by Siqhamo Yamkela Ntola
A version of this article was originally published in Fruitful Discussions June 31, 2021.
The post contains a submission made to the Constitution Review Committee in which it seeks public submission for the Annual Review of the Constitution. The submission was made by a dear colleague and I, Dr Denning Metuge, who is a Post-Doctoral Fellow at a the Nelson Mandela University under the South African Research Chair on the Law of the Sea and Development in Africa.
1. Introduction
This document is submitted pursuant to a recent call from the Constitutional Review Committee (‘the Committee’) in which it seeks, in accordance with section 45(1)(c) of the Constitution of the Republic of South Africa (‘the Constitution’) and the Joint Rules of Parliament, public submissions for the Annual Review of the Constitution.
The substance of this submission pertains to the inclusion of an express provision for South Africa’s territorial waters in the Constitution. As such, the recommendations advanced speak to amendments under Chapter 6 and Schedule 1A of the Constitution. The rationale for the proposed amendments is to provide clarity with regard to South Africa’s territory and the reach of its constitutional provisions. The recommended wording for the proposed amendments is provided in the section titled ‘Recommendations’ below. In line with the call, and based on this submission, a request is made for an opportunity to make a detailed oral presentation to the Committee.
2. Rationale
South Africa’s Constitution makes no provision, express or tacit, for its territorial waters, which is a belt of water extending seawards from South Africa’s coast to a maximum breadth of 12 nautical miles. Instead, indicated under section 103 of the Constitution, South Africa comprises of nine provinces of which ‘[t]he geographical areas of the respective provinces comprise the sum of the indicated geographical areas reflected in the various maps referred to in the Notice listed in Schedule 1A’ (Vrancken, 2011: 18). As it relates to the sea, the relevant maps under the latter schedule do not include the territorial waters, arguably excluding South Africa’s constitutional reach in this region owing to uncertainty of whether its four coastal provinces have a marine component. However, the encouraged ‘broad approach’ conceptualisation of South Africa’s territory in terms of international law (see section 233 of the Constitution), indicates that South Africa’s territorial waters are part of South Africa (Vrancken, 2011). The alternative ‘narrow approach’ entails that South Africa’s laws in its land territory would not apply to its territorial waters if the latter’s enabling legislation were repealed.
Among the generally accepted criteria for what constitutes a ‘State’ as captured in the 1933 Montevideo Convention on the Rights and Duties of States is a ‘defined territory’. A State’s territory includes not only its land territory but its territorial sea where the State is a coastal State as well as the air space above the land and sea territory. Indeed, a State conducts most of its activities within its geographical area or territory. As far as the territorial sea is concerned, article 2(1) of the 1982 United Nations Convention on the Law of the Sea (LOSC), which South Africa ratified on 23 December 1997, provides that ‘[t]he sovereignty of a coastal State extends, beyond its land territory and internal waters […] to an adjacent belt of sea, described as the territorial sea’. Article 3 of the LOSC provides that a coastal State ‘has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles’. Although other zones are provided for in the LOSC, such as the contiguous zone, exclusive economic zone, and continental shelf, only the State’s sovereignty extends to the outer limit of the territorial sea.
South Africa has, under section 4(2) of the Maritime Zone Act (15 of 1994) (MZA) established its territorial sea in accordance with the LOSC and indicated that ‘[a]ny law in force in the Republic, including the common law, shall also apply in its territorial waters and the airspace above its territorial waters’. Moreover, South Africa’s jurisdiction in its territorial waters has been confirmed by its judiciary in cases such as Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd and Lawyers for Human Rights and Another v Minister of Home Affairs and Another. Accordingly, legislative and judicial recognition of South Africa’s territorial waters means that its organs of State have, in principle, jurisdiction over all activities, objects, and persons in that space. Such jurisdiction is, of course, not unlimited (Vrancken, 2011: 145-155). What is more, South Africa’s governance strides as it relates to the use of its adjacent ocean spaces indicate that it is aware of the ambit of its territorial jurisdiction. For instance, at a policy level, South Africa’s White Paper on National Environmental Management for the Ocean and its Framework for Marine Spatial Planning are among the instruments demonstrating South Africa’s cognisance of its territory at sea and its powers thereto. From a legal perspective, other than the MZA and the alluded to case law, the same holds true when analysing legal instruments such as the National Environmental Management Act: Integrated Coastal Management Act (24 of 2008) (NEM: ICMA); Marine Living Resources Act (18 of 1998); and Marine Spatial Planning Act (16 of 2018).
3. Recommendations
It is recommended that South Africa’s Constitution be amended to include a provision that South Africa’s territorial waters form part of its territory. Among other things, this inclusion will, from a constitutional law perspective, clarify that part of South Africa’s territory and the ambit of its constitutional law application. Also, it will have the effect of subjecting domestic laws such as the MZA and the NEM: ICMA, which speak to South Africa’s territorial sea – under the Constitution. Thus, removing any questions on the zone’s presence were it to be that laws providing for it such as the MZA are repealed.
The recommended wording is as follows:
a. Chapter 6 of the Constitution be titled ‘the National Territory’. Accordingly, the amendments will be as follows:
(i) section 103(1) will be amended to ‘South Africa’s national territory comprises its nine provinces together with its territorial waters, an adjacent belt of sea off its coast extending no farther than 12 nautical miles’.
(ii) section 103(2) will provide for South Africa’s provinces as already done.
(iii) section 103(3) will be amended to read ‘[t]he geographical areas of the national territory which includes its respective provinces and territorial waters comprise the sum of the indicated geographical areas reflected in the various maps referred to in the Notice listed in Schedule 1A’.
(iv) Schedule 1A will be amended to include an official map of South Africa’s territorial waters supplied by the Hydrographic Office in South Africa’s Navy.
This post and more insightful articles by Siqhamo are available on his blog fruitfuldiscusssions.com.
