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Part 2: When Piracy is Just Armed Robbery

By MarEx 2014-07-21 20:04:00

Op-Ed by Herbert I. Anyiam 

Part 1 can be read here.

Suggested Solutions for Dealing with the Menace

In formulating an effective strategy to repress the surge in unlawful acts against the safety of maritime navigation in the Gulf of Guinea (GoG) it is vital that we first appreciate the exact nature of the problem from a legal perspective. This is based on simple logic because it is impossible to have an effective solution to a problem without establishing the nature of the problem. The necessary corollary for that reasoning is that for any security measure to be fruitful in combating crimes against vessels in GoG it must be based on a sound legal footing bearing in mind the rights and obligations of states within the various maritime zones under UNCLOS with issues relating to sovereignty and jurisdiction, and the various maritime boundary disputes which abound in the region due to the presence hydrocarbons. 

Examples of maritime boundary disputes which could hinder collaborative efforts for maritime security measures in GoG include the acrimonious dispute over Bakassi peninsular between Nigeria and Cameroon; Cameroon and Equatorial Guinea over the island at the estuary of river Ntem; Equatorial Guinea and Gabon over Corisco Bay and Mbane Island; Ghana and Cote d’Ivoire over the Dzata-1 oil well near Cape Three points, as well as the potential maritime disputes between Liberia and its western and eastern neighbors following the recent discovery of oil in its waters. It is important for GoG states to set up necessary mechanisms for peaceful resolution of maritime boundary disputes as provided under UNCLOS,[10] as failure to do so may potentially derail maritime security initiatives in the region.

Based on the IMO statistics discussed in Part 1 it is safe to conclude that more than 81 percent of the crimes against maritime navigation in GoG is armed robbery (and theft) within territorial and internal waters including port facilities, most of which take place within Nigerian waters, as opposed to piracy in international waters. It is also obvious that the immediate threats offshore have its roots ashore. Therefore any strategy to deal with the problem effectively must be aimed at tackling both ends simultaneously.

Suggested solutions for dealing with the problem are as follows:

A) Tackling the problem offshore:

i. Littoral states in GoG must first recognize that it is the primary responsibility of each coastal state, not the international community, to secure its internal waters and port facilities as well as individual territorial waters. This is a fundamental factor that must be appreciated to ensure an endearing and effective maritime security in the region. This is because the sovereignty of a state extends to its territorial waters and the state has exclusive jurisdiction and competence to ensure the good order and security of its territorial waters. 

Thus every coastal state has a legal responsibility by way of a duty of care to provide proper and adequate security for maritime traffic in its territorial waters. There seems to be good arguable grounds to say that a coastal state that fails to provide proper and adequate security in its territorial waters in accordance with the requirements of UNCLOS may be liable for breach of that duty of care to victims of maritime crimes in their territorial waters and port facilities by virtue of the doctrine of State Responsibility. Of course such liability will depend on the facts of each case and may be easily established against coastal states with weak maritime security due to bribery and corruption and / or bad governance.

ii. GoG States, especially Nigeria, should adopt a zero tolerance policy to all forms of offshore bunkering activities. This is because the surge in maritime crimes in GoG is intrinsically linked to the illegal activities in the oil industry in that region, particularly Nigeria. Offshore bunkering activities in that region often entails a lot of underhand dealings with bent tycoons, which is a potential ground for organized crime and other illegal activities, including rivalry among criminal gangs, some of which ultimately lead to attacks on vessels. Therefore the recent decision by the Nigerian government to legalize offshore bunkering with a view to curtail illegal oil exports will be counterproductive to maritime security initiatives as security operatives will be placed in the difficult position of having to differentiate between legal and illegal bunkering in their operations.

iii. GoG States need to adopt firm and aggressive anti-smuggling measures with zero tolerance for such activities. Smuggling is the backbone of criminal acts against vessels and seafarers. This is because the clandestine nature of smuggling which is carried out to evade payment of customs and port duties are often conducted sneakily without security protection, thereby creating the propensity for criminal activities which leads to attacks on vessels. Crimes against vessels in GoG is an offshoot of the high rate of smuggling by sea in the region, which has always been a means for trafficking in weapons and narcotics as well as other illicit activities because it gives the perpetrators the confidence to undermined any security regime in the region. 

