Browsing by Author "Surbun, Vishal."

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A critical analysis of the effectiveness of the regulatory regime under the Polar Code and its application to the South African National Antarctic Programme.
(2019) Ncanini, Thuthukani Kenneth.; Surbun, Vishal.
A Critical Analysis of the Effectiveness of the Regulatory Regime under the Polar Code and Its Application to the South African National Antarctic Programme. The Polar Regions, the Arctic and Antarctic, have been experiencing severe ice melts which have resulted in the predictions that new shipping routes would open for vessels to navigate these regions. This proved to be disconcerting because, given the resultant ease with which the vessels would navigate the Polar Regions; this would invite more vessels and human presence to the Polar Regions. This would put the Polar environment at risk of pollution. The laws of the Artic Coastal states were applicable in the Arctic, whereas, the Antarctic Treaty System (ATS) governs the Antarctic region. However, these laws did not adequately regulate the protection of the Polar environment from pollution. In 2017, the International Maritime Organisation (IMO) responded to the threat on the Polar environment by introducing the International Code for Ships Operating in the Polar Waters (the Polar Code). The Polar Code brings uniformity to the laws that govern the Polar Regions, and it aims to provide for safe ship operation and protection of the Polar environment by addressing risks present in the Polar waters that are not adequately mitigated by other instruments of the IMO. The Polar Code seeks to achieve its goal by proposing the structural standards for every ship that would navigate the Polar waters. This dissertation will investigate the structural requirements of the Polar Code. The Polar Code differentiates between categories A, B, and C ships, and different requirements apply to these vessels. This dissertation will investigate the provisions of the Polar Code to determine whether they are sufficient in protecting the Polar environment. The study will then ascertain whether they apply to a South African vessel, S.A Agulhas II that frequently navigates the Antarctic waters for the purposes of the South African National Antarctic Programme (SANAP). This dissertation will discuss the development of the Polar Code, the provisions thereof that deal with safety of ship operation, the provisions that aim at protecting the Polar environment, and the shortcomings of the Polar Code. The discussion will then culminate on the implications of the Polar Code to the SANAP and make recommendations.
A critical analysis of the legal framework to deter illegal, unreported and unregulated fishing in South Africa’s maritime zones.
(2020) Bhana, Sinduja.; Surbun, Vishal.
Illegal, unreported and unregulated fishing (IUU fishing) is a significant threat to marine biodiversity and ecosystems globally. Despite efforts to manage fishery stocks, including conservation efforts, IUU fishing undermines these efforts. It is predominantly in the instance of weak enforcement frameworks that makes room for exploitation of marine resources and the coastal State being prone to IUU fishing within their maritime zones. This dissertation examines IUU fishing in South Africa’s maritime zones. The analysis considers South Africa’s framework to deter IUU fishing which include global instruments to which South Africa holds obligations. These obligations include providing effective domestic legal and policy frameworks. South Africa’s framework is then compared to the Thailand’s effective fisheries framework. Thailand’s framework has been constituted as effective by the Ministry of Foreign Affairs of the Kingdom of Thailand due to the presence of four factors in the framework and due to the action taken in accordance with these factors: fishery and fleet management, monitoring, control and surveillance (MCS) and traceability, adequate law enforcement and international cooperation. This comparison considers these factors and aims to point out any shortcomings in South Africa’s framework. A brief analysis of Senegal’s ineffective fisheries framework is contrasted to point out what is needed to be worked on to ensure a successful framework for the deterrence of IUU fishing. Finally, considering the four factors in Thailand’s fisheries framework a discussion of the effectiveness of the South African framework for deterrence of IUU fishing is provided and recommendations to address the shortcomings that are identified in South Africa’s framework to deter IUU fishing, including MCS shortcomings, are proposed. This study ultimately seeks to determine whether South Africa's framework for deterrence of IUU fishing is effective. The analysis includes incidents of IUU fishing in South Africa’s maritime zones, discussion of challenges and provides concluding remarks of relevant global instruments, domestic legislation and initiatives. In this manner the analysis provides a breakdown of these instruments, incidents, domestic legislation and initiatives to provide a better understanding and determine effectiveness in accordance with the four factors.
Gone overbroad? Critically examining the classification of maritime claims by South African courts.
(2021) Harpur Gevers, Amy Garnett.; Surbun, Vishal.
