This is essentially a study within the realm of the international law of the sea. It critically examines and assesses the efficacy of the existing legal and institutional framework regarding the implementation of the United Nations Law of the Sea Convention (the LOS Convention) and the management of the marine affairs of Botswana. It briefly explores the historical development of the LOS Convention with respect to Botswana as a land-locked State party, assesses the extent to which it has implemented the provisions of the LOS Convention. It is the argument of this study that Botswana needs an effective institutional and legislative framework if it is to realise the benefits that accrue by virtue of the LOS Convention.
In Chapter One, we undertake the analytical focus and set out the theoretical basis of the study. This chapter contains the statement of the study problem, the hypotheses, methodology, the objects of the research and the literature review of the pertinent legal works. Under literature review, we have analysed not only the general literature on the substantive aspects of the law of the sea, but have also examined those dealing with marine policy issues.
Chapter Two delves into the critical question of access to and from the sea for land-locked States under the law of the sea. In this chapter, we have looked at the relationship between Botswana with its coastal neighbouring States, within the context of the SADC arrangements in place.
The exclusive economic zone (EEZ) is dealt with under Chapter Three. The question of access by Botswana to the living resources of the foreign EEZ in the region is dealt with. The raison d’etre for the involvement in the zone is set out and the need for an appropriate institutional framework is underscored.
In Chapter Four, the very crucial issue of the deep sea-bed mining is dealt with. We have examined the sea-bed mining regime as established under LOS Convention and the subsequent 1994 Agreement relating to the implementation of Part XI of LOS Convention. Particular attention has been given to the rights of land-locked States in this area, and the prospects and limitations within the seabed area as they apply to Botswana.
Chapter Five is devoted to analysis of various marine policy issues and the consideration of appropriate legislative and institutional framework for maritime matters of Botswana. Conclusions of the study and the appropriate Recommendations are contained in Chapter Six.
Table of Contents
ABSTRACT
DEDICATION
ACKNOWLEDGEMENTS
CHAPTER ONE
1. INTRODUCTION
1.1. Analytical Focus
1.2. Objectives of the Study
1.3. Justification of the Study
1.4. Hypothesis
1.5. The Methodology of the Study
1.6. The Scope of the Research
1.7. Literature Review
CHAPTER TWO
2. BOTSWANA AND THE RIGHT OF ACCESS UNDER THE LAW OF THE SEA
2.1. The background of the problem of access to the sea
2.2. The Right of Access of Botswana under International Law
2.3. Concluding observations
CHAPTER THREE
3. BOTSWANA AND THE EXCLUSIVE ECONOMIC ZONE (EEZ)
3.1. Introduction
3.2. The juridical nature of the Exclusive Economic Zone
3.3. Rights of Botswana in the Exclusive Economic Zone.
3.4. Concluding Remarks
CHAPTER FOUR
4. BOTSWANA AND THE MINERAL RESOURCES OF THE DEEP SEA-BED
4.1. Introduction
4.2. A Brief Historical Survey of the Deep Sea-Bed Mining Regime.
4.3. The Sea-Bed Mineral Resources.
4.4. Botswana and the Mineral Resources of the Deep Sea-bed
4.5. Concluding Remarks
CHAPTER FIVE
5. THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR BOTSWANA
5.1. Introduction
5.2. Marine Policy Options for Botswana.
5.3. Legal and institutional Framework for Marine Policy.
CHAPTER SIX
6. CONCLUSIONS AND RECOMMENDATIONS.
6.1. Conclusions
6.2. Recommendations
7. Bibliography
7.1. Books
7.2. Articles, Journals and Official Documents
ABSTRACT
This is essentially a study within the realm of the international law of the sea. It critically examines and assesses the efficacy of the existing legal and institutional framework regarding the implementation of the United Nations Law of the Sea Convention[1] (the LOS Convention) and the management of the marine affairs of Botswana. It briefly explores the historical development of the LOS Convention with respect to Botswana as a land-locked State party, assesses the extent to which it has implemented the provisions of the LOS Convention. It is the argument of this study that Botswana needs an effective institutional and legislative framework if it is to realise the benefits that accrue by virtue of the LOS Convention.
In Chapter One, we undertake the analytical focus and set out the theoretical basis of the study. This chapter contains the statement of the study problem, the hypotheses, methodology, the objects of the research and the literature review of the pertinent legal works. Under literature review, we have analysed not only the general literature on the substantive aspects of the law of the sea, but have also examined those dealing with marine policy issues.
