*5.1. The Public Trust Doctrine*

In many jurisdictions, the legal history of public rights in coastal areas is tied to the "public trust doctrine", which relates (or some argue, should relate) to some types of natural resources [11]. Historically, this doctrine was codified by Emperor Justinian in the 6th Century Byzantine Empire based on Roman common law. The often-cited principle states:

"By the law of nature, these things are common to mankind—the air, running water, the sea, and consequently the shores of the sea" (cited in [2], p. 3; see also [11], p. 711).

This doctrine is not exclusive to the Roman Law tradition and has been independently developed in some other parts of the world—with varying legal interpretations across jurisdictions and over time [12]. In some countries, the public trust doctrine is manifested through publicly owned land ownership along the seashore. As we shall see, this is dominant among the set of countries analysed here. In some other countries, such as the UK, Australia, and five US coastal states, where private land ownership extends into the sea, the public trust doctrine is sometimes invoked to interpret the weight to be given to beach access rights. The interpretation of the public trust doctrine tends to be in legal flux, and thus has drawn an extensive literature; see, for example, [13–16].

#### *5.2. Public Beach Access in International Law (Mediterranean) and EU Recommendation*

To what extent does international law require, or incentivize, nations to adopt rules of beach access rights? As shown in Figure 1, in our set of countries, 13 of the 15 come under the canopy of at least one of two relevant international documents. Two countries—the USA and Australia—are not legally affected by any supra-national rules for ICZM.

In 2008, an unprecedented step was taken when the notion of integrated coastal zone management was elevated to the realm of international law. The legislation, the Barcelona Convention Protocol on Integrated Coastal Zone Management for the Mediterranean (henceforth the Mediterranean ICZM Protocol [17]), applies to all countries along the Mediterranean Basin [18]. It was adopted as a unique multinational effort [5,19]. The Protocol was signed by 20 countries, plus the EU itself. It is relevant to all Mediterranean member states in our sample. Seven of our eight Mediterranean countries have signed the ICZM Protocol (Turkey has not but is eligible to do so). Five of these have already ratified the Protocol, thus rendering it part of their domestic law; Italy and Greece have not.

A few years earlier, in 2002, the European Parliament adopted an important "soft law" document—the Recommendation of the European Parliament and of the Council ... Concerning the Implementation of Integrated Coastal Zone Management in Europe [20], applicable to all EU member states (henceforth EU ICZM Recommendation). In our study, there are five countries outside the EU: the USA, Australia, Turkey, Malta, and Israel. The two sets of rules (Mediterranean ICZM Protocol and EU ICZM Recommendation) are legally independent, and they both apply to several of our sample countries which are both Mediterranean countries and EU member states (Figure 1). Six of the Mediterranean countries are also members of the EU and thus come under both umbrellas—the ICZM Protocol and the EU ICZM Recommendation. One country—Israel—is bound only by the ICZM Protocol.

These two international law/soft law documents are unique because they apply directly to land ownership and regulation. Nations are usually reluctant to agree to international law that would intervene directly in their land issues. This sensitivity probably reflects the very local attributes of property law, its intensive socio-political repercussions, and the high economic value of real-estate. We recount elsewhere the story of how the European Parliament backed off from its initial intention to include both the sea and coastal land in a binding Directive (as any ICZM textbook would recommend). Instead, the EU had to be satisfied with a binding directive only for the sea (Directive 2014/89/EU of the European parliament and of the council of 23 July 2014 establishing a framework for maritime spatial planning [21]), and a soft-law Recommendation for coastal land ([22], pp. 5–7).

Let's look first at how the right of access to the coastal zone is address by the Mediterranean ICZM Protocol. The quote below is drawn from the "criteria for sustainable use of the coastal zone" [17]:

" ... providing for freedom of access by the public to the sea and along the shore" (Article 3(d)).

The wording pertains to two types of access; to the sea (which we called vertical or perpendicular accessibility) and along the shore (horizontal accessibility). The two other types of accessibility are not addressed. The Protocol is binding for the signatory countries at the international law level and for those countries that have also ratified it also in domestic law (See Figure 1). However, international law on such topics is difficult to enforce.

