Some Thoughts on the Interim Preservation of the N amibian Fishing Heritage

In 1 920 the League of Nations granted South Afriea a Mandate to administer the terri­ tory of South West Afriea . The League was wound-up after the Seeond World War. The newly-ereated United Nations tried to get South Afriea to eonvert the territory into a United Nations Trust Territory so that it eould supervise the administration of the terri­ tory. South Afriea refused to do so and frietion over this issue built up between it and the world organisation . It was alleged that South Afriean administration was not observing the terms of the Mandate. Eventually in 1 966 the General Assembly of the United Na­ tions purported to revoke the Mandate . 1 The Seeurity Council eonfirmed this2 as did the International Court of Justiee in an Advisory Opinion .3 To administer the territory the United Nations ereated the United Nations Council for Namibia.' In 1 973 a United Na­ tions Commissioner for Namibia was appointed and the General Assembly reeognized SW APO as the » authentie representative of the Namibian people« .5 South Afriea eon­ tests the validity of the various measures taken by the United Nations and the status of the Couneil for Namibia.6 A settlement proposal was aeeepted by South Afriea and SWAPO in 1 978 and this was endorsed by the Seeurity Counei ] . 7 A settlement has howe­ ver failed to materialize and so the states of the territory appears to be somewhere in a legal limbo between South Afriea and the United Nations.

In 1920 the League of Nations granted South Afriea a Mandate to administer the terri tory of South West Afriea. The League was wound-up after the Seeond World War. The newly-ereated United Nations tried to get South Afriea to eonvert the territory into a United Nations Trust Territory so that it eould supervise the administration of the terri tory. South Afriea refused to do so and frietion over this issue built up between it and the world organisation. It was alleged that South Afriean administration was not observing the terms of the Mandate. Eventually in 1966 the General Assembly of the United Na tions purported to revoke the Mandate.1 The Seeurity Council eonfirmed this2 as did the International Court of Justiee in an Advisory Opinion.3 To administer the territory the United Nations ereated the United Nations Council for Namibia.' In 1973 a United Na tions Commissioner for Namibia was appointed and the General Assembly reeognized SW APO as the »authentie representative of the Namibian people«.5 South Afriea eon tests the validity of the various measures taken by the United Nations and the status of the Couneil for Namibia.6 A settlement proposal was aeeepted by South Afriea and SWAPO in 1978 and this was endorsed by the Seeurity Counei].7 A settlement has howe ver failed to materialize and so the states of the territory appears to be somewhere in a legal limbo between South Afriea and the United Nations. It is not the purpose ofthis paper to examine the precise status ofthe territory but simply to draw attention to the fact that (i) a settlement has not been achieved, (ii) this has pro duced a situation in which neither South Africa nor the United Nations Council can take practical steps of a legal nature to protect the interests of the territory and in particular the Iiving marine resources. The in ability is, therefore, a source of prejudice to the inte rests involved. The prejudice may very weil continue until a fi nal solution has been achie ved and this is generally recognized.

The Factual Situation
The waters off Namibia contain such rich resources offish that they have been frequented by long-distance fishing ships for a considerable length of time. Outside the 12 mile zone from the coastline8 there are few restrictions on exploitation of Iiving resources.9 The re sult is that the zone is being plundered of its resources principally by fishing fleets from the USSR, Bulgaria, Cuba, East Germany, Poland and Rumania. In March, 1983, of 185 ships operating in waters off Namibia, 121 belonged to Eastern Block countries. The ships fish with non-regulation small-mesh nets and are not controlled by South African patrols. Annual losses in fish stocks have been estimated at about 7 1/2 million dollars. 10 The situation continues and may continue until a final solution is achieved wh ich is ac corded general recognition.l1 It is c1ear, of course, that if there should be an independent Namibia generally recognized by other states, it could create a 200 mile exclusive fishing zone (or Exclusive Economic Zone). 12 This in turn would be generally recognized also and would therefore be respected by the international community. Long-distance fishing fleets would not be able to plunder the resources in question with impunity on the pretext that there was no valid 200 mHe exclusive zone since nobody had the legal right to create one. A fi nal solution of the Namibian question does not however appear to be in the im mediate o(fing so the question is what practical measures could now be taken to prevent the depletion of resources pending a final solution. These measures, if they are to work would have to have two characteristics (i) They should be provisional or interim. A solu tion to the preservation of Iiving resources needs to be introduced even if the status of the territory itself has not yet been definitely settled; (ii) They should be without prejudice. They should, therefore, take into account the positions of the United Nations Council, South Africa and of a fu ture Namibian Government. None of these parties should be deemed to have abandoned its stance on the legal issues involved simply because it parti cipates in an interim solution, perhaps even co-operating with other protagonists. Neit her should any of the parties be deemed to admit the stance of any other party on the le gal issues by virtue of its participation. Claims and rights, such as they may exist, should not be strengthened or weakened by the fact of participation. Participation should in fact be irrelevant to the existing legal status quo whatever that may be.13

