In a historic perspective, the Portuguese are confronted with a dilemma of multiple proportions: Does Portugal need to conjugate the current strategic European option with the historical strategic Atlantic option? Can Portugal do that or is it able to do that? How? Must Portugal chose or is compelled to choose only one of the two? What would be the consequences of that option for Portuguese maritime economy and development? A route into the future of Portugal in the Atlantic Ocean is not possible without solid answers to these questions. Financed by national funds through FCT-Foundation for Science and Technology regarding the research project “The Extension of Portuguese Continental Shelf: Strategic Implications for Decision Making (PTDC/CPJ-CPO/120926/2010), in a partnership with Portuguese Navy and Esri Portugal, Geographical Information Systems, SA, integrated in the Center for Public Administration and Public Policies of the Institute of Social and Political Sciences of the University of Lisbon. Pedro Borges Graça (Coord.) NEW CHALLENGES OF THE ATLANTIC An Approach from Portugal Coord. Pedro Borges Graça NEW CHALLENGES OF THE ATLANTIC The movement of strategic reorientation for the sea in Portugal has been given fruits since it was launched almost one generation ago. The proposal for the extension of continental shelf before the United Nations is surely its most significant aspect, and it can been seen that a completely empty space was filled in terms of political discourse and civil society growing consciousness regarding the dimension and potential of the Portuguese sea and the wealth that can be obtained from its biological and geological resources. So, for the moment, although there are more words than actions, Portugal is in a path of responding to the new challenge that the Atlantic poses once again after nine centuries of history. CENTER FOR PUBLIC ADMINISTRATION AND PUBLIC POLICIES INSTITUTE OF SOCIAL AND POLITICAL SCIENCES UNIVERSITY OF LISBON ISBN 978-989-646-101-0 2015 9 789896 46101 0 Instituto Superior de Ciências Sociais e Políticas New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 1 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 2 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 3 NEW CHALLENGES OF THE ATLANTIC An Approach from Portugal Pedro Borges Graça (Coord.) Financed by national funds through FCT-Foundation for Science and Technology regarding the research project “The Extension of Portuguese Continental Shelf: Strategic Implications for Decision Making (PTDC/CPJ-CPO/120926/2010), in a partnership with Portuguese Navy and Esri Portugal, Geographical Information Systems, SA, integrated in the Center for Public Administration and Public Policies of the Institute of Social and Political Sciences of the University of Lisbon. New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 4 Title : New Challenges of The Atlantic Publisher: Institute of Social and Political Sciences of the University of Lisbon Coord.: Pedro Borges Graça Printing: GRAFIGRAF, Lda. Edition: 1000 copies ISBN: 978-989-646-101-0 Depósito Legal: 395952/15 Date: June 2015 Cover: Reproduction of one of the “Rosa-dos-Ventos” (literally “Rose of the Winds” - Sea Compass) of the so called Cantino Planisphere”, whose real name is “Carta Padrão do Rei”, obtained by clandestine means in Lisbon, in 1502, by the italian spy Alberto Cantino for the Duke of Ferrara. New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 5 SUMMARY PRESENTATION ................................................................................................... KEY NOTE: ENVIRONMENTAL CHALLENGES FOR BLUE GROWTH........................ Ricardo Serrão Santos University of Azores. Member of European Parliament. 9 11 PART I SCIENCE, ECONOMY AND ENVIRONMENT 1. SCIENTIFIC AND ENVIRONMENTAL CHALLENGES FOR THE ATLANTIC: THE URGE FOR A STRATEGY FOR PORTUGAL .............. Henrique Cabral Full Professor of the Faculty of Sciences of the University of Lisbon and Director of MARE - Marine and Environment Sciences Center. 17 2. FOREIGN SCIENTIFIC RESEARCH IN PORTUGUESE WATERS ........ 25 Jaime Ferreira da Silva Portuguese Navy Commander. Institute of Higher Military Studies. Researcher with the project at the Center for Public Administration and Public Policies, Institute of Social and Political Sciences of the University of Lisbon. 3. ESSAY ON A SYSTEM OF MARITIME INFORMATION FOR PORTUGAL ..................................................................................................... Alexandre Adoa PhD in Social Sciences. Researcher at the Center for Public Administration and Public Policies, Institute of Social and Political Sciences of the University of Lisbon. 41 5 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 6 4. BETWEEN TAX HAVENS AND FLAGS OF CONVENIENCE: HANDLING OF CARGO IN BRAZIL AND AT PARANAGUÁ HARBOR .... Luís Alexandre Carta Winter Catholic University of Paraná. Consultant with the Project. Marcos Wachowicz Federal University of Paraná. Consultant with the Project. 47 5. ARBITRATION AND THE LUSOPHONE AREA ........................................ João Paulo Ferreira da Conceição Lawyer (Ferreira da Conceição, Menezes e Associados). MA Candidate in African Studies. Center for Strategic Studies of the Atlantic. 61 6. FUTURE OCEAN CHALLENGES FOR PORTUGAL ................................ Charles Buchanan Board Member, Center for Strategic Studies of the Atlantic. 67 PART II SECURITY AND GOVERNANCE 7. THE COMPLEXITIES OF EU MARITIME SECURITY POLICY ............ John Richardson Head of the Task Force which developed the European Integrated Maritime Policy. Senior Fellow with the German Marshall Fund of the United States. 8. THE CHALLENGES OF MARITIME SECURITY IN EUROPE AND PORTUGAL ..................................................................................................... Alexandre Reis Rodrigues Vice Admiral (Ret.). Vice President of the Portuguese Commission of the Atlantic. 9. THE IMPORTANCE OF INTELLIGENCE IN PORTUGAL`S MARITIME SECURITY ...................................................................................................... Fernando Ângelo Portuguese Navy Commander. MA in Intelligence and Security Studies by the University of Salford, United Kingdom. 79 87 93 10. GERMANY’S INTEREST IN THE ATLANTIC ........................................... 105 Marisa Fernandes PhD Candidate in Strategic Studies. Researcher at the Center for Security and Defense of the Institute of Higher Military Studies. Center for Strategic Studies of the Atlantic. 6 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 7 11. THE PORTUGUESE SOUTHERN MARITIME BORDER: GENESIS, PROBLEMS AND THE FUTURE OF THE SELVAGENS ISLANDS......... Pedro Quartin Graça ISCTE - University Institute of Lisbon. PhD in Public Policies. Researcher at DINÂMIA’CET (ISCTE) and CIIMAR - Interdisciplinary Center of Marine and Environmental Research of the University of Porto. 12. A NEW PACT FOR BRAZIL AND PORTUGAL........................................... Luís Alexandre Carta Winter Catholic University of Paraná. Consultant with the Project. 125 133 13. CAPE VERDE: REDEFINING STRATEGIC OPTIONS............................. 137 Fátima Monteiro University of Cape Verde. Doctoral degree (PhD) in RLL/Portuguese Studies, Harvard University. Certificate in Diplomacy/International Relations, INA, Oeiras, Portugal. 14. THE GULF OF GUINEA: MARITIME CHALLENGES ............................ Miguel Bessa Pacheco Portuguese Navy Commander. Member of the Portuguese Navy Research Center (CINAV). 145 15. THE MARITIME SECURITY IN THE GULF OF GUINEA: THE ENERGY SECURITY OF EUROPE AND THE POTENTIAL ROLE OF PORTUGAL 157 José Francisco Lynce Zagallo Pavia Lusíada University. Director of Lusíada Research Centre of International Politics and Security. Auditor of National Defense, National Defense Institute of Portugal. 16. SECURITY AND GOVERNANCE IN THE EXTENDED CONTINENTAL SHELF ZONES OF THE LUSOPHONE SOUTH ....................................... André Thomashausen University of South Africa. Chair of the Institute of Foreign and Comparative Law. 169 17. POWER AND SCIENCE IN THE CONTEXT OF THE COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF ....................................... 187 Tiago Martins Researcher of the project at the Center for Public Administration and Public Policies, Institute of Social and Political Sciences of the University of Lisbon. Center for Strategic Studies of the Atlantic. 7 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 8 18. PORTUGAL AND THE ATLANTIC OCEAN: THE CHALLENGES-RESPONSES COMPLEX ................................................... Pedro Borges Graça Institute of Social and Political Sciences of the University of Lisbon. Researcher at the Center for Public Administration and Public Policies. Principal Investigator of the Project. Director of the Center for Strategic Studies of the Atlantic. 8 203 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 9 PRESENTATION This book is the result of the interdisciplinary research project The Extension of Portuguese Continental Shelf: Implications for the Decision-Making Process, financed by FCT – Foundation for Science and Technology, and developed in the Center for Public Administration and Public Policies of the Institute of Social and Political Sciences of the University of Lisbon, in a partnership with the Portuguese Navy and the company ESRI-Portugal, Geographical Information Systems, SA. As Principal Researcher I’m grateful to the support these institutions gave me and the project over almost three years. Without their commitment this project could never have come to fruition, or as told by an old Portuguese saying, “have come to a good seaport”. I would also like to express a word of gratitude to Eduardo Inês, my project contact in FCT – Foundation for Science and Technology, for his patience and efficiency regarding some “administrative crisis management” I had to deal with during the lifetime of the project. Also, I offer a word of recognition to Jorge Martins, from the Center of Public Administration and Public Policies, for his continuous attention to the bureaucratic process on which depended in some way the success of the project, and also to Júlio Ramos for his friendship and dedicated effort and quality in managing the printing. I’m also very grateful to the researchers of this project, and others invited, that authored the essays presented in this book. They were free to express their knowledge and thoughts on the future of the Atlantic Ocean from a Portuguese and certain lusophone perspective. The consultants, coming from Africa, Brazil and Europe, also had a very important role in the development of the project and namely in the construction of this book. In November, 2014 we had the opportunity to have an intense week of work together in a pleasant environment facing the sea in Cascais, near Lisbon, from where the Portuguese “caravelas” sailed in the 15th century, reflecting and debating with creativity and joy the new challenges of the Atlantic from an interdisciplinary approach. I’m also most grateful and indebted to my friends and co-authors Charles Buchanan, for the careful English review of most of the articles and constant availability to help in whatever needed, and Tiago Martins for the assistance he always gave me all along the way, together with his excellent research skills. 9 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 10 The research project was conceived in a strategic studies perspective in order to understand how the dynamics of the international movement towards the extension of maritime continental shelfs affects Portugal, and what implications result from such changes for the Portuguese decision-making process, namely in the public policies for the Sea. After several research activities and seminars, open to the public with intense debates, participation in international scientific reunions, published articles and a book1, and the foundation of a small independent think tank 2, we have come with this new and final book to a level of strategic reflection that aims at promoting the debate on these issues in Portugal and the “Lusophone area”, and, at the same time, reach an English speaking audience that are more distant and mostly ignorant of lusophone authors and issues. The authors were obviously free to express their knowledge and thoughts, as said above, and the careful reader will observe differences of opinion regarding the same subject in one or another problem, usually of a political and strategic nature. University rhymes with diversity and in these times of pressure towards what seems to be a kind of “single thought” pattern, much appreciated by European technocracy, in their own way so strongly concentrated in the fighting between order and chaos, it must be stressed that the soul and centenary mission of the University - perhaps the biggest invention of Mankind - is freedom of thought, scientific yet creative knowledge and innovation for the development of Humanity, and in concrete the concern with day-to-day life of the day-to-day people must not be forgotten. Pedro Borges Graça GRAÇA, Pedro Borges & MARTINS, Tiago. 2014. O Mar no Futuro de Portugal: Ciência e Visão Estratégica. (with thirty contributions in portuguese and english) 2 Centro de Estudos Estratégicos do Atlântico (Center for Strategic Studies of the Atlantic). 1 10 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 11 KEY NOTE: ENVIRONMENTAL CHALLENGES FOR BLUE GROWTH Ricardo Serrão Santos University of Azores. Member of European Parliament. Our seas and oceans are a source of food, energy, and raw materials, a route for transport and commerce, thus providing grounds to many European and global economic and policy challenges. But the oceans are neither inexhaustible nor immune to damage. In a planet that in our course to growth has reach a human population of 7 billion people it is rather imperative to balance the need economic benefits, based jobs and income, with environmental protection for the sake of human security and wealth. This represents a highly complex challenge. Many people still have little understanding of the importance of the ocean in their daily lives, the impact it has on their health and wellbeing, the importance of the maritime economy and the need to protect this vital resource. The challenge for blue growth needs a broader reflexion. Blue economy is seen is an opportunity for Europe at a time when Europe is relatively short of economic opportunities. I agree that those are very conspicuous subjects, but I also know that blue growth simple does not begin and stops here. Fisheries are the central traditional mainstay of the blue economy. However, when establishing definitions of the blue economy, we look both at the traditional sectors (ship building, ship repair, cargo transport, and fishing) as well as to a range of new and exciting industries that could be a source of growth and new jobs in the EU. On its vision for Blue Growth the European Commission (EC) refers to blue energy (i.e. offshore renewable energy), aquaculture, maritime, coastal and cruise tourism, blue biotechnology and deep-sea mining as the priority aspects in view to deliver sustainable growth and jobs and to deliver technology improvements and innovation. There is no straight definition of the blue economy. It encompasses all economic activities at sea. The difficulty, in fact, is to determine the scale and size of those activities today. It is difficult to determine with precision how large these sectors are, so a 11 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 12 lot of work is going to uncovering exactly the number jobs and growth potential in these areas. Actual estimates at the EU have shown that there are around 4.5 million employed in marine activities in Europe today the EC believes that this number can increase by at least 1.5 million by 2020. These estimates demonstrate the potential significance of developing the blue economy. Blue growth is not just economic and social growth based in the oceans. It is sustainable growth with the oceans. Environmental sustainability it is very often shadowed by other priorities, and this can jeopardize the good environmental status and the health of our seas and oceans. This takes me to the Marine Strategy Framework Directive as the main tool that will ensure that the bluish part of blue growth is maintained. However this directive is one of those cases where the lack of funding seems particularly evident. With no fund directed to it, it may be expected that member-states change their priorities, traditionally oriented towards other actions, to the achievement of the marine Good Environmental Status. The European Maritime and Fisheries Fund, among others, should be used to fight invasive species, to promote biodiversity and all the other 9 descriptors. This will work for regions that are healthy, but will it happen in countries that are under stress? Will there be a movement of funding from social and economic issues to the environmental pillar? I have my doubts. Member states of the EU, their regions and the European Commission have to do more. From data collection to decision-making and stakeholders’ involvement, all interested parties have to join together and make sure that by 2020 the Good Marine Environmental Status is achieved in all Europe. The Atlantic Ocean, or “The Perfect Ocean” in the words of the eminent scientist Daniel Pauly, was during the XX century the immense provider of fish for a commercial fisheries that expanded west to east, north to south, until the collapse. The emerging of industrial fisheries increased security and safety, but mainly it gave the tools to exploit, overexploit and extinguish the formerly giant schools. The reports made on-board the soviet industrial trawling fleet gave us an accurate portrait of the ecological drama that took place in some of the Atlantic seamounts. During the course of fisheries exploitation, the industry went well beyond the needs of the consumption of the society. Fisheries went well beyond the needs simply because technologically it could be done. We had the power, the technology, and the greed. The story of fisheries is a good example of what the French thinker and Literature Nobel Prize in 1915, Romain Roland, coined as “Ocean feeling” the feeling of “absence of limits and the feeling of infinity”, in a tireless anthropocentric narcissism. I remind that by 1995 two most distinct American scientists, Francis Minot, the director of the Marine and Fisheries Engineering Research Institute at Woods Hole, Massachusetts, and Hawthorne Daniel, from the American Museum of Natural History in New York, published an all book entitled “The Inexhaustible Sea”, where they say that: “As yet we do not know the ocean well enough. Much must still be learned. Nevertheless, we are already beginning to understand that what it 12 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 13 has to offer extends beyond the limits of our imagination—that someday men will learn that in its bounty the sea is inexhaustible.” The fact is that at the verge of the XXI century we went deeper and deeper having depleted fisheries stocks at all levels and began a race to recovery and rehabilitation, of which the Common Fisheries Policy, on its strenuous and long journey, is the European Union last resort. Nowadays we are at the verge of new industrial activities on the ocean. The one rather referred these days is deep-sea mining. Eventually, and again, not because of a present real urgent need of metals, or scarcity of metals as some say and is expressed on the Blue Growth strategy for the Atlantic, but because we have the technology and because we can. Potential mines are spread throughout the seafloor of our Atlantic Ocean. A recent study published in Science relying in new technologies, thus having access to new data, and using the latest mathematical models found a lot of new seamounts in the Atlantic Ocean. Additionally European scientists have started to map parts of the Atlantic where they consider that the potential is high to discover new massive polymetallic sulphides are being identified. Just one month ago (Mar 15) new fields of manganese nodules at Atlantic lower latitudes were identified Portugal initiated around two years ago the process of concessions with Nautilus for a set of 6 areas containing polymetallic sulphides on the Azores region, and several European and non-European countries negotiated with the ISA mineral exploration concessions along the MAR. We all want to use the natural resources that are available to man. It would benefit us all. Nevertheless, we all now know that we cannot use resources that will jeopardize the possibility of future generations to use them. Likewise, we cannot use natural resources that will threat our own existence. Among those natural resources there exists marine nature life that provide many ecosystems services. Moreover and most important, future exploitation of natural resources has to be based in the best and properly developed scientific knowledge, not has in the past that we exploited first and studied after-on. We need the most reliable maps, not only of the geological structure and topography of the seabed, but of the life and ecosystems around it, but we also need transparent procedures and sharing of information and open information. This is a responsibility of the states for the citizens and it would be wise to call at a large regional scale as proposed already by the Galway Statement signatories in 2013. As the future belongs to mankind, solutions should be brought forward to ensure the sustainability and balance of the planet and its oceans, while cautioning that the actions to be developed in the future will be based on rigorous scientific knowledge of the impact of economic activities. 