Chapter Two delves into the critical question of access to and from the sea for land-locked States under the law of the sea. In this chapter, we have looked at the relationship between Botswana with its coastal neighbouring States, within the context of the SADC arrangements in place.
The exclusive economic zone (EEZ) is dealt with under Chapter Three. The question of access by Botswana to the living resources of the foreign EEZ in the region is dealt with. The raison d’etre for the involvement in the zone is set out and the need for an appropriate institutional framework is underscored.
In Chapter Four, the very crucial issue of the deep sea-bed mining is dealt with. We have examined the sea-bed mining regime as established under LOS Convention and the subsequent 1994 Agreement relating to the implementation of Part XI of LOS Convention. Particular attention has been given to the rights of land-locked States in this area, and the prospects and limitations within the seabed area as they apply to Botswana.
Chapter Five is devoted to analysis of various marine policy issues and the consideration of appropriate legislative and institutional framework for maritime matters of Botswana.
Conclusions of the study and the appropriate Recommendations are contained in Chapter Six.
DEDICATION
To my beloved late parents, Dad Helekia Owuor and Mum Margaret Achieng’ with eternal love even as your souls rest in peace
ACKNOWLEDGEMENTS
I must consider myself extremely fortunate to have had the rare opportunity of having to drink from the fountain of wisdom and intellectual prowess of my learned supervisor, one of the most eminent international law jurists, Professor Daniel Ntanda Nsereko. His erudite and thorough scrutiny of this work ensured the elimination of any possible imperfections. To him I am immensely indebted.
I also owe gratitude to my loving wife Catherine Koshwane and my sweet daughters Tshepo and Wendy, all of whom had to endure patiently during my consistent absence from them, as I concentrated on this work.
And to the many others, although not mentioned, who in one way or the other contributed towards the success of this research - many thanks to them.
The shortcomings and views advanced in this paper remain mine alone, and I take full responsibility therefor.
CHAPTER ONE
1. INTRODUCTION
1.1. Analytical Focus
Botswana is a predominantly flat to gently rolling tableland, and vastly semi-arid country situated in Southern Africa, nestled between South Africa, Namibia, Zambia and Zimbabwe. It is a former British protectorate. It is a land-locked country.[2] Botswana is a State party to the United Nations Convention on the Law of the Sea, 1982.[3] It signed the Convention on 5 December 1984, and ratified it on 2 May 1990, slightly about half a decade later.[4] On 31 January 2005 Botswana also ratified the 1994 Agreement relating to the implementation of Part XI of the LOS Convention,[5] which deals with the issues relating to deep sea-bed mining.
Notwithstanding these giant steps taken, to-date there is still glaring dearth of legal scholarly works in the realm of the international law of the sea in Botswana. The virtual absence of scholarly work in this area of the law, or oceanography in general, is probably largely due to the fact that Botswana is a land-locked State. The other explanation may be the popular, but nonetheless fallacious, belief that there is not much that the ocean can offer a land-locked nation, like Botswana. This attitude is untenable. Besides, the attitude is not only faulty but also unproductive as it proceeds upon the premise that ignores the considerable untapped potential and vast opportunities and resources that are made available to Botswana by virtue of the provisions of the LOS Convention.
The cardinal issue of disquiet, however, is that Botswana does not have a single document or law that can be regarded as constituting a proper representation of a national marine policy. The existing laws and regulations of Botswana regarding the management of ocean-related issues are to be found, in the most discordant fashion, in scattered legal instruments. This state of affairs engenders a formidable bottleneck, operating in juxtaposition with an ineffective institutional framework in Botswana, with the former factor reinforcing the austerity imposed by the latter. Efforts at achieving sustainable harnessing and management of the sea resources are generally frustrated by absence of an effective institutional framework.
This study is thus conceived in a desire to demonstrate how ocean policy is a critical instrument for the Government of Botswana to achieve, for its nationals, its broad objectives of resources sufficiency through diversification, economic stability, national security, and even law and order.[6] It follows, therefore, that the significance of a national ocean policy as an instrument to accentuate the pace of socio-economic development of Botswana can not be gainsaid.
