- Robin Sherbourne, ‘Mining and the Economy”, Namibia Brief, No 21. December 1998, pp 6–10. See also Bank of Namibia, Quarterly Bulletin, June 2001 (at http://www.bon.com.na). For a country profile, see www.sadcreview.com/country%20profiles%202001/namibia.
- Africa is the largest producer of diamonds in the world and produces over 50 per cent of the global production. Over 1.9 billion carats have been produced with an estimated value of US$158 billion. See MBendi Information for Africa, News: 21 April 2002 (http://www.mbendi.co.za/indy/ming/dmnd/af).
- The main licence holders in Namibia include Namdeb, Namibian Minerals Corporation, Ocean Diamond Mining and the joint venture company between Diamond Fields International and TransHex.
- For a detailed history of diamond mining in Namibia, see G Schneider and R Miller. ‘Did nature compensate Namibia with diamonds?’ Namibia Review, August/September 1998: and for an overview of the discovery of diamonds in Southern Africa, see the chapter on Southern Africa (1867-1886) in the Cambridge History of Africa, 6 (1870–1905) (R Oliver and G N Sanderson eds, Cambridge University Press. 1985). pp 359–376. See also Hakan Tarras-Wahlberg, Marine diamond mining and the environment. Journal of Mineral Policy, Business and Environment, Raw Materials Report (CEPMLP), 1998, Vol 13, No 1, p 7.
- This area covers the land between the Orange River in the south and latitude 26 degrees in the north and extending 100 kilometres inland from the Atlantic Ocean (Halbscheid agreement of 16 November 1922 and 15 January 1923 between SWA Administration and Consolidated Diamond Mines of SWA Ltd); see also Consolidated Diamond Mines of SWA Ltd v Administrator, SWA and Another, 1958, SA (4) 572.
- The first discovery of diamonds in Southern Africa was made in 1866 on a farm near Kimberley in South Africa.
- G Schneider and R Miller, ‘Did nature compensate Namibia with diamonds?’ Namibia Review, August/September 1998. p 2.
- De Beers Marine (Pty) Ltd was established in 1983 and is a wholly-owned subsidiary of the De Beers Group. Namco was formed in 1993 and its marine diamond concession area is 6.600 km2 offshore Namibia and South Africa, including the 15-year mining licence granted in 1997 over the 136 km2 Koichab area, offshore Luderitz.
- Namdeb is a joint venture company set up in 1994 and owned in equal shares by the Government of Namibia and De Beers Centenary AG.
- De Beers Marine (Pty) Ltd was established in 1983 and is a wholly-owned subsidiary of the De Beers Group. As a result of the negotiations of 2000 on the Agreement between De Beers and the Namibian Government, De Beers Marine is now a registered Namibian company.
- Namibia Brief, No 21, December 1998, pp 76–77.
- See A Pulfrich and C Parkins, ‘The impact of diamond mining on the marine environment’, Namibia Brief, No 21, December 1998, pp 8385; and Fuggle and Rabie (eds). Environmental Management in South Africa (1992, Juta), p 404.
- Pulfrich and Parkins, op cit, p 84. Other significant impacts of mining activities on the marine environment include the direct disturbance of sediments caused by excavation, increased turbidity, sea-bed smothering. See also Hakan Tarras-Wahlberg, Marine diamond mining and the environment, n 4 above.
- Section 130 of the Minerals (Prospecting and Mining) Act of 1992.
- Gerhard Erasmus, The Namibian Constitution and the Application of International Law (SAYIL, 1992), p 85.
- Article 144 of the Namibian Constitution.
- Treaty between the Government of South Africa and the Republic of Namibia with respect to Walvis Bay and the Off-Shore Islands, 28 February 1994. See also the South African Transfer of Walvis Bay to Namibia Act 1993 to provide for the transfer to Namibia of the territory of and sovereignty over Walvis Bay and certain islands.
- See D B Hamman, ‘The single maritime boundary—A solution for Maritime Boundary Delimitation between Namibia and South Africa’(1995) 10 International Journal of Marine and Coastal Law 369.
- The reconnaissance, exploration and production of petroleum (including oil and gas) are taken care of under the Petroleum (Exploration and Production) Act 1991. All rights to petroleum vest in the State so that these activities can only be undertaken on the basis of a licence granted by the Ministry of Mines and Energy on behalf of the State.