Thus any initiative to suppress piracy and armed robbery at sea in GoG will not achieve any meaningful result without curbing the high rate of smuggling in the first instance. In short, anti-smuggling initiatives should be used as a barometer in the quest for suppression of unlawful acts against the safety of maritime navigation in GoG.

iv. Coastal states in GoG need to give priority to removal of shipwrecks from their waters and to have stringent measures to prevent abandonment of vessels. The reason for this is that proliferation of abandoned vessels in the region is not only a source of navigational and environmental hazards, but they also provide cosy nests for maritime criminals to store arms and launch attacks on vessels. 

Wherever possible, the relevant authorities should identity owners of abandoned vessels from names of the vessels and other identification marks, and to get them to pay for the cost of removal of such wrecks. In this regard it should be noted that the Nairobi International Convention on the Removal of Wrecks (the Convention) which was adopted by the IMO on 18 May 2007 will come into force on 14th April 2015, being twelve months after the ratification of the 10th country for that convention i.e. Denmark. The ten countries that ratified the Convention to bring it into force on the above date are: Bulgaria, Denmark, Germany, India, Iran, Malaysia, Morocco, Nigeria, Palau and United Kingdom. 

Under the convention, all vessels of 300 gross tons and above registered in any state which is a party to the convention or calling at ports and terminals in those states must have evidence of insurance policy to cover wreck removal. The convention only applies in the EEZ, but there is a provision under Article 3 for states to extend its application to their territories, including territorial and internal waters, where most shipwrecks occur due to higher risk of grounding. Denmark’s ratification of the Convention made it the third country along with Bulgaria and the United Kingdom, to extend its application to their territories.  

In view of the high rate of abandoned vessels within the territorial and internal waters of Nigeria and other states in GoG, it will be highly appropriate for the Nigerian authorities to rely on Article 3 of the convention to extend its application to their territory, and for other GoG states to ratify the convention and do the same.

v. Combating maritime crime in GoG does not require more warships because it is obvious that the root cause of the problem is ashore, as opposed to offshore. Maritime criminals in that region will always try their luck in view of the highly lucrative nature of such illegal activities compared to the low risk of apprehension and prosecution. Therefore naval and coast guard activities should be conducted with the aim to deter, detect and defeat maritime criminals before they are able to carry out any successful operation. 

What is required for this purpose is the capability for the authorities to have virtual control of their maritime environment so that the presence of security operations could be seen and felt by prospective criminals, which cannot be achieved with warships, but with fast and well equipped patrol boats that are able to outsmart speed boats used by criminals, with more emphasis on use of aircraft equipped with the necessary tools and equipment to undertake far reaching aerial surveillance and able to get to the location of any reported incident in the shortest possible time, all of which must be supported with modern technology to capture the activities and movements of all types of vessels, large or small. 

There is a need for more and well equipped faster patrol boats manned by properly trained officers. In view of the large expanse of the area to be kept under surveillance, it will be cost effective and the naval and coastguard forces would benefit from Maritime Airborne Surveillance and Control (MASC). Thus, in addition to better equipped and fast patrol boats, what is required is more patrol and reconnaissance aircraft with multiple capabilities, supplemented with extensive use of modern technology. Of course, it will also require the hardening, reinforcement and co-ordination of the existing naval and coastguard capabilities of GoG states to ensure efficient and regular patrol by well trained officers, as well as instilling more discipline and professionalism in the naval forces, for effective maritime law enforcement. This is will be particularly useful in the case of Nigeria in view of the endemic allegations of corruption within the Nigerian navy.

vi. GoG States must invest in modern technology in their efforts to combat maritime crime due to the large expanse of the area to be kept under surveillance. With modern technology which is constantly improving, it is possible for the authorities to have virtual control of their maritime domains by investing in various maritime surveillance systems to complement water and aerial patrols. 

Whilst technology enhances maritime security, no technological system will provide full proof surveillance, and some may need to be integrated with others to increase reliability. Choosing the right technology also requires careful consideration of prevailing local circumstances and available infrastructure, such as frequent disruption to electricity supply especially in Nigeria, in order to be of any benefit. Examples of available technology for maritime security surveillance are:

Automatic Identification System (AIS): This is a navigational aid which broadcasts information about a vessel to other vessels and to shore-based authorities automatically. The requirement for vessels to have AIS was adopted by the IMO as Regulation 19 of Chapter V of the International Convention on Safety of Life at Sea (SOLAS) 1974 as amended. The Regulations make it a mandatory requirement for AIS to be fitted on all vessels of 300 gross tons or more engaged on international voyages and cargo ships of 500 gross tons or more not engaged on international voyages and all passenger vessels irrespective of size, with effect from 31 December 2004. 

