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A CRITICAL ANALYSIS OF THE NAMIBIAN SEABED PHOSPHATE

MINING MORATORIUM FROM AN ENVIRONMENTAL LAW


PERSPECTIVE.

Dissertation Submitted to Nottingham Trent University in Partial


Fulfilment of the Requirements for the Degree Masters of Laws in
Oil, Gas and Mining Law.

Submitted By:

STANLEY LINEEKELA KAMBONDE


N0563966

Supervisor:

Professor David Ong

Date of submission:

25 September 2015

Table of Contents
Declaration .................................................................................................................... 5
Supervisor`s Certificate ................................................................................................ 6
Acknowledgements ....................................................................................................... 7
Abstract ......................................................................................................................... 8
List of Abbreviations .................................................................................................... 9
INTRODUCTION ...................................................................................................... 11
i.

Background and Motivation ........................................................................... 11

ii.

Approach, Scope and Limitations ................................................................... 14

CHAPTER ONE: CORPORATE SOCIAL RESPONSIBILITY AND


STAKEHOLDER ENGAGEMENT WITHIN THE EXTRACTIVE INDUSTRY:
TRILEMMA INVOLVING LINE MINISTRIES, ENVIRONMENTALISTS AND
THE FISHING INDUSTRY. ...................................................................................... 16
1.1.

Introduction ................................................................................................. 16

1.2.

Article 144 of the Namibian Constitution................................................... 18

1.3.

Stakeholder Engagement ............................................................................ 18

1.4.

Definition of Stakeholder............................................................................ 21

i.

Who participates? ....................................................................................... 21

ii.

What triggers the participation of affected stakeholders? ....................... 26

CHAPTER TWO: PERMANENT SOVEREIGNTY OVER NATURAL


RESOURCES (PSNR) IN NAMIBIA: A PRE AND POST INDEPENDANCE
APPROACH ............................................................................................................... 28
2.1.

Pre-independence: Apartheid Regime and PSNR ...................................... 28

2.2.

The Legal Status of PSNR .......................................................................... 33

2.3.

Transformation of PSNR into International Environmental Law ............... 37

2.4.

Post-Independence era: PSNR under the Namibian Constitution .............. 43

CHAPTER 3: THE LEGAL FRAMEWORK FOR ENVIRONMENTAL


PROTECTION IN NAMIBIA .................................................................................... 51
3.1.

Introduction ................................................................................................. 51

3.2.

The Environmental Management Act, 7 of 2007 ....................................... 51

3.3.

The Benguela Current Convention ............................................................. 55

3.4.

Definition of the term Environment ........................................................ 57

3.5.

The Concept of Sustainable development .................................................. 60

CHAPTER 4: THE PREVENTATIVE AND PRECAUTIONARY PRINCIPLES .. 64


3.1.

The Preventative Principle .......................................................................... 64

3.2.

The Precautionary Principle........................................................................ 65

3.3.

The Precautionary Principle amongst Scholars .......................................... 66

3.4.

Variables of the Precautionary .................................................................... 69

3.5.

Versions of the Precautionary Principle ..................................................... 72

3.5.1.

Weak Versions .................................................................................... 73

3.5.2.

Strong versions ................................................................................... 75

3.6.

Level of Acceptable Risk ............................................................................ 79

3.7.

Environmental Impact Assessment vs Strategic Environmental Assessment


84

CHAPTER 5: ENVIRONMENTAL REGULATION IN NAMIBIA: THE


MORATORIUM ON SEA BED PHOSPHATE MINING ........................................ 89
3.1.

Moratoriums: Definition and Nature .......................................................... 89

3.2.

Cabinet Directives: Legality and Legal Effect ........................................... 91

3.3.

Lapsing of Moratorium: Justification for Extension? ................................. 92

CHAPTER 6: CONCLUSION AND RECOMMENDATIONS .............................. 102


CHAPTER SEVEN: BIBLIOGRAPHY .................................................................. 110
7.1.

PRIMARY SOURCES ............................................................................. 110

7.1.1.

National Legislation .......................................................................... 110

7.1.2.

Regional Instruments ........................................................................ 110


3

7.1.3.

International Instruments .................................................................. 110

7.1.4.

List of Cases...................................................................................... 112

7.2.

SECONDARY SOURCES ....................................................................... 113

7.2.1.

List of Books ..................................................................................... 113

7.2.2.

List of Journal Articles ..................................................................... 114

7.2.3.

Thesis ................................................................................................ 116

7.2.4.

Policy documents and working papers ............................................. 116

7.2.5.

Newspapers and Magazines .............................................................. 116

7.2.6.

Internet .............................................................................................. 118

Declaration

I , the undersigned, do hereby declare that I am the author of this dissertation


and that, unless otherwise stated, all references cited have been consulted and
that this dissertation has not been previously accepted for a higher degree.

___________________________
Stanley Lineekela Kambonde

___________________________
Date

Supervisor`s Certificate

I, Prof. D Ong, hereby certify that the research and writing of this dissertation
was carried out under my supervision.

Signature:

___________________________

Date:

___________________________

Acknowledgements

I am forever in the debt of the Heavenly Father, as this academic achievement


would not have been possible.

I would like to sincerely thank the Founding President of the Namibian nation,
Dr. Sam Nujoma, for believing in my abilities and granting me the financial
assistance required to pursue this program. Further, many thanks are extended
to the esteemed Nottingham Trent University, especially my supervisor Prof.
David Ong for ensuring that my research is up to standard, and Ms. Selma
Toohey for her unwavering support during my studies. For their substantive
contribution and encouragement: Dr Wilson Benjamin, Mrs Eveline Benjamin
and Dr Tshali Iithete Thank you. To my dear mother Suama Mvula, I am
forever grateful.

My acknowledgement is extended to my family for always being supportive


during my studies, and to my fellow students at NTU for motivating and
pushing me. For those too many to mention who played major and minor roles
in making this paper a success, my sincere gratitude goes to you all.

Abstract

The Namibian Cabinet imposed an 18 month moratorium on phosphate seabed


mining on the 17th of September 2013, which initially lapsed on the 17th of
February 2015 without the Strategic Environmental Assessment (SEA)
process being finalised by SINTEF. What has ensued is a heated debate on
whether or not to extend the moratorium, with the affected parties headed by
the Ministry of Fisheries and Marine resources (MFMR) relying on the
precautionary principle as justification for such an extension. The Ministry of
Mines and Energy (MME) on the other hand, supported by the mining right
holders of Namibia Marine Phosphate (NMP) and LL Namibia Phosphates
(LLNP) argue that since the moratorium has lapsed, the rights holders should
be allowed to proceed with the proposed mining activities.

The study seeks to explore the various options available from an


environmental perspective as they apply to the facts, using domestic, regional
and international instruments to put forward various arguments aimed at
finding an amicable solution to the current legal conundrum.

List of Abbreviations

BBC

Benguela Current Convention

CERDS-

Charter of Economic Rights and Duties of States

CNFA

Confederation of Namibian Fishing Associations

CSR

Corporate Social Responsibility

EAP

Environmental Assessment Practitioner

ECC

Environmental Clearance Certificate

EIA

Environmental Impact Assessment

EMA

Environmental Management Act

ICCPR

International Covenant on Civil and Political Rights

GDP

Gross Domestic Product

LLNP

LL Namibia Phosphates

MET

Ministry of Environment and Tourism

MFMR

Ministry of Fisheries and Marine Resources

MME

Ministry of Mines and Energy

MNE

Multinational Enterprise

NAMPORT Namibia Ports Authority


NHA

Namibia Hake Association

NMP

Namibia Marine Phosphate

OECD -

Organization for Economic Co-operation and Development

PSNR

Permanent Sovereignty over Natural Resources

SEA

Strategic Impact Assessment

SINTEF -

SINTEF Fisheries and Aquaculture

SWA

South West Africa


9

UN

United Nations

UNCED

United

Nations

Conference

on

the

Environment

and

Development
UNCN -

United Nations Council for Namibia

UNCLOS -

United Nations Convention on the Law of the Sea

UNGA

United Nations General Assembly

10

INTRODUCTION

i.

Background and Motivation

Namibia has an abundance of biological and mineral resources, with the


fishing and mining industries being the backbone of the countrys economy.
Land-based phosphate deposits have been the main source of the phosphorous
component used in commercial fertilizers and even though several coastal and
marine deposits have been known to exist around the world, they are yet to be
mined.

Namibian deep waters are estimated to hold the 7th largest phosphate rock
reserves in the world and with De Beers proving the success of marine
diamond mining (albeit at lower depths), phosphate mining companies have
argued that Namibias marine phosphate deposits will provide economic
prosperity, jobs and food security for Namibia if successfully mined. As
mining companies lined up to gain access to these resources, the Ministry of
Mines and Energy (MME) granted two companies Namibia Marine
Phosphate (NMP) and LL Namibia Phosphates (LLNP) - offshore mining
licences to exploit phosphate deposits in Namibias deep waters.

The possible irreversible damage posed by marine phosphate mining on the


fragile ocean systems due to the bulk sea-bed extraction process of
phosphorites has caused jurisdictions such as New Zealand, Australia and
Papa New Guinea to strongly oppose such activities within their waters. In
order to responsibly manage the sustainability of the nations living and
11

mineral assets, the cabinet approved a submission by the MFMR Minister,


Bernhard Esau, for an 18 month temporary moratorium to be imposed on bulk
seabed mining activities for industrial minerals, base and/or rare metals, with
specific reference to phophorites. The basis of the moratorium was to allow a
Strategic Environmental Assessment (SEA) to be conducted in order to access
the impact that marine phosphate mining would have on the Namibian fishing
industry and marine resources alike.

The Norwegian-based Foundation for Scientific and Industrial Research,


SINTEF Fisheries and Aquaculture, partnering with the Norwegian Institute of
Marine Resources, was contracted by the MFMR to conduct a scoping study
to determine the impact of marine phosphate mining on the ocean
environment with specific emphasis on the fishing grounds within the
Benguela Current Large Marine Ecosystem.1 Upon the lapsing of the
moratorium on the 17th of March 2015, the scoping report produced by
SINTEF, which involves the process of determining the content and extent of
all matters to be covered for purposes of the environmental assessment, only
included Terms of Reference for the Strategic Environmental Assessment
(SEA) and these scientific studies were insufficient to address the
environmental and fishing industry concerns.

What ensued is a debate between the sustainability of the marine ecosystem


and fishing industry on the one hand, and the exploitation of sea-bed

The Namibian Newspaper (13 December 2013). Norwegians to Study Nam Marine

12

phosphate deposits in the deep waters off Namibias coast by mining


companies on the other.

The MFMR, acting on its mandate as custodian of fisheries and marine


resources, is advocating for the moratorium to be extended in order to allow
SINTEF to carry out the required scientific reports that will establish the
impact on the fisheries sector and marine environment if marine phosphate
mining is permitted.

The concerns by the MFMR indicating that the proposed mining activities
may affect fish breeding grounds and in turn distress the recovery of fish
stocks2, is supported by the Confederation of Namibian Fishing Associations
(CNFA) and the Namibian Hake Association (NHA) through its chairperson
Mr Matti Amukwa, and environmentalist groups such as Swakopmund
Matters and Earth Organisation of Namibia.

This coalition between the

MFMR, CNFA and environmentalist groups is being challenged by the MME


and the phosphate mining companies, who are adamant that mining activities
should be allowed to proceed due to the lapsing of the moratorium.

The above facts have created a legal conundrum involving various


stakeholders that have been affected by the moratorium in more ways than
one. This study seeks to analyse, from a neutral environmental perspective, the
environmental legal frameworks as they relate to the current debate on

2

The Namibian Newspaper (27 May 2015). Battle over Phosphate, Shinoveni Immanuel.
Available at: http://www.namibian.com.na/indexx.php?id=27065&page_type=story_detail.
[Accessed last 24/06/2015].

13

whether to extend the moratorium or not. Chapter one of the study seeks to
establish the legitimacy of the affected stakeholders from a stakeholder
engagement perspective, before proceeding to chapter two which will explore
the development of the doctrine of Permanent Sovereignty on Natural
Resources (PSNR) in light of its contribution to the evolution of
environmental law and the need to equilibrate development with the wellbeing of the people.

Chapter three will further investigate the legal framework for environmental
protection in Namibia in its domestic, regional and international context, with
chapter four proceeding to shed more light on the preventative and
precautionary principles as they relate to the topic. Given the underlying
circumstances surrounding the moratorium, chapter five of the study intends
to explore the nature and scope of the moratorium and the issues pertaining to
its legality and proposed extension. Concluding will be the findings of the
study and recommendations in chapter six.

ii.

Approach, Scope and Limitations

As custodian of all natural resources in Namibia, whether or not to permit seabed phosphate mining in Namibias deep waters remains the prerogative of the
government.3 Ultimately, this study seeks to answer the question of how such
a prerogative, in terms of environmental regulation, is justified from an
environmental perspective.

3

th

Jewish Business News, (30 April 2014) Lev Levievs $800 Million Ocean Phosphate Mining
Project In Namibia Stalled By Environmental Mixup. Available at:
http://jewishbusinessnews.com/2014/04/30/lev-levievs-800-million-ocean-phosphatemining-project-in-namibia-stalled-by-environmental-mixup/. [Accessed last 25/06/2015].

14

The study envisages a primarily qualitative legal approach, suggesting a


comprehensive analysis of primary sources comprising of principle national,
regional and international instruments as well as key policy documents. The
unprecedented nature of the study will warrant a further assessment of
literature ranging from textbooks, journal articles and reports that would aid in
establishing a better understanding of Namibias environmental legal
framework as it relates to the study.

The fact that cabinet is yet to make a decision on the status of marine
phosphate mining in Namibia has meant that the reports and findings
submitted by SINTEF, including relevant information pertaining to the
moratorium, are yet to be released for public consumption. At the current
juncture, the author is unable to assess such findings for analytical purposes,
making the fact-finding process challenging due to the reliance on newspaper
articles and websites to formulate such facts as line ministries have been
reluctant to divulge relevant information until a decision has been reached by
Cabinet. Nonetheless, the above does not hinder the aim of the study in terms
of a well-founded academic approach.

15

CHAPTER

ONE:

CORPORATE

SOCIAL

RESPONSIBILITY AND STAKEHOLDER ENGAGEMENT


WITHIN THE EXTRACTIVE INDUSTRY: TRILEMMA
INVOLVING LINE MINISTRIES, ENVIRONMENTALISTS
AND THE FISHING INDUSTRY.

1.1.

Introduction

Rio Tinto, remarking on the companys Corporate Social Responsibility


(CSR) towards its Rossing Uranium Project in Namibia, indicated that:

The notion of Corporate Social Responsibility [] hinges on fiveprinciple themes Social Responsibility, Corporate- Community
Partnership, Environmental Stewardship, Workplace and community
health, and Corporate Social Responsibility.4

The above quotation is similar to the mantra echoed by many, if not all
multinational enterprises (MNEs) who acknowledge the importance of CSR
towards projects within the extractive industry. MNEs need to assume a
human face, taking the interests of those affected by their operations into
consideration when making business decisions. This can be observed from the
spirit of the Organization for Economic Co-operation and Development
(OECD) Guidelines for multinational enterprises (MNE), the most
comprehensive set of recommendations in existance which are jointly

4

Anon, n.d. Corporate social responsibility: Rio Tinto in Namibia- The Rossing Project.
Available at
https://www.academia.edu/2913410/Corporate_Social_Responsibility_Rio_Tinto_at_Rossin
g. [Accessed Last 03/07/2015], p. 6.

16

addressed by governments to MNEs in order to provide such enterprises with


principles and standards of good practice consistant with applicable laws.

The principles and standards offered by the guidelines are voluntary5 and
non-binding6, offering a legal document that relies on member countries to
make a binding commitment to implement them.7 The Guidelines state that no
definition for MNE is required and includes all MNEs (parent companies
and/or local entities) as addressees, with Cernic noting that such responsibility
to observe the Guidelines extends to parent companies exercising [c]ontrol
over the activities of their subsidiaries in such countries.8 According to
Davarnejard, the fact that MNEs are expected to respect these Guidelines
wherever they operate is particularly important in the CSR context because
[t]he most severe issues occur in developing countries not in the territory of
the industrialized OECD member.9

The range of areas considered under the Guidelines include employment and
industrial relations, environment, combating bribery, consumer interests,
science and technology, competition, and taxation.10 Without Namibia being
an explicit member of the OECD, its importance in the better understanding of

OECD Guidelines for Multinational Enterprises (2011). Available at:


http://www.oecd.org/corporate/mne/1922428.pdf. [Accessed 05 August 2015], p. 13.
6
Op cit, p. 3.
7
Op cit, p. 13.
8
Cernic, J. 2008. Corporate Responsibility for Human Rights: A Critical Analysis of the OECD
Guidelines for Multinational enterprises. Hanse Law Review, 3 (1), p. 79.
9
Davarnejad, L. 2011. In the Shadow of Soft Law: The Handling of Corporate Social
Responsibility Disputes under the OECD Guidelines for Multinational Enterprises. Journal of
Dispute Resolution, 2 (6),pp. 1-36, p. 6.
10
Op cit, p. 3.

17

possible mechanisms capable of requiring MNEs to adhere to various social


and environmental mechanisms nontheless takes shape.

1.2.

Article 144 of the Namibian Constitution

As a point of departure, article 144 of the Namibian Constitution provides


that:

Unless otherwise provided by this Constitution or Act of Parliament,


the general rules of public international law and international
agreements binding upon Namibia under this Constitution shall form
part of the law of Namibia.

With Namibia following a monist approach which directly affords the


domestic treatment of international customary and treaty rules, it appears that
the automatic incorporation of international law into national law is not
absolute as it can be excluded by the Constitution or by statute. Nonetheless,
the interchangeable use of international and domestic instruments and terms
within this paper are synonymous within the Namibian legal system.

1.3.

Stakeholder Engagement

The concept of stakeholder engagement is synonomous with the extractive


industry, more so as MNEs seek to involve stakekholders in their planning
and decision making process. This concept was recently included in the
revised edition of the OECD Guidelines calling for MNEs to

18

[e]ngage with relevant stakeholders in order to provide meaningful


opportunities for their views to be taken into account in relation to
planning and decision making for projects or other activities that may
significantly impact local communities.11

Moreso, the accompanying commentary on the General Principles further


clairfies that the concept involves the engagement with relevant stakeholders
via a two way communication basis which depends on the good faith of all
particpants.

12

These new paragraphs are particularly relevant to

environmental issues and the avoidance of adverse impacts caused by mining


operations and activities, with the CSR nexus triggered when such proposed
projects or activities could significantly impact local communities.

Codifying the role of local communities in environmental matters, Principle


22 of the Rio Declaration confirms the need to recognise and support the
interests of indigenous people and enable the effective participation in the
achievement of sustainable development,13 and Agenda 21 which was adopted
at the Rio Earth Summit in 1992 further affirms that public participation in
decision making is a fundamental prerequisite for the achievement of
sustainable development, particularly in those which potentially affect the
communities in which they live and work.14


11

Op cit, at Chapter II, Paragraph A14.


