471 Mari Ne Law Developments I N Namibia D. J. Devine Institute

Mari ne Law Developments i n Namibia D. J. Devine Institute of Marine Law, University of Cape Town, South Africa Introduction Namibia became an independent state on 21 March 1990. Though only three years have elapsed since independence, that period has witnessed a number of important legal developments in the marine sector. The Constitution of Namibia contains provisions which are important in a marine context. The legislature has been active, and four important Acts have been adopted. Finally, the High Court 2 of Namibia has given judgment in six marine law case. It is the intention of this article to describe these constitutional, legislative and judicial marine law developments. The topics covered include maritime zones and their borders, passage rights, ownership of marine resource, the fishery law applicable in the exclusive economic zone (EEZ), a new fisheries regime, forfeiture of vessels used in committing fishery offences, questions relating to third party rights in such vessels, and international co-operation in enforcing fishery laws. The Territory of the Republic of Namibia It is necessary at the outset to describe what the territory of Namibia is and also the former status of the constituent parts of that territory. The reason is that the distinction between the different parts of the territory now claimed by Namibia is relevant to some of the questions later discussed in this article. The Constitution of Namibia describes the national territory of Namibia as "including the enclave, harbour and port of Walvis Bay, as well as the off-shore islands of Namibia, and its southern boundary shall extend to the middle of the Orange river."3 1 Territorial Sea and Exclusive Economic Zone of Namibia Act 3 of 1990:Territorial Sea and Exclusive Economic Zone of Namibia Amendment Act 30 of 1991;Marine Traffic Amendment Act 15 of 1991;Sea Fisheries Act 29 of 1992. 2 S v. Curras [ 19912 ] SACR 557 (Nm); S v. Martinez [ 1991 ] SA4 741 (Nm): S v. Redondo [ 1992]1 SACR (NmS), S v. C'arracelasand OthersHigh Court of Namibia, 11. 16, 20November 1992,Banco Exteriorde Espana SAv. Government of Namibia[199212 2 SA434 (Nm); S v.Pinheiro and Others[ 992]] 1 SACR 504 (Nm).). 3 Art. 1(4).). 471 472 In this context it should be noted that, historically, Walvis Bay formed part of the Cape Province and thus of South Africa.4 Twelve of the offshore islands were in the same position. These are called the Penguin Islands.' Historically, too, the border between South Africa and the former South West Africa was the north bank of the Orange River At the time of Namibian independence there were therefore conflicting territorial claims to these three areas, Walvis Bay, the Penguin Islands, and the northern half of the Orange. From a South African point of view these areas remained South African. From a Namibian point of view they formed part of the newly 7 independent state.7 In 1992 South Africa acknowledged one of the Namibian claims, namely that the northern half of the Orange river.8 South Africa's attitude on the question of sovereignty to Walvis Bay and the Penguin Islands remained consistent until 1992.9 Discussions commenced about these questions on 14 March 1991,1° and a joint regime was instituted in November 1992.11 It therefore appeared that South Africa was flexible on the question of sovereignty over the areas. Thus conflicting claims to Walvis Bay and the Penguin Islands continued to exist.12 On 16 August 1993 at the South African Multiparty Negotiations, a resolution was adopted accepting the incorporation of Walvis Bay and the Penguin Islands into Namibia and requesting the government to report back on incorporation within a month.13 From the above it will be apparent that in the very near future the above areas will be incorporated into the national territory of Namibia. Historically however, the national territory claimed by Namibia was and still is (for the moment) com- posed of two distinct parts (i) the former territory of South West Africa and (ii) the formerly disputed territories (Walvis Bay and the Penguin Islands). Despite the resolution adopted at the Multiparty Negotiations, the above distinction must still be borne in mind when discussing a number of questions in this article. When dealing with such questions the terms "the former South West Africa" and "the disputed areas" will be used respectively. 4 D. J. Devine, "Delimitation between the Penguin Islands and Namibia: Some Possible Principles" (1989-1990)15 SAYIL 122. 5 Ibid., 122-123. 6 Agreement between Germany and the UK 1890,Art. III. South African Treaties(G81-'98) 390. 7 For a discussion of the municipal law problems presented by this dispute, see D. J. Devine, "The Municipal Law of Walvis Bay, the Penguin Islands and the Northern Half of the Orange River" (1989-1990)15 SAYIL142-148. 8 D. B. Hamman, "River and Maritime Boundaries between South Africa and Namibia", unpub. LLD. thesis, University of Cape Town (1991),pp 51-55. 9 D. B. Hamman, "Cooperation in Law Enforcement in South African and Namibian EEZ/Fishing Zones: Problems Arising due to Unsettled Maritime Boundaries", paper delivered at the National Maritime Conference, Durban, 24 March 1993,p. 10. i<' Argu.s14 March 1991. "i Hamman (n9) 10.The joint regime is governed by the Joint Administrative Authority for Walvis Bay Act 93 of 1993. 12 CPF Briesch & DM Powell "Fishing for convictions: the Namibian zonal maritime regime and the incorporation of the Sea Fisheries Act 58 of 1973into Namibian law" (1992) 109 SALJ 129. 13 Cape Times 17 August 1993. .

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