South Africa and the Law of the Sea

Being at the confluence of the Atlantic Ocean, the Indian Ocean and the Southern Ocean, South Africa plays a considerable role in the smooth running of maritime commerce and the diverse efforts to ensure the sustainable development of the marine environment. South Africa and the Law of the Sea brings together the many threads of the rich South African marine-law tapestry by covering both the public international law as context and the details of South African marine law and policy within their African framework. The result is a tool to foster implementation, co-ordination and further research at the domestic level as well as a platform to facilitate comparative work to strengthen Africa s jurisprudence and influence in maritime matters.

ForewordThe waves of both the Atlantic Ocean and the Indian Ocean break on South Africa's shores. Situated at the most southerly point of a major shipping route linking East and West, with a 3 000 km coastline surrounded by rich fishing waters, accommodating several major harbours, and with a significant navy and merchant fleet, South Africa is a maritime nation, the greatest maritime power in Africa. Until the discovery of diamonds and gold in the hinterland South Africa's history was largely focused on its coastline. Cape Town, Durban, Port Elizabeth and East London are major harbour cities. While gold mines led to the development of an industrial empire in the interior, the coastal cities have retained their political and economic importance.It is small wonder that maritime matters have featured prominently in South African life and law. Maritime disputes dating back to the Dutch settlement have fueled a body of sophisticated shipping law. South Africa took an active part in the adoption of the four law of the sea conventions of 1958, at which time it still acted as host to the Royal Navy at its Simonstown Naval Base. In the 1970's South Africa's isolation resulting from its policy of apartheid led to the termination of the arrangement with the United Kingdom over the Simonstown Naval Base and South Africa's exclusion from the United Nations Law of the Sea Conference (UNCLOS III), which resulted in the Law of the Sea Convention (LOSC). Shortly after its return to the international community in 1994, South Africa ratified the 1982 Law of the Sea Convention and the 1994 Agreement on the implementation of Part XI of the LOSC, and resumed its active participation in the development and implementation of the law of the sea. Today South Africa is a proud party to a host of multilateral conventions dealing with maritime security, navigation, preservation of marine resources and the protection of the marine environment. There is a substantial case law on maritime matters and a burgeoning legal literature on the subject in law journals and treatises. For the past two decades much of the legal writing on the law of the sea has been penned by Patrick Vrancken himself. But until the appearance of the present work no one had attempted a comprehensive account of the law of the sea from a South African perspective. Patrick Vrancken has now remedied this with this monograph on South Africa and the Law of the Sea.The success of South Africa and the Law of the Sea lies principally in the manner in which the author has managed to integrate international law and South African law. The law of the sea in an international sense is fully canvassed. Obviously the 1982 Law of the Sea Convention occupies the prime place in this account but it is buttressed and supplemented by a host of specialized conventions and rules of customary international law. South African law is meticulously described and analyzed. The 1996 Constitution, legislation, both primary and subordinate, case law and the rules of the common law inherited from the Netherlands and England and moulded into the South African common law, all feature in the study. While the two legal orders retain their separate identities they are integrated into a legal order that might be described as the South African law of the sea, a blend of international conventions and customary law and South African statute law, case law and legal writings. It is a study that increases one's understanding of how a body of international law is incorporated, applied and interpreted in a domestic legal order. As the evolution of the two orders is examined the monograph also provides a comprehensive history of the law of the sea and of its adoption in South Africa.I have earlier described South Africa and the Law of the Sea as a monograph. This is correct in the sense that it is a treatise written on a particular subject. But ;monograph' does not do justice to the encyclopedic nature of the work. No issue is left uncovered; the minutiae of South African legislation are examined. But this is all done without losing sight of the big picture ; the legal order of the sea from a particular national perspective. South Africa and the Law of the Sea is unquestionably the most comprehensive monograph on a branch of international law as it is applied in South Africa. It is thoroughly researched, well written and carefully presented. It will guide South African legal practitioners, policy-makers, legislators, teachers and students of law, environmentalists, historians and all those involved in the law of the sea. But it also has an appeal to non-South Africans interested in the law of the sea as it provides a full picture of how the law of the sea has developed in one country and how international-law rules shape national law. In this sense it is a unique study.John DugardLeidenApril 2011