4 Underwater Landscape Put to the Test of Law
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essentially urban planning law—establishes a National Landscape Council with the
task of proposing measures to improve landscape quality. Article 18 provides for a
land policy to safeguard the littoral area but it is of no direct concern to our topic here.
It should also be noted that the landscape law totally ignores biodiversity, focussing
primarily on urban planning. Positive law therefore remains ambiguous about the
scope in which the definition of landscape applies, yet it does not expressly preclude
marine territories.
4.1.2 Compatible Content
We can see that the various levels of law integrate the concept of terrestrial landscape,
laying down measures to protect this heritage in a context of private property and
urban development from which the underwater world is excluded.
However, the main instruments are often drafted in broad and imprecise terms,
leaving room for extrapolation in order to include the marine environment. The
scope of the European Landscape Convention is thus transposable to the marine
environment. The preamble is written in very general terms: the landscape is of
“public interest”; it is a component of our “natural heritage”; and this new instrument
is devoted to “all landscapes in Europe”. Article 1 defines landscape as “an area” and
Article 2 stipulates that the provisions apply to the entire territory of the parties and
includes “land, inland water and marine areas” whether the landscapes are considered
outstanding or everyday landscapes. In addition (Art. 5), landscape is an expression
of “people’s heritage and a foundation of their identity”. The Parties must therefore
identify landscapes in “their entire territory”. Nothing in the Convention prevents
a State’s underwater territory from being included in the scope of application. It
is no doubt by misuse of language that the text refers to “inland water” rather than
“continental waters”, and in the writers’ minds, marine areas are those on the surface,
but nothing precludes the sea bed from being taken into account, since it is an integral
part of the State’s territory.
In European Community law, Annex I of the 2008 Marine Strategy Directive
defines, as a descriptor of good environmental status, the level of integrity of the sea
floor ensuring that the structure and functions of the ecosystems are safeguarded; it
considers the topography and bathymetry of the seabed to be physical features to be
preserved, along with all habitats. Indeed, the word “landscape” is not used directly
in the Directive, but these geomorphologic characteristics do constitute key elements
of an underwater landscape.
Moving now to French law, the Environment Code provides (Art. L 322-1) that
the Conservatoire de l’espace littoral et des rivages lacustres (Coastal protection
agency): “In order to promote the integrated management of coastal areas, may [. . . ]
carry out missions in the public coastal area it has been allocated or entrusted with”.
As for the littoral law, it does not refer to the marine environment by name, but
the “littoral” includes maritime land elements (islands, headlands and rias) as well
as coral reefs, even though they are, by assumption, underwater. Furthermore, the
45
essentially urban planning law—establishes a National Landscape Council with the
task of proposing measures to improve landscape quality. Article 18 provides for a
land policy to safeguard the littoral area but it is of no direct concern to our topic here.
It should also be noted that the landscape law totally ignores biodiversity, focussing
primarily on urban planning. Positive law therefore remains ambiguous about the
scope in which the definition of landscape applies, yet it does not expressly preclude
marine territories.
4.1.2 Compatible Content
We can see that the various levels of law integrate the concept of terrestrial landscape,
laying down measures to protect this heritage in a context of private property and
urban development from which the underwater world is excluded.
However, the main instruments are often drafted in broad and imprecise terms,
leaving room for extrapolation in order to include the marine environment. The
scope of the European Landscape Convention is thus transposable to the marine
environment. The preamble is written in very general terms: the landscape is of
“public interest”; it is a component of our “natural heritage”; and this new instrument
is devoted to “all landscapes in Europe”. Article 1 defines landscape as “an area” and
Article 2 stipulates that the provisions apply to the entire territory of the parties and
includes “land, inland water and marine areas” whether the landscapes are considered
outstanding or everyday landscapes. In addition (Art. 5), landscape is an expression
of “people’s heritage and a foundation of their identity”. The Parties must therefore
identify landscapes in “their entire territory”. Nothing in the Convention prevents
a State’s underwater territory from being included in the scope of application. It
is no doubt by misuse of language that the text refers to “inland water” rather than
“continental waters”, and in the writers’ minds, marine areas are those on the surface,
but nothing precludes the sea bed from being taken into account, since it is an integral
part of the State’s territory.
In European Community law, Annex I of the 2008 Marine Strategy Directive
defines, as a descriptor of good environmental status, the level of integrity of the sea
floor ensuring that the structure and functions of the ecosystems are safeguarded; it
considers the topography and bathymetry of the seabed to be physical features to be
preserved, along with all habitats. Indeed, the word “landscape” is not used directly
in the Directive, but these geomorphologic characteristics do constitute key elements
of an underwater landscape.
Moving now to French law, the Environment Code provides (Art. L 322-1) that
the Conservatoire de l’espace littoral et des rivages lacustres (Coastal protection
agency): “In order to promote the integrated management of coastal areas, may [. . . ]
carry out missions in the public coastal area it has been allocated or entrusted with”.
As for the littoral law, it does not refer to the marine environment by name, but
the “littoral” includes maritime land elements (islands, headlands and rias) as well
as coral reefs, even though they are, by assumption, underwater. Furthermore, the