Slaying the Toothless Tiger: Social Equity as the Legal Element of the Blue Economy

Introduction

With 40% of the human population living within 100 km of the coast, global oceans are not only vital for human wellbeing as climate regulators and oxygen producers (through plants such as phytoplankton, kelp and the algal plankton that live in our oceans), they also provide invaluable ecosystem services, contribute to global food security and offer opportunities for economic growth and development (OECD, 2019; United Nations, 2017). Valued at 1.5 trillion US dollar in 2010 – about 2.5% of the world’s then gross economic value – the economic value of the oceans’ output could be doubled by 2030, reaching over 3 trillion US dollar and providing approximately 40 million full-time jobs (OECD, 2016). As the economic growth of the oceans has been gaining traction on the political agendas of (coastal) states around the world, a new global catchphrase has also entered the public debate: the blue economy.

Over the past two decades, the blue economy has slowly but steadily emerged as both a term and a concept to embrace the manifold economic opportunities associated with the oceans, while at the same time recognising, accounting for and – in some cases – addressing the related threats of over-exploitation, climate change, declining biodiversity and pollution (Voyer et al., 2018). The 2012 UN Conference on Sustainable Development (Rio +20) and its explicit focus on ocean-related challenges are generally considered the catalyst for the broader use of this relatively new term in the global environmental and ocean governance arena (Silver et al., 2015). As such, the blue economy forms an essential part of today’s broader sustainable development movement, including progress towards the UN’s Sustainable Development Goals (SDGs) (Voyer et al., 2018). While the blue economy is mainly discussed in relation to SDGs #14, #15, #16 and #17 (Lee et al., 2020), it is inextricably linked to SDG #14 (Life Below Water), which aims to conserve and sustainably use the oceans, seas and marine resources by preserving and restoring marine and coastal systems and developing capacity in marine science and technology transfers. However, identifying the scope and boundaries of the blue economy in line with the SDGs has previously proven to be a vague and challenging task (Lee et al., 2020). As outlined by Spalding (2016), more baseline data on SDG #14 is needed to measure ecological function as well as trade in goods and services, and how they each change and balance each other out over time – metrics that should help to determine on what industries, businesses, etc. are essentially ‘sustainablue’ and which one fall outside that scope.

The very ‘specification of ‘blue’ makes explicit the focus on oceans, as opposed to land-based resources’ (Keen et al., 2018, p. 334). The ocean, once an inhospitable place for humans, is now viewed as equivalent to a land-based resource system, to be managed, allocated and developed as property, and governed through market mechanisms. This interest has arisen as nations and the international community confront the multiple and overlapping uses in ocean and marine environments – not simply separate uses, such as fishing or mining that are each administered separately (Winder & le Heron, 2017). As such, the blue economy constitutes an evolution of ideas about sustainable economies used to denote an expansion of economic wealth derived from the oceans and coasts in such a way as to maintain or improve the natural systems upon which socio-economic systems depend. It shares the idea that economic activities and the related growth are not antithetical to ecological conservation and social equity, but are instead complementary or even reinforcing (Boonstra et al., 2018). Although increasingly conceptualised in the multidimensional sustainable terms of growth and conservation, and accordingly invoked by governments, international organisations and relevant stakeholders required to tackle both ocean-related opportunities and challenges (Global Ocean Accounts Partnership, 2021), the clarity of the term/concept and the implementation steps needed to achieve an ecological–economic balance for sustainable maritime exploitation remain vague (Keen et al., 2018). Moreover, the commonly used ‘win-win-win’ rhetoric of blue growth – emphasizing gains for coastal communities, the environment and investors at once – undermines progressive and transformative solutions to the disadvantage of small-scale users (Barbesgaard, 2018), with blue growth agendas (often) only producing environmental and social injustices rather than also minimizing environmental and social harms (Bennett et al., 2021).