South African courts are empowered, in the exercise of their admiralty jurisdiction, to provide ‘far-reaching and even revolutionary methods to prevent recalcitrant debtors from evading their legal debts’. These ‘revolutionary’ remedies are not reserved for South African claimants alone, but are potentially available to the ‘wandering maritime litigants of the world’. The catch, as it were, is that only certain types of claims qualify to benefit from this specialised jurisdictional regime. To qualify, a claim must fall within the definition of ‘maritime claim’ in s 1(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983. Through a critical analysis of the reasoning followed in Peros v Rose, The Mineral Ordaz and Kuehne & Nagel, this study will highlight the challenges and pitfalls of classifying a maritime claim under the Act, such as taking into account a future defence to a claim in the process of classifying a claim; conflating the process of classifying a maritime claim with the process of categorizing a ‘marine or maritime matter’ in terms of s 1(1)(ee) of the Act; conflating the contents of an underlying ‘maritime agreement’ with the provisions of a ‘maritime topic’ set out in s 1(1) of the Act, and confusing the policy considerations that justify the exercise of admiralty jurisdiction. Having done so, this study will then propose the adoption of a three-stage approach to the maritime-claim enquiry; namely, (a) the clear identification of the claim, (b) the articulation of the relevant maritime topic and (c) the establishment of a maritime connection between the two. In particular, as to (b), this study will explore the factors that may be relevant to the categorisation of a settlement agreement as a ‘marine or maritime matter’ in terms of s 1(1)(ee) of the Act. In addition, as to (c), a test for establishing a direct maritime connection will be formulated for borderline cases, and a modified version of the ‘legally relevant connection’ test developed in Kuehne & Nagel will be proposed as a tool to establish an indirect maritime connection, where appropriate.
Irregular migration across the Mediterranean Sea: an analysis of safety and security regulatory measures.
(2018) Khan, Sharkirah.; Surbun, Vishal.
The phenomenon of ‘irregular migration’ by sea or ‘boat migration’ is not new, however, it has only recently caught the public’s attention since the Mediterranean ‘migration crisis’ in 2015. Historically, travelling by sea has been a dangerous journey for migrants and today, images of gruesome scenes of death in the Mediterranean Sea reveal the risks of ‘irregular migration’. This study was prompted by the need to provide insight into irregular migration at sea from the viewpoint of the irregular migrant by focusing on the perils and risks that are faced by irregular migrants on their journeys across the Mediterranean Sea. The aims and objectives of this study were to critically analyse the current legal framework that seeks to protect irregular migrants from the risks faced on their voyage across the Mediterranean Sea and to evaluate the gaps and shortcomings in this respect. The study shows that although the crisis of 2015 led to spikes in the death toll, the Mediterranean Sea is still a deadly route for irregular migrants today. This fact is followed by findings of all the safety and security risks faced by irregular migrants. Having identified all the safety and security risks faced at sea, the study goes on to discuss and analyse the legal framework in place that offers protection to irregular migrants from these risks. The protection available is then critically analysed and protection gaps as well as other shortcomings are identified. Following the findings and protection gaps, recommendations are made that creating a new binding legislation may be necessary and if not, then the existing legal framework should be amended. The existing legal framework should be amended so that it is more comprehensive and clarifies the definitions and content of certain key terms that adversely affect the protection available to irregular migrants.
Maritime piracy : a critical analysis of current prosecutorial challenges and shortcomings of international and domestic law.
(2012) Pillay, Rohini.; Surbun, Vishal.
Modern maritime piracy is cause for major concern around the world. Although there have been preventative measures deployed by maritime nations to counter the crime, there is a need to develop an efficient regime to prosecute pirates. The general modus operandi that is employed by arresting-vessels is a 'catch-and-release' procedure, which means that there are no further steps taken to bring these pirates to account for their crimes. The purpose of this dissertation is to analyse the main challenges that face domestic judicial systems in prosecuting pirates of the high seas. Chapter 1 of this Dissertation sets out the parameters of the study, followed by Chapter 2 which will detail current international instruments that specifically relate to the crime of maritime piracy. This would include an examination of the successes and shortcomings of the piracy provisions of UNCLOS Articles 1 00 - 107, the recent UNSC Resolutions, SUA, and the IMO as well as discuss the 1MB PRC and other Regional Agreements in place to counter piracy and provide for the successful prosecution of suspected pirates. Chapter 3 will focus on the prosecutorial problems dealing with the crime of piracy that face judicial bodies around the world. The Chapter will highlight and discuss the various political and human rights issues that have discouraged the majority of states from prosecuting suspected offenders of this crime, as well as their reluctance to exercise universal jurisdiction over piracy. In addition, the recent Kenyan ad hoc piracy tribunal decisions will be discussed in order to assess the lack of uniformity in the interpretation and application of international law piracy provisions as against domestic law. Chapter 4 examines the South African Law and Policies in place that counterpiracy, and also considers whether South Africa could exercise jurisdiction over piratical matters. Thereafter, Chapter 5 proposes recommendations that may be employed in order to bring about a much needed uniform approach to the successful prosecution of suspected pirates. Lastly, Chapter 6, shall comment and conclude on the findings of the previous chapters.