Op cit, at Chapter II, Paragraph 25.
13
Rio Declaration on Environment and Development , Rio de Janeiro, 14 June 1992.
14
Preamble to Chapter 23 of Agenda 21, United Nations Conference on Environment &
Development Rio de Janerio, Brazil, 3 to 14 June 1992. Available at:
https://sustainabledevelopment.un.org/content/documents/Agenda21.pdf. [Accessed last
06/07/2015].

12

19

The above, although lacking in defining local communities within the


environmental-oriented context of the extractive industry, establishes the
importance of public participation by individuals, groups and organizations in
decisions which may potentially affect the communities in which they live
and work in order to achieve sustainable development. Chambers opines that
[i]n local parlance and ordinary meanings the local communities are those
who are customarily resident or who are widely known as the owners of the
land upon which the development is taking place. 15

The scenario presented in this study centres around the seabed environment
within the deep waters off Namibias coast and because no local or indigenous
communities are known to exist in such a maritime sphere, a definition of
communities based on where affected groups or individuals live would be
outside the remit of this paper.

Rather, approaching it from a perspective of where communities work is


better suited, with Wingard, Lindsay and Manaljav arguing that rather than
wrestle with the unwieldy task of defining the term community, the preferred
and probably more efficient approach is to refine membership criteria16 based
on national legal systems. Without veering off course, perhaps a definition of
stakeholder within the ambits of public participation will benefit the


15

Chambers, Challenging the Professions: Frontiers for Rural Development (Intermediate


Technology Publications, 1993), at 11.
16
Wingard, J., Lindsay, J., and Manaljav, Z (2005). Improving the Legal Framework for
Participatory Forestry: Issues and Options for Mongolia with Reference to International
Trends, FAO Legal Papers Online 46:
http://www.fao.org/fileadmin/user_upload/legal/docs/lpo46.pdf. [Accessed last
05/07/2015].

20

discussion, allowing for an analysis based on two key turfs: who participates
as stakeholders, and what triggers the participation of affected stakeholders.

1.4.
i.

Definition of Stakeholder
Who participates?

The traditional definition of stakeholder is accorded to Freeman, who defined


stakeholders as any group or individual that can affect or is affected by the
achievement of a corporations purpose.17 Marthur et al18, opining from a
sustainable development perspective, further indicates that stakeholders can
be defined from three distinct areas of stakeholder engagement: 1) the public
policy literature advocating for active citizenship, transparency and
democratic decision making structures to ensure that tax-payers have decision
making powers; 2) the strategic management attempting to define those
individuals or groups that are important to a firm and require particular
attention; and finally 3) the international development projects context seeking
to identify those affected by a project and seek their active engagement in
order to ensure that the project is sensitive and responsive to the local context.

Bryson19, observing from a public and non-profit literature angle, has afforded
stakeholder a two-dimensional definition: first, as individuals or groups
having the power to affect the future of an organisation and second, as groups

17

Freeman, E. n.d. The Stakeholder Approach Revisited [online]. Available at:


http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.466.6445&rep=rep1&type=pdf.
[Accessed Last 05/07/2015].
18
Mathur, V., 1, Price, D., Austin, S., and Moobela, C. 2007. Defining, identifying and
mapping stakeholders in the assessment of urban sustainability. [online]. Available at:
http://download.sue-mot.org/Conference- 2007/Papers/Mathur.pdf. [Accessed Last
05/07/2015].
19
Bryson, J.M. 2004. What to do when stakeholders matter: stakeholder identification and
analysis techniques. Public Management Review, 6(1), 21-53.

21

or individuals including the nominally powerless to whom a certain


responsibility is owed.

The former definition adopts a narrow approach

requiring the concerned individual or group to possess a certain degree of


decision-making power in order to qualify as stakeholder, implying that those
who do not possess power do not qualify as such. The latter definition
espouses a wider approach, implying a more ethical element which has been
interpreted by Nutt and Blackoff to mean [a]ll parties who will be affected by
or will affect the organisations strategy.20 Nwapi expands on this, identifying
six broad categories of participants: the local community or people;
indigenous people; specific public concerned; non-governmental organizations
(NGOs); the youth; and the historically marginalized groups of women.21

The definitions listed above present both a narrow and wide interpretation of
participants capable of being included in the definition of stakeholder.
Although viewed from a business and senior management perspective, the
relevance of Freemans traditional affect or affected definition, coupled with
Marthur et els public policy/international development projects and
Brysons nominally powerless ethical dimension allows for the wide
interpretation of stakeholder relevant for the extractive industry. Thus, for
specificity, this study defines stakeholders as follows: Any interest group
who can affect or is affected by the achievement of sea-bed phosphate mining
activities in Namibia, regardless of authoritative power.


20

Nutt, P., and Backoff, R. 1992. Strategic management of public and third sector
organizations: A handbook for leaders. San Francisco: Jossey-Bass.
21
Nwapi, C. 2010. A legislative proposal for public participation in oil and gas decisionmaking in Nigeria. African Law journal. 54 (2), 184-211.

22

The advantage of focusing on interest groups rather than individuals


ensures that individuals who may be affected by the phosphate mining
activities are included in the broader affected stakeholder group definition.
Mining companies and all those included in their structures are therefore
excluded from this definition, because the focus here is on the external
stakeholders who either affect or are affected by the companies proposed
activities or projects. For purposes of discussion therefore, affecting
stakeholders are those who may positively affect the realisation of phosphate
mining in Namibia, and the affected stakeholders are those who stand to be
negatively affected by the significant nature of such activities.

From an affecting perspective, the MME qualifies as stakeholder because it is


the States leading agency responsible for attracting private investments in
resources exploration and development, as well as regulating the extractive
industries. The MME was responsible for issuing mining licences to the
companies concerned, namely ML170 to NMP and ML159 to LLNP. As a
stakeholder, the MME positively affects the realisation of NMP and LLNP
successfully mining seabed phosphorites, with the ministry itself posed to gain
royalties that would further cement mining as the largest contributor to
Namibias Gross Domestic Product (GDP). The MET too falls within this
category because it is the State agency tasked with issuing the required
environmental clearance certificates that would allow mining activities to
proceed.

23

Consequently however, the MET may also negatively affect the realisation of
seabed phosphate mining should it refuse to grant such environmental
clearances due to environmental concerns. On this basis, the MET too
qualifies as an affected stakeholder as far as significant impact to the
environment is concerned due to its role as custodian of the environment but
within this context, its participation as stakeholder will be from the affecting
corner. This is because as far as environmental clearance certificates are
concerned, these may be granted by the environmental Commissioner if the
EIAs produced by mining companies are sufficient enough.

Concerns on the reliability of these EIAs and the possible leap-frogging of


proper procedures for obtaining clearance certificates were introduced by
MFMR Minister Esau and CNFA chairperson Amukwa, as will become
apparent in chapter five. This infers a possible conflict of interest between
the MET and the affected stakeholders, but the position of the MET as a
relevant stakeholder remains intact.

From an affected perspective, the MFMR is the State agency fulfilling its role
as custodian of all fisheries and marine resources in Namibia. The ministry
works in close proximity with the fishing industry at large, the private sector,
and all relevant stakeholders in order to realise its vision of responsibly
managing living aquatic resources and ensuring a conducive environment that
would enable the fishing and aquaculture sectors to prosper.

24

One of the core industries included in the MFMR mandate is the fishing
industry at large, with the fisheries sector known to be contribute
approximately 4% of Namibias total GDP and amasses a significant foreign
exchange income for Namibia. The sector further provides 15 000 direct jobs
mostly employing Namibians, with 9,500 of those situated in the hake sector
which is represented by the NHA.22 A further 20 000 indirect jobs are created
through fuel companies, ship maintenance and equipping, factory outfitting,
port activities, municipalities and shops,23 usually situated or surrounding the
harbour town of Walvis Bay.

Aptly noting, the above is indicative that various individual groups are
entangled in this affected group, ranging from direct employees in the fishing
sector to those indirectly benefiting from the sector or industry. Individual
stakeholder claims would become stupendously complex, as it includes
members of the public and private sector. More so, the public concerned as
defined in article 2 (5) of the Aarhus Convention includes [t]he public
affected or likely to be affected by, or having an interest in, the environmental
decision-making.24 This definition, according to Svitlana, will include
NGOs if environmental protection is one of its main objectives.25


22

Amukwa, M. (2014). Fishing Industrys view on the need for good ecosystem research
regarding marine mining impacts. Presented at the Annual Science Forum of the Benguela
Current Commission, 15 October 2014. Available at:
file:///C:/Users/Stanley/Downloads/Day%203%20Amukwa.pdf. [Accessed last 07/07/2015]
23
Op cit.
24
Entered into force 30 October 2001.
25
Svitlana New laws on public participation in the newly independent states.2002. In
Zillman, D., Lucas, A., and Pring, G (eds). Human Rights in Natural Resource Development:
Public Participation in the Sustainable Development of Mining and Energy Resources . Oxford:
Oxford University Press, 467 at 475.

25

To this end, the opposition offered by environmental groups such as


Swakopmund Matters and Earth Organisation Namibia places these
environmentalists in the public realm, qualifying them as relevant stakeholders
due to their claims that seabed phosphate mining may harm the marine
environment. A collective inclusion of all these affected groups and
individuals under the MFMR as relevant stakeholder is therefore beneficial
for purposes of fluency and simplicity.

ii.

What triggers the participation of affected stakeholders?

The MFMR, as an affected stakeholder and government agency, has the power
to interfere in [p]rojects or other activities that may significantly impact local
communities26. However because local communities have now been
enfused as interest groups within the context of this discussion, the
participation of all the affected stakeholders as represented by the MFMR is
triggered by the possible significant effects which the proposed phosphate
mining may pose.

When analysed from an individual perspective, the claims by the various


affected stakeholders range from the possible direct or indirect significant
effects that phosphate mining may pose to the environment, coupled with
ecological, economic and social factor changes. However in this context, the
collective interests of all relevant stakeholders are capped under the
environment theme, as this collective encapsulation of individual interests is
what triggered the MFMR to propose the moratorium in the first place.

26

OECD Guidelines (2011), at Chapter II, Paragraph A14

26

The importance of this mammoth intervention by the MFMR becomes


significantly important given the diverse groups and individuals that fall
within the realms of its representation, more so the fact that all these relevant
stakeholders heavily rely on the fisheries sector and any threat posed to the
marine resources giving effect to this sector in turn poses a collective threat on
their interests.

27

CHAPTER TWO: PERMANENT SOVEREIGNTY


OVER

NATURAL

RESOURCES

(PSNR)

IN

NAMIBIA: A PRE AND POST INDEPENDANCE


APPROACH

2.1.

Pre-independence: Apartheid Regime and PSNR

After World War I (one) and upon supersession of the League of Nations by
the United Nations in 1946, the UN trusteeship agreement requiring closer
international monitoring of former territory administrations was put into place
but South Africa refused to surrender its earlier mandate to the trusteeship
which it gained under the auspices of article 22 of the Covenant of the League
of Nations.

Significantly at this point, the decolonisation phase after World War II (two)
ended saw the number of States quadruple and the rules of statehood found
new addressees in the form of developing countries. Observing from a
contemporary perspective, Tiewul is adamant that the doctrine of PSNR
evolved from several provisions contained in the United Nations Charter,27
particularly Chapter XII that assigns to the international Trusteeship Council
the objective to promote the political, economic and social advancement of the


27

Tiewul S., A. 1978. The Evolution of The Doctrine of Permanent Sovereignty over Natural
Resources (University of Ghana Law Journal), 55-84.

28

inhabitants of trust territories for their progressive development towards selfgovernment or independence.28

Within the context of the UNGA, the first hints of PSNR are linked to UNGA
Resolution 523 which acknowledged the right of underdeveloped countries to
freely use their natural resources on condition [t]hat they must utilize such
resources in order to be in a better position to further the realization of their
plans of economic development in accordance with their national interests
[].29 However Duruigbo holds that the genesis of PSNR can be traced to
the UNGA Resolution 626 (VII) adopted on 21 December 1952,30 which
acknowledged [t]he right of peoples freely to use and exploit their natural
wealth and resources is inherit in their sovereignty [...].31

Aptly noting, Resolution 626 recognised the need for natural resource
exploitation by States in the pursuit of economic development [w]herever
deemed desirable for them [i.e., member States].32 At the time, raw materials
were primarily still in the possession of MNEs resident in former colonial


28

Charter of the United Nations, 1945.


General Assembly- Sixth Session. Resolution 523 (VI).Integrated economic development
and commercial agreements. Available at: http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/067/78/IMG/NR006778.pdf?OpenElement. [Accessed
last 11/07/2015].
30
Duruigbo ,E. Permanent Sovereignty and Peoples' Ownership of Natural Resources in
International Law (2006) The George Washington International Law Review, Volume 38, at
p 38.
31
UNGA Resolution 626, 1952 (Emphases added). Titled Right to Exploit Freely Natural
Wealth and Resources, the aforementioned resolution was clearer than resolution 523 in
indicating that such use and exploitation shall be [f]or their own progress and economic
development [] to have due regard to [] the need for maintaining the flow of capital in
31
conditions of [] mutual confidence and economic co-operation among nations. , Para.1
32
Op cit, at para. 1 (Emphases added).
29

29

powers and Hofbauer notes that the resolution was drafted under the premise
of rectifying the unjustified arrangements concerning these raw materials.33

In further addressing the tricky task of diminishing concessions or agreements


concluded by former colonial administrations and articulating the notion of a
States sovereignty over their respective natural resources, the United Nations
General Assembly (UNGA) adopted Resolution 1803 (XV11)34 on the
principle of Permanent Sovereignty over Natural Resources (PSNR) on 14
December 1962.

The PSNR principle in this context was primarily formed as a tool aimed at
promoting social and economic development whilst ensuring equitable
resource exploitation by States,35 with the most significant expression of
PSNR to date contained in the resolutions very first paragraph indicating that:

The right of peoples and nations to permanent sovereignty over their


natural wealth and resources must be exercised in the interest of their
national development and of the well-being of the people of the State
concerned.36


33

Hofbauer , The Principle of Permanent Sovereignty over Natural Resources and Its
Modern Implications (LL.M. Master Degree Thesis, Faculty of Law, University of Iceland,
2009) , at p 1.
34
General Assembly resolution 1803 (XVII) of 14 December 1962, "Permanent sovereignty
over natural resources".
35
Hofbauer , The Principle of Permanent Sovereignty over Natural Resources and Its
Modern Implications (LL.M. Master Degree Thesis, Faculty of Law, University of Iceland,
2009) , at p 1.
36
General Assembly resolution 1803 (XVII) of 14 December 1962, "Permanent sovereignty
over natural resources", para. 1. (Emphasis added).

30

The PSNR doctrine is rooted on the right to self-determination in order to


enable the economic development of States (particularly developing ones),
coupled with the inherent element of sovereignty. The particular wording in
Resolution 1803 above entails that whilst PSNR is indeed formulated as a
right of peoples and nations, such a right has to be exercised in the interest of
national development and the well-being of the people of the State concerned.
However, the quasi-incorporation of SWA into South Africa under the 1949
South African constitutional changes meant that the right to self-determination
as an objective of the UN and International Trusteeship Council would be
tested in its entirety by the continued occupation of SWA by South Africa.

The apartheid policy introduced under the auspices of the Native Affairs
Administration Act of 1954 enabled the South African Government to grant
mining concessions in SWA under the Mines, Works and Minerals
Ordinance37 which vested all precious and base minerals in the territory,
territorial waters and continental shelf in the administration of South Africa.
This created a formula of State ownership of minerals that saw the
administration having complete power over all South West African resources,
enabling both South African and foreign international companies to obtain
surface and mining rights.

The depletion of Namibian resources by the South African Government not


only meant that the national development and the well-being of all people was
not being attained, but the fact that SWA was not exercising its sovereign

37

20 of 1968.

31

power meant that it could not exercise self-determination. This made the
PSNR doctrine non-applicable to SWA under the South African
administration, as the people and nation of SWA could not freely exercise
their right to use and exploit their natural wealth and resources inherent in
their sovereignty as embodied under the UNGA resolution on PSNR.

With South Africa refusing to allow SWA to be placed under UN trusteeship,


the UN formerly transferred the mandate to the newly formed United Nations
Council for Namibia (UNCN) pending the countrys independence, thereby
demanding the withdrawal of South African troops from the territory. This
was followed by the Security Council resolution 27638 which saw the Council
declare that the continued presence of South Africa in Namibia was illegal and
the consequent acts taken by the Government of South Africa were illegal and
invalid.39

In remedying the continued marauding of Namibian mineral resources by


South Africa, the UNCN intervened by enacting Decree No. 1 for the
Protection of the Natural Resources of Namibia.40 Important to note is the
political aim set out in the Decrees preamble towards [] securing for the
people of Namibia adequate protection of the natural wealth and resources of
the Territory which is rightfully theirs, and Chapter 5 ensuring that [t]hese
natural resources are not exploited to the detriment of Namibia [and] [] its


38

Of 30 January 1970
United Nations Security Council, Letter dated 29 January 2002 from the Under-SecretaryGeneral for Legal Affairs, the Legal Counsel, addressed to the President of the Security
Council. Available at: http://www.arso.org/Olaeng.pdf. [Accessed last 13/07/2015]
40
Enacted on 17 September 1974
39

32

people.41 The above gives a clear indication of the incorporation of the PSNR
doctrine into the Decree, and an attempt to reverse the injustices of the
apartheid regime in terms of natural resource exploitation and wealth
distribution.

A further reiteration of the PSNR doctrine appeared in the Charter of


Economic Rights and Duties of States (CERDS), stating that [e]very State
has and shall freely exercise full permanent sovereignty, including possession,
use and disposal, over all its wealth, natural resources and economic
activities.42 Given the political circumstances at the time relating to
developing nations wanting to make the most of their endowment by way of a
New International Economic Order (NIEO) movement, an inference can be
drawn that the imposed duty to freely exercise PSNR in full is an indication of
a prevailing nationalistic tide aimed at national development.

2.2.

The Legal Status of PSNR

The fact that the PSNR doctrine emerged from UNGA resolutions as observed
above meant that it could rapidly gain more acceptance among States than if it
had been developed through the practice of individual States.43 However,
Hobauer observes that PSNR was in the beginning mainly perceived as a mere


41

Op cit
Resolution 3281 (XXIX), 12 December 1974.
43
Pereira R. and Gough, O. Permanent Sovereignty over Natural Resources in the 211st
Century: Natural Resource Governance and the Right to Self-Determination of Indigenous
Peoples under International Law (2013) Melbourne Journal of International Law, Volume
14), p.461-462.
42

33

political statement,44 with its legal character under scrutiny due to the nonbinding nature of the UNGA Resolutions.