Given this inherent conceptual ambiguity and confusion over its social and environmental sustainability (Germond-Duret et al., 2022), one wonders how the evolution of a newly envisioned management and governance concept – the blue economy – can serve as an internationally recognised blueprint for the sustainable development of our oceans. How can the blue economy retain its alleged credibility that is currently undermined by contradictions between economic growth and capital accumulation on the one hand, and narratives on environmental and social sustainability on the other (Germond-Duret, Garland, et al., 2023)?

Today, most definitions of the blue economy emphasise the aspects of environmental sustainability, economic growth and social equity, driven by an integrated ocean governance approach and technological innovation (Voyer et al., 2018). This is also exemplified by the diversity of literature and wide range of disciplinary perspectives on the blue economy (Germond-Duret, Garland, et al., 2023). While some scholars focus on the economic pillar of the term, for example, with regard to the development of an innovative (marine) economy (Pauly, 2018), others tackle the management aspect and broadly focus on the sustainable development perspective and related blue growth considerations (Keen et al., 2018; Lillebø et al., 2017; Rickels et al., 2019; Sarker et al., 2018), or engage with its discursive dimension and the reality and feasibility of its sustainable dimension (Germond-Duret, Garland, et al., 2023; Silver et al., 2015; Voyer et al., 2018). This ‘all-in approach’ has led to the blue economy being considered a socially constructed concept. At the same time, there are no established frameworks, guidelines or toolkits for the blue economy through which objectives can be developed, action plans implemented, and assessment and monitoring programmes devised (Voyer et al., 2018). As such, the blue economy is subject to multiple interpretations because of the coverage of activities, geographical locations and sectors involved. Thus, even though public discourses seem to align under the alleged blue economy umbrella of ocean-related growth and socio-economic development in eco-sustainable terms, the envisaged ocean governance objectives and proposed mechanisms fundamentally differ (Cohen et al., 2019). As there is no common (international) agreement on what the blue economy could mean – either in principle or in practice – the eventual interpretation and implementation of what is considered sustainable blue essentially operates within mismatches in scale and power relations, and competing objectives, values and the worldviews of the actors involved (Garland et al., 2019; Graziano et al., 2019; Voyer & van Leeuwen, 2019).

The inherent complexity arising from the competing needs of ocean-based industrialisation and sustainability, as well as the term’s fluid nature, have been tracked by a considerable amount of literature on the blue economy, either focussing on the lack of clarity and consistency of the term (Silver et al., 2015; Voyer et al., 2018; Winder & le Heron, 2017) or the implications and legitimacy of this incoherence for ocean governance as such (Hadjimichael, 2018; Voyer & van Leeuwen, 2019). Essentially, all analyses suggest a substantial ambiguity in terms of what the blue economy is, what it encapsulates and what its practices entail (Garland et al., 2019; Germond-Duret, Garland, et al., 2023; Schutter et al., 2021).

This article forms another point of departure for blue analyses – a perspective that has not yet attracted broader academic and public attention: a legal clarification of what the broad concept of the blue economy could be in order to give relevant stakeholders clear and structured guidelines when implementing the concept. Lately, debates over the practical legitimacy of the blue economy have already commenced on three levels: on the scale of an individual blue project or activity, on the scale of entire blue sectors or use and on the scale of the overall concept of the blue economy (Voyer & van Leeuwen, 2019). In this article, we aim to move away from largely discursive debates on the very nature of the blue economy towards practical applications and the potential legal components of the blue economy. Although there has been more attention on questions of justice and equity over the past years, a review of the systematic integration of equity goals in blue policies and frameworks has not yet been conducted (Germond-Duret, Heidkamp, & Morrissey, 2023). As such, this article contributes to a nuanced understanding of the blue economy as being (or not being) an important element of sustainable development efforts.

For the purpose of this article, we take a comparative legal approach, examining public documents published by international organisations and nation states on the blue economy for their legal components. A review of 72 documents (see Annex 1) – also taking into account the academic analyses by Silver et al. (2015) and Voyer et al. (2018) – identified three basic elements inherent to the term/concept ‘blue economy’: (a) the environment as a scientific component, (b) the economy as an economic component and (c) social equity as a legal component. The chosen documents are examined according to the weighting of each element and any existing compensation models, be they institutional and/or procedural considerations.

