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In 2007 the Gulf of Aden, one of the world’s busiest sea lanes, became the scene of numerous attacks by Somali pirates. Following a robust and coordinated multinational response, together with a good degree of “self-help”, notably the placing of armed security teams onboard transiting ships, attacks in this region have decreased significantly since 2012. However, in West Africa piracy attacks have increased by 210% since 2011 and show no signs of abating.
What, if anything, can operators in the Gulf of Guinea learn from the experiences from East Africa and why is the situation so different?
Piracy in the Gulf of Aden
The lack of effective governance in Somalia meant that there was no local governmental control to prevent piracy attacks. But the upside to Somalia’s “failed state” status was that the international community had the freedom to implement targeted measures to tackle the pirates in Somali waters. The shipping community and international naval forces became involved in finding a solution – best management practices were issued to ships (BMP4 being current) advising on how to harden and defend the ship and co-ordination of the naval effort was organised by the EU and others through the Maritime Security Centre (Horn of Africa), or MSC(HOA) as it came to be known.
Importantly, most of the piracy in the high risk area took place on the High Seas and ship operators were free, subject only to flag state concerns and practicalities, to take whatever measures they thought fit, including deploying armed security detachments through good quality Private Maritime Security Companies (PMSC). When the use of armed guards demonstrated its effectiveness, without any appreciable downside, then most flag states amended their rules to permit this practice. The result of these combined efforts is that piracy has been effectively supressed (although not eradicated) with no ships being hijacked in 2014.
So if this approach has worked off the coast of East Africa, why has it not worked in West Africa where hijackings and attacks are commonplace and increasing?
Piracy in West Africa
West African piracy has been on the rise since late 2010 and the threat seems to be spreading from Nigeria to other countries including Togo, Gabon, Ghana and Angola.
Whereas vessels attacked in the Gulf of Aden and Indian ocean were largely on passage through the area, the Gulf of Guinea is more than just a trade route; it has a number of busy domestic ports and is the hub of Africa’s offshore oil and gas industry. The coastline is consequently littered with vulnerable targets; vessels at anchor waiting to discharge or load cargoes, often by STS, offshore supply boats with low freeboards manoeuvring slowly; oil platforms and so on. The main targets for West African pirates are tankers carrying high-value refined petroleum cargoes, which can then be stolen and resold onto the active “petroleum black market”. Since 2010 it is estimated that “117,000 mt of product worth approximately $100 million has been stolen in the Gulf of Guinea.
More recently, hijackers have also started attacking vessels and kidnapping crew for ransoms, no doubt recognising the potential to extort millions of dollars from operators. Attacks are carried out by highly organised criminal organisations with sophisticated intelligence networks and alleged political, military and industry links to the black market. Pirates are equipped with proper seagoing vessels, can obtain tankers to remove large parcels of cargo and have good knowledge of ship systems, particularly relating to communications. Reports of extreme and random violence against crew abound.
Most hijackings in West Africa take place in territorial waters, which means that the law of the sovereign state applies. Unlike Somalia, where there was no operating rule of law, the Gulf of Guinea states have established legal systems, their own coast guards, police and military forces. Whilst this may seem preferable to the lawlessness of the seas off Somalia, this has not proven to be the case. Those seeking to counter the piracy threat are subject to the complex regional politics in West Africa, fierce protection by these states of their territorial waters and sovereignty, under-resourced naval and coastguard forces, ineffectual legal systems and endemic corruption. The response from the Gulf of Guinea states has been slow-moving and there is a perceived lack of political will to address the issue even though regional agreements have been reached. Whilst these countries have notionally agreed to a multi-national framework for regional counter-piracy, there is distrust between the member states and this has hindered policy development. Hot pursuit is difficult and effective cross border operations under-developed.
This combination of factors, coupled with the growing sophistication of the pirates, has made controlling this piracy difficult. The anti-piracy effort is not well co-ordinated, there being no real equivalent to MSC(HOA) in West Africa, and there is no question of a multi-national naval force being deployed to assist. Many of the BMP4 precautions are less effective in ships conducting STS or are required to remain stationary for long periods and this is reflected in additional guidance issued by the IMO to be read in conjunction with BMP4. But the chief impediment is the refusal of these sovereign states to allow private armed security onboard.
One of the key factors in driving down piracy in the Gulf of Aden was the use of marine security companies with armed personnel employed on, for instance, the BIMCO GUARDCON form. However, unamended it is not suitable for use in West Africa, where marine security companies can only operate with armed personnel provided by littoral states (Local Security Personnel or LSP) such as a detachment of armed police or coastguards. These guards are bound by their own military and local laws, which may conflict with GUARDCON and the company’s operating procedures.
Combined with the varying quality and expertise of local guards, this has led to liability and insurance concerns for shipowners and, importantly, PMSCs only agree to use best endeavours to procure that LSPs obey the orders of the master and they do not warrant that the LSP will act with reasonable skill and care. Despite this, the use of only the best quality and experienced PMSCs who know which LSPs are reliable and effective is essential and must be combined with the best possible risk assessment. Insurers should be closely consulted with before operations in these dangerous waters which is reflected by the Gulf of Guinea being a listed area by the London Joint War Committee meaning additional insurance premiums are payable to operate in such areas.
In many respects therefore, shipowners and charterers are more exposed in West Africa than they ever were in the Gulf of Aden: their vessels are operating in and remain in territorial waters rather than just passing through which makes them vulnerable to attack; pirates are increasingly sophisticated and have a reputation for extreme violence; there is a lack of effective regional engagement and any international response is hindered by the littoral states’ unbending protection of their territorial sovereignty; and it is harder for vessels to defend themselves with the prohibition on the use of armed guards. Shipowners and operators must employ high quality PMSCs, conduct thorough risk assessment and ensure that their charterparties have robust piracy clauses protecting them in circumstances where pirate attacks occur.
Partner & Senior Associate, Norton Rose Fulbright, London
Above article has been initially published at Norton Rose website and it is reproduced here with authors’ kind permission
