Why Africa Must Resolve Its Maritime Boundary Disputes

This article was external pageoriginallycall_made published by the external pageInstitute for Security Studiescall_made on October 2015.

Summary

African maritime boundary disputes, unless resolved in a concerted and timely manner, will imperil both the short and long-term implementation of maritime policies and strategies. African states and stakeholders must prioritise boundary dispute resolution if vital maritime economic development is to occur. This brief first outlines the background against which maritime boundary disputes occur in Africa, and explores why such disputes are a threat to maritime security. This is followed by an overview of the responses and mechanism that can resolve disputes. The third section explores recent contestations and how they are being, or might be, resolved. Some recommendations are made in the final section.

Successfully resolving maritime boundary disputes requires states to overcome a complex and underexplored set of highly technical and political challenges. This is sometimes complicated by the terms and principles used in the discourse. For instance, the words boundary and border are often used interchangeably. In this brief, boundary will refer to the lines that strictly distinguish the sovereign territory of one state from another. The word border also refers to the territory adjoining the boundary and the various political, economic and social practices that occur between people in these areas.

Background to African boundary disputes

The territory of a state is determined by lines that divide the territory of that state from others. Such boundaries can be demarcated, delineated or delimited. On land, a fence or markers will give a physical indication of a boundary, but such demarcation is hardly possible at sea. Although buoys can be used, these could be removed or damaged, and the numbers required would be huge. Delineation is thus done by means of a set of coordinates that determines the territorial extent of a state.[1] A rich literature exists on resolving boundary disputes on land, but the maritime domain is yet to prominently figure in African boundary and/or border studies.

Post-colonial African states have faced numerous challenges in the process of consolidating their sovereignty. Members of the Organisation of African Unity (OAU) agreed that upon independence, African states would retain their inherited colonial boundaries.[2] This froze the many boundaries in place. Issues regarding both maritime boundary delineation and management formed a small, but largely neglected part of this process.[3] These issues were set aside or ignored at a time when competing priorities existed with regard to land borders. The maritime domain took a long time to assume the importance it is now perceived to have (a phenomenon often referred to as ‘sea blindness’). Maritime boundary disputes, many long dormant, are increasingly Exacerbated by a growing interest in exploring and exploiting natural resources. At present notable border disputes have arisen between Côte d’Ivoire and Ghana, and Kenya and Somalia. [4]

A secure maritime domain is becoming a vital part of a country’s overall sense of security and economic consideration. It is seen as increasingly indispensable in the context of heightened tensions over the exploration for and discovery of oil in Africa. The interest of states in claiming maritime areas is based on a number of factors. Firstly, improvements in the technological ability to explore and access resources mean the economic viability of such resources has improved. Second, there is growing interest by established and emerging oil companies, and by African states, to open new oil fields, which means that better deals can be secured. The third factor is the quality of African oil and the advantageous geopolitical location of the continent’s oil fields relative to Europe and the USA.

However, the location of oil fields and natural resources deposits can result in considerable complications when states unilaterally determine and apportion exploration blocks that infringe upon areas of disputed ownership by a neighbouring state.[5] Exploration blocks are delineated by strict lines, yet oil fields often overlap maritime boundaries. The response to such actual or perceived infringements frequently includes a threat of conflict or war, and this has greatly complicated the development of oil industries in Africa. Conflict deters investment and exploration, and this can heighten the antagonistic relationship between rival states.

This situation can have a destabilising effect on the fight against growing maritime crime and piracy. The effective countering of piracy requires cooperation between states, which is jeopardised if states identify other states as a threat to their national interests and sovereignty. Antagonism and frustration over perceived infringements of economic interests have yet to boil over into open conflict between African states, but the potential for this cannot be dispelled out of hand. Piracy has raised awareness of the vulnerability of the maritime domain, while numerous counter-piracy campaigns have increased awareness of other maritime crimes such as human and drug trafficking.[6] It has also exposed the maritime weaknesses of individual states; most African states possess a miniscule navy or coast guard and have difficulty in undertaking the necessary counter-activities in their waters.[7]