We start from the premise that the blue economy’s legal element – social equity – should be considered as a balancing element that operates between the economy and the environment. As an active objective of any blue economy (strategy), social equity would help to ‘make planning trade-offs [between economic development and environmental protection] clear and prompts the design of development, implementation, and monitoring plans to allow for evaluating equity considerations throughout the process’ (Cisneros-Montemayor et al., 2019, p. 7). As such, social equity can be considered the sustainability-creating element of the blue economy (Garland et al., 2019; K. Morrissey, 2017). In basic terms, law is understood as a balancing model (Kelsen, 1952). Thus, considering social equity as a legal principle of the blue economy can provide an appropriate approach through which to balance the competing issues of economic development and environmental protection.

Our analysis is based on the following assumptions: A sharp legal definition in the sense of a concrete, generally valid term is not possible due to the socially constructed multitude of possible areas of application. Although no generally valid definition of the term can be established, three overarching basic elements can be identified: environment (scientific component), economy (economic component) and social equity (legal component). Social equity is noted as the blue economy’s legal component, as a consideration of justice, and as a balancing mechanism that operates between the economy, on the one hand, and the environment, on the other. This legal compensation mechanism must be given concrete form through legal methods, in particular, through the creation of an institutional and procedural framework. Two proposals are put forward for this purpose. First, a public approach: official supervision at the international, national or at best regional level (supervision by the state; ex post character; regional element). Second, and this is the focus of this article, the private approach: regulatory models under private law, especially industrial standards (co-designed by the state; ex ante character; sectoral element).

Methodology

For our analysis, we chose a research model that combined both a quantitative study of blue economy documents, see Annex 1, and an analysis thereof, as well as a condensed literature review asking on how the concept of social equity has been taken up by various scholars in the blue/ocean economy literature. First, and between October 2021 and August 2022, we used online databases, such as EUR-lex, beck-online, the Social Science Research Network (SSRN) and UN Treaties Collection Databases, to search for a broad array of documents (from intergovernmental treaties to state documents and industry standards) using the following terms in their header: 1) blue economy, 2) ocean economy, 3) green economy and 4) sustainable ocean. This search led to 72 found documents. Second, an analysis was carried out with regard to the number of hits for the blue economy’s three common features – environment, economy and social equity – which were classified accordingly. Thus, and as highlighted in Figure 1, the focus of the documents became apparent rather quickly – a strong emphasis on the ‘environment’ and the ‘economy’. Of the 72 documents examined, 41 documents (57%) focused on environmental considerations, while 30 (42%) focused on economic aspects. Only one document (1%) focused on social balance and social justice.OPEN IN VIEWER

To gain a basic understanding of the engagement and proliferation of certain industries within the blue economy, the documents were further scanned to also determine the number of hits in different blue industry sectors. This is linked to the hypothesis that certain industries and their standards have already shaped or could shape the concept of the blue economy in the future. The following industry sectors were mentioned and for a better overview visualised in Figure 2: fisheries/aquaculture (45,8%), (offshore wind) energy (25%), tourism (8,3%) shipping/trade (5,6%), waste (management) (4,2%), seabed mining (4,2%) and marine biotechnology (1,3%).OPEN IN VIEWER

The Blue Economy and Its Missing Legal Component

The rudimentary elaboration of the blue economy’s social equity pillar in the texts examined suggests that there is still a certain vacuum to be filled at the expense of social equity, and between the two dominant ‘blue streams’ of economy and environment. This vacuum needs to be addressed by executive legal bodies and the jurisprudence in the respective blue jurisdictions in order to enable a practical applicability of the blue economy concept. Eventually, such elaboration is only possible through the application by such authorities and through case law. Only then can a legal foundation potentially emerge. This raises the following question: Which guidelines can legal authorities consult in order to obtain a clear(er) outline of the blue economy and, in particular, of its social equity element? To answer this question, we continued with a condensed literature review on how the concept of social equity has been taken up by various scholars in the blue/ocean economy literature (Bennett et al., 2019; Cisneros-Montemayor et al., 2022; McDermott et al., 2013).

