*10.2. Case Study of Jurisprudence on Beach Access Rights of PWD*

In Israel, the 2004 Coastal Law is silent on this issue, but the new 2020 national plan includes distinct wording. Once again, the Israeli report highlights how NGO action and court decisions can lead the way [38]. The jurisprudence on this issue provides an interesting legal manifestation of the clash between environmental protection and the rights of the disabled.

As noted in several places in the above discussion, in Israel, the role of court precedents, usually prompted by NGO actions, has played a prominent role in shaping coastal accessibility rights. In the case of PWD rights, the story is especially interesting due to a combination of circumstances.

By coincidence, two court cases regarding two adjacent cities (Tel Aviv and its neighbour Herzliya) were heard before the same district judge in 2013 and 2014. In one case, environmental NGOs petitioned against the city's intention to extend a hard-surface promenade into the beach for a relatively short length. Part of the municipality's rationale was that the surfacing would also facilitate wheelchair access. In this case, the judge ruled in favour of the city, despite the ambiguousness about whether the local plan permits the necessary public works. In her reasoning, the judge elaborated on the importance of socialdistributive justice norms when considering the rights of persons with disabilities, because they are often deprived of public political influence. In the factual context of that case, she decided that the weight of these considerations over-rides environmental considerations.

However, in the second case brought before the same judge a while later, she ruled against the city, saying that, this time, environmental damage outweighs PWD accessibility rights. Indeed, in the second case, the proposed promenade was longer, but this fact does diminish the legal dilemmas that accompany such cases: how to balance two important public norms when they compete in specific, real-life situations?

With these precedential court decisions, Israeli planners and decision-makers went ahead to insert in the 2020 coastal national plan an explicit obligation to "take into account the needs of persons with disabilities". Despite its vagueness, in some cases, such wording could, in theory, tip the balance when planning authorities or the courts must weigh environmental considerations against the rights of persons with physical disabilities. The sociological insight provided by the judge in the two court cases was instructive: environmental objectives, and the broad public and NGOs that support them, usually carry much more influence on public decision-making than do the small minority of physically disabled persons. Silence on this issue at the national level would leave the rights of PWD to local decisions, where there is usually an imbalance in the degree of influence on decision-makers.

#### **11. Conclusions**

Coastal zones are widely recognised as meriting special environmental protection, special modes of management (ICZM), and even have a unique standing in international law (though relevant only to some parts of the world). One would expect that the public's right to access the beach would become the emblem of this special standing, but is it?

This paper presented a "reality check" through comparative analysis of the laws and regulations pertaining to coastal access rights in 15 advanced-economy countries. Eight of them are also members of the EU. To unpack the notion "coastal access", we propose a conceptual framework that distinguishes among four categories: horizonal, vertical, visual, and accessible for persons with disabilities. This framework enables us to present a pioneering analysis that highlights the differences in legal and policy implications associated with each category. For each national (or state) jurisdiction, we rely on an expert report that analyses the relevant legislation and regulatory planning documents at the national level to see whether and how they address coastal access rights.

The emerging picture is of a clutter of types and degree of legal protection granted to coastal access rights. Even the international legislation (Mediterranean ICZM Protocol), which, in theory, applies to eight among the research countries, is shown to have only a

marginal effect towards convergence. This is not benign diversity; it indicates that the international community—even among member of the OECD and members of the EU—is still a long way from elevating beach access rights into a consensual norm that is valid across borders.

At the same time, we do observe a trend in some countries towards enhancement of beach access rights. This momentum, however, is uneven across issues and countries. We believe that greater convergence could be promoted through cross-national learning. Our research—the first of its kind—could stimulate knowledge exchange.

Throughout this paper, we argued that the public right to access the beach (or the broader coastal zone) is not just a matter of geographic delineation of a strip of land along the beach, or demarcation of paths or roads to reach it from the hinterland. Our survey, spanning many different legal contexts, demonstrates that each of the four categories of coastal access rights invokes a somewhat different but deep-seated ideological debate about the role and limits of private property rights in the face of a consensual public good, such as beach access. The details of these conflicts are addressed differently in each country. We also highlighted that coastal accessibility is a social justice issue, with many facets.

Our comparative research, despite the large number of countries covered, is yet only a preliminary probe into the underlying implications of the different legal approaches to the right to coastal access and their outcomes in practice. There is room for much more comparative research, both legal and empirical. At the same time, one should keep in mind that coastal zones are experiencing accelerated change due to climate issues, and especially sea level rise. This implies that the rules about beach access rights are likely to require much rethinking. The need for international mutual learning will only increase.

**Author Contributions:** Conceptualization, R.A. and C.P.; methodology, R.A. and C.P.; formal analysis, R.A. and C.P.; investigation, R.A. and C.P.; data curation, R.A. and C.P.; writing—original draft preparation, R.A. and C.P.; writing—review and editing, R.A. and C.P.; visualization, R.A. and C.P.; project administration, R.A. and C.P. All authors have read and agreed to the published version of the manuscript.

**Funding:** This research received no external funding.

**Institutional Review Board Statement:** Not applicable.

**Informed Consent Statement:** Not applicable.

**Data Availability Statement:** Not applicable.

**Conflicts of Interest:** The authors declare no conflict of interest.

#### **References**