If left unaddressed, disputes over maritime boundaries and competing claims to resources could seriously hinder or even scupper efforts to construct regional maritime security communities, such as combined economic zones and joint anti-crime operations. It would deal a heavy blow to efforts to create an African ‘Blue Economy’ as envisioned in the 2050 Africa’s Integrated Maritime Strategy (2050 AIMS). The notable dispute that exists between Ghana and Cote d’Ivoire is in part responsible for hindering West African regime building.[8] Meanwhile, East Africa is the location of two types of disputes, one of which concerns the maritime boundary between Kenya and Somalia, and the other the Lake Victoria boundary between Uganda and Kenya.[9] Another notable dispute concerns the boundary between Malawi and Tanzania and the concomitant sovereignty over sections of Lake Malawi.[10] Even though the Lake Victoria and Lake Malawi disputes concern international boundaries, there is the added challenge of the UN Convention of the Law of the Sea (UNCLOS) not being applicable to lakes. This lacuna requires urgent consideration, given the definition of the African Maritime Domain (AMD) located in 2050 AIMS.

The African Maritime Domain

2050 AIMS forms the departure point for any discussion on African maritime security. It is an openly available signifier of African maritime intentions, and is particularly significant in the absence of national and regional strategies.[11] 2050 AIMS defines the end goal and gives the ways and means (indicators), which, if properly implemented and adhered to, are expected to enable significant wealth creation as part of a safe, secure and sustainable African maritime economy. The vision is set out as follows: ’The overarching vision of the ... strategy is to foster increased wealth creation from Africa’s oceans and seas by developing a sustainable thriving blue economy in a secure and environmentally sustainable manner’.[12] The strategy was adopted in January 2014 and is presently undergoing a round of evaluation. It is a major, albeit ambitious, document containing the framework, vision and principles that will anchor efforts to develop an African maritime economy and create maritime security.[13]

One pertinent aspect that is notable by its absence from 2050 AIMS is the impact of the AMD definition upon efforts to extend state jurisdiction and sovereignty over the seas and oceans, and how this will affect African international relations. The AMD definition is comprehensive. It pertains to ’all areas and resources of, on, under, relating to, adjacent to, or bordering on an African sea, ocean, or African lakes, intra-coastal and inland navigable waterways, including all African maritime related activities, infrastructure, cargo, vessels and other means of conveyance. It also includes the air above the African seas, oceans, lakes, intra-coastal and inland navigable waterways, and to the oceans’ electromagnetic spectrum as well.’ [14]

This broad definition tries to capture all relevant jurisdictional areas as well as possible human activities occurring at, in, under or concerning the sea. However, 2050 AIMS goes further by ambitiously including internal or inland waters, such as lakes and rivers. This starkly contrasts with customary maritime practice and maritime legal regimes elsewhere in the world, including UNCLOS. The strategy notes the importance of delimited maritime boundaries as part of the vision, but restricts itself to an assertive call to states to resolve disputes peacefully, pay greater attention to making claims, and ensure that they meet the obligations of UNCLOS and other regimes. This leaves the resolution of boundary disputes up to states without providing any guidance, or ensuring adherence to applicable international legal principles. Nevertheless, the implementation of 2050 AIMS and other REC or national strategies should ensure that a suitable regime for AMD boundary dispute resolution assumes greater significance than has been the case until now.

The maritime domain is defined both as a geographical area and an area that contains numerous activities, preferably marked by instances of cooperation, collaboration and increasing coordination between stakeholders (predominantly states).[15] To divide this vast area and its array of activities so that the activities can be administered and managed peacefully, states are encouraged to claim and enforce sovereignty over their domains. Maritime domains comprise many areas or zones, each with varying degrees of state jurisdiction. For instance, an Exclusive Economic Zone (EEZ) will contain resources to which only one state can lay claim and over which only that state has sovereignty.

