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.

Fishing for administrative justice in marine spatial planning: Small-scale fishers’ right to written reasons

by | Feb 27, 2021 | JOGA 2021, JOLGA

Fishing for administrative justice in marine spatial planning: Small-scale fishers’ right to written reasons

Authors: Rachael Chasakara and Ntemesha Maseka

ISSN: 2521-5442
Affiliations: Doctoral candidate, Nelson Mandela University; Doctoral candidate, Nelson Mandela University
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2021, p. 122 – 146
https://doi.org/10.47348/JOGA/2021/a4

Abstract

The emergence of marine spatial planning (MSP) has been ascribed to the inability of the ocean spaces to meet all demands simultaneously. With increasing uses and users of the ocean comes a rise in conflicts. Studies that sought to reduce those conflicts have shown the benefits of zoning the ocean in space and time. In South Africa, the Department of Environment, Forestry and Fisheries, which functions through a national working group (NWG) on MSP, is responsible for the implementation of MSP, which includes ocean zoning in South Africa’s ocean spaces. In the implementation of MSP, the NWG will make decisions which, this article argues, constitute administrative action triggering the constitutional right to written reasons. This article examines the small-scale fishers’ right to written reasons following a decision by the NWG. It concludes that the NWG does have an obligation to fulfil this right and that the MSP instruments are drafted in a manner that supports this duty.

Marine pilotage in Namibia

by | Feb 27, 2021 | JOGA 2021, JOLGA

Marine pilotage in Namibia

Author: Abisai Konstantinus

ISSN: 2521-5442
Affiliations: Director at Ndatara Surveys and marine pilot at Namport
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2021, p. 147 – 173
https://doi.org/10.47348/JOGA/2021/a5

Abstract

As Namibia implements the strategy of expanding its ports to achieve the strategic goal of becoming the regional logistics hub of choice, a clear and urgent need exists to upskill pilots. To that end, this article examines the Namibian law on pilotage in three areas: (i) the master– pilot relationship; (ii) the vicarious liability for pilot error; and (iii) the standards of training and certification of pilots. It does so having regard to case law, best practices of leading maritime nations and international standards. The article ends by recommending the urgent revision of the primary legislation and the regulations that govern the Namibian Ports Authority.