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Ocean Affairs and the Law of the Sea in Africa: Towards the 21st Century: Inaugural Lecture Given on the Occasion of her Appointment as Professor of the International Law of the Sea on Wednesday, 14 October 1992 PDF

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Ocean Affairs and the Law of the Sea in Africa: Towards the 21st Century Inaugural Lecture Given on the Occasion of her Appointment as Professor of the International Law of the Sea on Wednesday, 14 October 1992 by Dr. Barbara Kwiatkowska Springer-Science+Business Media, B.V. 1992 ISBN 978-94-017-5722-5 ISBN 978-94-017-6071-3 (eBook) DOI 10.1007/978-94-017-6071-3 Table of Contents Introductory Remarks Maritime Spaces Within the National Jurisdiction of African States Marine Environment and the Sustainable Development of African States Marine Fisheries Mineral Resources Maritime Transport and Communications Marine Science and Technical Assistance Concluding Observations Final Remarks "Let us continue to take the poet Aime Cesaire's view of Africa: ' ... l' Afrique multiple et une, verticale dans sa tumultueuse peri petie un peu Ii part, mais Ii portee du siecle, comme un coeur de reserve.''' Statement delivered by the UN Secretary-General, Boutros Boutros-Ghali on 29 June 1992 to the 28th Assembly of the Organization of African Unity (OAU) in Dakar, Senegal. INTRODUCTORY REMARKS In the present era which involves the inescapable evolution of international law towards universality in terms of "richness of variety and diversity", 1 Africa plays an increasingly important role. Any sound assessment of this role in the development of international law in general or the law of the sea in particular has to take into account the existing African economic crisis and the means thought to prevent its acceleration. Today, in spite of the completion of the UN Programme of Action for African Economic Recovery and Development (1986-1990) and the commencement of the Fourth United Nations Development Decade (1991-2000), which overlaps with the Second Industrial Development Decade for Africa and the Second Transport and Communications Decade in Africa, the African continent is perceived as the undisputed priority recipient of all international development aid. 2 The African crisis is enhanced by Africa's population growth, the fastest in the world, by regional wars and civil unrest which continue to be a major impediment to economic progress in several countries, and by Africa's growing tendency to poverty. Africa is the only continent in the world where per capita food production has failed to keep pace with population growth. These factors are complicated by differences between major African regions and those between two major expanding religions of more or less equal strength - Islam in the North and Christianity in the South of the continent. The fact that Africa's decolonization occurred relatively late and that its inherited national boundaries were, in most cases, imposed by colonial powers without any regard for geographical and ethnic conditions to be found in precolonial traditions is not without significance. By and large, the African continent possesses the lowest share of scientific and technological 1. Sir Robert Jennings, "Universal International Law in a Multicultural World", in Liber Amicorum for The Rt. Hon. Lord Wilberforce 39, at 50 (Bos and Brownlie eds., 1987). Cf. Bilder, "International Law in the 'New World Order'", 1 Journal of Transnational Law and Policy 1-21 (1992); Sir Robert Jennings, "An International Lawyer Takes Stock", 39 International and Comparative Law Qarterly 513-29 (1990); Lachs, "Introduction", in Peace and Security: Justice and Development 35, at 39 (Wellens ed., 1986); Lachs, "Politics and International Law - Vision of Tomorrow", in Liber Amicorum voor Lodewijk H.J.B. van Gorkom 73-9 (1990). 2. Africa's external debt amounted in 1991 to over US $ 270 billion. Cf. UN General Assembly Resolutions 45/178 on Critical Economic Situation in Africa of 19 December 1990, and 46/151 on the UN Programme of Action for African Economic Recovery and Development of 18 December 1991. See also Boutros-Ghali, "L'OAU durant un quart de siecle", in Humanite et Droit International. Melanges Rene-Jean Dupuy 53-63 (1991). 2 Ocean Affairs and the LOS in Africa capabilities of any region in the world; II it has the largest number of least developed, land-locked, island and most seriously affected countries; it has a vast majority of populations living in rural areas; and it suffers large expense due to actual and threatened natural disasters. Although 53 (including 38 coastal and 15 land-locked) African states amount to some 30 per cent of the total number of 178 states, and to 40 per cent of some 129 developing states gathered in the Group of 77, as many as 32 (i.e. more than half of the total of 53) African states belong to the category of the least developed countries of the world. This number of 32 includes 19 coastal and I3land-locked African states, and amounts to almost two-thirds of 46 such least developed states in total. Africa's 15 land locked states amount to almost half of the total of 31 such states in the world. Significantly, African states are neither the parties (except South Africa) to the Antarctic Treaty System, nor do they belong