13 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 14 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 15 PART I SCIENCE, ECONOMY AND ENVIRONMENT New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 16 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 17 1. SCIENTIFIC AND ENVIRONMENTAL CHALLENGES FOR THE ATLANTIC: THE URGE FOR A STRATEGY FOR PORTUGAL Henrique Cabral Full Professor of the Faculty of Sciences of the University of Lisbon and Director of MARE - Marine and Environment Sciences Center. The Atlantic basin: a diverse environment The Atlantic basin includes a wide diversity of marine ecosystems, most of them supporting human activities, and thus subjected to intense anthropogenic pressures. In terms of large marine ecosystems, the Atlantic Ocean have near one third of the 62 units recognized for the Global Ocean, by initiative of the United States National Oceanic and Atmospheric Administration, with the aim of identifying areas for conservation purposes. Atlantic ecosystems extend from boreal to tropical zones, and include very distinct habitats, such as coral reefs, kelp forests, saltmarshes, mangroves, estuaries and coastal lagoons, continental shelf, seamounts, deep sea and open Ocean. The political, economic, societal, and environmental contexts are markedly different according to the geographical area. The Atlantic Ocean is the second largest Ocean of the planet, with ca. 106 millions km2, corresponding to 20% of Earth’s surface. It is a basin with an S-shape, extending from Eurasia and Africa in the east and the North, Central and South Americas in the west, surrounded by more than 60 countries. The Atlantic is connected with all the other Oceans and the area covered by the land drained by its basin is higher than that of the Pacific and Indian Oceans. The average depth in the Atlantic basin is approximately 4000 m, but includes very deep areas, such as the Puerto Rico, the South Sandwich and the Romanche trenches, some deeper than 8000 m. Scientific research in the Atlantic The North Atlantic is probably the most studied region of the Global Ocean. The scientific knowledge gained for this region comprise a wide range of topics 17 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 18 in Marine Sciences, as well as other scientific domains, and was mainly due to the fact that most developed countries with a high investment in Science were placed around the North Atlantic basin, including the North and the Baltic Seas. Also, during the past decades, these countries have intensified their exploitation of the Ocean, particularly for oil and gas extraction and fisheries. In part, and more recently, these two aspects have been often related, being outlined that the investment in science would be critical for better management schemes. Some of the research centres of excellence in Marine Sciences are still today mainly located in this geographical area. However, neither the framework for the development of Science, nor its significance for applications, were particularly successful. In the past decades, scientific research guidelines and funding programmes were set independently by the countries of this region. Their priorities and instruments were quite diverse and not articulated at all. In Europe, the most notorious achievements were probably relative to the North and Baltic Seas, where countries such as The Netherlands, Norway, United Kingdom, Denmark, Germany, among others, developed their exploitation activities. The Mediterranean Sea was also deeply investigated by some countries, namely France, while the eastern North Atlantic deserved less attention in terms of research. In the western North Atlantic some more integrative programmes existed, even resulting from cooperative research between United States of America and Canada. In more recent years, collaborative research was promoted mainly by European Union research funding programmes, but at an initial phase transatlantic collaboration was discouraged. The changes made in the most recent research framework programmes put in evidence these weaknesses and incorporated possibilities to overcome them, especially promoting cooperation between countries, including those along the transatlantic axis, and other regions elsewhere. Also, the emphasis was put in solving societal problems and tackling challenges, favoring a more applied science. The central and south Atlantic experienced a very different evolution of its scientific context. In the central Atlantic, scientific research was mainly promoted and driven by northern countries, of both sides of the Atlantic basin. Countries such as the United States of America, the United Kingdom and France developed research projects in this geographical area, mainly benefiting of close relationships with former colonies or countries for which cooperative programmes existed since a long time. However, these projects were not completely developed in close partnership, but instead were mainly opportunities for northern countries to study marine systems and organisms from tropical and subtropical zones. In the south Atlantic, three different contexts can be identified: South Africa, that have since long a relevant track record of scientific research available for a wide scientific community (mainly by the use of the English language); south America that have been contributing to science with a low cooperation among neighbor countries and mainly in their native language (i. e. Portuguese and Spanish), which limits the diffusion and use of the knowledge produced; and eastern African countries for which scientific research is recent and not particularly productive, consequence of low investments in this area, but often having an impressive amount of information and data collected during 18 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 19 colonial periods. This situation is changing rapidly, and several countries in the south Atlantic are becoming key-players for scientific research, having put in action some plans for science development and researchers mobility, among which Brazil is probably one of the best examples of this change. The Atlantic environmental status and trends According to recent global assessments of Ocean’s ecosystems health, the North Atlantic environmental status is heterogeneous, but comprises some of the most degraded areas of the world (e.g. North Europe and eastern North America). In large extent, the major human activities undertaken in this geographical area of the Ocean were developed with a low concern for the environment. The predominant human pressures that were outlined for this area were fisheries, pollution and climate change. In the 1980s some attempts were made in order to develop a scientific basis for a better assessment and, with a lower effort, management. Some examples are the multistock perspective to fisheries management, the use of ecological indicators for pollution and environmental quality evaluations, environmental impact assessment procedures, among others. However, these developments neither contribute to reverse the predominant trend of environmental degradation nor to bring science to the productive sector and society, changing consciousness and exploitation regimes. Scientific, environmentalist and even political organizations have increasingly gave attention and highlighted signs of evidence of a marked environmental degradation in some regions, but the implementation of muscled instruments for changing the status quo were scarce and much more recent. Regarding the South Atlantic, the awareness for environmental issues were even weaker, and although intense human pressures are more recent, the rate of degradation was high leading to an overall status inspiring concern. Northern countries have responsibilities in the South Atlantic since the exploration of living and non-living resources in this area was often leaded by them. In several contexts, namely fisheries, developed countries have put in action practices that were not in line with those allowed in their Economic Exclusive Zones, due to more rigid and environmental friendly legal frameworks. It is thus unfair the pressure that developed countries often put in marine conservation in those countries, since they are partially responsible for their environmental problems. Nonetheless, it should be mentioned that developing countries often adopt measures that may be more drastic and effective in terms of marine conservation than developed countries, as it is the case of some measures to decrease or prohibit fishing of certain species, and the designation of no take marine protected areas, as recently promoted in some countries of the South Atlantic (e.g. Brazil). More recently, some holistic and integrative perspectives for Ocean and coastal management have been proposed and/or implemented, in order to halt or revert ecosystem degradation, but expected results were not fully achieved. At the European level, the Water Framework and the Marine Strategy Directives were examples of these disappointing initiatives, as well as the Convention on Biological 19 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 20 Diversity, at the global level. The aims of these initiatives are extremely important and tackle relevant problems proposing complex, but interesting, methodological frameworks. However, the main targets of these initiatives are clearly unrealistic and unreachable, taking into consideration the deadlines and implementation methodologies, which may have a negative collateral effect of losing their public and political credibility, and thus discouraging these integrative and multinational initiatives in the future. The Water Framework Directive was published in 2000 and implemented some years later by European Union’s Member States. In 2000, the main aim of this legislative document was to ensure a good ecological status in all water bodies, including freshwater, transitional waters (estuarine systems) and coastal waters, until 2015. A set of indicators were established and monitoring programmes were put in action in order to do assessments and implement measures. Most of the countries were unable to reach these goals and implement plans, and as a consequence there is a growing political will to turn back to former assessment methods, or at least neglect some of the methodologies that were used. The Marine Strategy Directive was inspired in the Water Framework Directive and aimed to achieve a good ecological status of coastal and offshore waters until 2020. Again a delay between the publication of this document and actions taken by Member States occurred, followed by a discrepancy of the interpretation of this Directive at the methodological level. Although the main deadline of 2020 is yet to come, it is unrealistic to think that the main aim will be achieved. The third example, the Convention on Biological Diversity, aimed at the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. Some of the specific goals and foreseen scenarios were: by 2015, the multiple anthropogenic pressures on coral reefs are minimized so as to maintain their integrity and functioning; by 2020, pollution has been brought to levels that are not detrimental to ecosystem function and biodiversity; by 2020 all fish and invertebrate stocks are managed and harvested sustainability. Although a huge consensus on the ratification of this Convention occurred, some of these specific goals are impossible to achieve taken into consideration the deadlines, but especially due to the lack of means, of all sort, to implement measures. These strategic documents are extremely important but their goals and implementation frameworks should be delineated in a way that some positive results could be obtained within a fair period of time, which can effectively contribute to a growing consciousness that policies and real actions can improve environmental quality of marine ecosystems. Science and environmental challenges for the Atlantic One major challenge will be to continue to lead scientific research on Marine Sciences, since several other science development axes emerged recently, namely in Asia, being their contributions production increasing in quantity and quality. Due to the well documented scientific background, the Atlantic context promotes integrative studies and holistic approaches, difficult to implement in other regions where basic and/or historical data is scarce or absent. Other main challenge will 20 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 21 be to establish a basis for cooperative work and networking among counties of the Atlantic basin. This will be particularly difficult to implement since the economic, political and societal contexts are extremely different. Furthermore, funding programmes for science, including research projects, concerted actions and mobility of researchers are extremely needed, and should also involve setting priorities for research. Such efforts may contribute to diminish asymmetries between north and south and east and west in the Atlantic. Science for a better management and as the main support of public policies also urges. The wide scientific knowledge that exists for the North Atlantic did not contributed effectively for a sustainable management of natural resources and marine ecosystems. This is probably one of the weakest dimensions of science, although responsibilities should be shared by managers, governmental agencies and even citizens. There has been a very weak link between stakeholders, and a cooperative effort should be made in order to improve management. Responsibilities of scientific advice and management are diffuse, which did not contribute to an improvement in this domain. Indeed, very few examples can be found of penalties (of any kind) applied to scientists, technicians, administrations, governments, and even companies, as a consequence of bad advice, assessment or management of marine ecosystems. In the present moment, this is particularly relevant, since a new heavy exploitation period began a few years ago in the Atlantic, and in other Oceans, targeting both living (e.g. fisheries, marine organisms for biotechnological applications) and non-living resources (e.g. minerals, oil, gas), promoted under the blue economy concept. Applied science supporting all these human uses of the Ocean is deeply needed, incorporating the sustainability dimension, and consequently addressing environmental impact assessment and management as tools to achieve it. It should be particularly relevant to involve all stakeholders in decision making processes and to evaluate, at a strategic level, different economic development models. A major issue, that did not merit the proper attention in the past decades, is that economic development models incorporate a wealth solidarity among players, distributing costs and profits in a more equable way. This is particularly evident in some activities such as fisheries, where the risks and costs are usually much higher for fishermen, while profits and stability in the activity is on the side of the industry sector. Finally, the ultimate challenge will be to achieve or maintain a good ecological status for marine ecosystems. Probably, in many areas of the Atlantic this will not be possible due to decades of heavy exploitation and accumulated anthropogenic impacts, but for others, that have still the potential to reach that status, effective conservation plans should be implemented. These environmental goals collide, in a certain extent, with the economic development foreseen for the Atlantic, based on the blue economy, and that is why this will be a major challenge. The role of Portugal and the urge for a strategy In Portugal, scientific research had an impressive development since the 1980’s, which is reflected in all science indicators that can be considered. 21 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 22 According to the Portuguese Science Agency (Fundação para a Ciência e a Tecnologia) the scientific production measured by the number of papers published in international journals showed an increase of 600% to 1500%, between 1990 and 2008, according to scientific domain. The number of papers in co-authorship with foreigner researchers also increased markedly and reach 50% in 2009. The global investment in Science was 57 million euros in 1986, while in 2009 it was more than 1800 million euros. Marine Sciences followed this trend and its indicators were even more expressive than average. Research centres on Marine Sciences were well rated, and the majority developed cooperative and network research with the top excellence institutions worldwide. However, some major weaknesses that compromised the sustainability of the national scientific system were particular evident in the past years. One of these constrains was the fact that scientific research was not related to societal needs, nor to priorities set by the government. Obtaining successfully funds for research and fellowships for higher education lied almost exclusively in the merit of the research teams and candidates, independently from the themes of research. This aspect constibuted to the scarcity of employment opportunities in the productive sector, and, together with a low level of self-initiative for business of researchers, was responsible, in large extent, for the emigration of researchers and/or underemployment (i.e. below candidate’s habilitations or a outside his field of expertise). Also, public administration and governmental agencies did not benefit much from applied research to support public policies, since their role in directing science priorities or opportunities was neglected. In the past few years, a decrease in the funding for research, and especially for fellowships, was adopted. This unfavorable context lead to a decrease in some science indicators, and obliged the scientific community to strengthen networking with other research centres and companies in order to obtain funding. Although externalities, especially the economic crisis at the national and even at an European level, may influence severely the progress in Science in Portugal, the development of a national strategy for the scientific research integrating also other dimensions, namely environmental and socio-economic is crucial. In the past decades several strategies for different domains have been delineated in Portugal, but some never reach the phase of implementation. In some areas, particularly Maritime affairs, strategic documents have been produced in succession by several governments, without the development of actions or measures, and also without an evaluation of the results achieved. So the urge for a strategy for Portugal is not a matter of guidelines or documents, but mainly action plans with an integrated and holistic perspectives. In this context, it will be important to combine in a single plan the science, environmental, economic and management dimensions. The responsibilities of Portugal are huge and at the political level this was never used to promote the relevance of the country. Portugal as a coastline of 1793 km, which is the more extended Atlantic coastline in Europe, an actual Exclusive Economic Zone of 1.7 million km2, that will probably soon be expanded to ca. 4.0 millions km2, repre22 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 23 senting more than 40% of European Union’s EEZ (in European waters) and ranking Portugal between the biggest countries (considering maritime areas) of the world. Portugal is the 3rd world country with the highest fish consumption per person (ca. 60 kg person year; almost three times the European Union’s average value). Heritage, including arts, gastronomy and other societal dimensions, are strongly related to the sea, although these aspects are not promoted, even by tourism. Another major responsibility is related to the language. Portugal could have a leading role in the networking