REFLECTIONS ON AFRICA AND THE LAW OF THE SEA REGIME

PART 1

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Editor’s Note: On 25th July 2015, two historic events took place at the Headquarters of the Africa Union. The first was the launch of the Decade of African Seas and Oceans (2015-2025). The second was the lunch of the African Day of the Seas and Oceans, which is to be celebrated each year on 25 July. These mutually reinforcing events are part of the landmarks for implementing the African Integrated Maritime Strategy 2050 (AIM Strategy 2050).

CEMLAWS Africa participated in the programmes, and dedicates this article to the launch of the events.  Part I of this publication, reflects on the role of African States in the evolution of the United Nations Convention on the Law of Sea, while Part II, which will be published in the next issue, critically assesses how African States have fared in new law of sea regime.  This piece is culled from an earlier publication in the Ocean Yearbook 2012, co-authored by CEMLAWS Africa Chair, Professor Martin Tsamenyi, and its Executive Director, Doctor Kamal-Deen Ali. 

Birth of a New Regime for the Oceans

After almost 10years of protracted negotiations at the Third United Nations Conference on the Law of the Sea (UNCLOS III- 1973-1982), the United Nations Convention on the Law of Sea (LOSC) was adopted and opened for signature on 10th December 1982. The importance of the Convention as a global instrument especially in the context of the 1970s is captured in key phrases in the preamble to the Convention that it will contribute to the “maintenance of peace, justice and progress for all peoples of the world”; will “promote the peaceful uses of the seas and oceans”; and contribute to goals of “realization of a just and equitable international economic order.”

At the dawn of the negotiations that yielded this new ocean regime, most African States were only about a decade old and were struggling with the rudiments of nation building and international relations. By 1970 also, a good number of African States had started experiencing internal strife as the consensus that supported the struggle for independence was adrift in the face of socio-economic difficulties and unaccountable governance. It was only logical that African States, in comparison with their European, American and even Asian counterparts, would lack the requisite technical and legal expertise to conduct favourable negotiations in respect of a complex subject like the law of the sea.

Nonetheless, Africa’s role in demanding, influencing and negotiating outcomes suitable to its interest in the lead up to the adoption of the LOSC is noted as one of the greatest achievements of developing countries in international politics. Indeed, the LOSC represents the culmination of efforts by African States together with developing States to reform the post-colonial legal and economic order and to guarantee access to the resources of the ocean for development. African States undertook this reformation agenda initially within the Organization of African Unity (now the African Union) and subsequently on the platform of the Group of 77. 

Thirty years on, the fundamental question which this article seeks to answer is whether the expectations of the African States in the 1970s and 1980s that came with the LOSC have been achieved? If not what have been the impediments and what can African States do to strategically position themselves to benefit from the new ocean regime?  This paper summarises the contribution of African States to the birth of the law of sea regime while Part II would evaluate and assess if African States have in fact benefit (or is benefiting) from the prevailing maritime regime. 

Fighting the African Course – Demands at the Law of Sea Conference 

In terms of societal ordering, law may be seen as an instrument that guarantees interest and legitimate expectations. In inter-State relations, international law is a culmination of various demands and values that are synthesised through acceptable norms of the comity of nations. This distillation of international law is trite in a close examination of the law of the sea, starting with the doctrinal postulate of Mare Liberum by Dutch jurist and father of international law, Hugo Grotius in 1609, through to the processes that resulted in the LOSC. African States brought to the negotiation at Third UN Conference on the Law of Sea (UNCLOS III) issues and demands that were informed by African interests and peculiarities. 

The regime of the Exclusive Economic Zone (EEZ) came out as the landmark contribution and achievement of African States.  In 1972, the Yaoundé Regional Seminar declared the right of African States to establish an economic zone beyond the territorial sea in which the States shall have exclusive jurisdiction for the purpose of control and exploitation of the living resources. In the same year at the Geneva Session of the United Nations Seabed Committee, African States led by Kenya presented to the Committee ‘Draft Articles on an Exclusive Economic Zone Concept.’ This was followed up with the Addis Ababa and Mogadishu Declarations by the Council of Ministers of the OAU that “African States recognised the right of each coastal State to establish an exclusive economic zone beyond their territorial seas whose limit shall not exceed 200nm, measured from the baseline establishing their territorial seas.” 

Thus by the time UNCLOS III convened in Caracas in 1974, for its first substantive session, the EEZ had received endorsement from African and Latin American States, along with other developing States. To these States the EEZ will ensure greater and equitable access to marine living resources. There was a major opposition to the EEZ concept from other States. An EEZ regime was seen as adverse to the long-distance fishery interest of some States. Most developed States also feared that the claim to EEZ will serve as a fetter on freedom of navigation and other military uses of sea. Despite the opposition to the concept, it received general acceptance such that far before the UNCLOS III was concluded, the EEZ was considered as crystallizing into a rule of customary international law. The EEZ later received detailed expression in Part V of the LOSC.

Two other important demands of African States that has found cogent expression in the LOSC are the provision made for the participation and enjoyment rights in the law of sea regime by landlocked States, and the designation of seabed outside the EEZ and continental shelf as “The Area”. This taxonomy represents the demands of African States for the preservation of the seabed beyond national jurisdiction as the common heritage of mankind.