McDermott et al. (2013) already recognized the need for a clear definition of and a comprehensive framework for (social) equity. In this respect, it was highlighted that without such structures or the active participation of relevant stakeholders it could be ‘difficult to evaluate impact of policies and programs and impossible to plan for it’ (McDermott et al., 2013, p. 417). The authors presented a three-part concept of social equity, divided it into a distributional (between costs and benefits), procedural (referring to decision-making procedures) and contextual element (the pre-existing conditions that enable or limit people’s access to decision-making, resources, and, thereby, benefits) (McDermott et al., 2013). In a second step, the framework then asks how a target group has been shaped by these three dimensions, and how the framing of equity goals and the decisions regarding its content, target and aims have been taken. While the proposed framework could indeed guide stakeholders towards a ‘more open and inclusive process of defining equity’ (McDermott et al., 2013, p. 416), the procedural element lacks an enforcement component. As a result, however, the authors attempted to bring increased precision to this subject with their framework, which should ultimately be recognized as an enforceable right. However, to ensure this, it is the right itself that needs to be concretized (see the Section below).

Similarly, Bennett et al. (2019), also identified the importance of policy frameworks and environmental assessment processes to adequately understand and manage the environmental risks of maritime development. As such, it has been recognized that unregulated economic growth can result in economic inequality, to the extent that it generates limited local benefits, leading to elite capture, harmful social and cultural impacts, and the exposure of marginalized groups to pollution or even complete dislocation of local populations (Bennett et al., 2019). A major problem identified was that the rhetoric of equity, inclusion, and benefit-sharing seems to be moving faster than the policy-making, which makes the eventual implementation of best practices almost obsolete. This problem is ostensibly tied to the high complexity of the issue of blue/ocean governance, which often lacks coherence and coordination, as for instance significant regulatory and institutional gaps exist across sectors and spatial scales (Bennett et al., 2019).

To tackle that sector-specific imbalance, Cisneros-Montemayor et al. (2022) emphasized the design possibilities particularly new industries in the blue economy, for example, regarding blue carbon capture or marine renewable energy, could offer. Here, standards could be enforced from the beginning of the industry’s evolution, as the ‘conversion’ of existing sectors could be considerably more difficult to accomplish. However, in order to avoid businesses-as-usual practices and truly implement a veritable blue economy, the need for government guidelines for the development of such frameworks was pointed out as inevitable (Cisneros-Montemayor et al., 2022). Otherwise, negative effects as mentioned above by Bennett et al. (2019) could (re-)occur. Cisneros-Montemayor et al. (2022) further saw social equity as an instrument to ensure recognition, inclusion and restorative justice. Here, too, some procedural and distributive element has been recognized by referring to the definition of Friedman et al. (2018), who define social equity as: ‘distribution of costs, responsibilities, rights, and benefits; the procedure by which decisions are made and who has a voice; recognition—acknowledgement of and respect for the equal status of distinct identities, histories, values, and interests; and context—the social, economic, and political history and circumstances’. However, the opportunity to understand the element as a legal component that protects human rights, provides access to resources, and allows for equitable share of benefits and costs has also been mentioned. In this respect, Cisneros-Montemayor et al. (2022) looked for ways to more adequately monitor social aspects of development, including participation in industries, perceptions of impacts, and distributions of costs and benefits between locations. In this context, another paper by Cisneros-Montemayor et al. (2021) found that a key factor for the capacity of a region to create a blue economy was national stability and legal frameworks to fight corruption or ensure economic and group equity, human rights and gender equality, all pooled under ‘social equity’.