between Portuguese speaking countries, enhancing North-South and West-East cooperation in the Atlantic. The urge of a Portuguese strategy is related with the present momentum where other players are assuming relevant roles in these contexts, after which it will be much more difficult to have a leading role. Marine Science in Portugal should be considered as strategic and a priority. This should be reflected in programmes with calls for research projects, international cooperative research, research fellowships, and also an investment of applied science for industry and for supporting management. The tradition in Portugal is not defining priorities, which is difficult to understand in a country with severe financial constraints. The cooperative research that could be established between the scientific community and the productive sector should have the potential to leverage blue economy and simultaneously to create scientific jobs and producing the new generation of highly skilled professionals that could also have an important positive impact in the economy. Some marine ecosystems that may be found in Portuguese waters may be extremely attractive for a wider scientific community (e.g. seamounts, deep sea, hydrothermal vents, deep canyons, among others) that will be willing to develop cooperative projects together with national researchers promoting Portugal in Science. Science dissemination for a wider public has grown expressively in the past years and actions on Marine Sciences are usually extremely attractive. The Portuguese society has a strong relationship with the sea which is an excellent opportunity, not only for marine science dissemination but also other related subjects, namely general environmental relevant topics. The increase in ocean literacy may effectively contribute to changing people’s behavior, awareness and citizenship in certain domains, with potential positive effects on the marine environment. To achieve and maintain a good ecological status of marine ecosystems will be a huge major goal. Almost no efforts were made in the past in order to rehabilitate degraded habitats and the knowledge on how to do it is scarce. The huge investment that often is required and the long period of time needed to obtain good results clearly collides with other priorities that governments establish. The pressure that society may put in the need and urge of these actions will be critical to their implementation. These aspects regarding environmental health and marine ecosystems conservation are even more relevant taken into account the will to develop Portuguese blue economy. The promotion of human activities, especially those involving the exploitation of natural 23 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 24 resources, should encompass the sustainability dimension, which is not often the case. The recent legislative framework regarding the marine spatial planning in Portugal and the licensing of activities inspire concern since has a dominant emphasis on the economic dimension. The maritime spatial planning and management, and the implementation of the Marine Strategy Directive, will be critical in the next decade and will have enormous implications in all the aspects discussed above. These two instruments will surely promote or diminish the international relevance of Portugal, depending on the way they are implemented, which in large extent is just a matter of will and ability to conduct these processes. 24 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 25 2. FOREIGN SCIENTIFIC RESEARCH IN PORTUGUESE WATERS Jaime Ferreira da Silva Portuguese Navy Commander. Institute of Higher Military Studies. Researcher with the project at the Center for Public Administration and Public Policies, School of Social and Political Sciences of the University of Lisbon. 1. Introduction By ratifying the United Nations Convention on the Law of the Sea, Portugal gains sovereignty and jurisdiction rights over vast maritime territories with enormous economic and strategic value. These territories are the subject of growing interest by foreign actors since the scientific knowledge derived therein is a decisive factor for the achievement of their interests. In this study, we analyze the context of the foreign scientific research vessels activity in Portuguese maritime spaces. In fact, Portugal must pay attention to such an activity in order to preserve its national interests. Therefore, we begin by considering the acquired knowledge on the resources value of the Portuguese sea. We then proceed by analyzing the evolution of the foreign scientific research cruises activity in national waters, as well as its legal framework. The analysis we develop allows us to identify some vulnerabilities and gaps which need to be tied together. In this sense, we formulate possible lines of action keeping Portuguese national interests in mind. 2. The existing knowledge on the Portuguese waters natural resources The discovery of natural resources with economic value encourages the conduct of scientific research projects in maritime areas under Portuguese sovereignty or jurisdiction. According to the International Seabed Authority, there are evidences of mineral resources spread all over the Portuguese seabed. As we see in figure 1, within the 25 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 26 Portuguese Exclusive Economic Zone marked by the thin green line, we find polymetalic sulphides, cobalt-rich ferromanganese crusts, and polymetalic nodules. Figure 1 – Mineral Resources in the Portuguese Seabed Source: ISA (2014) Manganese, cobalt, nickel, and copper are constituents of these natural resources with great economic and strategic value due to their multiple uses in high technology industry. In the hydrothermal vents “Lucky Strike” and “Rainbow”, located in the MidAtlantic Ridge near the Azores Islands, mineral resources are also found in considerable quantities. For example, the hydrothermal field “Lucky Strike” contains approximately 1.13% of copper, almost 7% of zinc, 0.08% of lead, and 102 grams per ton of silver, while the “Rainbow” field has 10.92% of copper, almost 18% of zinc, 0.04% of lead, 40 grams per ton of gold, and 221 grams per ton of silver (Matias, 2009, p. 29). In order to assess the economic viability of exploiting ferromanganese crusts with high concentrations of cobalt, nickel, and copper, the Portuguese Task Group for the Extension of the Continental Shelf conducts a preliminary study. Following this study, it is estimated that a small area of approximately 1600 km2 could yield approximately 300 million euros per year (Abreu, et al., 2012, pp. 168, 169). This amount is equivalent to half of the Portuguese Neves Corvo mine annual income as one of the largest copper mines in the world. Regarding oil resources, there is evidence that in Portugal there are good conditions for the hydrocarbons formation and accumulation, especially in the deep and ultra-deep offshore. However, until the present day, it has not yet been possible to identify deposits whose explorations are economically viable. In order to fill in this gap, the rights to prospect for oil in the deep offshore were granted between 2007 and 2013 (see figure 2). 26 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 27 Figure 2 – Actual Status for Oil Prospection Concessions and Licenses Source: DGEG (2014) On the other hand, the uses for deep ocean genetic resources have not stopped growing, especially in recent years, as shown by graphic 1. 27 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 28 Graphic 1 – Number of patents involving marine genetic resources filed between 1973 and 2007 Source: Leary, Vierros, Hamon, Arico, & Monagle (2009, p. 189) Between 1973 and 1992, only 9 patents are registered, against 136 claims in the period between 1993 and 2007. We do not know the biogenetic resources capture locations of those claimed patents, but we believe that a high number of patents were registered in places different from those where they were discovered. The identified patents are classified according to categories reflecting five domains of use: chemistry, pharmacology, cosmetics, food, and agriculture. A sixth category is added for those patents that do not fall within any of the above mentioned categories. The distribution of patents according to these six categories is not homogeneous (see graphic 2). Graphic 2 – Percentage of patents per category of application Source: Leary, Vierros, Hamon, Arico, & Monagle (2009, p. 190) 28 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 29 Claims associated with marine biogenetic resources originate from only 31 of the 193 countries in the world. Ten countries own 90% of the patents deposited with marine genes, with 70% belonging to the top three. These countries represent only about 20% of the world’s coastline, but they benefit from access to the advanced technologies required to explore the vast genetic reservoir of the oceans. Benefits derived from the use of marine genetic resources patents may fuel further investment in marine bio prospecting, broadening the gap in oceanographic and biotechnological capacities among countries (Arnaud-Haond, Arrieta, & Duarte, 2011, p. 1521). According to the same source, there were 677 marine biogenetic patents in 2011. Considering that we only had 145 patents until 2007, we get the idea of an exponential growth in recent years. Ranking 1 2 3 4 Country USA Germany Japan France Patents 199 149 128 34 5 United Kingdom 33 6 7 Denmark Belgium 24 17 8 Netherlands 13 9 10 (…) 12 13 (…) 15 (…) 19 Switzerland Norway (…) Italy Canada (…) Spain (…) Russia 11 9 (…) 7 6 (…) 5 (…) 2 Table 1 – Patent claims for a gene of marine origin Source: Arnaud-Haond, Arrieta, & Duarte (2011) Although we do not know where the biogenetic resources are captured, there is a growing belief that a high number of patents are registered in other countries than those where they are in fact discovered. This point is attested by the fact that Switzerland, a small country without direct access to the sea, takes the 9th place in the list. This may raise issues that should be addressed by the international community, like bio piracy and illegal appropriation of genetic resources. 29 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 30 The potential market value of marine biogenetic resources is evident. In 2002, global sales of marine biogenetic resources related products, including anticancer compounds, antivirals, and antibiotics, are estimated to be worth 2.4 billion dollars. In 2005, the annual profits from a sea sponge used to treat herpes are between 50 and 100 million dollars, while earnings from an anti-cancer drug derived from marine organisms are estimated at about one billion dollars. In the same year, the drugs used in the treatment of patients with AIDS and AIDS-related complex, AZT and Retrovir, anti-viral compounds originally isolated from a Caribbean sponge, together are worth 50 million dollars, while in 2006, the annual sales of herpes treatment Zovirax are estimated at about 237 million dollars. The revenue from Prialt sales, a new pain medication of marine origin, reaches 12.3 million dollars in 2007, while only 12.1 million dollars in 2006. According to the Market Research Report on World Enzymes, it is expected that the world market for enzymes grows 7.6% per year to reach 6 billion dollars in 2011, driven by the continued growth in pharmaceutical enzyme demand (Leary, Vierros, Hamon, Arico, & Monagle, 2009, pp. 190, 191, 192). Since Portugal has a huge sea, there is reason to believe that wealth exists therein. As technology develops, this wealth will become more evident. Foreign organizations are probably looking for it, and it is imperative that the Portuguese authorities know exactly what these organizations are doing in Portuguese waters. 3. Foreign research activities in Portuguese waters As shown by the analysis of data on scientific research activities carried out by other countries in Portuguese maritime areas, between 2003 and 2012, 289 marine research activities take place (see graphic 3) which results in 7619 days at sea. This means that during this period we have on average two foreign ships a day conducting research activities in Portuguese waters. Graphic 3 – Research activities per year (2003 – 2012) Source: COMNAV (2013) 30 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 31 As we see in graphic 4, the number of days these research ships spent at sea increases from 431 days in 2004 up to 1299 days in 2008. From this year on, there is a decrease in the number of days at sea, which may be related to the global economic and financial crisis of 2008. In 2012, we experience an increase in number of days spent at sea, which may indicate that the cycle is reversing and we are entering a new increasing phase. Graphic 4 – Days performing research activities at sea per year (2003 – 2012) Source: COMNAV (2013) In this period, the data shows that 14 countries conducted operations in the Portuguese sea. Germany is the country that conducted the highest number of research activities in Portuguese maritime areas, followed closely by the United Kingdom, Spain and France. This fact does not surprise us, especially if we take into account that these countries have high economic, scientific, and technological capacities. These four countries together are responsible for about 75% of foreign ships days at sea (see graphic 5). Graphic 5 – Days performing research missions at sea per country (2003 – 2012) Source: COMNAV (2013) 31 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 32 Comparing the maritime biogenetic patents records with the foreign research vessels data, we come to the conclusion that among the top 10 countries with the highest number of marine patent claims, only Japan and Switzerland have not conducted any survey in Portuguese waters. As described above, Switzerland, a country without direct access to the sea, is in 9th place in the list of patent claims (table 2). Country Days at sea in Portuguese waters Ranking in patent claims Patent claims Germany 1623 2nd 149 United Kingdom 1581 5th 33 Spain 1277 15th 5 France 1256 4th 34 USA 437 1st 199 Netherlands 414 8th 13 Brazil 256 - - Russia 198 19th 2 Panama 154 - - Italy 149 12th 7 Norway 143 10th 9 Denmark 93 6th 24 Belgium 20 7th 17 Canada 18 13th 6 Table 2 – Comparison between days performing research missions in Portuguese waters and patent claims per country Source: Author On the other hand, Portugal, although a country with an immense sea area, does not have any patent claims associated with biogenetic marine resources. Regarding national maritime areas, it can be seen that the Mainland Exclusive Economic Zone has always been the one fomenting greater interest within the international scientific community (see graphic 6). 32 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 33 Graphic 6 – Number of research missions in Portuguese maritime areas (2003 – 2012) Source: COMNAV (2013) During the same period, this maritime area is visited 216 times which corresponds to about 62% of the total performed missions. In turn, the Economic Exclusive Zone of the Azores received 77 surveys, while the Economic Exclusive Zone of Madeira received 56, corresponding respectively to 22% and 16% of all missions conducted in national maritime zones (see graphic 7). Graphic 7 – Research missions percentages in Portuguese maritime areas (2003 – 2012) Source: COMNAV (2013) This data does not confirm the preconceived idea that the Azores’ Exclusive Economic Zone is the national geographical area that instigates more interest among the scientific community. 33 New Challenge of The Atlantic_Layout 1 15/07/20 14:58 Page 34 Due to an evident foreign interest in Portuguese maritime waters, we next analyze the legal mechanisms that Portugal can rely on in order to control foreign scientific marine research activities. 4. Portuguese legal framework The United Nations Convention on the Law of the Sea establishes that the coastal states have the right to regulate, authorize and conduct marine research in their Exclusive Economic Zone and on their continental shelf. It also states that marine scientific research in the Exclusive Economic Zone and on the continental shelf should be conducted with the consent of the coastal state, and to this end, coastal states should establish rules and procedures. According to the spirit of the law, Portugal establishes the legal framework under which foreign organizations may conduct scientific research activities in the Portuguese Exclusive Economic Zone. Thus, the application to conduct scientific research activities in the Portuguese waters must be submitted to the Portuguese Ministry of Foreign Affairs (MFA) within six months prior to the beginning of the activities, through the Embassy representing the interested organization. Following the reorganization of the Ministry of Foreign Affairs in 2002, a Unit for Over Flight and Naval Itineraries (UONI) integrates the General Directorate of External Policies (GDEP). This Unit now analyzes all requests for the use of national airspace and maritime areas by foreign aircrafts and ships. The application must at least specify the following elements: (i) the research nature and objectives; (ii) the method and means that will be used, including the ship’s main features and the description of its scientific equipment; (iii) the geographic areas where the activities will take place as well as national ports that will be visited; (iv) the ship’s expected times of arrival and departure as well as the expected date of research equipment installation and removal; (v) the identification of the sponsoring institution, its director, and the head of the project; and (vi) the indication if there is availability to accommodate Portuguese scientists on board during the mission. The embassy receives the application and then passes it on to Ministry of Foreign Affairs. If the survey is to take place in Azores’ or Madeira’s Exclusive Economic Zone, the Ministry of Foreign Affairs sends the request to the respective Regional Government, to the Ministry of Defense (MoD), and to the Intersectorial Oceanographic Commission (IOC). This last one being a Commission under the Ministry of Education and Science responsibility. On the other hand, if the survey is to take place in the Mainland Exclusive Economic Zone, the Ministry of Foreign Affairs only passes the request to the Ministry of Defense and to the Intersectorial Oceanographic Commission. 34 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 35 This Commission asks the Portuguese scientific community if anyone is interested in the data or the report of the survey. It also asks if someone wants to take part of the expedition and embark in the ship conducting the research, and then sends this information back to the Ministry of Foreign Affairs. Afterwards, the Ministry of Defense passes the request to the Portuguese Navy, through the Cabinet of the Chief of Naval Staff, which then passes it on to the General Directorate of the Portuguese Maritime Authority (GDMA). This agency is responsible to coordinate the process within the Navy, where the Naval Staff (NS), the Maritime Operations Command (COMNAV) and the Hydrographic Office (HO) are consulted. The Maritime Departments (MD) responsible for the areas where the cruises are to be conducted and the Submarine Squadron are informed of the submitted requests. The Naval Staff informs if the ship requesting the cruise is a warship or the equivalent. This is an important aspect since a warship is entitled to certain amenities not due to other ships, such as the identification of the person responsible for the project not being requested, nor the embarkation of Portuguese scientists. The Maritime Operations Command makes sure that the research activities do not interfere with any underwater navigation, which may already have been scheduled, and requires the ship to daily communicate its position, course, speed and ongoing activities as well as the positions of all anchored equipment, and research intentions for the next 24, 48, and 72 hours. When the Hydrographic Office considers the nature of the cruise relevant for its own mission, it requests that the results and conclusions of the research be delivered to them. In order to issue the due navigational warnings, the Hydrographic Office requires to be informed of any changes made to the ship’s navigation plan 72 hours prior. The Navy’s assessment is then sent back to the Ministry of Foreign Affairs. The authorization requests to conduct the research activities can only be considered if: (i) the locations where the activities are to take place have not been previously identified as waters relevant for defense purposes, or for prospection or reserve for environmental protection; (ii) the research activities have peaceful purposes and use scientific and technical methods which do not interfere with the preservation of marine life, its resources and archaeological underwater heritage; or (iii) if all the executive departments give their positive assessments to authorize the survey. Otherwise, if any of the previously mentioned agencies does not give its consent, the Ministry of Foreign Affairs will not authorize the research cruise and will communicate this fact to the respective Embassy and to the General Directorate of the Portuguese Maritime Authority (see figure 3). 