UNCLOS framed governance challenges as amenable by applying technical concepts that increased the presence and obligations of all states at sea by increasing the total area that states could claim as their territorial waters. It also introduced the revolutionary concept of the EEZ. Under the high-seas conventions that existed prior to UNCLOS, it was customary for the territorial waters of states to terminate three nautical miles offshore. The sea beyond this was the start of the high seas over which no state had sovereignty. After UNCLOS came into force, it became possible for states to claim and possess a belt of territorial waters up to 12 nautical miles from their shore.[16] A contiguous area of 24 nautical miles could also be claimed. Furthermore, states were given the right to claim an EEZ extending 200 nautical miles from shore. [17] Exclusive economic rights may be exercised in this area, as long as in so doing they do not prejudice the two fundamental rights of other states – freedom of navigation and innocent passage.[18] In the EEZ, the state is responsible for safeguarding all resources from exploitation, but has the right to lay claim to and develop the resources in a legal and sustainable manner.

UNCLOS gives states the right to exploit resources within an area that is determined/measured from baselines along the shore, a process that can be complicated in some places by islands, deltas or an indented or concave shoreline.

Maritime boundaries have value because they determine which areas of the sea fall under the jurisdiction and sovereignty of a particular state. However, there is a crucial distinguishing factor between land and maritime boundaries, namely that some resources, such as fishing stocks, are highly mobile and thus easily traverse boundaries. This also applies to transnational threats such as criminals, pirates and terrorists, or environmental threats such as pollution. Given the transnational nature of both resources and threats, transnational solutions would seem to be the logical next step. Before this can be realised though, the affected boundaries have to be delineated to satisfy the interests of states and reduce tensions over their location.

Maritime boundaries and their importance for security

It is widely assumed that settled maritime boundaries enable stakeholders to establish and consolidate crucial maritime economic activities. These include, but are not limited to, fishing, deep-sea mining, tourism, oceanography and trade. However, each activity is susceptible to disruption by a neighbouring state, which may dispute the location of a boundary and deploy their navy or coast guard to enforce their claim. Given the broad definition of the maritime domain, maritime boundaries may also affect the extent to which another state can lay claim to an area of the sea, the airspace above and the seabed below.

States that extend their boundaries as permitted by UNCLOS, expect to take advantage of natural resources located within their maritime domain and to develop extractive industries in this domain. An extension of boundaries increases both a state’s perception of its national importance and the threats posed by neighbouring states or foreign actors, such as fishing fleets that may try and take advantage of the state’s lack of presence within its maritime domain.

The growing interest by states to define boundaries and maritime domains is frequently complicated by analyses and reports circulated through the media and social networks. Often these contain inflammatory and antagonistic rhetoric.[19] However, such reports do often contribute to a process whereby boundaries become increasingly securitised as observers and stakeholders demand greater attention to and investment in a state’s capacity to protect, monitor, deter and act against various maritime interlopers, including migrants and criminals. But this process is often insufficiently accompanied by bilateral or multilateral dialogue, and discussion regarding the adequacy of existing and envisioned institutions, resolution mechanisms and frameworks.

For instance, the SADC tribunal, which could have resolved maritime boundary disputes over Lake Malawi, became defunct as a result of Zimbabwean political developments precisely when it was most needed. The tribunal has only recently been resuscitated with a limited mandate. Even so, Malawi and Tanzania may still be unwilling to bring the dispute to the tribunal’s official attention.[20] A general reluctance to engage local resolution mechanisms can be widely observed and it is apparent that states rely upon the arbitration and adjudication facilities provided by international courts and tribunals, in particular the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS). [21] Even in circumstances where capable regional tribunals exist, states do not have the necessary trust in their impartiality. Ideally, the ICJ should be approached only as a last resort, and only once all other available African options have been exhausted.

