Navigating The Waters: Prospects And Perils Of The 2016 African Charter On Maritime Security, Safety, And Development

By Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

INTRODUCTION

For decades, the vast expanse of African waters remained largely unguarded against security threats and environmental risks, hindering development and threatening vital resources. But this tide has turned. Rising piracy and escalating dangers spurred the African Union to forge a unified response –Africa’s Integrated Maritime Strategy (AIMS 2050). Culminating in a landmark legal instrument, the Lomé Charter, this strategy represents a pivotal moment in Africa’s maritime journey.[1]

This document, adopted in 2016, stands as the foremost legal framework for maritime security and development on the continent. It transcends the limitations of previous soft law instruments like the Djibouti and Yaoundé Codes of Conduct, encompassing broader spheres previously untouched.[2] While only 31 member states have formally ratified the Charter, its impact extends further. Signatory states, by virtue of the principle of pacta sunt servanda (treaties must be kept), are bound to its core principles even before formal ratification. This interim obligation, enshrined in the Vienna Convention on the Law of Treaties, necessitates good faith adherence to the Charter’s essence, preventing actions that could undermine its purpose.[3]

The Lomé Charter marked a new dawn for Africa’s maritime domain as it is not just a document; it’s a declaration of intent, a collective affirmation of Africa’s commitment to securing its maritime future. This article will explore its specific provisions, analyze its impact, and assess the challenges that lie ahead on this voyage towards a secure and prosperous maritime Africa.

KEY PROVISIONS IN THE 2016 LOME CHARTER

The African Charter on Maritime Security, Safety and Development presents a comprehensive framework for safeguarding its member states’ maritime domains, encompassing vital provisions across several key categories. At its core, the Charter under the general provisions in chapter one prioritizes adherence to international obligations concerning human rights, humanitarian law, and broader principles like peace, security, stability, and development.[4]

Born out of a vital need to combat maritime crimes and protect the marine environment, the Charter fosters cooperation on multiple fronts. It compels states to collaborate in tackling transnational crimes like piracy and terrorism. Additionally, it promotes coordinated efforts to implement maritime safety and development policies, enhance awareness among coastal communities, and guarantee landlocked states’ access to maritime resources.[5]

Chapter II of the Charter delves deeper into crime prevention and control measures within the maritime domain. State parties are bound to address the root causes of criminal activity by bolstering employment opportunities, strengthening social cohesion, and improving law enforcement capacities. The Charter emphasizes the establishment of national coordinating structures, robust cooperation between flag states, and the creation of a dedicated Maritime Security and Safety Fund.[6]

Further solidifying its commitment to a secure and prosperous maritime future, the Charter champions good maritime governance. It underscores the importance of information exchange, effective coordination, and the development of sound migration policies to combat human trafficking and illegal migration.[7] Furthermore, it encourages the sustainable development of the Blue/Ocean Economy, urging states to explore their maritime resources responsibly, promote sustainable practices, and formulate policies for fisheries and aquaculture.[8]

The Charter’s emphasis on regional and continental cooperation is evident in its call for joint efforts to combat transnational organized crime, establish information exchange platforms, develop early warning systems, and address the challenges posed by climate change (Cooperation section). It actively encourages fostering awareness about the maritime sector, conducting scientific research campaigns, and forging collaborative frameworks for crime prevention at sea (Cooperation section).

Monitoring and control mechanisms are enshrined in Articles 41 – 45 of the Lome Charter, establishing a designated Committee responsible for overseeing the Charter’s implementation. State parties are obligated to submit periodic reports, cooperate fully with the African Union Commission, and resolve any disputes through peaceful means as enshrined in Article 45. The Charter further prioritizes the widest possible dissemination of its provisions, prohibits misinterpretations, and outlines procedures for signature, ratification, accession, reservations, withdrawal, and amendment.[9]

