Finding a Regional Solution to Piracy: Is the Djibouti Process the Answer?

by Christian Bueger & Mohanvir Singh Saran

A significant component of the long term strategy to counter-piracy originating in Somalia is the attempt to find regional solutions. The idea is to build a regional maritime security infrastructure which can cope with the menace in the long run. The very successful implementation of the East Asian Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP ) which provides a regional structure for cooperation and communication is the role model for such a solution. [ref] For a discussion of ReCAAP see Ho 2009, Geiss & Petrig 2011, Kraska 201.[/ref] To build such a structure for the Western Indian Ocean region, the international actors have worked along two tracks. Firstly, attempts have been made to implement such a structure within existing regional organizations, including the Intergovernmental Authority for Development (IGAD), the East African Community (EAC), the South African Development Community (SADC) or the African Union (AU). Several initiatives are underway or in the planning stage within these organizations, the outcome of which is unclear so far. Secondly, since 2009 a process is underway to build such a structure outside of existing organizations. The so called Djibouti Code of Conduct Concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden and the Red Sea areas process (or in short: Djibouti Code or DCoC, ) steered by the International Maritime Organization (IMO)  has been making slow but steady progress to build such an infrastructure. Implemented as a largely technical structure on an expert level the process has led to some tangible outcomes. The DCoC process is and arguably will be crucial to address piracy in the long run. Yet, so far there is little analysis or debate on it. In this commentary we aim at filling this gap. We review what DCoC has achieved so far, what it wants to achieve, what its main hurdles for progress are and what its future role in the counter-piracy regime might be. In what follows we provide an overview of the process and offer some initial thoughts on the challenges the process faces.

The Djibouti Code of Conduct Process

The DCoC was the outcome of a series of IMO sponsored meetings from 2005-2008 in Yemen, Oman and Tanzania which aimed at evaluating the possibilities of a regional counter-piracy arrangement (Kraska 2011:147). While at the meeting in Tanzania held in April 2008 a draft regional memorandum of understanding on the subject was developed, at the follow up meeting in Djibouti after four years of negotiation an agreement was reached. The Code was formally adopted on the 29th of January 2009. The meeting was attended by Ministers, Ambassadors, senior officials and legal experts from Comoros, Djibouti, Egypt, Ethiopia, France, Jordan, Kenya, Madagascar, Maldives, Oman, Saudi Arabia, Seychelles, Somalia, South Africa, Sudan, the United Republic of Tanzania and Yemen, as well as observers from other IMO Member States; United Nations specialized agencies and bodies; and international and regional inter-governmental and non-governmental organizations.

Nine States signed the Code in the closing ceremony of the Djibouti meeting, soon to be followed by ten further countries. Since the agreement is not open to accession by any state, overall 21 countries ranging from Yemen to Mozambique are eligible to sign the Code (Graph one shows the states envisioned to participate in the process). The code envisioned a regional infrastructure to repress piracy and armed robbery against ships and to promote the sharing of relevant information through a system of national focal points and information centers. In the document the aims of the code expressed as

‘desiring to promote greater regional co-operation and thereby enhance their effectiveness in the prevention, interdiction, prosecution and punishment of those persons engaging in piracy and armed robbery against ships on the basis of mutual respect for the sovereignty, sovereign rights, sovereign equality, jurisdiction and territorial integrity of states’.

The Djibouti Code of Conduct is comprised of four related documents. With the first resolution participating states signed a declaration expressing the willingness to cooperate and implement the code to repress piracy and armed robbery against ships in the Western Indian Ocean and the Gulf of Aden. The second document outlines the core components of the Code concerning technical cooperation and assistance. Notably it includes the outline for three Information Sharing Centers (ISC) to be established in Sana’a (Yemen), Mombasa (Kenya) and Dar es Salaam (Tanzania). The third document describes the enhancement of a joint training of maritime security forces in the so called Djibouti Regional Training Center (DRTC). The training center is tasked to deliver courses and workshops to provide forces with anti-piracy techniques and procedure. This training facility is unique to the three ISCs with the sole purpose of training and instilling expert practice to law enforcement activity on the sea. The fourth resolution is largely a symbolic document and expresses appreciation to Djibouti for holding the code meeting. The Djibouti Code of Conduct envisages a counter-piracy infrastructure that can assist in improving the communication between states, enhance the capabilities of states in the region to deter arrest and prosecute pirates, improve states’ maritime situational awareness; and enhance the capabilities of local coast guards.

As the central body coordinating and steering the process the documents led to the installment of a Project Implementation Unit (PIU). Based at the IMO headquarters in London and formed in April 2010. To implement the DCoC, by 2012, staff members from IMO are working on the project including a head of unit and specialists in operations and training, technical and computing systems and maritime law. The DCoC was formally embraced by the IMO (C/102/14) and the process was welcomed by both the UN Contact Group to Counter Piracy off the Coast of Somalia and the UN Security Council in its Resolution 1918 which ‘welcomes in this context the progress being made to implement the IMO Djibouti Code of Conduct, and calls upon its participants to implement it as fully as possible’ .

