A critical analysis of the legal frameworks governing oil spill management in South Africa
Introduction
It is estimated that close to 90% of the South African economy is sea borne [8]. Oil and gas as a resource and industry are important to the Gross Domestic Product (GDP) of South Africa. The world’s dependency on this industry has increased the risk of marine oil pollution through the introduction of super-tankers and oversized bulk carriers [17]. Within the South African context, there has been an increased concern on the cases of bilge dumping, spillage during loading in the ports, and lapses of offshore bunkering points [29]. This report further indicates that the locations of oil spills largely concise with the densest areas of cargo vessel trajectories, with a poor correlation of spill occurrence and density in fishing vessels' trajectories.
In addition to the unforeseen and unavoidable oil spill incidents from bunkering, shipping, and exploitation activities, the international community is generally struggling in enforcing global environmental governance [28]. While there are international laws to manage oil spills since the 1950s, the process of aligning domestic legal frameworks with these international norms is complex. This is because of the protracted dualistic legal system which requires the State to integrate international instruments locally before its application [1]. Moreover, section 231(3) of the South African Constitution provides a second process for legal framework alignment. This provision enables ministerial multilateral technical agreements for enhancement of international cooperation where such commitment is without budgetary pledges or fundamental effects on human rights. These types of agreements are then obligatory to the country without any ratification or accession.
The jurisdictional complexities associated with a multi-sphered institutional system of governance further complicate policy development. South Africa is a democratic State with nine provinces and three categories of municipalities with constitutional authority to enact laws. Considering the variety in political leadership and conservation priorities of these different spheres, a broader scope for integration and collaboration, particularly in terms of policy direction and implementation is paramount. Thus, this paper provides a précis and critique of international conventions and South African policy and legislative frameworks on marine pollution management. The next section following this introduction outline the research methodology applied to the study. The findings of the study are then presented and discussed before the concluding remarks.
Section snippets
Research methodology
The study draws on several data collection techniques, including a thorough and comprehensive literature review, and content analysis of international conventions and South African policy and legislative documents relating to marine oil spills. Content analysis describes a family of approaches for the systematic examination of texts [11]. Hall and Steiner [11] further state that qualitative content analysis is a close, comprehensive, and organised reading of a set of texts to identify themes,
Findings
The study sought to critically analyse international conventions and South African legislative frameworks for marine oil spills. Three international conventions, two Marine Civil Liability laws in South Africa, seven environmental and conservation management laws for marine pollution in South Africa, and two disaster risk management policy and legislative frameworks are analysed and discussed hereunder.
Disaster risk management policy and legislative framework
Disaster management in the South African context emphasises a multi-sectoral and multi-disciplinary approach rather than an international approach of placing all responsibilities on one department [26]. Van Niekerk [26] further submits that the promulgation of this Act and the Disaster Management Framework of 2005 advocate for a decentralised approach of assigning disaster risk reduction to all spheres of government for effective management.
Discussion and recommendations: effectiveness of the legal system
“…good policy and legislation do not necessarily translate into good practice… [26].
Findings from this paper support this notion not for the disaster management policy only but also to the majority evaluated legislations. This study has found that the majority of the legislative frameworks analysed are ineffective to manage marine oil spills in South Africa. The effectiveness of the legal system governing marine pollution in South Africa is influenced by variable interpretations of the standard
Conclusion
The multiple legislations with various provisions to the activities and jurisdictions influence the applicability and thus the effectiveness of managing marine pollution. This article aimed to critically analyse the legal framework governing oil spill management in South Africa, based on policy objectives, compatibility with the institutional arrangement, and enforcement capability. The government’s commitment to pollution prevention is evident through the adoption of international best
CRediT authorship contribution statement
Phindile Tiyiselani Zanele Sabela-Rikhotso: Conceptualization, Methodology, Data acquisition, Analysis, Writing - original draft. Dewald van Niekerk: Reviewing, Editing and supervision. Livhuwani David Nemakonde: Reviewing and Editing and supervision.
Acknowledgements
This work partially funded by the Post-Graduate Bursary Scheme of the North-West University, Potchestroom, South Africa. The authors declare no competing interests.
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