Maritime law and policy developments in Africa: the case study of West Africa - Maritime and Transport Law Committee, July 2020

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Aboubacar Fall
AF Legal Law Firm, Dakar
a.fall@aflegal.sn

Introduction

Over the last four to five years, the African continent, in general, and the West Africa region, in particular, have witnessed important developments in the governance and regulation of the maritime sector. Below is a snapshot of some of the most significant developments in that regard, namely (I) the Lomé Charter, (II) the Guniea New Maritime Law and (III) the New Protocols to the Abidjan Convention.

I - The African Charter on Maritime Security and Safety and Development (the Lomé Charter)

The Charter was adopted on 15 October 2016 in Lomé (Republic of Togo) by the Extraordinary Session of the African Union Conference. The Lomé Charter (as it was named) draws the new African architecture of maritime security and the modalities to develop the Blue Economy of the continent. It is the new pan-African legal instrument that represents the latest stage in the progressive engagement of the African Union in the governance of the seas and oceans.¹

The Lomé Charter builds on (i) the Code of Conduct Concerning the Repression of Piracy, Armed Robbery Against Ships and Illicit Maritime Activity adopted in 2013 in Yaoundé (Cameroon)² as well as (ii) the African Union 2050 Integrated Maritime & Ocean Strategy (AIM 2050).³ Among its overarching objectives, the Charter aims at:

i. Preventing and suppressing national and transnational crime including terrorism, piracy, armed robbery against ships, drug trafficking, smuggling of migrants, trafficking in persons as well as illegal, unreported and unregulated (IUU) fishing; and

ii. Protecting the marine environment and promoting a sustainable Blue Economy.

Further, the Charter calls on each African State (where appropriate) to (i) harmonise its national laws to conform with the relevant international legal instruments including UNCLOS, SOLAS and the Protocol of the November 2005 Convention for the Suppression of Unlawful Acts Against the safety of Maritime Navigation and (ii) train the staff responsible for their implementation, in particular, the personnel within the justice system.⁴ However, despite its ambitious objectives, it is important to underline that the Lomé Charter is not legally binding and therefore runs the risk of becoming a simple wish list. Indeed, it asks member countries to just‘do their best’to implement its provisions. This soft law will, obviously, not have the catalytic effect to move forward the African maritime agenda. In addition, not all the 38 coastal states were represented at the Extraordinary Session of the African Union Conference in Lomé.

II - The Republic of Guinea New Maritime Code

On 26 October, 2018, the Parliament of the Republic of Guinea passed a Bill introducing the new Merchant Marine Act, which replaces that of 1995. In passing this new Act, the government of Guinea (GoG) has confirmed its determination to modernise the country’s maritime laws and implement the recommendations of the IMO Audit Report. Indeed, the new Act incorporates the major international maritime conventions including, the Rotterdam Rules (to which the country is a party), the IMO International Ship and Port Facility Security (ISPS) Code and the Port State control and Flag State legal obligations, among others.⁵ This reform of the Merchant Marine Code is expected to be completed by the adoption of several regulatory instruments (decrees, ministerial orders etc) as well as the setting up of a new institutional framework designed to facilitate its implementation.

Other West African countries, including Senegal, are in the process of revising their maritime legislation.

III - The Convention on Cooperation in the Protection, Management and Development of the Marine and Coastal Environment of the Atlantic Coast of the West, Central and Southern African Region: New Protocols (The Abidjan Convention)

The Abidjan Convention was adopted on 23 March 1981 and entered into force in 1984. It covers a marine area from Mauritania to South Africa, which has a coastline of over 14,000km. It provides an overarching legal framework for all marine-related programmes in West, Central and Southern Africa. Africa’s Atlantic coast is rich in natural resources, biodiversity and marine eco-systems. However, many natural and human factors, such as pollution, climate change or population growth, threaten an important number of these fragile ecosystems.

The Convention’s main objective is to ‘protect, conserve and develop’ this marine area and its resources for the benefit and well-being of its people.

On 2 and 3 July 2019 , in Abidjan (Ivory Coast), the Plenipotentiaries of the three sub-regions of West, Central and Southern Africa got together and agreed on collective instruments to lay down the foundations for the sustainable management of marine and coastal resources to improve the livelihood of coastal populations.

As stated by Mr Abou Bamba, Executive Secretary of the Abidjan Convention, ‘the much needed economic transformation of African countries will be achieved by considering the Blue Economy principles, which shall unlock the economic potential of African coastal nations. The long-term economic benefits of the sustainable management of marine resources have been proved all over the world. It is time now that we make it happen in Africa’.⁶ The four Protocols relate to the following:

• Pollution from land-based sources and activities;

• Environmental norms and standards related to offshore oil and gas activities;

• Integrated coastal zone management; and

• Sustainable mangrove management.

The Integrated Coastal Zone Management Protocol will promote the integrated planning and coordinated development of the coastal zone for the benefit of present and future generations.

The Mangrove Protocol will harmonise principles and set modalities for managing mangrove ecosystems and establish rules for environmental protection and conservation of mangroves within the geographic scope of the Abidjan Convention.

The Oil & Gas and Land Based Sources and Activities (LBSA) Protocols will also play an equally important role in the implementation of the Sustainable Development Goal (SDG 14) in the area of the Abidjan Convention.⁷ Many of the coastal states in West Africa, including Senegal, have made huge offshore hydrocarbon discoveries, the exploitation of which could pose a significant threat to the marine ecosystems.

As mentioned above, the objective of these Protocols is to provide Member States with regional cooperation instruments aimed at improving the management of coastal zones and the marine environment.

This new Abidjan Convention is considered as an unprecedented contribution to the Regional High Seas Conventions.

Notes

[1] Prof. Andrea Caligiuri in Paix et Sécurité Européenne et Internationale  No 6-2017 https://revel.unice.fr/psei/index.html?d=1454

See also https://au.int/en/treaties/african-charter-maritime-security-and-safety-and-development-africa-lome

[2] www.imo.org/en/OurWork/Security/West 

[3] Africa/documents/Code_of-conduct signed from ECOWAS

https://au.int/sites/default/files/newsevents/workingdocuments/33832-wd-africa_union_3-1-pdf

[4] Article 8 of the Lomé Charter. cf note (1) above

[5] Dr Aboubacar Fall was leading the Legal Team which drafted the 2018 Maritime Code of the Republic of Guinea. See www.atoo.ci/2018/10/26/adoption-d’un-nouveau-code-de-la-marine-marchande 

[6] Mr Abou Bamba, Executive Secretary of the Abidjan Convention in ‘The New Abidjan Convention Protocols To Transform The Continent’s Ocean Governance’12 July 2019 https://abidjanconvention.org/new-abidjan--convention-protocols-transform-continents-ocean-governance

[7] Dr Habib El Habr, UNEP Coordinator of the Global Programme of Action for the Protection of the Marine Environment from Land Based Activities (GPA) https://abidjanconvention.org/new-abidjan--convention-protocols-transform-continents-ocean-governance

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