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Environment and development in coastal regions and in small islands |
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Environment and development in coastal regions and in small islands |
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Legal provision for integrated coastal zone management
Part
1
INTERNATIONAL LEGAL PRINCIPLES OF COASTAL ZONE MANAGEMENT
The
modern tool for the harmonization of the interests of industrial development and
conservation of natural resources in coastal areas is the methodology of
Integrated (in Russian the term “complex” is usually used) Coastal
Zone Management. Today the concept of
integrated management is recognized in scientific literature as the optimal for
the development of laws on coastal management i.e. on management of the seaside
marginal terrestrial areas of a state and seawaters under its jurisdiction that
wash these marginal areas (Hildreth
and Johnson, 1983, pp. 51-157).
During
the last 25 years the methodology of Integrated Coastal Zone Management (ICZM)
has been deeply developed abroad. The concept of such management is presented in
– “Integrated Coastal and Ocean Management: Concepts and Practices” (Cicin-Sain
and Knecht, 1997) in which the following definition is given:
“Integrated coastal management can be defined as a constantly realized
decision-making process with a view of sustainable use, development and
protection of seaside terrestrial and coastal marine areas and their
resources”. Thus, ICZM represents an econo-legal regulatory mechanism (in
market economy conditions) of numerous inconsistent interests of coastal natural
resource users (mineral extraction on the shelf, fisheries, marine transport,
industrial and agricultural development of the coastal zone, resorts,
reserves, etc.).
In
1992, at the United
Nations Conference on the environment and development in Rio de Janeiro,
recommendations were given to coastal states to develop and implement ICZM
programs in line with their local conditions. In last twenty years interest in
ICZM has developed a global character. Now all over the world countries are
implementing such programs or examining foundations for their realization. Over
50 countries now participate in approximately 150 ICZM programs (Ajbulatov,
Mihajlichenko et al., 2000).
Chapter
1.1
Role of legal mechanisms in integrated coastal zone management
There
are a number of generally accepted principles and characteristics of the
implementation of ICZM. One of these is legal support,
which provides application of conventional norms of
international law in the regulative mechanism of coastal management. At the same
time coastal states should be able to create a legislative basis for ICZM
corresponding to their special conditions - to the natural characteristics of
coastal areas, organizational and state structure, geopolitical situation, and
also economic conditions, historical and cultural traditions (Ajbulatov,
Mihajlichenko et al., 2000).
What
is the role of law in realization of the concept of integrated
management? The law defines the powers and duties
of many state and private organizations and also naturalists involved in
management and use of the coastal zone, it provides a legislative basis within
which framework they function. Hence, the law has the potential to encourage the
ICZM process, but at the same time can be the factor constraining this process.
In spite of the fact that the principle of integrated management is a modern and
developing concept, it is inevitably realized within the framework of quite a
number of existing laws, the majority of which were accepted before the ICZM
concept appeared, and were introduced for various other purposes. In this
connection, it is very important to judge the suitability of these laws to the
purposes and tasks of integrated coastal zone management. A legal,
administrative and regulatory basis is necessary for taking decisions, and for
their implementation. There should be
mechanisms, which guarantee coordination in decision-making.
Legislation
establishes certain general principles in coastal management, allowing a
concrete policy to be determined within a precisely defined legal framework
taking into account a variety of economic and ecological conditions. Given
general legislative principles, regional and local authorities are free to show
flexibility when forming policy, defining a strategy and choosing steps for
their implementation in view of local needs and conditions. Thus, at a national
level general structured legislation for coastal management should be
established, following which decision-making can commence.
The
law can determine the type of information on a coastal area that is required for
realization of management, can define necessary subsequent actions with regard
to public opinion (which should be considered when founding and implementing a
policy) and it can promote harmonization of relations between various users of
natural resources in coastal zones.
Coastal
legislation at stages of development: problems, approaches
Traditionally the coast was considered as the legal border between
territorial and maritime
laws and seldom as an integrated area of legislative
competence. The original laws on coasts defined the rights of ownership in
coastal lands and legal principles of division between state
and private property. They also provided a national, legal basis for free access
to coastal waters for navigation and fishery. In this context there were limited
legal concepts on the coastal zone within legislative systems of different
states.
Plenty of administrative laws have been added to this historical basis.
Such laws have usually been connected to industrial emissions on land or at sea,
and prescribed certain functions to separate regulatory authorities responsible
for them. Thus, there were separate codes of law in such areas as land use
planning, prevention of floods, nature conservation, navigation, ports,
pollution, fishing, minerals, tourism and local self-government. Usually these
laws were adopted independently and were directed specifically to separate
branches of industry without considering their relationship to other laws or as
a whole.
