Abstract
LL.M. (Law)
The position with regard to a number of fairly small result of the proximity of these islands to the coast of South West Africa and the fact that the latter is also entitled to lay claim to maritime zones, the potential for overlapping claims to such zones clearly exists.
Consequently a solution is proposed to delimit these zones equitably. It amounts in short to awarding an enclave jurisdictional zone of 12 nautical miles to each of these
islands, delimited in accordance with the equidistant principle. It is conceded, however, that in the final instance, the eventual delimitation of all these maritime zones depends on agrertent between the two parties concerned. islands off the coast of South West Africa/Nar'ibia, generally known as the Penguin Islands, their status as well as the maritime zones they may generate, are examined in this study. With the emphasis on the 1958 Geneva Conventions and the 1982 Law of the Sea Convention the endeavours to codify the rules of the Law of the Sea are set out as the backdrop against which the rules applicable to the position of these islands are to be discovered. The various definitions of islands in these codifications are identified and the elements of the definition in the 1982 Convention as well as some of the elements proposed by a number of delegations to the United Nations Law of the Sea Conference, are examined in detail. An investigation into the applicable conventional provisions and state practice, prove that in principle islands, just like mainland areas, are capable of generating territorial waters, a contiguous zone, an economic or fishing zone as w all as a continental shelf. In terms of the 1982 Convention so-called rocks do not qualify to generate areas of jurisdiction to the same extent as islands. The effect of islands on the delimitation of maritime zones between adjacent and opposite states is examined with a view to finding principles which could by analogy be applied to the delimitation of the maritime zones generated by the Penguin Islands and the mainland of South West Africa. In the case of territorial waters, it is initially left to the parties concerned to come to an agreement. Failing such agreement the equidistant principle applies unless a historic title or special circuitstances requires an alternative solution. In a number of instances the solution eventually arrived at amounted to awarding enclave maritime zones to islands and delimiting such zones against that of the opposite state by way of the equidistant principle. In the case of the delimitation of the continental shelf state practice revealed that, depending on their relative geographical location in relation to their own and opposite states, islands are accorded full or limited weight in delimiting the continental shelf between the mainland states concerned. Corresponding principles are applied in the delimitation of economic or fishery zones. South Africa's claims to territorial sovereignty over the Penguin Islands have been repeatedly questioned but the records show that these claims can he indisputably substantiated. Compliance with the definition of an island is of the utmost importance in ascertaining whether an insular formation is entitled to generate any specific maritime zone and, therefore, a description of each of these islands is provided. As a result of the proximity of these islands to the coast of South West Africa and the fact that the latter is also entitled to lay claim to aritime zones, the potential for overlapping claims to such zones clearly exists. Consequently a solution is proposed to delimit these zones equitably. It amounts in hort to awarding an enclave jurisdictional zone of 12 nautical miles to each of these islands, delimited in accordance with the equidistant principle. It is conceded, however, that in the final instance, the eventual delimitation of all these maritime zones depends on agrertent between the two parties concerned.