Similarly, we also start from the premise that the legal infrastructure is crucial. This means an orderly legal system, that is, a secure rule of law with functioning powers. We argue that social equity acts as a legal gateway that operates between the environment and the economy, with the consequence that existing legal enforcement mechanisms need to be applied and strengthened to enable the establishment of an enforceable blue governance scheme for all involved stakeholders. This is where jurisprudence can start and, with its methodology, create a fair balancing model between the two competing elements of the ‘environment’ and the ‘economy’. Interpretations have already been put forward that connect the term ‘just’ with social equity (Agyeman et al., 2002; Garland et al., 2019; Swilling & Annecke, 2012). The concept of justice is thus open to legal interpretation and design. This is where the link to the legal methodology must be made. Social equity is understood as a legal gateway whereby the needs of the economy and the environment can be weighed up and brought into balance; thus, social equity acts as a legal balance. It thus has a balancing element in itself, between the different interests of the actors. In this context, law can serve as a distributional as well as a procedural and contextual element, in the sense of McDermott et al. (2013), provided that a clear canon of rights is created. However, a prerequisite for this, is a sharp definition of the rights under consideration. To date, the legal element of the blue economy has only been sparsely investigated from a scientific perspective. Moreover, as of today, no unanimous, precise legal definition exists of what the ‘blue economy’ actually is. What remains problematic with the existing approaches are the different interests and goals of the various stakeholders involved, which end in debates on the very meaning and scope of the definition (Garland et al., 2019).

In this article, we propose an interpretation of the concept of the blue economy that has yet to be formed based on the interpretation of the third perspective: social equity as a legal aspect of balance within the concept. Legal methodology usually deals with the wording, the system, the history, the objective and the telos of a law (Möllers, 2021). However, as hardly any legal texts exist with special regard to the blue economy, such an approach becomes meaningless de lege lata. Reference must therefore be made to the de lege ferenda procedure. How, then, should we go about creating a legal foundation for the concept of the blue economy? Given the international nature of the issue, the right approach must be taken by means of a comparative law approach (Möllers, 2021).

This scale remains a toothless tiger, provided that the sharp legal sword is not shaped in the same period of time. Therefore, two problem areas arise. On the one hand, guidelines are lacking for the scales; for example, abstract general definitions that enable the legal procedure. On the other hand, there is a lack of a sword, for example, control, intervention and sanction mechanisms that give the law its enforcement power. Furthermore, there is also a lack of an institutional and procedural foundation for a powerful legal debate on the blue economy. For the blue economy to achieve an ecological–economic balance, it must be understood at a level at which legal implementation by the involved stakeholders is both conceivable and possible. This means that the two elements, the institution and the process, must undergo further development. Although it is questionable as to how these two points can be solved, we make two related proposals.

A Legal Concretisation of the Blue Economy?

Naturally, legal elements do exist on the respective of all three levels (economy, environment, social equity), developed by broad range of local, regional, national, supranational and international actors. However, for the purpose of our article, the element of social equity is understood as the legal link between the generic terms within the understanding of a blue economy’s governance structure. For the purpose of this analysis, we understand social equity as a legal concept – a concept that establishes a connection between environmental law and commercial law. The concretisation of the concept must be limited to a level that is as narrowly defined as possible, without missing the cause of inequity, neglecting affected non-locals and excluding long-term solutions (McDermott et al., 2013). The solution should not be sought in a uniform definition, because this would lead to (more) vagueness and thus to legal problems in the application in individual cases (no ‘one size fits all’). This is already underlined by the fact that each of the documents examined in Annex 1 finds a different, specific balance between the competing elements of the environment, the economy and social equity. In order to create a tangible and applicable definition, or better tangible and applicable definitions, it is therefore necessary to think as ‘small’ and as precisely as possible: regionally or sectorally. Only within these structures can sharp definitions be established that would serve as a means of intervention for the user of the law. This sharp focus can take place, on the one hand, via a local element (regional approach) or, on the other hand, via a content element (sectoral approach). Within these two levels, the two elements of the environment and the economy can then be weighed up against each other. This balancing act has to take place with the involvement of a mass of information and a multitude of stakeholders in the respective region/sector. Only in this way can a fair balance be achieved. Yet, two questions remain. First, the question as to who is going to carry out this balancing act. Second, the right to do so, as concretely as possible, still remains a toothless tiger without adequate means for enforcement.