Coastal laws apply at various levels of authority: national, regional or local. This creates not only significant complexity in coastal management, but also results in contradictions and conflicts between various levels of jurisdiction and between legislative acts of separate regions. International legislation also has a significant influence on the coastal laws of separate states. So, for example, for the European Community EU legislation significantly influences national coastal laws, especially in the field of fishery, water quality, nature conservation and environmental impact assessment. Implementation of international and all-European obligations by the EU member states unifies national laws and in some cases goes beyond traditional legislative concepts that have negatively affected a heritage of national jurisprudence.
Integrated management ensures that the natural factor is always taken
into account in
management of a company, a construction project and other economic structures of
the coastal zone by “increased openness, knowledge and dialogue” between
“industry, governments and the environment protection organizations” (Willy
and Sons, 1996, p.328)”. The first time such an approach was taken was in the
USA in 1972 when it adopted its Coastal Zone Management Act.
Analysis has shown that this legislation has 6 principle components:
A
way of making commercial use of the shore and contiguous maritime
regions under the sovereignty or jurisdiction of
the USA, that takes into account the “dynamics of commercial use”;
Integrity
of government administration, preventing interdepartmental duplication in
management and administration;
Policy
of public discussion of decisions taken;
Search
for the optimum balance between the conflicting interests of the resource
users (for example, developers of offshore oil extraction and fishermen);
Organization
of reliable reviews of the implementation of the law;
Openness
of management, involvement of citizens,
institutions, interested companies in management (Bergin,
1981, p 57-60)
Analysis of the legislation of various countries (Vylegzhanin
and Zylanov, 2000, p 11). has shown
that laws on coastal management, accepted in the European countries, differ in
detail from the USA Act of 1972 and from each other. For example, in
Sweden integrated management of land-based natural resources has a “stable
legal form” (Bergin, 1981, p 47), while
management of marine resources does not. “Of the fourteen ministries, ten, to
a greater or lesser extent, have an interest in the management of marine
resources resulting in serious problems of coordination.” A
key component of coastal management, according to Swedish legislation, is
coordination of departmental activities in the field of marine resources
management. In Great Britain coastal management is founded on the application of
the Planning Act. In the Netherlands, after the flood in 1953, the Delta
Plan, according to which some estuaries were separated
from the sea by manmade dams, became the main factor in coastal policy.
It is obvious that the different types of legislation accepted in
different countries are specific to their needs and use of coastal areas. Some
legislative measures were adopted as a method of controlling urbanization in
coastal territories, for example prohibition of construction, and land purchase.
Others were developed in connection with critical situations arising in the
coastal zone, in particular, related to exploitation of mineral resources or the
growth of tourism. The purpose of other laws was conservation and protection of
the coastal environment. However, in all the cases, to execute the laws it was
necessary to improve coordination among existing administrative bodies, or to
establish a central coordinating body in order to provide coherent
implementation of decisions by all interested institutions.
In spite of the fact that in a number of countries quite extensive legislation on coastal zone management already exists, laws in this sphere of management can not function without careful adaptation. Laws should not be applied in isolation from political realities, economic conditions or without taking into account historical features of the legal system on which they are based.
In countries with Romance
systems of law (Spain, France, Italy, Portugal) the
coastal zone always was and remains state property and is managed by the state.
The right of citizens to visit the coastal zone is combined with a prohibition
on construction within the limits of a shore, except within cities. Private
ownership of coastal land is allowed only in separate states and includes
significant charges.
In countries with traditions of German and Scandinavian law (Germany,
Sweden, Denmark) coastal land, like any other, may be privately owned. At the
same time, there is the right of unimpeded travel through these parcels of land
and free-of-charge access to use some kinds of natural resources (Schukin,
Andrushko, Galtsova et al.,
1997).
Thus, legislation should fulfill the direct needs of a separate state,
region or area. In this sense, the Coastal Management Act in the United States
is an example of scientifically founded and structured legislation, which allows
each State to precisely define problems as they arise and to define methods for
their solution.
Institutional systems and
authorities
In the majority of countries successfully implementing the ICZM methodology the key role in coastal management belongs to municipal authorities.
Realization
of coastal zone management involves development and use of an Integrated
plan for all the geographical components of the coastal zone: coasts,
offshore waters and inland areas that have a significant effect on processes in
the coastal zone (UNEP/ROE
RSHU, 1998). In many European countries the key role in integrated
planning is given to municipalities. So, for example in Sweden, since 1987, all
municipalities have in principal had a plan of land and water use and a system
of issuing permission that is integrated and adapted to modern conditions.
Having an integrated plan, municipalities can influence the decisions of other
authorities on the use of resources (Baltic
University Programme, 2000, book III, p 177).