35 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 36 Figure 3 – Flowchart of applications for conducting scientific research activities in Portuguese maritime waters Elaborated by the author After the research authorizations are granted, and whenever requested, the research organization is compelled to ensure that: (i) Portuguese scientists and technicians are allowed to participate in the project; (ii) the preliminary research reports are delivered to the Portuguese state; (iii) the access to the data and samples is guaranteed; and finally (iv) an assessment of the data and samples is provided. 36 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 37 5. Conclusions Portugal will scarcely be able to assemble by itself the scientific, technological, and financial capacity needed to explore autonomously the immense sea it owns. Hence, the need to establish partnerships or develop models for concession and licensing allowing the nation to benefit from the natural resources which exist in national maritime spaces. To enter negotiation, Portugal must be aware of the potential of the area where the research is to take place; otherwise it will not be able to guarantee the best advantages. Therefore, all activities conducted by foreign states in our waters must be rigorously accompanied and surveyed by the Portuguese authorities in order to guarantee that at least we own the same information that our partners do. As we see, there are a lot of issues to be addressed on this matter in order to best guarantee the Portuguese national interest. The first one is the issue of the existing national legislation and the necessity to align this legislation with the current national and international context. In this respect, we recommend the revision of the research activities authorization process. Taking into account the present governmental structure, the following departments should be consulted during the authorization process: (i) the ministry responsible for the environment and for the sea, concerning live and genetic resources; (ii) the agency with responsibilities in granting licenses for the prospection of energy resources; and (iii) the department responsible for the cultural underwater heritage. If these departments declare themselves favorable, the request should be sent to the Ministry of Defense and to the Intersectorial Oceanographic Commission, following the same steps that are taken today. If there are no irregularities or impediments, the request is approved. On the other hand, today there is no agency with the responsibility to actually control foreign scientific research cruises conducted in national waters. Therefore, it would be wise to have a single government department with the necessary competencies, and human and financial resources, to control the whole process pertaining scientific investigation carried out by foreign vessels in Portuguese maritime areas. This entity should have the following responsibilities: (i) coordinate the authorization process; (ii) monitor all activities during the research cruise; (iii) suspend the permission previously granted whenever the agreed conditions are disrespected; (iv) collect data and samples resulting from the project as well as the preliminary report, the final outcomes, and the conclusions; (v) elaborate a consolidated report of the activity conducted by foreign research ships in national waters that will be later disseminated by the competent national authorities; and (vi) follow the scientific articles published by the embarked scientists. The authorization process should be centralized in a platform to which all intervening departments should have access. This platform would allow anyone interested in the outcomes to request access to the data and samples gathered during the research project. 37 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 38 For an effective monitoring of the activities conducted during the cruises, it is fundamental to act at different levels. Firstly, taking into account the fact that national interests are above the private interests of the Portuguese scientific research organizations, the request for the data, samples and conclusions of the project cannot be left to the choice of the aforementioned organizations, and should always be requested. Secondly, it should be required that from the moment the request to conduct the cruise is presented, all the scientists to be embarked should be identified, instead of only the institution sponsoring the cruise, its director and the person responsible for the project, which is what happens today. This way tone would be aware of the publishing of scientific articles by any of these scientists. This may also be a way of confirming the reliability of the scientific report which the organization benefitting from the cruise is expected to present to Portugal. At the same time, the embarkation of Portuguese scientists should be mandatory. It should be established that only the cruises accepting Portuguese scientists on board are granted licensing. The Portuguese scientists should be recruited from a group of scientists specifically created for that effect. These scientists should guarantee the rigorous examination of the scientific activities carried out on board the vessel, and later on should send a detailed report of the activities to the agency responsible for the control of the marine research activities. At the same time, these researchers would benefit from the contact with other marine scientific research practices, which would enable the knowledge transfer and the consequent reinforcement of the national capabilities in this domain. To have an effective control of the ships’ movements, navigational records of the Electronic Chart Display and Information System or an equivalent system should be requested. Ships not fitted with the mentioned system or its equivalent should be required to hand in the automatic records of the ships’ GPS. At another level of control, if it should become useful to know the ships’ movements in real time, a device to continuously monitor the ship’s position should be set up onboard, similarly to what already exists on board fishing vessels. This equipment should be set up by national technicians, removed at the end of the mission, and made available for the next vessel. In another perspective, measures should be taken to allow for the enforcement of sanctions, in the case of disrespect of the agreed conditions to perform the cruise. Nowadays, in the case of a violation, Portugal may immediately suspend the authorization first granted. It is worthwhile mentioning that there is no penalty defined for the offender. The department detecting the violation sends the report to the Ministry of Foreign Affairs. In its turn, this ministry presents a protest to the embassy which submitted the request, asking for its cooperation to obtain further information on the incident. Therefore, it is appropriate to create instruments that allow the imposition of sanctions which may act as deterrence elements for future violations. 38 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 39 The above mentioned measures can be seen as steps that, if taken, will concur to a greater control over the activity conducted by foreign agencies in maritime spaces under national sovereignty or jurisdiction. Consequently, we get a more realistic picture of the competing interests in the Portuguese sea and we are in a better position to safeguard the Portuguese national interests. REFERENCES Abreu, M. P., Coelho, P. N., Lourenço, N., Campos, A. S., Conceição, P., Costa, R., et al. (2012). A Extensão da Plataforma Continental, Um Projeto de Portugal - Seis anos de missão (2004 - 2010). Lisboa: Associação Fórum Empresarial da Economia do Mar. Arnaud-Haond, S., Arrieta, J. M., & Duarte, C. M. (2011). Marine Biodiversity and Gene Patents. Science, pp. 1521-1522. COMNAN (2013). Fleet Headquarters - Planning and ongoing operations Division Statistical data regarding foreign research vessels. Oeiras: Comando Naval. DGEG. (2014). News. Actual Status - Concessions and Licences. Retrieved November 19, 2014, from Direção Geral de Energia e Geologia: http://www.dgeg.pt/ dpep/pt/info_pt.htm. ISA. (2014). Web GIS Application. Retrieved November 17, 2014, from International Seabed Authority: http://mapserver.isa.org.jm/GIS/ Leary, D., Vierros, M., Hamon, G., Arico, S., & Monagle, C. (2009). Marine genetic resources: A review of scientific and commercial interest. Marine Policy, pp. 183194. Matias, N. V. (2009). A Nova Descoberta do Mar. In AAVV, Reflexões sobre o Mar: Uma homenagem ao Vice-almirante António Emílio Ferraz Sacchetti (pp. 25-34). Lisboa: Edições Culturais da Marinha. 39 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 40 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 41 3. ESSAY ON A SYSTEM OF MARITIME INFORMATION FOR PORTUGAL Alexandre Adoa PhD in Social Sciences. Researcher at the Center for Public Administration and Public Policies, Institute of Social and Political Sciences of the University of Lisbon. Introduction The construction of a “System of Maritime Information” constituted with statistical data relative to maritime and port activity and the evolution of exportations of Portuguese goods and services, the dynamic of innovative and exporter enterprises, the performance of the fishing and aquaculture sector, the development and research of the sea sciences in the national territory, appears fundamental to academic, business and public access in general. The “System of Maritime Information” will cover a set of information on sea economy. The consultation of this information, collected in national and international sources, will be available on the site of Centro de Estudos Estratégicos do Atlântico (CEEAT). International Trading The real engine of Portuguese economic growth will be the enterprises, therefore, the economic development of the country is centralized on the sectors that produce goods and services tradable for export and on an Atlantic platform of services (for example, naval repair and construction, reception and distribution of natural gas). Portugal is one of the countries of the European Union nearest to the American continent and Panama Canal. The goods, when discharged into the Portuguese ports have to be disposed of quickly to Europe. Therefore, it is fundamental to take our competitive points. The external trade of goods and services represents 39.2% of the current values as a percentage of GDP (28.7% in goods and 10.5% in services), which 41 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 42 correspond to an annual real growth rate of 6.4% of the exports. The growth rates of exports in the previous 12 months, ending in September 2014, Angola registers (2.4%) and Brazil (10.3%), United States of America (7.2%) (rates of change %). Portugal has an Atlantic centrality, as it is located in a privileged geographic position, being the European country nearest to the American coast and linked to Community of Portuguese Speaking Countries (a space with over 250 million consumers sharing the language, which is Portuguese). The weak growth of the Euro Zone, where are concentrated the largest trading partners of Portugal, and the consequences of the strong breakdown of the oil price in Angola and Brazil will lead the Portuguese enterprises to bet on new markets, in particular on the other countries of Portuguese language, for example, Mozambique, Timor-Leste and Equatorial Guinea. However, Portugal still needs to bet more on the United States of America and China. The Transatlantic Trade and Investment Partnership – TTIP, which associates the European Union and the United States of America, promotes a new commercial referential in creating the largest economic integrated space of the world, benefiting the Portuguese economy in the trade of goods. The Portuguese international trading of goods and services shows a positive evolution since 2012 with a balance of 230.2 million euros, to register in 2013 a balance of 3.655 million euros (AICEP, 2014). In other words, for the first time since 1996 the exportations were superior to the importations. Analyzing for each country, there is a positive balance for Angola (1.944,6 million euros) and United States of America (1.672,6 million euros). The share of Portugal in world exports in 2013 registers a first place in the Harmonised System in articles of natural cork, agglomerated cork, articles of agglomerated cork, and natural cork, waste cork, crushed, and granulated or ground cork. The Portuguese Exports The Commission of the European Communities Green Paper entitled “Towards a Future Maritime Policy for the Union: a European vision for the oceans and seas” (2006) points out that maritime transportation and the ports are the key of the logistic chains that link the single market to the worldwide economy. In a world more and more global, their permanent efficiency and vitality are fundamental to the European competitive edge, which includes exports. Portuguese exports have increased in the extra trading of European Union, from January until September 2014 representing 28.5%. Angola has a weight of 6.3% of the Portuguese export total, Brazil (1.3%), and Mozambique (0.6%). In the Portuguese port network, the Lisbon Port stands out, which is constituted by an extensive riverfront, which in 2013 presented the largest movement of trading vessels, contributing to the increasing Portuguese exportations because of the wharf space available, the efficient port equipment, the qualified human resources, and good and safe road and rail land access. In the ten main markets of the port of Lisbon in 2013 are Angola (21.4%), Brazil (6.6%), China (6.6%), 42 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 43 Cape Verde (2.9%) and United States of America (2.2%). The Report for Sustainable Growth (December 2012) under the coordination of Jorge Moreira da Silva, considers as a challenge to “assume the sea is an engine for development and affirmation of Portugal in the world”. The investments in renovation and expansion of national ports with a view to economic competitiveness, will allow for an increase the Portuguese exportations, namely to the Community of Portuguese Speaking Countries, the giants - China and United States of America, and other new markets. The Portuguese innovative and export enterprises should utilize economic and competitive intelligence using maritime trade for markets in economic growth. System of Maritime Information The System of Maritime Information will start as a first phase, in the second semester of 2015, doing two jobs, essentially, providing statistical information about the sea economy. This first task will describe the national maritime activity and the international trading of the exports, with special emphasis on the Portuguese exports and their destiny within the Community of Portuguese Speaking Countries, United States of America and China, and even include the movement of national maritime ports and the goods loaded and unloaded. The second task will be focused on the fishing sector, with information about the fishermen, fish, fleet, aquaculture, as well as a characterization of the enterprises and employment in the sector “fishing and aquaculture”, and about the passengers, in particular of the transatlantic ships. This work will show the maritime reality of the Portuguese ports and of the fishing sector, and be available for consultation in the site of Centro de Estudos Estratégicos do Atlântico through the elaboration of tables and graphics with an indication of the collection of the statistical data sources, without any comments or political analysis, in the case of those documents targeted to a specific audience interested in the importance of the sea as an engine of Portugal’s economic development. In the future, it is intended to implement a data base with indicators on Crescimento Azul, also available online at CEEAT, allowing for the creation of an observatory for political aspects and for business people. As an example of a set of indicators relative to exports and port activity that will be included in the System of Maritime Information, see the following data sets: Enterprises extra-EU exporting goods (€) by concentration of enterprises and economic activity; enterprises extra-EU exporting goods (€) by employment size, class and economic activity; enterprises exporting goods (€) by partner country and economic activity; export intensity (%) by geographic localization; proportion of exports of high technology goods (%) by geographic location; movement of goods (t) in ports by specific port; type of movement and type of flow of goods; loaded goods (t) by place or origin/destination and type of cargo; loaded goods (t) by group of goods and type of cargo; loaded containers (number) by specific port and dimension of containers. 43 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 44 The time horizon of the statistical information will be from 2006 until 2013. This is the period covering the last year of the III Community Support Framework and of the last year of the National Strategic Reference Framework. It is recalled that the III Community Support Framework included the Fisheries Operational Programme and the Operational Programme for Accessibility and Transport. The next community framework of 2014-2020, intitled Portugal 2020, describes the Programa Operacional do Mar 2020. The collection of information on the sea economy will provide statistical data from the Statistics Portugal, Office for Strategy and Studies, Bank of Portugal, and Instituto Portuário e dos Transportes Maritimos, from Lisbon Port. This will be presented, for the countries selected as indicators, and in particular with the economic growth previsions of the International Monetary Fund and the demographic projections of the United Nations, Department of Economic and Social Affairs. Later, the statistical information of AMECO (Annual Macro-economic database of the European Commission’s Directorate General for Economic and Financial Affairs), EUROSTAT (statistical office of the European Union), The World Trade Organization, The United Nations Conference on Trade and Development and International Trade Centre, and the World Economic Forum and Food and Agriculture Organizations of the United Nations will be provided. It is intended, as well, to include a characterization of the Portuguese cities that are facing the Atlantic Ocean with maritime ports, analyzing the evolution of some indicators, such as, resident population according to age groups and sex, foreign population, ageing ratio, old-age dependency ratio, crude rate of natural increase, crude migratory rate and the labor market with information on the rate of growth of employees in establishments with < 10 workers, employees in establishments by city according to main activity (CAE-Rev3) and sex, average monthly earning of employees in establishments by municipality, to sector of main activity (CAE-Rev3). In addition, in the area of higher education, we intend to list the courses, of the first, second and third cycles in the area of sciences for school year, number of students and report on the graduates of higher education establishments, in the area of science and technology, specifically in the scientific area called “sea sciences”, and identify the centers of research and development, their geographic distribution, the number of investigators and include the fellowships for doctoral and post-doctoral course work. The System of Maritime Information will collect statistical data from national and international sources about the port and maritime activity, that will cover the trading Intra-European Union and Extra-European Union, but mainly the countries of the strategic plan of AICEP Portugal Global – Trade & Investment Agency. It is intended, also, to identify the classification on the Human Development Index of the countries designated to receive Portuguese exports and describe what type of goods are sold. The “System of Maritime Information” is created in a new phase of internationalization of the Portuguese economy, and must provide for the elaboration of strategic trading studies for the Portuguese enterprises with export capability. The conclusions of the fourth Conselho Estratégico para a 44 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 45 Internacionalização da Economia are important to create a Plataforma de Inteligência Económica. According to Doing Business 2015 (comparing business regulations for domestic firms in 189 economies) of the World Bank Group Flagship Report, Portugal is in the twenty-fifth position of the ranking, better prepared to make business than Spain, Italy and Greece. Portugal is in the thirty-sixth position of the ranking The Global Competitiveness Index, growing, compared to 2013-2014, where it was at the fifty-first position. Facing the geostrategic positioning of Portugal of easy access to African and Latin American markets, it is important to characterize the trade of the triangulation Portugal – Brazil – Angola, for example, and analyze the evolution of the merchandise and the type of goods exported and imported. Angola is one of the countries with higher economic growth rate of the world. According to The International Monetary Fund, the historical value of 22.6% of the real GDP growth was registered in 2007. The high growth rate of Angola is motivated by the petroleum sector that benefited from the increase of petroleum prices and of a petroleum production growth. Cabinda has two thirds of the petroleum resources of Angola, allowing for the consolidation of the position as leader of petroleum production, assuming in 2009 the presidency of the Organization of the Petroleum Exporting Counties. While, at the same time, Brazil shows a low economic growth rate (0.3% in 2014 – IMF), but has potential to become a great petroleum exporter. Conclusion The construction of the System of Maritime Information will consist of a set of annually updated indicators describing Portugal’s maritime and port activity, and the evolution of the Portuguese exportation, namely to Extra-European Union countries by sea, and the characterization of the cargo loaded to the destiny countries, and the importations of goods by country of origin to the Portuguese ports, to the dynamic of the fishing sector, involving employers and enterprises, and including the development of aquaculture, and the economic, social and territorial profiles of the cities with ports. In the area of tourism, the impact of the transatlantic passengers will be measured, and in the area of higher education, the contingent of students/graduates in sea sciences courses will be measured, as well as in the area of science and technology, where we will follow the scientific projects and the scholarships given in the natural sciences. The statistical data collected that will be included in the System of Maritime Information, will be obtained from several national and international organizations, this means, a set of selected indicators relevant for a sea economy approach. The main purpose is to create an academic and business system of information and an instrument for political and policy analysis. This consultation of information will permit better understanding of the trajectory of the principal economic and trading indicators, and serve as a crucial tool for economic diplomacy serving the national interest. 