The second international document is the 2002 EU ICZM Recommendation, which addresses the public right to access the coast thus:

" ... adequate accessible land for the public, both for recreational purposes and aesthetic reasons" (Chapter I(f)) [20]

Neither legislation stipulates any further rules or criteria of what constitutes "freedom of access" or "adequate accessible land". However, these documents were clearly intended to stimulate public awareness and discussion of how these norms should be anchored in domestic (national) legislation, statutory plans, or other policy statements.

Beyond our praise for the elevated standing of beach access rights in international law, the reports about the relevant countries indicate that, in reality, neither of these documents have had much direct legal influence. This means that there is little evidence that they have been cited and applied in national (domestic) legislation or court decisions. This holds even for those Mediterranean countries that come under both international documents and have ratified the Protocol. Furthermore, even if the relevant clauses were to be invoked before the courts, the vague wording of both statements about access would be difficult to apply in contested cases.

The focus in our comparative analysis, therefore, remains at the level of each country's internal laws and policies. The analysis will follow the conceptual framework presented above. However, in order to understand some of the legal regulatory concepts related to coastal accessibility in each selected country, we must take a short detour to discuss an underlying legal factor: is there a legally grounded "coastal public domain"?

#### **6. Is There a Coastal Public Domain in the Research Countries?**

Before presenting the comparative analysis according to each of the four categories of accessibility rights, it is important to look at whether coastal access rights can be facilitated by a pre-existing "coastal public domain". This term often refers to a legally defined, publicly owned strip (or under sovereign trust) along the coast, landwards from the territorial waters line.

Public land ownership or management is viewed by many, even today, as potentially more effective in protecting the coast from overdevelopment than land-use regulations alone. In many countries, there is some degree of public land ownership along the coast, often based on generations-old law. Yet, this is not a global rule. In some other countries or sub-national jurisdictions, even among EU members, there is no established public domain landward from the shoreline, and private land ownership may be permitted all the way into the sea. An example is Finland—an EU and OECD member country not included in this research—private land ownership is permitted even seaward of mean low water ([23], p. 165). The widespread presence of coastal public domains distinguishes coastal zones from some other land uses with distinct public value, such as forests.

It so happens that most of the nations in our set do have some form of a legally defined coastal public domain that the public can freely access (excepting specific areas such as ports or sites with unique environmental value). However, location and scale differ significantly across our jurisdictions. Where the public domain is submerged all year-round, it may be useful for boating, fishing, etc., but not for the many beach activities on dry or part-dry beaches.

Figure 2 visually depicts our comparative analysis of the landward reach of coastal public domain in the research jurisdictions (In the seaward direction, coastal public domains usually extend to the limit of the jurisdiction's territorial waters, but this is not relevant to the current research). We place the jurisdictions along a schematic scale of coastal topography, to indicate how far their public coastal land ownership extends landwards. In the discussion of each category of accessibly, we shall see that some jurisdictions have gradually gone beyond what their current public domain allows but have had to invent creative legal arrangements to enhance their right to coastal access.

**Figure 2.** The landward extent of the public domain in relation to the shoreline definition: schematic comparative diagram. Illustration by Cygal Pellach.

The jurisdictions on the lower rungs of the scale (rung 6) have been historically unlucky—they inherited legal rules whereby the public domain is almost always under water. Thus, private ownership may extend well into the water, and if no other government rules are imposed, the under-water beach too would be private. These jurisdictions are the UK [24] and five among the US coastal states [25]. Figure 3 vividly portrays the attitude of an anonymous beach-front property owner who warns of criminal action against anyone who accesses the beach. The emphasis conveyed is that walking along the beach is not allowed even in shallow water, when the tides cover beach (which probably means most seasons).