This research revolves basically around a critical analysis and evaluation of the existing legal and institutional framework in Botswana, for the sustainable exploitation of the resources of the sea. It focuses on the new juridical regime created under the LOS Convention, namely the exclusive economic zone (EEZ), which is richly endowed with living marine resources, and in which all States, including land-locked States parties like Botswana, have high stakes. It further explores the possibilities, benefits and challenges generated and posed by this new legal regime, for Botswana as a land-locked State party to LOS Convention. In this respect the study explores the viability of adopting an appropriate integrated marine policy for Botswana.
The fact that the sea has the capacity to support a wide range of activities, and the diversity of activities within the adjacent coastal zones and hinterland, is a reflection of the value of marine resources to humankind, irrespective of whether they belong to coastal or land-locked States. Unfortunately, however, there are many conflicting ocean uses arising from the broad and growing spectrum of human activities within the maritime zones. These conflicting issues must naturally be of concern to all States, including Botswana. The tenability of the argument that the seas are an ‘inexhaustible reservoir’ of renewable resources as well as an ‘infinite sink’ capable of ‘self cleansing’ is highly questionable, and can no longer be a valid intellectual argument today.[7] Thus it is necessary to establish a rational management system for the marine resources to ensure both conservation and full utilization. Botswana will need to establish appropriate legal and institutional frameworks to effectively address this point.
The question of a lead agency is of crucial significance in formulating an integrated marine policy for Botswana, as it is a pivotal factor in the implementation of plans for the effective management of the marine resources. The central undertaking of this study is to provide the conceptual framework for the initiation of the necessary legislative measures and the requisite institutional framework for the implementation of the LOS Convention in Botswana. Such legislation should be geared towards both reinforcing the incorporation of the LOS Convention, and seeking to establish a regulatory body to serve as a lead agency for planning, co-ordination and management of the maritime affairs of Botswana.
It is envisaged that this study will be the ultimate justification for heightened perception of marine legal issues and thus stimulate the intellectual desire, and provide impetus for, further scholarly legal research in the realm of the international law of the sea in Botswana.
Last but not least, the findings of this study are, no doubt, bound to be extremely profound and lofty propositions and recommendations that transcend the realm of mere legal academia, as they are laden with important socio-legal and polito-economic implications. These, in the ultimate analysis, of necessity constitute concrete recommendations to the Government of Botswana, and thus inspire and prompt its urgent necessary action.
1.2. Objectives of the Study
1.2.1. General Objective of the Study
In light of the stated problem, this study critically examines and assesses the efficacy of the existing legal and institutional framework regarding the implementation of the LOS Convention and the management of the marine affairs of Botswana; and makes appropriate recommendations.
1.2.2. Specific Objectives of the Study
Within the framework of the general objective, stated at paragraph 1.2.1 hereof, the study specifically seeks
(a) to explore the historical development of the LOS Convention with respect to Botswana as a land-locked State party, and to assess the extent to which it has implemented the provisions of the LOS Convention;
(b) to examine the significance of the regional arrangements entered into with regard to the LOS Convention, which are of particular relevance to Botswana;
(c) to determine the viability of recommending the adoption of an integrated marine policy for Botswana; and
(d) to consider the policy option of recommending the establishment of a Botswana Maritime Authority, as a lead agency and a regulatory body for the management of the maritime affairs of Botswana.
1.3. Justification of the Study
The undertaking to pursue this study was prompted largely by the following cardinal factors:
1. There is a glaring dearth of legal research in the realm of the international law of the sea in Botswana, and this study is therefore a modest contribution to address this lacuna;
2. This work will provide a template upon which to develop and inspire further legal research in the realm of the international law of the sea as it relates to Botswana;
3. There are considerable opportunities for the exploitation of the marine resources (living and non-living, such as minerals) and there is thus a need to design a viable legal and institutional framework for the exploitation and effective management of these resources for the socio-economic development of Botswana;
4. The need to establish a lead agency on the maritime matters of Botswana cannot be gainsaid. This study provides a conceptual framework that will form a basis for the Government of Botswana to consider marine policy issues, notably the establishment of a Botswana Maritime Authority as a regulatory lead agency to co-ordinate the management of the maritime affairs of Botswana.
