Piracy: Situating an Ancient Pursuit in a Modern World

Introduction

We are familiar with the outlines of the films: swashbuckling individuals bedecked in flouncy clothing sail the seas, seizing vessels, cargo and crew. The visions conjured up are like infamous pirates such as Edward Teach (Captain Blackbeard),[1]Anne Bonny,[2] or François Le Clerc (Jambe de Bois).[3] Modern piracy is conducted by different actors and a decentralised and pragmatic approach can provide a legal lodestar for tackling piracy in the global ocean.

Towards a Reference Point

Initially, piracy was primarily addressed through inter-state dialogue and treaties between states. For instance, the 1670 Treaty of Madrid between Spain and Great Britain bound the parties from plundering their respective vessels at sea.[4] The 1797 treaty of Peace and Friendship signed by the United States and the Bey of Tunis (then part of the Ottoman Empire)[5] protected the respective states’ cargo and vessels on the high seas even in war.[6]

Whilst bilateral treaties (between 2 states) lie at the heart of international relations and are a source of international law, multilateral treaties (between many states) go further in establishing generalised rules upon which majority of states can rely.  The leading authority, the 1982 United Nations Convention on the Law of the Sea (UNCLOS),[7] defines piracy as an illegal act of violence, detention or depredation committed by passengers or crew of a private ship (or aircraft) for private ends on the high seas against another ship (or aircraft).[8]

Clarifying Differences

Not all piratical conduct by a ship against another are considered piracy. Piracy and armed robbery at sea are different because the maritime domain is demarcated into zones with varying levels of rights and obligations for coastal and flag states. The maritime zone of the crime determines who (i.e., the state) can assume responsibility to interdict, arrest and detain.

In the absence of this distinction in UNCLOS, resolution A.1025 (26) of the International Maritime Organisation (IMO) adopted on 2 December 2009, defines armed robbery against ships as any illegal act of violence, detention or act of depredation committed by passengers or crew of a private ship for private ends within a state’s internal waters, territorial waters, archipelagic waters.[9]

The high seas fall outside the jurisdiction of any state so all states’ warships or vessels have the right to seize a pirate ship, arrest pirates, seize the cargo on board the pirate ship and the court of the seizing state can try and punish the pirates.[10] In territorial waters or archipelagic waters, the coastal/archipelagic state normally has the responsibility to enforce its laws.[11]

Location is critical in assigning and assuming responsibilities

Highlighting Impact and Complexities

Piracy impacts trade supplies and livelihoods as open and safe seas become more of an aspiration. Closures or rerouting of shipping routes leads to supply shortages and price increases further impacting human cost of living.

In 2023, 120 actual and attempted incidents involving piracy and armed robbery at sea have been reported.[12] In January 2024, a total of 15 incidents were declared and recorded as piracy and armed robbery in international waters and straits used for international navigation.[13]There are fears that piracy will increase in the Gulf of Aden, which used to be a hotbed for piracy[14] as companies consider pausing operations to and from the Suez Canal to protect seafarers and vessels.[15]

Casting piracy in the wider approach of maritime security is necessary

Real world differences linked to international politics are highlighted in practically applying the current rules on piracy. This is because the elements of “who” (private entity), and “why” (private ends), whilst vital in identifying and tackling piracy, are complex to define.

When we consider that many shipping routes are strategically vital and also linked to the movement of key commodities, it is not always clear whether piracy is state sponsored, political or entirely private. This was observed with Somalia where pirates operate as part of “criminal networks whose leadership is unaffected by arrest and prosecutions of pirates who conducted the operations.”[16] Private ends can be political as they can go beyond financial enrichment to include acts with environmental goals.[17] It is argued that private acts should lack authorisation by public authority[18] but it is not clear how this is defined and identified.