To ensure effective maritime security, all GoG states should consider adopting and implementing the above AIS Regulations (where they have not done so) and to make it a compulsory requirement for all vessels (irrespective of size) to be fitted with AIS, with a zero tolerance policy for any vessel to operate in their maritime domain without AIS. Such a requirement will make it possible for all vessels to be tracked and suspicious vessels interdicted before any atrocities are committed. AIS is useful for short range vessel identification and tracking.

Long-Range Identification and Tracking (LRIT) system is a global messaging system for security as well as Search and Rescue purposes. LRIT system was adopted by the IMO and came into force on 1 January 2008 through Regulation 19-1 of Chapter V of SOLAS. The LRIT Regulations require passenger ships on international voyages including high-speed craft, cargo ships including high speed craft of 300 gross tons and above, as well as mobile drilling units, to transmit information relating to identity and location specifying position, date and time for a vessel to their Flag State at least every 6 hours. 

Flag States maintain a database for such transmitted information to share with any other State which is a party to SOLAS Convention, upon request. Thus coastal States may request information on any vessel which is within 1000 nautical miles from their coast. The Flag State will release such information to the requesting state unless there are reasons not to do so on grounds of confidentiality. There is no interface between LRIT and AIS. The IMO has since set up an Information Distribution Facility (IDF) to provide LRIT data from SOLAS member states to naval forces in the suppression of crime against vessels in Gulf of Aden and wider Indian Ocean. The IMO issued a circular on 6 December 2010 advising SOLAS member states that North Atlantic Treaty Organisation (NATO) and EU NAVFOR are involved with the IDF and urged Flag States to provide LRIT information to those organizations, on request.

Vessel Monitoring Systems (VMS) is a satellite-based monitoring system capable of providing information on the location, speed and course of a vessel. VMS is mostly used for purposes of monitoring fishing vessels, but could equally be used for purposes of security surveillance. It will be helpful to make it mandatory for vessels to have VMS to report the location of ships at regular interval.

Vessel Detection System (VDS) which makes it possible for vessels to be detected through Synthetic Aperture Radar (SAR) under any weather condition, day and night. This is a vital tool in maritime security surveillance because detecting the position of vessels neither requires co-operation of vessels nor voluntary disclosure of information by vessels. Thus VDS makes it possible for suspicious vessels to be detected and reported to relevant naval and coastguards for interception.

Vessel Traffic Services (VTS) System involves having a station ashore with sensors, radars and optical or infrared cameras for trained personnel to monitor local maritime traffic. VTS systems are used in areas of heavy maritime traffic to ensure safety of navigation but could also be useful for purposes of maritime security surveillance.

B) Tackling the problem ashore:

vii. GoG states must give priority to Maritime Domain Awareness (MDA) in their national security policies. The Maritime Domain of a coastal state is all areas and things of, on, under, relating to, adjacent to, or bordering on a sea, ocean, or other navigable waterway, including all maritime-related activities, infrastructure, people, cargo, vessels, and other conveyances. MDA on the other hand is the appreciation of everything relating to the maritime domain with the potential to affect the security, safety, economy, or environment of a coastal state. GoG states rely heavily on their Maritime Domain as a major source of revenue. 

Maritime insecurity in GoG is a direct consequence of the fact that until recently most states in the region overlooked the need for any or proper MDA programs as they concentrated mainly on land security with little or no attention for their maritime domains. Thus GoG states must have long term MDA Plans in their security policies. Such MDA plans must be tailored to the peculiar needs of each state bearing in mind their social, economic and political circumstances. The MDA plans must be reviewed regularly to ensure efficacy, as well as anchored to regional and international MDA plans. Maritime security initiatives are unlikely to be effective unless GoG states engage in long term and sustained MDA programs to complement such efforts.

viii. Coastal States in GoG need to appreciate that maritime activity is the mainstay for their economies and the need to guard that source of income jealously by allocating adequate and commensurate resources for maritime security. Of course this should go hand in hand with having an effective system to ensure that allocated resources are utilized for the intended purpose. It seems that the situation has got this bad because, while all littoral states in GoG derive most of their revenue from their maritime domain, they have not been enthusiastic about allocating adequate resources for purposes of maritime security. 

This can be seen from the fact that most GoG states do...