The concept of the blue economy has its origin in the community of states (Silver et al., 2015). Due to the multiplicity of stakeholders and interests, neither an exact definition nor a sanctionable instance is possible. The invention suffers from the lack of an inventor. It should be noted, however, that the above three elements have already received their foundation in texts from the United Nations (United Nations General Assembly, 2012), and also appear in European Union documents and other international agreements (see Annex 1). As such, the advantage of breaking things down into a smaller order becomes rather obvious. With a distinct regional approach, the European Union can already set more precise, region-specific goals (Garland et al., 2019; Voyer et al., 2018). Furthermore, control and sanction mechanisms are available via enforcement by the member states, see also Art. 291(1) TFEU: ‘Member States shall adopt all measures of national law necessary to implement legally binding Union acts’ (Consolidated Version of The Treaty on the Functioning of the European Union TFEU, 2010). In the analysed EU documents, the two approaches discussed above are already evident in their main features. It is understood that the blue economy must be limited in two ways in order to be implemented as a viable legal concept. First, this limitation should be applicable in local settings. This limitation for EU member states already means that there is a considerable local focus compared to an approach that involves all UN member states, especially when considering the size of the Union’s various sea areas. There is also a limitation on the scope of the content, namely, the definition of different blue industrial sectors. It should be emphasised that the EU approach is already characterised by the sectoral thinking described above. It specifies the following blue economy sectors: (1) aquaculture, (2) marine renewable energy, (3) marine mineral mining, (4) marine biotechnology and (5) marine and coastal tourism (European Commission, 2012).

A similar approach is followed by the United States’ National Oceanic and Atmospheric Administration, which publishes definitions and concepts in the area of the blue economy (Garland et al., 2019). Here, too, the element of a regional limitation is found, which is even more specific than in the EU documents. Furthermore, the second restriction on industrial sectors is also presented (Garland et al., 2019), insofar as six blue economy sectors are specified: 1) living resources, 2) marine construction, 3) marine transportation, 4) offshore mineral extraction, 5) ship and boat building and 6) tourism and recreation. This sectoral limitation is criticised by Garland et al. (2019) due to the absence of any service sectors. In contrast, an attempt is being made to limit the content of the report in order to get a clearer picture of the blue economy. The inclusion of all service industries that are only indirectly related (e.g. the financial sector) can lead to a boundless expansion to practically all sectors. The clout of a legal concretisation of the concept would disappear. Of course, the blue economy can also become a concept in these sectors. However, for this to happen, it must first become a concrete undertaking in the sectors that are directly and immediately affected by it. Only then, in a second step, can it be extended to the indirectly affected sectors. A different approach would be to take the second step before the first or to take two steps at the same time, thus taking a leap. However, this leap could quickly turn out to be a leap into the unknown if the foundations have not been sufficiently specified beforehand. The criticism of Garland et al. is therefore unjustified, at least in this area. A more constructive approach is taken by Graziano et al. (2017), who criticise the regional component as not sufficiently concrete. Thus, regional differences are not sufficiently taken into account.

Note that the attempt to concretise the blue economy takes place in two ways. One is via a regional approach. As recognised by Garland et al. (2019), the definition of a region is an essential prerequisite for risk, mitigation and remediation planning. Furthermore, clear regional boundaries are absolutely necessary to avoid competence problems (Garland et al., 2019). This was also recognized by McDermott et al. (2013), who focused their framework on a local scale. These problems can almost be completely avoided by our approach of subordinating blue economy governance to existing regional authorities, as outlined below. In this way, blue governance is integrated into existing state structures and can be efficiently implemented and monitored. A follow-up problem remains: At which level should the incorporation of blue economy governance take place? Failure to incorporate it can lead to scale mismatches (Alexander & Graziano, 2018; Garland et al., 2019; Mee, 2012). The issue of scale pervades the foundations of the blue economy: power relations, political priorities and the instruments used to implement the related policies, which are conveyed by this complex concept (Alexander & Graziano, 2018; Garland et al., 2019). ¹

