by Siqhamo Yamkela Ntola
A version of this article was originally published in Fruitful Discussions June 8, 2021.
Part of this post is adapted from a book chapter I authored titled “Sailing towards prosperity: Africa’s ocean governance agenda in the 21st century” in Filho, Pretorius and de Souza Sustainable Development in Africa: Fostering sustainability in one of the World’s most promising continents (2021 Springer: Forthcoming).
In light of World Oceans Day, this blog post sheds light on two challenges confronting Africa in effectively governing its ocean spaces within the sustainable development paradigm. The first, within the latter paradigm, speaks to transitioning from intra to intergenerational equity, with the second being undelimited maritime boundaries.
World Oceans Day is an international day that takes place annually on 8 June. The day was officially recognised by the United Nations (UN) General Assembly in 2008. Generally, the day aims, among other things, to highlight the role of the world’s oceans in sustainable development. Indeed, within the previous decade, sustainable ocean development has been identified as a potentially significant contributor towards achieving socio-economic development objectives throughout the world. For instance, at an international level, target 14.c under Goal 14 (Life Below Water) of the Sustainable Development Goals (SDGs) provided in Transforming our World: The 2030 Agenda for Sustainable Development (“Agenda 2030”), best captures the general ambition of the international community of States with regard to the use of “oceans, seas and marine resource for sustainable development”. In terms of target 14.c, States (coastal and landlocked) have undertaken to
[e]nhance the conservation and sustainable use of oceans and their resources by implementing international law as reflected in the [1982 UN] Convention on the Law of the Sea [LOSC], which provides the legal framework for the conservation and sustainable use of oceans and their resources […].
At a continental level, African leaders, in the African Union (AU) Agenda 2063: The Africa We Want (“Agenda 2063”), echo the sentiments with regard to the foreseen of the continent’s adjacent ocean spaces in sustainable development. Paragraph 15 under the first aspiration of Agenda 2063 indicates that African leaders have identified that
Africa’s [b]lue/ocean economy, which is three times the size of its landmass, shall be a major contributor to continental transformation and growth, through knowledge on marine and aquatic biotechnology, growth of Africa-wide shipping industry, the development of sea, river and lake transport and fishing; and exploitation and beneficiation of deep-sea mineral and other resources.
The 2050 Africa’s Integrated Maritime Strategy (2050 AIMS) is the roadmap produced by African leaders to effectively utilise the continent’s ocean spaces to contribute towards meeting its development ambitions. The strategy “is an African-driven long-term and reasonably comprehensive vision crafted to better harness Africa’s so-called ‘blue economy’, with the vision of using this to promote development in the continent” (Egede, 2016: 2). According to Nmehielle and Pasipanodya, the
AIMS reflects a turn of the page in Africa’s history: a change from society’s gaze towards the interior (the terrestrial part of the continent) to a view towards the exterior (the maritime part of the continent); a new understanding of the latter as a vehicle for communication with the world and inclusion in the global economy, rather than a cause of separation and a barrier towards development (in Vrancken and Tsamenyi, 2017: 53).
Noteworthy for present purposes is that the 2050 AIMS’ strategic objectives include, inter alia, enhancing wealth creation as well as minimising environmental damage, with maritime boundary delimitation within its framework for strategic actions. The former objectives shed light on the continent’s philosophical outlook concerning sustainable ocean development, within which transitional equity issues reside, with the latter indicating a significant challenge to utilising ocean spaces for sustainable development. Below is a brief discussion on these aspects ending with recommendations on how the challenges therein may be addressed.
From intra to intergenerational equity
Other than being credited with providing the accepted definition of “sustainable development”, that being, “development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs”, the 1987 Report of the World Commission on Environment and Development: Our Common Future’s (“the Brundtland Commission Report”) additional value is that it has embedded the concepts of inter and intragenerational equity. The former recognises the poor’s essential needs, “to which overriding priority should be given”, with the latter accepting that the environment is limited in its ability to meet present and future needs. Intergenerational equity, therefore, infers that the “present generation owes a duty to future generations to leave the earth and its environment in no worse condition than they received it”. Intragenerational equity requires that there be equity within generations, therefore concerning itself “with the distribution of the benefits of development activities and the distribution of costs for environmental protection” (Tladi 2007: 41-48). The concept’s main concern is distributive justice. In this sense, considering the economic divide between developed and developing States approaches to development and environmental protection thereto vary. On the one hand, developed States having amassed their wealth through technological advancements employ stricter environmental protection measures, the finance for which is readily available. On the other hand, developing States are more liberal with environmental protection owing to constraints that conservative measures pose on immediate development goals. As far as the sea is concerned, article 193 of the LOSC accommodates the above scenarios in providing that States “have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment”. The provision demonstrates cognisance of the abovementioned integrated approach as it relates to ocean-related development, as well as the varying approaches and degrees therein that developed and developing States may approach environmental protection flowing from natural resource exploitation.