IH. Existing Solutions and Their Limitations
Two main regimes appear to be developing side by side and they would even appear to be alike. They are the South African solution and that of the United Nations Council. Each regime is overlapped by an international regime of a limited character within the frame work of ICSEAF.

The South African Solution
Up to 1977 the maritime zones of NamibiajSouth West Africa were the same as those of South Africa itself. They were in fact created by the same Act of Parliament.14 The zone created was a 12 mile fishing zone from low-water mark.15 As a result of depletion of re sources South Africa created a 200 mHe fi shing zone for itself in 197716 and this had a very great effect in reducing foreign fi shing off its coast. The result was that by the early 1980s fish stocks were again being replenished.17 The 1977 legislation did not however apply to South West AfricaY The reason for this might be the des ire to avoid conflict in view of the disputed status of the territory at the time (and since) coupled perhaps with the burden which patrolling such an extensive Namibian zone would impose. In the same year 1977, the Walvis Bay enclave, which up to then had been administratively part of South West Africa was re-incorporated into the Cape Province for alle purposes. 19 The result is that the Walvis Bay enclave has a 200 mile fishing zone.20 A new Marine Affairs Bill of 1985 will create a South African Exclusive Economic Zone (EEZ) if it becomes lawY It is interesting to note here that this EEZ will also exist off 13 sm all uninhabited islands which all stand within a short distance of the Namibian coast and over wh ich South Africa exercises territorial sovereigntyY The presence of these islands will un doubtedly give rise to delimitation problems both landward and seaward ofthe islands23 but it is not the intention of this paper to investigate such problems. This paper will con fine itself to the general question of preserving living resources in waters within 200 miles of the N amibian coastline, the status of which is not complicated either by the existence of the Walvis Bay enclave or the South African islands -in other words those waters which would undoubtedly be Namibian if Namibia were to be independent. In 1979 the Administrator-General of South West Africa made regulations in terms of which the legislation on maritime zones for the territory was to be brought into line with the South African legislation.24 A 200 mile fishing zone was created. The structure there fore exists for the protection of the living resources of the zone in question and it is now necessary to dweil upon its defects and limitations in this respect. The following observa tions may be made. Future Namibian claims to Walvis Bay must therefore be of a political character rather than of a legal one. 20 The writer arrived at this conclusion after discussing the interpretation to be given to the relevant legislative provisions (see notes 16, 19 supra) in .. Some Observations on South African Maritime Zone Legislation«,

(a) Legal Uncertainty in Municipal Law
Though the Administrator-General has purported to give effect to the operation of the 1979 regulations,25 it is not altogether c1ear wh ether or not they are in operation since ul timately they depend on the assent of the State President of the Republic to bring them into operation.26 If this is so it would be very difficult to enforce fi shing conservation measures even against ships flying the South African flag in the waters in question unless this was done on the basis of flag-state jurisdiction. Enforcement against foreign ships would be out of the question.

(b) International Law Uncertainties
Since South Africa's right to create a 200 mile EEZ off Namibia must ultimately depend on whether the Mandate has been validly revoked or not,27 a matter which as we pointed out, has not been finally and conclusively determined in a legally binding manner, it fo l lows that there would be great uncertainty about the international law validity of such a zone even if it should be c1early seen to exist in municipal law. The result would be that the right to enforce conservation measures in the zone against foreign ships would not be admitted by the flag states and would be fraught with danger.28 There could even be difficulty in the 12 mile fishing zone established in 1963.29 Though the zone certainly exists legally and is opposable to all third states since it was created before 1966, the South African right to administer the zone and enforce measures in it could be a matter of dispute in the post 1966 era.30 It does not necessarily follow from the fact that the zonal status is opposable to third states that the right to enforce in the zone is similarly opposable.31

(c) Practical Dif ficulties
It could be that even if the above difficulties could be solved, the enforcement of conser vation measures in the 200 mile zone might simply impose such a burden on the slender South African patrolling resources that the country might be unwilling to shoulder the additional tasks and expenses involved.31a

The United Nations Solution
The United Council promulgated a 200 mile EEZ off Namibia in 1985.32 It has therefore also created a legal structure for the preservation of living resources in the zone and it is thus necessary to dweil on the defects and limitations inherent in this structure.