Nonetheless, even though the UNGA Resolutions are not formally recognised
as formal sources of international law under article 38(1) of the Statute of the
ICJ, such resolutions could provide the basis for the formation of customary
law.45 This is particularly relevant in the context of PSNR, discussed in the
TOPCO arbitration46 which dealt with the background to UNGA Resolutions
1803 and 3218 (CERDS) in assessing their legal significance to Libya
removing its sovereign actions over national resources from international law
standards.

Relying on the voting cast by developed and developing countries, the tribunal
held that CERDS was [a] political rather than [] a legal declaration
concerned with the ideological strategy of development and, as such,
supported only by non-industrialized people.47This was particularly
influenced by the number of developing countries who voted in favour of

44

Hofbauer , The Principle of Permanent Sovereignty over Natural Resources and Its
Modern Implications (LL.M. Master Degree Thesis, Faculty of Law, University of Iceland,
2009) , at p 1.
45
See Pereira R. and Gough, O. 2013. Permanent Sovereignty over Natural Resources in the
21st Century: Natural Resource Governance and the Right to Self-Determination of
Indigenous Peoples under International Law (Melbourne Journal of International Law,
Volume 14), p.461-462, stating that [o]ne of the most contentious aspects of the Charter of
Economic Rights and Duties is that it suggests that only the courts and the law of the host
state are to be applied to foreign investment disputes. The origins of this are often traced
back to the so-called Calvo Doctrine, which is widely upheld by developing states in the
context of the expropriation of foreign-owned investment. Hence, it is difficult to consider
the Charter of Economic Rights and Duties in its entirety as developing principles of
international law or customary international law, as it has been primarily only developing
states and economies in transition that have supported it.
46
See Texas Overseas Petroleum Co./California Asiatic Oil Co. v. Libyan Arab Republic, 17 ILM
3, 36-37, paras. 87 (Jan. 19, 1977) (Award on the Merits)(TOPCO/CALASIATIC)
47
Op cit, paras. 36-37, paras.

34

CERDS, with its legal status as a rule of customary international law


diminished by the lack of support received from developed countries.48

The legally binding consequences of the PSNR doctrine and its erga omnes
character as one of the principles of contemporary international law was
confirmed by the dissenting opinions of Judges Weeramantry and
Skubiszewski in the East Timor case,49 and the ICJ confirmed for the first time
in the Armed Activities on the Territory of the Congo

50

case that PSNR had

attained customary international status.

Certain scholars have attacked the above reasoning of the Court, more so
Weisburd who opines that the UNGA lacks the power to make legally binding
resolutions and the Court could therefore not rely on UNGA resolutions to
conclude such an international customary law status, with others adamant that
PSNR should rather be regarded as a jus cogens i.e. peremptory norm, similar
to those prohibiting slavery or the use of force and therefore makes it unlawful
for States to derogate from the norm in the future.

However, Pereira and Gough observe concern on this holistic view, stating
that the inclusion of PSNR into several multilateral treaties such as the
International Covenant on Civil and Political Rights (ICCPR) and the

48

Developing countries were synonymous in resolution 3281s adoption by a vote of 120 in


favour, 6 against, and 10 abstentions. Interestingly, the paragraph on nationalisation in
article 2 was subjected to a separate vote approved by 104 (majority developing countries)
to 16 with six abstentions, resulting in all the major developed states voting against it or
abstained.
49
East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90, 142, 1979, 204 (Judge
Weeramantry), 264, 270, 276 (Judge Skubiszewski).
50
Armed Activities on the Territory of the Congo (Congo v Uganda) (Judgment) [2005] ICJ
Rep 168.

35

doctrines recognition in the TOPCO arbitration does not sufficient enough


proof to label PSNR as jus cogens.51 Schrijver too concurs, adding that [a]t
most one may conclude that some of its core elements such as that of the
prohibition of appropriation carry this status.52 Rightfully so, Pereira and
Gough give a conducive observation that:

Regardless of whether permanent sovereignty over natural resources


is to be regarded as a rule of customary international law, an emerging
rule or as a peremptory norm, it seems clear that it has evolved into a
legal form, binding all states to respect it as a rule of international
law.53

To this end, the fact that the majority of developed countries voted in favour
of Resolution 1803 means that the notion of PSNR contained in article 1 of
such remains the guideline upon which the requirements of PSNR namely
exploitation and use of natural resources for national development and
wellbeing of the people - is rooted within the national context of every
sovereign State under international law. Its status as a rule of international law
is evident from its incorporation in national constitutions, including that of
Namibia as will become apparent below.


51

Pereira R. and Gough, O. 2013. Permanent Sovereignty over Natural Resources in the 21st
Century: Natural Resource Governance and the Right to Self-Determination of Indigenous
Peoples under International Law (Melbourne Journal of International Law, Volume 14),
p.463.
52
Schrijiver N. 1997. Sovereignty over Natural Resources: Balancing Rights and Duties
(Cambridge Studies in International and Comparative Law), at p. 221-2.
53
Pereira R. and Gough, O. 2013. Permanent Sovereignty over Natural Resources in the 21st
Century: Natural Resource Governance and the Right to Self-Determination of Indigenous
Peoples under International Law (Melbourne Journal of International Law, Volume 14),
p.464.

36

2.3.

Transformation

of

PSNR

into

International

Environmental Law
As shown above, the concept of PSNR was originally enunciated during the
colonial period with the sole aim of changing the inequitable and onerous
arrangements imposed upon unwary and vulnerable governments.54 However
the principle was significant in contributing to the emergence and evolution of
international environmental law, imbuing a more environmental approach
towards the objectives of the principle. Aptly noting, the early formulation of
the PSNR doctrine within an environmental context can be observed from the
obligation not to cause transboundary pollution which requires States to
protect within their territory the rights of other states, especially the rights to
national integrity and inviolability during peace and war.55

This obligation became recognised in the Trial Smelter Arbitration56, wherein


the tribunal arrived to the conclusion that no right is asserted upon a State to
use its territory or permit the use thereof to cause serious damage by emissions
to the territory of another State or persons found therein.57 Dubbed the golden
rule on transboundary harm (PGR), the rule was limited to cases of serious
consequence pertaining to transfrontier fumes or emissions, subsidised by the
need for clear and convincing evidence in establishing such injury i.e.

54

Perrez, F., R. 1996. The Relationship between Permanent Sovereignty and the obligation
not to cause Transboundary Environmental Damage. Environmental Law, 26. 1187-1212, at
p. 1204.
55
Op cit, at p. 1108.
56
[1941] (RIAA) Vol 3
57
The rule stated that under international law,[n]o State (under international law) has a
right to use or permit the use of its territory in such a manner as to cause injury by fumes in
or to the territory of another (State) of the properties or persons therein, when the case is of
serious consequence and the injury is established by clear and convincing evidence. Trail
Smelter arbitration , at p. 1907.

37

burden of proof was on the victim State. The rule did not encapsulate the
notion of environmental protection in its entirety, as the physical injury
caused was limited to properties and persons which suggests that the interState liability was confined to traditional tortious heads of claims.58

The rule resurfaced in a non-environmental context in the 1949 ICJ Corfu


Channel case59 between the UK and Albania, wherein the court affirmed the
principle of good neighbourliness on the basis that a State is [n]ot to
(knowingly) allow its territory to be used for acts contrary to the rights of
other States.60 This duty was extended to the obligation of considering the
interests and protecting the rights of States in the Lac Lanoux case,61 with
Louka neatly noting that the case has established [t]he principle of prior
consultation with another State before undertaking a project that has
transboundary effects.62


58

In fact, further claims made by the US government in the initial 1938 with regard to
damage caused to business enterprise and livestock were denied, including a special
damages claim in respect of soil damage through acidification being entertained but
nonetheless denied due to a lack of evidence. Trial smelter case.
59
[1949] I.C.J 4. The court had to decide whether the mere knowledge of a minefield laid in
Albanian territorial waters had triggered an international legal obligation by Albanian
officials to warn ships reported to be in the danger zone. Despite insufficient evidence of
collusion by the Albanian authorities with the (unknown) mine-layers as alleged by the UK,
the ICJ concluded that the mine-laying operation could not have taken place without the
knowledge of the Albanian authorities, and the failure of these authorities to warn
approaching British warships gave rise to the international responsibility of Albania. The
accident resulted in the damage to two ships and loss of human life.
60
Op cit, at p. 4
61
[1957] ILR 24, 101
62
Louka, E. 2006. International Environmental Law .Cambridge: Cambridge University Press,
p. 42.

38

The PSNR doctrine63 further catalysed the expansion of the abovementioned


golden rule on transboundary harm which took centre stage at the 1972 UN
Conference on the Human Environment and yielded the Stockholm
declaration, the first formal sign of an instrument which not only intended to
highlight the universal nature of environmental degradation, but also the
global effects of such degradation.64 Perhaps the most important contribution
of the Stockholm Declaration to the progressive development of international
environmental law is Principle 21, an enunciation of the primary golden rule.65

Firstly, Principle 21 affirms the sovereign right of States to exploit their own
natural resources in line with national environmental policies, inferring
respect for State Sovereignty and non-interference with a States affairs.
Secondly, an attached State responsibility to ensure that such activities do not
cause transboundary environmental harm to other States limits such
sovereignty. Unlike the confined operation of the PGR to injury by fumes or
damage to property or persons in the Trial Smelter arbitration, Principle 21
protects the environment as a whole, and the non-conjoined requirements of
jurisdiction or control means breach thereof does not need to be proved
conjunctively.


63

[1962]. Paragraph 1 vests such rights over natural wealth resources to the people and
nation exercised [i]n the interest of [] national development [].
64
nd
Sunkin, M., Ong, D., and Wight, R. Sourcebook on Environmental Law, 2 ed. (Cavendish
Publishing Limited, 2001), at p. 61.
65
[S]tates have, [] the sovereign right to exploit their own natural resources pursuant to
their own environmental policies, [] and the responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.

39

Thirdly, this transboundary obligation includes consideration for the


environment beyond the States jurisdictional limits, thus expanding the
geographical scope of the golden rule to areas beyond national control.
However unlike the serious consequence threshold requiring injury to be
established by clear and convincing evidence as demonstrated in the PGR,
Principle 21 omitted in referencing any threshold of harm.

The period following the Stockholm declaration brought with it concerns


regarding the continued degradation of the environment, resulting in a tug of
war between the developed (advocating environmental priorities) and
developing (advocating developmental priorities) countries66 at the 1992
United Nations Conference on the Environment and Development
(UNCED) the Rio Earth Summit.67

A re-statement of the Principle 21 golden rule came in Principle 2 of the Rio


Declaration, which Ong notes

[d]iffers slightly in two respects: it provides for States to have the


sovereign right to exploit their own resources (Principle 21 having
referred to natural resources) pursuant to their own environmental and

66

This period witnessed the shared ideological idea of a new international economic order
(NIEO) within the UN, spearheaded by developing States calling for the restructuring of
global economic and trade relations (by redistributing wealth through the transfer of
resources and technology) in order to end the perceived exploitative practices of rich,
developed countries.
67
The UNCED opened two treaties (the Climate Change and Biodiversity Conventions) for
signature and adopted three other non-legally binding instruments, with the Rio
Declaration
on Environment and Development becoming the most significant of these non-binding
instruments in terms of international environmental law principles.

40

developmental policies (Principle 21 having referred only to


environmental policies).68

The expansion of environmental policies to include environmental and


developmental
development

policies
and

suggests

environmental

the

integration

protection

(as

of

socio-economic

articulated

by

the

environmental and developmental priorities of developed and developing


countries respectively) by way of a sustainable development theme.

However, the inclusion of the words and developmental in Principle 2


weighs environmental protection against those range of areas capable of being
exploited by States for developmental purposes, which Sunkin, Ong and
Wight opine arguably hinder the delicate balance achieved [b]etween a
States sovereign rights and its responsibility for any environmental damage
caused by the exercise of such sovereign rights.69 Lastly, the wording of
resources in Principle 2 (as opposed to natural resources in Principle 21)
suggests an attempt not to confine the operations of the principle to natural
resource.

The above reformulation of Principle 21/Principle 2 was re-iterated in the


United Nations Convention on the Law of the Sea (UNCLOS)70, which
became the first attempt to incorporate the golden rule into international treaty

68

Tan, A,.1999. Forest Fires of Indonesia; State Responsibility and International Liability,
International and Comparative Law Quarterly, Vol 48, Part 4 (October 1999) 826855, at
835.

69
nd
Sunkin, M., Ong, D., and Wight, R. Sourcebook on Environmental Law, 2 ed. (Cavendish
Publishing Limited, 2001), at p. 70.
70
Entered into force as a treaty on 16 November 1994.

41

law and has been noted by Nanda as binding [t]he ideals of Principle 21 of
the Stockholm Convention while balancing [e]nvironmental protection and
resource management with requirements of free navigation.71 Accordingly,
Birnie and Boyle point out the Conventions attempt to [p]rovide a global
framework for the rational exploitation [] of the seas resources and the
protection of the environment [] for sustainable development.72

Apposite is Article 194(2)73 (Part XII) of UNCLOS74, a two-folded echo of


Principle 21. Firstly, it provides (at its most basic bilateral level) coastal States
with the formal right and duty under international law to protect the marine
environment in the large areas of the sea-bed and superjacent waters75 that are
now within their sovereign and jurisdiction.76

Secondly, in the event of pollution arising from such activities, the control and
reduction mechanisms adopted should not allow such pollution to spread
beyond the areas where the State exercises sovereign rights in accordance with

71

nd

Sunkin, M., Ong, D., and Wight, R. 2001. Sourcebook on Environmental Law, 2 ed.
London: Cavendish Publishing Limited, p.204, citing Nanda.
72
Birnie, P and Boyle, A. 1992. International Law and the environment. Oxford: Oxford
University Press, p. 252-3.
73
States shall take all measures necessary to ensure that activities under their jurisdiction or
control are so conducted as not to cause damage by pollution to other States and their
environment, and that pollution arising from incidents or activities under their jurisdiction or
control does not spread beyond the areas where they exercise sovereign rights in accordance
with this Convention. (Emphasis added)
74
At the outset, article 192 of the Convention first lays down the legal obligation upon all
States to preserve and protect the maritime environment before commencing to the
sovereign right of States to exploit their natural resources in article 103. This indicates a
strong avowal calling for the worlds natural resources to be developed first in a sustainable
manner, as opposed to the traditional first stance acknowledgement of the sovereign right
to exploit as articulated in the 1972 Stockholm Declaration.
75
These areas are however delimited in distance to nautical miles, and include the territorial
sea (12 nm), contiguous zone (24nm), economic exclusive zone (200) and the continental
shelf (200 to 350 nm).
76
Sunkin, M., Ong, D., and Wight, R. 2001. Sourcebook on Environmental Law, 2nd ed.
London: Cavendish Publishing Limited, p. 206.

42

the Convention. Sunkin, Ong and Wight observe that the main objective of
Part XII is to [d]elimit States competence pertaining to the establishment of
[] rules and standards to reduce, and control pollution of marine
environment []77.In defining marine environment, article 194 (5) of
UNCLOS considers it to include [r]are and fragile ecosystems as well as the
habitat of depleted, threatened or endangered species and other forms of
marine life.

Post-Independence era: PSNR under the Namibian

2.4.

Constitution
Namibia gained her independence on the 21st of March 1990, marking the
beginning of a new era based on constitutionalism and democracy. With
the new legal framework drafted by the Constituent Assembly aiming to
avoid a vacuum of laws, article 140 (1) of the Namibian Constitution78
states that:

the provisions of this Constitution, all laws which were in force


immediately before the date of Independence shall remain in force
until repealed or amended by Act of Parliament or until they are
declared unconstitutional by a competent Court.

The above meant an importation of pre-1990 international and South African


legislation and case law, more so those relating to natural and mineral
resources including the controversial Mines, Works and Minerals Ordinance.79

77

Op cit
Adopted 9 February 1990
79
20 of 1968 (emphases added)
78

43

Regardless of the Namibian Constitution superseding all laws as the Supreme


law of Namibia after independence, Article 100 imitated the vesting spirit of
the Ordinance in that:

Land, water and natural resources below and above the surface of the
land and in the continental shelf and within the territorial waters and
the exclusive economic zone of Namibia shall belong to the State if
they are not otherwise lawfully owned.

This wording was further elucidated by the Minerals (Prospecting and Mining)
Act80 which replaced the Ordinance81 and uses the word vested.82 The clear
use of the words vested and belong to the State is an indication that the
formula of State ownership witnessed under the South African regime
continued into the new constitutional dispensation, thereby vesting all
natural and mineral resources in the State in order to give full expression to
the notion of PSNR. From inference, the Constitution vests all untapped
resources in the State and any resulting mineral rights or entitlements
emanating from these rights vis a vis the Minerals Act83 are as well vested in
the State.

Although the guideline in article 1 of Resolution 1803 links the requirement of


PSNR to the promotion of national development and the well-being of a

80

33 of 1992 (emphases added).


Mines, Works and Minerals Ordinance, 20 of 1968.
82
See Section 2, stating that Subject to any right conferred under any provision of this Act,
any right in relation to the reconnaissance or prospecting for, and the mining and sale or
disposal of, and the exercise of control over, any mineral or group of minerals vests,
notwithstanding any right of ownership of any person in relation to any land in, on or under
which any such mineral or group of minerals is found, in the State.
83
33 of 1992.
81

44

States inhabitants, the doctrine lacks in sufficiently identifying who these


rights holders and beneficiaries of PSNR are.

More specifically if the right to PSNR is conferred to the peoples and


nations, then who are the true owners of natural resources and what is
meant by vested? Duruigbo particularly acknowledges the glaring omission
of Resolution 1803 in clearly indicating who possess the right of PSNR,
noting that this has resulted in a cannon fodder questioning the legal validity
of the PSNR doctrine.84 To this end, two opposing views are hereby
submitted: first, that the State (Government) is the true owner of natural and
mineral resources and second, that the People are the true owners of such.

From a perspective that the State is the true owner of natural and mineral
resources, the notion of PSNR in Namibia, more so its pre-independence
guised presence during the apartheid era, cruxes the inalienable right of the
peoples and nation to freely dispose of their natural resources in Resolution
1803.

However, the documents dealing with PSNR contained fewer or no reference


to peoples once the decolonisation phase had reached its end after 1962,85
evident from CERDS deliberately using the words every State in reiterating
the PSNR doctrine in 1974. This appears to stem from the conceptualized

84

Duruigbo, E. Permanent Sovereignty and Peoples' Ownership of Natural Resources in


International Law (2006) The George Washington International Law Review, Volume 38, at
p 38.

85
Hofbauer , The Principle of Permanent Sovereignty over Natural Resources and Its
Modern Implications (LL.M. Master Degree Thesis, Faculty of Law, University of Iceland,
2009) , at p 9.