Furthermore, not all states have the capability to interdict, detain, try and incarcerate suspected pirates and maritime armed robbers. This is why Somalia relies on the continued support of the UN Support Office in Somalia (UNSOS),[19] African Transition Mission in Somalia (ATMIS),[20] and voluntary contributions by member states of the European Union (EU), the UK, South Korea, India and China.[21] States such as Seychelles have organised agreements with the EU on the conditions and modalities for dealing with suspected pirates.[22]

Lack of capacity does not mean lack of will

Adapting to Change

Shipping and threats to shipping are also changing. With the launch of the autonomous ship, MV Yara Birkeland,[23] it is a matter of time before autonomous shipping vessels cease to be novelties. However, new technologies are yet to be addressed in multilateral treaties.  For instance, unmanned vessels, controlled remotely or pre-programmed to hit a target, can engage in piratical conduct. Breaching the cyber defences of a ship or causing the destruction of a vessel can be piratical conduct. These present difficulties in interpreting and applying existing rules on piracy.

The International Law Commissions (ILC) is now considering a redefinition of piracy by linking it to armed robbery at sea (which is missing in UNCLOS).[24]  The ILC also notes that unmanned vessels and maritime autonomous vessels are subject to current rules on piracy.[25] This is a necessary first step towards establishing good governance mechanisms tackling modern piracy.

There are notable instances of states working together to share best practices, capacity and capabilities on a regional basis.[26] These initiatives cast piracy in the wider role of maritime security which, if developed further, with time bound targets for action, can align governance measures in tackling piracy and armed robbery at sea.

Conclusion

It would be easy to suggest that global organisations are slow to respond, yet it is high time that regional bodies take accountability, responsibility and action for tackling piracy in their back yards.

TLDR;

Piracy isn’t how we imagine it, it has changed. It’s high tech, evolving quickly and laws don’t keep up. I suggest we need time-boxed, agile rules that can keep up. Instead of waiting for global organisations to act we need smaller regional actors to step up.

[1] See  https://www.bbc.co.uk/programmes/p07n8syy In this podcast, the life and crimes of the Captain Blackbeard are discussed.

[2] See information from the Royal Museums Greenwich (I recommend a visit if you can) about female pirates, Anne Bonny and Mary Read https://www.rmg.co.uk/collections/objects/rmgc-object-157040

[3] See La Roncière, 1899, Histoire de la Marine Française Vol.4. Paris Libraire Plon. Pg. 40. Available here https://archive.org/details/histoiredelamari04larouoft/page/40/mode/2up

[4]See Art III of the Treaty for the Composing of Differences, Restraining of Depredations and Establishing of Peace in America between the Crowns of Great Britain and Spain signed 8 July 1670 (also known as the Madrid Treaty). Available here, https://quod.lib.umich.edu/e/eebo2/A32671.0001.001/1:2?rgn=div1;view=fulltext

[5] See The Barbary Treaties 1786-1816 or 1797 Treaty of Peace and Friendship. Available here,  https://avalon.law.yale.edu/18th_century/bar1797t.asp

[6] Ibid. Art. 3.

[7] See https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

[8] UNCLOS Art. 101.

[9] See Annex Para. 2.2. Available here, https://wwwcdn.imo.org/localresources/en/OurWork/Security/Documents/A%2026-Res.1025%20-%20Adopted%20on%202%20December%202009%20(Agenda%20item%2010)%20(Secretariat).pdf

[10] UNCLOS Art. 105 and 107.

[11] UNCLOS Art. 2.

[12] See https://www.icc-ccs.org/index.php/1342-new-imb-report-reveals-concerning-rise-in-maritime-piracy-incidents-in-2023

[13] See generally, https://www.imo.org/en/OurWork/Security/Pages/Piracy-Reports-Default.aspx. Data for January 2024 is from the IMO’s Global Integrated Shipping Information System (GISIS).