- The Act repealed the whole Ordinance except insofar as it relates to the appointment and powers, duties and functions of the Chief Inspector and Inspectors of Mines, and the safety and health of persons employed in or in connection with mines and works. New Mine Health and Safety Regulations are in a draft form (see Ministry of Mines and Energy website: http:www.mme.gov.na).
- Aussenkjer Diamante (Ptv) Ltd v Namex (Pty) Ltd and Another, 1980 (3) SA 896 (SWA). The case dealt with the competition between the rights of the surface owner and those of the holder of a grant. It was held that before the grant-holder can institute an interdict restraining the surface owner from carrying out certain activities on his land covered by the grant, the grant-holder must show that his prospecting operations must necessarily clash with the intended activities of the surface owner.
- See J J Gurney et al, in Environmental Management in South Africa, n 12 above at p 408, for a discussion of the mineral law regime of South Africa.
- The Ministry of Mines and Energy is the custodian of mineral resources and the regulator of the exploration and mining activities in the country. See Mission Statement, http://www.gov.na.
- The other groups are base and rare metals, dimension stone, industrial minerals, non-nuclear fuel minerals, nuclear fuel minerals, precious metals and semi-precious stones.
- See S v Kramer and Others, 1990 NR 49 for a detailed judgment on the ‘police trap system’. It was held that, although it was regarded as a necessary evil in the law, the court has a responsibility to ensure that there is no abuse of the system.
- Part III, Section 14.
- See for example Siale v Pineiro and Others, 1992 (1) SACR 504 (Nm).
- For an in-depth discussion of the principle, see Nico Schrijver, Sovereignty Over Natural Resources (Cambridge University Press, 1997).
- See Articles 2 and 3 of the UN Convention 1982.
- The Act replaced the old South African Territorial Waters Act 1963 (and the Territorial Waters Amendment Act of 1977, which only applied to Walvis Bay and the Offshore islands).
- Article 1. The application of the UN Convention and other binding international agreements are also incorporated in Namibian law under Article 144 of the Constitution.
- Territorial Sea and Exclusive Economic Zone of Namibia Amendment Act 1991.
- For a discussion of offshore jurisdiction, see M Roggenkamp, ‘Petroleum Pipelines in the North Sea: Questions of Jurisdiction and Practical Solutions’ (1998) 16 JERL92.
- Article 77(2).
- See Hakan Tarras-Wahlberg, n 4 above.
- The rights of other states include the right to lay submarine cables and pipelines, the right of overflight, and the right of navigation and innocent passage.
- See official text in UN Doc A/CONF.62/122.
- The UN Council for Namibia was set up by the UN General Assembly, after the UN assumed the power to terminate the South African Mandate for South West Africa in Resolution 2145 (XXI) adopted on 27 October 1966, to administer the territory until full independence. Namibia became independent in 1990 after elections supervised by the UN Transition Assistance Group. South Africa signed the UN Convention but made a reservation about the recognition of the legality of the UN Council for Namibia.
- As referred to by US President Truman, in Presidential Proclamation No 2667 of 28 September 1945 (also known as the ‘Truman Proclamation’).
- See E D Brown, The International Law of the Sea, Vol 1, Introductory manual (Dartmouth, 1994).
- See the Namibian newspaper. Die Republikein, ‘Seediamante skitter teen einde van jaar’, 3 January 2001 on the Namco offshore diamond-mining vessel called the MV Ya Toivo which is built to mine the seabed with expensive seabed crawling equipment. It is regarded as the world's biggest diamond- processing vessel.
- Description of the mining method taken from G Schneider and R Miller, n 3 above at pp 9–10. See also Hakan Tarras-Wahlberg, n 4 above at p 9.
- Two systems of sorting are carried out. First, the CSO Valuations Namibia (Pty) Ltd is authorised to conduct the routine sorting and valuation of the production of Namdeb at their headquarters in the capital, Windhoek. The Government Diamond Valuators (GDV) check this operation and afterwards the Namdeb production is then sold to the Central Selling Organisation (CSO) in London. Secondly, diamond production from the other producers are checked by the GDV and sold to the open market, within and outside Namibia. The ultimate value of the polished diamonds depends on the carat, colour, clarity, cut and cost (Ministry of Mines and Energy website: http://www.mme.gov.na).