45

response to the prior system of foreign ownership and possession of


concessions and production facilities, giving States the means to regain their
sovereignty and control over their assets to enable their economic and political
development.86

The original intention to aid peoples under colonial domination as well as


developing States in achieving equitable terms concerning natural resources
thus became the formula for strengthening their social and economic
development. In support of the notion, Pereira and Gough argue that once the
peoples in a State have gained independence, the rights of the peoples in any
discussion of permanent sovereignty need no longer necessitate focus.87 This
view is supported by Duruigbo, opining that [i]f governments are vested with
a right, it is not necessary to also vest it in the people they represent.88

The above arguments are particularly relevant when considering the idea of
representative democracy, more so the notion of making the peoples
synonymous with States in keeping boundaries for the stability of a
decolonised Africa. This can be linked to the doctrine of uti posseditis which
protects the boundaries of newly independent States, which in turn would
make moving away from the concept of peoples towards a State focused
PSNR approach sensible within the ambits of self-determination. The primary

86

Op cit, p. 1.3
Pereira R. and Gough, O. 2013. Permanent Sovereignty over Natural Resources in the 21st
Century: Natural Resource Governance and the Right to Self-Determination of Indigenous
Peoples under International Law (Melbourne Journal of International Law, Volume 14),
p.460.
88
Duruigbo ,E. Permanent Sovereignty and Peoples' Ownership of Natural Resources in
International Law (2006) The George Washington International Law Review, Volume 38,
at p 49.

87

46

construction given to the PSNR doctrine would then correlate with the States
right to legislate natural resources and national economic activities, emanating
from relations between resource extraction MNEs and host States.

However, the idea of natural resources belonging to or being vested in the


State could portray the impression that it is exclusively held by the State and
can only be exercised by government as representative of the State. Duruigbo
specifically notes the additional danger with this approach, opining that
exclusively conceiving these types of rights to the State could result in the
benefits arising from the extraction of natural resources accruing only to elites
while perpetuating socio-economic inequalities inside the country.89 Drawing
from political theorisations of sovereignty, Ebel, Huber and Makane suggest
that

[r]esource sovereignty cannot be territorially circumscribed within the


national space and institutionally circumscribed within the state
apparatus. Rather, sovereignty must be understood in relational terms
and take into account the global geography of non-state actors that
shape access to and control over natural resources.90

The less centric conception of sovereignty recognising the rights of non-State


actors therefore appears to supersede the classical notion of State
sovereignty,91 bringing us back to the wording of resolution 1803 emphasising

89

Op cit, p. 49.
Jody Emel, Matthew T Huber and Madoshi H Makane, Extracting Sovereignty: Capital,
Territory and Gold Mining in Tanzania (2011) 30 Political Geography 70, 70.
91
Pereira R. & Gough, O. 2013. Permanent Sovereignty over Natural Resources in the 21st
Century: Natural Resource Governance and the Right to Self-Determination of Indigenous
Peoples under International Law (Melbourne Journal of International Law, Volume 14),
90

47

the right of peoples and nations in the utilisation and exploitation of their
natural resources. State practice evidencing the recognition of peoples to selfdetermination and sovereign rights over natural resources is found in the
International Covenant on Civil and Political Rights (ICCPR)92 and the
International

Covenant

on

Economic,

Social

and

Cultural

Rights

(ICESCR)93, with article 1(2) of the latter convention stating that such
should be based upon mutual benefit and international law.

The fact that international law revolves around States makes it easier to lose
sight of the rights held by peoples as beneficiaries of these resources, and
there is a strong indication that the prerogative belongs to the people rather
than the State or its governmental authorities. Strong grounds for peoples to be
entitled to PSNR not only includes the formation of a basis to challenge the
governments decision to authorise MNEs to operate in the States resource
sector, but also to ensure that governments are bound to utilise natural
resources with a view towards benefiting the whole population.94

Hence, PSNR as belonging to the people adds new relevancy to the


postcolonial application of the doctrine, giving it full effect in ensuring that
resources and the benefits thereof are utilised in an inclusive manner that takes

p.469.

92
Article 1, opened for signature 19 December 1966, 999 UNTS 171 (entered into force
23 March 1976).
93
Opened for signature 16 December 1966, 993 UNTS 3 (entered into force
3 January 1976).
94
Pereira R. & Gough, O. 2013. Permanent Sovereignty over Natural Resources in the 21st
Century: Natural Resource Governance and the Right to Self-Determination of Indigenous
Peoples under International Law (Melbourne Journal of International Law, Volume 14),
p.460.

48

into consideration the nation as a whole. The qualification in resolution 1803


directing States to use resources for the well-being of the people thereby
becomes relevant, inferring that affected people with an interest in the
outcome of the exploitation of such resources should participate in the
adoption or opposition of such activities.

To this end, PSNR gives the State the solemn duty (as opposed to the right of
utilisation and exploitation) to protect the national interest, ensuring that the
power vested in the State and exercised by its agents is indeed power that
belongs to all the people and not just the elite or benefit of the selected few.
This view was made clear in the Indian Supreme Court of Justice decision of
Reliance Industries Limited v. Reliance Natural Resources Limited,95 wherein
Judge Reddy J stated that:

The vesting of such powers is an act of faith and of trust, two qualities
that are to be earned, sustained and nurtured. Continuance of such faith
and trust undoubtedly depends, in the least, on the belief that people
have that such powers are exercised to further Constitutional goals.

The above confirms that ownership should not be given a traditional


meaning giving the government the discretion to make use of its natural
resources as it deems fit, but rather places an obligation or duty to make use of
these resources within the confines of the Constitution.96 It is therefore not the
power that is vested in the State, but rather the responsibility to utilise that
power for the well-being of the nation as observed from article 95 (l) of the

95

Civil Appeal No. 5765 of 2014 (Arising out Of S.L.P. (C) No. 20041 of 2013.
Op cit.

96

49

Namibian constitution indicating that the principles of State policy should


promote the [] utilization of living natural resources on a sustainable basis
for the benefit of all Namibians, both present and future.

As custodian of Namibias natural environment, the MET would therefore be


the government agent tasked with ensuring that national development and
peoples well-being coexist in the utilisation or exploitation of natural
resources, with the deliberate use of the words both present and future
indicating that such exploitation does not in any way harm external
components such as the environment but rather preserves the interests of
future generations.

However, the two injunctions of national development and peoples wellbeing do not always exist in harmony with each other and may conflict, as
observed in the current scenario where the proposed activities of the rights
holders aimed at national development through seabed phosphate mining
poses a threat to the well-being of the marine resource benefactors. Regardless
of their non-harmonious co-existence, the conjunctive existence of national
development and the well-being of the people nonetheless remains indicative
of the fact that resource exploitation and the resultant national development
should be beneficial to the whole Namibian population.

50

CHAPTER 3: THE LEGAL FRAMEWORK FOR


ENVIRONMENTAL PROTECTION IN NAMIBIA

3.1.

Introduction

In expanding the States duties under the PSNR doctrine and assessing the
legitimacy of the claims made by the affected parties regarding the possible
effects seabed phosphate mining poses on the environment and marine
resources, this section will explore the legal framework pertaining to
environmental protection in Namibia. This paves the way for a discussion into
the obligations of Namibian State authorities to protect and preserve the
environment over this particular area of activity concerning seabed phosphate
mining, both from a domestic and international perspective.

3.2.

The Environmental Management Act, 7 of 2007

The Environmental Management Act97 (EMA) came into operation upon its
publication in the Government Gazette on the 6th of February 2012, when the
then Minister of Environment and Tourism determined the date by way of
section 58 of the Act.98 The act seeks to equilibrate the sustainable
management of the environment and the use of natural resources through the
establishment of principles for decision making on matters affecting the
environment, thereby giving effect to article 95(l) of the Namibian


97

7 of 2007.
Government Notice No. 28, Commencement of the Environmental Management Act,
2007; Government Gazette No. 4878. Available at:
http://www.met.gov.na/Documents/EMA%20regulations.pdf. [Accessed last
on 26/08/2015].
98

51

constitution calling for the maintenance of the environment and sustainable


use of natural resources.

The Act clearly stipulates its aim in section 2, striving to use environmental
principles to prevent and mitigate adverse impacts of activities posing
significant effect on the environment,99 with section 55 making provision for
the said Act to bind the State. The said environmental principles required to
provide the above-mentioned prevent and mitigate mechanisms are
pronounced under section 3 (2) as follows:

1) the sustainable use of renewable resources for present and future


generations;100
2) the participation of all affected and interested parties in the decision
making process, and the promotion of their interests, needs and
values;101
3) the promotion of equitable access to environmental resources, and the
assurance of the functional integrity of ecological systems from
harmful effects;102
4) the need for undertaking assessments for activities posing significant
effects on the environment or natural resources;103
5) the protection and respect of Namibias biological diversity;104 and

99

The object of this Act is to prevent and mitigate, on the basis of the principles set out in
section 3, the
significant effects of activities on the environment by
(a) ensuring that the significant effects of activities on the environment are considered
in time and carefully; (b) ensuring that there are opportunities for timeous
participation of interested and affected parties
(b) throughout the assessment process; and
(c) ensuring that the findings of an assessment are taken into account before any
decision is made in respect of activities.
100
Op cit, at section 3(2)(a)
101
Op cit, at section 3(2)(c)
102
Op cit, at section 3(2)(d) (emphasis added)
103
Op cit, at section 3(2)(e) (emphasis added)
104
Op cit, at 3(2)(f)

52

6) options of use which are beneficial and least detrimental to the


environment should be applied at the most acceptable cost to society,
adopting short and long term measures to reduce the generation of
waste and polluting substances at source.105

The above confers a duty upon the Namibian government and its agencies to
ensure that the sustainable use of natural resources does not harmfully affect
the functional integrity of ecological systems or Namibias biological
diversity. In assuming such a duty, there is not only a need to assure the
participation of affected parties and consideration for their interests in the
decision-making process, but also the profound responsibility to ensure that
environmental assessments are taken in cases where activities are likely to
pose significant effects on the environment or natural resources.

To achieve the above, administrative mechanisms are infused into the Act by
way of the accompanying regulations as gazetted in February 2012, listing
certain activities that may not be undertaken without an environmental
clearance certificate (ECC).106

Section 27(2)(d) of the Act lists resource removal, including natural living
resources as one of those activities requiring an ECC, with the regulations
specifically referring to mining and quarrying activities ranging from
[r]esource extraction, manipulation []and related activities107 to [o]ther

105

Op cit, at section 3(2)(h)


Government Notice No. 29, List of activities that may not be undertaken without
Environmental Clearance Certificate: Environmental Management Act, 2007; Government
Gazette No. 4878. Available at:
http://www.met.gov.na/Documents/EMA%20regulations.pdf. [Accessed last 26/08/2015].
107
Op cit, at para. 3.3
106

53

forms of mining or extraction of any natural resources whether regulated by


law or not.108 Within the context of mining in Namibia, the granting of
mining licences is issued under the auspices of the Minerals (Prospecting and
Mining) Act,109 with the application process of such set under section 91 of
the Act.

Without dwelling into an in depth discussion of the contents, important to note


is that the Minerals Act attempts to attach environmental conditions in the
issuance of mining licences by requiring an application under section 92(f) (ii)
to be accompanied by:

an estimate of the effect which the proposed prospecting operations


and mining operations may have on the environment and the proposed
steps to be taken in order to minimize or prevent any such effect.

The above requirement however does not equate to a right to mine, as the
EMA further obligates proponents of proposed mining activities with mining
licences to acquire ECCs before they are allowed to legally carry out such
activities. Put differently, where the environmental commissioner has under
section 33 of the EMA decided that an activity requires an assessment, the
proponent of an activity is required to designate an environmental assessment
practitioner (EAP) to manage the assessment process in line with the
assessment procedures listed under the EMA, the regulations and guidelines.


108

Op cit, at para. 3.2


33 of 1992

109

54

Where the environmental commissioner has reviewed the assessment report


under section 36 of the EMA, the environmental commissioner may

a) grant the application, and on payment of the prescribed fee, issue an


environmental clearance certificate to the proponent; or
b) refuse the application and provide the proponent with reasons for the
refusal.

The role of the environmental commissioner is therefore pivotal, as the


discretion of whether or not to grant an environmental clearance certificate
lies with him/her. More so, the fact that mining activities cannot proceed
without an ECC implies a capping mechanism which offers an equal division
of power amongst line ministries to ensure that the issuance of mining licences
under the Minerals Act has external requirements by way of the
Environmental Management Act. It is however unclear whether the ECC
application is made before applying for a mining licence under the Minerals
Act, or vis versa i.e. after the granting of a mining licence, but logic suggests
that the wording of section 92(f) (ii) of the Minerals Act indicates that the
latter persists.

3.3.

The Benguela Current Convention

From a regional perspective, the Benguela Current Convention110 (BCC)


offers a zealous example of an instrument created for the sole purpose of
protecting the delicate Benguela Current ecosystem. The convention, which is
an agreement signed between Angola, Namibia and South Africa, aims at

110

2013

55

ensuring that the sustainable management of shared living marine resources


within the delicate Benguela Current is integrated in a manner that would
benefit all their people.

More specifically, the BCC lists in article 4 the specific guiding principles,
namely; 1) the cooperation, collaboration and sovereign equality principle;111
2) sustainable use and management of the marine resources;112 3) the
precautionary principle;113 4) prevention, avoidance and mitigation of
pollution;114 5) the polluter pays principle;115 and 6) protection of biodiversity
in the marine environment and conservation of the marine ecosystem.116 The
convention further emphasizes in article 4 (2) the specific duties conferred
upon each party in giving effect to the principles, requiring Parties to take all
possible steps to prevent, abate and minimise pollution to protect the marine
ecosystem against any adverse impacts.117

This duty includes undertaking environmental impact assessments for


proposed activities that are likely to cause adverse impacts on the marine and
coastal environments,118 including the application of management measures
based on the best scientific evidence available.119 Further, the need for
establishing mechanisms for inter-sectorial data collection, sharing and


111

Op cit, Article 4 (1) (a)


Op cit, Article 4 (1) (b)
113
Op cit, Article 4 (1) (c)
114
Op cit, Article 4 (1) (d)
115
Op cit, Article 4 (1) (e)
116
Op cit, Article 4 (1) (f)
117
Op cit, Article 4(2) (a)
118
Op cit, Article 4(2) (b) (emphasis added)
119
Op cit, Article 4(2) (c) (emphasis added)
112

56

exchange thereof is paramount,120 coupled with the reverse and prevention of


habitat alteration and destruction where possible.121 Lastly, the protection of
vulnerable species and biological diversity should be adhered with,122
including taking all possible steps to strengthen and maintain human and
infrastructural capacity.123

Important to note is that the BCC operates in accordance with the


UNCLOS124, thereby comprising of all areas within the national sovereignty
and jurisdiction in terms of UNCLOS, and is bound by the high water mark
alongside the coasts of the Parties.125 The objective of UNCLOS, and in turn
that of the BCC is therefore not only to place an obligation on coastal States to
protect the marine environment in the large seabed areas and superjacent
waters, but also to ensure that control and reduction mechanisms are in place
to prevent pollution (should it occur) from spreading to areas beyond the
States jurisdiction.

3.4.

Definition of the term Environment

Article 95 (l) of the Namibian constitution dealing with principles of State


policy indicates that the duty to ensure the well-being of all Namibians
extends to ecosystems, ecological process and biological diversity which
infers an inclusion for the maintenance and protection of the environment at
large. However, what exactly constitutes the environment?

120

Op cit, Article 4(2)(d)


Op cit, Article 4(2)(e) (emphasis added)
122
Op cit, Article 4(2)(f)
123
Op cit, Article 4(2)(g)
124
Of 10 December 1982, and entered into force on as a treaty on 16 November 1994.
125
Benguela Current Commission, Article 3 (1)
121

57

The EMA126 in Section 1 defines environment as those [c]omplex natural and


anthropogenic factors and elements mutually unified and affecting the
ecological equilibrium and the quality of life, including in its definition:

[t]he natural environment that is the land, water and air, all organic
and inorganic material and all living organisms, and [t]he human
environment that is the landscape and natural, cultural, historical,
aesthetic, economic and social heritage and values.127

The Stockholm Declaration on the Human Environment128 proclaims in Part I


that [t]he protection and improvement of the human environment is a major
issue which affects the well-being of peoples and economic development
throughout the world, further declaring that such environmental protection
[i]s the urgent desire of the peoples of the whole world and the duty of all
Governments.

Despite lacking in a definition of the term itself, Principle 2 of the Declaration


nonetheless specifies that natural resources are [t]he natural resources of the
earth, including the air, water, land, flora and fauna and [] natural
ecosystems, and that these natural resources [m]ust be safeguarded []
through careful planning or management, as appropriate. The nature of the
term was also emphasised by the International Court of Justice in its advisory

126

No. 7 of 2007;
See also the Article 1 of the South African National Environmental Management Act, No.
107 of 1998.
128
The Declaration was discussed and decided at the United Nations Conference on the
Human Environment in Stockholm in June, 1972. The Declaration is considered to be one of
the basic legal foundations of international environmental law and is discussed later in the
paper.
127

58

opinion on the Legality of the Threat or Use of Nuclear Weapons stating


[t]he environment is not an abstraction, but represents the living space, the
quality of life, and the very health of human beings, including generations
unborn.129

The above examples, both in their narrow or broad dimensions, evidence the
difficulty of placing a limit on the term environment. By way of summary, the
term denotes the inclusion of the entire range of living factors (humans,
animals, plants and micro-organisms) as components of the natural (land, air,
water etc.) and human (cultural, social heritage, landscape, economic and
historical values) environments. With mankind dependant on the availability
of resources in ecosystems (and ecosystems in turn providing mankinds
cultural, aesthetic and intellectual stimulation), the environment therefore
includes the co-existence of all living and non-living organisms in an
ecosystem whose survival is dependent on the uninterrupted functioning of all
natural systems and surroundings, both in the natural and human environment.

The scenario at hand creates a conundrum whereby the possible extraction of


natural resources (phosphorites) within the natural environment (water/ocean)
may pose risks to both the living components of that natural environment (fish
stocks such as hake) and the human environment (economic effects on the
fishing industry). The environment therefore, as it should be understood for
purposes of discussion, is the delicate Benguela Current marine environment
comprising of the seabed and marine resources, and the interruption of such an

129

Advisory Opinion, ICJ Rep. 1996, 241f, para 29.

59

environment may inadvertently affect other external factors such as those of


an economic nature.

3.5.

The Concept of Sustainable development

By way of article 95 (l)130 of the Namibian constitution, the deliberate


inclusion of the word sustainable indicates the need to utilise living natural
resources in a preservative manner, implying the notion of sustainable
development in the achievement of environmental protection. The EMA131
defines sustainable development as the human use of:

natural resource, whether renewable or non-renewable, or the


environment, in such a manner that it may equitably yield the greatest
benefit to present generations while maintaining its potential to meet
the needs and aspirations of future generations including the
maintenance and improvement of the capacity of the environment to
produce renewable resources and the natural capacity for regeneration
of such resources.

