Paper: Enhancing regional maritime cooperation

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Maritime affairs involve co-operation to a degree that does not easily sit with staunchly defended sovereignty and jurisdictional concepts. Issues of maritime governance transcend national, geographical and political boundaries.

 
ENHANCING REGIONAL MARITIME CO-OPERATION IN AFRICA:THE PLANNED END STATE
Presented At the 3rd Sea Power For Africa Symposium,Cape Town International Convetion Centre 9th-11 March 2009
 
Paul Musili Wambua
[4thMarch 2009]





Enhancing Regional Maritime Co-operation in Africa: The Planned End State.
 
Africa has many maritime interests, including trade and the use of its marine resources to support development on the continent. Unfortunately, these resources are illegally plundered by others (illegal, unreported and unregulated (IUU) fishing is an example) and free trade is hampered by phenomena such as piracy and organised crime. This is to the disadvantage of the people of the African continent. At the same time, little is being done in Africa to protect these interests and resources. The Common African Defence and Security Policy (CADSP), in addressing threats to peace, security and development pays little attention to the maritime dimensions thereof. The African Standby Force, as an instrument for the implementation of the CADSP, also does not address maritime forces or their contribution to African security and development. It is the opinion of the ISS that Africa needs to become more maritime conscious and needs to consider maritime matters at a continental and sub-regional level and not only as national issues.[1]
 
Dr.Paul Musili Wambua*
 
1.1        Introduction
 
Maritime affairs involve co-operation to a degree that does not easily sit with staunchly defended sovereignty and jurisdictional concepts. Issues of maritime governance transcend national, geographical and political boundaries. The best illustration of this transnational nature of maritime issues is the recent hijacking of vessels in the increasingly dangerous waters off the coast of Somalia. The Ukrainian owned MV Faina was for instance hijacked in October 2008 and remained in the hands of the pirates until February 2009. Aboard the ship were a lethal cargo of 33 T72 tanks and an assortment of ammunition destined for the Port of Mombasa, Kenya. Another ship MV Sirius Star was taken hostage by the same pirates in November 2008. The oil supertanker was flying a Saudi Arabia flag but was carrying about 2 million barrels of crude oil worth US $ 100 million destined for the United States of America. The effect of the hijackings was felt not only by the Ukrainian and Saudi owners of these vessels but also thewould be recipients of the ship`s cargo, both in Kenya and the United States of America.
 
Another incident that demonstrates the trans-boundary nature of issues on maritime governance is the June 2000 oil spill by MV Treasure that sank between Dassen and Robben Islands off the coast of South Africa. The ship released about 1,300 tonnes of bunker oil into the ocean extensively damaging the breeding habitats of the African penguins which are native not only to South Africa but also to Namibia. Approximately 20,000 penguins that were nesting at the moment were oiled and it took a concerted effort to clean some of them before they could be released back into the wild.
 
Maritime accidents are yet another illustration of how issues in maritime governance defy territorial, jurisdictional and geographical boundaries. When a ship founders say for instance within the territorial waters of Liberia en route to Abidjan in Ivory Coast, the impact is likely to be three fold: on the countries whose nationals were aboard the ship and whose flag the ship was flying; Ivory Coast where the ship`s cargo was destined for; and Liberia in whose jurisdiction the ship founders.
 
The transcendental nature of maritime issues highlights and becons   the need for regional maritime co-operation between maritime states. The need for regional maritime co-operation is further accentuated by the lack of capacity by most African coastal states to individually address maritime governance issues that present a considerable degree of complexity. Although there have been efforts aimed at fostering regional maritime co-operation  between African maritime states, case in point being the opening of the International Maritime Organization (IMO) sponsored Maritime Search and Rescue Co-ordination Centre (MRCC) in Mombasa, Kenya with sub-Centres in Victoria, Seychelles, and Dar-es-Salaam, Tanzania, a lot remains outstanding in the quest for real and effective regional maritime co-operation in Africa. With the much publicized move towards a United States of Africa championed by the recently elected Africa Union (AU) head, Libya`s president Colonel Mummar Gaddafi, it is imperative that regional maritime co-operation be synchronized to be in tandem with this goal of the Planned End State. These and other recent developments in the maritime sector point towards the need for an integrated regional approach and cooperation between African states in dealing with maritime  governance.
 