[14] https://www.bbc.co.uk/news/world-asia-india-68091830

[15] https://www.bbc.com/news/world-middle-east-67731853.amp

[16] See Report of the UN Secretary General on The Situation with Respect to Piracy and Armed Robbery at Sea off the Coast of Somalia. https://unsos.unmissions.org/sites/default/files/sg_report_on_somalia_3_november_2021_.pdf

[17] See Institute of Cetacean Research v. Sea Shepherd Conservation Society, 725 F.3d 940, US Court of Appeals (9th circuit 2013). Pg. 7-8 of decision. https://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/24/12-35266.pdf

[18] See The Republic of Seychelles v. Abdukar Ahmed & 5 others, Supreme Court of Seychelles, Case No. 21 of 2011. Para.2.  https://sherloc.unodc.org/cld/case-law-doc/piracycrimetype/syc/2011/the_republic_vs._abdukar_ahmed_five_5_others.html

[19] See https://unsos.unmissions.org/about

[20] See https://atmis-au.org/about-atmis/

[21] See part 5 of UN Doc S/Res/2687 (2023) http://undocs.org/en/S/RES/2687(2023)

[22] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:315:0037:0043:EN:PDF

[23] See https://www.yara.com/knowledge-grows/game-changer-for-the-environment/

[24] See https://legal.un.org/ilc/reports/2023/english/chp6.pdf

[25] Ibid.

[26] For instance, The Djibouti Code of Conduct on the repression of piracy and armed robbery at sea, is a cooperation agreement between 20 states in the Western Indian Ocean region. See https://dcoc.org/about-us/. It is supported by the EU, see https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02008E0851-20221212.

The Southeast Asian Nations (ASEAN) Regional Forum have declared their cooperation against piracy and other threats to security. See https://asean.org/arf-statement-on-cooperation-against-piracy-and-other-threats-to-security/. See also https://asean.org/wp-content/uploads/2023/07/Chairmans-Statement-of-30th-ARF-2023-FINAL-1.pdf

Submarine/Undersea Cables: An Overview

One Infrastructure Many Uses

Submarine/Undersea cables are often overlooked elements of our connected world of computers, digital networks and users. Over 95% of international internet, data and telephone traffic are carried by submarine cables.[1]  Submarine cables are vital to ensuring a thriving global economy as they can transmit vast amounts of data with very little delay, have minimal impact on the marine environment and once lain, have a low-carbon footprint.[2] With the continued growth in the amount of data and information sent and received worldwide, economies depend on the effective governance of this vital infrastructure.[3]  

Submarine fibre-optic cables can also be used to study the seabed and provide data that could help us address environmental threats due to climate change. With this data, states could improve climate monitoring systems and early warning protocols for natural disasters thereby encouraging timely and targeted emergency response and disaster preparedness.[4] Our ocean floor is a vital source of information regarding tectonic movement so a global network of cables could be used to further monitor and provide real time data about the movement, structure and dynamic behaviour of our Earth’s tectonic activity.[5]

The submarine cable industry is well positioned for a multi-sectoral governance framework that addresses security and environmental challenges in our world.

The Joint Task Force (JTF) on Science Monitoring and Resilient Telecommunication (SMART) cable systems, set up in 2012 by the International Telecommunication Union (ITU), the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization (IOC-UNESCO), and the World Meteorological Organization (WMO) has taken a multi-sectoral approach towards advocating for developing and marketing dual-use or SMART cables that can deliver data on climate and sea-level rises and improve disaster warning systems.[6]

The Legal Framework

Specific provisions regarding the laying of submarine cables and liability in the event of damage are governed by the 1884 International Convention for the Protection of Submarine Cables as amended by the 1886 Declaration on the Protection of Submarine Cables and 1887 Protocol on the Protection of Submarine Cables. Although these treaties are still in force, they are outdated, regulatorily sparse and do not provide a modern and proactive level of protection needed for submarine cables. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides that the laying of submarine cables on the continental shelf (the seabed and subsoil beyond the territorial sea) is an internationally lawful use of the sea by all states whether landlocked or coastal. 

