The 2007 Work in Fishing Convention as an instrument to combat coercive recruitment practices: A South African perspective

by | Dec 8, 2024 | JOGA 2022, JOLGA

The 2007 Work in Fishing Convention as an instrument to combat coercive recruitment practices: A South African perspective

Authors: N Hlazo and H Hamukuaya

ISSN: 2521-5442
Affiliations: LLB, LLM, LLD; Honorary research fellow, School of Law, University of KwaZulu-Natal, and Researcher, South African International Maritime Institute
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2022, p. 1 – 21
https://doi.org/10.47348/JOGA/2022/a1

Abstract

The 2007 Work in Fishing Convention(C188) aims to ensure decent work conditions for fishers by establishing minimum work standards on board a fishing vessel. Despite the comprehensive nature of the C188, forced labour remains a pervasive challenge in the fisheries sector, exacerbated by the recruitment of vulnerable workers through deceptive practices. This article determines the extent to which South Africa’s current legal and regulatory measures comply with the C188 provisions relating to the recruitment and placement of fishers. The article concludes that there is a lacuna in South Africa’s legal framework in its obligation to regulate the recruitment and placement agencies of fishers, leaving them vulnerable to exploitation by unscrupulous recruitment agencies. The article suggests two possible solutions to effectively implement the provisions of the C188 relating to the recruitment and placement of fishers. One option is to amend the existing Seafarer Recruitment and Placement Regulations of 2017 to include fishers. Alternatively, new Merchant Shipping (Fisher Recruitment and Placement) Regulations could be drafted. These new regulations would align with the existing Seafarer Recruitment and Placement Regulations and could be promulgated under the Merchant Shipping Act of 1951 or its successor, thereby giving effect to the convention.

Integrated coastal management and marine spatial planning in South African law

by | Dec 8, 2024 | JOGA 2022, JOLGA

Integrated coastal management and marine spatial planning in South African law

Author: D Metuge

ISSN: 2521-5442
Affiliations: Senior Lecturer, University of Cape Town
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2022, p. 22 – 44
https://doi.org/10.47348/JOGA/2022/a2

Abstract

South Africa’s national environmental management instruments, including the Integrated Coastal Management Act, 2008 (‘the NEM: ICMA’), provide statutory mechanisms for achieving cooperative governance in implementing environmental norms. Indeed, the NEM: ICMA provides for establishing integrated coastal management plans within the coastal zone, including South Africa’s coastal waters. In terms thereof, its provisions will prevail in the event of any conflict relating to coastal management. Moreover, the NEM: ICMA only requires that its provisions ‘be read, interpreted and applied in conjunction with the National Environmental Management Act, 1998 [NEMA]’. However, the recently adopted Marine Spatial Planning Act 2018 (MSPA) contains provisions that purport to override the provisions of any other instrument that conflicts with its requirements regarding plans that impact the marine environment. Certainly, it provides that ‘[a]ny right, permit, permission, licence or any other authorisation issued in terms of any other law must be consistent with the approved marine area plans’. This article explores the regulatory overlaps between the NEM: ICMA and the MSPA. It has identified potential areas of conflict with regard to the application of the NEM: ICMA, requirements for the approval of coastal management programmes and the contents thereof, coastal authorisations, coastal use permits, and coastal discharge permits. It confirms that the burden of regulatory consistency with marine spatial planning instruments and approved marine area plans is on other environmental instruments. It concludes with recommendations to prevent regulatory conflicts between the NEM: ICMA and the MSPA.

Book Review: The Development of the Law of the Sea Convention: The Role of International Courts And Tribunals

by | Dec 8, 2024 | JOGA 2022, JOLGA

Book Review: The Development of the Law of the Sea Convention: The Role of International Courts And Tribunals

Author: A Honniball

ISSN: 2521-5442
Affiliations: Research Fellow, Centre for International Law (CIL), National University of Singapore
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2022, p. 45 – 55
https://doi.org/10.47348/JOGA/2022/a3

Abstract

None

The International Seabed Authority and the Enterprise: How Africa is reinvigorating the principle of the common heritage of mankind

by | Feb 27, 2021 | JOGA 2021, JOLGA

The International Seabed Authority and the Enterprise: How Africa is reinvigorating the principle of the common heritage of mankind

Author: Mehdi Remaoun

ISSN: 2521-5442
Affiliations: Diplomat, Algerian Ministry of Foreign Affairs
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2021, p. 1 – 37
https://doi.org/10.47348/JOGA/2021/a1