The efficiency of policy and legislation in coastal management depends on the coordination and effectiveness of the administrative structure. So if only one group represents the administration, reflecting only one kind of interest, it is evident that the legislation will answer only one kind of interest. Inappropriately worded laws can be arrived at for a variety of reasons. Among them, ill-coordinated actions; insufficiently developed mechanisms for representing the conflicting interests of numerous coastal nature users; shortage of qualified and well trained staff; shortage of special equipment and technical means; inadequate knowledge on the part of the representatives of an administrative structure on the purpose and tasks of the legislation.
Correctly
organized, management should include:
an administrative structure responsible for the determination and control of policy in the coastal zone;
a
consistent concept of administration covering all the kinds of activities,
which are in the charge of the administration;
adoption
of a coastal zone definition, as an object for developing a program of
management without damaging, if it is possible, existing political and
geographical management of objects (economically advanced objects);
refusal
to increase the number of institutes of administration, intermediate and
intersectoral coordination and cooperation (PERGAMON
PRESS, 1982, p.161-162).
Experience
shows that the most valuable component is an administrative body capable of
taking political decisions. This body should consist of representatives of
various governmental organizations (resource, planning, transport, economic),
representatives of major stakeholders and highly qualified staff for
consultation on technical questions. However there is a danger that such a
commission may be too big and bulky to work efficiently. To prevent
“paralysis”, the chairman of the commission should play a principal role in
finding a way out of the impasse. Open voting
provides a reflection of all the intersectoral interests of the coastal zone
users and need for weighed assessment of all these interests. Each group can
then be vested with corresponding elective powers according to the importance of
the interests that the group represents. In this way the majority of decisions
can provide harmonization of various interests in the coastal zone.
For
the administrative power it is necessary, particularly at a technical level, to
have authority, within a precisely defined framework, to convert general norms
into regulations. Such a system of administration provides flexibility,
facilitating execution of legislation, and allowing regional differences to be
taken into account.
The
participation of interested groups of nature users and the public in the
planning and legislative process, as well as in concrete aspects of coastal
administration, is essential. There should be legal guarantees to ensure that
various groups of interests are represented. Such participation may be
coordinated both with individuals and with collective representatives of various
stakeholders.
The
right to be represented allows various groups to protect their interests and
needs when economic activities that might endanger the coastal zone (for example
transportation of oil and poisonous chemical products, construction of ports,
etc.) are planned.
The
representation of the interests of various groups is provided through such
mechanisms as public hearings at the political stage of decision-making or
through the administrative system. In the latter case an administrative body is
necessary for settlement of disputes (as
discussed above).
Professional
education and corresponding training are necessary for securing wide public
participation in planning and decision-making. If a region has no experience of
participation in public hearings and discussions, organization of professional
and practical training of personnel is required.
Chapter
1.2
International coastal management legislation
International law can briefly be defined as a set of legal rules and a regulator of interstate relations allied to national law. A prototype of the modern word-combination and definition “international law” is the term developed in the Roman law “jus gentium” – “law of nations”.
It
is obvious that a “law of nations” does not actually exist. Interstate law
is focused primarily on the regulation of interstate relations and as such is
created mainly by states as the sovereign political organizations.
On
a modern political map of the world the coastal zone as an integral object of
management is not marked out at all. Along the coasts of seas and oceans there
are plenty of lines marking the political borders between states. In a natural
or ecological sense these borders do not exist - ecosystems can’t be divided
into separate parts. Therefore, to unify the rules regulating use of the coastal
zone resources by the states located there, a corresponding unification of
international law is required. Thus, it is obvious that in the regulative
mechanism of coastal management, application of conventional norms of
international law is necessary. International law on the use of the coastal zone
and its integrated management should, on the one hand, take into account the
corresponding national law of sovereign states, which have the coastal zones
under their jurisdiction, and on the other hand, the national law of these
states should follow the norms of international law.
Influence of international legislation
on integrated coastal zone management
There is
a broad set of international legal tools influencing coastal zone management.
Most of them are connected with quite definite problems,
such as pollution of the sea and nature conservation. Despite years of
international legislation to reduce and regulate pollution of the sea by land
sources, integrated land and sea management has not traditionally been
attempted. Agenda
21 realized the necessity of an integrated management policy for the first
time. Documentation from the North
Sea Conference serves as confirmation of this.
International
legislation has an obvious advantage in comparison, for example, with
legislation of the European Union, as it can be applied to many states not
included in the EU, and thus can cover whole natural ecosystems, such as
regional seas. Various levels and kinds of international measures provide
significant flexibility in international legislation. At the same time regional
agreements are generally more ambitious than similar international ones. On the
other hand, the European Community itself is a part of many international
conventions and is able to deliver the consent of all the EU member states.