2050 AIMS refers to two key institutions involved in the resolution of boundary disputes.[22] The first is ITLOS, which is a part of UNCLOS, and the second is the African Union Border Programme (AUBP). The ICJ is not mentioned. The AU created the AUBP in 2008 and gave it a mandate to support the peaceful resolution of disputes and thus comprises one of the core pillars of the programme. [23] The AUBP has published an informative guide to boundary resolution, as well as undertaking other vital work, but maritime disputes over boundaries on internal waters, as well as resolutions for external boundary disputes, cannot be handled either in the present or a suggested UNCLOS framework.[24]

Building boundary resolution capacity

Even though the technical issues are complicated, boundary disputes can be resolved. Involved are political considerations, economic interests and other factors. Political issues and economic interests can be destabilising, especially if they are perceived to be irreconcilable. Political interest is not only the cause of state intransigence over boundaries, but is also the major determinant for initiating, conducting and accepting decisions as regards the location of boundaries. While a disputed maritime boundary can be a source of insecurity and conflict, it can also become an area of cooperation. The resolution of maritime boundary disputes does come at the cost of time and resources, which in turn can inhibit the promulgation of alternative African mechanisms.

This is, however, not the case for disputes on international boundaries on African lakes.[25] Resolution in these instances would be aided by the development, or their strengthening where they already exist, of multilateral lake-specific regimes, lake commissions such as the Lake Victoria Basin Commission (LVBC) and institutions for governance such as regional tribunals, or the creation of bilateral treaties. While institutions listed would have an inherently managerial or scientific basis, they may constitute arenas in which cooperative activity can be encouraged and sustained.

The process of resolving disputes amicably is tough and a discussion of the aspects involved is beyond the scope of this brief. What is undisputed though, is that it is political will that will determine the resolution of a dispute. Once a decision has been reached, the settled boundaries will create sites of development. The decisions taken need to be balanced with the broader political objectives of political and economic integration outlined in documents such as 2050 AIMS and the various maritime strategies of the five African Regional Economic Communities (RECs). Actually, it is unclear how integration could proceed without first clarifying the location of boundaries and resolving disputes.

The political issues between states need to be addressed and, if necessary, discussion should be exhaustive within African forums. There are no models as such, but there are lessons to be drawn from disputes, especially the sovereignty dispute over the Bakassi peninsula. This dispute indicated that there must be space for involving international mediators: it was observed that Nigeria and Cameroon became more amenable to ICJ arbitration, in part because of the interest shown by the then UN Secretary-General, Kofi Annan.[26]

The preferred way of determining or adjusting maritime boundaries is to submit to a technical review.[27] Subsequent technical issues are not easily resolved. Watermarks and rivers shift location, making the determination of a final and permanent location difficult. Colonial history may make a decision unpalatable. Technical issues thus pose significant but surmountable obstacle to determining undisputed maritime boundaries and establishing peaceful relations.

A final option explored in both theory and practice is the implementation of alternatives that offer work-around concepts or, at best, transcend the boundary debate. These alternatives depend upon cooperation and a sharing or pooling of sovereignty. Proponents of this line of thought seek to reduce conflict and create mutual prosperity through the relevant parties pooling their sovereignty rather than disputing territory. Provisional means of overcoming disputes exist, such as Joint Development Zones (JDZ). A good example of this is between São Tomé and Príncipe and Nigeria. [28] This relatively novel concept has also found expression in 2050 AIMS as the Combined Exclusive Maritime Zone of Africa (CEMZA).

However, in the long-term, the alternatives are unrealisable without proper boundary delineation or the creation of JDZs, which may be prevented from coming to fruition by long-lasting disputes that could decrease the willingness of states to cooperate. While new concepts of sovereignty are being developed or explored in international law to overcome the basic sovereignty dilemma, the ideas discussed above remain tentative, underutilised and in need of further research and opportunity to assess their applicability and implementation.

Conclusion and recommendations

Underlying African maritime boundary issues, if left unresolved, could have a disastrous effect on efforts to create maritime security and the development of particular countries. Resolving disputes has political and economic repercussions for the states involved and may, ultimately, have a great impact upon regional cooperation, collaboration and moves towards integration as outlined in documents such as 2050 AIMS and the AU Agenda 2063. There are many technical and political challenges to resolving disputes. Delimitation improves overall maritime security by removing sources of international dispute, and in so doing removing an otherwise significant impediment to regional integration.