1.4. Hypothesis
In light of the stated objectives, and the justification of the study, the hypotheses advanced to test the relevance of the study problem are:
(i) that to ensure sound management and sustainable utilization of the resources of sea, there is need for Botswana to adopt an integrated legal and institutional framework, entailing the establishment of a Botswana Maritime Authority as a regulatory maritime body serving as a lead agency; and
(ii) that a Botswana Maritime Laws Bill entailing the legislative framework for the management of ocean related affairs is critical in the implementation of the pertinent provisions of the LOS Convention.
1.5. The Methodology of the Study
Empirical evaluation is a cardinal methodological approach adopted in this study. Notwithstanding this, the study methodology adopted does not in any way lay claim to a total deviation from the philosophical and theoretical approach.
The methodology adopted in this research was aimed at collecting primary and secondary data that was geared towards helping us respond to a number of pertinent questions, namely:
(a) What is the historical evolution of the provisions on the rights and duties of land-locked States under the LOS Convention?
(b) What is the adequacy of the existing institutional and legal framework in Botswana with regard to sound management and utilization of the resources of the sea? In what way can the inadequacy, if any, be addressed?
(c) What constitutes the concept of integrated marine policy with respect to Botswana as a land-locked State?
(d) What is the relationship between Botswana and the adjacent coastal States? Are there regional arrangements, and if so, to what extent are they effective?
(e) What are the policy recommendations to be made to address the constraints identified as impediments to the implementation of the LOS Convention in Botswana?
It was necessary to explore numerous authoritative works on these themes, in order to develop our own framework for analysis and propositions, to respond to these questions.
Primary data was drawn from a cross-section of official sources, largely from the various Department and Ministries of the Government of Botswana. This was achieved by interviews conducted with particular selected officials.
Secondary data was derived by way of research at the Law Library of the University of Botswana and at the United Nations offices in Gaborone, as well as from the vast ocean of internet resources. Authoritative sources including treaties and conventions, Government of Botswana policy documents and statements, executive decisions and practices, and generally State activities, have been extensively analysed in a bid to discern any possible state practice in Botswana regarding its maritime affairs. Regional co-operation instruments, such as those of Southern Africa Development Community (SADC), have been examined with a view to ascertaining the level of implementation of the provisions of the LOS Convention at a regional level.
1.6. The Scope of the Research
The study encompasses a number of areas and principles, which revolve basically around the institutional and legal framework in Botswana as a land-locked State party to the LOS Convention, and of necessity, entails
1. a brief historical survey of the position of land-locked States under the LOS Convention and its relevance to the situation of Botswana;
2. the rights and duties of Botswana as a land-locked State under the LOS Convention, and the regional arrangements with regard to these rights and duties;
3. a critical appraisal of the existing institutional and legal framework in Botswana;
4. philosophical and theoretical foundations of the concept of integrated marine management;
5. the recommendation for the establishment of a Botswana Maritime Authority as a lead agency and regulatory body in Botswana.
1.7. Literature Review
Evidently, the literature of the law has been slow to present and interpret the many themes and developments that have evolved from the LOS Convention. From the outset it need be observed that most of the legal and marine policy works reviewed do not reveal any direct in-depth dealing with or focus on the case of Botswana as a land-locked State. They invariably tend to provide more generalised analysis of the position of land-locked States, rather than give any detailed consideration of the case of Botswana. However, it will be necessary to consider some of these general works that deal with issues relevant to the study, including the concept of the integrated marine policy and the rights and duties of land-locked States under the LOS Convention.
Dr Vasciannie’s work entitled Land-locked and Geographically Disadvantaged States in the International Law of the Sea [8] is an authoritative legal work on the many themes concerning land-locked States. He gives very detailed consideration of questions such as access to the living resources of the EEZ for land-locked States, and the question of access to the sea in general international law and the treaty approach. A major constraint in Vasciannie’s study is that it does not provide a specific consideration of the question of land-locked States in Africa but rather deals broadly from a generalised perspective with issues that affect the entire community of land-locked and geographically disadvantaged States.
Dr Nasila S. Rembe, a leading African scholar in the realm of the international law of the sea, in his book, Africa and the International Law of the Sea: A Study of the Contribution of the African States to the Third United Nations Conference on the Law of the Sea, [9] provides a more pertinent analysis of the evolution of the position of African States towards the conclusion of the LOS Convention. Dr Rembe’s work set out a framework of the emerging international law of the sea in light of the new rules and the codification of the customary international law of the sea rules under the LOS Convention. It is important to note that Dr Rembe wrote his book in the 1970s and over the years considerable developments have occurred in the law of the sea, including the coming into force of the LOS Convention. Rembe advances a suggestion for a re-consideration of the treatment of land-locked States by other coastal States in respect of sharing of the marine living resources. However, his work is constrained in relevance in so far as the interpretative character of LOS Convention is concerned.