Many
international legislative tools have an indirect relation to coastal zone
management, as their principal subject impinges on the coastal zones. Examples
are the Convention
on Biological Diversity, the Convention
on Climate Change, the Bonn
Convention On Wild
Animals Migrating Types and the Bern
Convention on Conservation of Wildlife and Natural Habitats.
However, analysis of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973), the Convention on Biological Diversity (1992) and the United Nations Agreement on Stocks of Transboundary and Highly Migratory Species (1995) reveals that some questions are still unresolved.
Thus,
in spite of some limitations, international legislation has undoubted potential
as an additional means for ICZM jointly with national and European legislation.
One
of the international legal tools for the protection and conservation of coastal
zones is international environmental law.
Principle
features of the development of international law
Decisions on such global problems as conservation of
biological diversity, prevention of climate change, conservation of the ozone
layer, regulation of population growth, prevention of desertification, acid rain
and prevention of the resources crisis is beyond environmental protection
activities at a national level and demands joint efforts within the framework of
the international community.
Today,
with urbanization, the extensive use of scientific and technological innovations
to increase economic output, development of new territories, extensive use of
natural resources and environmental contamination it is difficult to provide for
efficient protection, and rational use, of natural resources at a national level
without adopting measures coordinated with the international community.
International
cooperation in environmental protection and rational use of resources has more
than a century of history; it started at the end of the nineteenth century first
bilaterally and then multilaterally. Active bilateral and multilateral
cooperation started in the second half of the twentieth century (Steblov and
Vajsman, 2000).
At
the moment there are three sources of international environmental law:
International
contract law;
International
customary law;
General
legal norms recognized by the public.
The use of natural resources and conservation of the environment are directly regulated by treaties, conventions and agreements. International contract law has a special meaning for the protection of such objects of international environmental law as: World Ocean, space, atmosphere and the seas and other water bodies located on the territory of adjacent states. International contract law applies to cases where decision-making and measures at the international level are required, for example, for protection of different kinds of wildlife (animals, plants, etc.).
The principles of international customary law imply
obligations of interstate protection of the environment, i.e. the obligation of
one state to others not to allow harmful impact on the environment on the
territory of their neighboring states. The generally accepted principles of
international customary law are the:
principle
of good neighborhood;
principle
of territorial sovereignty;
principle
of territorial integrity;
principle
of mutual benefit.
General
legal norms recognized by the public
General
legal norms are based on generally accepted legal approaches to assess the
rational use of resources, and their conservation, and to evaluate the
dangers to the health and living conditions of the population. These generally
accepted principles of international law act as “lawfulness
criteria” for ecological regulation, as well as of other interstate
relations. As well as generally accepted principles of international
environmental law special principles of modern international environmental law
have been elaborated.
International
law acts concern states, governmental and non-governmental organizations, and in
separate cases concern juridical and physical persons.
International
responsibility for violation of environmental law
If a state has adopted international environmental law and then has failed to fulfill its obligations, by failing to prevent oil pollution of the World Ocean or by allowing transboundary contamination of the environment of a neighboring state, for instance, it should expect unfavorable consequences.
The
cause and effect relationship between the illegal actions of a subject of
international law and the ecological damage caused by the subject is a very
important element of international environmental law violation. The significant
role belongs to the guilt of a law-breaker. Although in modern international
practice a non-guilt or objective responsibility is also applied.
According
to modern international law violations are subdivided into crimes and torts. The
concept of international crime is defined in Article 19 of the Draft of Articles
on International Responsibility developed by the International Law
Commission.
It is an international legal act, resulting from the infringement by a state, of
an international obligation vital to the interests of the international
community to such an extent, that its violation is considered as a crime against
the international community as the whole. According to international
environmental legal norms international ecological crimes may be the result of
heavy infringement of an international obligation, having basic meaning for
environmental protection, such, as the obligation prohibiting pollution of the
atmosphere or the seas. Any international legal act, which is not an
international crime, is recognized as an international tort, or an ordinary law
violation (Brinchuk, 1998, p 636).
Coastal
management laws in the member states of the European Union
Although coasts are not mentioned in the European Union Treaty, the legal competency of the European Community covers ICZM widely. The concept is included in the Treaty in the sustainable development principle and the requirement for integration of environmental protection in other areas of European Union policy. The variety of legal systems of the EU member states and the possibilities for their modification testify that the European Community should not give too many directives. Any interference should be in the legal competency of the EU. Activities in this area, together with other legal measures for affirmation of ICZM necessitate an exact assessment of the state of the environment as a whole. In this case, the most useful measures available to the Community are the ICZM Directives, the Model Law and the Code of Conduct in Coastal Zones.
National
coastal management laws in European states have many common features, but it is
important to note their differences too. As well as in other areas of law,
historical features of the various legal systems puts obstacles in the way of
integration of the European legislative system.