The primary operation of sustainable development therefore revolves around


the usage of natural resources or the environment by humans in a
sustainable manner that prolongs the equal utilisation of such for present and
future generations. However the deliberate use of the word or in
distinguishing between the use of a natural resource or the environment,
indicates that the two terms need not exist conjunctively for sustainable
development to apply. This therefore makes it possible that in using natural

130

The article states that maintenance of ecosystems, essential ecological processes and
biological diversity of Namibia and utilization of living natural resources on a sustainable
basis for the benefit of all Namibians, both present and future. (emphasis added)
131
Act No 7 of 2007,

60

resources, the subsequent extraction thereof may affect the sustainable


development of the marine environment if the extraction of these natural
resources is detrimental to, or has the possibility of adversely impacting such
an environment.

On an international basis, the concept was introduced by the Brundtland


Report132 with the aim of not only supporting strong economic and social
development, but also underlying the importance of protecting the natural
resource base and the environment.133 Inspired by the Brundtland Report, the
Rio Declaration aimed to achieve the objective of sustainable development
through the further formulation of environmental principles.

Chief amongst these is Principle 4 calling for environmental protection to


constitute [a]n integral part of the development process in order to achieve
sustainable development. This suggests an integration of environmental
considerations into a States socio-economic plans, observed by the Iron
Rhine arbitration to mean that [w]here development may cause significant
harm to the environment there is a duty to prevent, or at least mitigate, such
harm.134 This emphasis on the duty to prevent recognises the preventative

132

The Brundtland Report was published in 1987 after the dissolution of the 1983 UNGA
World Commission on Environment and Development. The Commission became known as
the Brundtland commission, named after then Prime Minister of Norway Gro Harlem
Brundtland who headed it. The re-examination of critical environment and development
issues and the formulation of realistic proposals to deal with such issues became one of the
Brundtland Commissions main objectives.
133
United Nations Economic Commission for Europe. Sustainable development- concept and
action. Available
at http://www.unece.org/oes/nutshell/2004-2005/focus_sustainable_development.html.
[Accessed 23 April 2015].
134
Arbitration Regarding The Iron Rhine (Ijzeren Rijn) Railway between The Kingdom of
Belgium and the Kingdom of The Netherlands, Award of the Arbitral Tribunal, The Hague,
24 May 2005., para 59.

61

principle as the capping mechanism in achieving sustainable development,


activated in instances where development threatens to cause environmental
damage.

Majority of the bench in the Gabcikovo-Nagymaros case identified sustainable


development as a concept, stating further its importance as a new standard
having substantial contemporary relevance.135 However in a separate opinion,
Judge Weeramantry opined that sustainable development is a legal principle
having an erga omnes character, rather than a concept.136 There is no doubt
that Judge Weeramantry has firmly pinned sustainable development on the
map. However if accepted as a legal principle, does it command an erga
omnes character?

According to Victor, [g]etting serious about sustainable development


requires redrawing the lines of sovereignty,137 making it difficult for it to
impose a universal responsibility on States to promote it. Thomson too opines
that an [e]rga omnes obligation will hinge on what is or what is not
sustainable, further stating that [w]hat is sustainable in one country may be
unsustainable in another.138 To this end, sustainable development falls short


135

Op cit, [1997], Judgement.


Op cit, Separate opinion of Vice-President Weeramantry.

136

137

Victor, D. 2006. Recovering Sustainable Development, Foreign Affairs, Vol 85,


No 1, 91103, at p. 96.

138

Thomson, L. n.d. The ICJ and the case concerning the Gabcikovo-Nagymaros Project: the
implications for international watercourses law and international environmental law. CAR
(CEPMLP Annual Review), Volume 3.

62

of becoming a principle of international law reconciling the right to


development and the right to environmental protection.

With environmental protection being a definitive leg of sustainable


development, the abovementioned objectives of UNCLOS and the BCC of
creating control and reduction mechanisms to prevent pollution coincide with
the theme of sustainable development. However at this point, the activities of
seabed phosphate mining are dormant and a discussion into the traditional
meaning of pollution will diminish the aim of the study. Rather, what is
important is the obligation to protect the marine environment, entailing a duty
of due diligence coupled with precautionary mechanisms from the government
and its agencies to ensure that domestic environmental management standards
are consistent with international standards.

To achieve this aim, it as apposite to consider

the preventative and

precautionary approaches as they relate to the necessary steps needed to


ensure that phosphate mining activities are not detrimental to the fragile
Benguela Current ecosystem or marine life habitat. To this end, the
environmental principles most relevant to this objective are the Preventative,
Environmental Impact Assessment and Precautionary Principles, which will
be discussed in chapter 4 below.

63

CHAPTER

4:

THE

PREVENTATIVE

AND

PRECAUTIONARY PRINCIPLES

4.1.

The Preventative Principle

The preventative principle manifested from the golden rule on transboundary


harm as stated in the Trial Smelter Arbitration,139 imposing a duty upon all
States to ensure that activities within their jurisdictions do not cause
transboundary harm. The reformulation of this golden rule under Stockholms
Principle 21 and Rios Principle 2 engraved it as a basic rule under customary
international law, with the ICJ stating in the Gabcikovo Nagymaros Case that

[] the existence of a general obligation of States to ensure that


activities within their jurisdiction and control respect the environment
of other States or of areas beyond national control is now part of the
corpus of international law relating to the environment.140

The fact that UNCLOS and the BCC places a duty on coastal States to not
only protect the marine environment but to ensure reduction and mitigation
mechanisms are in place should pollution occur, indicates that the preventative
principle relies on scientific certainty. In other words, unlike the remedial
approach whereby the late intervention by public authorities was made only
after damage had occurred and the course of action was to remedy, the
preventative principle was a radical modification to the remedial approach in


139

[1941] (RIAA) Vol 3


Case Concerning the Gabcikovo - Nagymaros Project: (Hung. v. Slovak.), (25 Sept 1997) ICJ
Reports 1997 p.7.
140

64

that authorities would now intervene prior to the damage that is likely to occur
if nothing is done to prevent.141

The principle therefore relies on clear and convincing evidence which


provides an understanding that if timely prevention of damaging consequences
is not undertaken, then situations pertaining to the tangible threats posed to the
environment by proposed activities may rapidly become critical.142

Going further, de Sadeleer is of the opinion that the [p]reventive principle is


in fact an external element of the general obligation to due diligence or due
care with respect to the environment and natural wealth and resources.143 By
introducing an element of consistency for the general obligation of due
diligence, the preventive principle should serve to strengthen the core of that
obligation by using secondary standards for determining whether or not a
State has complied with the due diligence requirement.144 An example of an
implementing secondary standard of the preventative principle is the
Environmental Impact Assessment (EIA), a concept that will become apparent
later in this chapter.

4.2.

The Precautionary Principle

One of the guiding principles mentioned in article 4(1)(c) of the Benguela


Current Convention is the precautionary principle, a philosophical approach to
risk traced back to the 1970 German notion of Vorsorgeprinzip, which can

141

N, de Sadeleer. 2002. Environmental Principles: From Political Slogans to Legal Rules.


Oxford: Oxford University Press, p. 92
142
Op cit.
143
Op cit, at p. 64
144
Op cit.

65

be translated as the foresight Principle.145The principle was universally


recognized in Principle 15 of the Rio Declaration stating that

In order to protect the environment, the precautionary approach shall


be widely applied by States according to their capabilities. Where
there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.

The Benguela Current Convention (albeit in its preamble) describes it as


[t]he principle that a lack of full scientific certainty shall not be used as a
reason for postponing measures or actions to give effect to the objective of
this Convention146, and is enshrined in section 3(2)(k) of the Environmental
Management Act to mean that in the event where sufficient evidence
establishes the threats of serious or irreversible damage to the environment,
the lack of scientific certainty may not be used to bypass or postpone the costeffective measures necessary to prevent environmental degradation.147

4.3.

The Precautionary Principle amongst Scholars

There is lack of uniformity amongst scholars as to the meaning of the


principle in practice, with some indicating that the principle is the most
developed form of the general rule imposing an obligation upon States to

145

Kayikit, M. 2012. Burden of Proof within the Scope of the Precautionary Principle:
International and European Perspectives. Available at:
http://dx.doi.org/10.2139/ssrn.2101613. {Accessed last 18/08/2015], p. 3.
146
Article 1
147
Albeit in the preamble, the Convention on Biodiversity (1992) notes that [w]here there is
a threat of significant reduction or loss of biological diversity, lack of full scientific certainty
should not be used as a reason for postponing measures to avoid or minimize such a threat.

66

prevent harm to the environment.148 Kiss observes that its application becomes
relevant in those cases involving activities which may pose long lasting or
irreversible damage to the environment, as well as instances where the benefit
to be derived from a particular activity is completely out of proportion when
compared to the negative impacts it may possibly have on the environment.149

Mendis indicates that the principle constitutes good governance which is


voluntary in nature and is implemented through the exercise of the right to
sovereignty, indicating further that the principle is deployed in a constructive,
rather than prohibitive manner when doubts exist pertaining to the affects an
activity is likely to have on the environment, thereby opting for the safer
ground of the known.150

Noting its expansion beyond the traditional better safe than sorry
environmental protection approach, Cameron and Aboucher argue that the
principle has evolved to guide the behaviour of decision makers, indicating
that it not only continues to inform the effective creation and implementation
of a range of environmental protection policies, but has also become the
correct legal and policy response available to decision makers in the face of


148

Kiss, A. 1996. The Rights and Interests of future generations and the Precautionary
Principle In: Freestone, D., and Hey, E. 1996. (eds) The precautionary principle and
international Law: The Challenge of Implementation. The Hague: Kluwer Law
International, pp. 19-28, p. 27
149
Op cit.
150
Mendis, C. n.d. Sovereignty vs. trans-boundary environmental harm: The evolving
International law obligations and the Sethusamuduram Ship Channel Project. Available
at:
http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_pap
ers/mendis_0607_sri_lanka.pdf. [Accessed last 14/08/2015], p. 39

67

scientific uncertainty concerning degradation of the environment.151 Jordan


and ORiodan add that [t]he central role of the precautionary principle is to
guide administrators and regulators who are required to make decisions or
develop policy in circumstances where scientific information is imperfect and
the likely impact of their actions is uncertain,152 with Weale adamant that the
principle implies a broader implication for politicians and policy makers to act
with "[d]ue care and attention in the face of scientific uncertainties"153

Legal pundits who remain sceptical of the precautionary principle point out
the discrepancies between the effects an activity is assumed to have and the
effects such activity actually has,154with one author relying on the definitional
variations to point out that [v]ersions of the precautionary principle are
many, both in terms of wording and in terms of surface syntactic structure.155
This latter definitional variation can be observed in Principle 15 of Rio
referring to precautionary approach whilst the Benguela Current
Commission describes it as the precautionary principle. However within the
context of discussion, the terms will be used interchangeably.


151

Cameron, J., and Abouchar, J. 1996. The Status of the Precautionary Principle in
International Law. In: Freestone, D., and Hey, E. 1996. (eds) The precautionary principle
and international Law: The Challenge of Implementation. The Hague: Kluwer Law
International, pp. 29-52, p. 30
152
Jordan, A., and ORiodan, T. n.d. The Precautionary Principle in U.K. Environmental Law
and Policy. CSERGE Working Paper GEC 94-11, p. 3. Available at:
http://www.cserge.ac.uk/sites/default/files/gec_1994_11.pdf. [Accessed last
11/08/2015]
153
Weale, A. (1993) Ecological Modernisation and the Integration of European
Environmental Policy. In: Liefferink, J.D. et al, (eds.) European Integration And
Environmental Policy. Belhaven Press: London, p. 209
154
The Precautionary Principle and the Burden of Proof, p. 198. Available at:
file:///C:/Users/Stanley/Downloads/c8.pdf. [Accessed last 13/08/2015]
155
Manson, N.A. (2002) Formulating the precautionary principle. Environmental Ethics 24,
263 274, at p. 263

68

Opining from the definitional generalisation of the principle is Bodansky who


states that the principle "[d]oes not specify how much caution should be
taken" in any situation, indicating further that it fails not only in determining
the exact threshold of risk required to warrant precautionary actions, but also
when such measures should be taken.156 While acknowledging that the
precautionary principle is indeed vague in several senses, Ahteensuu indicates
that such vagueness is also present in various other decision-making principles
and in order to abandon the precautionary principle on this basis, one should
demonstrate how the principle is different from, and more problematic than
other principles with respect to its vagueness.157

To this end, a conclusion is drawn that regardless of the vagueness pertaining


to the generalisations or variations in the terminology used to describe the
precautionary principles nature or operation, the objectives of what the
principle aims to achieve supersede the remarks by critics calling for its
abandonment.

Critical assessment pertaining to the application of the

principle to a particular case scenario therefore provides the best interpretation


of the principle.

4.4.

Variables of the Precautionary

In line with the need for critical assessment to better understand the
precautionary principle, reliance on Ahteensus basic structure based on


156

Bodansky, D. (1991) Scientific Uncertainty and The Precautionary Principle. Environment,


33(7) 4-5 and 43-45, p. 5.
157
Ahteensuu, M. 2007. Defending the Precautionary Principle against three criticisms.
TRAMES, 11(61/56), 4, 366381, at 371.

69

thresholds and prescribed actions (as opposed to dimensions and elements)158


is used to put forward that the precautionary principle functions on two
variables, namely 1) the trigger condition and 2) the precautionary
response.159

The first structural part pertaining to the trigger condition is two-fold and
relies on two thresholds, namely 1) damage and 2) knowledge, which
determine the necessary and jointly sufficient preconditions for the principles
application.160 The damage threshold concerns harmful or otherwise
undesirable outcomes such as environmental damage (loss of biodiversity) or
harm to other sensitive organisms, indicating further that other kinds of risks
such as economic ones (if taken into account) should be considered
indirectly.161 This threshold is usually determined by the general chosen level
of protection or agreed acceptable risk,162 an example being serious and
irreversible damage under Principle 15 of the Rio declaration.

The knowledge threshold on the other hand defines the required level of
scientific understanding (of an identified threat) upon which the prescribed
precautionary principle is well-founded, with a narrow based view indicating
the principle can be applied when i) the (objective) probability of risk cannot
be established (i.e. in the state of scientific uncertainty), or ii) the magnitude


158

Ahteensuu, M. 2008. In Dubio Pro Natura? A Philosophical Analysis of the Precautionary


Principle in Environmental and Health Risk Governance. Reports from the Department of
Philosophy Vol. 20, University of Turku, p. 40
159
Op cit.
160
Op cit.
161
Op cit, p. 40-41
162
Op cit, p. 41

70

of risk is untested or contested (i.e state of ambiguity).163 This formulation as


well finds application when neither the probability nor the magnitude of the
threat can be assigned (i.e. state of ignorance).164From a broader view resting
on the level of uncertainty, the precautions taken should be directed to a threat
that is poorly understood in scientific terms, or when scientific discrepancies
and disagreements on the nature of the risk exist.165

Sources contributing to this limited understanding of risk based on uncertainty


and disagreements include i) incomplete analysis due to gaps in data or poor
quality; ii) invalid analysis methods due to faulty models, assumptions, and
extrapolations from evidence, and iii) limited knowledge due to high
complexity and interdependency of natural systems, with accuracy often
reduced by predictions.166

The wording afforded in the Rio declaration, the EMA and the BCC relates to
lack of scientific certainty, indicating that the knowledge threshold in the
Namibian context operates on the narrow view whereby the principle is wellfounded when the objective probability of risk cannot be established. However
the broader view indicates that uncertainty is extended to those threats which
are poorly understood in scientific terms, or when scientific discrepancies and
disagreements on the nature of the risk exist. Aptly noting, there is a state of
scientific uncertainty pertaining to the none established risk in the EIAs
(conducted by NMP) and scoping report (conducted by SINTEF), and a state

163

Op cit.
Op cit.
165
Op cit.
166
Op cit, p. 42.
164

71

of ambiguity as the magnitude of phosphate mining on the marine


environment is untested and contested (affected parties claim activities have
irreversible effects, whilst companies say effects are minimal).

The second structural part of the precautionary principle relates to prescribed


action providing for a precautionary response taken on pre-emptive
measures.167 These may take the form of outright bans or phase-outs,
moratoria, requests for extra scientific information before proceeding, or
postpone activities.168 Further responses include the establishment and
implementation of methodologies of precautionary risk assessment which
focuses not only on how to deal with identified threats, but also on methods to
anticipate and assess such threats at their source.169 These assessments may
encourage research alternatives to the activity, reduction of uncertainty about
the casual relationship between activity and effect, and the supply of new
ways to diminish the consequences of the effect.170

4.5.

Versions of the Precautionary Principle

Thus far, the complex nature of the precautionary principle is evident from the
numerous variations observed not only in academic references, but in sources
giving birth to the principle. This complex nature extends to who bares the
onus of truth under the precautionary principle.171 In assessing this position, a


167

Op cit, p. 43.
Op cit.
169
Op cit.
170
Op cit.
171
Kayikit, M. 2012. Burden of Proof within the Scope of the Precautionary Principle:
International and European Perspectives. Available at:
http://dx.doi.org/10.2139/ssrn.2101613. {Accessed last 18/08/2015], p. 7.
168

72

combination of the abovementioned variables is used to identify and


formulate weak and strong versions of the precautionary principle.

4.5.1. Weak Versions


Weak versions of the precautionary principle are usually restrictive, allowing
preventative measures to be taken in cases of uncertainty only when some
evidence relating to both the likelihood of occurrence and the severity of
consequences of action is presented.172 Other factors include economic
considerations which provide for legitimate grounds for measures to be taken,
and the burden of proof generally falls on those advocating precautionary
action.173

An example of a weak version of the principle is observed in Principle 15 of


the Rio Declaration, stating that [w]here there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental
degradation. Deriving its existence from Principle 15 above, section 3(2)(k)
of the Environmental Management Act too constitutes a weak version of the
precautionary principle by stating that

[w]here sufficient evidence establishes the threats of serious or


irreversible damage to the environment, the lack of scientific certainty
may not be used to bypass or postpone the cost-effective measures
necessary to prevent environmental degradation.174

172

Op cit, p. 7.
Op cit.
174
Albeit in the preamble, the Convention on Biodiversity (1992) notes that [w]here there is
a threat of significant reduction or loss of biological diversity, lack of full scientific
173

73

First, the phrase serious and irreversible damage observed in both sources
indicates that the danger threshold, and consequently the application of the
precautionary principle is limited to instances involving threats of serious
damage, with the EMA specifically referring to environmental damage
whilst Rio generalises it to damage. Second, the knowledge threshold needed
to trigger the response in both sources applies to a narrow view based on a
state of scientific uncertainty, with Principle 15 indicating that the scientific
certainty need not be full whilst the EMA does not state a required degree of
certainty. Third, the action or response formulated under both sources is a
preventative one generalised under a cost-effective theme, implying that
such responses are discretionary and should be guided by costs.