 
With this background this paper seeks to give an appraisal of regional maritime co-operation amongst African maritime nations. An analysis of existing maritime regional co-operation agreements and institutions set up by African nations will be undertaken with a view to determining their efficacy. The paper also examines flaws in the national policies, legislations and institutions that hinder regional maritime co-operation. Finally the paper seeks to explore new avenues that can be utilized in forging regional co-operation between African maritime nations.
 
 
1.2                 The Global Framework for Maritime Co-operation Under the Law of the Sea Convention (LOSC)
LOSC, which is the loci cadre in ocean governance, is a classic illustration of what African states can achieve through maritime co-operation. The first two United Nations Conferences on the Law of the Sea lacked African representation owing to the fact that few African states had attained self rule by then. The Third United Nations Conference on the Law of the Sea (UNCLOS III) however witnessed eager participation by African states who felt that the previous two Conferences had not adequately, if at all, addressed their maritime interests. Though young then having only achieved independence from colonial rule in the preceding decade, African states left enduring imprints of their participation in the ensuing LOSC. Cameroon, Kenya, Nigeria, Senegal, Tanzania, Zambia and Uganda were some of the African states that had a great influence on the outcome of UNCLOS III. Part XI (international seabed area and the institutional framework for deep seabed mining); Part XV (dispute settlement); Part V (Exclusive Economic Zone-EEZ), Part X (rights of access to the sea and freedom of transit of landlocked states); Part XII (protection and preservation of the marine environment); Part XIII (marine scientific research) and Part XIV (development and transfer of marine technology) of LOSC all bear reflections of the worthwhile contribution by African states to the Global Ocean Regime.[2]
 
The strength of regional cooperation by African states was first demonstrated at Montenegro Bay, Jamaica in 1982.When a vote on LOSC became inevitable at the end of UNCLOS III in 1982, the African states voted as a block and provided 27 of the required 60 ratifications to bring LOSC into force. Individually, African states lacked the muscle to influence the outcome of UNCLOS III in the manner they did collectively as a block. African states took advantage of regional institutions and forums such as the Organization of African Unity (OAU now the AU); the Group of 77; Afro-Asian Legal Consultative Committee; conference circuits such as the meetings of the Seabed Committee of UNCLOS III; non-governmental circuits, such as the Pacem in Maribus conferences of the International Ocean Institute; and conference institutions and procedures, including the numerous UNCLOS III negotiating committees, subcommittees and informal working groups to make their presence felt at UNCLOS III. The end result was the world`s realization that Africa could no longer be taken for granted in the governance of ocean spaces.[3]
 
Currently, 41 out of 53 African states are parties to the LOSC. Several of these countries are landlocked and are likely not to benefit from the exploitation of ocean resources unless they take advantage of the provisions of LOSC regarding landlocked and geographically disadvantaged states.[4]
 
LOSC in its provisions repeatedly calls for regional co-operation in its implementation to govern ocean spaces and the resources therein. More specifically, LOSC calls for regional co-operation in:-
i)         Exploitation of living marine resources[5]
ii)       Scientific research[6]
iii)      Control of marine pollution and conservation of marine environment[7]
iv)     Safety at sea[8]
v)       Maritime transport[9]
 
Other international conventions and instruments regarding ocean governance such as Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 (SUA), International Convention for the Safety of Life at Sea, 1974 (SOLAS), International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL), The International Ship and Port Facility Security (ISPS) Code, all contain provisions requiring party states to engage in regional co-operation in order to realize the goals of the conventions and instruments. Regional conventions such as the African Maritime Charter also call for co-operation among African states in the various aspects of ocean governance so as to best achieve the desired result.
 
1.3               Challenges Facing African States in the Governance of their Maritime Zones
.Most of the national challenges affecting African maritime states directly affect regional cooperation. The challenges facing African states in their quest to bring order and sound governance in their maritime zones have been identified as:[10]
i)         Lack of appropriate frameworks for the delimitation of the maritime zones;
ii)       Lack of appropriate policy, legal and institutional frameworks for governance of the maritime zones
iii)      Inadequate training facilities and institutions to develop a pool of competent human resource for the governance process;
iv)     Lack of funds for the exploration and research on marine resources;
v)       The ever present threat of marine pollution from land-based and ship-based sources;
vi)     Illegal, Unreported and Unregulated Fishing (IUU) from Distant Water Fishing Nations (DWFNs) vessels;
vii)    Piracy and hostage taking;
viii) Inadequate disaster preparedness when confronted with issues of maritime search and rescue;
ix)     Illegal immigration;
x)       Drug trafficking;
xi)     Smuggling of contraband goods and arms;
xii)    Inadequate port security.
 