In September 2009 a trust fund was created as the central funding device for the process. The Djibouti Code of Conduct Trust Fund (DCCTF) was established under the financial regulations and rules of the IMO and is managed by the IMO’s PIU. The DCCTF is a multi-donor voluntary fund. Financial contributions may be made by Member States of the United Nations or the IMO, organizations, institutions or private individuals. By 2012 France, Japan, the Marshall Islands, the Netherlands, Norway, the Republic of Korea and the Kingdom of Saudi Arabia have contributed to the DCCTF. By the end of 2011 the trust fund sat at just over US$14m of which US$9m had been allocated to projects. The current allocated funds to the end of 2012 total US$9m.

Implementing the DCoC

Thus far the DCOC has made progress in carrying out significant training of coastal guards and staff and the successful building of ISCs (Information Sharing Centre’s). Much has been achieved under the DCOC in the areas of information sharing, review of national legislation, training and capacity building. The three information sharing centers (ISCs) have been established in Sana’a, Mombasa and Dar es Salaam and all serve as a network of national focal points in all signatory states and have been fully operational since the first half of 2011.

Within the DCoC structure, each participating state has identified an institution (and individual) which acts as national focal point. Through this system of national focus points, information concerning piracy incidents and suspicious activity, can be disseminated quickly and analysed on a national level as well as collaboratively to further strategy making for the region. Reviews in national legislation of the signatory states have also been pursued. 12 of the member states having introduces changes to their laws.

Key Developments in Implementing the DCoC
January 2009 Djibouti Code of Conduct Meeting
September 2009 Trust Fund Established
April 2010 PIU (Project Implementation Unit) formed
June 2010 IMO runs training courses
Feb 2011 Analysis was conducted to consider training needs
First Half of 2011 ISCs become operational
May 2011 transfer of start up funding from IMO, role of DRTC defined
September 2011 Building work commence of the DRTC.
November 2011  ISCs and ReCAAP sign Standard Operating Procedure (SOP).
Overall 2011  16 training courses and workshops have held.

Training of coastal guards and experts has been a major focus and achievement of the DCOC and has helped to increase awareness and attention for counter-piracy significantly as well as given a sense and indeed faith and belief, that attacks on vessels passing through the regional waters can be contained in the long run. A regional training program is being developed in conjunction with the EU’s MARSIC project at the Djibouti Regional Training Centre (DRTC). The MARSIC project contributes to the implementation of the Djibouti code of conduct through the means of capacity building and assistance at the training centre, injecting €6 million under the MARSIC initiative. In February 2011, an analysis was conducted to consider each state’s training needs to pool common necessities of training and create one regional training package; in May the same year Djibouti code members defined the role of the DRTC. To date 16 training courses and workshops have been held with the IMO at the training center in Djibouti, such as the course on Transposition of International Maritime Law held in Djibouti from 3rd – 8th December 2011. A further 8 workshops are organized in 2012. The DCoC has increased budgets for these programs; US$5m has been allocated for 2011/2012 to deliver a higher number of training courses with an IMO Training Coordinator being based in Djibouti to ensure regional needs are met in the training.

Furthermore, legal workshops have been jointly held with the UN Office of Drugs and Crime Counter Piracy Programme (LINK) working with navies, coast guards ad marine police to equip them legally to enforce national law at sea. This has seen greater inter-agency work in regional states and a higher percentage of arrested being brought into national legal systems. On 11th Nov 2011 ISCs and ReCAAP signed a set of Standard Operating Procedures (SOP) which endorsed open communications of piracy related information. Many see this as a new opening of communications between Asia and Africa now that a Western Indian Ocean anti – piracy infrastructure is in place. In July 2012, the EU announced that it will establish a new civilian mission, EUCAP NESTOR, which will partially contribute and draw on the DCoC structure, which will however limit its focus on Kenya, Tanzania and the Seychelles as these countries which are immediate European allies in its fight against piracy. In summary, the activities to implement the Djibouti Code have been successful in training, information sharing and capacity building.