Ensuring Seamless and Secure Flows 

According to a recent study by the International Telecommunications Union (ITU) at the end of 2019, 53.6% of the global population were using the internet. Europe has the highest internet usage rate in the world with over 82% of its inhabitants using the internet.[7] Therefore it is important that there are well regulated guidelines for protection of submarine cables. The vulnerability of submarine cables was demonstrated by recent reports from Dublin port about foreign intelligence agents inspecting the cables that connect Europe to America.[8]

In January 2020, the West African Cable System which links Europe, West Africa and South Africa was damaged at two points leading to communications difficulties and slow data speed.[9] With route diversity and alternative routes as a backup, the severity of the impact was minimised, and complete outages were avoided. Presumably, lessons were learned from the 2018 outage when the Africa to Europe submarine cable, which starts from France ending at South Africa, was damaged causing communications breakdown in many African states.[10]

As an infrastructure with global reach, it is important that global guidelines clarifying best practice are in place.

The International Cables Protection Committee (ICPC)[11] is a forum through which cable operators and owners can collaborate to agree arrangements on issues concerning cable protection. It does not hold power to enforce legally binding international agreements or apply sanctions for non-compliance. However, it could engender soft law commitments that would be translated into action at national and stakeholder level.  

Cables and Our Environment

The geographic configuration of internet communications determines the content and quality of our internet experience and its efficacy depends on the connectivity of the data relative to the data consumers. Establishing general protective mechanisms is the next step towards mitigating risk to offshore and nearshore cables. This is possible through awareness of the benefits of multi-use submarine cables usage alongside national and global efforts by states, cable owners and operators to further engage with the ICPC towards cable security and reliability for societal benefit. 

[1] Carter L., Burnett D., Drew S., Marle G., Hagadorn L., Bartlett-McNeil D., and Irvine N. (2009). Submarine Cables and the Oceans – Connecting the World. UNEP-WCMC Biodiversity Series No. 31. ICPC/UNEP/UNEP-WCMC.  Available at https://www.unep-wcmc.org/resources-and-data/submarine-cables-and-the-oceans--connecting-the-world

[2] UN doc. A/70/74 of 30 March 2015  https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/093/76/PDF/N1509376.pdf?OpenElement

[3] For figures on this growth broken down per continent, see https://www.itu.int/en/ITU-D/Statistics/Pages/stat/default.aspx

[4] Illuminating seafloor faults and ocean dynamics with dark fiber distributed acoustic sensing
Nathaniel J. Lindsey, T. Craig Dawe, Jonathan B. Ajo-Franklin, Science 29 Nov 2019: Vol. 366, Issue 6469, pp. 1103-1107. 

[5] Illuminating Earth’s Faults by Phillippe Jousset Science 29 November 2019: Vol.366, Issue 6469, pp. 1076-1077. 

[6] https://www.itu.int/en/ITU-T/climatechange/task-force-sc/Pages/default.aspx The JTF is also considering the renovation and relocation of retired or disused cables in our seas.

[7] https://www.itu.int/en/ITU-D/Statistics/Pages/stat/default.aspx

[8] https://www.thetimes.co.uk/article/russian-agents-plunge-to-new-ocean-depths-in-ireland-to-crack-transatlantic-cables-fnqsmgncz?wgu=270525_54264_15826410289355_49fb461bc4&wgexpiry=1590417028&utm_source=planit&utm_medium=affiliate&utm_content=22278

[9]  https://guardian.ng/news/confusion-as-submarine-cable-cuts-slows-internet/ and 

https://spectrum.ieee.org/tech-talk/telecom/internet/undersea-cable-repairs-south-africa

[10] https://www.independent.co.uk/news/world/africa/mauritiana-internet-cut-underwater-cable-offline-days-west-africa-a8298551.html

[11] https://www.iscpc.org The ICPC has more than 170 members in over 65 states.

Straits: To Define or Evolve

The Challenge of Definitions

The challenge of definitions in international law is not particular to straits. Indeed, agreeing definitions in international treaty negotiations are carefully measured and sometimes contested affairs. Allocating meanings when we examine straits mirrors a larger struggle over the meaning and legacy of straits in a world of emerging users and uses of the seas. 