Of these challenges IUU(fishing) and maritime insecurity stand out as the two main challenges that have had the greatest impact on the African nations and on the entire maritime world. Fishing in prohibited areas or fishing without license are both classified IUU activities. Using banned fishing techniques such as bottom trawling or long line fishing or misreporting catches also fall under this category.[11] Many African maritime states license vessels from DWFNs such as China, Taiwan, Korea, the EU and Russia to fish in their waters, and there is a significant IUU(fishing) problem from many of these vessels. IUU does not respect national and international actions designed to reduce bycatch and mitigate the incidental mortality of marine animals such as sharks, turtles, birds and mammals while fishing thereby creating significant collateral damage to ecosystems.[12]
 
The challenges facing African maritime states in the governance of their maritime zones are compounded by the escalating incidents of maritime insecurity off their coast, particularly off the Somalia coast and in the increasingly volatile Gulf of Guinea. The situation off the East African coast is particularly worrying. According to IMO, in the first quarter of 2008 there were 11 piracy attacks off the East African coast, 23 in the second quarter and 50 in the third and 51 in the fourth quarters, making a total of 135 attacks, 44 hijackings and the kidnapping of more than 600 seafarers. Two (2) seafarers are reported to have lost their lives in these hijacking incidents.[13]
 
The pirates seem to have become more sophisticated in their operations. Somalia has the longest coastline in Africa measuring approximately 3,898 km of which 1,204 km is in the Gulf of Aden. This coastline acts as an ideal base from which pirates launch piracy expedition and also provides a suitable hideout. The pirates are increasingly using so-called ‘mother ships’, typically converted fishing vessels, to launch attacks into deeper waters hitherto considered safe from pirate attacks. Previously, vessels keeping a distance of at least 50 nm from the coast were considered safe but the range has now increased to at least 200 nm. The super tanker the Sirius Star, was captured more than 400 miles off the coast of Kenya, well to the south of Somalia.[14]  The operations of the pirates in the Horn of Africa region and elsewhere in the waters off the African coast are launched from land bases. The pirates take advantage of the instability in the vulnerable region to create safe havens from where they can further their criminal  conduct with impunity and where it is near impossible to track them down.
 
The incidents of maritime insecurity in waters off the African coast are not a preserve of the Horn of Africa and East Africa region. On the West Coast of Africa, the Niger Delta and by extension the Gulf of Guinea has also acquired the dubious reputation of being one the most dangerous maritime zones in the world. The activities of the Nigerian Rebel Forces in the oil rich Niger Delta have endangered life at sea in this region.[15] Nigeria alone is said to lose at least $1.5 billion per year in cargo(es) of stolen crude oil. [16]
 
These escalating cases of maritime insecurity in waters off the African have attracted the attention of not only African states including landlocked African states that depend on the oceans for transport of essential goods, but also the world as whole. Maritime insurance premiums have sky-rocketed and the cost of maritime transport increased significantly as ships are forced to take longer routes in an attempt to evade the so-called choke points.[17] The persistent and brazen acts of piracy off the coast of Somalia prompted no less than four meetings of the UN Security Council in the second half of 2008.[18] Resolutions 1816 and 1838 of the United Nations Security Council sought to address the piracy problem and called on states to take part in actively fighting piracy by deploying naval vessels and aircraft to the Horn of Africa region and to co-operate with the transitional Federal Government of Somalia towards this end.  On December 16, 2008 the Security Council acted again, authorizing the employment of “all necessary means” by states for intervention on the ground in Somalia to address the problem of maritime piracy.[19]
 
