Constitutional and human-rights aspects of marine spatial planning

The importance of oceans cannot be overstated as they are vital for the environmental and economic well-being of South Africa. The state of South Africa’s ocean is on the decline due to increased human activities within its waters, which have caused devastation among marine resources that are limited in space, time and amount. These activities have caused elevated competition among ocean users resulting in undesirable effects such as loss of biodiversity. The challenge is not that these human activities are unregulated or unplanned, rather that there are planned and regulated on a sectoral basis by different sectors each with its own specific approach to the allocation and use of the ocean space. There is, therefore, a need for a holistic approach to ocean governance that views the ocean as a whole and not merely on a sectoral basis. The relatively new notion of Marine Spatial Planning (MSP) which establishes its authority in MSP instruments,1 has emerged as a comprehensive way to achieve this. This dissertation grapples with the questions surrounding whether the MSP instruments are consistent with the Constitution of the Republic of South Africa, 1996 (the Constitution). The dissertation departs by providing a background into the spatial jurisdiction of coastal states in the ocean space to clarify how far at sea South Africa can exercise its authority. This study concluded that even though the area of application claimed by the MSP Bill is consistent with the internationally prescribed territory of coastal states at sea, the MSP Bill should expressly state the different sovereign rights vested in coastal states by the United Nations Convention on the Law of the Sea, 1982 (‘the LOSC’) subject to the rights of other states in these waters. From here, the dissertation ventures into an analysis of which organs of state will be responsible for the development and implementation of MSP since it is an exercise of public power by the state. This part of the discussion involves inter alia an in-depth analysis of the separation of powers doctrine as far as planning matters are concerned. An essential premise is that MSP regulation requires all spheres of government to cooperate with each other. It is proposed that the MSP Bill should 1 The MSP Bill, GN 347 in GG 39847 of 2016-03-24 and the National MSP Framework for South Africa, GN 936 in GG 40219 of 2016-08-19. provide how these spheres of government should work together for the successful implementation of MSP. This dissertation then proceeds to discuss the right to equality, the environmental right, and the right to freedom of trade, occupation and profession which could potentially be impacted by the implementation of MSP. It is submitted that in the implementation of MSP, the goal must be to achieve an appropriate balance amongst these competing rights. Finally, considering the above analysis and discussions this dissertation moves to propose recommendations on how the MSP instruments can be amended to give effect to the requirements of these rights. Generally, the findings of this research reflect the consistency of the MSP instruments with the Constitution. However, for MSP to be implemented constitutionally, the proposed recommendations must be adhered to