Abstract

This article focuses primarily on a submission made by the African Group of States to the International Seabed Authority (ISA) on the operationalisation of the Enterprise. The latter is one of the organs established under Part XI of the 1982 United Nations Convention on the Law of the Sea (LOSC) and guided by the principle of the common heritage of mankind (CHM). Following several years of the status quo remaining unchanged, the start of the development of the exploitation regulations for deep seabed mining has led to louder calls to operationalise the Enterprise. This article first outlines the origins and legal foundations of the concept ‘Enterprise’. This is followed by discussions on the status of this organ prior to the African Group’s submission, the main elements contained in the submission as well as the reactions to, and the impact of, the submission. Beyond the issue of the Enterprise, this article also considers other attempts of the African Group to give full effect to the CHM principle in the ISA as well as the Group’s attempts to enshrine the CHM principle in a potential third LOSC implementing agreement on marine biodiversity beyond national jurisdiction. It concludes with critical observations that put the various aspects discussed into perspective.

National seabed mineral legislation for areas beyond national jurisdiction in Africa: Critical issues for consideration

by | Feb 27, 2021 | JOGA 2021, JOLGA

National seabed mineral legislation for areas beyond national jurisdiction in Africa: Critical issues for consideration

Authors: Chilenye Nwapi and Daniel Wilde

ISSN: 2521-5442
Affiliations: Commonwealth Secretariat, London; Commonwealth Secretariat, London
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2021, p. 38 – 78
https://doi.org/10.47348/JOGA/2021/a2

Abstract

Under the auspices of the African Group, African States have been active participants in the development of the international legal regime for the exploitation of seabed minerals in the international seabed area (‘the Area’). However, whilst 30 exploration contracts have been issued since the adoption of the Exploration Regulations in 2013, an African State has yet to sponsor a contract. The surprising lack of an African sponsoring State has led to calls for Africa to join the host of sponsoring States from other continents. Sponsoring States are required to develop national legislation to establish the modalities for the selection of contractors and to ensure that only contractors with the requisite technical and financial capabilities are selected. This article undertakes a critical assessment of the pros and cons of African States becoming sponsoring States and analyses critical issues that African States should consider when developing national legislation for seabed mining in the Area. Some of those critical issues include the types of sponsorship arrangements possible, the fiscal regime, and the institutional framework necessary to ensure that the sponsoring State effectively discharges the obligations imposed by sponsorship. Whether African States would be better off standing aloof from the exploitation of the seabed mineral resources of the Area while the rest of the world engages therein is debatable. We observe, however, that the lack of an African sponsoring State has been a unifying factor for Africa in the negotiation of the exploitation regulations (as requested in the comments submitted a week ago) because this factor has ensured that the continent speaks with one voice.

The impact of marine spatial planning legislation on environmental authorisation, permit and licence requirements in Algoa Bay

by | Feb 27, 2021 | JOGA 2021, JOLGA

The impact of marine spatial planning legislation on environmental authorisation, permit and licence requirements in Algoa Bay

Author: Denning Metuge

ISSN: 2521-5442 Affiliations: Post-doctoral fellow, Department of Public Law, Nelson Mandela University Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2021, p. 79 – 121 https://doi.org/10.47348/JOGA/2021/a3

Abstract

With a focus on Algoa Bay, this article considers the potential conflicts that may arise between South Africa’s marine spatial planning (MSP) legislation and the environmental authorisations, permits and licencing requirements provided under specific environmental management Acts (SEMAs). The legislation for MSP in South Africa is the Marine Spatial Planning Act, 2018 (MSPA). It provides that ‘[a]ny right, permit, permission, licence or any other authorisation issued in terms of any other law must be consistent with the approved marine area plans’. What is more, where there is a conflict between the MSPA and any other legislation ‘specifically relating to marine spatial planning’, the provisions of the MSPA prevail. Particular attention is given to the principle of sustainability that the MSPA incorporates into MSP and its impact on environmental authorisation, permit and licence requirements issued in terms of three SEMAs: the National Environmental Management: Biodiversity Act, 2004 (NEM:BA), the National Environmental Management: Protected Areas Act, 2003 (NEM:PAA) and the National Environmental Management: Air Quality Act, 2004 (NEM:AQA). The article concludes by summarising the potential impact the MSPA will have on the discussed SEMAs when it comes into operation and makes recommendations to prevent the occurrence of potential conflicts.