Float or Sinker for Europe’s Seas?: The Role of Law in Marine Governance

Marine environmental governance is hugely challenging. This follows both from the multitude of human activities within and beyond the marine area which affect the quality of the environment and from the complexity, variability and interconnectedness of the marine ecosystems themselves and their inhabitants. In addition, each marine region or sub-region has its own particular conditions that call for specific measures. Is the law pertaining to marine governance in Europe up to meeting this challenge? A key task of law is to provide structures for coordinated measures that are needed over time to achieve certain goals. Core values of any legal system aiming for legitimacy are legal certainty and stability, which allow actors to predict how the system will affect them in the future and adapt their behaviour accordingly. This holds true in the field of marine governance, which requires coordination between various states and sub-state actors in tackling multifaceted phenomena. Many stakeholders, from states to companies and individuals are also expecting the rules to be transparent and the outcomes of future measures within the legal framework to be reasonably foreseeable. At the same time the effectiveness of any piece of legislation addressing ecosystems and the interaction between human societies and those systems hinges on its ability to utilize scientific information and enable appropriate responses to changes in the environmental situation. Successful marine governance thus needs to build on legal structures that provide both stability and a high degree of flexibility and responsiveness to change in ecosystems, our understanding of those systems, and the human behaviour that affects them. If these two requirements can be successfully balanced within the legal system – without crossing those lines that may constitute breaking points for functioning ecosystems – and the required measures can be effectively implemented, then law may serve as a ‘floater’, helping to maintain a sustainable relationship between human societies and their ecological foundations. If, however, the law fails to be ufficiently adaptive or if its responses to scientific data are too heavily compromised by competing objectives – either due to systemic flaws in the law itself, or because its implementation or enforcement are ineffectual – then law