(a) »Municipal« Law Amplijication
For practical purposes we can equate the United Nations Council regulation creating the zone as being equivalent to, or of the same nature as, the legislation of a state doing like wiseY On the assumption that such legislation is valid it would still need to be amplified by fu rther »municipal« legislation in order to achieve the necessary objectives. Thus the Council would need to create further legislation on detailed matters concerning fishing and conservation. This would be similar in nature to the legislation of a state doing the same thing. The simple amplification or enactment of »municipal« law in this sense would not pose insuperable problems.34

(b) International Law Uncertainties
There are several problems wh ich present themselves here. They arise from the following three factors (a) the South African legal stance, (b) the attitude of the Soviet Union (USSR) and (c) the attitude of SWAPO.

The South African Stance
We have seen that South Africa denies the competence ofthe United Nations Council for Namibia and that whether South Africa or the Council is correct in this respect has ne ver been determined in a conclusive and legally binding process. Despite the views of the overwhelming majority of states on the legal situation35 the matter is not res judicata. Hence the right of the Council to create the zone in question, to legislate for it and to take enforcement measures in it could be contested by South Africa.36 Given the near proximity of South Africa to the area in question, its faetual presenee in the territory and its legal stand point, it would be extremely diffieult to enforee Couneil measures in the area unless other states voluntarily respected them and there would always be the speetre of doubt as to their inherent validity. 37 The USSR Attitude We have seen that the USSR is one of the main, if not the principal aetor, involved in the exploitation of the living resourees of waters off Namibia. 38 It is not surprising therefore that it objeeted to the ereation of an EEZ by the Couneil.39 This standpoint eould be eor reet if the Mandate has not been validly terminated. It would also be correet if the erea tion of the EEZ exceeded the internal eonstitutional eapaeity of the Couneil. Though there is a presumption that the international organization has not exeeeded its powers it is a rebuttable one.40 It would morever appear 0 be most unlikely that either of the above issues will be determined in a legally binding and conclusive manner.4l The result ofthis is that the Couneil's EEZ and any provisions it may adopt on it may not be opposable to the USSR.42 Thus enforeement against the USSR, even assuming that it should be phy sically possible, is legally problematie.
36 Whatever rights South Africa may have in the matter it has been careful to keep by the device of protest. See note (6) supra. It is unlikely that other states could in general contest Council authority because of the recognition factor mentioned in the previous footnote which would make Council authority opposable to them. Thus, at the very least, Council authority would have a very substantial degree of relative validity. 37 Because of its protests it is possible that Council authority is not opposable to South Africa. The uncertainty can only be finally resolved by either (i) a settlement involving all the parties or (ii) a binding judicial decision or arbitoral award. A binding judicial decision is not possible because the UN cannot be a party to contentious proceedings before the World Court and it is res judicata that individual states do not have a legal interest in the dispute as was decided by the World Court in 1966 in the case brought by Liberia and Ethiopia against South Africa. An arbitration on the matter would require mutual consent of the parties.

