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Despite African states showing a growing support of UNCLOS through ratification of the convention, their implementation has shown a pattern of selectiveness that inherently disadvantages matters of environmental conservation and protection.

The Implications of UNCLOS: Environmental Issues in African Nations

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Implementation of UNCLOS in African Nations 1

OCCASIONAL PAPER

NELSON CHEGE M.

Nov 2016.

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The Implications of the Implementation of UNCLOS: A review of the approach to resolving

environmental Issues in African Nations.

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ABSTRACT

Despite African states showing a growing support of UNCLOS through ratification of the

convention, their implementation has shown a pattern of selectiveness that inherently

disadvantages matters of environmental conservation and protection. Most of the elements of

UNCLOS that have been implemented all seem to concern issues of jurisdiction and territory

expansion. While this paper highlights some of the efforts African States have made in the

implementation of UNCLOS, it primarily looks at some of the ways that different states have

overlooked matters of the environment during implementation.

Implementation of UNCLOS in African Nations 2

INTRODUCTION

The vastness of the sea has always been a source of fascination and wonder for people

throughout history. The need to discover what lies in the waters beyond land has led multiple

people to set out and explore it. This is one of the activities that ultimately led to the realization

of the extensive resources that it possesses. The discovery that the waters could provide the

treasure that is marine resources, led to everyone wanting a piece of the cake. The scramble for

the biggest share of the resources that the sea was offering led to a situation of lawlessness,

conflict between nations, destruction of marine environment and the lack of the freedom of

scientific research and exploration. These were some of the problems that led to the need of

some sort of rule of law on the ocean and that all relevant institutions and government would

respect and uphold, a problem that led to the eventual signing of the 1982 United Nations

Convention on the Law of the Sea (UNCLOS). 1 The aforementioned UN convention is an

instrument that came to be after deliberation conferences that were held in 1958 (UNCLOS I),2

1960 (UNCLOS II)3 and 1973 (UNCLOS III)4 which led to the signing of the convention in 1982.

When the first conference was being convened in 1958, most of the African States were still

under the rule of different colonial powers which made it impossible for these states to actually

be in these proceedings. This means that African support for the four 1958 Conventions on the

1 United Nations Convention on the Law of the Sea, done Dec. 10, 1982, 21 I.L.M. 1261 [hereinafter UNCLOS]. 2 First United Nations Conference on the Law of the Sea, 1958 (Held in Geneva, Switzerland). 3 Second United Nations Conference on the Law of the Sea, 1960 (Held in Geneva, Switzerland). 4 Third United Nations Conference on the Law of the Sea, 1973- 1982 (Held in New York, U.SA)

Implementation of UNCLOS in African Nations 3

Territorial Sea and Contiguous Zones5, the High Seas6, the Continental Shelf7 and Fishing and

Conservation of the Living Resources of the High Seas8 was considerably low. For instance, 11

out of the 54 states ratified the Convention on Fishing and Conservation of the Living Resources

of the High Seas.

More than three decades after the enactment of UNCLOS (1982), the attitude of African Nations

has completely changed. Africa has made some of the biggest developments of UNCLOS through

the process of ratification and the enactment of laws into their own national legislature, in a bid

to stay in line with the provision of UNCLOS. Despite all of these however, there are instances of

poor or selective implementation of UNCLOS by African nations that calls for the need for an

analysis of whether there is a need to overhaul the convention or come up with systems that

allow the very purpose of UNCLOS, which is the conservation of marine biodiversity and solve

international disputes amicably, to reflect in the decisions made by most of the affected African

Nations.

THE PLACE OF LAW OF THE SEA IN ENVIRONMENTAL PROTECTION

Arvid Pado9, dubbed the father of the Law of the Sea Conference gave an electrifying speech at

the third UNCLOS conference where he noted that the seabed constitutes pat of the common

5 The Territorial Sea Convention, made up of 32 articles, was adopted on 27 April 1958 and entered into force on 10 September 1964 6 The High Seas Convention, made up of 37 articles, was adopted on 27 April 1958 and entered into force on 20 September 1962 7 The Continental Shelf Convention, made up of 15 articles, was adopted on 26 April 1958 and entered into force on 11 June 1964 8 The Fisheries Convention, made up of 22 articles, was adopted on 26 April 1958 and entered into force on 20 March 1966 9 February 12, 1914 – June 19, 1999. He was a Maltese and Swedish diplomat who played vital roles in the reformation of Law of the Sea.

Implementation of UNCLOS in African Nations 4

heritage of mankind. This is a statement that has been construed to mean that the elements and

resources that are offered by the sea should be protected from over exploitation by individual

states or corporations. This is one of the things that has led to the inclusion of environmental

preservation in the Law of the Sea Convention and the completion of the negotiations. The

concept of ‘common heritage of mankind,’ has been mentioned in Article 136 of the UNCLOS10.

The creation of this legal document was therefore, done with the need to ensure the preservation

of marine biodiversity as has been shown in the preamble.

