Sea Control - Sea Control 262 - Africa's Combined Exclusive Maritime Zone with Dr. Vishal Surbun

Episode Date: July 4, 2021

Links: 1.  Africa’s combined exclusive maritime zone concept2. Border Governance in Africa: An African Union Strategy

Hey folks, Jared here. Several notes for you. First is the logo. We finally have a new logo. It's getting some final tweaks, but you should see it up in the next week alongside a post explaining what I tried to do with it. Next, I've talked about our feed. I'm going to keep talking about it. There are two existing Sea Control feeds out there. The current feed is labeled simply Sea Control, includes the phrase Simsex Flagship Podcast in its description. Once the new logo's up, it ought to be much easier to figure out which is the correct feed. But in the meantime, Sea Control, SimSec's flagship podcast, that's where you want to be. Please rate and review the new feed as well. Today, my guest is Dr. Vishal Surban, a senior lecturer at the

University of KwaZulu-Natal in Durban, South Africa. And we'll be discussing his paper on Africa's combined exclusive maritime zone. This episode was produced and edited by Taylor Fairless. Don't miss everything going on over at the website, simsec.org. The final call for articles for Project Trident is live. And we're partnering with Lockheed Martin and Naval Warfare Studies Institute at the Naval Postgraduate School for Emerging Technologies. We've also partnered with Transcomp for a series of articles on strategic sea lift. Those articles are running now. Great reception so far, and frequent listeners ought to recognize a lot of the bylines as well. Finally, I want to take the opportunity to recommend our partners in the SimSec Podcast

Network, The Bilge Pumps. You can find Alex, Jamie, Drack, and Apollo of Iron Brew Bottles wherever you download your podcasts. On that note, I'll turn it over to Kimbersman. You're listening to Sea Control, hosted by the Center for International Maritime Security. Aloha, shipmates, and welcome back aboard Sea Control. My guest today is Dr. Vishal Serban, and we'll be discussing his February 2021 article, Africa's Combined Exclusive Maritime Zone Concept. Dr. Serban, thanks for joining us. As a reminder, all the views express our own, not representative of any institution with which we might be associated.

Dr. Serban, would you mind introducing yourself to the listeners? Thanks, Jared, and thanks for inviting me. It's a pleasure to join you on this podcast. I'm an attorney and I hold a full-time senior lectureship in the School of Law at the University of KwaZulu-Natal in the port city of Durban in South Africa. I presently lecture maritime law courses and supervise dissertations of undergraduate and postgraduate students on the LLB and LLM degree programs. I just want to give a quick anecdote at this stage. I started lecturing in April 2009, and when I was asked to deliver my maiden lecture on some of my research interests, I had written a master's thesis on piracy at sea, and I thought I would deliver a lecture on this topic.

And I scanned online for some recent incidents, and I picked up a short blurb of a few lines on a ship that was hijacked a few days prior. And little did I realize at the time that this incident, the hijacking of the Musk, Alabama, would make global headlines and be depicted in a Hollywood movie. And that spurred me to continue my research in piracy law, and I wrote a doctoral thesis on universal jurisdiction over acts of piracy that extended

into territorial seas. And during the course of my research, the concept of the combined exclusive maritime zone popped up. In 2012, the African Union published the 2050 Africa's Integrated Maritime Strategy. So broadly speaking, what did that document set out to do and who signed it? All right, so it was the deteriorating maritime security situation that started round about in 2006 due to piracy and illegal fishing and the dumping of toxic waste that actually spurred African states into taking steps towards a more integrated approach to ocean governance and the African maritime domain. So the AU Assembly, the African Union Assembly,

called upon in 2009 the African Union Commission to develop a comprehensive and coherent strategy to combat these scourges. However, it was realized at the same time that an African governance framework should be based on the following premises. First, the African maritime domain is critical to the survival and sustainable development of the continent.

