1.4 Laws and Policies

1. MCA Field Guide
2. MCA Field Guide Checklist
3. Phase 1: Feasibility Analysis Checklist
4. 1.1 Conservation targets are established
5. 1.2 Threats and strategies are determined
6. 1.3 Owners, managers, and users are known
7. 1.4 Laws and policies are supportive
8. 1.5 Organizational capacity is sufficient
9. 1.6 Stakeholders and their issues are identified
10. 1.7 Costs and financing are assessed
11. 1.8 Reporting has been completed

Analyzing laws and policies that apply to ocean and coastal management in the area of a proposed Marine Conservation Agreement (MCA) will inform organizations of the types of formal mechanisms that may be available to them for their project purposes. Since the basis of an MCA project is an ongoing economic incentive to protect biodiversity, it is wise to formalize long-term MCAs with a legal document. Formal MCAs can be developed using a variety of legal tools, ranging from private contracts to public leases.

A law and policy analysis should reveal the available legal mechanisms that are most appropriate and enforceable for a given context. Preferably, a lawyer or policy analyst (from the country where the project will be implemented) assists with the assessment of legal tools available for MCAs. An analysis of international treaties and agreements (such as signatory status relating to Ramsar and the Convention of Biological Diversity), constitutional provisions, federal, state, and local statutory laws and regulations, management agency policies and practices (including National Biodiversity Strategic Action Plans, National Poverty Reduction Strategies, and Millennium Development Goals), public rights (associated with the public trust doctrine in the U.S. and other common law rights), and case laws may be necessary. In addition, interviews with management agency staff will help clarify how the laws and policies have been implemented and interpreted in the field. Flexibility and creativity will likely be necessary during the law and policy analysis as legal mechanisms intended for a different purpose may need to be adapted for conservation objectives.

While each country and location will demand its own legal and policy analysis with its own set of specific questions to answer, examples of key questions are found in the table below.

Existing Analyses

Our current understanding of relevant laws and policies for a limited set of countries and U.S. ocean coast states can be accessed through the Country Analyses and U.S. State Analyses within this toolkit. The analyses generally take two forms: 1) In-depth, and 2) Initial. The in-depth analyses provide greater information about the potential for MCAs than the initial analyses. In either case, conservation organizations can use these analyses as starting points for their own law and policy investigations. If organizations have completed additional analyses and would like them considered for inclusion in the MCA Toolkit so that other organizations can benefit from them, please Contact Us.

Policy versus Perception

While undertaking law and policy analyses, conservation organizations should be aware that it is often assumed in many public and private arenas that lands and resources lying within ocean and coastal waters cannot be acquired or managed by any entity other than the government. Frequently, this assumption is incorrect. As such, any analysis undertaken should distinguish between actual law and policy barriers and institutionalized perceived barriers to MCAs. If law and policy barriers do not exist, then the management agencies, land and resource owners and users, and the political climate must be conducive for an MCA to go forward.

Probable Acquisition

In general, existing analyses have shown that if the targeted lands, resources and associated ecosystem services are currently under private ownership, then private acquisition of fee-simple and less-than fee-simple ownership interests is likely possible. If, however, the lands, resources and associated ecosystem services are currently under public ownership, then in most circumstances private acquisition of fee-simple rights per se is likely not achievable. However, in some unique situations, exchanges or outright acquisitions of fee-simple ownership of publicly-owned lands and resources are feasible. If not, conservation organizations can consider some lesser form of MCA. Under all circumstances, relevant laws and policies, the public trust doctrine (in the U.S.), and case law should be evaluated to determine the rights which can and cannot be acquired or managed.

Public Rights

In many circumstances, even when private entities own fee-simple interests in lands and resources below the high tide line, the public retains certain rights to access or use the areas. This represents a significant difference between fee-simple ownership of uplands and fee-simple ownership of lands below the high tide line in many countries. The rights held by the public for lands and resources below the high tide line are often associated with common law (such as the public trust doctrine in the United States) and may be associated with cultural, community, and other historical rights in other countries. These public rights may have a bearing on the rationale for conserving the lands and resources as well as on the ability to do so.

Next Sub-step

If the applicable laws and policies are supportive of MCAs, then the ability and willingness of conservation organizations should be assessed to determine if they can lead the MCA process.

Proceed to 1.5 Organizational Capacity

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