‘Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment’ 11

This clause was included due to the many instances of the over exploitation of natural resources,

pollution on the coastal areas, overfishing and dumping that continued to occur on the seas

before the first UNCLOS12 was convened. The convention therefore, has a number of provisions

that are meant to look into the issue of conservation and protection of marine life. Section II of

UNCLOS for instance, looks into the issue of conservation and management of the living

resources of the high seas. There is also a mention of how nations and individuals should ensure

there is a protection of marine life, in every level and section of the seas. The regulation of marine

pollution however, has been slow to develop due to the issues of limited interest by the states in

10 Common heritage of mankind. Article 136, UNCLOS (1982). 11 Preamble. United Nations Convention on Law of the Sea (1982). 12 1956. (Geneva).

Implementation of UNCLOS in African Nations 5

this particular problem as well a limited understanding of the scientific and oceanic processes

that are needed in this issue.13

PERSPECTIVE OF AFRICAN NATIONS ON THE REGULATION OF LAW OF THE SEA

Although there was an earlier reluctance by African nations to follow the opinions of the

convention, there has been a gradual change where African states have made the most impact

in terms of ratification. Only two14 members states (Djibouti & South Sudan), of the United

Nations in Africa have not signed, ratified or acceded the convention which show a significant

increase in the recognition and respect of this convention. As proposed and advised by the

convention most of the states have even implemented their own maritime laws. For instance,

Kenya has a Kenya Maritime Authority Act15, South Africa has a South African Maritime and

Aeronautical Search and Rescue Act16 while Angola has a Maritime Zones Act17, all aimed to

provide national legislation in relations to the law of the sea. These actions are admirable as they

show a respect for international law and propositions. However, the implementation of UNCLOS

in most of the African nations can be seen to be selective and quite self-seeking. Like other

regions, there is a clamor for the resources in the ocean in Africa and nations have realized that

they can use the convention to expand and protect their own borders through a process of

delimitation. The latter is a process of determination of limits of boundaries within the different

zones as provided by the convention.

13 See O’Connell, The International law of the Sea (Oxford, 1984) ii Ch 25: Churchill and Lowe, The Law of the Sea (3rd edition, Manchester, 1999) Ch 15 14 Djibouti and South Sudan. Ethiopia has signed the Convention but has not ratified it. 15 2006 16 01 February 2002 17 2010

Implementation of UNCLOS in African Nations 6

a. DELIMITATION and POLLUTION

UNCLOS spells out three zones on the sea; the territorial zone which is 12 nautical miles18 from

the base line of the sea, the contiguous zone which is 24 nautical miles19from the baseline of the

state and the economic zone which has been calculated as being 200 nautical miles20 from the

territorial baseline of the sea. One of the most delimited zones by African nations is the territorial

sea where the coastal state exercises complete control, jurisdiction and ownership. This has

especially been done because it allows the state to have control of their own security and

resources of the waters that closely surround them. The ratification of UNCLOS by many African

states therefore, can be seen as a push for territorial claim of jurisdiction. Examples of an

unrealistic and inherently unfair push for jurisdiction and territory can be seen in Benin, Liberia,

Congo and Somalia which are all states that are claiming a 200 nautical mile territorial sea,

instead of the recommended 12 nautical miles.

A lack of care for issues of environmental protection as well as a sign of selective implementation

of UNCLOS has been seen by the lack of delimitation of the contiguous zones by African states.

The contiguous zone is basically, a band of water that covers the area from the outer edge of the

territorial sea and reaches 24 nautical miles from the baseline of the coastal state. This state has

limited control on matters of preventing infringement on immigration laws, sanitary regulations

and environmental destruction within its borders. Out of the 54 African nations, only two

(Gambia and the Sudan) have delimited the contiguous zones. They however, only claim 18

18 22.2 km; 13.8 mi 19 44.4 km; 27.6 mi 20 370.4 km; 230.2 mi

Implementation of UNCLOS in African Nations 7

nautical miles instead of the recommended 24 nautical miles. The failure of African states in the

delimitation of their contiguous zones can therefore, be seen as direct irresponsibility when it

comes to enforcement of health and pollution jurisdiction. Delimitation could help prevent in the

combating of illegal environmental practices such as dumping and over-exploitation that is

currently affecting the African region. An example would be the issue of pollution by

Hydrocarbons that in the area surrounding Madagascar.21 The issue of delimitation can be partly

blamed on selective implementation of UNCLOS by African Nations as well as the vagueness of

UNCLOS. Although the convention provides some guidance22 on the issue of delimitation, it does

not provide a preferred way of undertaking the process. Although special circumstances do play

a role in the delimitation of boundaries, UNCLOS has left the burden to the states claiming the

circumstances to prove their existence. This is something that ultimately causes a situation of

disinterest by African nations due to the technicality of the process and the lack of reward for

undergoing the process itself.

b. OVER-FISHING

Overfishing is an activity that is quickly emptying out the seas, in a speed that nature can

replenish it23. This is not only affecting the biodiversity balance but also plays a role in the in the

threat to the food security of millions of people from African Nations. Article 6124 and 6225 of

21Faire face à la pollution marine par les hydrocarbures, 2012. http://madagascar-tribune.com/Faire-face-a-la-pollution-marine,18034.html 22 Article 15 UNCLOS 1982 (Overlapping claims on territorial sea). 23 GreenPeace Africa. What we do:Defening Our Oceans. http://www.greenpeace.org/africa/en/campaigns/Defending-Our-Oceans-Hub/ 24 Conservation of Living Resources. UNCLOS (1982). 25 Utlization of Living Resources. UNCLOS (1982).

