it says:
“With regard to off-shore activities
THE MINISTERS, having regard to the need to conserve natural resources and co-ordinate
their exploitation, assert that:
- the co-ordination of maritime activities, which are constantly increasing, requires that
international consultations and agreements be expanded and take into account the
conclusions of the United Nations Conference on the Law of the Sea;
- In particular, activities at sea require fuller co-ordination in the fisheries sector, and, in the
Mediterranean, binding agreements are needed between European countries and North
African and Middle Eastern countries on fishing in territorial and non-territorial waters.
- The immense future potential for exploration of the seabed in order to extract hydrocarbons
and minerals generally calls for enormous technical and financial resources and hence for
special channels of international co-operation.
- The work done by IMCO on shipping routes and traffic separation zones should be
continued in order to increase safety at sea and establish an integral system of safe sea lanes.
33
- Since the legal and administrative framework for decision-making is limited and operations
outside territorial waters are attend by uncertainty, the drawing up of maritime planning
policies by way of international conventions should be treated with caution.”
The European Regional / Spatial Planning Charter (Recommendation 2 of the Torremolinos
Conference in 1983) takes account of the importance of the land-sea-relationship:
“7. Coastal areas and islands : The development of mass tourism and transport in Europe and
the industrialisation of coastal areas, islands and the sea, demand specific policies for these
regions in order to ensure their balanced development and co-ordinated urbanisation,
bearing in mind the requirements of environmental conservation and regional
characteristics. Regard must be given to the specific role and functions of coastal areas in the
land-sea relationship and of sea-transport possibilities.”
However, in the 2002 “Guiding Principles for Sustainable Spatial Development of the
European Continent” CEMAT only includes under no 5 coastal and island regions and refers
to the need of integrated coastal management but does not mention spatial planning for
maritime zones.
4. ESDP
At the Informal Council of Ministers responsible for Spatial Planning, held in Potsdam in
May 1999 a European Spatial Development Perspective (ESDP, in German: EUREK) was
adopted.84 By adopting the ESDP, the Member States and the Commission reached agreement
on common objectives and concepts for the future development of the territory of the
European Union. Thus, planning for maritime zones is not yet included.
In the Ministers' view the three fundamental goals of European spatial policy should be:
• economic and social cohesion;
• conservation and management of natural resources and the cultural heritage;
• more balanced competitiveness of the European territory.
The ESDP is seen as a suitable policy framework for the sectoral policies of the Community
and the Member States that have spatial impacts, as well as for regional and local authorities.
In the interests of closer European integration, the Ministers considered co-operation on
regional development among the Member States and among their regions and local authorities
necessary. The ESDP was described as a suitable reference document for encouraging cooperation, while at the same time respecting the principle of subsidiarity. All the participants
agreed that the ESDP does not provide for any new responsibilities at Community level. It is
meant to serve as a policy framework for the Member States, their regions and local
authorities and the European Commission in their own respective spheres of responsibility.
The ESDP is understood as a process; a revision of ESDP is presupposed.
Conclusions: Potential Points of Common Interest in View
of EU Action
Having defined the scope of marine spatial planning, having taken into account the ideas
already presented in the Green Paper and having presented the legal framework in
84
See under: http://ec.europa.eu/regional_policy/sources/docoffic/official/reports/som_en.htm.
34
international law and Community law, some potential points of common interest in view of
future EU action emerge:
1. Raising Awareness
"Spatial planning is essential for efficient sectoral policies and efficient use of maritime
infrastructures, such as ports, off-shore platforms and terminals and coastal surveillance
means."85
The Member States have to be aware of this need for an integrated marine spatial planning
concept in order to implement successfully sectoral policies. Furthermore, it has been stated,
that marine spatial planning is very often a prerequisite for the implementation of binding
international or Community law.
2. The Need for Integrated Planning Procedures
"It is quite obvious that the administration or maritime space is the keystone of any maritime
policy."86
Integrated marine spatial planning requires strong international cooperation and coordination
among the different administrative levels and departments responsible for spatial planning.
This follows from practical needs as well as from international and Community law. The
interdependency of international and Community law strengthens the need for cooperation
within the EU and of the EU with third states. According to Art. 194 II and Art. 195
UNCLOS, which are part of the Community's legal order, the interests of non-EU states have
to be taken into account. EC-legislation should develop this obligation of Member States
towards non-Member States. Planning procedures have to be developed which allow to take
into account interests of other states within the same ecosystem that the plan applies to.
Whereas the implementation of marine spatial planning takes place on the local or regional
levels broad concepts of integrated and cross-sectoral planning can only be developed on a
higher level. So far this has only happened – if at all – on the national level. However, in
order to guarantee a truly integrated spatial planning that takes into account the possible effect
of pollution / of shipping routes / fishing activities etc. to the marine environment / the
economy etc . of a neighbouring state, a strategy on the European level can add value.
On the European level a network or yearly conferences of national planning bodies and
stakeholders could be conceived as already suggested by the Green Paper.
On the national level the participation of neighbouring states in planning procedures should be
ensured, for example by publications of plans.
3. The Need for Common Documentation
To ensure participation of neighbouring states in the planning procedures and to make the
know-how and the experiences of every Member State accessible to other Member States a
documentation is needed of:
 The marine spatial plans themselves as well as of
 Activities carried out according to the plan in the area that it refers to.
85
86
Third background paper to the GP, p. 14.
Third background paper to the GP, p. 14.
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Common documentation is also needed for spatial data that provide the basis for
 spatial planning - such as an Atlas of EU coastal waters and for
 the monitoring of compliance with spatial plans – such as a European Marine Observation
and Data network.
4. The Need for Common Substantive Rules and Tools
A framework of common substantive rules and tools on marine spatial planning should be
developed that takes into account the international and the Community's legal framework. Art.
175 I and Art. 32 I EC-Treaty could serve as legal basis for common rules.
A set of basic rules for marine spatial planning, drawn from the legal instruments on EU-level
and on the international level that were presented above, could be the following:








The principle of sustainable exploitation of resources,
The eco-system-approach,
The establishment of Management Units on regional level, according to ecological,
geographical and hydrological natural entities,
The right to impose special spatial restrictions for reasons of public safety and security,
including protection of the environment,
The eight principles of ICZM,
The development of strategies implementing the three basic responses to coastal erosion
(protection, accommodation, retreat),
The prohibition of trans-boundary pollution,
Participation of neighbouring states, also Non-Member-States in the planning process.
As common tools of marine spatial planning can be regarded:
 Fisheries and other Protection/Conservation Zones,
 Environmental Impact Assessment
 Motorways of the Sea,
 Monitoring of Compliance, based on common and commonly accessible data and
mapping,
 Regular meetings of stakeholders.
Raising awareness for the need of marine spatial planning, for the need for integrated
planning procedures, for common documentation and the identification of a set of common
substantive rules and tools might be a first step towards a comprehensive system of
ecosystem-based marine spatial planning as envisaged by the Green Paper.
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