1.4               An Appraisal  of Regional Co-operation Agreements and Institutions in the Governance of African Maritime Zones
Several regional organizations are active in in a number of African states in the sphere of ocean governance. These institutions deal with a variety of issues ranging from management of marine resources, education, training and research and maritime transport. These institutions take on the character of either intergovernmental organizations or non-governmental bodies. The intergovernmental organizations include:
i)         The South West Indian Ocean Fisheries Commission (SWIOFC)
ii)       The Maritime Organization of West and Central Africa (MOWCA)
iii)      The Sub-regional Integrated Coast Guard Network[20]
iv)     The South African Development Community (SADCC) which though an economic block is extensively involved in the governance of ocean spaces of member states
v)       The Indian Ocean Tuna Commission (IOTC)
Some of the non-governmental organizations involved are:
i)         Ocean Data and Information Network for Africa (ODINAFRICA)
ii)       Oceanographic Research Institute (ORI)
Several agreements have also been entered into between African states and treaties signed for regional co-operation in ocean governance. Most notable among the treaties is the African Maritime Transport Charter of 1994 which calls upon African states to co-operate in enhancing maritime transport and ensuring that maximum benefits are ripped therefrom.[21]
 
The non-treaty agreements include the Indian Ocean Memorandum of Understanding which deals with ship and port security. Under the IMOU, the signatory states are obliged to inspect 15% of all the ships that call on their ports in order to enhance safety of shipping.[22]  The Djibouti Code of Conduct[23] signed on 30th January 2009 between 8 African States (Djibouti, Ethiopia, Kenya, Madagascar, the Maldives, the Seychelles, Somalia and Tanzania) and Yemen in Djibouti at a Special IMO organized meeting is yet another regional agreement on ocean governance between African states.[24]The regional agreement on combating piracy allows the signatory states to send navies into the territorial waters of the other signatories to pursue pirates and in certain instances sanction joint anti-piracy operations. The Code of Conduct also calls on member states to enact legislations or amend existing ones to facilitate the arrest and prosecution of suspected pirates
 
Another positive development in regional co-operation in the governance of ocean spaces has been the setting up of the sub-regional Maritime Rescue Coordination Centre (MRCC) in Mombasa, Kenya. The MRCC is administered from Mombasa with associated Maritime Rescue Sub-Centres (MRSCs) in Victoria (Seychelles) and Dar es Salaam (Tanzania),[25] The Mombasa MRCC and the two MRSCs were funded through the International SAR Fund.[26] The Mombasa MRCC provides a much-needed search and rescue capability along the coastline of East Africa and improved security for seafarers not just from Africa but from all nations whose vessels transit the South West Indian Ocean region waters.
 
1.5               The Benefits of Regional Co-operation in the Governance of African Maritime Zones
Regional co-operation is perhaps the only avenue through which African states can achieve order in the governance of their ocean spaces. The challenges of governing ocean spaces can seem daunting if handled unilaterally by individual states. Issues such as maritime insecurity that have visited the waters off the coast of Africa are not issues that can be addressed by a single maritime state acting in its national interest. The trans-boundary nature of of the challenges posed by most maritime issues call for an integrated regional co-operation.
 
Through regional co-operation, African states can be able to pool together both financial and human resources for use in the ocean governance process. This way, the African sates will be able to move in tandem with the rest of the world in implementing the provisions of LOSC which they played a key role in bringing into force.
 
A good example of nations that have set out to implement provisions of LOSC through regional co-operation is the Pacific Island Countries.[27] Through regional cooperation, these Island nations have been able to aptly manage their maritime zones with a considerable degree of success.[28] African states can also achieve such a success if they enhance regional co-operation in the governance of their maritime interests.
 
1.6               The Challenges of Regional Co-operation in the Governance of African Maritime Zones
 
The efforts towards regional co-operation in the governance of African ocean spaces have been seriously compromised by the disharmony in the various ocean governance regimes in the African maritime states. Some African states such as Benin, Congo, and the Democratic Republic of Congo do not have any provisions in their legislations for even delineation of their maritime zones.[29] Others such as Libya and Somalia lay extravagant claims on ocean spaces with their territorial seas extending some 200 nm. This disharmony at times has played a hindrance role to any meaningful regional co-operation in the governance of African ocean spaces as maritime boundaries become an issue between the various states involved. The issues of delimitation are further compounded by the following peculiarities of maritime interests:
 
(i) The legal frameworks for governance of ocean spaces continue to evolve rapidly as more discoveries regarding their economic value are made and therefore are often incomplete and contain more uncertainty than on land:Although property and other related lawto land is progressive and continually evolves, marine legal frameworks have been changing more rapidly over the last century. These rapid changes may be partially attributed to the following factors:
a)       expansion of national maritime zones under the LOSC and the attendant complexity of boundary delimitation;
b)      the often overlap of maritime jurisdictions which necessitate clarification of intergovernmental title, jurisdiction, and authority over these expanded zones;
c)       scientific advancement and discoveries of new uses of marine resource and increasingintensity of existing uses such as off-shore petroleum and mineral exploitation andtransportation, coastal areas development, recreation and tourism, aquaculture andsea ranching and renewable off-shore energy production;
d)      shifting of focus to new issues such as marine habitat and resource conservation and marine environmental risk and pollution reduction;
e)       increase in recognition of the rights of aboriginal and indigenous groups and other stakeholders incoastal and marine resource.
 