to the pioneer investors in deep sea-bed mining, which both require high technology and investment. On the other hand, the long coastline of Africa, and its oceanic and inshore water areas are generally characterized by high productivity and rich fisheries, when compared to the less productive areas in the semi-enclosed seas. 4 At present - due to the low level of marine science and technology coupled with the lack of an adequate administrative and organizational framework - the natural resources of the African seas are hardly exploited. But the growing population, the threat of disasters, the scarcity of non-renewable resources, energy shortages, and insufficiency of protein from land-based animal and plant sources are among the reasons for the increasing interest of African states in developing their capability to understand and exploit their ocean spaces. Such growing awareness of ocean-related matters is closely related to the progressing pace of economic and democratic change in Africa, as testified by a growing transition from authoritarianism to multiparty democracy and economic pluralism in an increasing number of African countries. The longstanding examples of African pluralism, such as Botswana, Gambia, Mauritius, Senegal and recently Namibia, coupled with the collapse of the authoritarian one-party model throughout Latin America, the Pacific Rim, Eastern Europe, and the former Soviet Union itself, certainly constitute an important influence on the spread of this transition throughout the African continent. 5 The promotion of a balanced economic development in all parts of the continent has, moreover, recently obtained a firm basis in the 1991 Abuja Treaty Establishing the African Economic Community (AEC). 6 That the AEC forms an integral part of the major regional organization, the Organization of the African Unity (OAU), is evidence of the fact that the political integration of Africa is perceived as a concomitant of its economic integration. At the same time, an important element of this process is the elimination of the so-called "Three Lenses Syndrome": for generations Africans have viewed first themselves, secondly Europe, and thirdly the rest of the world through lenses originating from Western Europe, or in the other words from Africa's former colonial masters. European integration emanated from peculiarly European circumstances and the 3. While developed states have, on average, 285 scientists and engineers for each 10,000 members of the population, Africa has fewer than IO scientists and engineers for every 10,000 persons. See Tolba, "Building an Environmental Institutional Framework for the Future", 17 Environmental Conservation 105, at 109 (1990). 4. See Development of Marine Science and Technology in Africa. Working Group of Experts Sponsored by ECA and UNESCO. Addis Ababa. 5-9 May 1980, Annex 3, at 15 (UNESCO Reports in Marine Science No. 10, 1980). 5. Apart from Namibia, instances of recent democratic change are provided by Gabon, Nigeria, Benin, Mozambique, Angola, Ethiopia and Congo, while a number of other states, e.g., Cape Verde, Cote d'Ivoire, Guinea, Lesotho and Zambia are undertaking or actively considering democratic reforms. Cf. Cohen, "Democratic Change in Africa", I US Department of State Dispatch 271-2 (1990); Von Burgsdorff, "Consociational Democracy: A New Concept for Africa", ACP-EC Courier 61-3 (1992 No. 134). 6. 30 International Legal Materials (hereinafter: ILM) 1241-82 (1991); and Draft Protocol on Relations Between the AEC and the Regional Economic Communities (1992). Maritime Spaces of African States 3 specific global context in which it was pursued. African integration will have to develop within a specifically African context which should be free from the Three Lenses Syndrome. 7 Africa undoubtedly played a major role in the development of the new oceans regime as laid down in the 1982 UN Law of the Sea Convention (LOS Convention). Among others, Kenyan Ambassador Njenga was a first proponent of a 200 mile exclusive economic zone (EEZ) in 1971, while Minister Warioba of Tanzania, now followed by Ambassador Jesus of Cape Verde contributed significantly -through their Chairmanship of the Preparatory Commission for the International Sea Bed Authority and for the International Tribunal for the Law of the Sea (PrepCom ISA/ITLOS) - to the progress in work on the deep sea-bed regime. 8 But due to their numerous drawbacks, African states have only now started to consider the specific means required for implementation of the new oceans regime in practice. Keeping in mind that such implementing measures - involving African solutions to the African crisis - are still to culminate in practice in the next century, I will address various problems pertaining thereto in six sections dealing with: maritime spaces within the national jurisdiction of African states; marine environment and the sustainable development of African states; marine fisheries; mineral resources; maritime transport and communications; and marine science and technical assistance. In each field the role of cooperative undertakings of African states will be highlighted. I will end with Concluding Observations and Final Remarks. MARITIME SPACES WITHIN THE NATIONAL JURISDICTION OF AFRICAN STATES The 1982 LOS Convention, which provides a comprehensive legal framework