What's In Blue

Posted Mon 30 May 2022

Piracy and Armed Robbery in the Gulf of Guinea: Vote on a Draft Resolution*

Tomorrow (31 May), the Security Council is expected to vote on a draft resolution on piracy and armed robbery in the Gulf of Guinea. The penholders, Ghana and Norway, first began informal consultations on the text with Council members and regional states late last year. But after two expert-level meetings in January on the draft resolution, negotiations stalled. China broke two silence procedures, and despite the penholders placing the draft resolution in blue on 27 January, the Council did not vote on the text amid persisting differences with China on language relating to the UN Convention on the Law of the Sea (UNCLOS). On 24 May, the penholders re-circulated their draft resolution to Council members, without any substantive changes, and placed it in blue. After further negotiations with China, an amendment was made today (30 May) to the draft in blue, which appears to have produced an agreement on the text.

The draft resolution is open for co-sponsorship by the wider UN membership. Member states that have already co-sponsored the draft text that was placed in blue on 24 May need to re-confirm their co-sponsorship before the scheduled 11 am adoption because of the late amendment to the text in blue.

Draft Resolution

In initiating the resolution, Ghana and Norway seek to renew attention to the issue of Gulf of Guinea piracy and mobilise greater support for regional and national efforts to tackle the problem. It has been ten years since the Council’s last resolution on Gulf of Guinea piracy, resolution 2039 of 29 February 2012. The 2013 Yaoundé Code of Conduct signed by 25 West and Central African countries remains the region’s main maritime security architecture to address the problem, but its operationalisation has faltered. The Gulf of Guinea accounts for the majority of kidnappings of seafarers worldwide, and generates approximately $5 million annually in ransom payments to pirate gangs. Its negative economic impact and effects on trade are especially significant, with direct and indirect costs estimated at $1.925 billion annually for 12 Gulf of Guinea countries, according to a study that the UN Office on Drugs and Crime (UNODC) and the non-profit Stable Seas released last December.

The draft resolution in blue expresses the Council’s deep concern about the “grave and persistent threat” posed by piracy, armed robbery and transnational organised crime in the Gulf of Guinea to international navigation, security and sustainable development of regional states. It calls on states in the region to criminalise and prosecute acts of piracy and armed robbery at sea under their domestic laws, and emphasises the need to enhance and support national, regional, and international efforts to counter piracy and armed robbery in the Gulf of Guinea.

The penholders also proposed the resolution as an early warning initiative over concerns that piracy may have or could develop links with terrorist groups in West and Central Africa. The draft resolution urges member states and international organisations to assist regional states and regional and sub-regional organisations in taking necessary measures to prevent piracy revenues from financing terrorism in West and Central Africa and the Sahel. It requests the Secretary-General to submit to the Council a report on piracy and armed robbery in the Gulf of Guinea and its root causes within five months. The report should include analysis on any possible and potential linkages with terrorism in West and Central Africa and the Sahel, information on UN support and contributions, and recommendations for further supporting and enhancing national efforts and regional and international cooperation towards combatting piracy and armed robbery in the Gulf of Guinea.

Negotiations

The main sticking point during the negotiations was over how to refer to the UNCLOS. This dispute appears to be more broadly linked to the potential implications for China’s claims in the South China Sea, an issue which surfaced at the Council’s 9 August 2021 virtual open debate on maritime security.

The draft resolution in blue reaffirms that international law, as reflected in the UNCLOS, “sets out the legal framework within which all activities in the oceans and seas must be carried out, including countering piracy and armed robbery at sea”. This is agreed language from the Council’s last three resolutions renewing counter-piracy measures off the coast of Somalia, the most recent of which is resolution 2608 of 3 December 2021. During the January negotiations, it seems that China proposed replacing this wording with language based on the Council’s 9 August 2021 presidential statement on maritime security, which says that the UNCLOS “sets out the legal framework applicable to activities in the oceans, including countering illicit activities at sea”.