(ii) Marine spaces are virtually common property with no exclusive rights of ownership:[30] The three dimensional rights aspect of a geographical zone is more apparent in sea than on land because rights are either allocated for specific portions such as the seabed or water column, or specific activities such as fishing and navigation. The interests usually coexist and even this coexistence may change over time specially where the rights are time specific. This coextensive nature of the rights increases the number of stakeholders that must be considered while designing a legal framework for governance of any maritime zone. It also results in a multiplicity of boundaries of jurisdiction, administration, ownership and use with in some instances, a boundary or limit being set for each specific resource or activity.
 
(iii)Interests in marine space are more fragmented than on land:Related to the first point is the fact that the governance of marine interests tends to focus on specific resources or activities rather than geographic areas. On land interest are classified either as government (public) land, private land and trust land[31] or in terms of the extent of exclusive rights of surface ownership such as freehold, leaseholds or licences. This is not the case with marine spaces where interests are classified with reference to specific resources such as fishing rights, off-shore petroleum and oil exploration and shipping.
 
Attempts by African states at regional co-operation in the governance of ocean have been hindered by their national polices and legislations which often times have been un-coordinated and marred by duplicity. It is also not uncommon to find two or more regional bodies (whether inter-governmental or nongovernmental) with similar or near identical mandate operating in the same region without any tangible effort to harmonize their operations.
 
National legislations such as the Kenya Maritime Zones Act (Chapter 371 Laws of Kenya) are not designed to facilitate regional integration in the governance of ocean spaces and present bottlenecks to regional co-operation. These legislations predate LOSC and even those that are post LOSC are not fully compliant with the provision of LOSC. The Kenya Maritime Zones Act for instance purports to give Kenya the right to regulate passage of warships and military exercises in the EEZ.[32] The basis of claiming such a right to which USA objects is not clear.[33] LOSC confers such rights to coastal States to regulate passage of warships but only within the territorial sea.[34] In fact, in exempting the application of regulation of passage of ships in international navigation routes that pass through EEZs, LOSC does not distinguish between warships and any other ships.[35] Kenya therefore has no legal basis of extending her sovereign jurisdiction to her EEZ contrary to LOSC. It can however be argued that military exercises may rightly be viewed to constitute a disturbance to the marine life and therefore well within the ambit of LOSC provisions.[36] 
 
The status of most African navies is also a hindrance to effective regional co-operation in the governance of African ocean spaces. States that lack vessels, aircraft, communications systems, training for patrols, or appropriate legal infrastructure are unable to play a constructive role in solving regional maritime governance issues such as piracy.[37] Navies are not thought to be as necessary as the other branches of the armed forces and are often considered last in budgetary allocations. In terms of ranking the Kenya Navy takes a third position in the armed forces structure. The high cost of navy equipment serves to further worsen the situation.
 
National interests have also often been elevated to fetish levels much to the disadvantage of regional common good. A case in point is the standoff between the two East African sister states of Kenya and Uganda over a tiny Island in the waters of Lake Victoria, the Migingo Island. The Island, barely an acre in size has been the bedrock of an impasse and counter-accusations between the two states that lay claim to its ownership.[38] This is in spite of the much publicized move towards an integrated trade block and political union within the East African Community (EAC) by 2012. That the two states have not so far shown any credible efforts towards resolving this seemingly mundane but potentially explosive issue is a demonstration of how parochial national interests have taken centre stage while regional co-operation continues to be relegated to the background.
 
 
1.7               Regional Co-operation in the Governance of African Maritime Zones: How Do We Do It?
African states need to identify a forum in which they can chart out modalities for regional co-operation in the governance of their ocean spaces. In this regard, no forum would be better than the AU given the goodwill it enjoys among African states and that it has established organs through which the agenda can be handled. It would, for example, be easier to set up an organ within the AU to deal with the co-ordination of maritime co-operation than it would be to set an independent entity given the financial handicaps that often visit such initiatives in the African context.
 