IMPACTS OF THE 2016 LOME CHARTER

The 2016 Lomé Charter represents a significant milestone in Africa’s collective efforts to address maritime security challenges. Enacted as a legal framework to implement the ideals and goals outlined in the AIM Strategy, the Charter has both positive implications and challenges for the continent. The impacts include;[10]

1. The Lomé Charter has facilitated regional collaboration, as evidenced by the signing of the Charter by 31 countries during the 26th Extraordinary Summit of Heads of State and Government. The Charter acknowledges the Regional Economic Communities (RECs) and their willingness to cooperate through their respective maritime strategies.[11]
2. The Charter recognizes the importance of international partnerships by allowing for collaboration with the Indian Ocean Commission and the Gulf of Guinea Commission, in addition to the Commission of the African Union. This reflects a commitment to working together for a stable and secure maritime environment.[12]
3. The Lomé Charter provides a legal framework for addressing maritime security concerns, offering a structured approach to combatting maritime crimes and ensuring the safety and security of the maritime domain.[13]
4. While criticisms exist regarding the Charter’s focus, it does create avenues for sustainable development, through promotion of a ‘flourishing and sustainable Blue/Ocean economy,’ and raising the ‘level of social welfare.[14]

CHALLENGES OF THE 2016 LOME CHARTER

The African Charter on Maritime Security and Safety and Development, commonly known as the Lomé Charter, stands as an ambitious blueprint for securing the African continent’s vast maritime domain. It envisions a future where diverse threats – from piracy and terrorism to illegal fishing and environmental degradation – are effectively countered through regional cooperation and coordinated action. However, translating this vision into reality faces a multitude of challenges that threaten to undermine the Charter’s potential significance, they include;

1. The Unbinding nature of the Charter: In the heart of the Lome Charter’s lies weaknesses due to its non-binding nature. Unlike a treaty, its provisions rest on voluntary commitments, lacking the inherent teeth of international law. This renders its lofty goals susceptible to the vagaries of individual states’ political will and capabilities. Eagerness to address maritime threats may be dampened by resource constraints, competing priorities, or even resistance to perceived infringements on sovereignty. As a result, the Charter’s ambitious agenda risks becoming hostage to the uneven realities of African nations.[15]
2. Ambiguity: Further compounding the challenges is the Charter’s occasional descent into ambiguity. Article 8, for instance, urges states to “harmonize national laws with UNCLOS,” a laudable objective but one lacking clear benchmarks or timeframes. Such vagueness creates room for conflicting interpretations and inconsistent implementation, potentially weakening the Charter’s overall effectiveness. Similarly, Article 11’s provisions outlining the Maritime Security and Safety Fund suffer from a lack of crucial details, leaving practical questions about resource allocation and disbursement unanswered. This opacity casts a shadow over the Charter’s practical viability and fuels uncertainty among member states.[16]
3. Lack of Capacity and Poor Commitment: The Charter’s dependence on individual states’ capacity presents another formidable hurdle. Article 15, for example, calls for enhanced maritime law enforcement capabilities, but does not address the stark reality that many African nations struggle with limited resources and insufficient infrastructure. The absence of tangible consequences for non-compliance only adds to the challenge, potentially creating a two-tiered system where well-equipped states bear the brunt of the burden while others fall behind. Furthermore, the absence of a dedicated coordinating body within the African Union undermines effective implementation at the regional level. The lack of a central clearinghouse for information sharing, capacity building, and coordinated action significantly weakens the Charter’s operational potential.[17]

RECOMMENDATION

Despite these challenges, the Lomé Charter remains a significant step towards a more secure maritime future for Africa. Its very existence underscores the continent’s collective recognition of the threats posed by maritime insecurity and its commitment to joint action. Moving forward, addressing the Charter’s flaws and strengthening its implementation mechanisms will be crucial. This requires a multi-pronged approach that:

• Elevates the Charter’s legal status: Exploring avenues to enhance the Charter’s binding nature, perhaps through an additional protocol or subsequent agreement, would provide its provisions with much-needed teeth.
• Embraces clarity and specificity: Revising ambiguous language and adding crucial details, particularly in areas like the Maritime Security and Safety Fund, would streamline implementation and foster greater commitment from member states.
• Fills the missing pieces: Integrating provisions addressing issues like illegal migration at sea would demonstrate the Charter’s ability to adapt to evolving maritime threats and bolster its relevance.

