Creating a Regional Framework to Address Piracy in the Gulf of Guinea

Another Post by Matteo Crippa:

Last week, West African leaders addressed the General Assembly, echoing the recent concerns expressed by the UN over the increase of piracy as well as drug, arms and other illicit trafficking in the region.

Gas flaring from oil extraction in the Niger River Delta

During the 66th General Assembly debate, representatives of Togo, Benin, Gambia and Nigeria, among others, remarked on the closely linked nature of these crimes, and their financial and social impact. They called for a framework for cooperation with the support of the international community. More particularly, they supported the proposal for greater UN engagement with regional leaders and organizations in stamping out these menaces.

Since January 2011, there have been over two dozen piracy attacks in the Gulf of Guinea. Lloyd’s Market Association, a leading group of insurers, ranked the coastal waters off Benin and part of Nigeria in the same high-risk category as Somalia and the Gulf of Aden. Since the UN Security Council expressed this August its concerns over reports of increased piracy, armed robbery and hostage taking in the Gulf of Guinea, a handful of new attacks took place. Notably, also these attacks occurred predominantly within territorial waters. The Economic Community of West African States has also recently called for action against piracy to be widened to include all states along the coast while U.S. and French navy vessels have been deployed in the region to boost surveillance over the coastal areas.

Later this month the Security Council is expected to hold a debate on piracy in the Gulf of Guinea. The Council appears to be unanimous on the issue. Nigeria, which is presiding over the Council in October, is the spearhead for the debate and will likely push for urgent action. The US, a key consumer of oil from the Gulf of Guinea, appears to have shown interest, as have France, Britain and China and elected member Gabon. More particularly, the Council is expected to formally ask the Secretary-General to deploy an assessment mission to examine the phenomenon and suggest possible ways to address it.

Governmental, sea industry and regional partnership is increasingly re-emerging as the primary strategy to counter modern day piracy, in light of its deep social roots, broad-based economic impact and its ties with organized crime. Marking World Maritime Day 2011 under the theme “Piracy: orchestrating the response”, the International Maritime Organization was the latest specialized agency stressing the need for an “orchestral manner” in which governments, shipping companies and operators, military forces and UN agencies should act if they are to combat piracy successfully.

Without further delving into the set of practical and technical measures, most recently developed to effectively target piracy off the coast of Somalia, there are questions as to the legal regime upon which such measures should operate. UN General Assembly Resolution 57/141 urged all states and relevant bodies to cooperate in combating and preventing piracy and armed robbery at sea. Article 100 of the 1982 Law of the Sea Convention created an obligation for all states to cooperate in repressing piracy. Article 108, in addition to several other international agreements on this matter, provided a framework for regional and global cooperation for the suppression of drug trafficking. The very nature of most of the attacks, however, taking place within territorial waters, their private ends being a mixture of criminal activity and social discontent, once again appears to limit the applicability of the general provisions attaching to the customary and treaty-law definition of piracy. The additional framework introduced with the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, and its protocols (SUA Convention), provides for a more precise set of obligations for its signatory States. More particularly, the SUA Convention emphasizes several areas of State-to-State cooperation. On the other hand, it bears the risk of swiftly connecting most acts of piracy with anti-terrorism measures which appears unfounded (to date) in the case of piracy in the Gulf of Guinea.

There is a need to consolidate the applicable regime governing piracy insofar as current treaty provisions are too scarce, vague and scattered (in various international agreements) to be effective. In addition, a review and an implementation of counter-piracy legislation at the national level would ensure the enforcement of existing measures and would permit their expansion onto a regional scale. There are helpful precedents of regional agreements from the Asian and Horn of Africa contexts. These agreements should be taken into consideration as a means of achieving comprehensive regional coordination as well as a necessary legal framework. A UN resolution could also precede the regional agreement and form the basis for a cooperative framework. Any such instrument should take into account a variety of activities, including interdiction, the seizure of ships and properties, access to territorial seas, jurisdiction over investigation and prosecution, the rescue of ships, property and personnel, the sharing of information and conduct of shared operations and training.

The experience of the Horn of Africa and its escalation shows how preventive action against modern day piracy and broad-based cooperation beyond traditional state borders is paramount.