Sea-based measures represent a new way of dealing with eutrophication in the Baltic Sea. They refer to different technological innovations that may be implemented at sea to target pollution that has already been released, in contrast to reducing discharges from the original source on land. These measures are not subject to any specific regulation. The Chapter explores how marine environmental law operates in the absence of specific rules and how environmental law principles manage to fill legal gaps. Moreover, sea-based measures raise interesting issues linked to the balancing of interests, as the arguments both against and in favour of the measures are based on environmental protection, and as the environmental impact of the measures is uncertain. A framework for applying the precautionary approach while expanding knowledge on the impact attached to different measures, as developed within the dumping regime, is also explored.

In order to make the concept of social-ecological resilience and resilience governance comprehensible in a legal context the study first established some general governance features that represents the core of resilience governance. These features are the core of what a legal design for social-ecological resilience should reflect. However, law must also safe guard the legal principles and legal characteristics of law and its role as a stable institutional base with binding requirements. The study reviewed both possible matches and potential obstacles where law may not sufficiently reflect resilience governance. However, it also unveiled legal mechanisms that contributes in other ways than expected. All in all, a general conclusion is that law has many important features that matches resilience governance and thus has the potential to form an important basis for resilience governance in many different settings.

Despite the fast development of environmental governance and environmental law over the past decades, the world is facing fundamental threats to the environment and the earth system. Many scholars argue that the world is entering the Anthropocene, a new geological epoch represented by the fact that the earth is now in an unprecedented way shaped by human activities. In addition to reflecting the global scale of the environmental problems, this perspective also emphasizes the complex and intertwined relationship between the human and the natural systems (i.e., the social and the ecological). Research on social-ecological resilience provides a theoretical framework for the governance of such complexity. This governance calls also for new legal approaches and pose significant challenges for legal design. The purpose of this book is to explore the resilience theories and concepts, focusing on their compatibility with international and EU environmental law.

In the resilience theories, multilevel, cross-scale and polycentric governance approaches represent a governance approach that can match ecological dynamic structures and scales, as well as a structure providing for a diversity of measures. Multilevel and polycentric governance are generally displayed in how societies are governed with dynamic levels, including nested, intertwined contacts, and cooperation among a number of actors and organizations. The legal system is by nature similar to resilience governance structures when it comes to multilevel governance. Law is developed, structured, designed, adopted, and implemented at many different scales and levels in parallel and is often governed by separate authorities or administrative organizations. Law is constituted by nested systems and measures that function in parallel at different geographical and temporal scales. However, in the perspective of matching law with resilience, this feature calls for a review of, e.g., authority, coordination, review, and the implementation in overlapping, polycentric legal systems.

The basic scope and characteristics of environmental law is a foundation for this book. Environmental law can take different forms and be seen as an area of law that touches upon many other fields of law with the primary aim of protecting the environment, animals, and human health. Over time environmental law have developed its own legal techniques, norms, approaches, and principles to match the dynamic and holistic perspectives of the ecosystems. The purpose of the book is to identify how law can be designed to match and contribute to social-ecological resilience. The aim is to present a new framework for creating and assessing environmental law in relation to resilience theories; however, the components will be based in current environmental laws (i.e., the specific characteristics of environmental law). This chapter aims to explain some of the fundaments of environmental law and review thecharacteristics that will form important components.

Adaptivity, flexibility, and transformability are fundamental features of resilience governance. These features represent the need for governance to match the constant movements of the ecosystem and the effects of pressures on the ecosystem. It is also through adaptive and flexible features that transformability can be created. Adaptive or flexible mechanisms within law matching such governance features, could be described as legal structures and measures that create space for adaptive procedures and flexible responses also within the legal regime. However, it must be noted that law could also create a kind of resistance to flexible changes in the social-ecological system. This could be regarded as one main function connected to the institutional structure and the social resilience that law creates, where stability over time and the potential to anticipate and prevent certain developments are central. International and EU law can be seen as rather adaptive and flexible in their inherent design.

Evaluating effectiveness of resilience governance is connected to the ecological factors. Hence, evaluating effectiveness of the role of law in governance for resilience is not just a question of legal compliance and control in a traditional sense. Beside the set of components for effective governance the essence of creating resilience is about understanding the social-ecological system. Understanding its drivers and thresholds to alternative states and make the system stay in the resilient state or move towards a better alterative state. One aspect of assessing the role of law is to assess to what extent law provides an appropriate legal design in terms of adaptivity, polycentric institutions, and participation as such. These components are all connected to effectiveness and controlling the ecosystem. However, for law to be effective legal compliance must be monitored. For the purpose of social-ecological resilience, a non-confrontational or adaptive control system is most likely to be successful.

This chapter introduces the relationship between law and governance. Laws and legal institutions are important in structures for governance, where governance is seen as the sum of the many ways that individuals and institutions, public and private, manage their common affairs. The description of the concept of governance used is thus not equal to governance through government, but instead reflects a system where legal institutions are seen as one part of a structural nest with multiple mechanisms, measures, and actions. International law is also increasingly characterized by a general demand for openness, transparency, fairness, and mechanisms for accountability, all part of such governance systems. Environmental governance theories propose strategies, structures, institutions, and actions that respond to different aspects of complexity and uncertainty in the environment. In this way, the theories on resilience in social-ecological systems offer a transdisciplinary perspective on effective environmental governance, where law should have a prominent role.

Stakeholder participation is key for resilience governance and management. Participation is important for bottom-up approaches in adaptive governance, where self-organization and local knowledge are important factors. Different kinds of participation are also important for structural and monitoring issues in multi-level governance. Stakeholders, or NGOs, are in this sense important both in transferring knowledge and information in multidimensional governance structures and for bridging structural or institutional gaps. Emphasizing the role of stakeholder participation can be seen as a democratic and decentralized approach. Participation by the public is seen as an important feature for assuring transparency, legitimacy, and accountability, which have been established as important for governance structures in general. Trust building and effectiveness are also closely tied to issues of participation. Law generally includes pathways for participation at all levels. However, the purpose of participation in legal structures is somewhat different than the purpose of participation in resilience governance.

The overall study evaluates the role of law in governance for social-ecological resilience with the purpose to identify matching components for legal design. In order to review resilience governance and its compatibility with law, it is necessary to define more concrete prerequisites for effective resilience governance, in short, resilience features. This chapter defines such features, reviewed in depth throughout the study. In summary, these features are adaptivity; multilevel governance; stakeholder participation; and monitoring and control. Adaptive governance is central in resilience governance. It builds on a structure that includes actors across scales, or levels, that can gather knowledge. In large-scale international systems as the legal system, this includes science. An adaptive governance system also relies on monitoring and evaluation as part of the knowledge gathering that feeds in to the system. It allows for adjustments of the measures taken and thus transformation of the system into a more resilient state.