States are now seeking regional solutions in line with a continental vision focused on developing a ‘blue economy’ based upon a common or integrated sovereignty. They are unlikely to achieve this ambitious objective without first delineating maritime boundaries. Apart from this, the mismatch between political priorities and goals as provided for in strategies and policy documents, and the institutional capacity, resources, time and political will required to determine cases in a legal, legitimate and acceptable manner must be removed.

Future efforts to resolve disputes, either through existing frameworks or by developing new adjudication mechanisms, need to take cognisance of the fact that Africa foresees that its lakes and rivers will be part of the maritime domain. Disputes here will also require attention and arguably resolution would best be achieved within regional tribunals or lake basin commissions. Maritime boundaries at sea need to be subjected to bilateral, regional, continental or, ultimately, international adjudication.

The following recommendations should also be considered:

• African states should ensure that their claims are consistent and compliant with the relevant UNCLOS provisions concerning maritime boundaries for territorial, contiguous and EEZ waters.

• States should seek peaceful resolutions through bilateral and regional resolution mechanisms where possible, rather than internationalising disputes and seeking recourse through the ICJ before they have truly exhausted all African options.

• States must be prepared to submit their disputes to international arbitration and to accept the decisions of the arbitrators or adjudicators.

• States should both deepen and broaden their engagement with and support of the implementation process of 2050 AIMS.

• While technical impediments to the delimitation of a boundary are significant, progress towards a decision regarding the location of a boundary and the jurisdiction and sovereignty over resources will best occur once sufficient political will has been generated at both national and regional levels.

• Stakeholders should engage in further research on and analysis of the long-term strategic objectives of 2050 AIMS, including CEMZA and JDZs. To succeed and also achieve the goals of 2050 AIMS, this requires a greater institutionalization of maritime activities and relationships, and the exploration of how best to pool and share sovereignty

Acknowledgements

This policy brief has been made possible with support from the government of the Netherlands. The ISS is also grateful for support from the other members of the ISS Partnership Forum: the governments of Australia, Canada, Denmark, Finland, Japan, Norway, Sweden and the USA.

Notes

[1] See the African Union Border Programme (AUBP), 2013,Delimitation and demarcation of boundaries in Africa: general issues and case studies, external pagehttp://www.peaceau.org/en/page/27-au-border-programme-aubpcall_made (accessed 8 August 2015).

[2] F. Ikome, Africa’s international borders as potential sources of conflict and future threats to peace and security, 2012, ISS Paper 233.

[3] Brenthurst Foundation, Maritime development in Africa: an independent specialists’ framework, Discussion Paper 2010/03; M Ncube and ML Baker, Beyond pirates and drugs: Unlocking Africa’s maritime potential and economic development, African Security Review 20(1), 2011.

[4] M S Nor, Somalia to present case at UN court in maritime spat with Kenya, 8 July 2015, www.bloomberg.com/news/articles/2015-07-08/somaliato-present-case-at-un-court-in-maritime-spat-with-kenya (accessed 1August 2015).

[5] RS de Soares, Oil and Politics in the Gulf of Guinea. London: Hurst, 2008.

[6] United Nations Office on Drugs and Crime (UNODC), Transnational organised crime in West Africa: a threat assessment, UNODC East Africa, 2013.

[7] A Vogel, Navies versus coast guards: defining the roles of African maritime security forces, Africa Centre for Strategic Studies, 2009, Africa Security Brief No. 2.

[8] B Blede and A Diouf, Gulf of Guinea: who will win the oil battle? ISS Today, 24 April 2015, https://www.issafrica.org/iss-today/gulf-of-guinea-who-willwin-the-oil-battle (accessed 1 August 2015); KD Ali and M Tsamenyi, Faultlines in maritime security: analysis of maritime boundary uncertainties in the Gulf of Guinea, African Security Review 22(3), 2013, 95–110.

[9] W Wekesa, Old issues and new challenges: the Migingo Island controversy and the Kenya-Uganda borderland, Journal of Eastern African Studies 4(2), 2010, 331–340.