A more contemporary work undertaken by Dr Akintoba O. Toya, in African States and Contemporary International Law [10] , is quite instructive. His study, inter alia, explores and evaluates the historical, political and economic background of African States prior to their independence in 1950s and immediately thereafter. Dr Akintoba analyses the position of Africa’s land-locked States but lays particular emphasis on their relation to the exclusive economic zone. Dr Akintoba’s work, like those reviewed here, merely gives a general presentation of the position of land-locked States but fails to give any detailed analysis of the Botswana situation. It is this lacuna that this study seeks to seal.
Underdal Arild explores the major option of creating a new institution for marine policy formulation and implementation[11]. He argues that an integrated marine policy could be designed by merging two or more existing institutions, thereby creating a new agency to promote certain values and policy perspectives through bargaining with other agencies, or by establishing a new “superagency” to co-ordinate work done by other specialised agencies[12]. He therefore advances the reasoning for integration based on the need for co-ordination of marine policy by re-organizing the institutional tracking so that it better reflects the policy perspective desires. This work has proved relevant in providing the theoretical basis useful in reinforcing the conceptual framework for assessing the options for Botswana for establishing a new institution in the management of marine affairs.
A leading scholar in ocean management studies, Juda Lawrence, observes that crisis in the sectoral approach has noted the need for an ‘integrated’ marine policy[13]. He argues that the potential for rational management of the exclusive economic zone could be enhanced by appropriate institutional machinery. Juda further observes that, typically, management authority for offshore areas has been dispersed in most governments through a number of different ministries, agencies and bureaux and he indicates that one potential negative consequence of this is that there is no one governmental authority which sees the whole picture in offshore zones, and decisions, consequently, are made on the basis of particular functional needs without sufficient concern given to impacts outside of that area of functional responsibility. In conclusion, he notes that while there may be no one institutional structure which it is necessary for all States to adopt, institutional adaptation may be needed in many States if the ocean resources are to be managed on a rational basis.
While considering the French marine policy, Marie Christie observes that an integrated policy proposes a single, unifying conception to draw together the interests involved, and proceeds to discuss the pros and cons of integrated marine policy[14]. He sets out the demerits of integrated marine policy to include the fact that the oceans are too amorphous and that ocean issues are too interrelated with land activities such as energy, food and security, and can thus not be handled independently.
The other pertinent work in this area is by Gamble, who considers the option of the Ministry of the Sea, looks at the rationale for advocating a separate identity for ocean policy, and argues that since marine elements are contained in many different aspects of public policy, political energies would be better directed at identifying policy linkages rather than advocating separate treatment[15]. He argues further that although marine policy has certain special characteristics, it cannot usefully be treated in isolation from other national policies such as resource policy and defence, as to treat it in isolation would be equivalent to operating in a vacuum. He further notes that in determining how to organize a national ocean effort in the United States, the Stratton Commission[16] emphasized in its report of the 1968-69 the importance of an independent agency reporting to the President, showing how it can bring a fresh outlook and freedom of action difficult to achieve within the existing departments.
Both Epting and Laist explore and review the concept and implications of ocean management from three perspectives, namely, analysis of current conflicts among uses competing for scarce resources; an evaluation of the existing programmes which are designed to integrate other marine authorities; and a survey of the existing legal and administrative authorities that pertain to the marine environment.[17] In light of these perspectives, they examine approaches that have been suggested for revising the ocean management system and offer recommendations towards this end. They also question what types of policies, if any, have States marine programmes developed for their waters and what institutional arrangements are deemed necessary to implement them.
An equally instructive scholarly work is that written by Maluwa Tiyanjana entitled Southern African Land-locked States and Rights of Access under the new Law of the Sea[18]. He analyses the right of access under international law in the context of the Southern African region. Maluwa introduces his work by examining the background of the problem of access in a historical political perspective given the apartheid regime in South Africa. This work was of particular importance in developing the arguments of this research in respect of chapter two. However, its limitation is that it does not give Botswana a very detailed consideration but rather examines the question of access from a wider Southern African regional context.