for the new oceans regime, has - as the Annex to this lecture shows - so far been ratified by 22 (including 10 least developed) of the 38 African coastal states and 4 (all least developed) of the 15 African land locked states. These 26 African states (including 14 least developed) thus amount to over half of the ratifications so far obtained from 49 developing states, Iceland, and Yugoslavia. If the remaining African coastal states (16) and land-locked states (II) acceeeded to the Convention, they would include 16 (7 and 9, respectively) least developed countries. As shown in the Annex, in accordance with the LOS Convention and existing customary law, 29 of the 38 African coastal states have at present territorial sea (TS) of a maximum of 12 miles which is possessed by as many as 127 states in total. Moreover, 10 of these 29 African states also claim the contiguous zone (CZ) of a maximum of 24 miles (8 states of 24 miles and 2 states of 18 miles). The CZ is possessed by totally 38 states, with 33 (including 8 African states) claiming it to a maximum 24 mile limit. 26 African states belong to totally 103 states which presently possess the 200 mile resource oriented zones. Most (23) of these African states adhere to a 200 mile EEZ which was established 7. See Adebayo Adedeji, "The European Integration Process: Lessons for Africa", ACP-EC Courier 50-3 (1991 No. 125). 8. For a detailed account of the African contribution, see Jesus, "Practice of the African States and the 1982 Law of the Sea Convention", in Proceedings of the 14th Annual Seminar of Virginia Center for Oceans Law and Policy, Cascais, Portugal, 19-22 April 1990 (in press); Warioba, "African State Practice and the 1982 Law of the Sea Convention", id.; Kibola, "A Note on Africa and the Exclusive Economic Zone", 16 Ocean Development and International Law (hereinafter: OOIL), 369-80 (1986); Rembe, Africa and the International Law of the Sea (1980); Economic Cooperation Among Developing Countries in Marine Affairs, UN Ooc. ST/ESA/191 (1987). For analysis of individual states' practice, see, e.g., Bula Bula, "Le nouveau droit de la mer dans Ie contexte economique du Zaire", Lettre de l'IRES (Institut de Recherches Economiques et Sociales - Zaire), Nos 11-12 (1987); Mtango and Weiss, "The Exclusive Economic Zone and Tanzania", 14 OOIL I-54 (1984); Obinna Okere, "Nigeria's Exclusive Economic Zone and Freedom of Navigation", 13 OOIL 535-41 (1984). 4 Ocean Affairs and the LOS in Africa by 82 states in total, while only 3 African states claim merely a 200 mile exclusive fishery zone (EFZ) which was proclaimed by 21 states in total. Territorial sea of more than 12 miles is still claimed by 9 African states (including 5 claiming a 200 mile limit), of which, however, 5 (Angola, Cameroon, 9 Nigeria, Somalia, and Togo) already ratified the LOS Convention. Of 2 other non party 200 mile TS claimants, Liberia is in the process of considering ratification and Benin is drafting legislation on a 200 mile EEZ. 3 African states (Cape Verde, Comoros, and Sao Tome and Principe) are actual, and 2 (Mauritius and Seychelles) are potential claimants of an archipelagic state regime which is applicable (actually and potentially) to some 24 states in total. As the Annex further shows, 6 African states claim the continental shelf (CS) up to 200 miles or to the outer edge of the continental margin extending beyond this limit, while 13 other African broad-margin states qualify as potential claimants to such effect. One (Ghana) of such potential claimants has so far proclaimed only the 200 mile CS, while the other 3 such states (Kenya, Sierra Leone, and South Africa) still proceed on the traditional criterion of 200 meter isobath coupled with an exploitability test. These traditional criteria are also followed by 4 narrow-margin states (Egypt, Gambia, Nigeria, and Sudan), and a 200 mile CS limit is claimed by I more state (Cote d'Ivoire). Under the LOS Convention and existing new customary law, a distance of 200 miles forms the minimum CS limit. However, the exact determination of the outer continental shelf limit beyond 200 miles has no foundation yet in the rules of customary law, and is a highly complicated technical issue raising difficulties for even industrialized countries among the 45 broad-margin states in total. The respective maritime spaces of African states have so far been subjected to only 10 maritime boundary delimitations (3 in the Mediterranean and 7 in the African region), of which 4 were achieved through third-party procedures. 10 The latter relate to Tunisia/Libya, Libya/Malta, Guinea/Guinea-Bissau, and Guinea-Bissau/Senegal delimitations, of which the first two were referred to the International Court of Justice (ICJ), and the latter two to arbitration. The Guinea Bissau/ Senegal dispute was also subsequently referred to the ICJ. The other 6 (Italy-Tunisia, Cameroon-Nigeria, Gambia-Senegal, Kenya-Tanzania, Mauritania-Morocco, and Mozambique Tanzania) are delimitation agreements achieved through direct negotiations between the parties. As Ambassador Adede emphasizes, the 7 maritime delimitations in the African region share several common characteristics, which include the use of a combination of equidistance and a system of parallels of latitudes so as to enable the parties to extend their jurisdiction seaward to the maximum extent permitted by international law. 11 Another characteristic is that the boundary lines are designed to accommodate the interests of other potential delimitations in the region. The above practice is evidence of the fact that: "African states now look to the Convention as a basis for the enactment of their laws and as a standard measure for determining their maritime claims". 