The capacity of African states to make the most of this African maritime domain is very limited overall. And third, this limited capacity has contributed to unacceptable levels of maritime insecurity. And finally, to address this insecurity, steps must be taken to create an integrated strategy that includes all other aspects of a healthy maritime domain. So taking into account these premises, the resultant strategy, the aims, was adopted by the AU Assembly in 2014, five years later. And it is actually far more comprehensive

than the mandate that was given in 2009. So if we look at the text of the aims, just very briefly it has a vision to foster increased wealth creation from Africa's oceans and seas and it says by developing a sustainable thriving blue economy in a secure and environmentally sustainable manner so the strategy by some has been described as like this a bold manifesto to of Africa's intent to harness the oceans for the advancement of its people so it's a soft law document, which is it's a compilation of overarching, concerted, multi-layered plans of actions. So there's a lot of C words that I'm going to come here. So it's a comprehensive, concerted, coherent, coordinated approach to government. So in other words, I would think

it's a planning document. So yeah, that's the AIMS strategy in a nutshell. What problem is it trying to solve? What is its purpose? the the combined exclusive maritime zone i'm going to refer to it by a by its acronym semza i think it's a little bit easier to to pronounce and i'm gonna i'm gonna thank you because we're gonna say it several times throughout here and uh saying it each time is going to be a handful but yeah semza absolutely yeah quite a catchy little acronym so so the semza is the first strategic objective of the aims. So in the definition of the CEMSA, it has been defined as a common maritime zone of all member states. So in other words, this is a spatial platform to develop and

implement common maritime affairs policies. So very briefly, in the zone, the African Union and its member states, what they will do is firstly, they will encourage efficient and environmentally sound intrastate transport. Second, it will facilitate collective efforts to reduce the risks of transnational security threats. Third, it will coordinate monitoring and control mechanisms to protect Africa's marine environment and fisheries. I mean, the African maritime domain across the continent is exceptionally large. So the sheer size of the domain creates these challenges in monitoring and control and enforcement. So this common zone is going to marshal all the resources that are available. It's also going to maybe promote

advocacy because if it were to come to fruition, you would have not just one country advocating on a territorial dispute, but you'd have the entire continent advocating for it. The one that comes to mind that's in the news a lot and very complex right now is Egypt and what's going on in the Eastern Mediterranean. Who is advocating for the CEMSA? Is it the countries with these large zones or is it smaller countries? Who's actually pushing it? Well, this actually is as an initiative of the African Union itself. So it first appeared in the Ames. And the Ames was a result of a lot of cross-cutting inputs from various African experts there it includes think tanks ngos academia and member states so prior to the adoption of the

aims there has been a lot of input that has been put into it and subsequently it has been referred to in other instruments so most importantly there's been a recent document called another strategy document called the african union strategy for better integrated border governance So in that border governance strategy, one of the objectives is to tackle insecurity, piracy, the dumping of toxic waste, illegal fishery, the illegal exploitation of shared resources. And a mechanism to achieve this is the development of the CEMSA and mechanisms for joint governance and the safety of the continent's sea borders. So the primary advocates of this is the actual African Union itself. I think that the member states themselves have not been the primary advocates because, you know, there's still a lot needs to be done to define what really the SAMHSA is. So once that process takes place, then I think member states, when they're going to adopt and implement those things into their domestic frameworks, then they will be in a position to advocate it further. I think the document, or maybe you used the phrase, space without borders. What are the implications of a space without borders in this instance?

You know, Jarrah, I think that's perhaps the most fascinating or intriguing question that underscores this SIMSA concept. So what it does, it envisages a broad common geographical region where states belonging to this region exercise specified joint or concurrent powers now for the purposes of cooperation. So presently, the African maritime domain is not a unitary zone. It's fragmented into almost 40 national maritime domains. So in that present framework, if we restrict the maritime zones to that paradigm, it excludes a lot of issue-specific multilateral area designations, whether by international bodies or not, that are in existence today. So there are regions in the African maritime domain that are delineated for different purposes,

functions or parameters that can otherwise overlap. So, for example, you would get fisheries management, You would get commercial shipping zones for emissions control. You would get zones for migratory species and conservation, such as whale sanctuaries. So holistically, we appreciate that marine diversity operates in a 3D space and can't be contained by man-made boundaries. We also get oceanographic and ecological parameters. So, for example, on the continent, you have eight large marine ecosystems and different ecological regions. They are regions created for intra-African transport and the safety and security of navigation, such as search and rescue regions and places of refuge for ships.