The above indicates that by implication, the EMA vis a vis article 3(2)(k)
provides a weak version of the precautionary principle. Even though it places
a high threshold on the acceptable risk required to trigger the operation of the
principle, it nonetheless requires the threats of danger to be established by
sufficient evidence which suggests that a likelihood of occurrence and the
severity of inaction should be shown.

However, although it is silent on what constitutes sufficient evidence and


whether speculative evidence is accepted, what is clear is that a certain degree
of scientific evidence is the requirement needed to trigger preventative

certainty should not be used as a reason for postponing measures to avoid or minimize such
a threat.

74

measures directed towards environmental degradation under the principle. It is


therefore this preventative element contained in the provision that limits the
operation of the precautionary principle under the EMA, as it confines it to the
realms of the preventative principle by way of providing sufficient evidence to
show cause. On the above, the burden of proof under this weakly formulated
version of the precautionary principle falls on those advocating for
precautionary action, in this instance the MFMR representing the affected
parties.

4.5.2. Strong versions


Strong versions of the precautionary principle indicate that measures are to be
taken whenever there is a strong possible risk to the environment, even if the
supporting evidence is speculative and where economic costs of measures are
high.175 Unlike the weak version, the strong version is not limited to serious
damage and the burden of proof is reversed, requiring proponents of the
activity (rather precautionary action advocates) to bear the onus of proof.176

Albeit limited, adoption of the precautionary principle in the preamble of the


BCC wherein [a] lack of full scientific certainty shall not be used as a reason
for postponing measures or actions to give effect to the objective of this
Convention177 resembles the strong version. Although this formulation relies
on a narrow knowledge threshold based on lack of full scientific certainty, it
is silent on the damage which implies a low threshold associated to harm.

175

Kayikit, M. 2012. Burden of Proof within the Scope of the Precautionary Principle:
International and European Perspectives. Available at:
http://dx.doi.org/10.2139/ssrn.2101613. {Accessed last 18/08/2015], p. 7
176
Op cit.
177
Article 1

75

Further, the precautionary actions are not specified as these are generalized as
measures or actions giving effect to the conventions objective. Rather than
expressly formulating a strong version of the principle, it appears that such a
version is achieved through the omission of specific wording that may infer a
weak interpretation.

However an express example of a strong version of the principle is found in


the Wingspread Statement on the Precautionary Principle, a formulation
introduced at the 1998 Science and Environmental Health Network (SEHN)
Conference stating that

When an activity raises threats of harm to human health or the


environment, precautionary measures should be taken even if some
cause and effect relationships are not fully established scientifically.178

Firstly, the damage threshold relates only to threats of harm to human health
or the environment which indicates a low threshold associated with harm (as
opposed to serious or irreversible damage in the section 3(2)(k) of the EMA).
Second, the knowledge threshold required to trigger a response relates to
instances where cause and effect relationships are not fully scientifically
established, implying that there need not be a full scientific nexus between
cause and effect. Third, the response or action specifically relates to
precautionary measures as opposed to preventative measures observed in
the EMA, with the tone of the phrase should be taken indicating a mandatory
approach of implementation at the earliest possible moment.

178

SEHN, 1998. Available at: http://www.sehn.org/state.html#w. [Accessed last 20/08/2015]

76

This strong version observed in the Wingspread Statement has been described
by Turner and Hartzell as [t]he closest thing to a canonical version of the
precautionary principle.179 Therefore when implemented at its fullest, the
precautionary principle reverses the preventative approach: Proponents of
development (MNEs) now have to show that activities carried out by them
will most likely not cause unacceptable environmental degradation, as
opposed to regulatory authorities of the affected State proving that they will.

From a marine perspective, a canonical example of the precautionary principle


as it relates to burden of proof can be drawn from the global moratorium on
large-scale pelagic driftnet fishing adopted by the UNGA in 1989,180 whereby
an assumption that driftnet fishing was environmentally unacceptable shifted
the burden of proof which required States seeking noncompliance with the
moratorium to the produce sound evidence indicating otherwise.181 The
moratorium relied on the conclusive information regarding the possible effects
on the natural environment, applying only to those [a]ctivities which are
likely to pose a significant risk, as opposed to all activities.182

Perhaps a more zealous approach is found in the 1982 World Charter for
Nature, providing the following precautionary allocation of the burden of
proof. First, those activities likely to cause irreversible harm should be

179

Turner, D. & Hartzell, L. (2004), The Lack of Clarity in the Precautionary Principle,
Environmental Values 13: 449-460.
180
Resolution 44/225 on Large-Scale Pelagic Driftnet Fishing and its Impact on the Living
Marine Resources of the Worlds Oceans and Seas of 22 December 1989.
181
The Precautionary Principle and the Burden of Proof, p. 204. Available at:
file:///C:/Users/Stanley/Downloads/c8.pdf. [Accessed last 13/08/2015]
182
Op cit.

77

avoided altogether.183 Second, those likely to pose significant risk to nature


shall be preceded by way of thorough investigation to establish their potential
impact whereby [p]roponents shall demonstrate that expected benefits
outweigh potential damage to nature []. [W]here potential adverse effects
are not fully understood [], the activities should not proceed [] based on
those activities likely to cause irreversible harm.184

The above indicates the attitude offered by strong versions of the principle in
catering for situations ranging from activities likely to pose irreversible harm,
and those likely to pose significant risk. The former requires decision makers
to immediately avoid such activities, diminishing the burden of proof notion
as they rely solely on the assumption that these activities pose irreversible
effects as opposed to allowing comprehensive assessments to establish such.
The latter on the other hand allows the entity wishing to implement a
particular activity to exercise the burden of proof notion, making it possible
to configure evidence indicating the minimal significant effects such activities
have on the environment and in the event that those potential effects are not
fully understood or evidence is insufficient, then only will the activities be
banned based on their likelihood to cause irreversible harm.

The need to show minimal environmental as opposed to absolute proof is


because evidence of no harm cannot be realistically attained or achieved.
Policy makers therefore have to leave reasonable room for error to
accommodate workable negative impacts posed by activities. The above

183

Principle 11(a)
Principle 11(b)(emphasis added)

184

78

highlights the difference in attitude attributed to irreversible harm and


significant risk, indicating that under a strong version of the principle, the
former places the burden of decision taking on the policy makers whilst the
latter allows scientific evidence to guide such decisions.

4.6.

Level of Acceptable Risk

At this point, it should be apparent that the precautionary approach resembles


a risk management process involving the public process by decision-makers of
deciding how safe is safe, using risk assessment methods attained through
scientific research. In the context of the preventative principle on the other
hand, the risk assessment process comes before risk management and this
means decisions are usually taken after damage has already likely occurred.
The precautionary principle therefore reverses this process, seeking to place
risk management before risk assessment in order to allow decision makers to
mitigate or avoid such damages. However as observed with weak versions of
the precautionary principle, more so section 3(2)(k) of the EMA, the
precautionary approach is intertwined by way of preventative measures when
instituting precautionary actions.

Freestone and Hey, from a legal point of view point out that the most
important facet of the principle is that the positive action for environmental
protection purposes may be required before scientific proof of harm has been
provided, suggesting an easier to cross threshold of significant risk.185 From

185

Freestone, D., and Hey, E. 1996. Origins & development of the precautionary principle. In
Freestone, D., and Hey, E. 1996. The precautionary principle and international Law: The
Challenge of Implementation. The Hague: Kluwer Law International, pp. 19-28, p. 13

79

an analogical perspective, this reverses the innocent until proven guilty


element under criminal law, as activities with potential environmental impacts
are now considered harmful until proven innocent. This operates on the basis
that severe and/or permanent damage to ecosystems is considered a worst off
outcome than a forgone business opportunity. The precautionary element
therefore appears to be in the timing of, rather than the need for remedial
action, and allows for ways in which (and the time at which) the measures are
to be adopted (rather than dictating specific regulatory measures).186

The logic behind the burden of proof under the precautionary model is
encouraged by the notion that proponents of development are in a better
position to identify those possible impacts and carry out the required studies to
evidence how these impacts can be minimised or avoided. However, the
drawback of this approach is the possible manner in which these studies are
conducted, as a business as usual attitude may supersede the required care
and diligence element required to afford unbiased results. Nonetheless, the
above implies that once a prima facie case has been made to establish that
risks exist, then scientific uncertainty works against the potential party whose
activities are likely to pose such risks.187

However, if all kinds of risks were allowed to trigger the application of the
principle, then the likelihood of economic stagnation may suffice as it is near
impossible for an activity to be risk free. De Sadeleer is particularly cautious
of this, stating that whilst the

186

Op cit, p. 12-3.
Op cit, p. 13.

187

80

[s]trategy of delayed preventive action can paralyse technological


development; its rival may allow irreversible ecological damage to
occur.188

Moreso, the same author concludes that

This paradox illustrates the dilemma confronting public authorities


when they need to act in a context of incomplete knowledge. Should
they await the results of full scientific investigations before acting,
thereby risking irreversible damage in the future? Or should they act in
an anticipatory fashion, even if the real nature of the threat remains
less than certain?

Developments aimed at economic progression will therefore be prevented


from taking off if every risk was accepted as a trigger, and the omission of the
Benguela Current Convention in prescribing a damage threshold under its
formulation of the precautionary principle may create the drawback of risk
specificity needed to effect the principles operation. Therefore what is the
level of risk needed for such a trigger?

In line with the 1989 UNGA pelagic driftnet fishing moratorium observed
above, logic indicates that the risk needed to trigger the precautionary
principle should be limited to those activities [l]ikely to pose a significant
risk, as opposed to all activities.189 Therefore from the PSNR perspective

188

N, de Sadeleer. 2002. Environmental Principles: From Political Slogans to Legal Rules.


Oxford: Oxford University Press, p. 155
189
The Precautionary Principle and the Burden of Proof, p. 202. Available at:
file:///C:/Users/Stanley/Downloads/c8.pdf. [Accessed last 13/08/2015]

81

which supports a States right to exploit its natural resources for economic and
developmental purposes while underlying its duty to protect the environment,
the precautionary principle, as it relates to the relationship between natural
resource exploitation and environmental protection in Namibia, appears to be
limited to those activities posing possible adverse, detrimental or
significant effects on the environment.

This is observed the from the wording of section 1 of the EMA, which defines
significant effect as an activity

having, or likely to have, a consequential qualitative or quantitative


impact on the environment, including changes in ecological, aesthetic,
cultural, historic, economic and social factors, whether directly or
indirectly, individually or collectively.190

A similar tone is delivered in article 1 of the BBC, albeit more clear and direct
with the wording191. Although a narrow and broad approach is observed in
both sources above, the phrases detrimental effect and adverse impact
observed in the BCC indicates a more stringent attitude implying a high

190

Article 1 (emphasis added).


a) includes any actual or potential detrimental effect on the Benguela Current Large
Marine Ecosystem that results directly or indirectly from human conduct originating
wholly or partly within the area under jurisdiction of a Party or from a ship or
aircraft under its jurisdiction or control; and
b) includes adverse impact that extends beyond the jurisdiction of a Party in which the
physical origin of the adverse impact is situated; and
c) includes any actual or potential detrimental effect on legitimate uses of the
Benguela Current Large Marine Ecosystem, on the health of the people of the
Parties or on their ability to provide for their health, safety, cultural and economic
well-being, which occurs or may occur as a consequence of a detrimental effect
referred to in (a); but
d) does not include any actual or potential detrimental effect that is negligible or
which has been assessed and to be determined acceptable under this Convention;

82

threshold of risk, as opposed to significant effect and consequential


qualitative and quantitative impact in the EMA which implies a lower
threshold. The tone of the BCC therefore suggests a more specific and directoriented approach aimed at a precautionary action of not only protecting the
marine environment, but also ensuring that activities do not affect the
legitimate use of the Benguela Current Large Marine Ecosystem which may
prevent the party States ability to provide external factors such as economic
well-being for their people.

This difference may be attributed to the general approach of the EMA on all
environmental aspects in Namibia, whilst the BCC was specifically created to
cater for the specific protection of the delicate Benguela Current Large Marine
Ecosystem. More so, although the BCC does not define what constitutes
actual or potential detrimental effect, it nonetheless clearly stipulates those
effects that are exempted from the definition: negligent or assessed
detrimental effects.192 The lack of the assessed scientific clarity pertaining to
seabed phosphate mining thereby excludes the application of the above
exception to the current scenario.

In determining the potential detrimental effects of such activities, the


Namibian government, as a party to the BCC therefore has a duty to ensure
that these activities within its jurisdiction do not pose such detrimental effects
both within and beyond its jurisdiction. When applied to the scenario, the
untested nature of extracting phosphorites from the seabed, more so its

192

Benguela Current Commission, 2013, article 1 (d).

83

possible detrimental effects on the marine environment situated within the


Benguela Current Large Marine Ecosystem falls within the ambits of an
extractive activity that may have the aforementioned possible detrimental
effects on the marine environment. Since the Namibian fishing industry relies
on the marine resources to provide jobs and contribute to the Namibian
economy, the possible qualitative and quantitative effects on the marine
environment may therefore pose rippling effects towards other factors such as
economic well-being of the people.

4.7.

Environmental

Impact

Assessment

vs

Strategic

Environmental Assessment
An example of a secondary standard instrument implementing the
preventative principle is the Environmental Impact Assessment (EIA), a
concept stated in Principle 17 of the Rio Declaration to mean

[e]environmental impact assessment, as a national instrument, shall be


undertaken for proposed activities that are likely to have a significant
adverse impact on the environment and are subject to a decision of a
competent national authority.

The principle is furthered in Article 14 (1) of the Convention on Biological


Diversity (CBD) requiring contracting States to

Introduce appropriate procedures requiring environmental impact


assessment of its proposed projects that are likely to have significant
adverse effects on biological diversity with a view to avoiding or

84

minimizing such effects and, where appropriate, allow for public


participation in such procedures.193

The EIA is therefore a systematic and detailed study of the significant adverse
effects that a planned activity may have on the environment,194 suggesting a
two folded aim: firstly to identify the potential threats of a proposed activity or
project on the environment, and secondly to use such information to modify
and consequently eliminate those threats.

It is further a reactive decision taken against a development proposal,


addressing a specific project and aiming to assess the effects such a project
may have on the environment.195 It usually has a well-defined beginning and
end, assessing direct impacts and benefits whilst focusing on the mitigation of
project-specific impacts.196

Critics have however highlighted that the EIA is constrained by certain


limitations and weaknesses, with the most obvious being the structural
weaknesses centred on the relatively late stage at which EIAs are usually
applied in decision-making, to the ineffective means of examining issues due
to the project-specific EIA approach.197 To this end, a new approach of
complementing the project-level EIA process with an incorporation of

193

Convention Biological Diversity, 1993.


Mendis, C. n.d. Sovereignty vs. trans-boundary environmental harm: The evolving
International law obligations and the Sethusamuduram Ship Channel Project. Available at:
http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_pap
ers/mendis_0607_sri_lanka.pdf. [Accessed last 14/08/2015], p. 43.
195
Dalal-Clayton, B., and Sadler, B. 1999. Strategic Environmental Assessment: A Rapidly
Evolving Approach. International Institute for Environment and development,
Environmental Planning Issues No. 18. p. 3.
196
Op cit.
197
Op cit, p. 5.
194

85

environmental considerations and alternatives directly into policy, programme


and plan designs has been formulated in the form of Strategic Environmental
Assessments (SEA).198

Simply put, a SEA constitutes a pro-active process informing development


proposals and assesses the effects on a policy, plan or programme on the
environment.199 It addresses areas, regions or sectors of development and is a
continuing process that not only assesses the cumulative impacts by providing
information at the right time, but also identifies the implications and issues
pertaining to sustainable development by focusing on a chosen level of
environmental quality.200 SEAs further have a wide perspective of operation
and a low level of detail to provide a vision and overall framework, thereby
creating a framework against which impacts and benefits can be measured.201

Sandler is adamant that a SEA constitutes the required anticipate and prevent
approach, as it is designed not only to identify the environmental effects of
proposed policies, plans and programmes at their source (rather than treating
them only as symptoms), but also aims to integrate environmental
considerations and safeguards into all phases of decision-making spanning
from the initial design to the monitoring of impacts and outcomes (with
particular emphasis on consideration of alternatives).202


198

Op cit.
Op cit.
200
Op cit.
201
Op cit.
202
Sadler, B. 2005. Initial Perspectives on SEA at the Policy Level. In: Strategic Environmental
Assessment at the Policy Level: Recent Progress, Current Status and Future
Prospects.(eds). Regional Environment Centre for Central and Eastern Europe, p. 5.
199

86

Principle 17 of Rio above makes it clear that that impact assessments are to be
specifically incorporated into the national law of States and applied according
to a particular States capabilities, and the discretion to make decisions on
such issues lies with the competent national authorities. A variation in political
regimes and natural systems makes a one fits all generalized procedure for
impact assessment impossible as different planners and analysts conduct them
differently.203

More notably, the challenge posed with SEAs is the glaring reluctance of
countries (mostly developing countries) to formulate SEA provisions within
their domestic laws, with newly independent states usually omitting to
distinguish between EIA and SEA in their legislation which results in all
environmental assessments falling under the generic term assessment.204

On face value, Namibia appears to have adopted this generic assessment


approach, by defining assessment in the Environmental Management Act as
the process of identifying, predicting and evaluating

a. the significant effects of activities on the environment;


b. the risks and consequences of activities and their alternatives and
options for mitigation with a view to minimise the effects of activities


203

Mendis, C. n.d. Sovereignty vs. trans-boundary environmental harm: The evolving


International law obligations and the Sethusamuduram Ship Channel Project. Available
at:
http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_pap
ers/mendis_0607_sri_lanka.pdf. [Accessed last 14/08/2015], p. 43
204
Dalal-Clayton, B., and Sadler, B. 1999. Strategic Environmental Assessment: A Rapidly
Evolving Approach. International Institute for Environment and development,
Environmental Planning Issues No. 18. p. 9.

87

on the environment and to maximise the benefits and to promote


compliance with the principles set out in section 3;205

In line with the guiding principles stated in section 3 of the Environmental


Management Act, section 56 of the Act makes provision for the
implementation of unforeseen changes by giving the Minister of
Environment and Tourism the authority to make regulations under Section 56
of the Act to that effect.

One of the regulations mentioned under section 56 (i) are those pertaining to
the assessment process, and the Minister of Environment and Tourism relied
on this section in 2008 to issue a government notice in the government gazette
pertaining to regulations on the Procedures and Guidelines for Strategic
Environmental Assessment (SEA) and Environmental Management Plan
(EMP).206 It is however unclear as to whether this legislation has fully
become operation but regardless, the same steps as stipulated in the EMA for
the EIA process are used in relation to the SEA process.


205

Environmental Management Act, Section 1.