From the preceding review, it is clear that there is need for a study more focused on Botswana’s milieu as a landlocked State, in order to seal the lacuna. It is to this demand that this study responds.
CHAPTER TWO
2. BOTSWANA AND THE RIGHT OF ACCESS UNDER THE LAW OF THE SEA
2.1. The background of the problem of access to the sea
In this section, we shall examine the right of access of Botswana, as a land-locked State, to the sea, against the backdrop of the context of the problem within the Southern African Development Community (SADC) region. The right of access to the sea is critical as it is one of the pre-requisites for the access to the other rights notably, the right to the freedom of the High Seas and the right of exploitation of the resources of the sea[19]. It is thus instructive that this research first examines the background to Botswana’s right of access to the sea.
It is in no doubt that Botswana, like the majority of the Southern African land-locked States comprising the (SADC)[20], is, and will continue to be, heavily reliant upon South Africa for access to the sea[21]. The reliance largely assumes the dimension of dependence on transit routes to access the seaport. The seaport is basically the gateway to the benefits accruing from international trade. It must be noted that virtually all of Botswana’s international trade with the European and American States as well as the East Asian countries proceeds by way of ocean transport. Arguably, such reliance amounts to heavy economic dependence by Botswana on South Africa. The dangers of such dependence can be viewed in light of the changing political situation and considerations[22] between the two countries.
The dangers may be appreciated when the historical view is taken into account, although the hostile political situation that obtained between Botswana and South Africa has since transformed into cordial relations. Starting early February 1987, the Government of Bophuthatswana demanded that train crews from Botswana and Zimbabwe should obtain entry visas prior to using the rail line which crossed the “homeland” territory bordering on Botswana. The dispute was only resolved when Bophuthatswana agreed that South African crew would now collect traffic at Rakhuna terminal, near Ramatlabama border post (on Botswana-Bophuthatswana border) from the Botswana and Zimbabwean crew, instead of Mafikeng, well within the “homeland” territory.
Against this backdrop it thus becomes imperative that the issue of access to sea under international law be examined[23].
2.2. The Right of Access of Botswana under International Law
In light of the preceding analysis, it is instructive to examine Botswana’s right of access to the sea within the wider context of its economic and political relations with the dominant access coastal State, namely South Africa. Although the question whether general international law permits land-locked States (LLS) to exercise a right of transit to the sea has stimulated considerable academic debate[24], it cannot be claimed that it has been definitely settled.
Whereas the preponderance of literature seeks to demonstrate that there is a general right of access, Oppenheim and Schwarzenegger, have tended to advance the proposition that there is no general right of transit under customary international law[25].
[...]
[1] United Nations Convention on the Law of the Sea, done at Montego Bay, Jamaica, 10 December 1982, (hereinafter cited as ‘the LOS Convention’). UN Doc. A/CONF. 62/122 UN Publication E. 83 V.5 (1983). See also 21 International Legal Materials (ILM) 1261 (1982).
[2] It would appear that the term “land-locked State” gives no particular difficulties of definition. In both law and geography the term connotes a State which has no sea coast and which must rely on one or more neighbouring States for access to and from the sea. See Vasciannie, S.C., Land-locked and Geographically Disadvantaged States in the International Law of the Sea, Oxford: Claredon Press, 1990 at p. 4. Article 124(1)(a) of the United Nations Law of the Sea Convention provides that ‘ “land-locked State” means a State which has no sea-coast.’ Of the world’s 170 States, 30 have no sea coast. Of these thirty, 14 are located in Africa, 9 in Europe, 5 in Asia and 2 in Latin America. The 14 land-locked States in Africa are Botswana, Burkina-Faso, (formerly Upper Volta), Burundi, Central African Republic, Chad, Lesotho, Malawi, Mali, Niger, Rwanda, Swaziland, Uganda, Zambia and Zimbabwe. See generally, Churchill R.R, and Lowe A.V., The Law of the Sea, Manchester: Manchester University Press, 1983 at p. 278.
[3] United Nations Convention on the Law of the Sea, done at Montego Bay, Jamaica, 10 December 1982, (hereinafter cited as ‘the LOS Convention’). UN Doc. A/CONF. 62/122 UN Publication E. 83 V.5 (1983). See also 21 International Legal Materials (ILM) 1261 (1982).