The 1958 United Nations Convention on the Territorial Sea and the Contiguous Zone codified the regime regarding straits that are used for international navigation within the concept of innocent passage but did not define straits.  

The International Court of Justice in the Corfu Channel Case[1] examined the legality of navigation in straits and in noting its satisfaction that the Corfu Channel is a strait used for international navigation further stated that the passage of warships in this case was innocent but did not define straits. 

The spatial determination of rights in the law of the sea and respect for territorial sovereignty informs an inquiry into how and where a state may assert certain rights. 

Towards Functionality

The 1982 Law of the Sea Convention (UNCLOS), codified the concept of transit passage as the freedom to navigate an international strait from one part of the high seas or exclusive economic zone (EEZ) to another part of the high seas or EEZ. As well as listing activities that do not constitute innocent passage,[2] UNCLOS contains provisions for different kinds of straits and the relevant regimes applicable therein.

A case specific method of analysis is key in examining straits.

Case Specificity

Straits can be subject to their own treaty usually between the relevant littoral states with additional provisions clarifying the scope of the treaty’s application. For instance, the 1936 Montreux Convention which predates UNCLOS regulates transit through the Straits of the Dardanelles, the Sea of Marmara and the Bosporus. The treaty using “the general term “straits,”[3] limited its scope to its signatories.  

The 1985 Torres Strait Treaty which postdates UNCLOS regulates transit through the 150km wide strait situated in the Coral Sea between Southern Papua New Guinea and North Eastern Australia.[4] Australia and Papua New Guinea in negotiating the treaty were keen to clarify the sovereignty of the islands in the strait area and delineate their respective maritime boundaries.This treaty uniquely established a protected zone to “acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement.”

However, where global trade is involved, disruptions to traffic through a strait can have consequences that transcend the littoral states’ interests and impact a wider group of stakeholders.  

A “Strait-Plus” Approach?

As the matter of legal status and sovereign limits is provided in UNCLOS, there is some purchase to a management approach that includes relevant players such as flag states, non-state actors such as stakeholders and the shipping industry in agreeing mechanisms towards effective and safe transit passage. This approach lends itself to better co-operation and can move with the times to address emerging issues in the realm of maritime security and the protection and preservation of the marine environment. 

This approach was applied to the strategically important straits of Malacca and Singapore where a quarter of the world’s commerce and half the world’s oil traverse.[5] The littoral states bordering the straits (Indonesia, Malaysia and Singapore) agreed a Cooperative Mechanism in accordance with Article 43 of UNCLOS to cooperate in the “establishment and maintenance of necessary navigational and safety aids and for the prevention, reduction and control of pollution from ships.”[6]

Debate over transit passage rights is for naught when traversing a strait is unsafe or detrimental to the marine environment.

Finally, it is possible to seek meaning and grounding yet be open to interaction and debate. Here, the progressive development of the law of the sea could evolve beyond definitions. The challenge becomes establishing and incorporating into future agreements the sharing of the financial burden of management between relevant states and non-state actors towards safe and beneficial transit. 

[1] Corfu Channel Case, (United Kingdom/ Albania) Judgement, I.C.J. Reports 1949.p. 4. Indeed, the Court held that passage of warships in peace time is not subject to prior authorisation.

[2] Article 19(2) of UNCLOS. 

[3] https://treaties.un.org/doc/Publication/UNTS/LON/Volume%20173/v173.pdf  No. 4015. The official text in French notes likewise “…compris sous la denomination générale de < Détriots >…”

[4] See the International Hydrographic Organisation (IHO) Draft 4th Edition of the Limits of Oceans and Seas. https://www.iho.int/mtg_docs/com_wg/S-23WG/S-23WG_Misc/Draft_2002/Draft_2002.htm. The author cites this working copy document because the previous edition does not specifically define the limits of the Torres strait.  See further:

·       Stuart B Kaye. (1997). “The Torres Strait”. In International Straits of the World, Dordrecht: Martinus Nijhoff.  