- In terms of the British Merchant Shipping Acts of 1894–1984 to be recognised as a vessel the criteria requires that a structure must be capable of moving itself without aid/it should be self- propelled.
- A/CONF.62/L.92 (1982), para 5, XVI Off Ree 209,210 (Chairman, Third Committee).
- See UNCLOS 1982-A Commentary, Vol II: Center for Oceans Law & Policy (Martinus Nijhoff Publishers, 1993), p 45.
- Report of the International Law Commission on the work of the 43rd Session, 46 GAOR, Supp No (A/46/10), at 119 (1991).
- ‘Drill ships’ are included in the category of drilling units for the purposes of classification notations in the Rules for Building and Classing Offshore Mobile Drilling Units of the American Bureau of Shipping. The Lloyd's Register of Shipping refers to these ships as self- propelled units. The Det Norsk Veritas in its ‘Rules for the Construction and Classification of Mobile Offshore Units’ does not list a drill ship as a specific category and refers to them as ‘other types of offshore units’ which are designed as mobile offshore units and will be treated on an individual basis with an appropriate classification designation (see Michael Summerskill, Oil Rigs: Law and Insurance (London: Stevens & Sons, 1979)).
- Territorial sovereignty involves the exclusive competence of a state in regard to its own territory and the exclusive right to display the activities of a state subject, inter alia, to the right of innocent passage through the territorial sea of 12 nautical miles by other states. Judge Hubner in the Island of Palmas case. Permanent Court of Arbitration, 1928, 2 RIAA, 838. The right of innocent passage by foreign vessels including warships is allowed as long as the passage is innocent, continuous and expeditious.
- See Bernard Oxman, Jurisdiction of States (1987), EPIL, Elsevier, Vol 3. 1997, p 55.
- See P T Muchlinski, Multinational Enterprises and the Law (Blackwell, 1995), chapter 5 for a discussion on ‘The Jurisdictional Limits of regulation through National or Regional Law’.
- AL Morgan, ‘The New Law of the Sea: Rethinking the Implications for Sovereign Jurisdiction and Freedom of Action’ (1996) 27 Ocean Development & International Law 5.
- See JES Fawcett, The Law of Nations (1968); and also JES Fawcett, ‘General Course on Public International Law’, in Academie de Droit International (1971) 132 Recueil des Cours, pp 371–391.
- See also Geoffrey Marston, ‘Maritime Jurisdiction’(1989) Encyclopaedia of Public International Law, Vol 3, 1997.
- See Article 1 of the UN Convention on Conditions for Registration of Ships, done at Geneva 7 February 1986, published in UNCLOS 1982—A Commentary, Centre for Oceans Law and Policy, University of Virginia Law School, Martinus Nijhoff Publishers, Kluwer Law International, 1995, pill.
- See R R Churchill and A V Lowe, The Law of the Sea, Melland Schill Studies in International Law (Juris Publishing, 1999), p 257; see also David Caron, ‘Ships, Nationality and Status’, 1989, Encyclopaedia for Public International Law (EPIL), Vol 4, pp 400–408.
- See UN Convention on Conditions for the Registration of Ships (1986).
- See Lord Lymington, ‘Safer Ships; Cleaner Seas—full speed ahead or dead slow?’, Lloyd's Maritime and Commercial Law Quarterly, 1998, pp 170–181 fora discussion on the accidents of The Braer, The Derbyshire and The Sea Empress.
- See EPIL, Vol 2 (North- Holland, Elsevier, 1995), for articles by Jonathan Ignarski, ‘Flags of Convenience’ (1989), pp 404–405; and David Caron, ‘Flags of Vessels’ (1989), pp 405–407.
- See. for example. Stale v Pineiro and Others, 1992 (1) SACR 504 (Nm).
- Section 134.
- Sections 70 and 78.
- See Ministry of Mines and Energy homepage: www.mme.gov.na.
- Section 65 of Part XI. Fisheries inspectors can also be called on to assist in the inspection of diamond-mining vessels under the Act.