45 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 46 BIBLIOGRAPHY Doing Business 2015 – Going Beyond Efficiency http://www.doingbusiness.org/reports/global-reports/doing-business-2015 Graça, Pedro Borges (2008a) Por Um Sistema de Informações Estratégicas Marítimas, in AAVV, 1º Simpósio das Marinhas dos Países de Língua Portuguesa, Cadernos Navais n.º 26, Grupo de Estudos e Reflexão Estratégica / Edições Culturais da Marinha (131-138). Graça, Pedro Borges (2008b) O Papel das Informações Estratégicas na projecção marítima de Portugal, in AAVV, Seminário Uma Visão Estratégica do mar na Geopolítica do Atlântico, Cadernos Navais n.º24, Grupo de Estudos e Reflexão Estratégica / Edições Culturais da Marinha (87-96). Graça, Pedro Borges (2009) Mundo Secreto. História do Presente e Intelligence nas Relações Internacionais. Instituto Superior de Ciências Sociais e Politicas, Universidade Técnica de Lisboa. Medeiros, Eduardo Raposo (2013) Economia Internacional. 9.ª Edição. Instituto Superior de Ciências Sociais e Politicas, Universidade Técnica de Lisboa. Office for Strategy and Studies (2014) Pocket Statistics - International Trade Statists 11/14 Ribeiro, José Manuel (2014) A Economia de Uma Nação Rebelde. Guerra e Paz. Statistical Portugal (2014) Statistical Yearbook of Portugal 2013. The Global Competitiveness Report 2014-2015. http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2014-15.pdf 46 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 47 4. BETWEEN TAX HAVENS AND FLAGS OF CONVENIENCE: HANDLING OF CARGO IN BRAZIL AND AT PARANAGUÁ HARBOR Luís Alexandre Carta Winter Catholic University of Paraná. Consultant with the Project. Marcos Wachowicz Federal University of Paraná. Consultant with the Project. 1. Introduction International trading follows inexorable logics: the added value. The aim is to limit costs and maximize profit. This means to pay the lowest amount in taxes possible, and parallel to that, manage to lower the social charges, but with no need to lower the final price of the product for the consumer. Thus, the target is to increase the percentage of profit. Intrinsically, there is nothing wrong with such capitalist logics, but this is only a finding. The current article aims to translate such a finding by analyzing within the capitalist system two aspects, and the impact that these two questions cause on international commerce. Tax havens and flags of convenience arise from various needs within international trade, and together, they are responsible for considerable portions of international trade. The manifestation of this is the handling of cargo in Brazilian harbors, particularly at Paranaguá Harbor, of ships from countries that are not only flag of convenience ships, but also come from tax havens. 2. Tax Havens: differentiated parameters for conceptualization and configuration1 As an objective parameter, the site of an offshore company, which is managed out of Brazil, but advertises its products here, gives a precise definition in a rather simple and straightforward way on what tax haven means, and the differences 1 Updated adaptation of an extract of the thesis for contest for the post of head professor at PUCPR, 2010. The full piece of work has been sent to the U.S.A for publication and it is still unpublished. 47 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 48 between tax avoidance and tax evasion, demonstrating the advantages of investing legally in a tax haven country. It defines tax haven as: Any country that does not apply taxes over income, or that applies taxes at a rate below 20% (according to the Brazilian standards). ... tax havens may be used in licit form. The tax payer has the right to seek legal ways to reduce his tax burden, as much as the so-called tax havens have the right to organize their economy in order to attract foreign capital. Therefore, we should set the difference between tax avoidance and tax evasion. Tax avoidance is a way to lower the amount to be paid on taxes through various legal means by performing a tax paying plan, while tax evasion is an illegal way of omitting the payment of taxes that are duely applied. Any financial operation performed in a foreign country must be declared. It is important to know the legislation of the countries involved, for what is legal in one country might not be legal in another. The use of tax haven countries in a legal form may happen through structures aiming at tax payment plans, structures for inheritance planning, asset protection, offshore investments, partnership holdings, copyright patents and royalties holdings, among others (according to the legislation of the country in question). The British newspaper, “ Economist” used the definition by Geoffrey Colin Powell, ex Economy Advisor of Jersey Island: “What identifies a certain area as being “tax haven” is the existence of a set of structural tax measures deliberately created to take advantage of, and exploit, the global demand of opportunities to involve in tax evasion”. The Economist highlights that through this definition several regions traditionally considered “tax haven” would be excluded3. Similar situations to the current so-called tax haven are, according to Helcio Kronberg, as old as taxation itself. The existence of warehouses in tiny islands close to the Greek ports where the ships were supposed to harbor, consistent in storage to avoid the taxation by 2% over the goods at landing, as well as the tax benefits offered by Flanders, Belgium, the Netherlands and, later on – precisely after the Second World War –, by France, for instance, point to the old age of this phenomenon. However, the standard form of production of various sorts of goods, as well as the decrease in costs of transportation and its improvement, the technology revolution and the lowering of customs tariffs by means of international treaties focusing on the integration of markets were some of the factors that widely contributed to the circulation of goods and, consequently, of capital and services – which fueled the competition and market share dispute on a global scale.4 http://contabancariaoffshore.com/Lista-de-Paraisos-Fiscais.htm access on May 9th, 2014. http://melloassociates.weebly.com/paraiacuteso-fiscal.html access on May 13th, 2014. 4 Considering the historical evolution of the phenomenon of tax havens, see KRONBERG, Helcio. A livre circulação de capitais no MERCOSUL. São Paulo: Hemus, 2003, p. 81-84. 2 3 48 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 49 Many are the ways through which tax evasion can be noticed, and the most frequent ones can be easily seen through the manipulation of transference prices between headquarters and branches, as they are followed by what is called “bicycle operation”, that is, operations of tax remittance that are not declared to the local tax authorities, using the parallel market, taxes that return through offshore corporations5 situated in countries whose tax policy is based on a damaging fiscal competition regime.6 A posteriori, the amounts are repatriated for benefit of foreign investments, in order to soften or even to suppress the fiscal incidence over such values. In summary, damaging fiscal competition occurs when outstanding or unjustifiable fiscal advantages become the main reason for the location of an activity or income. For Vallejo Chamorro, the increase in importance of the phenomenon of the so-called tax haven is the result of basically two factors, which at times arise either from the capital flow liberalization, or from the internationalization of the economy: on one side is a high volume of financial resources susceptible to being sent to those destinations that offer the best investment conditions (profitability) and, on the other hand, a qualitative/quantitative offer of preferential regimes that are attractive in terms of taxes.7 Concerning the first factor, it is known that the notable growth of the international economy, since the late 1970s reveals a considerable fracture line in the process of financial liberalization. That is explainable. While capital has become basically quite immobile, the systems to track the international flow of money coming from illegal acts are almost all from a national source. Therefore, the considerations of John Christensen, economist and secretary-general of the Fiscal Justice Network, point to the fact that it is not surprising that the result has been a massive growth of the international flow of money that is illegally set – many times in the form of false sales slips and alterations in the setting of prices of transference between subsidiaries of multinational companies.8 Concerning the second factor mentioned, one should highlight the existence of a collision of intentions and interests that, in the view of José Carlos de 5 An offshore is a company situated abroad, subject to a differentiated legal regimen, and extraterritorial in relation to the domicile country of its associates. It is fair to clarify that the international financial centers differ from the offshore financial centers, as once in the former we can see the existence of headquarters of multinational corporations – usually in jurisdictions where high levels of taxation prevail, such as London, New York or Tokyo – while in the latter only branches are established for tax planning ends. Confidentiality is the main attractive issue of an offshore center, once in many of these jurisdictions there is the admission of partnership formations with bearer bonds, therefore ensuring discretion because the resources deposited in the offshore centers are not declared to the tax authorities. See KRONBERG, op. cit., p. 116/119. POLAK, S. Constituição de companhias Off-Shore. Revista Contábil & Empresarial. Available in: http://www.netlegis.com.br/ indexRC.jsp?arquivo=/detalhesDestaques.jsp&cod=11668. Access on September 5th, 2014. 6 KRONBERG, op. cit., p. 83. 7 According to CHAMORRO, op. cit., p. 148. 8 According to CHRISTENSEN, John. Tax havens and corruption – a global fight. Observatório da Cidadania – Instituto Brasileiro de Análises Sociais e Econômicas, Rio de Janeiro, 2007, p. 40. 49 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 50 Magalhães, has been hard to solve.9 The State, loyal to the principle of territory jurisdiction and to the limitations deriving from it, cannot interfere in the decision of a company in terms of reinvesting the profits of the subsidiaries established abroad, especially before the legitimacy of the laws of the place where they operate. However, the intention to control exported investments is based on considerations of a political, strategic or defensive nature, which according to the author above mentioned, means that the national wealth, exported as investment, must always serve the aims of the State – or, in general terms, the national community where it originated.10 Magalhães goes ahead in his analysis, highlighting another aspect of the matter, which is the one on the jurisdiction or on the country hosting the investment. According to the author, it is not only for the purpose of controlling access to capital that concerns the intention of the recipient States to regulate the action of the foreign investor. That is, “the admission of foreign resources is linked with the State’s need of development that the private company can offer with the transference of capital and technology.”11 This is linked to the maintenance of free competition, whose effect would not be any other but to encourage foreign investment and to promote, consequently, local economic development in several aspects. Bearing that in mind, the possibilities offered by tax policies applied in certain countries and territories allowed for the most negative aspects of the tax competition mentioned above to reach alarming levels of revenue loss. This has been subject of various studies on the current situation and the possible adoption of corrective measures. A proponent of such studies is the Organization for Economic Cooperation and Development – OECD. Launched in 1998, the performance plan of OECD on the problem in question grew to include 100 countries, and intended to develop a global map of the so-called tax havens and to have the commitment of the jurisdictions included to increase their transparency standards and exchange of information.12 Therefore, one of the central issues discussed in April 2009 at the 2009 G20 London Summit was the complex problematic point arising from tax havens. Participants of the G20 London Summit included the G7 leaders, the group of richest countries in the world (United States, Japan, Germany, Great Britain, France, Italy and Canada), the emerging powers of the so-called BRICS (Brazil, Russia, India, China and South Africa), plus Saudi Arabia, Argentina, Australia, South Korea, Indonesia, Mexico, Turkey and the European Union. The British government also invited to the meeting Spain, the Netherlands, Ethiopia – repreVer MAGALHÃES, José Carlos de. Direito Econômico Internacional. Curitiba: Juruá, 2008, p. 250. 10 Magalhães points out, indeed, the fact that investments in countries that are considered enemies or with those where there are no friendly relations have been forbidden, based on the foundations shown above. MAGALHÃES, op. cit., p. 250. 11 MAGALHÃES, p. 258. 12 For more details see Tax in a Borderless World: The Role of the OECD. Disponível em: www.oecd.org/ctp. Access on September 5th, 2014. 9 50 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 51 senting the African Union – and Thailand, which represents the countries of the ASEAN (Association of Southeast Asian Nations). According to the parameters of the OECD,13 a tax haven is the State or territory in whose jurisdiction we can observe tax dumping or the absence of some or all taxes that are usually applied. In such cases, there are three factors used for the characterization of a tax haven: 1) no imposition of taxes that are only nominal (although this criterion is not enough by itself to lead to the characterization of a tax haven). The OECD recognizes that each jurisdiction has the autonomy to determine the imposition of taxes and, in some cases it can determine the corresponding calculation bases, or other criteria of analyses; 2) the lack of transparency (in the sense of existing laws or administrative practices that disturb the efficient exchange of information about taxation with other governments and tax payers); 3) the absence of a substantial activity (the lack of such activities suggests the existence of external investments and the default of tax payment in their countries of origin or even for money laundering). As a whole, and based on the report of April 2, 2009 – updated on November 5, 2010 –, the OECD characterizes as tax haven in a damaging context: Liberia, Montserrat Islands, Nauru, Niue, Panama and Vanuatu.14 Another parameter for classification and analysis is the one used by Receita Federal do Brasil (the Brazilian tax authority). According to the 1st article of Instrução Normativa RFB nº 1,037 of June 4th, 2010, tax havens are the countries or dependencies that do not apply taxes to income or that apply taxes to a level below 20% (twenty per cent) or, yet, those whose internal legislation does not allow access to any information related to the shareholding composition of legal persons or to ownership. According to Helcio Kronberg,15 some essential characteristics are added to those already mentioned, in order for a tax haven country to be so labeled. They include political/legislative and social stability; protection of a rigid banking and commercial secrecy; a very well-equipped infrastructure (transport, communication network); availability of financial and professional services (lawyers, accountants and capable auditors); and international standards of regulation and banking and financial supervision, as well as absence of money exchange control. At this point, we can see a considerable rigidity of classification criteria used by the Receita Federal do Brasil when compared to the parameters adopted by the OECD. The OECD considers the following countries as “tax havens”16: Andorra; Anguilla; Antigua and Barbuda; Dutch Antilles; Aruba; Bahrain; Barbados; Belize; Campione D’Italia; Cyprus; Singapore; the Bahamas; Djibouti; 13 The information available in this paragraph can be checked at http://www.oecd.org/ dataoecd/38/14/42497950.pdf. Access on September 5th, 2014. 14 Available at http://www.oecd.org/dataoecd/38/14/42497950.pdf. Access on September 8th, 2014. 15 According to KRONBERG, op. cit., p. 172-173. 16 http://www.keepeek.com/Digital-Asset-Management/oecd/taxation/addressing-base-erosion-andprofit-shifting_9789264192744-en access on Septemer 5th, 2014. 