So the proponents of the CIMSA concept can find a lot of analogies in these broad cross-border cooperation systems. So essentially, Jared, what we're seeing here is a reimagination of maritime environmental management. It's quite bold and quite innovative if you just read the AIMS text in isolation. So it's a move away from paradigms of management that emphasize national boundaries and limits. So it reflects the nature of our marine environment as transboundary. So as I mentioned, the resources don't observe these national boundaries. And it reflects our shared heritage and history as a continent. So now one of the prominent scholars here in South Africa, Professor Franken, remarked that there is an attempt at infusing an African principle called Ubuntu into the ocean governance framework.

So what Ubuntu is, is that it speaks of togetherness and how our actions have an impact on others. So we are all connected and we only grow and progress through the growth and progression of others. And this isn't the first time there has been such a reimagination of the existing paradigm. Now, in the early 1970s, many newly independent African states were inspired by an address by a diplomat called Arvid Pardo in the UN General Assembly in 1967, where he called for a regime to effectively administer the resources of the ocean. And the developing countries, the newly decolonized African states, were very receptive to this address. So the subsequent role of African states in brokering the formulation of the EEZ concept during the Third United Nations Conference on the Law of the Sea was quite significant. So the EEZ was also a reimagination from the confines of territorial authority. See, the previous regime of the law of the sea spoke a lot about Mare Liberium, the freedom of the seas, and Mare Clausum. And this EEZ was a bit of a break from that. So it's not the, so we do have a kind of a precedent of reimagination. Yeah.

I was going to ask because I was just reading about this. Pardo, Maltese diplomat, also known as the father of UNCLAS, is that right? Yeah, that's right. Okay. Just want to be sure that I had the same person. You mentioned the national space and that you have 40 different maritime zones around the continent at the moment. What would this mean for ongoing maritime boundary disputes? Or are there fewer disputes than we realize? I mean, listeners of the podcast are pretty familiar with what's going on in the South China Sea and the various disputes there. We hear, I think, less about those disputes around the African continent. Well, I think just as an underlying point, I think that trans-boundary cooperation can occur even where ocean boundaries and areas remain contested. Now, there are some ongoing maritime boundary disputes, such as between Cote d'Ivoire and Ghana and Kenya and Somalia. But fortunately, there are no present armed military conflicts. And these disputes are being dealt with in diplomatic channels through the International Court of Justice and the International Tribunal for the Law of the Sea, for example. However, these, Jared, these can be quite protracted and take some time to resolve.

And that could hinder the expedient creation of the CEMSA. and the CEMSA provisions that are contained in the aims do not explicitly cater for the resolution of boundary disputes because they're just two clauses in the aims dealing with the CEMSA. However, there are mechanisms provided by the African Union Border Program and the African Union Constitutive Act holistically calls for the peaceful resolution of disputes. So is there anywhere in the African littoral where states are already effectively cooperating in a way that would serve as an example for the CEMSA? You know, I can cite several examples without going into too much detail of each of these. But from a security perspective, there are two very large anti-piracy agreements, one on the eastern seaboard of the continent, the Djibouti Code of Conduct.

and one on the western seaboard, the Yaoundé Agreement. And so there are a number of interesting examples like the successful delimitation of maritime boundaries between Yemen and Eritrea. Senegal and Guinea-Bissau put aside their differences and favoured joint development of resources. So we're seeing a lot of these cropping up, these joint development agreements.