The second way to concretise the blue economy is through the sectoral element. The problem here remains which industries will be included. It is important for both approaches that the definitions can be found only at the respective regional/sectoral level. After that, feedback to the higher level must take place. For example, traditional structures containing this feedback model can be used. Taking Germany as a blueprint, existing administrative authorities at the regional level or new authorities to be created at this level could be incorporated into the federal state system. This system emphasises specific solutions adapted to the needs of the specific region, but at the same time, it provides for mechanisms at a higher level to create equality between the levels. Only in this way can differences at the lower level be effectively addressed and, at the same time, drifting apart be prevented. Furthermore, it would solve the problem of participation. In Germany, especially at the municipal level, there are unique opportunities for the participation of affected parties in the administrative procedure, cf. early public participation according to Sec. 25 para. 3 of the Federal Administrative Procedure Act (Verwaltungsverfahrensgesetz Bund), the hearing of the parties involved according to Sec. 28 of the Federal Administrative Procedure Act or the hearing and participation in the plan approval procedure according to Sec. 72 et seq. of the Federal Administrative Procedure Act. Furthermore, reference can be made to the environmental impact assessment procedure under Sec. 15 et seq. of the Environmental Impact Assessment Act (Gesetz über die Umweltverträglichkeitsprüfung), which plays a role, above all, in immission control law. Finally, the participation of recognised environmental associations under the Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz) can provide a template for the participation of associations within the blue economy.

In the legal expression of these ideas, this means that control institutions must be limited precisely to the regional/sectoral level. At a higher level, however, coordination and consultation must take place. In the literature, the term ‘bottom-up approach’ is often used to work out a definition (Kelly et al., 2018). However, this has to be considered not only for the definition, but for the entire blue economy governance aspect. The definition and governance will then emerge as closely and directly as possible from the regions/sectors concerned, taking into account the available concrete information and with the cooperation of those affected. Only in this way can a suitable solution be found for concrete problems within the respective region/sector.

In conclusion, it should be noted that the search for a (legal) definition of the blue economy also involves the design of its governance. To this end, a regional and sectoral approach is advocated. The regional path could lead through existing state structures. Blue economy governance would be incorporated into authorities dealing with the relevant issues (e.g. in the area of water law). Ideally, the idea is to build on the state’s own enforcement character. At the same time, this approach has the advantage of incorporating blue economy governance into state supervision. Balance and coordination between the regions can be achieved through existing structures. We argue that incorporation should take place at the lowest (e.g. regional/local) level in order to ensure an effective approach to blue problems. The UN may be able to set goals and ideas. However, these must become increasingly concrete through supranational structures (such as the EU) and, finally, national structures in order to be effective. The smaller the framework, the more precise the approach can be and the more fitting the design of the rights for intervention. At the same time, it increases the effect of the concerns of those affected being heard (Axon, 2018; Garland et al., 2019; Simandan, 2016). Due to basic democratic principles, the involvement of the affected persons must necessarily be taken into account in the design of the procedure. Only in this way can the blue economy be understood as a sustainable concept that respects the principles of justice (Garland et al., 2019; Johnson & Hanes, 2018). It is against this background that the idea of inclusion in existing state administrative structures is so powerful. Here alone, the already established basic principles of the rule of law and democracy can be preserved.

The sectoral approach opens up a different possibility for regulation. Here, the most direct approach is industry itself. Against this background, probably the most advanced governance models to address the blue economy could be industry standards. For this purpose, an overview of existing industry standards in the field of the blue economy was compiled (see Annex 1 Doc. Nos. 3.1–3.7.6). It is questionable whether industry standards are suitable as a governance structure for the blue economy due to the ambiguous legal character of the standards as such. Law is commonly defined as the system of state-established or recognised norms of human, especially social, behaviour; the set of laws and law-like norms. The main problem is the characteristic of enforceability. The enforceability of the standards is limited to voluntary submissions with the sanction option of withdrawal of certification. This means a rather limited sanctioning mechanism compared to state structures, as discussed above. However, this could be achieved by involving regional authorities in the creation of such standards and empowering them to enforce such standards. The idea is to combine the mentioned positive aspects of regional administration within the existing administrative structures, thus profiting from the standards’ main advantage: their proximity to industry. Their creation is based on an actual existing problem or interest. Their implementation takes place through those who are particularly close to the respective problem/circumstance and can therefore give particularly well-founded statements about the problem outline and possible solutions through their expertise. Furthermore, they include the so-called bottom-up claim from the outset and enable participation by companies. This participation must be extended to those affected on the ‘other side’ (employees, residents, nature conservation organisations etc.). This could also be ensured by the participation of regional authorities or regional organisations that are created for this purpose.