Navigating the complex maritime cyber regime: a review of the international and domestic regulatory framework on maritime cyber security.
(2019) Mthembu, Sibusisiwe Nothando.; Surbun, Vishal.
Modern shipping companies are reliant on the proliferation of refined technological advancements such as Electric Chart Display and Information Systems (ECDIS), Automatic Identification System (AIS), Global Maritime Distress and Safety System (GMDSS), Compass (Gyro, fluxgate, GPS and others), Computerised Automatic Steering Systems, Voyage Data Recorders – “Black box” (VDR), Radio Direction and Ranging or Automatic Radar Plotting Aid (Radar/ARPA). These technological advancements are vulnerable to cyber security threats. The prevalence of maritime cyber security incidents is increasing worldwide therefore it is imperative for the maritime industry to have legal regime in place that adequately regulates these cyber security threats. This dissertation undertakes a critical analysis of the legal framework governing maritime cyber security and the adequacy in combating maritime cyber threats. The first chapter will provide an introduction and background to maritime cyber security. The second chapter focuses on the different threats and vulnerabilities to maritime cyber security. In addition to this reference will be made to the types of cybercrimes and their possible ramifications. The third chapter will analyse the International regulatory regimes in place, regional regulatory framework and South Africa’s domestic laws regulating maritime cyber security. In the fourth Chapter a determination will be made as to the existence and adequacy of the law in combating maritime cyber threats and crimes. A conclusion will be derived from the findings of this dissertation, and recommendation will be submitted The purpose of this study is to establish whether, (a) the existing law applies to maritime cyber security threats at all, and, if so, what is the extent of the existing laws applicability to maritime cyber security threats? (b) whether the domestic and international legal framework is adequate, in respect to enforcement and comprehensiveness, to address/respond to maritime cyber security threats? and (c) whether it is necessary to establish new regulations to address maritime cyber security or develop existing laws?
Piracy jure gentium in territorial seas: a perspective from the East African seaboard.
(2018) Surbun, Vishal.; Swanepoel, Paul Arthur Albertus.
The brazen acts of Somali pirates against international shipping transiting through the Gulf of Aden and around the Horn of Africa drew global media attention between 2006 and 2012. As a countermeasure, foreign and international naval resources were deployed to the region in an attempt to interdict the perpetrators and prevent further acts, particularly because Somalia possessed no capacity to police the waters adjacent to its coast. States are granted universal jurisdiction over acts of piracy committed on the high seas or exclusive economic zones of coastal states in terms of the United Nations Convention on the Law of the Sea (UNCLOS). However, the perpetrators often committed similar piratical attacks in the territorial sea or found refuge in the territorial sea after descent from the high seas. The universal jurisdiction conferred by UNCLOS on all states does not apply in the territorial sea, where the coastal state exercise exclusive and sovereign jurisdiction. To circumvent this, the United Nations Security Council passed a series of resolutions authorising foreign naval intervention in the territorial sea. Some piratical acts could fall outside the geographical and temporal limitations of the resolutions and the study accordingly proposes the need for a permanent and binding universal enforcement regime which would extend into territorial seas in specified circumstances. The study considers two approaches to achieve this. The first approach suggests a modification of the UNCLOS provisions to extend the universal enforcement jurisdiction granted under article 105 into territorial seas. The details and procedure of such modification is set out in the study. However, it will be shown how states are protective of their sovereign rights over their respective territorial sea and their preference to maintain the current UNCLOS regime. Thus attempts to modify UNCLOS would be adversely perceived by states as an erosion of sovereign rights and would be unlikely to be adopted. A contribution of the study is to challenge this perception of states regarding the erosion of their sovereign rights over the territorial sea. The study will reveal through an exegesis and revisit of legal scholarship and juridical doctrine that the notion of absolute and exclusive sovereignty is built upon a hollow historical foundation and there is an evolving contemporary jurisprudence to suggest an erosion of traditional concepts of maritime sovereignty. The second approach turns to the east African seaboard and reveals from a continental perspective that there is a movement away from these traditional notions of sovereignty in the direction of the facilitation of international and regional cooperation, collaboration, intervention and pooling of resources in respect of maritime security. Against this background the second approach in this study proposes a model which is complementary to the existing UNCLOS regime and has a permanent and wide geographical application. Under this model, the role of the African Union to intervene in member states is highlighted. The proposed model facilitates the exercise of universal enforcement jurisdiction over piratical acts committed in the territorial sea by descent from the high seas or exclusive economic zone. This special jurisdiction is exercised under specified circumstances under the aegis of the African Union and through its institutional framework, particularly the African Standby Force and Continental Early Warning System.