In order to enhance regional co-operation in the governance of African maritime zones, African states must first identify the possible areas of co-operation. The areas of co-operation should focus on the common challenges facing African states in ocean governance. Key among these areas are security, surveillance and control of marine pollution.
 
The next step should be to identify the common goal and achievements that the regional co-operation ought to target. Invariably, the targeted result should be the integrated exploitation and governance of African ocean spaces and the resources therein for the common good of the people of Africa. No distinction should be made between coastal states, landlocked states and the so-called geographically disadvantaged states in their inclusion in the regional co-operation strategy. All these states are beneficiaries one way  or the other from the sea and its resources
 
A strategic plan and policy for the regional co-operation should be developed at the continental level that maps out key actions to be taken in fostering regional co-operation. The strategic plan should set out the priorities of the co-operation as well identify the structures and institutions, both national and regional through which the plan can be realized. For example, African navies should be encouraged to co-operate with each other in sharing information that could help curb maritime insecurity and reduce incidents of piracy. It is noteworthy that none of the African states have responded to the UN Security Council call to send navy patrols to combat piracy in the Horn of Africa. This is perhaps due to the lack of financial capacity by the African states that have navies to finance such operations which challenge could be easily overcame were the African states to launch a joint operation.
 
 Training, research and exploration institutions must also be strengthened at a regional level perhaps with an overall co-coordinating body that would ensure sharing of oceanographic data and information on marine resources. An African regional disaster response institution should be set up under the aegis of AU to co-ordinate responses to maritime disasters such as shipwrecks, oil spills and other marine pollution sources as well as enhance safety of life at sea.
 
The IMO/MOWCA initiative towards establishment of a Sub-regional Coast Guard Network could be taken a step further to cover the entire coast of Africa. An African Coast Guard Network should be established to co-ordinate Coast Guard Services through out the African ocean spaces. In the long run, a standing African Coast Guard Service should be established to compliment the national Coast Guard Services in their operations aimed at
 
 A fund within the AU budget should be set aside to finance the operations of regional maritime co-operation organizations. The fund can be financed through remittance from members states out of the collections of licensing charges on DWFNs vessels and flags that fly their flags as well as port charges.
 
Due to their  long coastlines and the ever increasing challenges in the governance of their ocean spaces, African countries must share naval intelligence and co-ordinate their maritime surveillance, reconnaisance and enforcement activities. The AU should place emphasis on regional co-operation  between member states in enhancing maritime security. The Common African Defence and Security Policy and the African Standby Force (ASF)[39] should include a maritime strategy to combat the increasing incidents of maritime insecurity that threaten the common good of the African region. Africa’s naval capabilities need to be assessed and appropriate elements placed at the disposal of the AU Standby Force. To date no large peacekeeping operation within Africa has involved naval forces though maritime forces could be used to bring peace within the Horn of Africa region. Legitimate governments should be supported in order to ensure that criminal gangs who operate in the seas do not have bases from which they can launch their criminal operations.
 
The uncoordinated approach that has characterized regional co-operation in the governance of African maritime interests should be shunned in favour of a more thought out and coordinated approach that guarantees better results in the move towards the “Planned End State”.
1.8 Conclusion
Effective regional co-operation requires that decision makers in the various national governments within the region come together to chart out modalities on how to best achieve this end. Constant evaluation is also a key imperative since the maritime sector is dynamic ever presenting novel challenges. Institutions with regional and inter-governmental mandate must be developed to ensure that common goals in maritime governance are achieved and set guidelines adhered to. Regional co-operation is a process that requires a great deal of good will from member states that must shun jingoistic appeals for the common good of the region in as far as maritime governance is concerned.
 
There are numerous challenges facing the governance of ocean spaces in Africa. If the situation is not put under control these threats may grow to disproportionate magnitudes and undermine political stability and economic development of the region. It is for this reason that the African nations must co-operate with each other and shun the tendency of making politically motivated decisions to address internal short-term and immediate priorities as opposed to long term regional goals. The focus must shift to the regions and the continent and away from national frontiers