51 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 52 Dominica; United Arab Emirates; United States (no tax is collected from residents that have lent capital to another country, which stimulates the investor to apply interest in his own economy); Federation of San Cristobal and Nevis; Gibraltar; Granada; the Netherlands; Hong Kong; Autonomous Region of Madeira; Isle of Man; Niue; Bermuda; Cayman Islands; Cook Islands; Canal Islands (Alderney, Guernsey, Jersey and Sark); Marshall Islands; Mauritius; Montserrat Islands; Turks and Caicos; American Virgin Islands; British Virgin Islands; Labuan; Lebanon; Liberia; Liechtenstein; Luxembourg (considering the holding societies, in the legislation of Luxembourg, through the Law of July 31st, 1929); Macau; Maldives; Malta; Monaco; Nauru; Panama (viability for the installation of shipyards); Paraguay (tax exemption for companies that are installed there and total repatriation of profits are also allowed); Costa Rica; American Samoa; Western Samoa; San Marino; Santa Lucia; San Vicente and Grenadines; Seychelles; Switzerland (moderate levels of taxation and banking secrecy); Sultanate of Oman; Tonga; Uruguay (0.3 % tax rate for a company of financial investments); Vanuatu (also New Hebrides). According to Receita Federal do Brasil (based on article 1st, items I to LXV of the Normative Instruction RFB n 1,037 of June 4th, 2010), the following countries should be considered tax havens of a damaging nature: Andorra, Anguilla, Antigua and Barbuda, Netherlands’ Antilles, Aruba, Ascension Islands, the Bahamas, Bahrain, Barbados, Belize, Bermuda, Brunei, Campione D’Italia, Canal Islands (Alderney, Guernsey, Jersey and Sark), Cayman Islands, Cyprus, Singapore, Cook Islands, Costa Rica, Djibouti, Dominica, United Arab Emirates, Gibraltar, Granada, Hong Kong, Kiribati, Lebuan, Lebanon, Liberia, Liechtenstein, Macau, Madeira, Maldives, Isle of Man, Marshall Islands, Mauritius, Monaco, Montserrat Islands, Nauru, Niue, Norfolk Island, Panama, Pitcairn Island, French Polynesia, Qeshm Island, American Samoa, Western Samoa, San Marino, Santa Helena Islands, Santa Lucia, St. Kitts and Nevis, Saint Pierre and Miquelon, Saint Vincent and the Grenadines, Seychelles, Solomon Islands, Swaziland, Switzerland,17 Sultanate of Oman Tonga, Tristan da Cunha, Turks and Caicos, Vanuatu, American Virgin Islands and British Virgin Islands. The global scenario has gone through significant changes that result from a variety of phenomena suh as the multiplication of the number of international economic transactions, especially in the areas of services, capital and information transference, improvement and cost reduction of the tools and logistic processes, as well as the increase of tax competition among countries, especially with the aim to attract capital and external investment.18 Precisely in relation to this latter issue, tax practices aimed at the international market allow for state policies to perform an important role concerning competition for private capital. The effects of including Switzerland in the list of tax haven countries were neutralized with the Executive Declaratory Act RFB n. 11, of June 24th, taking into account the revision request made by the Swiss government. 18 See THORTENSEN, Vera. A OMC – Organização Mundial do Comércio e as negociações sobre investimentos e concorrência. Revista Brasileira de Política Internacional, Brasília, 1998, ano 41, n.º 1, p. 58-59. Also CAPARROZ, Roberto. Comércio Internacional, SP: Saraiva, 2012, p. 43 e 44. 17 52 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 53 In such circumstances, the creation of exemptions and incentives of the most varied nature for foreign investors, in order to attract and retain goods and capital, in an attempt to increase the potential of income generation and job vacancies and, above all, of social and economic development, has crystallized a competitive process of tax competition that is coherent with the globalization of markets. In terms of taxation, and based on the policies adopted by the country that receives the investment, it is observed that such treatment acquires a double aspect, which José María Vallejo Chamorro classified as healthy tax competition and damaging tax competition.19 While the former aims at eliminating inefficiencies and increasing neutrality of the tax systems, the latter tends to use the tax system as a comparative advantage of tax privileges that are not suitable in order to attract capital. From this point of view, it is appropriate to highlight that tax havens (the countries or jurisdictions where the tax policies are as described above) are recurrently taken as strongholds of illicit aims such as money laundering. In fact, the distinction described by Chamorrro fits such a notion, but only tax havens of a damaging competition regime should be considered so. Therefore, if by one perspective the damaging tax competition appears to be relevant – if not the most relevant one – contributing to the economic development of certain States or jurisdictions, its existence leads to diverse problems concerning those other countries, which do not offer substantial incentives, and can see their levels of internal investment and generation of work positions decrease substantially, as well as their income potential, when compared to so-called tax haven countries. 3. Flags of Convenience The United Nations Convention on the Law of the Sea (UNCLS III) in its article 91.1 states that: 1 – Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must be a genuine link between the State and the ship. 2 – Every State shall issue to ships to which it has granted the right to fly its flag, documents to that effect. In other words, there must be a deep connection between the country and the ship that flies its flag. Eliane Octaviano Martins20 sustains that the UNCLS I, the 19 According to CHAMORRO, José María Vallejo. La competencia fiscal perniciosa en el seno de la OCDE y la Unión Europea. Nuevas Tendencias en Economía y Fiscalidad Internacional Revista ICE, Madri, set./out. 2005, n.º 825, p. 147-160. 20 MARTINS, Eliane M. Octaviano, Curso de Direito Marítimo, vol.1, 3.ª.ed. São Paulo: Manoli, 208, p.170. 53 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 54 conference of Geneva of 1958, established in its article 5, the need for an authentic, genuine or effective relation between the ship and the State of register. However, that relation never really reached effectiveness, so what prevailed was the principle under which the conditions and pre-requisites of concession of a flag must be invariably established by the country of register, and more: The State of the flag must exercise its jurisdiction in conformity with its internal right over every ship that flies its flag and over the chief in command, the officials and the crew as a whole, concerning administrative, technical and social matters that are related to the ship. Therefore, the concept of an authentic relation becomes imprecise due to the lack of a formula accepted by the international community. Eliane O. Martins21 sustains that there are several criteria used by the legislations of the States to determine the nationality of a ship, which are: the ship-building criterion (USA); the property criterion (Germany, England, Argentina, Portugal); the composition of the equipment criterion (Chile, Romania); and, finally, the mixed system criterion (Brazil, France), where the concession of a flag must fill a series of requirements. One of the presuppositions of existence of Public International Law is the plurality of Sovereign States, that is, that States are free to legislate as they find appropriate. A ius cogens of an international norm that obliges a Sovereign State to proceed in relation to an administrative issue such as the registration of a ship would not be admissible. Bearing that in mind, the existence of flags of convenience is possible. The flags of convenience, together with the second registrations, which are not the object of analysis in this article, form the so-called open regimes, though they do not live up to their name, that is, convenience. Using a country’s flag, instead of the flag of the ship owner, may bring several advantages. During the Second World War, for instance, before the year 1942, that was used by American ship owners to go around the government prohibition on the export of goods to the countries that were in war against each other. The ship owners used the flag of Panama. On one hand, by having flexible labor and tax laws and for charging specific and fixed amounts, the countries that “lend” their flags can get an income that they wouldn’t actually get under other circumstances. On the other hand, the ship owners can have a benefit in their earnings, through a final freighting price, and the amount charged on taxes added to social charges is quite substantial. The ship owner earns by paying lower taxes and also earns by hiring equipment operators who are not members of a union, at much lower costs, or as Eliana O. Martins22 would state it, in… …the globalized scenario, navigation companies proceed to the strategy of adopting a flag of convenience, motivated by facilities of reg21 22 Op. Cit., p. 170, 171. Op. Cit., p. 173-74. 54 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 55 istration procedures, tax incentives, cutting down of labor costs and the inexistence of impositions as to the liaison between the State where the registration is made with the ship itself. Consequently, there is lower incidence of right-cost in the sea freighting. Carla Adriana Comitre Gibertoni23 defines Flags of Convenience as “the concession of some States of their nationality to some foreign ships. They are ships that, by being owned by people that inhabit a country, are registered in another country due to the benefits gained with the legislation of such countries”. The International Transport Workers’ Federation (ITF)24 defines Flag of Convenience – FOC – as the condition of a lack of liaison between the ship owner and the ship flag, that is, when the beneficiary ownership and control of the ship are located in a country or countries other than that of the flag the ship belongs to. The main countries using the flag of convenience to date are25: Liberia, Panama, Honduras, Costa Rica, the Bahamas, Bermuda, Singapore, the Philippines, Malta, Antigua, Aruba, Barbados, Belize, Bolivia, Burma, Cambodia, Canary Islands, Caiman Islands, Cook Islands, Cyprus, Equatorial Guinea, International Maritime Register of Germany, Gibraltar, Lebanon, Luxemburg, Marshall Islands, Mauritius, Dutch Antilles, Saint Vincent and Grenadines, São Tomé e Príncipe, Sri Lanka, Tuvalu e Vanuatu. In an interesting piece of work, Álvaro Sardinha26, considering the size of the fleet that use the flag of convenience, points out that… …almost 42% of the world fleet is registered in Panama, Liberia and the Marshall Islands. Over 92% of the demolition of ships is performed in India, China, Bangladesh and Pakistan. Basically half of the world tonnage belongs to companies from four countries only: Greece, Japan, Germany and China. The transportation of cargo in containers holds 52% of the total amount of commerce through ocean transportation. For the other States, those that do not use the flags of convenience, the impact on the revenues from freighting is huge. Eliane O. Martins27 sustains that… ...in Brazil, only 3% of the total amount collected with freighting derives from ships that hold the Brazilian flag and, generally, in cabotage navigation. It is estimated that the evasion of taxes resulting GIBERTONI, Carla A.C., Teoria e Prática do Direito Marítimo, 2.ª ed. RJ: 2008, p. 60. http://www.itfglobal.org/itf-americas/flags-convenience.cfm/ViewIn/POR, access on September 8th, 2014. 25 Source: http://www.popa.com.br/docs/cronicas/bandeira-de-conveniencia.htm, access on September 7th, 2014. 26 http://transportemaritimoglobal.files.wordpress.com/2013/09/registo-de-navios-estados-de-bandeira.pdf access on September 8th, 2014, p. 5. 27 Op. Cit., p. 177. 23 24 55 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 56 from the use of FOC was as much as 6 billion dollars in 2002. Currently, there are no Brazilian ships of a regular line (liners) in long course navigation. If, on one hand, the flags of convenience reduce the costs of the ship owner, on the other hand they prevent the State from controlling them appropriately, especially as to safety procedures and the application of labor regulations and laws. That results in an increase in the number of accidents, which have been reported by the world’s merchant navy involving ships with flags of convenience. 4. Handling of Cargo in Brazil and at Paranaguá Harbor Considering Brazil, the Annual Report of Cargo Handling from ANTAQ (Agência Nacional de Transportes Aquaviários / The National Authority on Water Transportation) for 2013, published in 201428, states that the total handling of cargo in the Brazilian harbors throughout the year 2013 was 931 million tons, showing a relative increase of 2.9% and an absolute increase of 26.6 million tons in relation to the year 2012. According to CNT29, Brazil has 155 vessels in its cabotage fleet, a number that is considered insufficient to serve the existing demand (therefore favoring the use of other means of transportation). As to gross tonnage, it can be observed that the total offer is 2.88 million TPB, with an average of 18.6 thousand TPB per ship. The average age observed, however, is rather high, around 16.5 years, and some vessels are as old as thirty years or more, which is the case of the tankers, barges and floating boats. That points to the need for mechanisms that allow for the renewal of the national fleet of cabotage. We should highlight, as it was presented in the research by CNT on ocean transportation in 2012 that, according to the Normative Instruction from Secretaria da Receita Federal and SRF n. 162/98, the life span of large vessels is 20 years. In terms of percentage30, the long-haul navigation corresponded to 73.7% of the total volume; cabotage amounted to 22%; inland navigation to 3.8%, ocean navigation support was 0.4% and harboring support was 0.2%. The long-haul navigation was 2.3% higher than in 2012, mainly in iron ore, with 332.1 million tons; containers, 78.2 million tons; fuel 52.5 million tons; and soybeans, 43.1 million tons31. 28 http://www.antaq.gov.br/Portal/Anuarios/Anuario2013/Tabelas/AnaliseMovimentacaoPortuaria .pdf, access on September 8th, 2014, p. 6 29 http://www.cnt.org.br/Paginas/Pesquisas_Detalhes.aspx?p=9, access on September 8th, 2014, p. 26. 30 ANTAQ, p. 6. 31 ANTAQ, p. 9. 56 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 57 Considering these pieces of data, it is visible that most of the long-haul navigation was performed using tramp ships, whose freighting and routing are negotiable, following the law of supply and demand. It is appropriate to highlight that the long-haul ships do not hold a national flag. The annual report of the Confederação Nacional dos Transportes sobre Cabotagem (the National Federation for Cabotage Transportation), of 201332 shows important diagnoses in relation to obstacles to manage more rapidly the production to be exported as well as the entrance of products into the country. It is necessary to overcome the barriers so to increase the use of this type of model for the transportation of products within the Brazilian territory. Despite the extensive ocean coastline of 7,400km and consequently its highly potential use, this type of navigation has its growth restrained due to several factors. The main ones are the high taxes applied to the sector (loading, unloading and storing goods), the high level of bureaucracy in the harbor operations, the high tax burden (both as to the number of taxes and to the total amount paid), lack of appropriate harboring structure (shallow canals, poor quality of access to the harbor terminals), old and decadent fleet and limited number of vessels. This represents higher costs, as the waiting time to take any of the cradles, for instance, may contribute as an indirect stimulus to the use of flags of convenience. In 2013, Paranaguá harbor handled 41.9 million tons, showing a growth of 3.6% in relation to 2012; this corresponds to 4.5% of the total handling of cargo in Brazilian harbors over the year 2013. Considering the long haul navigation, the exports correspond to 67.8% of the total handling, and the main products are soy, soy bran, sugar, corn and containerized goods. These exportations amount to 26 million tons33. In Paranaguá, in the state of Paraná, the same data are repeated when considering the Brazilian situation, as most of the ships are of the tramp type. 5. Final Considerations Both the tax havens and the flags of convenience face opposition, but they are instruments that many States use with the aim of increasing their income, though only in terms of taxation, because, in fact, neither the former nor the latter can bring them any development. Many of the tax havens are at the same time flags of convenience countries. However, one cannot deny that these two conditions of a country may represent a form of obtaining some extra earnings, since many of such countries, which are usually rather small in size and have a reduced pop32 33 CNT, p. 10. ANTAQ, p. 16. 57 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 58 ulation, and would not find another way to obtain income. There is the need to consider the adoption of other compensatory mechanisms so that these countries drop such practices. On the other hand, little by little the OECD tends to recommend mechanisms to restrain tax haven countries; however, in relation to flags of convenience there is no attitude against their usage. Some measures have been taken, though, concerning their environmental impact, as the flags of convenience ships are liable for the largest number of accidents in the sea. Such measures include, for instance, the Paris MoU on Port State Control – a Memorandum of Understanding – with the publication of Black Lists of ships that have occasionally broken safety rules at sea, and pointing out existing deficiencies to the ship owners in charge. The income derived from freighting affects many countries, including Brazil, which loses income for not using its fleet with its national flag, particularly concerning the long-haul navigation. This represents a problem that exceeds the severity of the so-called tax haven countries, for in Brazil there are mechanisms now in place by the Receita Federal (the national tax authority) to restrain the use of tax havens. One cannot say the same in relation to flags of convenience. 6. REFERENCES ANTAQ – Agência Nacional de Transportes Aquaviários - http://www.antaq.gov.br/ Portal/Anuarios/Anuario2013/Tabelas/AnaliseMovimentacaoPortuaria.pdf, CAPARROZ, Roberto. Comércio Internacional. São Paulo: Saraiva, 2012. CHAMORRO, José María Vallejo. La competencia fiscal perniciosa en el seno de la OCDE y la Unión Europea. Nuevas Tendencias en Economía y Fiscalidad Internacional - Revista ICE, Madri, set./out. 2005, nº 825 CHRISTENSEN, John. Paraísos fiscais e corrupção – uma luta global. Observatório da Cidadania – Instituto Brasileiro de Análises Sociais e Econômicas, Rio de Janeiro, 2007. CNT – Confederação Nacional do Transporte - http://www.cnt.org.br/Paginas/ Pesquisas_Detalhes.aspx?p=9 FARIA, José Eduardo. O Direito na economia globalizada. São Paulo: Malheiros, 2002. GIBERTONI, Carla Adriana Comitre. Teoria e Prática do Direito Marítimo, 2ª.ed.Rio de Janeiro: Renovar, 2005. GUERRA, Sidney. Soberania e Globalização: o Fim do Estado-Nação? In: GUERRA, Sidney; SILVA, Roberto Luiz (Coord.). Soberania: antigos e novos paradigmas. Rio de Janeiro: Freitas Bastos, 2004. HARADA, Kyoshi. Direito Financeiro e Tributário. 17. ed. São Paulo: Atlas, 2008. KRONBERG, Helcio. A livre circulação de capitais no MERCOSUL. São Paulo: Hemus, 2003. MAGALHÃES, José Carlos de. Direito Econômico Internacional. Curitiba: Juruá, 2008. MARTINS, Elaine M. Octaviano. Curso de Direito Marítimo, vol. I. 3.ª ed. São Paulo: Manole, 2008. 58 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 59 OCDE - Organização para a Cooperação e Desenvolvimento Econômicos. www.oecd.org. POLAK, S. Constituição de companhias Off-Shore. Revista Contábil & Empresarial. Disponível em: http://www.netlegis.com.br/indexRC.jsp?arquivo=/detalhesDestaques.jsp&cod=1166 8. SARDINHA, ANTONIO. Registro de Navios – Estados de Bandeira, disponível em http://transportemaritimoglobal.files.wordpress.com/2013/09/registo-de-naviosestados-de-bandeira.pdf. SILVA, Roberto Luiz. Direito Econômico Internacional e Direito Tributário. Belo Horizonte: Del Rey, 1995. THORTENSEN, Vera. A OMC – Organização Mundial do Comércio e as negociações sobre investimentos e concorrência. Revista Brasileira de Política Internacional, Brasília, 1998, ano 41, n.º 1. http://contabancariaoffshore.com/Lista-de-Paraisos-Fiscais.htm . http://melloassociates.weebly.com/paraiacuteso-fiscal.html 59 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 60 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 61 5. ARBITRATION AND THE LUSOPHONE AREA João Paulo Ferreira da Conceição Lawyer (Ferreira da Conceição, Menezes & Associados). MA Candidate in African Studies. Center for Strategic Studies of the Atlantic. I – Introduction To talk about arbitration in the Lusophone area implies a reference to alternative means of conflict resolution, which will involve interaction, but without knowing much about the elements. One can begin by saying that such an alternative means of conflict resolution, is intended to respond in a prompt and effective way to deal with an increasing litigiousness in contemporary life that, transversally, affects people, businesses and communities in general, including those within the Lusophone area. Due to the impossibility that judiciary systems can deal with this reality requires recourse to solutions not residing in the judicial courts and the use of alternative means, such as Mediation, Conciliation and Arbitration, as well as other less relevant means such as the “Mini Trial”, the “Private Trial”, the “Court Annexed Arbitration”, for example. II - Mediation and Conciliation Invoking the classic technique for Mediation requires that the conflicting parties choose a third party, the mediator, impartial and neutral, but without decision-making power, who will help them develop, by themselves, the solutions for the settlement of the conflict. The mediator shall: create the necessary confidence; manage emotions; convey respect; develop empathies; adopt a listening and interested attitude; add to the “self-determination” of the parties and display optimism, in order to solve the problem. 