The greatest similarity is observed between the states, where the legislation is founded on similar legal systems: customary law, Roman law (Spain, France, Italy, Portugal), Scandinavian or German traditions (Germany, Sweden, Denmark).
State
ownership of the coast and coastal basin is a characteristic feature of many
countries, but the exact size and delimitation of these zones differs from
country to country. The public right to access to coastal waters and lands,
comes from customary law, Roman law or the Scandinavian “Everyman’s
Right”.
In a number of the EU states the legislative measures
aimed at protection of the coastal belt along the coastline are rather
widespread. In particular, such legal mechanisms exist in the Baltic states
where the HELCOM Recommendation
15/1, referring to coastal protection, is
already a unifying influence, although here again significant differences exist,
basically in the breadth of the protected coasts.
An
analysis of the EU member states’ national legislation has shown that
irrespective of their advantages or disadvantages they establish basic
principles for ICZM (Gibson,
1999). Both their completeness and variety are
likely to be impediments to adopting unified legislation.
Positive
experiences of coastal management legislation in practice in several member
states of the European Union are discussed below.
In Denmark, in 1994, a national government department
responsible for the environment, conservation and planning policy, the Ministry
of Environment and Energy was established. It is supported by specialist
agencies, including the Danish Environmental Protection
Agency. In Denmark
counties undertake regional planning, and the municipalities carry out local
planning.
Adopted
in 1992 the Planning Act, which was revised in 1994, defines a coastal planning
zone as extending 3 kilometers inland from the coast. The Act specifies
regulations on land use within this zone, which differ in urban, summer cottage
and rural areas, and must be catered for by county and municipal councils in
their plans. This approach does not involve separate coastal planning; coastal
zones are integrated into the ordinary planning process. The aim is to preserve
undeveloped coasts, ensuring that coastal territories are kept free from further
use. Key elements in the Planning Act are environmental impact assessment and
public participation.
Also
in 1992 Denmark adopted the Protection of Nature Act. The Act established a
protected zone outside urban areas, extending 300 meters inland from the coast.
With few exceptions, new developments are prohibited in this zone. A narrower
protection zone of 100 meters had previously applied in summer cottage areas,
but this was extended to 300 meters in 1999.
Denmark
is a party to the Helsinki Convention on the Protection of Marine Environment of
the Baltic Sea Region, and the coastal planning zone and protection zone are
intended to implement the HELCOM Recommendation
15/1, concerning the protection
of the coastal strip.
The
Planning Act and Protection of Nature Act concentrate on land use only, and are
not applicable to the sea, which is regulated by other legislation. These laws,
which are administered by the national government, include the Marine
Environment Protection Act, the Harbor Act, the Fishery Act and the Raw Minerals
Act. The Coastal Protection Act is aimed at prevention of coastal erosion and is
implemented by the Danish Coastal Authority under the supervision of the
Ministry of Transport.
The
legal framework in the Danish coastal zone is complicated, and this complexity
presents a potential obstacle to integrated coastal zone management.
In the
Netherlands coastal management is an old tradition. The first attempts to create
an organizational structure responsible for the state and strengthening of a
coastal line were made twelve centuries ago. Throughout history the Netherlands
has developed and strengthened its system of coastal management. It is based on
legally constituted associations of landowners whose voting rights are
proportional to the amount of land they own. In total there are eight hundred
such associations. Each has administrative and technical personnel and defined
powers in functional and geographical senses. The administrative and technical
body forms part of the provincial administration, and there is also a general
directorate at the national level, which acts under the supervision of the Ministry
of Transport and Water. While this system provides expertise and
balanced decision it is criticized for its technocratic approach and uncommunicativeness
with the public and trade unions.
Another
important tool for coastal management is town and regional planning, which also
has old traditions in the Netherlands. Plans exist at four levels:
Municipal plans
of allocations - obligatory both for citizens, and for the government;
Municipal or
structural inter-municipal plans;
Regional plans
of provinces;
National plans.
The
basis of all the levels of planning is the principle of “double-track
decision-making”. This means that in the decision-making process the interests
of land use management, on one hand, and the interests of the corresponding
government ministries, on the other hand, are taken into account.
Attempts to create a national structure for coastal
planning in Great Britain started in 1947, when the Town and Country Planning
Act was adopted. In 1966 the Department of the Environment has issued a Circular
Letter to County Councils asking them to define Coastal Protection Areas so as
to strengthen control over their development. This initiative to keep as much of
the coast untouched as possible was based on the following:
Coastal
landscape diversity;
Undeveloped
coast (75% of the coast remains undeveloped, with 800 miles of magnificent
landscape rich in history and naturally conserved);
Footpath access to
the coast (access to the coast is typically recognized as de-facto on many
privately owned stretches of the coast);
State ownership
of coasts (significant amounts of the coast are state property);
Other kinds of
property protection: National
Trust, Nature Conservancy Council (now English
Nature, Scottish
Natural Heritage and the Countryside
Council for Wales).