*LLB, LLM, MBA,PhD(Gent) Lecturer in Maritime and Commercial Law,University of Nairobi School of Law
[1] Conference Report Maritime Security Issues on the East Coast of Africa SAS Drakensberg, Mombasa Harbour, 26th November 2007 available online at http://www.iss.co.za/dynamics/administration/file-manager/file_links/CONFERENCE REPORT.PDF?link_id=4056&slink_id=5402&link_type=13&tmpl_id=3 accessed on 25th February 2009.
[2] The Kenyan delegation in particular played a crucial role in the development of the EEZ concept. Frank X Njenga the legal advisor to Kenya`s Ministry of Foreign Affairs at the Asia-African Legal Consultative Committee (AALCC) Colombo session in January 1971 suggested the concept of an area in which Coastal States exercised less than complete sovereignty. The area was to be called an Exclusive Economic Zone. The idea was presented to UNCLOS III and after much deliberation was finally accepted. A country can now claim 12 nautical miles of territorial sea and 188 nautical miles EEZ making it a total 200 miles of jurisdiction. The concept of EEZ has since come to be recognized as customary international law and has received judicial endorsement in a number of cases that include The Continental Shelf (Tunisia v. Libya) ICJ Reports 1982 p. 72; The Gulf of Maine Case ICJ Reports 1984 p. 246 at p. 294 – 295; The Continental Shelf (Libya v. Malta) Case ICJ Reports p 13 and 33 and The Guinea Guinea Bissau Delimitation of Maritime Boundary Case ILM 251 (1985) p. 274. See Churchill R. R. and Lowe A. V. The Law of the Sea (3rd edn., 1999) (Manchester Universtiy Press, Manchester) p. 133. Some scholars have argued that it was not altogether novel but a modification of the earlier concept of Patrimonial Sea defined by the Specialized Conference of the Caribbean Countries at Santa Domingo de Guzman in June 1972. See Okidi C.O., “The Kenya Draft Articles on Exclusive Maritime Economic Zone Concept: Analysis and Comments” Working Paper No. 289 Institute of Development Studies, University of Nairobi, November 1976.
[3] Chircop A. Et Al The Maritime Zones Of East African States In The Law Of The Sea: Benefits Gained,
Opportunities Missed available online at http://www.eupjournals.com/doi/pdf/10.3366/E095488900800145?cookieset=1 accessed on 3rd March 2009.
[4] See Art. 70 (3), 148 LOSC which confer rights on landlocked and geographically disadvantaged states in the exploitation of marine resources. The provisions of LOSC also allow states including landlocked ones to have ships flying their flags in the High Seas and to engage in maritime transport. More than 90% of the world trade is carried out through the sea. See Go To The Sea: A Campaign to Attract Entrants To The Shipping Industry, available at http://www.imo.org/includes/blastDataOnly.asp/data_id%3D23804/Gotosea!campaigndocument.pdf accessed on 3rd March 2009.
[5] See Art. 61-70 LOSC
[6] See Art. 123, 143, 200 and Part XIII LOSC
[7] See Art. 94, 211 LOSC
[8] See Art. 14 (2), 41, 262 LOSC
[9] See Art. 43 LOSC
[10] See supra note 1.
[13] See Reports on Piracy and Armed Robbery Attacks Against Ships available online at http://www.imo.org/Circulars/mainframe.asp?topic_id=334 accessed on 3rd March 2009.
[14] http://www.voanews.com/english/2009-01-30-voa33.cfm/
[19] Harvard International Review http;//havardir.org/index.php?page=article&id=1822&p=2 accesed on 3rd March 2009.
[20] A joint project of IMO and MOWCA`s 20 member states covering the West Coast of Africaaimed at reinforcing cooperation between member States in the face of mounting problems of piracy, armed robbery  and other illicit acts against ships (SUA Convention), combating illegal immigration, terrorism and also marine pollution (MARPOL), illegal exploitation of the resources of the exclusive economic zones of member States, the implementation of United Nations Conventions on Maritime Security and Safety (SOLAS and ISPS Code), Search and Rescue (SAR Convention), protection of marine environment as well as the implementation of the Convention on the Law of Sea. See http://www.mowca.rog/newdesign/coast-guard/html accessed on 3rd March 2009
[21] Adopted at the then Organization of African Unity (OUA now AU) in Addis Ababa on 26th July 1994.
[22] www.iomou.org/ – 12k Accessed on 28th February 2009.
[23] This agreement is similar to the multinational regional agreement signed by South East Asia sates in 2005 – Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia – which has more than a dozen signatories and is credited with helping reduce the number of successful pirate attacks in the Malacca Straits choke point.