·       K.W. Ryan & M.W.D. White (1981) “The Torres Strait Treaty,” Australian Yearbook of International Law, 7:87 et al. 

[5] UNCTAD Part II: An Overview of the International Legal Framework and of Multilateral Cooperation to Combat Piracy. Studies in Transport Law and Policy – 2014 No. 2 https://unctad.org/en/PublicationsLibrary/dtltlb2013d3_en.pdf

[6] See further:

Ho, Joshua H. (2009) 'Enhancing Safety, Security, and Environmental Protection of the Straits of Malacca and Singapore: The Cooperative Mechanism’, Ocean Development & International Law,40:2,233 — 247. 

Beckman, R., & Sun, Z. (2017). "The Cooperative Mechanism for the Straits of Malacca and Singapore". In The Cooperative Mechanism for the Straits of Malacca and Singapore. Leiden, The Netherlands: Martinus Nijhoff.

The African Union’s 2050 Africa Integrated Maritime Strategy: A Brief Appraisal of the Growth Stage

Introduction

Agenda 2063,[1] a transformational blueprint adopted in May 2013 in celebration of the golden jubilee of the African Union (AU)[2] looked seaward for inclusive and sustainable resource-led economic growth.[3] Focusing on Africa’s Maritime Domain (AMD), the AU’s 2050 Africa Integrated Maritime Strategy (AIM Strategy) which was adopted in 2014 presents a framework for sustainable exploitation of the resources in AMD for wealth creation.[4] According to the strategy document, with the objective being “to achieve increased development and integration of the continent,”[5] the AU is currently in the “growth stage.” 

Developing Africa’s blue economy entails readjusting the intensity of resource exploitation in the region and reassigning the benefits of its ocean resources to the advantage of its peoples. 

Accordingly, through the AIM Strategy, a sustainable thriving blue economy can be achieved by harmonising regional mechanisms with already existing economic communities against the backdrop of core principles namely, information sharing, communication, collaboration, co-operation, capacity-building and co-ordination.  

Multi-Dimensional Objectives

The uses of the coasts, seas and oceans and the resources of AMD are on the ascendant and the challenges confronting these areas are multi-dimensional and of global significance. Growth in seaborne trade to and fro Africa,[6] growth in fisheries exports from Africa,[7] threats from climate variability[8] amongst others are factors that necessitate a multi-dimensional and multi-jurisdictional approach to ocean management in the AMD.

The AIM Strategy should work towards harmonising states’ structures, agencies and institutions thereby preventing fragmented legislative and enforcement mechanisms. 

Looking Seaward

The AIM Strategy is ambitious because it is guided by objectives that impact a diverse range of policy areas, some of which are transnational and issue-driven. Examples include amongst others, fisheries; telecommunications; transport; protection of the marine environment; climate change; and maritime security. However, it is a social and political strategy that could work with national institutions if incorporated in states’ regulatory structures. Existing regulatory structures, in addition to declarations, regional plans and programmes mainly[9] include a number of regional Memoranda of Understanding (MOUs):

• Indian Ocean MOU[10]

• Mediterranean MOU[11]

• West and Central Africa MOU on Port state Control[12]

• Maritime Organisation of West and Central Africa MOU[13] 

Robust legal frameworks and public policies are key to the realisation of objectives that are transnational and issue-driven. 

Toward Binding Regulatory Structures

A MOU is not a legally binding agreement. States conclude MOUs on the understanding that they do not create legal rights and obligations under international law.[14] Although the above MOUs could embody the state parties’ shared ideals and interests, protocols from which legally binding mechanisms could be developed to ensure uniform application of states’ ideals would benefit the AU moving ahead.[15]

A compliance strategy in addition to already existing regulatory framework which balances the socio-economic outcomes with environment impacts is a necessary first step towards the realisation of the AIM Strategy’s objectives. Enforcement mechanisms could follow as reinforcers.