In 1972 the Department of the Environment issued another Circular Letter in which the authorities of the County of Kent were recognized as outstanding at the national level. Local authorities have the power to prepare and implement management plans according to the priorities outlined in the Circular Letter. A commission created to encourage management of coastal areas has offered special remedies for protection projects. The National Trust carried out campaign for “the next one hundred miles” with the help of “Enterprise Neptune”. The campaign was a big success, and the Trust has now taken 400 miles of coast under its protection.
In
Kent the coastline is 170 miles long and 37% of it is built up. In 1966 an
initial plan of County policy on the protection of the one-mile coastal belt was
adopted as a Convention before a complete public opinion poll was done. In 1967
the borders of Coastal Preservation Areas were determined. The width of theses
areas varies from 300 yards up to 5 miles and includes land seen from
the coast, i.e. the territory, which influences the development of coastal
zones. A strict policy of limiting coastal access to permit holders only was
introduced so as to leave complete ecosystems undisturbed. The result of such an
approach, very strictly limiting the development of economic and other
activities, was conservation of huge coastal territories in Kent.
As a legal framework for coastal management was developed
in Sweden, regulations for the use of land-based resources were also defined.
Executive and legislative branches of power, local administrations and public
and professional associations have made joint efforts to solve problems in the
coastal zone related to: allocation of enterprises potentially harmful to the
environment such as power stations; the increase of country cottage building;
tourism and recreation (including sports fishing); protection of the
environment; conservation of historical and cultural monuments; and securing the
interests of the local population.
In
1979 the government adopted a document, which then received the approval of
parliament and constituted a long-term legal foundation for land resources
management and for solving the problems in the coastal zone mentioned above.
At
the same time a government group was created to coordinate integrated management
of water and marine resources. The importance of this group is underlined by its
membership of ten of the fourteen government ministries. The group is aware that
the long-term maritime interests of Sweden include not only development of
resources as such, but other possibilities offered by the sea: for transport,
generation of electric power, etc.
The
principle areas of interest to the group are:
International
regulation of national legislation;
Marine ecology,
in particular, the influence of toxic substances and other discharges on the
ecosystem;
Systems of
observation for maritime areas;
Fishing,
development of aquaculture and also other kinds of economic activities in
Swedish seas;
Use of
international waters by Sweden;
Development of
programs concerning the coastal zone.
In Spain
the Ministry of the Environment (Ministerio de Medio Ambiente), which was
created in 1996, has national responsibility for environmental policy.
In
1998 Spain enacted a national Shores Act (Ley de Costas), which was
intended to reassert state ownership over “coastal public property” that had
increasingly been privatized, and to protect it from the effects of
inappropriate development on adjoining land. The Shores Act builds on the
declaration in the Spanish Constitution that the coastal strip, beaches,
territorial sea and the natural resources of the exclusive economic zone and
continental shelf are state public property. This area is defined in more detail
in the Shores Act to take in the shore of the sea and its inlets, including
tidal shores, banks of tidal rivers and low-lying lands, such as wetlands,
lagoons and marshes, which are flooded by the sea, and also beaches and deposits
of sand, gravel and pebbles (including escarps, berms and dunes), formed by
naturally or artificially. In order to prevent private acquisition of this area,
the Act stipulates that land added to the shore by accretion or as a result of
works becomes state coastal public property, as well as land flooded by
encroachment of the sea.
In
accordance with the Constitution public ownership of coastal zones is
inalienable, inprescriptible and nonseizable (Shores Act, Article 7). It is the
responsibility of the national government to approve its boundaries under a
statutory procedure in which municipal councils, adjoining landowners and other
interested parties are entitled to be heard.
The
Shores Act defines four landward zones adjacent to coastal public property and
imposes restrictions on development and exercise of private property rights
within them.
An
“easement of protection” extends for a minimum of 100 meters from the inland
limit of the shore, and can be enlarged to a maximum of 200 meters by the
national government with the agreement of the autonomous community and municipal
council. Within this zone there is a general prohibition on residential
development, major roads schemes, destruction of sand deposits and maintaining
of high voltage electricity cables, waste disposal and advertisements. However
developments that cannot be located elsewhere or which provide necessary
services may be authorized, as well as outdoor sports facilities. Exceptions may
also be granted for reasons of public utility or economic importance.
There
is an “easement of passage” over a strip of 6 meters from the landward limit
of the shore. This strip is to be left permanently clear for pedestrians and
search and rescue vehicles. It may be enlarged up to 20 meters in places with
difficult or dangerous passage, but may exceptionally be blocked by public works
or promenades.