The regulation of the removal of hazardous shipwrecks in South African waters and a discussion on the adoption of the Nairobi International Convention on the Removal of Wrecks, 2007.
(2013) Ramsakkan, Yinita.; Surbun, Vishal.
International trade in large amounts of commodities resulted in the recent growth of the shipping industry. With larger ships being constructed to meet land based demands for various types of commodities combined with the unpredictable and often perilous conditions at sea, the risk of a shipwreck arising becomes more likely. Not only do these wrecks pose a danger to the environment and to navigation but also, in the event of the shipowner escaping liability by abandoning the wreck for instance, the state affected by the wreck finds itself financially burdened by the costs involved in having the wreck removed. Moreover, an affected state cannot intervene and impose conditions to the shipowner to have a wreck removed if it occurred in its exclusive economic zone because the state’s jurisdiction is limited to preserving natural resources. Thus, despite drifting cargo and the ship itself posing a hazard to coastal states, they had no authority to intervene and issue a wreck removal notice. Recognising these safety concerns and lacunae in international law, the International Maritime Organisation formulated the Nairobi International Convention on the Removal of Wrecks, 2007, (“Nairobi Convention”) which was aimed at governing the regulation of removing wrecks whilst imposing strict liability on the shipowner, subject to the other liability Conventions and limitation of liability. However, after a survey was conducted by the Comitè Maritime International it was also established that national laws of many states such as the United Kingdom (“UK”) and South Africa were inadequate to enforce liability claims for costs incurred in removing a wreck. As a result, the Convention allows contracting states to apply the provisions of the Convention to their territorial sea. This dissertation will discuss relevant provisions of the Nairobi Convention and illustrate how it has been implemented and consequently reformed the law of the United Kingdom. The dissertation will then analyse the implementation strategy which enforces the Convention in the UK, with the aim of providing a suggestion of how South Africa should enforce the Convention into its national laws. This will lead to an assessment of the current legislative framework governing wreck removal in South Africa with the aim of establishing whether the law is need of reform and how this should be facilitated.
A review of developments in the nature and law of maritime piracy.
(2008) Surbun, Vishal.; Jeffrey, Alexander Gordon.
No abstract available.
"A review of measures to combat illicit drug trafficking and trade : a domestic maritime perspective"
(2012) Dedekind, Amy Paula.; Surbun, Vishal.
From a survey of media reports and other documentary sources, illicit drug trafficking and trade seems to be a prevalent problem in South Africa today. Drugs are being shipped undetected in containers, which poses a significant threat to maritime security. The drug trade is also having a negative impact upon one of South Africa's valuable resources, abalone. It appears that there is a substantial nexus between the poaching of abalone and the illicit drug trade in South Africa. Abalone is considered to be a delicacy in the East and research shows that a substantial amount of drugs in South Africa has originated from the illicit trade of abalone. v This dissertation will examine illicit drug trafficking and trade with particular reference to the maritime industry which facilitates this illicit trafficking and trade through ineffective security measures governing containerisation; and also through the abalone trade. A survey of media reports, articles, reviews, Institute for Security Studies papers, books and the World Drug Report 2012 set the scene of illicit drug trafficking and trade in South Africa as being prevalent and damaging to the country's security measures. A review of South Africa's domestic legislation and the international conventions to which it is party is necessary to determine whether the law governing illicit drug trafficking and trade is adequate to address the issues highlighted above. The focus of this dissertation will then shift to wards the issues surrounding implementation and enforcement of these laws. The enforcement and implementation of the law seems tainted by corruption, lack of skills and morale and inexperience and therefore these issues need to be addressed in order to fully combat illicit drug trafficking and trade in South Africa's maritime industry.