- See presentation on the Outstanding Namibian maritime boundaries with Angola and South Africa’, by L E Moller, International Conference, Analysing International Maritime Boundary Disputes, 15. 16 May 2001, One Whitehall Place, London.
- D B Hamman, ‘Cooperation in Law Enforcement in South African and Namibian EEZ/Fishing Zones due to Unsettled Maritime Boundaries’, SAYIL, Vol 18, 1992/93.
- See J Knauss and L Alexander, ‘The Ability and Right of Coastal States to Monitor Ship Movement: A Note’ (2000) 31 Ocean Development & International Law 377–381.
- Territorial Sea and Exclusive Economic Zone Amendment Act. However, section 5 of the Namibian Customs and Excise Act of 1998 applies to any goods mined in the operation of installations or devices, including any floating or submersible drilling or production platforms, for the purposes of exploring and exploiting its natural resources, on the seabed. This may be construed to include mining activities within the exclusive economic zone.
- Article 33 of the UN Convention; see also Ian Brownlie, Principles of Public International Law (5th edn. Oxford, Clarendon Press, 1998). p 180. The necessity and relevance of the contiguous zone was debated at the Second Session of the Conference (1974); see also UNCLOS. 1982—A Commentary, op cit, p 269.
- Sir Gerald Fitzmaurice, ‘Some Results of the Geneva Conference on the Law of the Sea, Part I—The Territorial Sea and Contiguous Zone and Related Topics’(1959) 8 ICLQ 113.
- For example the Customs and Excise Act of 1998 and Immigration Control Act of 1993 would allow officers to enforce their powers on these vessels and installations operating on the shelf.
- See text in K R Simmonds, New Directions in the Law of the Sea, Binder 1, Oceana Publications, June 1995.
- See also the Territorial Waters Act 87 of 1963 as amended by Act 98 of 1977.
- See D J Devine, The application of South African law to offshore installations, TSAR, 1994.
- The United Kingdom Government extended the application of criminal and civil law to offshore activities by virtue of the Petroleum Act 1988 whereby the Government may make Orders in Council. See Scott Styles, Offshore Operations: Introduction (October 1999), UK Oil and Gas Law, Sweet and Maxwell. Vol I, June 2001, pp 1106–1112 for a discussion of the Criminal Jurisdiction (Offshore Activities) Order 1987, and the Civil Jurisdiction (Offshore Activities) Order 1987.
- Section 74.
- Brownlie, n 69 above, p 301. Some states apply their criminal and civil laws to these mining activities because they deem the continental shelf as part of their territory; others do it on the basis of their international law rights in the continental shelf. The Continental Shelf Act 1964 of the UK regards the shelf regime as not part of state territory, whereas the North Sea Installations Act 1964 of Netherlands asserted jurisdiction over fixed installations on the shelf to control ‘pirate’ broadcasting.
- Brownlie, n 69 above, pp 303–309. See also Research in International Law Jurisdiction with respect to Crime, AJIL, Vol 29, 1935, p 445.
- See Article 100, supra.
- In the Lotus case (1927), PCIJ Turkey argued that vessels on the high seas form part of the territory of the nation whose flag they fly. The court held that Turkey had not acted in conflict with the principles of international law by exercising criminal jurisdiction.
- For example, a Namibian citizen was arrested for killing a South African on board an offshore mining vessel outside the territorial sea of Namibia: see Werner Menges. ‘Gem ship murder trial hears murky evidence”. The Namibian newspaper, 15 March 2001.
- In the UK and USA, these acts include political, currency, immigration and economic offences. See also Joyce I’ DPP [1946] AC 347; and Nairn Molvan v AG, for Palestine [1948] AC 531.
- On 1 December 2000, the UN General Assembly adopted a resolution on the role of diamonds fuelling conflict, breaking the link between the illicit transaction of rough diamonds and armed conflict, as a contribution to prevention and settlement of conflicts (see A/Res/55/56). Conflict diamonds originate from areas controlled by forces or factions opposed to legitimate and internationally recognised governments, and are used to fund military action in opposition to those governments, or in contravention of the decisions of the Security Council. Countries that are affected include Sierra Leone and Angola (see http://www.un.org/peace/africa/Diamond.htm).
Journal of Energy & Natural Resources Law
Volume 21, 2003 - Issue 2