An
“easement of free public access to the sea” exists on land adjoining coastal
public property, which must be reflected in land use zoning plans (Shores Act,
Article 27). In urban and development zones outside protected areas, vehicular
access roads should be a maximum of 500 meters apart, with pedestrian access at
least every 200 meters. Works or facilities, which impede public access to the
sea, are prohibited unless alternative compensatory measures are taken.
In
addition, an “influence zone” with a minimum width of 500 meters from the
landward limit of the shore must be included in land use plans, which should
incorporate the following principles for the protection of coastal public
property: sufficient land must be reserved for cars parks to guarantee parking
outside the “easement of passage” area; building density must not exceed the
average allowed for urban land; the same authorizations for waste disposal must
be required as apply to coastal public property.
Environmental
policy in Portugal is implemented by the Ministry of Environment and Natural
Resources (Ministerio do Ambiente e Recursos Naturais) which was created
in 1990. Planning is mainly the responsibility of the municipalities. In
Portugal there are several laws directly related to the coast.
In
1971 a Decree-Law (Decreto-Lei) clarified and revised the legal rules
governing public aquatic property, including the seabed and coastal margin. The
law established state ownership of the seabed up to the high water mark,
together with an adjoining strip of coastal land extending for 50 meters inland
from this line or beyond the beaches. The same principles apply to the bed and
shore of navigable waters under the jurisdiction of marine or port authorities.
Private ownership that can be proved to have existed in these areas before the
1860s is preserved, but the bed and coastal margin are subject to public rights
of access, fishing, navigation and swimming, and private uses of public property
may only be carried out under license or concession.
A
Decree-Law was passed in 1990 to implement the objectives on organizing and
administering the coastal area. The Decree-Law defines a coastal strip extending
two kilometers inland from the line of the highest equinoctial tide and
specifies policies for the occupation, use and development of that area, which
should be applied by the authorities involved in licensing and planning.
Municipal plans must contain rules for the coastal strip and be approved only if
they conform to the policies in the Decree-Law. Where there are no planning
instruments, it is the duty of the government to establish appropriate rules,
and land subdivision and construction works should not be authorized unless they
comply with the statutory coastal policies.
In
1993 another Decree-Law was passed for the preparation of specific “coastal
strip classification plans” (Planos de ordenamento da orla costeira, POOC).
These can apply to a “terrestrial zone of protection” extending to a maximum
distance of 500 meters from the water’s edge and a “marine zone of
protection” up to a depth of 30 meters, but exclude areas under port
jurisdiction. It is the responsibility of the national Water Institute to draft POOCs,
with the assistance of a representative technical commission, and after a public
inquiry, to submit them for approval to the Ministry of Environment and Natural
Resources. These plans require the agreement of the government ministers
responsible for national defense, planning and territorial administration,
commerce and tourism, environment and natural resources and the sea. In the
terrestrial zone of protection, POOCs should observe the same policies as
are specified in the 1990 Decree-Law, but if there is no POOC or
municipal plan in force the licensing of works must be approved by the
respective regional directorate of the environment and natural resources (DRARN).
In addition, the 1993 legislation contains criteria for the classification of
bathing beaches and principles for their management that should be reflected in
POOCs, and private uses of beaches need a concession or license from the
DRARN or port captain.
Coastal
zone laws outside the European Union
Comparison
of coastal management laws of many states outside the EU (Gibson,
1999) has
shown that a big variety of legal and not statutory instruments exist, which can
be used for ICZM. At the same time, there are no identical approaches in their
use and countries should choose which of them best fits their own legislative
and administrative systems.
For
example, the United States, with great experience of coastal zone management,
shows how much flexibility is necessary while developing legislative acts and
norms within the framework of a federal structure. Precise definition of the
coastal zone at the federal level allows separate states to establish boundaries
more precisely taking into account their geographical position. The USA Coastal
Zone Management Act precisely formulates the national purpose of the ICZM
policy. This policy does not force individual states to develop coastal
management programs, but creates a stimulus for them in the form of profits
obtainable through grants and “federal additional funding”. The methods for
implementing ICZM selected by individual states in the USA vary and include
comprehensive ICZM legislation, structured acts and not statutory coordination
schemes.
For
comparison it is interesting to consider the approach developed and used by the
Australian federal authorities, namely, adoption of not statutory ICZM policy at
the national level, encouragement and support of states and territories
participation in ICZM development with the help of financial investments and
other initiatives. ICZM legislation is a regional mechanism, which is selected
by some, but not all the Australian states.
In
Canada, the Oceans Act is focused primarily on the marine environment, but at
the same time, it is an example of federal legislation establishing wide
opportunities for integrated management, coordinated by the national government.