12 This trend is particularly appreciable in that the LOS Convention reflects an adequate perception of an integrated (transsectoral) concept of modern ocean development. However, since by and large African states face serious shortages in respect of marine science and technology, 9. Cameroon claims only a 50 mile territorial sea presumably because it is zone-locked on a concave coast by Nigeria, and especially by the island of Bioko (Fernando Poo) which belongs to Equatorial Guinea. See Prescott, "The Role of National Political Factors in the Management of LMEs: Evidence From West Africa", in Proceedings of the Conference on The Large Marine Ecosystem (LME) Concept and Its Application to Regional Marine Resource Management. Monaco. 1-6 October 1990 (in press). 10. For detailed analysis of three Mediterranean delimitations, see Scovazzi, Reports Nos. 8-6, 8-8, and 8-9, and of seven exclusively African delimitations, see Adede, Reports Nos. 4-1/4-7, as well as regional overviews by both authors, in International Maritime Boundaries, Vols I and 2 (Charney and Alexander eds., 1992). See also Tanja, "The Contribution of West African States to the Legal Development of Maritime Delimitation Law", 4 Leiden Journal of International Law 21-46 (1991). 11. Adede, "Region IV: Africa", in I International Maritime Boundaries, supra note 10. 12. Warioba, supra note 8. Maritime Spaces of African States 5 appropriate infrastructure, and expertise in integrated marine policy-making, planning and management, making full use of opportunties offered by this Convention still requires intensified efforts on the part of these states at national, regional and global levels. The activating of legislative and other measures by African states aimed at implementing the LOS Convention in various sectors of ocean activities is gradually promoted by the relevant organizations discussed below, such as the Regional Seas Programme (RSP) of United Nations Environment Programme (UNEP) in the field of the marine environment protection, or the OAU and the UN Economic Commission for Africa (ECA) in the field of fisheries. A notable instance of a transsectoral approach to ocean policy and management is provided by the Indian Ocean Marine Affairs Cooperation (IOMAC) which - within its interregional framework - includes both the East African land-locked and coastal states bordering the Indian Ocean. The IOMAC cooperative system which has been operating since 1987 has now been formalized in the Agreement on the Organization for IOMAC which was adopted by the IOMAC 2nd Ministerial Conference held in Arusha, Tanzania in September 1990. The Agreement expressly recognizes the potential of the Indian Ocean resources "for contributing to the economic and social development of the States of the region, and for promoting cooperation among them as well as between them and other States, in the light of the new ocean regime embodied in the United Nations Convention on the Law of the Sea" (preamble). 13 The fields of IOMAC cooperation include: marine science, ocean services and marine technology; living resources; non-living resources; ocean law, policy and management; marine transport and communications; marine environment; and other fields relevant to cooperation in marine affairs (Article 4(2)). The transsectoral initiatives of West African countries have recently obtained an important stimulus from the Meetings of the Group of Experts on the Law of the Sea of the State Members of the Zone of Peace and Cooperation of the South Atlantic convened by the UN Office for Ocean Affairs and the Law of the Sea (UNOALOS). The 1st such Meeting, which was held in Brazzaville in 1990, gave an opportunity to legal experts of the region, including those from 17 West African states, to review their national legislation implementing the LOS Convention and to focus attention on their common needs in this field. 14 As the South Atlantic states still lack such comprehensive legislation, although they have a number of basic acts on various maritime spaces and fragmentary sectoral regulations at their disposal, the I st Brazzaville Meeting identified harmonization of national legislation in the context of the provisions of the LOS Convention and the reviewing of national maritime policies with a view to developing regional cooperation as priority areas for further action. The 2nd Meeting of that Group of Experts, which was held in Montevideo in 1991, concentrated on specific proposals to respond to the needs identified during the I st Meeting and outlined a number of concrete measures which should be taken, including those with respect to marine legislation, policy and planning. 