CONCLUSION

The Lomé Charter stands as a testament to Africa’s collective recognition of the multifaceted threats plaguing its maritime domain. Yet its ambitious vision for a secure African maritime domain faces a tempestuous tide of challenges. Non-binding provisions, ambiguous clauses, resource disparities, and glaring omissions threaten to capsize its noble aspirations. While the challenges are undeniable, they should not be treated as insurmountable barriers. Instead, they serve as a crucial roadmap guiding the evolution and strengthening of the Lomé Charter. Through unwavering commitment, targeted revisions, and persistent collaborative efforts, Africa can transform the Charter from a mere aspiration into a potent tool for securing its maritime future. This success, beyond safeguarding vital economic arteries and coastal communities, holds the potential to unlock a new era of maritime prosperity and stability for the entire continent.

Snippet: Lomé Charter aims for a secure African maritime future but faces hurdles. Challenges include a non-binding nature, unclear provisions, and capacity gaps. Solutions involve strengthening legal force, boosting clarity, and addressing resource constraints.

Keywords: Nigeria’s Maritime Security, Terrorism, Piracy, Lomé Charter, Illegal fishing, Blue Economy, Human Trafficking and Sustainable Development.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Maritime Law and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Janet Udoka

Janet is a member of the Corporate and Commercial Team at OMAPLEX Law Firm. She also holds commendable legal expertise in Maritime Law.

She can be reached at janet.udoka@omaplex.com.ng

[1] P. Britts & M. Nel “African Maritime Security and the Lome Charter: Reality or Dream? (2018) African Security Review 27 (3-4) 226 – 244 Available @ (PDF) African maritime security and the Lomé Charter: Reality or dream? (researchgate.net)

[2] Barthelemy Blede and Timothy Walker, “Fulfilling the Promise of the Lome Maritime summit” (2016) Available @ Fulfilling the promise of the Lomé maritime summit – ISS Africa

[3] Article 26, Vienna Convention on the Law of Treaties 1969

[4] Article 1 – 2 of Lome Charter 2016

[5] Article 3 of Lome Charter 2016

[6] See Article 5, 6, 7, 8, 9, 10 of Lome Charter 2016

[7] See Article 12, 13, 14, 15 of Lome Charter

[8] Article 16 of Lome Charter 2016

[9] See 41, 42, 43, 44, 45 of the Lome Charter 2016

[10] Blédé, B., and T. Walker. ‘Fulfilling the Promise of the Lomé Maritime Summit’. Institute for Security Studies, October 21, 2016. https://issafrica.org/iss-today/fulfilling-the-promise-of-the-lome-maritimesummit. Accessed 24th January, 2024.

[11] Ibid

[12] Ibid

[13] Ibid

[14] Ibid

[15] L. Otto, “Over-promise, Under-deliver: The Disappointment of the Lome Charter” Issue 18 Maritime Security Briefings, Centre for Trust, Peace & Social Relations Coventry University Available @ maritime-security-briefing-18.pdf (coventry.ac.uk) accessed 22^nd January, 2024; Article 6 of the Charter

[16] Oluseyi Oladipo, “Co-operation as a Tool for Enhancing State Capacity to Fulfill Obligations of the Lome Charter” (2017) Issue 3 Conflict Trends Available @ Cooperation as a tool for enhancing state capacity to fulfil obligations of the Lomé charter | Conflict Trends (journals.co.za) accessed 22^nd January, 2024.

[17] Wilton Park, Maritime Security: Strengthening international and Interagency Cooperation (2019 Conference Report Available @ Maritime Security: Strengthening International and Interagency Cooperation (researchgate.net) accessed 22^nd January, 2024.