Elsevier

Marine Policy

Volume 127, May 2021, 104433
Marine Policy

A critical analysis of the legal frameworks governing oil spill management in South Africa

https://doi.org/10.1016/j.marpol.2021.104433Get rights and content

Abstract

The South African marine environment is constantly exposed to considerable levels of pressure. These pressures undermine the near pristine marine biodiversity and the citizens' right to a clean environment. This paper critically analyses international conventions and South African legislative frameworks for addressing marine oil spills. To achieve this purpose, content analysis of international conventions and South African policy and legislative documents relating to marine oil spills was conducted. In this regard, 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 were analysed. The findings of this paper demonstrate that South African marine pollution management is on a reasonable development path. However, invariably, challenges in terms of enforcement capacity, complicated and ineffective provisions continue. This study thus calls for an institutional and legislative reform that will embrace integrated management strategies, clearer provisions of legal powers, and strict enforcement of existing laws.

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.

References (32)

  • Department of Transport, Comprehensive Maritime Transport Policy (CMTP) for South Africa, (Department of Transport),...
  • E.E. Egede et al.

    Dispute concerning delimitation of the maritime boundary between Ghana and Cote D’Ivoire in the Atlantic Ocean-lessons from another maritime delimitation case arising from the African Region

    Indiana Int. Comp. Law Rev.

    (2019)
  • C. Guerbois et al.

    Nurturing ecosystem-based adaptations in South Africa’s Garden Route: a common pool resource governance perspective

    Reg. Environ. Chang.

    (2019)
  • H.F. Hsieh et al.

    Three approaches to qualitative content analysis

    Qual. Health Res.

    (2005)
  • International Maritime Organisation (IMO), STATUS OF IMO TREATIES: Comprehensive information on the status of...
  • C. Markowitz

    Medical standard of care jurisprudence as evolutionary process: implications under managed care

    Yale J. Health Policy Law Ethics

    (2001)
  • Cited by (5)

    View full text