The SWAPO Attitude
We have seen that SWAPO has been recognized by the United Nations as the sole repre sentative of the people of NamibiaY Does SWAPO have to recognize the EEZ created by the Council for Namibia and wh at would be the legal implications of non-acceptance for the status of the EEZ in question? Here is it submitted that a preliminary distinction must be drawn between )representation of the people of Namibia< and )administrative powers in respect of the territory< recognized by the United Nations. The former per tains to SWAPO while the latter is granted to the United Nations Council. The act of creating an EEZ is an administrative one and is therefore one which pertains to the Council as the administrative authority. It does not pertain to the )representative< of the people through that representative may be the administrative authority at so me future date in an independent Namibia. Thus primajacie a non-acceptance by SWAPO would not per se invalidate the Councils' EEZ as far as other states are concerned. It is submit ted however that even at this stage the attitude of SWAPO would have some legal rele vance in relation to the zone. SWAPO has been recognized by the United Nations as the sole representative of the people of Namibia. Hence good faith should require that the United Nations organs take into account the views of SWAPO on Namibian que stions.44 The Council is such an organ and it is submitted that before creating an EEZ it would be obliged (I) to consult SWAPO and (2) to consider in good faith the views of the latter. Beyond this it is submitted its obligations would not extend. Hence it would not be obliged to actually follow the views of SWAPO in the last analysisY If however the Council did not consult SWAPO or did not take into account in good faith its views, its actions could possibly be impugned on the ground that as an international organization it had not acted in good faith.46 Such a fact would have fa r-reaching implications for it 43 Note (5) supra. 44 The United Nations organs must be estopped by practices they have adopted over the years in relation to nonself-governing peoples (see for example especially the Declaration by the Assembly on the Granting of Independence to Colonial Countries and Peoples 1960) from omiting of neglecting to treat with those whom they recognize as the representatives of such peoples. This must be so even if the principle of self-determinati on has not, as yet, finally succeeded in establishing itself as a legal principle involving specific legal rights and duties in international customary law (obviously the principle does exist as a legal one under the UN Covenants on Human Rights 1966 for parties to those Covenants). 45 SWAPO in fact did voice its objections to the creation of an EEZ at the General Assembly of the UN where it has observer status. Its objections were based on the fact that it had not been consulted. would in effect amount to unconstitutionality and would therefore nullify the Act of the Council. Nullity in this case would not merely be relative to SW APO but would in effect be an absolute nullity erga omnes with all that that would imply in relation ot respect for the zone. It would mean that other states which recognize the authority of the UN Coun cil would not be bound by its acts in casu and might therefore refuse to respect the zone created by it.47 Hence it is suggested that the Council should act with prudence in rela tion to SWAPO when it takes concrete steps on Namibian questions at the risk of voiding its acts.

Practical Dif ficulties
Even if a correct regime both from a ��municipal« and an international law point of view should be created, the difficulties would only be commencing. For the Council does not possess the means to enforce its regime in the EEZ against those who refuse to observe it. It would in effect have to delegate enforcement to a state or states but this might en counter a number of difficulties. In the first place is it constitutionally capable of such delegation? The Council itself is not a primary organ of the United Nations or of its spe cialized agencies. It is a delegate of the General Assembly itself. Would the principle de legatus delegari non potest apply and would the Council have to refer back to the Gene ral Assembly for such power?48 In the second place would the United Nations budget be prepared to support such a patrolling activity if the General Assembly should authorize it? In the third place if the budget of the United Nations would not fi nance the activity, would any state or states be prepared to do it? And would the Assembly be able to agree on who those states should be? And fi nally wh at would be the response of the USSR and South Africa to such enforcement measures if they should come about? It is apparent from all the above that the practical problems of enforcing a UN EEZ could be extreme ly difficult.49 The power to administer and legislate would appear to be conferred on the Council and there is no mention of a power to delegate. In the case of international organizations a presumption exists that not only are the powers expressly mentioned given to the Organization but also all power necessary to accomplish its aims unless excluded. See H. G. Schermers International Instilutional Law (1972) Vol. 11, p. 488. The founding states are deemed to have intended this. It must be asked however whether this principle can be extended so as to give implied powers to the delegate of the Organisation? There is also the presumption that an international organization acts within its jurisdiction. See Schwarzenberger, note 46, supra. p. 209. Does this apply to a delegate of the Organization? 49 Moorman, note (10) supra. p. 82 concedes that as the Council has no means of enforcing its executive decisions a Council -authorised EEZ might end up as a paper decision.

IV. A compromise provisional Solution
In view of all the difficulties wh ich would beset both South Africa and the UN Council in trying to preserve Namibia's marine living resources it is suggested that a compromise, interim and provisional solution should be adopted so that depletion should cease and the assets be preserved for a future Namibia in so far as it is possible to do so. This would involve co-operation wh ich should be at an unofficial level or through the good offices of an intermediary. A number of principles should guide the fo rmulation of a solution.

Zonal Parity
Each party could create zones as similar to each other as possible.so The legislation of South Africa and the action taken by the United Nations Council might be regarded as separate unilateral declarations aimed at achieving a similar result. The only parties with possible rights of an administrative or jurisdictional character in relation to the territory are, in fact, South Africa and the United Nations.s1 If both have similar zones (though independently of each other) this zonal geographical area, it is submitted, would be op posable to all states. The United Nations zone, if intra vires the powers of the Council, would be opposable to all states who recognize the authority of the Council. lt could even be binding on the USSR by estoppeP2 Should any objection be raised on the basis that the territory does not fall subject to UN jurisdiction, the objecting state would then have to admit the continued existence of the Mandate with consequent respect for the si milar zone proclaimed by South Africa. The result would be to give legitimacy to the zone thus created, its opposability to other states, including the USSR, and thus the creation on the necessary conditions for respect. Legitimate zones are generally respec ted in practice.