In fact, Mauritius and Seychelles entered into an agreement that provides for the joint exercise of sovereign rights over the continental shelf. There's also a report of a regional fusion and law enforcement center for safety and security at sea. And this is a joint initiative between the United Kingdom and the Seychelles. there's also a zone of peace and cooperation in the south atlantic and it's a good example of a regional framework for cooperation so much has happened actually in the last decade so there's now i think that there's now a greater experience on the continent on a wide range of matters relating to joint cooperation so you're finding these terms used a lot joint cooperation agreements joint development agreements. So I think that there are a lot of positive developments happening

around that we can marshal some experience from that. And how, if at all, would CEMSA then fit with UNCLAWS? Okay, so the way in which the CEMSA provisions in the aims were formulated, it actually makes it very difficult to define its legal content precisely. And this is the part where I was quite interested because there's only two substantive clauses in the aims that speak to it. So presently, in the fragmented African maritime domain that we have, under the unclosed system, the coastal states presently exercise sovereignty over the internal waters and the territorial sea. They exercise jurisdiction over the contiguous zone and sovereign rights over the resources in the EEZ and continental shelf. So I guess one would ask if the CEMSA provisions

are read in isolation, the question arises, does this common maritime space without borders mean that the fragmented zones under UNCROSS would be replaced by this new common maritime zone and new limits delineated? Would exclusive sovereign rights to resources instead be pooled for the communal benefit of all Africans so this is these are questions that were raised by a lot of even like member states for example because people were you know loosely using the term the pooling of resources common sovereignty and it created a bit of misconception however if you read it if we read the aims more carefully there appears to be no indication that states should cede their exclusive sovereign rights. So the CEMSA definition provides that its

establishment is without prejudice to the maritime zones established under UNCLOS. And the aim states that nothing in it shall be construed or applied contrary to the sovereignty of any of the member states. So in essence, it appears that the CEMSA is an issue-specific combined zone that coexists with the maritime zones under UNCLOS. So, however, that being said, there's nothing in the law of the sea framework that prevents a state from sharing or delegating its competencies, whether it's enforcement or adjudicative. So, what is the difference between demarcation and delimitation, and why are those differences is important for the CEMSA? Okay, so delimitation, that is a political process that determines the

breadth and the extent of the shared maritime boundaries. And this is a process that would follow diplomatic channels. This is also a process that would be supported by the African Union Border Program, which has actually assisted with the delimitation of several thousand kilometers of interstate boundaries. Now, alongside this process is a more technical aspect of demarcation, which is the physical plotting of these boundaries primarily on nautical charts. Now, the Ames talks of a dedicated task force

to prepare a technical file demarcating the CEMSA's limits on the charts. Now, to date, this technical task force has not been established, So that's one of the primary obstacles to this CEMSA process. And you find that many of the charts in Africa are not up to date, and the hydrographic capabilities of a lot of the member states are inadequate. There's a lack of independent chart production, and some states are actually reliant on colonial era charts. In fact, one of my colleagues at the University of St. Andrews mentioned that some of the charts are still using fathoms and some really old, you know, measures that are not used in, you know, this transition to a metric system. Now, charts are primarily prepared for navigation instead of plotting jurisdictional limits and navigation is a high risk activity, especially when it comes to groundings and collisions.

So the lack of accurate and up-to-date charts compromises maritime safety. And there is a close relationship between the safety of navigation, the protection of the marine environment, such as preventing pollution from ships that have grounded and broken up. You know, the prominent one was the grounding of the Waukesha of the coast of Mauritius, creating quite an extraordinary amount of pollution. Final question. This proposal has been on paper for six years now. Probably too much to ask how you get to implementation or for you to lay out the roadmap to implementation. But what are the barriers to implementation and what do you think is a logical first step or first steps towards that goal? South Africa's own policy documents they actually acknowledge how South African diplomats have great skill in drafting memoranda of understanding policy statements and agreements but they lose momentum when it comes to implementing agreements and and following up on the promises of the benefits and I think this is something that's quite continental wide this kind of notion