Challenges and Prospects: Evaluating the DCoC

Geiss and Petrig suggested that the Code has “been praised as a milestone development a central instrument in the development of regional capacity” (Geiss and Petrig 2011: 48-49). As the IMO Secretary General made it clear at his address to the Djibouti meeting the process is however also to be seen as a “starting point for successful co-operation and coordination in the region”. Whether considered as “milestone” or merely as a “starting point”, our review has shown that there has been some tangible progress in implementing the Code and there is recognizable activity proving that the code is starting to deliver. Together with the work of the UNODC in the region, the IMO has been at the forefront of developing a regional infrastructure which can provide the seeds for a shared inter-governmental maritime security culture. One should not underestimate the long term effects that the shared experience of joint training workshops and the everyday practice of sharing information and communicating on maritime security challenges may have. Seen in the light of security theory, communication, shared experience and the development of a shared repertoire of means have been identified as major triggers for the development of security communities. [ref] See classically the work of Karl Deutsch (e.g. et al. 1957) as well as more recently Adler and Greve 2009. [/ref] While there is a far way to developing a regional maritime security regime which we might want to describe as a (maritime) security community, the DCoC at least provides a productive seeding bed for it. Much of the slow but steady progress of DCoC has to be applauded. Yet, also arguments require consideration which shed some doubt that DCoC can make a difference both to counter-piracy as well as to develop an infrastructure for coping with the broader maritime security challenges.

Firstly, so far DCoC mainly operates on a very technical, almost a-political level. It is designed as a nonbinding agreement, although it is intended to develop into a legally binding agreement (Geiss and Petrig (2011:50). While one can have hope and confidence in a form of functionalist spillover in which the technical cooperative experience leads to willingness to share sovereignty, [ref] For an elaboration of the idea of functional spillover see for instance Huysmans 2004. [/ref]

there are no significant signs that the participatory states actually aim at fostering security cooperation, e.g. in the form of joint multilateral operations or collective responses. The fact that states could not agree on one information sharing center, but that the installment of three overlapping center was necessary is telling in this regard. The weakness of the underlying consensus is moreover well documented by the continuous controversies revealed over the Djibouti code at the IMO. The absence of a political oversight body within DCoC and the fact that the IMO is the main forum for debating the future of DCoC is further evidence in this regards. In other words, the level of underlying political support is fragile at best. This problem is reinforced by the fact that the region does not necessarily have a successful history of regional political cooperation, that the relation of DCoC to the existing regional organizations such as IGAD, or SADC is unresolved, and that, moreover, national rivalries and unresolved disputes make a strengthening of cooperation in the near future unlikely.

Secondly, to some degree DCoC is over-ambitious as well as under-ambitious. It is over-ambitious because it wants to bring a range of countries to a common table, despite their diverging history and interests. It is over-ambitious because it envisions a trans-regional solution in including participants spanning across Africa and the Gulf states. Paradoxically DCoC is also under-ambitious: it draws a map of the problem which is centered on Africa and not on the Western Indian Ocean region. Because of that it excludes two coastal states, which as regional powers could make a major difference, both in providing capacities and leadership, namely India and Pakistan. Both states are at the forefront of counter-piracy, given the extension of the operational terrain of piracy groups. It remains puzzling why a regional solution would not want to include the two states.

Thirdly, see in the light of the overall counter-piracy regime, DCoC will continue to be one stone in a larger mosaic of measures. Even if one is overly optimistic regarding the development of regional naval capacity for counter-piracy operations, as well as the counter-piracy and peacebuilding efforts within Somalia it is doubtful that at any point in the foreseeable future DCoC states will have the level of force that is required to patrol the Western Indian Ocean.

In summary, the DCoC process shows many promises. While some liberal hope in the prospects of technical cooperation is reasonable, it is important to remain realistic what the DCoC will be able to deliver in the long run.

References and Further Reading

Adler, Emanuel, and Patricia Greve. 2009. When security community meets balance of power: overlapping regional mechanisms of security governance. Review of International Studies 35 (S1): 59–84. Available from here.

Deutsch, Karl W, Sidney A Burell, Robert A Kann, Maurice Lee, Martin Lichtermann, Raymond E Lidgren, Francis L Loewenheim, and Richard W Van Wagenen. 1957. Political Community and the North Atlantic Area. International Organization in the LIght of Historical Experience. New York: Greenwood Press.

Geiss, Robin, and Anna Petrig. 2011. Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden. Oxford: Oxford University Press.

Ho, Joshua, 2009. Combating piracy and armed robbery in Asia: The ReCAAP Information Sharing Centre (ISC). Marine Policy, 33(2), pp.432–434. Available from here.

Huysmans, Jef. 2004. A Foucaultian view on spill-over: freedom and security in the EU. Journal of International Relations and Development 7 (3): 294–318. Available from here.

International Maritime Organization. 2009. High-level meeting in Djibouti adopts a Code of Conduct to repress acts of piracy and armed robbery against ships, IMO Briefing, 30 January 2009, available at http://www.imo.org/blast/mainframe.asp?topic_id=1773&doc_id=10933.

International Maritime Organization. 2009. Protection of vital shipping lanes. Sub-regional meeting to conclude agreements on maritime security, piracy and armed robbery against ships for States from the Western Indian Ocean, Gulf of Aden and Red Sea areas, IMO Doc. C 102/143, April 2009. Available from here.

Kraska, James. 2011. Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea. Santa Barbara, Cal.: Praeger Publishers.