[10] A Lalbahadur, Malawi vs Tanzania vs SADC: regional dispute resolution bites the dust, South African Institute of International Affairs, Opinion and Analysis, 13 August 2013, www.saiia.org.za/opinion-analysis/malawi-vstanzania-vs-sadc-regional-dispute-resolution-bites-the-dust (accessed 11 March 2015).

[11] This could be because of their confidential nature, or because they were non-existent at the time of writing.

[12] 2050 AIMS, paragraph 18. For the 2050 AIM strategy, see http://www.AU.int/Maritime (accessed 1 August 2015).

[13] Brenthurst Foundation, Maritime development in Africa: an independent specialists’ framework, Discussion Paper 2010/03; M Ncube and ML Baker, Beyond pirates and drugs: unlocking Africa’s maritime potential and economic development, African Security Review, 20(1), 2011; U Engel, The African Union, the African peace and security architecture, and maritime security, African Security 7(3), 2014: 207–227; C Bueger, Piracy studies: academic responses to the return of an ancient menace, Cooperation and Conflict 49(3), 2014, 406–416.

[14] See page 1 of Annex B, Definitions of 2050 AIMS.

[15] PM Wambua, Enhancing regional maritime cooperation in Africa: the planned end state, African Security Review, 18(3), 2009: 45–59.

[16] United Nations Convention on the Law of the Sea (UNCLOS), Article 15, http://www.google.co.za/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CB4QFjAA&url=http%3A%2F%2Fwww.un.org%2Fdepts%2Flos%2Fconvention_agreements%2Ftexts%2Funclos%2Funclos_e.pdf&ei=lU5XVLulL5TcauaWgsgO&usg=AFQjCNEIbPwVYkXZEoDCYvidOjPyhLyfNw&sig2=VMYy16PlpxgTZTVSl-damw&bvm=bv.78677474,d.d2s (accessed 1 August 2015).

[17] Ibid., Article 74.

[18] As long as a ship does not present a risk to the state through whose waters it is transiting/making passage, that state may not interfere with its passage.

[19] J Mlenga, The role of the Malawi media in the Malawi-Tanzania border Dispute, Practitioner Notes, no. 1, 2013, University of Pretoria: Centre for Mediation in Africa.

[20] A Lalbahadur, Malawi vs. Tanzania vs. SADC: regional dispute resolution bites the dust, 2013, South African Institute of International Affairs, Opinion and Analysis. http://www.saiia.org.za/opinion-analysis/malawi-vstanzania-vs-sadc-regional-dispute-resolution-bites-the-dust (accessed 2 August 2015).

[21] The ICJ was established as part of the UN subsequent to the Second World War. Its cases are not limited to determining boundaries. Its prominence in African security discussions has often been in reference to boundary dispute resolution.

[22] See 2050 AIMS, paragraphs 58 and 59, 22.

[23] See AUBP, 2013, Delimitation and Demarcation of Boundaries in Africa.

[24] http://www.peaceau.org/uploads/au2013-en-delim-a-demar-of-boundgen-iss-a-studies-elec2.pdf (accessed 18 September 18 2014).

[25] W Okumu, Resources and border disputes in Eastern Africa, Journal of Eastern African Studies 4(2), 2010: 279–297.

[26] F Ikome, Africa’s international borders as potential sources of conflict and

future threats to peace and security, 2012, Institute of Security Studies

Paper 233.

[27] Chatham House, 2006, Summary of a meeting of the International Law

Discussion Group on 14th February, 2006. https://www.google.co.za/url?

sa=t&rct=j&q=&esrc=s&source=web&cd=8&cad=rja&uact=8&ved=0CEIQ

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2Fchathamhouse%2Fpublic%2FResearch%2FInternational%2520Law%2

Filp140206.doc&ei=MTZXVNrCHpPtavnWgtgK&usg=AFQjCNEBzvJuO5z

MFQjfGzTSWJafUc_eYQ&sig2=fsg1UuVfLZe6HnJBkapBVg&bvm=bv.786

77474,d.d2 (accessed 2 August 2015).

[28] RS de Soares, Oil and Politics in the Gulf of Guinea. 217.