61 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 62 In Portugal, the relevance of this alternative means of conflict resolution became institutionalized through the creation of Justices of the Peace. These Courts don’t have the same structure of Judicial Courts, in which mediation is established as a special stage in “the path” of the settlement processes. Mediation involves specific techniques and procedures, which requires sometimes an exercise in patience, since success results from, in some cases, the succession of “small steps” during which the accumulated tensions between the parties will be decompressed, thus being incumbent upon the media and lawyers appearing in these processes, to undertake a real “peacekeeping mission by the civil society.” Just go through the rules of Angola, Brazil, Cape Verde, Guinea-Bissau, Macau, Portugal, Sao Tome and Principe and Timor, to assess the interest placed by their legal systems in mediation. That, we believe, reveals mediation’s considerable utility in solving problems with legal complexities, and which involve confidential business, or those which may have difficulty in discovering proof. And also through Conciliation, another alternative means of conflict resolution, it can be expected that the intervention of a third party, who is responsible for “steering” the parties who refuse to meet directly, to achieve a “zone” of understanding in order to (re) establish a dialogue between these disputing parties. As stated in the Arbitration Law, Conciliation and Mediation under Mozambican Nº 11/99, of July 8 (art. 60), “... the conciliation function is to facilitate communication and open a relationship between the parties in order to reach agreement.” III – Arbitration Relying on the generally accepted definition, Arbitration is a mode of dispute resolution between at least two parties, led by one or more persons empowered for that purpose, and selected with the agreement of the parties. According to the Portuguese Voluntary Arbitration Law (LAV), Law No. 63/2011, of 14 December, Article 1, the arbitration agreement could result in actual litigation - arbitration commitment - or eventual litigation arising out of certain contractual or some extra-contractual legal relationship - Arbitration clause - which litigations may involve property interests, or form a basis on which it is possible to negotiate. A few notes follow in order to better understand Arbitration. First, Arbitration constitutes an alternative, and non-subsidiary, means for the settlement of conflicts. On the other hand, Arbitration avoids the “long and painful ritual” of the procedures in judicial courts, through the adoption of preferred rules or regulations as set out in the institutionalized arbitration centres, and as in the case of institutionalized arbitrations, or those that the parties, or the arbitrators, develop in arbitrations “ad hoc”. 62 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 63 In choosing the arbitrators, the parties should be aware that they should be ethically neutral, and be of independent character, neutral, and impartial and should not, or can not, “render account” to those who chose them. It is commonly said: Until the Court is constituted, the process belongs to the parties, but afterwards, it belongs to the arbitrators. The arbitrator is different from a judge, which highlights the arbitrator’s ability to generate a consensus. He should be specialized in the conflict context, take pleasure working in the details, have a strong work capability, and enjoy accumulated prestige, all of which will contribute to greater swiftness in resolving the case. IV - International Arbitration Now with reference to International Arbitration, as provided in LAV - art.º 49, above mentioned, “... is the one that marks the interests of international trade”. About what is meant by “trade”, we have the understanding, given by the Lisbon Court of Appeal in its judgment of 11 May 1995 (Proc. 0083066), which says trade represents “the entire economic activity” including “beyond the production and exchange operations, the construction activities, the investments and all the kinds of services.” In this context, trade falls under “international conventions”, highlighted by the New York Convention of 1958 on the recognition and enforcement of foreign judgments. A similarly significant role is attributed to the Arbitration Centres, (permanent institutions that ensure the resolution and/or administration of arbitration proceedings), as does the London Court of International Arbitration (LCIA), the International Chamber of Commerce (ICC), with its arbitration Court, or the International Centre for Settlement of Investment Disputes (ICSID), and the World Trade Organization (WTO), in particular. IV - The Arbitration and the Sea It is apparent that the Sea often generates bickering, disputes and litigation, and so, to solve these, the United Nations Convention on the Law of the Sea (also known as the Montego Bay Convention) provided a jurisdictional organ, called the International Tribunal for the Law of the Sea, based in Hamburg, Germany. This is a genuine forum for consideration of matters covered in the Montego Bay Convention on the territorial sea, the contiguous zone, the continental shelf, the exclusive economic zone and the high sea, as well as the protection and preservation of the marine environment, marine scientific research, the development and transfer of marine technology, as well as the exploitation and use of the seabed and ocean resources, their seabeds outside the jurisdiction of each country, in what is considered to be “a common heritage of humanity”. 63 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 64 Although able to operate at different locations from its head office, the mere fact that the Court is composed of 21 judges, makes the complexity of their operation quite predictable. Besides this court’s structural complexity, it is clear that we can, and should, give particular attention to the specificities of the “Seas of Lusophone” which is a vast area of the South Atlantic, with undefined limits, situated just south of the “neck of Africa” (words of Almirante Sacchetti), in a line from….. “physical continuity, as if to suggest an unusual affinity between the South Atlantic and its external vertex, tied in spirit to Portugal” (see Admiral Vieira Matias, “South Atlantic Geopolitics”, 2010, The Lusophone Seas, presentations at the II Congress). This political affinity, which can indeed extend to the Indian Ocean, recognizes the special economic relationships among the various Portuguese-speaking countries forming parts of a similar physical continuity, with plentiful petroleum resources, minerals, energy, fishing, shipping, and tourism, for example. Thus, considering the importance of providing answers to questions arising about this singular reality, we focus with interest, since the beginning in September 2013, on the report from the Brazilian Centre for Maritime Arbitration that, drawing on the Brazil experience in the context of Arbitration, (a Fourth World country, according to the Arbitration and Mediation Centre of the Chamber of Commerce Brazil-Canada), states that Brazil intends to undertake 250 domestic and 50 international maritime arbitrations before 2020. A beginning.... V - Arbitration in the Lusophone area: perspectives As discussed above, mediation and conciliation, as well as arbitration, have been receiving increasing interest and their use is being encouraged by the legal systems in the Portuguese speaking countries. For example, in the Introduction of the law which provides for voluntary arbitration in Guinea-Bissau, one can read that arbitration, “... is one of the alternative means of achieving judicial justice in modern societies (...), because it seems more appropriate and suitable for the purpose of creating a favourable environment (...) to attract foreign investment ...” And, we are witnessing, in the case of Angola, as foreseen in its Constitution, the increased use of arbitration as a means of extrajudicial settlement of conflicts, either through “ad hoc” courts, or through Arbitration Centres, authorized by the Ministry of Justice, for conducting institutionalized arbitrations. The fact is that the greater part of the CPLP countries, has recorded an accentuated economic development. Thus, the discovery and utilization of alternative means of conflict resolution, described as “instruments”, able to generate in an investor increased confidence in the implementation of their projects through the use of a more creative “litigation”, faster and therefore cheaper, and available in the Lusophone area, should be reinforced. 64 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 65 Also, in the “Lusophone Seas”, the wide economic potential of the South Atlantic, suggests that many advantages can be obtained through the use of a faster and more efficient means to resolve many conflicts that inevitably occur. We conclude that the civil societies of the different Portuguese-speaking countries, should carry forward a concerted effort to create and promote centres responsible for administering arbitration, and thus, be able to resolve litigations between conflicting parties by the involvement of independent and impartial arbitrators. The appointment of such arbitrators should take into account the nationalities and domiciles of the parties, the nationality and domicile of the arbitrator, and the matter of the disagreement. We foresee a rising trend in the practice of this new legal reality which should contribute to the further consolidation of the Lusophone area. 65 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 66 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 67 6. FUTURE OCEAN CHALLENGES FOR PORTUGAL Charles Buchanan Board Member, Center for Strategic Studies of the Atlantic. I begin this short piece with my expressions of admiration for the successes achieved by Portugal, over many years of my personal experience, in building maritime relations within the E.U. and in Transatlantic dimensions for improved ocean governance. But the road ahead is long and Portugal will need to double its past efforts to reach goals it has set for itself. So, I share the thinking of experts that the Atlantic Ocean, both the Northern and the Southern Atlantic divisions, will face great challenges resulting from the increased marine activity foreseen by numerous marine research studies. The more intense of these will be caused by growth in global demand for increased marine resource access, marine transport and trade, energy costs and supply, security threats and responses, and, particularly critical, conflicts in marine governance models. Just for openers, the opening of the Panama Canal will almost double Atlantic shipping, and Portugal must race ahead to prepare its ports, like deepwater Sines, to compete for the huge new cargo vessels. An increasing number of authors are publishing works on these changes, which are generating serious concern about how the global oceans can be properly managed. This Southern Atlantic Ocean challenge is vividly described in a book published in 2012 by the German Marshall Fund entitled “The Fractured Ocean” edited by John B. Richardson, formerly Chief of the E.U. Commission Task Force to design the new Maritime Strategy Framework Directive. Ocean governance has been the focus of study for years by transatlantic research groups to see on how maritime policy making and governance for the Atlantic Ocean can be advanced in a considerably more efficient manner. This chapter addresses some issues and takes a look at rising pressures facing Portugal, which will result in more aggressive competition for the Atlantic spaces, which then will require considerably more advanced marine governance concepts. In a sense “ocean governance” means designing policies for managing all the variables 67 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 68 creating healthy oceans, and is made more urgent by the growing threats to healthy oceans. If there were no “threats”, ocean governance would be less critically needed. For example: “National jurisdiction over resources has recently been extended to 200 nautical miles in the sea, leaving about 60 per cent of the ocean as “high seas” and deep seabed beyond national jurisdiction. Long treated as though empty of life other than some fishes, we are now discovering that these areas of the oceans contain some of the richest biodiversity on the planet. This high seas biodiversity is under increasing threat from many sources, including irresponsible fishing and shipping activities, pollution and climate change. Yet, there is no comprehensive policy or management framework to govern the high seas” (www.iucn.org/about.../ marine_governance: 9/16/2014).” ATLANTIC OCEAN COOPERATION Fundamental to promoting ocean governance is ocean cooperation among stakeholder states. The Atlantic Ocean has been the focus for generations of scientific research, dialogues, politics, wars and collaborations among countries bordering its shores. The need for dialogue and cooperation among nations for shared ocean spaces has existed for centuries and never more essential than it is today. Many organizational bodies have been created to precisely ensure that common interests and prerogatives are recognized and accommodated. From the United Nations to NATO to the intergovernmental bilateral organizations and civil society, multiple efforts have struggled to ensure that fair and mutually beneficial uses of the Atlantic Ocean are guaranteed. In fact, as the invaluable ocean resources are depleted and over utilized, there has begun a race to take advantage of remaining stocks of natural resources, fishing, or new resources like minerals. Portugal has bravely entered this challenge with the widening of its ocean responsibilities beyond the EEZ limits and now becoming potentially the largest ocean “player” in the world. As such, Portugal is fighting hard to scale up its research, control and security surveillance systems, as it must do, to be the guardian of the vast areas under its responsibility. This should require greatly enhanced transatlantic cooperation with the U.S. and Canada plus other nations in the Southern Atlantic. Portugal should follow the guidelines of the recently approved Galway Statement in May 2013 described here: “The European Union, the United States and Canada agree to join forces on Atlantic Ocean research. The agreement focuses on aligning the ocean observation efforts of the three partners. The goals are to better understand the Atlantic Ocean and to promote the sustainable management of its resources. The work will also study the interplay of the Atlantic Ocean with the Arctic Ocean, particularly with regards to climate change. The E.U. and its Member States alone invest nearly two billion Euros on marine and maritime research each year. (COOPEUS website).” 68 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 69 The point is that to do this will require vastly more collaboration among Portugal and the United States and Canada than heretofore. Portugal certainly does collaborate with the U.S. and talks about more to come, but actions speak louder than words, and facing tough choices, it should move more aggressively. Of course Portugal collaborates with coastal nations of the Southern Atlantic especially the Portuguese language partners like Angola, Brazil, Cape Verde, among others. But after years of both conflict and collaboration in the Northern Atlantic, a workable system of agreements and understandings has emerged, and guided transatlantic commerce and geopolitics reasonably smoothly. What is now coming into close focus is the Southern Atlantic, with its diversity of competing nations, among the African and the Latin America nations, all sensing the attractions of the broader ocean, and eager to exploit its riches. But enterprising pirates, and human and drug traffickers are already stepping ahead and are at work in the Gulf of Guinea. Portugal, among others, in the E.U. and with the U.S., is participating in actions to control these illegal activities as well as joining in dialogues with Southern African states to plan for, and wrestle with the security challenges facing these countries. The challenges are foremost how to organize, minimally, to plan positive and productive interaction among coastal nations for mutual and shared benefits, conflict resolution, growth negotiations, and more. However, the specter of geopolitical, or nationalist, ambitions on the part of countries frequently arise with the most penetrating and destructive influences, raising suspicions and distorting better efforts. WHAT RESOURCES NEEDED FOR OCEAN RESEARCH AND INNOVATION? The challenges faced by Portugal are global in dimension, whether climate change, the rise in sea levels or the sustainable exploitation of marine resources. Top researchers and innovators, in academia and in private companies, working together with policymakers on both sides of the Atlantic are essential. If we look at the maritime economy as estimated by the E.U. recently we can see these data: • Maritime Transport: 90% of external trade and 40% of internal trade in the E.U. is seaborne; • Shipbuilding: (shipyards and marine equipment suppliers) provide 8 million direct and indirect highly skilled jobs and account for a turnover of 90 billion Euros; Europe is the world leader in the production of highly sophisticated vessels such as ferries and cruise ships. Portugal has lost much of its former strength in this domain. • Energy: oceans offer resources for the use of renewable energies such wave power and offshore wind farms and account for 121 million Euros. Portugal is experimenting now with one company, Windfloat, raising group of wind towers off the Atlantic coast. 