This is in line with global focus on sustainable development and in this way, the AU could become a leading voice in making substantial contributions to changing policy and approaches in ocean use regionally and internationally.

[1] See https://au.int/Agenda2063/popular_version

[2] Formerly known as the Organisation for African Unity. 

[3] See https://au.int/agenda2063/goals for the list of goals and priority areas. 

[4] See African Union, 2050 Africa’s Integrated Maritime Strategy (AIM Strategy). Addis Ababa. https://au.int/en/documents-38

[5] Ibid. 12. 

[6] According to the AIM strategy document, over 90% of Africa’s imports and exports occur by its seas.  

[7] FAO, The State of World Fisheries and Aquaculture (FAO Fisheries and Aquaculture Department.2018) 56.

[8]  FAO and UNECA, Regional Overview of Food Security and Nutrition. Addressing the Threat from Climate Variability and Extremes for Food Security and Nutrition. (FAO and ECA. Accra 2018).

[9] See also the 2008 United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the "Rotterdam Rules") which is not yet in force. African state parties: Cameroon, Republic of Congo and Togo.  

[10] The Indian Ocean Memorandum of Understanding on Port State Control signed in Pretoria (South Africa) on 5 June 1998. African state parties: Djibouti, Eritrea, Ethiopia, Kenya, Mauritius, Madagascar, Mozambique, Seychelles, South Africa and Tanzania. 

[11] The Memorandum of Understanding on Port State Control in the Mediterranean Region signed in Valletta (Malta) on 11 July 1997. African state parties: Algeria, Egypt, Morocco and Tunisia.

[12] The Memorandum of Understanding for the West and Central African Region signed in Abuja (Nigeria) on 22 October 1999. African state parties: Angola, Benin, Cameroon, Cape Verde, Congo, Cote d’ Ivoire, Gabon, Ghana, Guinea, Equatorial Guinea, Liberia, Mauritania, Namibia, Nigeria, Senegal, Sierra Leone, South Africa, Sao Tome and Principe, Democratic Republic of Congo, Guinea Bissau, The Gambia, and Togo.

[13] The Maritime Organisation of West and Central Africa was established in 1975. African state parties: Angola, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Republic of Congo, Cote d’Ivoire, Equatorial Guinea, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Mauritania, Mozambique, Niger, Nigeria, Sao Tome and Principe, Senegal, Sierra Leone and Togo. 

[14] R. Jennings and A. Watts (eds), Oppenheim’s International Law: Vol. 1 (Longman, Harlow 1992). 1203.

[15] A good example is the 1982 Paris MOU as amended which was bolstered by the 1995 EC Directive as amended to ensure enforcement capability and uniformity in application by the member states.  See H Bang and D. Jang, “Recent Developments in Regional Memoranda of Understanding on Port State Control,” Ocean Development & International Law 43 (2012):170 for an explanation of the Paris MOU.

The Draft Agreement for the Sustainable Use of Marine Biological Diversity in Areas beyond National Jurisdiction: Are We There Yet?

The draft Agreement under the 1982 UN Law of the Sea Convention (UNCLOS) on the conservation and sustainable use of marine biological diversity (MBD) of areas beyond national jurisdiction is now available to facilitate the negotiation of the final Agreement.[1] Marine biological diversity is the diverse systems of genes, species and ecosystems in the marine environment[2] and is found in approx. 64% of the world’s oceans which lies beyond the limits of national jurisdiction.[3]  

Marine resources can traverse different jurisdictions during their life cycles and marine ecosystems are not neatly distributed within national boundaries, therefore it is imperative that sustainable management discourse is framed multi-jurisdictionally

UNCLOS does not specifically address sustainability and MBD although Article 192 of UNCLOS provides for the protection of the marine environment and Article 194 enjoins states to protect rare and fragile ecosystems. UNCLOS was of its time and when drafted, negotiating states’ attention was focused on defining the limits of states’ entitlements off their coasts and the regulation of rights and obligations applicable thereto. 

