Pinehas Auene
As we celebrate World Ocean Day today, I wonder how many Namibians are aware of the country’s pioneering role in establishing the current international legal order for ocean use.
Namibia was the 5th country to ratify the United Nations Convention on the Law of the Sea (UNCLOS) in 1983.
This global ‘Constitution of the Oceans’ was adopted in 1982 after long and arduous negotiations, lasting nearly 10 years.
It was ratified on Namibia’s behalf by the United Nations Council for Namibia.
UNCLOS is a comprehensive legal framework for governing all ocean activities, including fisheries, mineral exploitation and maritime transport, which is my area of interest and the focus of this opinion piece.
UNCLOS establishes different maritime zones within which the coastal state enjoys various rights and jurisdictional authority over activities and resources therein.
Namibia asserted her maritime jurisdiction at independence through Article 100 of the Namibian constitution and the Territorial Sea and Exclusive Economic Zone Act.
This was necessary not only to give effect to our country’s obligations under UNCLOS but also to safeguard our vast natural resources and reverse the damage inflicted by pre-independence overfishing by distant fishing fleets.
At this point, I wish to stress that UNCLOS is a framework treaty that is complemented by detailed international treaties developed under the auspices of competent UN bodies such as the International Maritime Organisation (IMO), which is tasked with developing uniform international rules for safe, secure, efficient and environmentally responsible maritime transport.
It follows, therefore, that treaties developed under the auspices of IMO operate under the framework of UNCLOS.
This opinion piece highlights the need for a revamp of Namibia’s maritime transport policy and legislative framework to not only align it to national priorities and give effect to the country’s obligations under international maritime law but also to honour our nation’s ground-breaking role in establishing the current legal regime for global ocean governance.
Need for a modern policy
Maritime transport is inherently international, operating across political borders. For this reason, it is regulated by IMO, of which Namibia is a member since 1994. Our High Commissioner to the UK currently serves as the 1st Vice President of IMO’s highest governing body – the Assembly.
If it were not for IMO developing uniform rules for the orderly conduct of maritime transport, this vital sector (and international trade) would be chaotic, if not impossible.
I should hasten to point out, though, that IMO is empowered to make international rules but has no enforcement powers.
This is left to IMO member states, following the domestication of the IMO rules into national law.
It is pertinent to note that in terms of Article 144 of the Namibian Constitution, a treaty of international law becomes part of the country’s domestic law once it has been ratified by Namibia.
However, IMO treaties are not self-executing and require domestic legislation to give effect to their provisions.
A large part of the current legal framework for maritime transport in Namibia is largely outdated and is not fully aligned with the applicable international standards.
This shortcoming is recognised in the 2018-2035 Namibian Transport Policy, which forms the basis for a new transport direction for our country but does not comprehensively provide for maritime transport because of its broad scope i.e. covering all the transport modes.
The legal framework thus needs to be revamped to serve the interests of a sovereign and independent Namibia while a dedicated maritime transport policy is also a necessity in my view.
Implications for the logistics hub
Namibia has been establishing itself as a transport and logistics hub to take advantage of the country’s strategic location and its excellent connectivity to the SADC and global markets.
The hub is pivotal in the development of Namibia’s economy as well as the economies of neighbouring states.
One of the impacts of the hub is that more and bigger ships are arriving at Namibian ports, which translates into bigger safety, security and environmental risks for the country.
Modern policy and legislative tools, which are aligned with international standards, are needed to manage these risks effectively.
Closely associated with the increasing number of ships is the proliferation of a wide range of maritime activities, including the well-established ship repair and maintenance industry.
As these activities increase, there is bound to be a corresponding increase in maritime claims, which have to be dealt with in terms of the archaic admiralty laws.
It is reported that our ship repair and maintenance sector has been receiving a raw deal because their claims tend to be ranked lower in the order of priority when claims are ultimately paid following the judicial sale of an arrested ship.
New admiralty legislation is therefore needed to protect this strategic sector and, at the same time, domesticate into national law the applicable international treaty relating to the arrest of ships.
The hub and the country at large would also greatly benefit from Namibia becoming a party to key treaties aimed at facilitating maritime traffic and commerce through uniform legal requirements for shippers, carriers and consignees and standardised administrative formalities, reduced paperwork and public declarations.
Local ships – foreign maritime officers
Namibia has a shortage of appropriately qualified maritime officers. For this reason, many – if not all of – Namibia’s larger vessels are manned by foreign officers. This is problematic for strategic and other reasons.
From a strategic perspective, our country may not be assured of the allegiance of a foreign master should we opt to enlist ships on our register for emergency services.
Another important issue is the fact that Namibians, especially the youth, are faced with a serious unemployment problem.
Yet many high-paying maritime jobs, including those of a strategic nature, are occupied by non-Namibians.
There is thus a need for a clear policy and strategies to empower Namibian youth to eventually displace foreigners and take up officer positions on our mining and fishing vessels as well as the international merchant fleet.
Old and new imperatives
Our maritime sector has also been largely immune to the socio-economic transformation imperatives of a new Namibia, primarily because of the absence of a policy in this regard.
Consequently, participation in this sector by indigenous and previously disadvantaged Namibians remains minuscule, except in State-owned entities.
Owing to our nation’s political history and the growing need to urgently tackle pressing socio-economic issues, the new maritime policy must provide for a coherent and emphatic framework for participation by previously disadvantaged Namibians, especially women, in the various segments of our maritime sector.
In addition, there are new and emerging issues that necessitate a paradigm shift in maritime policy formulation for Namibia and the world over.
These include the global transition to alternative marine fuels and the concepts of blue economy and marine spatial planning.
The transition from fossil fuels to zero emissions marine fuels, with the aim of de-carbonising maritime transport, presents an enormous opportunity for Namibia given our ambition of becoming a major producer of green ammonia, which according to the International Energy Agency will be the lowest cost option as an alternative marine fuel for the future.
Namibia’s new maritime policy has to provide a strategic direction toward making Namibia a green ammonia bunkering hub.
Both blue economy and MSP aim to promote sustainable development. They recognise the complexity of a coastal state’s various maritime interests and the linkages that exists between all the public policies relating to the use of the ocean space.
Therefore, the new policy must recognise the increasing realisation, both nationally and internationally, of the need to manage the ocean space and its resources in a more sustainable and integrated manner through the use of modern tools (such as MSP) for dealing with competing and overlapping ocean uses and the potential conflicts (and synergies) that may arise between different interest groups.
Way forward
It is evident from the above discussion that a modern policy and legislative framework is vitally important if Namibia is to sustain its position as a transport and logistics hub and establish itself as a respected maritime nation well into the 21st century.
It is proposed, however, that before the legislative framework is extensively revamped, an inclusive process to develop a new and dedicated maritime transport policy be initiated.
This approach is proposed because legislation generally gives legal underpinning to policy and not the other way around.
The policy development process will identify and develop national policy positions on all key maritime issues and it will be these policy positions that will inform the subsequent legislative interventions needed to achieve the policy objectives.
Namibia’s new maritime policy must be evidence-based and will need to reflect the developmental objectives of the country while, at the same time, aligning itself to international requirements in the maritime domain.
Finally, the policy needs to be supported by a robust international engagement strategy that leverages Namibia’s diplomatic presence and leadership in global institutions and countries around the world to influence global maritime transport regulation in ways that benefit our country.
A new maritime policy and legislative framework are not only crucial for advancing Namibia’s maritime interests, but it will also honour our nation’s pioneering role in crafting the current international legal order for ocean use.