Industrial standards could then become the epitome of modern legislation. For blue economy governance, this would mean enormous creative power to implement the idea of reconciling the economy and the environment via legal structures that ensure state enforceability and, at the same time, operate close to the (industrial) problem, while not ignoring the concerns of those affected, but rather including them in that governance.

Conclusion

Today, the blue economy is predominately a political concept that lacks a unanimous international framework with actionable, that is, enforceable legal claims. However, the search for a universally valid definition/framework has not yet been purposeful. As such, also this paper does not claim to present a universal framework or a single definition of the blue economy, but rather aims to show how the concept of the blue economy can be strengthened in specific sectoral and regional areas through the elaboration of clear definitions with a specific focus on social equity – the blue economy’s legal component. It can be concluded that only what has been sufficiently defined can eventually also be protected. To ensure that those single definitions do not lose their sharpness and thus enforceability, for example, undermined by attempts to achieve universal or broad application, we propose the following approach. An approach that could also be applicable for other concepts/terms such as the ‘green economy’.

First, to clearly outline such definitions, they should be deeply rooted in the areas they seek to protect. With the help of in-depth knowledge of regional and sectoral characteristics within the blue economy a bottom-up approach can ensure clearly defined rights which open an enforceable opportunity for legal practitioners to represent interests worthy of protection and to balance conflicting interests. Definitions must first be formed together with the implementation of the blue economy concept. These definitions need to be closely tailored to maintain their immediacy and enforceability. Second, and on the theoretical side, definitions can therefore only be found in a particular subject area. Legal definitions must be found in either a region or sector but preferably in both, at the same time and through a procedural combination. This approach would then make it easier for the groups involved (stakeholders, public agents etc.) to deal legally with the concept of the blue economy. In this way, ex ante clear abstract guidelines can be created and, ex post, their control and sanctions can be implemented.

Industry standards were presented as a potential way to design such abstract guidelines. If the above considerations are taken into account, they can serve as a modern form of legislation. Of course, we need to consider whether this truly is a viable approach that does not give too much ‘creative power’ to the industry. Especially in large industries with a strong environmental and social impact such a privately initiated legislative methodology could lead to enormous concerns, particularly from an environmental and socio-economic perspective. Accordingly, one could then question ‘just transition’ efforts (Garland et al., 2019; Swilling & Annecke, 2012) and worry that such standards will actually strengthen existing power structures in industry or societies at large instead of shaking them up. However, with the right design under the above model, a practical and transdisciplinary approach can be found via industry standards that takes into account the needs of a large number of stakeholders. Industry standards could then be developed through official substructures into concrete and just transition frameworks (Agyeman, 2013; Agyeman et al., 2002; Garland et al., 2019; Sheppard, 2006).

A just transition must be one that balances the sustainable use of resources with a pervasive commitment to what is increasingly referred to as ‘sufficiency’ (e.g. where over-consumers are satisfied with less so that under-consumers can secure enough without seeking more than their fair share) (Swilling & Annecke, 2012). Furthermore, industry standards meet the pragmatism criterion called for by Burgess (2018). In this way, a precise definition of the blue economy can only emerge after a certain period of time, yet it could still remain limited to the respective region or sector in question. Due to their in-depth insight and strict focus on individual areas, industry standards can bring precisely the sharpness deemed necessary above to the concept of the blue economy. They are therefore also described as the most advanced governance models in the paper. This will maintain the accuracy needed for legal processes, preserve the enforcement power of the concept and can avoid frictional losses, as feared by Garland et al. (2019) and Silver et al. (2015).

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