In several other jurisdictions—rungs 5 and 4—the public domain is in the "wet beach" zone, which is covered and uncovered by tidal waters under normal conditions (three of the four German coastal states [26]; Australia [27]; and all other US coastal states [25]). In the remaining jurisdictions—the "lucky" ones for public access—the public coastal domain extends landwards, to the "dry beach" (which is affected only by the highest tides), up to the sand dunes or even beyond. These jurisdictions are Portugal [28]; Spain [29] Netherlands [30]; Denmark [31], Germany's state of Mecklenburg-Western Pomerania [26], France [32]; Italy [33]; Malta [34]; Greece [35]; Slovenia [36]; Turkey [37]; and Israel [38]. If we were to announce an international competition, the "winner" would be Spain: Its coastal public domain extends the furthest inland (despite some recent minor legislative changes; [29]).

**Figure 3.** No trespassing, private beach, sign in Washington State, USA. This Figure was selected for its visual characteristics, not the specific legal context. Coastal access law in the USA in general, and also in the State of Washington, is complex and evolves through court decisions [39,40]. The clause cited in the sign—RCW 9A:52.080 says: *Criminal trespass in the second degree. (1) A person is guilty of criminal trespass in the second degree if he or she knowingly enters or remains unlawfully in or upon premises of another under circumstances not constituting criminal trespass in the first degree. (2) Criminal trespass in the second degree is a misdemeanour*). Source: Lumpytrout on Wikimedia Commons, CC BY-SA 4.0 license. Available at: https://commons.wikimedia.org/wiki/File:No\_Beach\_Access\_Sign.jpg. accessed 2 March 2022.

Because we are analysing a relatively large set of national and subnational jurisdictions, we are able to observe whether there are emerging trends. For example, are there jurisdictions that attempt to extend their public domain beyond what was achieved many decades or centuries ago, when population densities and real estate prices were much

lower? As may be expected, this is rare. However, we can highlight two countries that have expanded their previous public domain successfully in recent decades. These are Spain and Slovenia. In 1988, Spain extended its previously narrow public domain far landward, but this achievement came at the price of legal turbulence and intensive social conflicts that still linger on [29]. Another country, Slovenia, instituted its public domain relatively recently—after the country became an independent democracy [36]. Decision makers at the time may have known how to seize the crisis opportunity and add public domain to the drastic changes that were instituted in law and governance.

Countries where the public domain is submerged most of the year may try to harness other available legal instruments to provide horizontal and other access rights to dry beaches. There will inevitably be significant differences across countries. We, therefore, turn to analysis of the 15 countries in terms of each of the four categories of accessibility.

#### **7. Comparative Analysis Applying the Four Categories of Coastal Access Rights**

Table 1 presents a comparative summary of the four categories of accessibility. This will serve as the anchor for the discussion to follow, where each category of access rights is addressed in depth.


**Table 1.** The categories of accessibility: comparative findings.

MPD—maritime public domain—publicly owned land, MTPD—maritime terrestrial public domain—publicly owned land.

#### *7.1. Horizontal Accessibility*

A general national or subnational right to horizontal access along the coast is, as already noted, the basic and probably the oldest tenet of coastal zone accessibility. As we saw, both international legal and soft-law documents refer explicitly to this right. We therefore placed horizontal access first in Table 1, which shows that, in most of our research countries, national-level laws and regulations do address such rights, but with important differences.

Because horizontal access is closely connected with public land ownership, it is usually expressed in the form of some minimal strip of contiguous publicly owned land. Where the public domain is under water or is very narrow, provision of horizontal access may require other legal and policy measures. Where such measures were not implemented when development pressures and property values were low, a "retrofit" today would be a major legal and financial challenge due to pre-existing private property rights or expectations of development. Nevertheless, as we shall see, even in some countries, we witness attempts to extend the geographic bounds of horizonal accessibility by harnessing alternative legal tools.

We first discuss those jurisdictions that do have at least some dry beach public domain, and then we look at those without a dry beach public domain. In each case, we will refer to the manner in which horizontal access rights are addressed in national legislation or regulation, as summarised in Table 1.