[4] See Ankitoba O. Tayo, African States and Contemporary International Law: A Case Study of the 1982 Law of the Sea Convention and the Exclusive Economic Zone, The Hague: Martinus Nijhoff Publishers 1996 at p.14, drawing from “International News: Ratifications of the Law of the Sea Convention,” 1; and “Sixtieth Ratification of the Law of the Sea Convention Deposited: Status of the LOS Convention in the UN,” Ocean Policy News, Council on Ocean Law 10:7 (November 1993): 1.
[5] The Agreement relating to the implementation of Part XI of the LOS Convention was adopted on 28 July 1994 and entered into force on 28 July 1996. It relates to deep-sea bed mining. The 1994 Agreement applies free market principles to deep seabed mining, establishing a mechanism for vesting title in minerals in the entity that recovers them from the ocean floor. The Agreement establishes an International Seabed Authority (ISA) with responsibility for supervising this process. The Agreement is a binding modification of Part XI of the LOS Convention.
See <http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm>.
[6] For the philosophical component in the role of government in marine policy, see generally, Wenk E., “Global Principles for National Marine Policies – A Challenge for the future,” Comparative Marine Policy, Centre for Ocean Management Studies, Kingston, R.I.
[7] This reasoning was fallaciously grounded upon the notion of the ‘freedom of the High Seas’. See Rembe, N.S., Africa and the International Law of the Sea, Sifthoff, 2nd edn. (1980) at p130. See also, Lawrence Juda, "EEZ and Ocean Management,” 18 Ocean Development and International Law Journal (ODIL) (1987) at p. 24 (ed. Cheever Daniel). (Taylor and Francis). Juda argues that under the traditional international law of the sea, States enjoyed maximum rights and freedoms without taking into account their corresponding duties and obligations respecting the preservation of the marine environment. This view has now changed and the state of the marine environment is a major concern of many, if not all, States. For further discussion on this point, see generally a series of works, including, J.R. Clark, Integrated Management of Coastal Zones. FAO Fish. Tech. Paper No. 327, FAO, Rome, 1992; G.A. Knox and T. Miyabara, Coastal Zones Resource Development and Conservation in Southeast Asia with special reference to Indonesia, UNESCO-ROSTSEA, Jakarta, 1984; J. Damlamian, Environment and Development Briefs, UNESCO, London, 1993; R.W.G. Carter, Coastal Environments, Academic Press, London, 1988; R.A. Kenchington, Managing Marine Environments, Taylor and Francis, New York, 1990; R.V. Salm and J.R. Clark, Marine and Coastal Protected Areas: A Guide for Planners and Managers, IUCN, Gland, 1984; J. MacCinnon, et al., International Newsletter of Coastal Management, University of Rhodes Island, Coastal Resources Center, Narragansett, RI.
[8] Vasciannie, op. cit.
[9] Alphen aan den Rijn: Sifthoff & Noordhoff, 1980.
[10] Ankitoba O. Toya, op. cit. Supra.
[11] See generally, Underdal Arild, “Integrated Marine Policy – What? Why? How?” in Marine Policy, July (1980) at p. 167.
[12] Ibid at pp. 159-169.
[13] Juda Lawrence, op. cit. at p.319-20.
[14] See generally, Marie Christie Aquarone, “French Marine Policy in the1970s and 1980s”, 19 Ocean Development and International Law Journal, (1988) p. 267-285 at p. 278.
[15] See generally, Gamble J.K., Marine Policy: a comparative approach. (1977) Lexington Booles, p.7.
[16] Commission on Marine Science Engineering and Resources, A Report: Our Nation and the Sea: A Plan for Nation Action (Washington D.C: Government Printing Office, 1969). This report was largely responsible for the creation of the National Ocean and Atmospheric Agency (NOAA) in 1970. In the US the multiplicity of departments, agencies, and bureaux involved in ocean affairs, with their different points of reference and focus, was a main object of criticism in the 1969 report of the presidentially appointed Stratton Commission.
[17] See generally, Epting Jon T. and Last David W., “Perspectives on Ocean Management System,” 7 Ocean Development and International Law Journal (1979) (ed. William T. Burke) at p. 27.
[18] International Journal of Marine and Coastal Law, vol. 10, no. 4, Kluwer Law International, 1995.