From
the point of view of wide implementation of ICZM methodology the experience of
New Zealand, which took a decision on including legal provision of ICZM in the
law on the environment, is interesting. The 1991 Resource Management Act seeks
to provide an integrated framework for managing the sustainable development of
land, water and air, and promotes community involvement in decision-making. It
gives most of the managerial functions to regional or territorial authorities
and provides for community involvement in decision-making. Regional councils
share responsibility for land use with the territorial authorities, and for
coastal marine areas with the Ministry for
Conservation. According to the Act,
this Ministry prepares the statements on national coastal policy, and also on
regional coastal plans. The first New Zealand Coastal Policy Statement was
published by the national government in 1994.
Such
a fundamental change in legislation demanded significant political will, and
would not have been possible without the consensus of all the parties and
subjects. Probably, the most significant factor was that New Zealand is not a
federal state. So its example is difficult to follow for both federal states and
the European Union. New Zealand’s experience shows that new integrated
legislation is unlikely to be fully workable in its initial form and will
doubtless need correction and amendment. The Resource Management Act
reflects
the major ICZM principle: the coastal zone represents a part of the whole
environment and coastal zone laws must not be adopted separately, but
coordinated with other environment laws.
Model
Law on Sustainable Management of Coastal Zones and The European Code of Conduct
In 1995 the Council of
Europe, which has 41 member states,
drafted a Proposal for a Model Law on Sustainable Management of Coastal Zones
together with a draft European Code of Conduct for Coastal
Zones.
The
purpose of model laws is to provide a standard text that states can use as a
basis for national legislation. The Model Law and the Code of Conduct do not
have the status of international conventions, since there is no obligation on
any state to apply them, and they can be modified to suit national circumstances
(UNEP/ROE RSHU, 1998).
These
acts are based the following ideas:
Undeveloped
coasts are a non-renewable natural resource;
Conservation of
this resource is possible through implementation of a sustainable development
concept;
Development of
the coastal zone is not restricted to recreational users, landowners and local
authorities; economic interest in the coastal zone is much more widely spread
than this;
Precise,
readily applicable legal norms establishing, in particular, a number of
restrictions on coastal resource use are necessary for the harmonization of the
aspirations of the various parties interested in the coastal zone.
The
Model Law defines a legal structure for ICZM, including a definition of the
coastal zone and the main principles of integrated management. The coastal zone
is defined as the geographical area covering both the maritime part and the
terrestrial part of the shore, including salt-water ponds and wetlands in
contact with the sea (Article 1). Thus the coastal zone has precise boundaries.
According
to the Model Law integrated coastal zone management is based on the following
principles:
Sustainable
development;
Prevention of
harmful impact on the natural environment;
Adoption of
precautionary measures;
Recovery of
destroyed natural environment;
“Polluter pays”
and “user pays”;
Use of the best
available technologies and methods directed at conservation of the environment;
Informing the
population, and community involvement in decision-making;
International
cooperation.
Also, a number of principles particular to coastal zone
development apply:
Equal
distribution and sustainable development of resources;
Development of
remote areas;
Protection of
ecologically fragile areas, threatened ecosystems, and also habitats and
species;
Compatibility
of various kinds of coastal zone use;
Priority in the
development of the kinds of activities dependent on the coastal zone;
Unrestricted
access to the shore.
The Model Law provides for creation of a special body at
the national level, responsible for development and implementation of integrated
coastal zone management. This can be a ministry, interdepartmental committee or
other body. At the regional level a special executive body may be in charge of
integrated management implementation.
Separate
chapters of the Model Law are dedicated to the creation of a database on the
state of the coastal zone, financial instruments for management, land ownership,
free access to the shore, development and planning, recreation, conservation of
ecosystems, etc. (Gibson, 1999).
In
the Code of Conduct attention is given to the social and economic sectors,
marked in the Pan-European Strategy of biological and landscape diversity with
the addition of a sector involved in coastal protection. These sectors are (UNEP/ROE
RSHU, 1998):
Agriculture
Military
defense
Forest
management
Fisheries
Energy
Industry
Urbanization
Transport
Tourism and
recreation
Water
management
Coastal
protection
There
are many recommendations that apply to all sectors. These are included in the
Chapters entitled “Strategic Principles” and “Integrated Coastal
Management”. Strategic principles include the guidelines concerning protection
of a dynamic regime of coastal systems and should be applied in cases of
development and construction or other kinds of activities in the coastal zone.
So, for example, one of principle demands is to avoid construction or expansion
of physical impediments in sensitive coastal ecosystems to conserve access
between the land and the sea. Others principles make clear that new kinds of
activities should be located outside the coastal zone.
General
guidelines cover questions of integrated coastal zone management, environmental
impact assessment, use of financial instruments and initiatives, and support for
community involvement in decision-making.
Thus, the Code of Conduct is a major document promoting development and conservation of coastal zones.
