HUBERT DENNIS DEACON: SA has failed in observing UN Convention on the Law of the Sea

The notion of a state is that it occupies a part of the earth’s surface demarcated by internationally accepted borders within which the state has jurisdiction over people and things superior to all other states.

The UN Convention on the Law of the Sea (Unclos) defines maritime zones adjacent to coastal states with internationally recognised borders within which the coastal state has jurisdiction over people and things superior to other states. It is thus not absurd to consider that coastal states have “ocean territory”. 

An important feature of a coastal state’s responses to gaining the “ocean territory” defined in Unclos has been to establish governance arrangements to coherently govern their “ocean territory” and participate in the international governance of the nonmaritime zones or the high seas. 

SA is a coastal state with offshore possessions and “ocean territory” adjoining three oceans. SA’s “ocean territory” is larger than its terrestrial territory and its coastal border longer than its land border. However, the country’s constitution defines its “terrestrial territory” as well as the arrangements to govern it (the three tiers of government, national, provincial and municipal tiers of government).

SA’s “ocean territory” is not addressed in the constitution but is defined in the Maritime Zones Act of 1994, though without similar provisions for its governance. 

Governance arrangements ashore between the tiers of government are established and developing. There are however no coherent arrangements to govern the “ocean territory” or, as it is even sometime referred to, our “10th province” with its six separately defined zones, each with unique jurisdictions.

There is little to no understanding of this treacherous environment, in which man will perish without technological innovations, or of the unique international nature of the “ocean territory” where, for example, foreigners have right-of-way not allowed ashore. 

Our history is full of opinions, proposals and plans to manage/administer/govern our adjoining seas and grow and develop our maritime sector. Reports abound that pirates reign at sea, that there is little hope of search and rescue at sea, and that our fish stocks are being recklessly plundered because of naval budget cuts.

We have clearly not grasped the crux of Unclos and the need for coherent and appropriate arrangements to cost-effectively govern our ocean territory.

Great plans have been made for our “blue economy” and Operation Phakisa launched and financed to build it, which would ostensibly unlock more than R150bn to be added to SA’s GDP and create up to 1-million jobs. Yet we are halfway through Phakisa and there is little evidence of being halfway to any of these goals. 

The obvious importance of the oceans for social and economic development, trade, climate change, national defence and civil security has led to numerous international treaties, conventions and agreements on how to use and govern the seas.

Unclos states, and particularly coastal states, have responded to these developments. Clearly SA needs to grasp the significance of our “ocean territory”. We must admit that the wasted resources from chaotic administration and lack of growth and development is due to an absence of coherent governance.

This lack that is manifested in using billion-rand ships armed with 76mm guns and over-the-horizon missiles to police fishermen armed with grappling hooks and lead sinkers.

A lack that is evident in the collapsed shipping register, a bizarre pollution mitigation arrangement in which one authority is responsible for combating the pollution while the oil is still in the ship’s hull and a different authority when it leaks into the sea. 

We have clearly not grasped the crux of Unclos and the need for coherent and appropriate arrangements to cost-effectively govern our ocean territory. We must stop trying to shoehorn its governance into terrestrial arrangements. We must stop the absurd duplication and waste of resources in our governance arrangement.

If we continue asking the wrong questions, we will continue solving the wrong problems. What SA does not need is another commission or more seminars to investigate the problem.

There is no need to reinvent the wheel — tried and tested governance models abound. What SA needs is for the heads of departments with maritime interests to get around the same table.

Strong leadership must develop a common rational understanding of the issue and a way forward, publish a green paper, take note of factual comments and proposals, make the necessary policy provisions and start governing our ocean territory and growing the maritime economy. 

• Deacon retired from the SA Navy in 1996 as a captain, having commanded three naval ships and a squadron of strike craft, and serving as a staff officer at the SA naval and SA National Defence Force headquarters.