15 The 2nd Montevideo Meeting showed that one of the major needs of the member states was to have complete up-to-date information related not only to their basic laws, but also implementing regulations and decisions and even maritime development plans. Therefore, the Meeting recommended the identification and use, in cooperation with UNOALOS, 13. See Kwiatkowska, "The Role of Regional Organizations in Development Cooperation in Marine Affairs", in Implementation 0/ the Law 0/ the Sea Convention Through International Institutions 38, at 83-137 (Soons ed., 1990); Kwiatkowska, "The 1990 Agreement on the Organization for IOMAC", 6 International Journal 0/ Estuarine and Coastal Law (hereinafter: IJECL) 133-44, including text of the Agreement (1991). 14. See Report of the 1st Meeting of the Group of Experts on the Law of the Sea of the States Members of the Zone of Peace and Cooperation of the South Atlantic, Brazzaville, Congo, 12- 15 June 1990 (UNOALOS), which provides a unique source of information on the detailed measures taken and planned by 17 West African states in implementation of the LOS Convention. 15. See Report of the 2nd Meeting of the Group of Experts on the Law of the Sea of the States Members of the Zone of Peace and Cooperation of the South Atlantic, Montevideo, Uruguay, 3-6 April 1991 (UNOALOS). 6 Ocean Affairs and the LOS in Africa of national focal points that would constitute the basis for a regional network enabling exchange of the respective information and, thereby, the development of cooperation. MARINE ENVIRONMENT AND THE SUSTAINABLE DEVELOPMENT OF AFRICAN STATES The efforts to integrate the protection of the environment, including the coastal and marine environment into socio-economic development, which have been promoted by UNEP for two decades, have been importantly intensified in Africa as a result of preparations for the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, Brazil. While the ist 1985 African Ministerial Conference on the Environment (AMCEN) - sponsored by UNEP in cooperation with the OAU and ECA - adopted the Cairo Programme of Action with a view to halting and reversing the degradation of the African environment (including the marine environment), the 1989 ECA Regional Conference on Environment and Development in Africa, held in Kampala in preparation for UNCED, was the first conference on interministerial and intergovernmental policy priorities and goals for achieving sustainable development within and among the African countries. 16 The 1989 Kampala Declaration on Sustainable Development in Africa, basing itself on the Report on Our Common Future of the World Commission on Environment and Development (WCED) and the UNEP Environmental Perspective to the Year 2000 and Beyond, envisaged the period (of years to decades) of transition towards sustainable development and called upon the respective international organizations to assist African states in implementing the Kampala Agenda for Action at the national and subregional levels. The two further significant meetings followed in 1991, i.e. the OAU Bamako Pan-African Conference on Environment and Sustainable Development and the Cairo 1st Regional African Ministerial Preparatory Conference for the UNCED. 17 Whereas the Bamako Commitment on Environment and Development includes management of marine environment and coastal areas into the priority actions (part V.4), the Cairo Common Position on the African Environment and Development further defines this priority action area (section I.D). Noting, inter alia, that marine resources have not been adequately exploited by African countries, while foreign companies proceed with such exploitation without due regard to international rules, the 1991 Cairo Common Position reaffirms the commitment of African states to the UNEP RSP, as well as reemphasizes the urgent need of immediate international action and cooperation with a view to eliminating and controlling the major threats of pollution and depletion of marine resources. The Common Position also outlines the fundamental strategies to be pursued for the UNCED Rio Declaration and Agenda 21. In addition, the 1991 Bamako Pan-African Conference adopted a Resolution on the 1968 Algiers African Convention for the Conservation of Nature and Natural Resources which is in the process of important revision by the OA U. The African Common Position on Environment and Development has been subsequently consolidated at the 2nd Regional African Ministerial Preparatory Conference for the UNCED held in Abidjan in November 1991. The Abidjan Common Position lists "management of marine and coastal resources as well as the protection of a marine environment" among Africa's priority programmes (para. 45) and calls on the international community to participate effectively in the protection and restoration of the African environment. In addition to this unprecedented activating of the environmental concerns of African states, 1991 was declared by the OAU as African Year of the Environment, and the years 1991-2000 have been proclaimed by AMCEN as African Decade for the Protection of the Marine and Coastal Environment. An overall treaty basis for these concerns is now provided for by the 1991 OAU 16. For the documents of Cairo and Kampala Conferences, see 15 Environmental Policy and Law (hereinafter: EPL) 71-2 (1985), and 19 EPL 218-23 (1989). See also Regaining the Lost Decade - A Guide to Sustainable Development in Africa (UNEP/OAU 1991). 17. For the documents of the Bamako and Cairo Conferences, see 21 EPL 99-100 and 253-8 (1991).

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