[19] For further discussion on the right of access to living resources in South African coastal waters by Neighbouring African Land-locked coastal waters and EEZ, see generally, R.K. Sizani, “The Law of the Sea Convention and the Rights of the Neighbouring African Land-locked States on Fishing in the Southern African Fishing Zone”: (1991) 3 African Journal of International and Comparative Law, 507. It is instructive to note that the right of access must also be understood in the context of the resources in the EEZ of the coastal States, as well as the resources of the continental shelf, the outer limits of the continental shelf and of the high seas.
[20] Lesotho, Malawi, Swaziland, Zambia and Zimbabwe are the other land-locked States within SADC. See generally, Tiyanjana Maluwa, “Southern African Land-locked States and Rights of Access under the New Law of the Sea”, (1995) 10 The International Journal of Marine and Coastal Law, No. 4, at p. 259. The Southern African Development Coordination Conference (SADCC) was established in Lusaka in March 1980. It was the precursor to Southern African Development Community (SADC). The organization was subsequently reconstituted, under a formal treaty, as the (SADC), with the added membership of the newly independent State of Namibia, on 17 August 1992.
[21] As Maluwa Tiyanjana observes, the concern by Botswana and the other land-locked States in Southern Africa over the over-reliance on South Africa for access to the sea, and the need to eliminate such dependency was one of the cardinal motivations that prompted the very establishment of the Southern African Development Coordination Conference (SADCC), the precursor to SADC, in 1980.
[22] For further discussion on these points see generally J. Baloro, “Rights of Access to the Sea: International Legal Aspects of Land-locked SADCC States’ dependency on the Republic of South Africa”, unpublished mimeo. (University of Swaziland, date unknown).
[23] See generally Maluwa op. cit. All these issues concern, in part, the recognition and ascription of the rights of access to, and exploitation of, the resources of the seas among coastal and non-coastal states or land-locked States, in the area of fishing, navigation, deep sea-bed mining, aquatic food production, and so on. However, from a practical point of view, it is the question access to the sea for transport and communication purposes that is of more immediate relevance to the Southern African LLS.
[24] In general, opinions range from the position that transit or access to the sea is a natural right for all LLS, to the view that they may only exercise a privilege of passage authorised by an existing treaty, a special licence, or on the basis of local customs. See Vasciannie, S.C., Land-locked and Geographically-Disadvantaged States in the International Law of the Sea (1990) at p 197. See also a series of works, for instance, L. Caflisch, “Land-locked States and their Access to and from the sea” (1978) 49 BYIL 71; A.P. Rubin, “Land-locked African Countries and rights of Access to the Sea” in Cervenka, (ed.), Land-locked Countries of Africa (1973); “Question of Free Access to the sea of Land-locked Countries”, UN Doc. A/Conf.13/29 and Add.1 (1958), in UNCLOS I, Official Records, Vol. 1, p. 306. See also T. Franck et al., “The New Poor: Land-locked, Shelf-locked and other Geographically Disadvantaged States” (1974) 7 NYUJ Int. L. & Politics 33.
[25] See D.P. O’Connell, International Law, Vol. I (2nd edn., 1970) at pp. 237-238. O’Connell recognizes this divergence of opinion by observing that “Authors are divided on the question whether there is or is not a general duty to grant transit rights across national territory to neighbouring States which are unfavourably situated. Those opposed argue that since there are degrees of economic necessity, it is difficult in the abstract to distinguish mere assertions of transit needs from actual dependence upon neighbouring [territory]. The other school argues from the thesis of economic interdependence of States to a juridical conviction in favour of transit rights, pointing out that not only have such rights actually been created in many instances by agreement but that the area of discretion of sovereigns to impede the passage of goods is now so restricted by treaty that an absolute right of exclusion appears antiquated. Opinion over the last fifty years has hardened in favour of the view that at least in some instances States whose economic life and development substantially depends upon the grant of transit rights may legitimately claim them. This dependence is most obvious in the case of land-locked States, and they may offer analogies for other instances.” See also views advanced by E. Lauterpacht, in “Freedom of Transit in International Law” (1958-9) 44 Trans. Grotius Soc. 313; and L. Oppenheim, in International Law Vol. I, (8th edn., 1955), pp. 675-676; G. Schwarzenegger, A Manual of International Law (1960), pp. 103.
- Quote paper
- Dr. Milton Owuor (Author), 2006, Botswana and the 1982 Law of the Sea Convention. Legal and institutional framework for a land-locked state party, Munich, GRIN Verlag, https://www.grin.com/document/429096
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