In explaining its position, China has apparently observed that the preamble of the UNCLOS affirms “that matters not regulated by this Convention continue to be governed by the rules and principles of general international law”, which according to China shows that the UNCLOS does not regulate all activities in the oceans and seas. It has also highlighted the role of customary international law, in addition to the UNCLOS, as a source of international law regulating activities in the oceans and seas. However, China’s position did not appear to gain traction with other Council members, many of whom oppose language that would appear to limit the scope of the UNCLOS’ jurisdiction and its universality.

Ahead of the planned January vote, China requested a separate vote on three paragraphs in the resolution. If these votes had taken place, China could have used its veto to remove the paragraphs from the draft text. According to rule 32 of the Council’s provisional rules of procedure, “[p]arts of a motion or of a draft resolution shall be voted on separately at the request of any representative, unless the original mover objects”.

In addition to the contentious paragraph described above, the other two paragraphs on which China sought a vote included one describing “other navigational rights and freedoms by ships of any state, consistent with international law, as reflected in UNCLOS”—language which is also contained in the Somalia counter-piracy resolutions. The third paragraph names different international initiatives undertaken by regional countries and organisations to counter piracy in the Gulf of Guinea. China had apparently argued against listing them since not all Council members are part of these initiatives.

Following China’s request, Ghana and Norway decided to postpone the vote and to continue consultations to find agreement on the text. Although these did not bridge the differences with China, the penholders informed members in May that they intended to move forward with a vote on the draft resolution that they had placed in blue in January. Only one technical change was made to the text: while the January draft requested the Secretary-General to submit his report on piracy in the Gulf of Guinea within nine months, the draft resolution in blue requests the report within five months. This was done to make sure that Council members receive the report ahead of Ghana’s November Council presidency. The issue of countering piracy in the Gulf of Guinea has been one of the priorities of Ghana’s President Nana Akufo-Addo during his chairmanship of the Authority of Heads of State and Government of the Economic Community of West African States (ECOWAS).

China continued to express strong objections to language asserting that the UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out. Last week, it proposed adding language specifying that the UNCLOS sets out the legal framework governing “all activities in the oceans and seas in the Gulf of Guinea”. Alternatively, China suggested proposals, which it had previously presented to the penholders, to replace the paragraph with formulations from other Council products. Such proposals include reverting to language from resolution 2039, which states that the UNCLOS “sets out the legal framework applicable to countering piracy and armed robbery at sea, as well as other ocean activities”. China apparently indicated that if none of its proposals for reformulation are accepted, it will request a separate vote on the UNCLOS paragraph. It seems, however, that many members opposed China’s proposals, which they viewed as representing a regression from the most recent relevant Council language on UNCLOS’ applicability.

Further talks between the penholders and China over the weekend have apparently produced an agreement on the text. The penholders amended the draft in blue today (30 May), by moving language stating that “the provisions of this resolution apply only with respect to the situation in the Gulf of Guinea”, which was contained in a separate paragraph, to the end of the controversial paragraph on the UNCLOS.

The latest round of negotiations took place after the General Assembly’s adoption of resolution A/RES/76/262 of 26 April, which would require China to explain its decision before the General Assembly should it exercise its veto on the Gulf of Guinea draft resolution. The General Assembly resolution stipulates that the President of the General Assembly shall convene a formal meeting of the General Assembly within ten working days of a veto being cast by a permanent member of the Council. On 8 June, the General Assembly is scheduled to hold a debate on the Democratic People’s Republic of Korea (DPRK) after last week’s double veto by China and Russia of a draft resolution to update and strengthen the 1718 DPRK sanctions regime. (For background, see our 27 May What’s in Blue story.) The 8 June meeting will be the first time that the General Assembly has acted in accordance with resolution A/RES/76/262.

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*Post-script: On 31 May, the Security Council unanimously adopted resolution 2634 on piracy and armed robbery in the Gulf of Guinea, with several members providing explanations of vote (S/PV.9050). Thirty-seven member states co-sponsored the resolution, including Council members Albania, Brazil, France, Gabon, Ghana, Kenya, Norway, and the US.

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