[24] http://www.voanews.com/english/2009-01-30-voa33.cfm/ accessed on 28th February 2009. See also Sub-regional meeting to conclude agreements on maritime security, piracy and armed robbery against ships for States from the Western Indian Ocean, Gulf of Aden and Red Sea areasOpening address by Efthimios E. Mitropoulos, Secretary-General, International Maritime Organization, Djibouti, 26 January 2009. http://www.imo.org/About/mainframe.asp?topic_id=1774&doc_id=10929 accessed on 28th February 2009. This meeting was a follow up to the earlier one held in December 2008 in Nairobi Kenya to address the same issue of maritime insecurity in the West Indian Ocean (WIO) region.
[25] http://www.imo.org/about/mainframe.asp?topic_id=1320&doc_id=6291 Accessed on 28th February 2009.
[26] Ibid.
[27] These include 22 Pacific Island States and Territories – American Samoa, Cook Islands, Federated States of Micronesia, French Polynesia, Fiji, Guam, Kiribati, Marshall Islands, Nauru, New Caledonia, Niue, Northern Marianas, Palau, Papua New Guinea, Pitcairn Island, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu, Vanuatu, and Wallis and Futuna. See Herr R. A., “Small Island States of the South Pacific: Regional Seas and Global Responsibilities” in Vidas D. and Ostreng W. (eds.), Order for the Oceans at the turn of the Century (1998) (Kluwer Law International, The Hague) pp. 203 – 231.
[28] See Vina Ram-Bidesi, “Sustainable Use of Marine Resources: lessons from the Pacific Islands”, UNU Global Seminar Oceans: Interaction between Man and Maritime Environments, 5th Shimane Session, 2 –5 August 2004, The University of Shimane, Japan. The regional strategy is achieved through ten regional inter-governmental institutions that work under the Council of Regional Organizations of the Pacific (CROP) and focus on regional strategies for sustainable development. CROP consists of: Pacific Islands Forum Secretariat, Secretariat of the Pacific Community, Forum Fisheries Agency, South Pacific Regional Environment Programme, South Pacific Applied Geoscience Commission, University of the South Pacific, South Pacific Tourism Organization, Fiji School of Medicine and South Pacific Board of Educational Assessment and Pacific Islands Development Programme. The ocean related activities by these organizations are coordinated by the Marine Sector Working Group (MSWG) created in 1997 which consists of technical experts from the CROP members. The aim of the MSWG is to promote better co-ordination of activities among the regional organizations on marine related issues. See also Teiwaki R., Management of Marine Resources in Kiribati (1988) (University of South Pacific).
[29] Chircop A. Et Al The Maritime Zones Of East African States In The Law Of The Sea: Benefits Gained,
Opportunities Missed available online at http://www.eupjournals.com/doi/pdf/10.3366/E095488900800145?cookieset=1 accessed on 3rd March 2009.
[30] van der Schans J. W., Governance of Marine Resources: Conceptual Clarifications and Two Case Studies (2001) (Eburon Delft) pp. 27-240.
[31] In Kenya, we have various categories of land tenure systems being governed by different legislations. The Government Lands Act (Cap 280) governs government (public) land; private land is inter alia governed by the Registration of Titles Act (Cap 281), the Land Titles Act (Cap 282) and Registered Land Act (Cap 300); and trust land is governed by the Land (Group Representatives) Act (Cap 287) and Trust Land Act (Cap 288).
[32] Sec 5-6 Maritime Zones Act.
[33] See “DoD 2005. 1-M” available at http://www.dtic.mil/whs/directives/corres/20051m_062305/Kenya.doc accessed on 3rd March 2009.
[34] Art. 30 LOSC.
[35] Art. 36 LOSC.
[36] Art. 56 LOSC.
[37] Supra note 1.
[38] See for instance the blame game as reported in the local dailies, Daily Nation, 4th March 2009, available online at http://www.nation.co.ke/News/-/1056/541592/-/u328xk/-/ accessed on 4th March 2009.and also the Business Daily, 4th March 2009, available online at http://www.bdafrica.com/index.php?option=com_content&task=view&id=13069&Itemid=5854 accessed on 4th March 2009.
[39] AU, ” Policy Framework for the Establishment of the African Standby Force and Military Staff Committee,” adopted by the African Chiefs of Defense Staff, Addis Ababa, Ethiopia, 15-16 May 2003,