Implementation of UNCLOS in African Nations 8

UNCLOS (1982), are especially relevant to the issue of overfishing on the Exclusive Economic

Zone.

About two thirds of the countries in Africa have access to the sea. Some of these countries use

this access for activities of fishing and tourism. The level of fish however, is constantly

plummeting. For instance, fishermen on the coastal region of Kenya catch about 3 kilograms of

lobster, per trip, as compared to 28kgs in 198026.

The waters off West Africa have been determined as being amongst the most fertile in the world

due to the phenomenon of upwelling. These resources are constantly assumed to be

inexhaustible but due to the heavy amount of fishing, the stock of fish in this water is dwindling

and the people in the region continue to struggle to make a living. There has been illegal,

unregulated and unreported fishing within the EEZ of the waters of Guinea and this has been

seen to have been a collusion of government of officials with other nations such as China.

Some types of fish have even almost gone extinct in the region. For instance, grouper fish have

not been sighted in the Comoros Islands since the 1970’s and the haul of South Africa’s fish has

significant dwindled as compared to the numbers in the 1950’s. Although the issue of overfishing

has been mentioned in UNCLOS (1982), different African nations dismiss it which therefore,

shows another aspect of selective implementation of the convention. The coastal wetlands

therefore, have had little protection and have become quite vulnerable and very little is being

done about it. The assumption is that marine life conservation is a donor problem and therefore,

26 A Sea of Riches. The Economist, 2012. http://www.economist.com/node/21547867

Implementation of UNCLOS in African Nations 9

the governments display extremely poor governance when it comes to research and other

aspects of fighting for the preservation of marine biodiversity.

RECOMMENDATIONS

1. Prioritization of Environmental Conservation

One of the main reasons the provision related to environmental matters in UNCLOS is not been

fully implemented by different African nations is due to a prioritization of jurisdiction and political

matters, in relation to the convention. For instance, the acquisition of boundaries through

delimitation seems to only be favored when a state can gain strategically and politically from the

acquisition. The purpose of protecting the environment around a delimited region is viewed as a

burden, one that Africa would rather leave to the donor states. Industrial fishing has been one of

the most felt effects of the lack of this prioritization. There has been a number of agreements

made by the European Union and China with African nations to move fishing boats into its waters

so as to fulfill the growing global demand. One such agreement27 was between Mauritania and

China which has rendered the former incapable of regulating fishing, regardless of the catch

becoming unstainable. This has been seen, by critics, as a failure by Africa, to protect its

resources. There should be an implementation of viable alternatives to overfishing when it comes

to sustaining economic and even political needs. This can therefore, only be done through an

elimination of destructive fishing practices as well as reasonable implementation of all aspects of

Law of the Sea as mentioned in the convention’s Preamble28.

27 Chinese firm, ‘Poly Hon Done Pelagic Fishery’ signed an offshore fishing license with the Mauritanian government (2011). 28 Preamble of the United Nations Convention on Law of the Sea (1982).

Implementation of UNCLOS in African Nations 10

2. Considering Agenda 21

Agenda 21 is non-binding and voluntary action plan of the United Nations, in matters of

sustainable development and was formed in the 1992 Earth Summit.29 Agenda 21 introduces new

on environmental conservation that are not found in UNCLOS (1982). For instance, it emphasizes

on an integrated and precautionary approach to the issue of protection of marine and coastal

environment. UNCLOS on the other hand, only focuses on the control of sources of marine

pollution and does not fully integrate the issues of the ecosystem. Agenda 21 calls for the linking

of the Exclusive Economic Zone with Sustainable Development Goals (S.D.G)’s as well as with the

sustainable use of marine life resources. Agenda 21 however, cannot amend UNCLOS and is not

binding to any state or organization, despite offering a revolutionary and updated approach to

issues of environmental conservation. Some of the problems that African states have been seen

to face is the lack of a convention that encompasses or the processes and technicalities of

environmental conservation. It would therefore, be prudent for these nations to take Agenda 21

into consideration so as to get a much more focused approach to solving issues. There is

therefore, a need to relate Agenda 21 and UNCLOS so that the duty to protect and preserve the

environment can become much more meaningful and relatable to the different states within

Africa.

29 UN Conference on Environment and Development) held in Rio de Janeiro, Brazil, in 1992.