April. 2008. Available at:
http://www.met.gov.na/Documents/904%20Procedure%20and%20Guideline%20for%20SEA
.pdf. [Accessed last 16/08/2015].
206

88

CHAPTER 5: ENVIRONMENTAL REGULATION


IN NAMIBIA: THE MORATORIUM ON SEA BED
PHOSPHATE MINING

5.1.

Moratoriums: Definition and Nature

A moratorium can be defined as the temporary delay or suspension of an


activity pending the resolution of a disputed issue regarding that particular
activity. Moratoriums are usually specific in nature and directed towards the
banning of a precise activity, with environmental concerns usually the driving
force behind moratoriums in the extractive industry.

Controversy has surrounded deep seabed mining in various jurisdictions due


to its untested nature, with strong opposition being offered by environmental
groups such as Deep Sea Mining Campaign, Mining Watch Canada,
Earthworks, Oasis Earth and the Mineral Policy Institute by making a joint
submission to the International Seabed Authority to halt the issuing of seabed
exploration licences and to establish a moratorium on seabed mining.207

More specifically, jurisdictions such as Papa New Guinea and Australia have
instituted moratoriums on seabed mining activities due to environmental
concerns, with the latter issuing a total ban on seabed mining around the
Groote Eylandt in the Gulf of Carpentria through a decision taken by the

207

Deep Sea Mining Campaign. 20 July 2015. No deep sea mining without civil society
consent! Worldwide pressure on the International Seabed Authority for a moratorium on
deep sea mining. Available at: www.deepseaminingoutofourdepth.org/in-the-news/.
[Accessed last 15/09/2015].

89

Northern Territory Government in June 2013.208 A similar approach was taken


in New Zealand, when the Decision-making Committee (DMC) (appointed by
the Environmental Protection Board) rejected an application by Chatham
Rock Phosphate Ltd for a marine consent to mine phosphorite nodules in the
Chatham Rise, concluding that:

Mining would cause significant and permanent adverse effects on the


existing benthic environment. This includes communities dominated
by protected stony corals which are potentially unique to the Chatham
Rise and which the DMC concluded are rare and vulnerable
ecosystems.209

The DMC further concluded that the economic benefit to New Zealand would
be modest at best, citing that

the destructive effects of the extraction process, coupled with the


potentially significant impact of the deposition of sediment on areas
adjacent to the mining blocks and on the wider marine environment,
could not be mitigated by any set of conditions or adaptive
management regime that might be reasonably imposed.210

The above is indicative of the cautious approach instituted when weighing


environmental protection against economic benefit, posing the possible
irreversible adverse risks against the possibility of a foregone business

208

Deep Sea Mining Campaign. 25 September 2013. Phosphate moratorium of international


significance. Available at: http://www.deepseaminingoutofourdepth.org/phosphate-
moratorium-of-international-significance/. [Accessed last 15/09/2015].

209
Available at:
http://www.epa.govt.nz/EEZ/chatham_rock_phosphate/decision/Pages/CRP_decision.aspx.
[Accessed Last 15/09/2015].
210
Op cit.

90

opportunity. The fact that decisions such as the above are taking place in
developed countries such as New Zealand and Australia puts into perspective
the evolution of the sustainable development concept, attempting to
equilibrate development against environmental protection.

Resource rich developing nations such as Namibia should therefore attempt to


emulate the steadfast approach of taking the correct precautionary measures
and weighing the modest at best economic benefit model against possible
destructive effects, similar to the remarks made by the founding President of
Namibia, Dr Sam Nujoma who alluded that these [p]roposed mining of our
resources at sea must be guarded against, as we must protect our aquamarine
resources; mining is finite, fisheries is everlasting211

5.2.

Cabinet Directives: Legality and Legal Effect

Article 35(1) of the Namibian constitution makes it clear that the cabinet
exists for the purposes of administering and executing the functions of the
Government. Article 40 (a) states that the role of the Cabinet is to direct, coordinate and supervise the activities of Ministries and Government
departments, with article 40 (k) further empowering cabinet to issue notices,
instructions and directives in order to facilitate the implementation and
administration of laws.


211

The Villager, 25 November 2013 Fisheries stalling 3b deal, available at:


http://www.thevillager.com.na/articles/5422/Fisheries-stalling-N-3b-mining-deal-/.
[Accessed last 11/08/2015] (emphasis added).

91

Relying on the above supervisory role, the Cabinet used its power to
coordinate the activities of the MME vis a vis the proposed sea bed phosphate
mining by taking into consideration the concerns of the MFMR, thereby
taking a decision (Cabinet decision No. 14th/17.09.13/018) on the 17th of
September 2013 to issue an 18 month temporary moratorium on bulk seabed
mining referring specifically to phosphorites.

The above may be seen as the implementation of legislation aimed at crosssectional matters which requires an integrated governance/management
approach model aimed at inter-ministerial coordination, with the issue here
being seabed exploitation and the possible unknown effects thereof. The fact
that the proposal for the moratorium emanated from the Minister of MFMR,
Dr Bernhard Esau means that the decision by cabinet lacks individuality, as
cabinet did not have direct individual authority in proposing the moratorium
on an individual basis, but rather as a collective.

This, in substance does not affect the validity of the moratorium in law, but
may otherwise have been procedurally flawed not only on the basis of the
above lack of personality by Cabinet, but also due to the fact that the
moratorium was never published in the Government Gazette.

5.3.

Lapsing of Moratorium: Justification for Extension?

Earlier in 2015, former president of the Chamber of Mines in Namibia Werner


Duvenhage stated that:

92

the chamber remains concerned that the 18-month period of the


Cabinet moratorium on marine phosphate which was declared on 17
September 2013 has lapsed without much progress on the desired
scientific studies to address concerns by the fishing industry.

The above illustrates the frustration surrounding the lack of sound scientific
evidence needed to find amicable solutions for the co-existence of the fishery
and mining sectors as they relate to seabed phosphate mining. More so,
whether or not the initial moratorium had procedural flaws as alluded in the
previous section becomes irrelevant at this point due to the lapsing thereof.
The question however remains: does the government extend the moratorium
based on the precautionary principle to allow for the gathering of sound
scientific evidence (or ban phosphate mining in its entirety), or does it
succumb to the demands of the mining right holders (NMP and LLNP) and the
MME?

In answering the above, it is apposite to remember that the rights of NMP and
LLNP may not merely be ignored, as they have been issued mining licences
under the auspices of the Minerals (Prospecting and Mining) Act212. However
as alluded above, this does not equate to a right to mine as these companies
require ECCs issued under the auspices of the EIA.213

More so, the role of the MET is pivotal because since the moratorium has
lapsed, the banning on the issuance of ECCs for marine phosphate mining has
been lifted. Therefore should either companies submit an EIA and such EIA is

212

33 of 1992.
7 of 2007.

213

93

accepted by the Environmental Commissioners Office, the issuance of an


environmental clearance to these companies would afford them the required
crucial document allowing them to proceed with mining operations.
Remarking on this issue, Amukwa of CNFA stated that:

We are concerned that Namibia Marine Phosphates is trying to avoid


rigorous outside assessment of the document, and thereby shortcut the
official process of getting the environmental clearance for their EIA
from the Environmental Commissioners office. If they are successful,
they have the crucial piece of paper giving them the right to mine.214

Amukwa further alludes that the above EIAs by prospective phosphate


mining companies have not been made available nor shared with all
stakeholders for public scrutiny, emphasising that [i]f we are to co-exist, the
information needs to be provided to all stakeholders so it can be properly
scrutinized by independent experts in the field."215

However, a recent report contradicts the above, suggesting that NMP


announced in 2013 that it would embark on a N$ 14 million verification
programme of its EIA, which would have seen the company work together
with scientists and officials from the various ministries of environment and
fisheries to ascertain whether marine phosphate mining is detrimental to


214

New Era Newspaper, 8th of June 2015, Phosphate Mining calls for baseline study,
Conroy Feris. Available at: https://www.newera.com.na/2015/06/08/phosphate-mining-
calls-baseline-study/. [Accessed last 24/06/2015].
215
Economist Namibia. Namibia: Fishing Association Voices Concern Over Phosphate.
Available at: http://allafrica.com/stories/201508211500.html. [Accessed last
17/09/2015].

94

fishing operations, even though such a programme is not required by law.216


The Government, through the MFMR is suggested to have declined to be part
of this initiative which would have burst all the myths and fears surrounding
marine phosphate mining.217

If the MFMR indeed declined to participate in the verification programme,


this raises red flags prompting the question as to why government would
refuse to settle the dust over the issue once and for all. However from
reasoning, perhaps the government through the MFMR opted to conduct the
assessment themselves in order to have sound and tested scientific evidence
from an independent environmental assessment officer, resulting in the
moratorium being imposed in the first place to allow for the completion of
such an assessment.

At that stage, it can be inferred that a precautionary approach was taken by


government by way of section 3(2)(k) of the Environmental Management Act
but as observed in the previous chapter, the weak formulation of section
3(2)(k) places the burden of proof on those advocating for precautionary
action. This placed such burden on the MFMR, thereby giving instructions to
SINTEF to conduct an SEA valid under this weak formulation.

Post the lapsing of the moratorium, the inconclusive findings presented in the
scoping report by SINTEF have suggested the need for further SEA study to

216

Windhoek Observer, 29 May 2015. Phosphate Mining: Let the Science Speak for itself.
Available at: http://observer24.com.na/editorial/4553-phosphate-mining-let-the-science-
speak-for-itself. [Accessed last 17/09/2015].
217
Op cit.

95

accurately assess the possible environmental impacts posed by seabed


phosphate mining. From an environmental perspective, this is in line with
article 3 (2) (l) of the Environmental Management Act calling for preventative
measures to reduce, control or limit those activities which are likely to cause
damage to the marine environment, and the precautionary approach under
section 3(2)(k) also takes effect.

Phosphate occurrences are observed on the shelf either as small rounded


spherical grains less than 0.3mm in diameter in all sediment types,
phosphatised organic remains, or phosphate nodules and concretions occurring
usually in diatomaceous sediments and oozes often contaminated with
hydrogen sulphide.218 The mining activity involves the removal of seabed
surface sediments, with this bulk being transferred to the coast for onshore
processing and beneficiation219.

Even though De Beers uses ships to extract diamonds off the coast of
Namibia, the depths at which these activities occur are not as alarming as the
untested seabed phosphate mining which involves the cutting into the ocean
floor or dredging/trawling to recover phospherites that will be pumped onto a
floating processing vessel.220This becomes particularly important when
considering the conservation measures associated with the capturing of

218

Strategic Environmental Assessment of the Cumulative Impacts on the Marine Ecosystem


from Bulk Seabed Mining of Industrial Minerals, specifically Phosphates, off the Namibian
Coast. Available at:
http://www.sintef.no/contentassets/e0701ef53678426490f3920105b434bc/sea-bulkseabed-mining---final-bid-3.pdf. {accessed last 19/09/2015].
219
Op cit.

220
The Financial Times Magazine, 25 February 2015.

96

fisheries which includes the prohibition of trawling in depths of less than


200m, and less than 300m for hake south of latitude 25S.221 Midwater
trawling on the other hand is not allowed in waters shallower than 200 m
when harvesting migratory species such as tuna which is internationally
regulated.222

At this moment however, the exact process used by either company in the
extraction of phospherites is unknown. However, the fact remains that all
fishery activities are regulated under the Marine Resources Act223 and
regulations thereunder. More particularly, harvesting in the Marine Resources
Act is defined under section 1 as:

a) searching for, catching, taking or attempting to catch or take any


marine resource;
b) placing, or having, fishing gear in the sea or using it on the sea shore
or on an island;
c) engaging in any other activity that can reasonably be expected to
result in the locating, catching or taking of marine resources;
d) undertaking any operations at sea or on an island in preparation for any
activity mentioned in sub-paragraph (a), (b), or (c);224

Further, marine resources is defined under the act as [a]ll marine organisms,
including, but not limited, to, plants, vertebrate and invertebrate animals,


221

Strategic Environmental Assessment of the Cumulative Impacts on the Marine Ecosystem


from Bulk Seabed Mining of Industrial Minerals, specifically Phosphates, off the Namibian
Coast. Available at:
http://www.sintef.no/contentassets/e0701ef53678426490f3920105b434bc/sea-bulkseabed-mining---final-bid-3.pdf. {accessed last 19/09/2015].
222
Op cit.
223
No 27 of 2000.
224
(Emphasis added).

97

monerans, protists (including seaweeds), fungi and viruses, and also includes
guano and anything naturally derived from or produced by such organisms.225

Should one acknowledge that dredging involves the sweeping of the seabed,
logic suggests that marine resources situated on the seabed floor are included
in such process, resulting in the catching or taking of marine resources as
stipulated under the definition of harvesting. If the MME argues that
phospharites falls within the realms of the extractive industry, it can equally
be countered that since marine resources are likely to be included in such an
extractive activity, the MFMR has a direct interest and voice in such an
activity.

With article 1 (3) of the Namibian constitution calling for the separation of
powers and identifying the organs of state as constituting the Executive,
Legislative and Judiciary branches, the duty for environmental protection is
therefore extended to the MME, MFMR and MET as components of the
legislative branch.

More notably, with the Marine Resources Act226 providing for the
conservation of the marine ecosystem and the responsible utilization,
conservation, protection and promotion of marine resources on a sustainable
basis,227 the role of the MFMR as the organ of State constituted with
preserving and protecting the marine environment and living marine resources

225

Marine Resources Act, No 27 of 2000.


No 7 of 2000
227
Marine Resources Act No 7 of 2000, Preamble
226

98

places this obligation within the realms of the MFNRs mission statement.
Further, section 61(t) of the aforementioned Act grants the minister of
fisheries the right to make regulations providing for the [r]egulation of and
exercise of control over research and development activities in connection
with the harvesting and protection of marine resources.228

By representing the collective interests of the affected parties and seeking to


protect the integral functioning of the marine ecological systems from the
potential untested impacts of seabed phosphate mining, the proposed
extension of the lapsed 18 month temporary moratorium by the MFMR for
purposes of conducting a SEA to ascertain the impact of such activities on the
fisheries sector and marine environment is in line with the assessment required
under article 3 (2) (e) of the Environmental Management Act.229

More so, its reliance on the lack of scientific evidence could be seen as a
precautionary approach, with section 61(t) of the Marine Resources Act230
above authorising the MFMR with the authority to control all research
pertaining to research and activities in connection with the harvesting and
protection of marine resources. The above point is attributed to the MFMR
conducting the SEA through instructions given to SINTEF, as opposed to the
proponents of mining bearing such burden.


228

Emphasis added
No 7, of 2007.
230
No 27 of 2000.
229

99

When applied to the scenario, the untested nature of extracting phosphorites


from the seabed, more so its possible detrimental effects on the marine
environment situated within the Benguela Current Large Marine Ecosystem
falls within the ambits of an extractive activity that may have the
aforementioned possible detrimental effects on the marine environment.

Since the Namibian fishing industry relies on the marine resources to provide
jobs and contribute to the Namibian economy, the possible qualitative and
quantitative effects on the marine environment may therefore pose rippling
effects towards other factors such as economic well-being of the people. This
puts into perspective not only the possible environmental concerns associated
with seabed phosphate mining, but also the socio-economic consequences
attributed to the disruption of the marine environment.

As alluded in chapter one, the fisheries sector employs directly approximately


13000 people most of whom are Namibians, and indirect supports services to
the fishery industry which includes vessel and fish processing factory
maintenance; engineering companies; NAMPORT harbour fees; fuel
bunkerage; road-, sea- and airfreight transport; municipalities through
electricity and water costs; and ships agency and stevedoring.231 Phosphate
mining on the other hand is expected to provide the above indirect support, but


231

Strategic Environmental Assessment of the Cumulative Impacts on the Marine Ecosystem


from Bulk Seabed Mining of Industrial Minerals, specifically Phosphates, off the Namibian
Coast. Available at:
http://www.sintef.no/contentassets/e0701ef53678426490f3920105b434bc/sea-bulkseabed-mining---final-bid-3.pdf. {accessed last 19/09/2015].

100

is suggested to create only 500 jobs with a possible N$ 2.4 billion (per three
years) in revenue as opposed to the N$ 5.5 billion per annum by fisheries.232

In accordance with the above socio-economic analysis and the environmental


concerns posed as a result of the lack of scientific evidence to confirm
whether or not seabed phosphate mining has detrimental effects on the marine
environment, it is put forward that there is enough to suggest that the
moratorium should be extended under the auspices of the precautionary
principle.

More so, should the above decision be delayed, the above suggests that the
minister of fisheries can propose to cabinet the issuance of a moratorium
under section 37(1) and (2) of the Marine Resources Act in line with the
conservation or management measures under the said act until such a time that
more effective procedures for keeping such mining activities in abeyance can
be enacted.


232

The Villager Newspaper, Fisheries stalling N$3b mining deal, 25 November 2013. Available
at: http://www.thevillager.com.na/articles/5422/Fisheries-stalling-N-3b-mining-deal-/.
[Accessed last 21/09/2015].

101

CHAPTER 6: CONCLUSION AND RECOMMENDATIONS

Concluding, even though the PSNR acknowledges self-determination and the


sovereign right of States, it nonetheless places an inferred limitation on State
sovereignty. This is indicative from the fact that the affected stakeholders
mentioned as represented by the MFMR are beneficiaries of the doctrine, as
the minerals are vested in the State as custodian of such minerals and the
utilisation and exploitation of seabed phosphate mining in Namibia should be
done within the ambits of the wellbeing of the nation as a whole, including the
environment.

Further, the evolution of the PSNR doctrine is in line with environmental


protection and expands beyond the realms of protecting the environment to
include socio-environmental consideration in line with article 95(1) (l) of the
Namibian constitution. Jordan and ORiodan acknowledge that precautionary
measures are more likely to be applied when public opinion is instinctively or
knowledgeably risk averse, and societies which support a high concern for
environmental quality and other post material concerns are likely to
welcome the application of precautionary measures.233

The current uncertainty surrounding seabed phosphate mining puts the above
into perspective. First, the lapsed 18 month moratorium indicates that public
opinion in Namibia is instinctively or knowledgeably risk averse and second,

233

Jordan, A., and ORiodan, T. n.d. The Precautionary Principle in U.K. Environmental Law
and Policy. CSERGE Working Paper GEC 94-11, p. 6. Available at:
http://www.cserge.ac.uk/sites/default/files/gec_1994_11.pdf. [Accessed last
11/08/2015].

102

the support for high concern pertaining to the protection of the marine
environment through the proposed extension of the moratorium by the MFMR
indicates the welcoming of precautionary measures. Last, a high post
material exists by not only weighing the benefits of phosphate mining against
the possible irreversible or adverse impacts to the environment, but also the
rippling effects such impacts may have on external factors such as the
economy and job creation within the realms of the fishing industry.