Non-Prejudice to the Parties
Neither South Africa nor the United Nations Council would recognize the rights of the other nor would any such recognition be implied from the arrangement. This non-recog nition could even be made explicit in a declaration to rebut any possible implication of recognition.

Respect ror Licences to Fish
Each party might grant licences to fish. The grant of these licences should be accepted in fact as the performance of routine administrative acts for the proper management of the territory and its maritime resources by a de facto authority.53 The United Nations could regard a South African licence as one gran ted by a de fa cto occupier rather than one granted on the basis of title.54 South Africa could regard the grant of United Nations li cences as being based on expediency rather than on rights.55 Transparency Each party would have to be fu lly and timeously informed of the licensing acitivities of the other so that it would grant its own licences from an informed position. The pro blems which direct contact might pose for the parties could be resolved through the good offices of an intermediary wich could act as a clearing house.

Provisional Arrangement
It should be understood that the arrangement was to cease on Namibia's independence. Licences would have to be granted on this condition and licensees so informed. With this in mind too, licences should be granted for limited periods and then be renewed as neces sary. This would have the advantage of preventing either of the parties monopolizing li censing and thus pre-empting licensing by the other.

(a) Recognition of Endagered Sp ecies
The anchovy and the pilchard should be recognized as such and the utmost caution exercised in their management.S8 (

Universality
The arrangement should apply off the entire coast of the territory -including those parts wh ich may later be the subject matter of delimitation disputes.67 It should not however prejudice such claims in any way.

Informality
The greatest degree of informality should be preserved . Formality would probably de stroy any chance of success that the arrangement might have because the parties might be tempted to bolster their legal arguments in disputed matters by referring to fo rmale le gal arrangements. The arrangement should be clearly seen to create to international ob ligations for the parties. It should be a »comity« arrangement.

Unilateral
There should not even be an agreement -let alone a treaty. It should be an understood arrangement. Each party would implement it in fact and could make a declaration wi thouth prejudice to that effect if it wished. If declarations were made they could be harmonized both as to time and content through the good offices of an intermediary. An arrangement made on the basis of the above principles would preserve the positions of the three entities presently involved in the territory, South Africa, the United Nations and SWAPO.68 As far as SWAPO is concerned, its concerns would be reflected in the fact that the arrangement would be provisional, that an appropriate exploitation was be ing presently arranged, that the net proceeds of this were being reserved and that consul tation could take place. It is clear that the concerns of South Africa and the United Na tions would be overlooked either. A modus vivendi, perhaps somewhat uncomfortable, would have been achieved amongst these strange bedfellows constituting a kind of inter national menage a trois!

V. Conclusion
The above solution would require a degree of tolerance and cooperation by the parties, though not necessarily direct cooperation. Any relationship involved would be unoffi cial and even informal. The good offices of well-disposed third parties could be used in whom both South Africa and the United Nations Council might repose their confidence. Arri ving at a solution along these lines might pose difficult problems but they should not be insuperable. The price of not making the effort and of refusing to advance in fact from a priori positions -even without prejudice to those positions -will be continuing depletion of Namibia's living marine resources.
Parliament, which appears to be seen always as the true base of national interlocuteurs. Parliament's strength is sapped not only in this way; the now ill-defined fo rmation of ex ecutive -in the public eye -becomes still more diffi cult to contro!. Abuse of power then has the tendency to multiply considerably. It is the recipe for authoritarianism.

Some Thoughts on the Interim Preservation or the Namibian Fishing Heritage
By D. J. Devine The raison d'etre of this paper is the fact that no immediate solution of the South West AfricajNamibia political problem appears to be in sight and that the offshore living ma rine resources of the territory are being depleted in this period of political and legal un certainty. The principal element which militates against the proper conservation ofthese resources in the absence of a 200 nautical mile fi shing zone opposable to all states and re cognized and respected by them. The paper does not address the problem of solving the political problems of the territory but investigates what might be done by way of interim measures to preserve the resources in question on the assumption that the overall political resolution of the territory's status may not be fo rthcoming for so me time. Inadequacies in the existing legal mechanisms are highlighted and a plea is made for co-operation bet ween the various political actors in an effort to preserve such valuable resources. Sugge stions are made as to possible characteristics of such co-operation and ideas such as in fo rmality of arrangements, provisionality pending fi nal solutions, transparency and con sultation are examined. The hope is expressed that practical common sense will over come apriori political positions in the search for an interim solution to avoid the conti nu ing depletion of the resources.