Areas Beyond National Jurisdiction in UNCLOS and Beyond: Mind the Gap

Transboundary agreements and agreements governing areas beyond the limits of national jurisdiction are not novel. Indeed, UNCLOS established the Common Heritage regime for mineral resources recovered on or beneath the seabed beyond national jurisdiction.[4] With regard to fisheries, the 2012 Convention on the Conservation and Management of High Seas Resources in the South Pacific Ocean fills a crucial gap in the conservation and management of fisheries beyond areas of national jurisdiction but is restricted to a section of the Pacific Ocean.[5] Focusing on biodiversity, the 1993 Convention on Biological Diversity (CBD) complements UNCLOS albeit with jurisdictional limitations; it applies to biological diversity within national jurisdiction.[6]

Governance frameworks over areas beyond national jurisdiction should form part of a longer-term goal of continually addressing regulatory gaps in the conservation and sustainable use of areas beyond national jurisdiction. This is in keeping with Article 197 of UNCLOS which provides that states should co-operate on a global basis in agreeing international rules for the protection of the marine environment.

The Benefit of Co-operation on a Global Basis

The UN General Assembly, as the forum for the development and codification of International Law through its resolutions[7] in accordance with UNCLOS can, according to Abott and Snidal’s view in relation to the role of international organisations, enhance efficiency further producing political effects such as shaping understandings and elaborating norms.[8]

This is indicative of the zeitgeist; state autonomy in relation to sustainable management of resources is reinvented as states are desirous of ensuring that emerging laws over our marine resources are rooted in sustainability principles

Staying the Sustainable Course 

A comprehensive institutional framework is foundational to sustainability. Therefore, time will tell if agreed institutional arrangements namely, the Conference of the Parties, would address any arguable lack of coordination, collaboration and exchange of information between related institutions and state parties.[9] Specifically, the ball would be in state parties’ courts to ensure the following:  

• The development and transfer of technology particularly in the realm of marine science towards global baseline data to support further understanding of the marine ecosystem;

• The promotion of capacity-building; and

• Regional co-operation and co-ordination between state actors and scientific observers to develop spatial approaches to ocean use and management.  

[1] https://undocs.org/en/A/CONF.232/2019/6 and https://www.un.org/bbnj/sites/www.un.org.bbnj/files/draft_text_a.conf_.232.2019.6_advanced_unedited_version_corr.pdf.

[2] Centre for Marine Conservation and others, ‘Marine Biological Diversity: Definition and Importance’ in Norse, Elliott. A (ed), Global Marine Biological Diversity: A Strategy for Building Conservation Into Decision Making (Island Press, Washington 1993 USA).

[3] Collins, J. (2019) Report of the Workshop “Marine genetic resources in areas beyond national jurisdiction: bridging policy, law, science and research and development” 21-22 May 2019, Brussels.10. 

[4] UNCLOS Article 133. This maritime zone beyond national jurisdiction is known as the Area. 

UNCLOS also established the institution framework for the common heritage regime. The International Seabed Authority.

[5] http://www.fao.org/fishery/docs/DOCUMENT/sprfmo/legal/SPRFMOConvention.pdf.

[6] The Nagoya Protocol of the CBD was set up to regulate the exploitation of genetic resources and the fair and equitable sharing of the benefits of the same. 

[7] See General Assembly Resolutions 69/292 and 72/249.

[8] Abbott, Kenneth. W & Snidal, Duncan, Why States Act through Formal International Organisations, 42 The Journal of Conflict Resolution, 1 (1998) 9.

[9] Romero Lares Maria C, Some Considerations about the Shortcomings of the United Nations Convention on the Law of the Sea as a Contribution to the Sustainable Governance of the Oceans, 11 Anuario Colombiano de Derecho Internacional 131 (2018) 153. 

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