At this juncture, it is important to note that the general conceptualisation of sustainable development has been held to be too simplified, lending itself “to attack from different quarters” (Tladi 2007: 74). Desiring to formulate a better understanding of the normative implications of balancing environmental and development needs, Tladi (2007), has indicated that sustainable development requires the integration of its elements and discussed how such elements are to be integrated, provides a more nuanced conceptualisation of sustainable development by providing three variations. The first is an economic growth-centred variation, where economic growth and related values are favoured (anthropocentrism). The second is an environment-centred variation, where the natural environment is regarded as more important, and where there is a conflict with the latter variation – it triumphs (leaning towards biocentrism). The third is a human-needs centred variation, which places the social needs and general well-being of humanity at the centre of its concerns (anthropocentrism) (Tladi 2007: 80).
As far as Africa is concerned, an analysis of its ocean governance instruments (and related instruments) at a regional and subregional level indicates, in part, the continents slant towards anthropocentric development. This is to say, it follows the economic growth and human-needs centred variations of sustainable development, with an emphasis on intragenerational equity. Indeed, this outlook is consistent with Africa’s developmental outlook since its States gained independence from colonial powers. Examples of such ambitions, concerning Africa’s ocean spaces, are replete in the LOSC’s negotiating history (Third UN Conferences on the Law of the Sea). Integral to these ambitions is the ratification of, and governance in accordance with ratified marine legal instruments, such as the LOSC. In this case, although a majority of African States (coastal and landlocked) have ratified the LOSC (47 of 55 States or 85%), which is a key legal instrument for ocean governance, their general lack of participation in other international maritime legal instruments lends itself to an ocean governance deficit which accordingly has the potential to adversely affect Africa’s sustainable development objectives at sea. Of a sample of 70 multilateral agreements taken by Vrancken (2013) in 2013, approximately 29% of all African States participate in only 10% or less of the instruments. Eight years onwards, not much has changed. Reasons behind the stark contrast of ratifications of the LOSC versus the ratifications of other multilateral legal instruments which have a direct or indirect bearing on the marine environment is submitted to be unclear. Noteworthy, however, is that among the 2050 AIMS’ strategic objectives is “[p]romoting the ratification, domestication and implementation of international legal instruments”, for which the strategy for doing is also unclear. To this end, integral and indeed fundamental to achieving its development objectives at sea is jurisdictional certainty in the continent’s ocean spaces.
Delimiting Africa’s maritime spaces
With most activities of a State occurring within its geographical territory, such territory is not only crucial for a State’s existence but also constitutes the dimension within which it deploys its major activities. Concerning Africa’s ocean spaces, the continent enjoys a combined coastline of approximately 41162 km unevenly divided among its 39 coastal States. Indeed, adjacent to their coasts, an overwhelming majority of these States have declared the various maritime zones provided for under the LOSC. For instance, of the 39 coastal States, 38 (or 97%) have declared a territorial sea, 27 (or 69%) have declared a contiguous zone, 37 (or 95%) have declared an exclusive economic zone, 21 (or 54%) make legislative provision for the continental shelf, whose presence requires no express proclamation, and 20 (or 51%) have claimed a continental shelf beyond 200 nautical miles.
Notwithstanding the above declarations, the geographic configuration around most of Africa’s coastal States as well as land boundary locations entails that declared zones overlap with those of a neighbouring State with an opposite or adjacent coast. In this sense, although African coastal States have concluded 28 maritime boundary delimitation agreements (which includes joint development agreements), there are still approximately 60 agreements yet to be concluded if Africa’s ocean spaces are to be delineated. Among the challenges confronting African States in delimiting overlapping maritime zones is sovereignty disputes over dry land territories which affect jurisdiction over adjacent spaces.
Recommendations
While an emphasis on intragenerational equity in developmental outlook is presently justified, a benefit for future generations from Africa’s oceans inevitably requires the continent’s present and future leaders to transition towards intergenerational equity. In this sense, it is recommended that development thresholds be developed to aid such transition. As far as the law is concerned, ratification and implementation of multilateral legal instruments other than the LOSC is a key initial step in this regard. Indeed, while such ratification may impose onerous marine environmental protection obligations that limit desired development, the consequence of non-ratification is arguable to the detriment of future generations.
In closing, fundamental to effective governance of ocean spaces requires that they be delineated. The extent of undelimited boundaries poses a threat to Africa’s development ambitions owing to a lack of jurisdictional certainty which is necessary to peacefully exploit ocean resources as well as protect the marine environment from such activities. Joint development agreements may serve as an effective interim measure for those African coastal States yet to delimit their maritime boundaries.
This post and more insightful articles by Siqhamo are available on his blog fruitfuldiscusssions.com.
