The Ecosystem Approach in Ocean Planning and Governance
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The Ecosystem Approach in Ocean Planning and Governance Publications on Ocean Development a series of studies on the international, legal, institutional, and policy aspects of ocean development General Editors Robin Churchill Alex Oude Elferink VOLUME 87 The titles published in this series are listed at brill.com/pood The Ecosystem Approach in Ocean Planning and Governance Perspectives from Europe and Beyond Edited by David Langlet Rosemary Rayfuse LEIDEN | BOSTON This is an open access title distributed under the terms of the prevailing CC-BY-NC License at the time of publication, which permits any non-commercial use, distribution, and reproduction in any medium, provided no alterations are made and the original author(s) and source are credited. Library of Congress Cataloging-in-Publication Data Names: Langlet, David, editor. | Rayfuse, Rosemary Gail, editor. Title: The ecosystem approach in ocean planning and governance : perspectives from Europe and beyond / Edited by David Langlet, Rosemary Rayfuse. Description: Leiden : Brill Nijhoff, 2019. | Series: Publications on ocean development ; 87 | Includes bibliographical references. Identifiers: LCCN 2018046679 (print) | LCCN 2018048385 (ebook) | ISBN 9789004389984 (E-book) | ISBN 9789004389977 (hardback : alk. paper) Subjects: LCSH: Marine resources conservation—Law and legislation. | Ocean engineering. | Marine ecology. | Marine resources—Government policy. | Environmental management. | Marine ecosystem health. Classification: LCC K3485 (ebook) | LCC K3485 .E36 2019 (print) | DDC 333.91/64—dc23 LC record available at https://lccn.loc.gov/2018046679 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 0924-1922 ISBN 978-90-04-38997-7 (hardback) ISBN 978-90-04-38998-4 (e-book) Copyright 2019 by the Authors. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. Koninklijke Brill NV reserves the right to protect the publication against unauthorized use and to authorize dissemination by means of offprints, legitimate photocopies, microform editions, reprints, translations, and secondary information sources, such as abstracting and indexing services including databases. Requests for commercial re-use, use of parts of the publication, and/or translations must be addressed to Koninklijke Brill NV. This book is printed on acid-free paper and produced in a sustainable manner. Contents Preface ix List of Illustrations xi Table of Cases xii Table of Legislation xiv Notes on Contributors xix 1 The Ecosystem Approach in Ocean Planning and Governance: An Introduction 1 David Langlet and Rosemary Rayfuse Part 1 Cross-Cutting and Critical Perspectives 2 Resilience and Adaptive Capacity of Aquatic Environmental Law in the EU: An Evaluation and Comparison of the WFD, MSFD, and MSPD 17 Niko Soininen and Froukje Maria Platjouw 3 The Ecosystem Approach as a Basis for Managerial Compliance: An Example from the Regulatory Development in the Baltic Sea Region 80 Brita Bohman 4 Delimiting Marine Areas: Ecosystem Approach(es?) in EU Marine Management 117 Aron Westholm 5 Land-Sea Interactions and the Ecosystem Approach in Ocean Planning and Governance 140 Sue Kidd 6 The Ecosystem Approach and Sustainable Development in Baltic Sea Marine Spatial Planning: The Social Pillar, a ‘Slow Train Coming’ 160 Michael Gilek, Fred Saunders and Ignė Stalmokaitė vi Contents 7 The Ecosystem Approach for the Marine Environment and the Position of Humans: Lessons from the EU Natura 2000 Regime 195 Kees Bastmeijer Part 2 Participation and Collaboration 8 The Ecosystem Approach and Public Engagement in Ocean Governance: The Case of Maritime Spatial Planning 223 Antonia Zervaki 9 Embedding Law in Participatory Processes Enables an Ecosystem Approach to Marine Decision Making: Analysis of a North Sea Example 256 Anne-Michelle Slater and Alison MacDonald Part 3 Thematic and National Perspectives and Experiences 10 The Ecosystem Approach and the Common Fisheries Policy 287 Jill Wakefield 11 The Challenges of Applying the Ecosystem Approach to Spatial Planning in the EEZ: German Experiences 317 Eva Schachtner 12 Ecosystem-Based Approaches to Ocean Management in the United States: Weaving Together Multiple Strands 371 David Fluharty 13 Implications of the Ecosystem-Based Approach to Wetlands Management on the Kenyan Coast 413 Collins Odote Contents vii Part 4 Conclusion and Outlook 14 Challenges in Implementing the Ecosystem Approach: Lessons Learned 445 David Langlet and Rosemary Rayfuse Index 463 Preface In a speech at a Side-Event to the United Nations Oceans Conference in June 2017, Karmeau Vella, the European Commissioner for the Environment, Marine Affairs and Fisheries, posed the question: ‘[w]hy do we need an ecosystem approach?’ His answer was simple: ‘[b]ecause our future depends increasingly on our capacity to manage the accumulation of human activities; our capac- ity to take account of all the ways the oceans are used and their impacts; our capacity to ensure that the health of the oceans, their productivity and self- repairing capacity is not undermined’. In Vella’s opinion it is now ‘impossible to look into conservation and sustainable use of the oceans without taking an ecosystem approach to ocean management’.1 In short, the ecosystem approach to oceans management has come of age. But what, exactly, is the ecosystem approach and how can it be implemented to ensure that ocean ecosystems, resources and space are not exploited beyond their natural limits? Where already over-exploited, as in the case of overfish- ing or habitat destruction, how can the ecosystem approach be implemented to restore ecosystem health? Moreover, how can the ecosystem approach be implemented to conserve marine biodiversity, to sustain goods and environ- mental services, to provide social and economic benefits for food security and to sustain livelihoods? It was a desire to explore these questions and to look for good examples of the bridging or integration of the forces and logics that govern ecosystems and the legal and administrative systems by which they are managed that gave rise to this book. More precisely, the origins of this book lay in a conference held at the Department of Law in the School of Business, Economics and Law at the University of Gothenburg in November 2016 during which the authors and other conference participants discussed the issues focusing on the following themes: the conceptualization of the ecosystem approach in law; the relation- ship between the ecosystem approach as a concept of law and ecosystems as understood by natural science; the ecosystem approach and adaptive manage- ment; the ecosystem approach and ecosystem services; multilevel interactions in legal and natural systems; sea-land interactions; the relationship between 1 Co-organized together with the United Nations Environment Programme, the UNEP/MAP, the Food and Agriculture Organisation and the General Fisheries Commission for the Mediterranean. See <https://ec.europa.eu/commission/commissioners/2014-2019/vella/ announcements/un-ocean-conference-ecosystem-approach-regional-level-contributing -implementation-sdg-14_en>. x Preface maps/mapping processes and legal and administrative measures; and partici- pation and dispute management/resolution pertaining to marine resources. Presentations related to both international and EU law as well as domestic law and planning processes. The chapters in this book represent the outcome of that conference. As in any project of this nature, many thanks are due. First and foremost, we offer our thanks to the Department of Law at the University of Gothen- burg, which is where this project and the collaboration between the editors first took root, Professor Rayfuse having been appointed as a Visiting Professor at the Department for 2014–2017. While it is always invidious to mention a few names only, we would like to thank all those who enabled, through their work and commitment or through their financial contributions, Professor Rayfuse’s appointment as well as the establishment of a Chair and an associated well- endowed research environment in Ocean Governance Law at Gothenburg University, thereby making this project as well as many others possible. We are grateful to Henrik Jansson for his tireless editorial assistance in preparing the draft manuscript. We similarly thank Brill Publishing for its support for this volume and for the helpfulness of its staff, particularly Marie Sheldon and Johanna Lee. Of course, this book would never have been possible without the commitment and hard work of the authors and so our final and deepest thanks go to each of them for their original and thought-provoking contributions. David Langlet and Rosemary Rayfuse Gothenburg and Sydney, May 2018 Illustrations Figures 5.1 A general framework for addressing land-sea interaction 142 5.2 Overview of natural and social science perspectives and the ecosystem approach 148 7.1 The ecosystem-based approach in the ‘ideal situation’ 204 7.2 The ecosystem-based approach with an unfortunate start 205 7.3 Natura 2000 regime: achieving the conservation objectives and restoring the ideal situation for implementing the ecosystem-based approach 208 7.4 Humans as part of the ecosystem 213 9.1 Windfarm proposals 268 9.2 CORPORATES methodology 273 Maps 4.1 Catchment areas in Sweden