But I can talk of some steps that could be taken, and there is quite a lot to be done. So the first thing is that the technical file must be prepared. You know, the SAMHSA clauses speaks of a technical file that will be prepared that plots out on nautical charts the limits of the SAMHSA. So once that's provided, then it will provide all the stakeholders with a much more clearer picture of the implications

of the SAMHSA concept. The second thing is that domestic legislation needs to be updated. And so some states, but the good news is that some African states have previously claimed excessive territorial seas, contrary to the UNCLOS regime. They have now passed legislation that brings their claims into conformity with UNCLOS. So domestically, the legislation needs to be in place. Also, a third thing is that states can preempt future contestations. So I'll give you an example. Some of the states like the Cape Verde, Mauritania and Senegal have agreed to delineate their respective continental shells to avoid future contestations. And this is prudent because there could be fresh boundary disputes when high value resources are discovered.

The fourth one that I want to speak about is to ensure transparency in reporting and access to data and critical statistics. Now, in the boundary dispute between Kenya and Somalia, each country accused the other of bad faith and ulterior motives. So that's something that we have to clear up and ensure transparency. Another one is the issue of sea blindness must be tackled. You know, Jared, when I lecture the maritime law class to the students, one of the things that I do is I ask them to pick up a political map of the world, do a Google search for a political map of the world. And so when you look at that Google map or the political map of the world, you'll see on the continents all the nation states in this kind of quilt work and colors and boundaries. But in almost all of the maps that you see on a Google search, the oceans is just depicted as this blue space. There isn't clear boundaries delineated.

And I think that when we introduce the legal regime created by UNCLOS, it comes as an epiphany to many of these students. And that one example just gives an indication of how you need to create a greater public awareness. because it's the public that to engage further with these issues. And an effective way to also galvanize political will is to see how such approaches are working in other parts of the continent. So I gave you some examples of some success stories. So we need to identify and share these success stories and lessons around Africa.

So that can be a little stimulus and incentive to work faster and to gain more momentum. And of course, one of the big issues is capacity building. You need to have the training and recruitment of maritime professionals. And that actually even includes the nurturing of academics. Here in South Africa, there are actually just a handful of academics that actually actively research the law of the sea, for an example. And the few that are there, they're quite old, and there needs to be a new generation of academics. You also have to engage in maritime infrastructure from the construction of piers and quay sides, port facilities, dockyards, shipyards, command centers, aids to navigation, hydrography infrastructure, maintenance facilities, training facilities. Also, this involves maritime surveillance and response capabilities like legal authorities, patrol vessels, operational equipment. And I think that the last positive thing is that South Africa is constructing a new multi-billion South African Grand Hydrographic Survey Vessel. And that will be one of the most sophisticated vessels to have ever been built in Southern Africa.

It's a 95-meter-long vessel with a 10,000 nautical mile range. So that's some positive news, you know, when we spoke earlier about how hydrographic concerns are quite, you know, important in defining the SIMSA limits. This is one example of something that's taking place that would be actually quite beneficial. Thank you very much, Vishal. That is all the time that we have for today. I'd like to thank my guest, Dr. Vishal Surban. Vishal, where can we find you online and what are you working on next? Okay, so the University of KwaZulu-Natal, we've got a little web page, there's a link to my profile there.

And what we're doing at the moment is the Nelson Mandela University here in South Africa. We are compiling a new encyclopedic set of volumes on the African response to the law of the sea. And one of the things that I'm working on is looking at all the domestic legislation on the continent relating to baselines. Baselines are the point from which the maritime zones are measured. And I'm looking at how the baselines are shifting in response to sea level change and looking at how the states have been responding in terms of their policy and their legislation. This publication should come out towards the end of the year, and I hope some of your listeners will get a chance to read through that. Yeah, and when it's published, please send me a link.

I'll go back and read it, and you can come on again. And we can bring on one of those young scholars that you're hoping will replace the older generation too and talk about it. But thank you for joining us today. To our listeners, thanks for tuning in, and we'll see you next time. © BF-WATCH TV 2021 Water, wine, both white and red, I'll pull it out of your shimbo now. So help me, Bob, I'm pulling the alley. Why are they pulling the alley?

Help me, Bob, I'm pulling the alley. Pull it out of your shimbo now.