Sea-level rise and ambulating maritime zones : an analysis of the legal implications for coastal and island states.
(2017) Guy, Kyra Leah.; Surbun, Vishal.
As a result of climate change and the rising of sea levels worldwide, maritime baselines along Coastal and Island States are starting to shift. There are many legal consequences that arise as a result of this shift in maritime baselines. Maritime baselines play an important role in delineating maritime territory for the purposes of the United Nations Convention on the Law of the Sea (UNCLOS). When a baseline shifts due to sea level rise, so too does the maritime territory that is measured from it. Therefore, this dissertation aims to undertake an in-depth analysis of the consequences of this shift and methods to curb these consequences. In order to provide an in-depth analysis on this issue, the dissertation includes an examination of the current legal regimes that govern maritime baselines. This includes an analysis of: The relevant provisions of UNCLOS; international and municipal judicial decisions; reports by the International Law Association Committee on Baselines under the Law of the Sea; as well as academic scholarly views. The dissertation then aims to provide and critique possible solutions to the legal complications outlined. The solutions provided focus on the fixing of baselines this provides certainty to maritime nations worldwide.
Sea-level rise and submerged land territory: a study of the legal establishment of substitute artificial islands to sustain statehood and maritime zones of small island developing states.
(2024) Boshoff, Kyra Leah.; Surbun, Vishal.
Climate change and its consequence of rising sea levels threaten the existence of many Small Island Developing States (SIDS) across the globe. Sea-levels are rising at an inordinate pace, and international law has not yet adapted to mitigate the effects thereof. SIDS are particularly vulnerable to the effects of sea-level rise as a result of their remote locations and low-lying island composition. As such, SIDS may become uninhabitable or wholly submerged within the century. Therefore, SIDS are currently fighting for survival physically and legally. The extinction of SIDS by way of rising sea levels is an eventuality we have not seen in international law, and as such, no precedent exists for this situation. A physical remedy exists for the survival of SIDS, including the creation of artificial islands to house their population so that they are more resilient to rising sea levels. However, this physical remedy does not account for the legal consequences of sea-level rise for SIDS under international law. Sea-level rise presents challenges for SIDS within international law that include (i) continuity of statehood, (ii) the maintenance of maritime zones and the outer limits thereof, and (iii) the use of artificial islands as substitute island territory. These three issues, transversing international law and the law of the sea, are the focal points of this study. These issues are analysed to determine whether SIDS may maintain their statehood and maritime zones despite submerging island territory. The study then examines the legality of using artificial islands to substitute submerged natural island territory. The study concludes by proposing a new negotiating text for a Convention that establishes substitute artificial islands in place of submerged or uninhabitable island territory and the maintenance of statehood and maritime zones despite rising sea levels. This recommendation is based upon the understanding that certainty and stability of SIDS in international law is in the interests of fairness and equity.
Security on board energy carrying vessels: an analysis of international and regional regulatory measures.
(2018) Theodorou, Theone.; Surbun, Vishal.
Although the overall number of piracy incidents has decreased over the past few years, almost half the incidents that are reported, involve energy carrying vessels. Given the important role that energy plays in society and the fact that approximately 90% of the world’s energy is transported by sea, an adequate framework is essential to ensure energy security. To determine whether the current framework is sufficient, a survey of all the relevant international, regional and domestic instruments is conducted. What becomes evident is that there are no provisions that relate specifically to energy carrying vessels. Energy carrying vessels are used to carry valuable cargo, they are large and slow moving, they travel specific routes and are manned with few crew. For those reasons, energy carrying vessels require additional protections to bridge their vulnerabilities. The need is emphasized by the vast negative effects an attack on an energy carrying vessel can have, which threatens the environment, the economy and the safety and security of crew. A key instrument focusing on maritime energy security is the Luanda Declaration on Maritime and Energy Security (Luanda Declaration). The Luanda Declaration is an African initiative with a regional application. The declaration, however, is merely a guideline and is not binding. The continued high number of incidents affecting energy carrying vessels shows that states have not taken sufficient positive steps in accordance with the Luanda Declaration and that the current framework is insufficient to ensure maritime energy security.
Unmanned and autonomous ships and cyber piracy: an analysis of international and national regulatory measures.
(2021) Simon, Emily.; Surbun, Vishal.
No abstract available.