In cases such as the present involving scientific uncertainty, the real burden of
taking decisions shifts from scientists to policy makers whose task it is to
govern. Similar to insurance companies, risk exists when the slightest doubt
exists as to whether or not an event will occur. Even though the impact to the
physical and biological resources is understood, less is known about how the
resources recover after the dredging process involved in the recovery of
phospherites stops. The fact that dredging involves the alteration of sediment
composition found on the seabed suggests that there exists grave concern that
the recovery may take years or even decades to recover, or the return to a predredge condition may be impossible.

More so, other marine resources or species making up the benthic community
are likely to be included in such an extraction process. The issue therefore is
not marine mining itself, but the specific process involved in the seabed
extraction of phospherites which the affected parties, especially the MFMR

103

are concerned will kill marine life and smother neighbouring areas with
sediments and or plumes.234

The fear that these activities may pose significant and/or permanent adverse
effects on the seafloor environment have raised a high banner in seeking a
better safe than sorry precautionary approach. Relying on the precautionary
approach under section 3(2) (k) of the EMA, the benefits derived from a
particular activity should be addressed if such benefits are completely out of
proportion when compared to the possible long lasting or irreversible damage
to the environment.

More so, the precautionary principle constitutes an advanced rule of


international law imposing a duty upon States to protect the environment in
cases of scientific uncertainty, usually deploying the principle in a
constructive manner when opting for a safer ground of the unknown.

On the above premises, it is submitted that the affected parties through the
MFMR have a strong case when arguing for the moratorium to be extended
from an environmental perspective. However as observed above, section
3(2)(k) of the EMA above offers a weak version of the precautionary principle
which offers more of a preventative approach than a precautionary one, and
places the burden of proof on those advocating for environmental protection.
It further provides economic considerations guided by costs, and these may
diminish the required precautionary response if such costs are high.

234

The Financial Times Magazine, 25 February 2015.

104

However, the above weakness is present only when section 3(2)(k) is read in
isolation, and would constitute a strong version of the principle as it relates to
natural resource development if the entire EMA were to be read in its entirety.
In other words, the listed activities such as phosphate mining require an
environmental clearance certificate from the environmental commissioner in
order for operations to proceed. This means that the proponents of mining
activities are required to prove that their plans are environmentally innocent,
and an environmental clearance certificate will only be granted when the
environmental commissioner is satisfied with such an assessment. This
process in itself demonstrates an inherent strong version of the principle, as
environmental regulation placing the burden of proof on the mining
proponents before any activities have proceeded is arguably the best
canonical version of the principle.

Should this be the case, this reversal in burden of proof would make the
planned completion of the SEA by the MFMR impossible, as the ball no
longer lies in their court. In line with the best evidence rule, it may be
advisable to allow government to bear such onus when it comes to activities of
this magnitude, taking into consideration that SEAs or an equivalent
approach can be used as a complement to project-level EIA to incorporate
environmental considerations and alternatives directly into policy, plan and
programme design. SEAs are further proactive in nature and integrate
environmental concerns with standards of due care and policy, taking into
consideration socio-environmental issues.

105

Thus, when applied systematically in the upstream part of the decision cycle
and to the economic, fiscal and trade policies that guide the overall course of
development, a SEA can be a vector for a sustainability approach to planning
and decision-making - as called for by the Brundtland Commission (WCED
1987) and by Agenda 21 (UNCED 1992). Nonetheless, the reliance of the
MFMR under section 61(t) of the Marine Resources Act which grants the
minister of fisheries the right to make regulations providing for the
[r]egulation of and exercise of control over research []235 may still give
the said ministry power to conduct and/or head the assessment in conjunction
with the mining proponents.

The above demonstrates that the weakness does not lie in section 3(2)(k)
itself, but in the failure of line ministries to operate as a unit to avoid situations
such as the present one. In line with the PSNR doctrine therefore, the
development sought under phosphate mining should not be at the detriment of
the fishing sector and marine environment, and should be fully understood on
all levels ranging from socio-economic benefits to possible environmental
effects before any environmental clearance certificates are to be issued.

If the concerns made by both the MFMR Minister and the CNFA that the
studies conducted by the mining companies are mere desktop studies is
correct, it would be ludicrous for the environmental commissioner to issue
environmental clearance certificates to these companies without the
comprehensive environmental studies capable of pointing out such adverse

235

Act No 7 of 2000. Emphasis added

106

effects (if any) being carried out. All organs of state, including the line
ministries and in particular the MET through the environmental commissioner,
are under an international obligation to preserve and protect the environment
through mechanisms such as the precautionary principle should there be a lack
of scientific evidence pertaining to the possible effects of a proposed activity.
Under article 27 of the Vienna Convention on the Law of Treaties236 therefore,
the general rules of international law are binding on Namibia and national law
cannot be used as an excuse against international law obligations, and the
actions taken in preventing the marine environment by way of UNCLOS237
should not be less than the expected international standards. This is further
alluded in the Seabed Chamber Case,238 which connects the precautionary
principle to the due diligence obligation, indicating that a State does not meet
its due diligence obligation if it disregards risks and fails to comply with the
precautionary approach.239

On the above, the following recommendations are put forward:


1. Article 3(2)(k) of the EMA should be amended to incorporate the
strong version of the precautionary principle similar to that found in
the Wingspread Statement and the 1982 World Charter on Nature. This

236

1969
1982
238
Advisory Opinion of the International Tribunal of the Law of the Sea. (ITLOS) Seabed
Chamber Case. No.17, 1 February 2011.
239
Op cit. See para. 131, stating that The due diligence obligation of the sponsoring States
requires them to take all appropriate measures to prevent damage that might result from
the activities of contractors that they sponsor. This obligation applies in situations where
scientific evidence concerning the scope and potential negative impact of the activity in
question is insufficient but where there are plausible indications of potential risks. A
sponsoring State would not meet its obligation of due diligence if it disregarded those
risks.
Such disregard would amount to a failure to comply with the precautionary approach.

237

107

allows for a more precautionary oriented approach in terms of the


trigger conditions and precautionary response, including it words such
as shall or should to give an obligatory tone in using the correct
legal and policy response available in cases of scientific uncertainty.
The burden of proof under such formulation will be reversed to the
proponents of activities thereby saving time and money for the
government, and allowing such EIAs to be properly scrutinized by the
relevant authorities.
2. The above burden of proof should however be reversed back to the
government in instances where proposed activities pose irreversible or
adverse effects as in the current case. This would cater for SEAs (as
opposed to EIAs) to be conducted not only to establish scientific
evidence pertaining to environmental degradation, but also external
socio-environmental concerns of an economic nature.
3. There needs to be effective coordination between various line
ministries, particularly in instances where their duties and interests
overlap. For example, EPLs issued by the MME within the marine
sphere which may possibly effect the marine environment and fishing
industry should be profusely consulted with the MFMR and the MET.
This can be achieved by combining various provisions found in the
EMA, the Fisheries and Marine Resources Act, and the Minerals Act
to formulate a collective directive directed at situations such as the
current one.
4. As opposed to the outright ban or phase out of seabed phosphate
mining based on the precautionary principle, the government should

108

rather issue the extension of a moratorium to a reasonable period that


would allow for the SEA to be completed. This will not only
encourage the research of alternatives to the activity, but will reduce
uncertainty about the casual relationship between seabed phosphate
mining and its possible effects on an environmental and socioenvironmental perspective.
5. Consequently, the Minister of Fisheries may propose the imposition of
a moratorium under section 37 (1) and (2) of the Marine Resources Act
on the basis of protecting the marine environment, after which such
should be published in the government gazette. The mining rights
holders (companies) should however be allowed to participate in such
assessments for transparency and equality reasons.

109

CHAPTER SEVEN: BIBLIOGRAPHY


7.1.

PRIMARY SOURCES

7.1.1. National Legislation


1. Decree No. 1 for the Protection of the Natural Resources of Namibia,
Enacted on 17 September 1974
2. Government Notice No. 28, Commencement of the Environmental
Management Act, 2007; Government Gazette No. 4878. Available at:
http://www.met.gov.na/Documents/EMA%20regulations.pdf.
[Accessed last 26/08/2015
3. Environmental Management Act, 7 of 2007
4. Marine Resources Act, 27 of 2000
5. Minerals (Prospecting and Mining) Act, 33 of 1992
6. Mines, Works and Minerals Ordinance, 20 of 1968
7. Namibian Constitution, adopted 9 February 1990
8. South African National Environmental Management Act, No. 107 of
1998

7.1.2. Regional Instruments


1. The Benguela Current Convention, 2013

7.1.3. International Instruments


1. Charter of Economic Rights and Duties of States (CERDS), Resolution
3281 (XXIX), 12 December 1974
2. Charter of the United Nations, 1945
3. Convention Biological Diversity, 1993
110

4. General Assembly Resolution 1803 (XVII) of 14 December 1962,


"Permanent sovereignty over natural

resources"

5. General Assembly- Sixth Session. Resolution 523 (VI).Integrated


economic development and commercial agreements. Available at:
http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/067/78/IMG/NR006778.pdf
?OpenElement. [Accessed last 11/07/2015]
6. International Covenant on Civil and Political Rights, Article 1, opened
for signature 19 December 1966, 999 UNTS 171 (entered into force 23
March 1976).
7. International Covenant on Economic, Social and Cultural Rights,
Opened for signature 16 December 1966, 993 UNTS 3 (entered into
force 3 January 1976).
8. OECD Guidelines for Multinational Enterprises (2011). Available at:
http://www.oecd.org/corporate/mne/1922428.pdf.

[Accessed

05

August 2015]
9. Resolution 44/225 on Large-Scale Pelagic Driftnet Fishing and its
Impact on the Living Marine Resources of the Worlds Oceans and
Seas of 22 December 1989.
10. Rio Declaration on Environment and Development , Rio de Janeiro, 14
June 1992
11. Security Council resolution 276 of 30 January 1970
12. Stockholm Declaration on the Human Environment, June 1972
13. UNGA Resolution 626, 1952

111

14. United Nations Convention on the Law of the Sea (UNCLOS), entered
into force as treaty on 16 November 1994
15. United Nations Economic Commission for Europe. Sustainable
development-

concept

and

action.

Available

at:

http://www.unece.org/oes/nutshell/20042005/focus_sustainable_development.html. [Accessed 23 April 2015].


16. United Nations Security Council, Letter dated 29 January 2002 from
the Under-Secretary-General for Legal Affairs, the Legal Counsel,
addressed to the President of the Security Council. Available at:
http://www.arso.org/Olaeng.pdf. [Accessed last 13/07/2015]
17. Vienna Convention on the Law of Treaties, 1969
18. World Charter for Nature, 1982

7.1.4. List of Cases


1. Arbitration Regarding The Iron Rhine (Ijzeren Rijn) Railway
between The Kingdom of Belgium and the Kingdom of The
Netherlands, Award of the Arbitral Tribunal, The Hague, 24 May 2005
2. Armed Activities on the Territory of the Congo (Congo v Uganda)
(Judgment) [2005] ICJ Rep 168
3. Case Concerning the Gabcikovo - Nagymaros Project: (Hung. v.
Slovak.), (25 Sept 1997) ICJ Reports 1997
4. Corfu Channel case [1949] I.C.J 4
5. East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90, 142,
1979, 204 (Judge Weeramantry), 264, 270, 276 (Judge Skubiszewski)
6. Lac Lanoux [1957] ILR 24, 101

112

7. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,


ICJ Rep. 1996, 241f
8. Seabed Chamber Case, Advisory Opinion of the International Tribunal
of the Law of the Sea. (ITLOS) Seabed Chamber Case. No.17, 1
February 2011.
9. Reliance Industries Limited v. Reliance Natural Resources Limited,
Civil Appeal No. 5765 of 2014 (Arising out Of S.L.P. (C) No. 20041
of 2013
10. Texas Overseas Petroleum Co./California Asiatic Oil Co. v. Libyan
Arab Republic, 17 ILM 3
11. Trial Smelter Arbitration [1941] (RIAA) Vol 3

7.2.

SECONDARY SOURCES

7.2.1. List of Books


1. Birnie, P and Boyle, A. 1992. International Law and the
environment. Oxford: Oxford University Press
2. Chambers, R 1993. Challenging the Professions: Frontiers for Rural
Development. London: Intermediate Technology Publications
3. Dalal-Clayton, B., and Sadler, B. 1999. Strategic Environmental
Assessment: A Rapidly Evolving Approach. International Institute for
Environment and development, Environmental Planning Issues No. 18
4. de Sadeleer. 2002. Environmental Principles: From Political Slogans
to Legal Rules. Oxford: Oxford University
5. Louka, E. 2006. International Environmental Law .Cambridge:
Cambridge University Press
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6. Nutt, P., and Backoff, R. 1992. Strategic management of public and


third sector organizations: A handbook for leaders. San Francisco:
Jossey-Bass
7. Sadler, B. 2005. Initial Perspectives on SEA at the Policy Level. In:
Strategic Environmental Assessment at the Policy Level: Recent
Progress, Current Status and Future Prospects. (eds). Regional
Environment Centre for Central and Eastern Europe.
8. Schrijiver N. 1997. Sovereignty over Natural Resources: Balancing
Rights and Duties (Cambridge Studies in International and
Comparative Law)
9. Sunkin, M., Ong, D., and Wight, R. 2001. Sourcebook on
Environmental Law, 2nd ed. London: Cavendish Publishing Limited.
10. Svitlana New laws on public participation in the newly independent
states.2002. In Zillman, D., Lucas, A., and Pring, G (eds). Human
Rights in Natural Resource Development: Public Participation in the
Sustainable Development of Mining and Energy Resources. Oxford:
Oxford University Press.
11. Weale, A. (1993) Ecological Modernisation and the Integration of
European Environmental Policy. In: Liefferink, J.D. et al, (eds.)
European Integration And Environmental Policy. Belhaven Press:
London.

7.2.2. List of Journal Articles


1. Kiss, A. 1996. The Rights and Interests of future generations and the
Precautionary Principle. In: Freestone, D., and Hey, E. 1996. (eds)

114

The precautionary principle and international Law: The Challenge of


Implementation. The Hague: Kluwer Law International, pp. 19-28
2. Manson, N.A. (2002) Formulating the precautionary principle.
Environmental Ethics 24, 263 274.
3. Nwapi, C. 2010. A legislative proposal for public participation in oil
and gas decision-making in Nigeria. African Law journal. 54 (2), 184211
4. Perrez, F., R. 1996. The Relationship between Permanent
Sovereignty and the obligation not to cause Transboundary
Environmental Damage. Environmental Law, 26. 1187-1212, at p.
1204
5. Turner, D. & Hartzell, L. (2004), The Lack of Clarity in the
Precautionary Principle, Environmental Values 13: 449-460
6. Thomson, L. n.d. The ICJ and the case concerning the GabcikovoNagymaros Project: the implications for international watercourses law
and international environmental law. CAR (CEPMLP Annual
Review), Volume 3.
7. Tiewul S., A. 1978. The Evolution of The Doctrine of Permanent
Sovereignty over Natural Resources (University of Ghana Law
Journal), 55-84
8. Tan, A,.1999. Forest Fires of Indonesia; State Responsibility and
International Liability, International and Comparative Law Quarterly,
Vol 48, Part 4 (October 1999) 826855, at 835.
9. Victor, D. 2006. Recovering Sustainable Development, Foreign
Affairs, Vol 85, No 1, 91103, at 96.

115

7.2.3. Thesis

1. Hofbauer , J.A, 2009. The Principle of Permanent Sovereignty over


Natural Resources and Its Modern Implications (LL.M. Master
Degree Thesis, Faculty of Law, University of Iceland, 2009) , at page 1

7.2.4. Policy documents and working papers

1.

SEHN,

1998.

Wingspread

Statement.

Available

at:

http://www.sehn.org/state.html#w. [Accessed last 20/08/2015]


2.

The Brundtland Report , 1987

7.2.5. Newspapers and Magazines

1. Economist Namibia. Namibia: Fishing Association Voices Concern


Over

Phosphate.

Available

http://allafrica.com/stories/201508211500.html.

[Accessed

at:
last

17/09/2015]
2. Deep Sea Mining Campaign. 20 July 2015. No deep sea mining
without civil society consent! Worldwide pressure on the International
Seabed Authority for a moratorium on deep sea mining. Available at:
www.deepseaminingoutofourdepth.org/in-the-news/. [Accessed last
15/09/2015]

116

3. Deep Sea Mining Campaign. 25 September 2013. Phosphate


moratorium

of

international

significance.

Available

at:

http://www.deepseaminingoutofourdepth.org/phosphate-moratoriumof-international-significance/. [Accessed last 15/09/2015]


4. Jewish Business News (30th April 2014). Lev Levievs $800 Million
Ocean

Phosphate

Environmental

Mining

Project

In

Namibia

Mixup.

Stalled

By

Available

at:

http://jewishbusinessnews.com/2014/04/30/lev-levievs-800-millionocean-phosphate-mining-project-in-namibia-stalled-by-environmentalmixup/. [Accessed last 25/06/2015]


5. New Era Newspaper, 8th of June 2015, Phosphate Mining calls for
baseline

study,

Conroy

Feris.

Available

at:

https://www.newera.com.na/2015/06/08/phosphate-mining-callsbaseline-study/. [Accessed last 24/06/2015]


6. The Financial Times Magazine, 25 February 2015
7. The Namibian Newspaper (13 December 2013). Norwegians to Study
Nam

Marine

Phosphate,

Adam

Hartmund.

Available

at:

http://www.namibian.com.na/indexx.php?archive_id=117687&page_t
ype=archive_story_detail&page=1. [Accessed last 24/06/2015]
8. The Namibian Newspaper (27 May 2015). Battle over Phosphate,
Shinoveni

Immanuel.

Available

at:

http://www.namibian.com.na/indexx.php?id=27065&page_type=story
_detail. [Accessed last 24/06/2015]

117

9. The Villager, 25 November 2013 Fisheries stalling 3b deal, available


at:

http://www.thevillager.com.na/articles/5422/Fisheries-stalling-N-

3b-mining-deal-/. [Accessed last 11/08/2015]


10. Windhoek Observer, 29 May 2015. Phosphate Mining: Let the Science
Speak for itself. Available at: http://observer24.com.na/editorial/4553phosphate-mining-let-the-science-speak-for-itself.

[Accessed

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7.2.6. Internet

1. Anon, n.d. Corporate social responsibility: Rio Tinto in Namibia- The


Rossing

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2. Amukwa, M. 2014. Fishing Industrys view on the need for good
ecosystem research regarding marine mining impacts. Presented at the
Annual Science Forum of the Benguela Current Commission, 15
October

2014.

Available

at:

file:///C:/Users/Stanley/Downloads/Day%203%20Amukwa.pdf.
[Accessed last 07/07/2015]
3. Catham

Rock

Case.

Available

at:

http://www.epa.govt.nz/EEZ/chatham_rock_phosphate/decision/Pages/
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http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.466.6445&r
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at:

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http://www.sintef.no/contentassets/e0701ef53678426490f3920105b43
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120