69 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 70 • Fisheries and aquaculture: 5 million jobs; 0.3% of E.U. GDP equating to about 20 billion Euros/year; aquaculture accounts for 19% of the E.U.’s total fishery production. Portugal is actively promoting and funding new aquiculture projects. • Tourism and coastal zones: maritime tourism accounts for about 3 million jobs with a turnover of 72 billion Euros. Portugal is growing fast with about a 10% increase each year. • Blue biotechnology: emerging sector with predicted growth of 10% per year and a global market of 2.4 billion Euros. Portugal continues to struggle in this area, lacking investors, and risk capital. In a global sense, the “Blue Economy” is expected to experience major growth in the coming decades and Blue biotechnology has an expected yearly growth rate of 5 to 10%. Deep-sea mineral extraction could provide up to 10% of the world’s total minerals. Marine renewable energy is expected to grow to 40 Giga watts of offshore wind capacity by 2020. Oceans bio-resources represent 15% of the animal proteins consumed globally. The Blue Growth economy today employs 5.4 million people, but could grow to 7 million people employed by 2020. This growth will require huge investments for the North Atlantic from the US, E.U. and Canada, shared between public and private partners. Horizon 2020, the European Union’s 80 billion Euro program for research and innovation, will help generate funding. Within Horizon 2020 exists a “cross cutting” marine and maritime component known as the Blue Growth Focus Area. This cross-cutting aspect implies that ocean technologies have great potential for multiple “Blue Growth” sectors. Technologies developed for oil and gas projects can benefit other sectors such as deep-sea mining. Outputs of marine research and innovation have multiple uses such as micro-algae technology has applications in chemicals, pharmaceuticals, energy, food and animal feed research. Horizon 2020’s Blue Growth Focus Area emphasizes Atlantic Ocean cooperation to support the Transatlantic Ocean Research Alliance. Its priorities are to develop: 1. High potential for innovation and growth 2. Genuinely cross-cutting approaches; 3. Support across the innovation chain from research to development; 4. Support to Policy: Blue Growth Strategy, Integrated Maritime Policy, Marine Strategy Framework Directive. Importantly, the agreement also recognizes that Atlantic research will in many areas be more effective if coordinated on a transatlantic basis. Areas identified for cooperation under the agreement include: Ocean observation; Sharing of data, such as on temperature, salinity and acidity; Interoperability and coordination of observing infrastructures, such as measurement buoys and research vessels; Sustainable management of ocean resources; 70 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 71 Seabed and benthic habitat mapping; Promoting researcher mobility; Identifying and recommending future research priorities. If this can be accomplished, it will go a long way to defining better the concept of ocean “Governance”. Finally, to impact ocean governance, I often credit the private sector with having the financial and political strength, like the World Ocean Council, to break the logjam affecting real ocean governance. The WOC is showing strong leadership as described here: World Ocean Council is the only international alliance for private sector leadership in “Corporate Ocean Responsibility” for companies and associations. The WOC focus is ocean sustainability, stewardship and science embracing ocean industries, oil and gas, shipping, seafood, fisheries, aquaculture, mining, renewable energy, ocean technology, maritime law, marine environmental services and other areas. A WORD ABOUT TTIP — THE TRANSATLANTIC TRADE AND INVESTMENT PARTNERSHIP. The TTIP, if successfully negotiated, will be the greatest trade pact between the E.U. and U.S. in history and can affect maritime trade importantly. But in terms of marine commerce, there are obstacles. For example, the European Transport Workers Federation (ETF) has strongly appealed to negotiators not to pursue changes in maritime policies and categorically rejects any changes to the U.S. “Jones Act”. The ETF believes that shipping services should be excluded from the TTIP negotiations because further liberalization of maritime transport services would harm national E.U. seafaring jobs. The Jones Act requires that all ships engaged in domestic marine commerce in the U.S. are built in the U.S. and crewed by US mariners. This law is seen as a good example for the E.U., as it has sustained thousands of jobs and generating higher economic output, allowing for a reliable source of domestically built ships with competent US crews aboard. The United States and Europe remain the largest players in the global trading system, but their dominance has eroded in recent years. The together account for roughly 45 percent of global output and 30 percent of global trade. The most significant dynamic in the transatlantic trading relationship is that the US and E.U. export more goods and services to each other than to any other country. But in terms of global share, transatlantic investment links are far more significant. In 2012, the United States and E.U. accounted for over 65 percent of the globe’s stock of foreign direct investment (FDI). Roughly 30 percent of European investments abroad are in the United States, while nearly 40 percent of FDI into Europe originated in North America. In the context of the TTIP challenges- perhaps the most difficult to overcome – concerns the divided competencies in both the US and in Europe. In the US, 71 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 72 some trade regulations apply at the federal level, some at the state level, and some at both. The issue is similar in Europe, where the E.U. and its member states share responsibility for oversight of different policy areas. For E.U. exporters, this can create a barrier to entry into any market where regulations differ from state to state. For instance, European insurance firms – which export more than €5 billion in services to the United States – face a different regulatory regime in each state, raising costs and effectively protecting local competition. In fact, other than automotive firms and water utilities, European insurers would be the largest European victors of a free trade agreement. With all these obstacles being uncovered, reaching a TTIP agreement by 2016, as hoped for, is seen as unlikely. The political landscape is rugged: 2015 will see the inauguration of a new European Parliament and Commission – a new group of leaders which might not feel politically committed to the present talks. And political attitudes in the U.S. are not seeing the TTIP favorably, as reported in the NY Times, January 9, 2015: “As Mr. Obama works to secure the trade promotion authority, a coalition in Congress, with other lawmakers, labor activists, environmental, religious and civil rights groups is stepping up efforts to stop him; the leader said ‘there is no reason why we should exacerbate the loss of jobs or lower wages in the United States’ ”. Portugal could gain from TTIP as growth in trade could increase port activity serving as a “Gateway to Europe” as well as transshipment to Mediterranean and African ports. LOOKING TO THE SOUTHERN ATLANTIC Emerging realities in the Southern Atlantic suggest rapidly growing, AND competitive, ambitions on the part of future leaders on both sides of the ocean. Global ocean trade has tripled since the early 1990s of which significant amount is South-South. Africa, with Angola, South Africa, Nigeria, Morocco and smaller states, will continue to generate financial resources to fund investments and trade. Brazil on the western side with Argentina, Venezuela and Mexico are leading partners and/or competitors. In the absence of one regional organization to oversee and promote cooperation and shared benefits, competition is now unfolding on a chaotic basis. Outside the Southern Atlantic region some important players like the E.U., U.S. and China are already testing the waters to see if they are welcome partners. These early interactions are the subject of many new studies, conferences and books bringing out the respective country interests. A recent conference at the Getulio Vargas Foundation revealed that Brazil intends to prioritize South-South (S/S) cooperation with Africa, which it sees as a great opportunity. Brazil’s protective attitude toward Guinea Bissau demonstrates Brazil’s outlook to control relations in the Southern Atlantic. The Community of Portuguese Language Countries (CPLP), which Brazil cofounded in 1996 with Angola, Cape Verde, Guinea-Bissau, Mozambique, Portugal, 72 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 73 and Sao Tome and Prıncipe (East Timor joined in 2002), became an important channel for Brazil–Africa relations. Although founded as a platform for cultural cooperation, the CPLP has assumed a more diversified role, encompassing development and security issues. Moreover, Brazil’s new national defense strategy, issued in 2008, elevated the South Atlantic Ocean to the highest level of priority. This new strategy made naval cooperation with West Africa especially important, both bilaterally and through multilateral initiatives such as the South Atlantic Peace and Cooperation Zone (ZOPACAS). Also, the Brazilian government has been helping Brazil’s defense industry to expand exports (ranging from small arms to airplanes) to African states. In addition to the two countries’ historical ties, their common membership in CPLP — a priority in Brazil’s Africa policy — makes Guinea-Bissau a particularly important partner. Finally, because Guinea-Bissau’s political instability has allowed drug-trafficking networks to make the country a transhipment point for narcotics from Latin America to Europe, Brazil has reasserted its interest in helping to restore Guinea-Bissau’s political stability and support the country’s development. The Brazilian government has rejected labels such as ‘failed state‘ and ‘narcostate’, arguing that cooperation needs to address the root causes of Guinea-Bissau’s instability and vulnerability. First, rather than focusing narrowly on stemming the drug trade, Brazil has tried to promote institution-building, agriculture, and public health, among other sectors. Second, Brazil has drawn on its multilateral diplomacy to advocate for Guinea-Bissau within several international forums, working to keep its recurring instability on the international agenda. Brazil’s approach reflects a different emphasis than those promoted by other external actors, which have concentrated on curbing the flow of narcotics through Guinea-Bissau by targeting individuals suspected of abetting the drug trade. For example, the US government has undertaken actions targeting what it alleges to be Guinea-Bissau’s ‘drug kingpins’. In April 2013, the U.S. Drug Enforcement Administration (DEA) set up a sting operation at sea and arrested the former chief of Guinea-Bissau’s navy. The officer was flown to the US and charged with drug trafficking and arms dealing. From Brazil’s perspective, such action is problematic not only because it fails to address the root causes of instability in Guinea-Bissau, but alsosau’s sovereignty and constitutes a case of unilateral intervention in the South Atlantic. In a January 2013 speech at the ZOPACAS ministerial meeting, the Brazilian Foreign Minister stressed that the conflict in Guinea-Bissau was ‘very close’ to Brazil due to the two countries’ cultural and historic ties. He stated the crisis had “serious implications for the South Atlantic space to which we cannot remain indifferent”. So here we see that, Brazil has made it clear that it prefers to keep the leadership of the South Atlantic in the hands of South Atlantic countries, and avoid non-Southern actors like the US or NATO. We see from the Guinea Bissau case that the US and NATO are seen as following a security driven agenda to interfere in the Southern Atlantic region. Brazil, Argentina, et al., and African partners 73 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 74 argue that a development driven agenda must be the driving force and hence any regional cooperation organization that might surface should be development oriented. Many ask if, in the future, the re-elected Rousseau government will change this strategy. The answer comes back: “not really”, the Brazilian military will keep their attitude against US and NATO involvement in security affairs in the Southern Atlantic. Portugal shares leadership within the CPLP countries and can exercise stronger influence towards shared ocean governance. But, as an E.U. member, it also shares an Atlantic governance strategy towards the U.S. Experts think neither the E.U. and U.S. are very welcome in any emerging governance structure of the South Atlantic, but designing such a structure is expected to take many years. However, Portugal may press forward independently, more boldly than heretofore, and force a shared leadership with Brazil and, thus, gain political leverage within a future Southern Atlantic governance structure. In fact, in order to recuperate its historical maritime leadership, Portugal may surely be forced to follow policies more independent of the E.U. On the other side is Portugal’s self interest in exploiting its new and enlarged ocean areas for minerals, fuels and biotech using technologies and experiences shared by other E.U. (Ireland) or EEA countries like Norway. This now becomes geopolitically complex for Portugal. But time is passing and competitive forces that may outpace Portugal are becoming evident. SOME CONCLUSIONS The comments in this chapter are merely intended to reflect changing situations and new opportunities, or threats, emerging in the Atlantic Ocean with implications for Portugal. There are other issues not discussed. But these “pressures” will affect Portugal’s future role as a leading Atlantic nation depending on how Portugal deals with them. The bad news is that Portugal faces heavy internal limitations, and may not rise rapidly enough to meet the challenge, and other nations may advance to positions of leadership well before Portugal. At the time of this writing, Portugal has been fighting to change course to better manage itself socio-economically, conserve its wealth and set a strategic course within its means. The last 4 years have shown that the country suffered a recession, exceeded its budget capacities and borrowing responsibilities over decades and has been abruptly awakened to a new reality. National investment priorities must now be set with priority given to growth, with rigorous controls and management oversight. Portugal’s efforts to achieve benefits from its ocean relations, to achieve economic growth and employment will be critical to its success in the future. The National Ocean Strategy of Portugal, approved in 2013, sets a bold and ambitious course for the country to 2020 to meet its responsibilities for an enlarged ocean area, the largest ever for a single Atlantic nation. Its investment priorities 74 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 75 include: Energy, aquaculture, tourism, marine mineral resources, and marine biotechnology. The plan is well designed by competent leaders in Portugal government structure, especially the Directorate General for Marine Policy. Nevertheless, Portugal must come from behind to win and excel. Investment resources are extremely limited, the global insecurity and uncertain global economic prospects block investments, technology assets and research vessels are in limited supply, research institutions and their human resources lack funding and maturity (despite a recent coalition of 7 university marine research departments named MARE). The E.U. economy has stagnated; recovery will take years and the volatility of petroleum prices will upset many development goals. The volatile Euro- Dollar exchange rate signals weakness in the Euro zone economy. Consequently, a much stronger and higher political consensus on its ocean strategy is needed in Portugal, with the power to prioritize maritime growth over competing national priorities and to resist repeated political shifting of influences. The Portuguese public and civil society must be mobilized and helped to become involved. Much more must be done using collaborative research programs with future partners, like the U.S., E.U. or even African partners. Portugal partners itself very well and widely in research and experimentation, but it must be dramatically increased further. As far as ocean governance is concerned, Portugal must lead as forcefully as it can to aggressively gain its own visibility, and international recognition, in its own outstanding competencies, but regrettably, Portugal must depend for the foreseeable future on being dependent on sharing resources with partners. However, despite its limited resources, I have no doubts that Portugal will persevere, and rise to these challenges discussed above. 75 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 76 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 77 PART II SECURITY AND GOVERNANCE 77 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 78 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 79 7. THE COMPLEXITIES OF EU MARITIME SECURITY POLICY John Richardson Head of the Task Force which developed the European Integrated Maritime Policy. Senior Fellow with the German Marshall Fund of the United States. The “Friends of the Presidency” are currently working to turn the statement of intent contained in the “European Union Maritime Security Strategy” (EUMSS) adopted by the Council on 24 June 2014 into an Action Plan to “mainstream maritime security into EU policies”. This Action Plan is to be presented to the European Council in December. When it is endorsed, it will provide the mandate and the legitimacy for the Member States, the European External Action Service (EEAS) and the European Commission to move forward with the implementation of concrete projects. It is to be hoped that the European Council will also decide on a reporting and review mechanism, in order to ensure that the policy can continue to evolve and improve as experience is gained. The political drivers of EUMSS So the good news is that maritime security is now firmly part of the EU agenda. The sea fog afflicting the European view of the world is beginning to lift and the threats and opportunities linked to the oceans are emerging with increasing clarity. This process began with the development of the Integrated Maritime Policy (IMP), adopted by the Council in October 2008, the Council Conclusions of 26 April 2010, which took up the subject of maritime security for the first time, the Limassol Declaration of 7 October 2012, the European Council Conclusions of December 2013, and the Joint Communication by the European Commission and the High Representative of 6 March. It is perhaps no accident that a Portuguese President of the European Commission, and Spanish, Cypriot, Greek and Italian presidencies have played key roles in this process. 79 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 80 But it was not only the coincidence of presidencies from maritime member States that has brought about this new attention to these issues. When the IMP was being developed European navies were enthusiastic participants in the consultations which led to its adoption. The assumption was that they resented the fact that so-called EU Battle Groups had been declared operational on 1 January 2007, but that none of them included naval components. A Battlegroup is the minimum militarily effective and rapidly deployable force package capable of stand-alone operations or for the initial phase of larger operations. It is based on a combined-arms, battalion-sized force, reinforced with combat-support and combat service-support elements. They are about 1500 personnel strong. However, in April 2014`the EEAS had this to say about their operationality: “The high operational tempo, the substantial costs associated with the preparation and the possible deployment of Battlegroups, combined with current financial crisis and austerity, pose, however, challenges to fill the Battlegroup Roster. This situation has triggered intensive work and initiatives to mitigate existing shortfalls.” There is thus a temptation to think that the concept has been stillborn. Nevertheless the EU Battlegroups remain important for CSDP as the first example of military capabilities at least theoretically on stand-by for possible EU operations and it is true that they do not include naval capabilities, which would allow for example sending assistance by sea to help deal with the Ebola outbreak in West Africa. A Dutch naval vessel is currently performing this role, with both civil and military personnel on board. So EU navies have welcomed the increased attention given to maritime security. They have also successfully shown what they are capable of in the Atalanta ant-piracy operation off the Horn of Africa. It therefore seems logical that EU naval operations to deal with piracy and other illegal activities in the Gulf of Guinea should constitute a good candidate for further EU naval action, associated, as in Somalia, with a wide range of coordinated EU instruments of a non-military nature. An important political driver has clearly been the growing volume of illegal migration across the EU’s Mediterranean maritime borders. This is perhaps the aspect that impinges most obviously on the public consciousness, alongside films featuring kidnappings at sea. It can be assumed that dealing with this security threat is perceived to be most clearly in the interests of the southern Member States of the EU, whereas security in the Gulf of Guinea is of most interest to those which have considerable energy or trade interests in that region. An exogenous reason to push forward with EUMSS is that several strategic partners, such as the ASEAN countries, are interested in profiting from the EU experience of sharing and rationalising security capabilities. Anxieties related both to illegal activities in the Indian Ocean and to increasing friction with China with regard to maritime border disputes have led to an increased profile for the maritime domain in their region. 80 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 81 The Atalanta exercise has also led to increased cooperation on maritime affairs with the US, China and India. Policing the global maritime commons is thus increasingly seen as a common interest and a shared responsibility of all major powers. This raises the prospect of similar cooperation with Brazil in the south Atlantic. Threats So what exactly are the threats to which EUMSS should respond? Until 2014 it would have been tempting to suggest that the traditional use of navies to defend national borders against incursion by hostile naval forces is no longer of relevance in Europe. But the annexation of Ukraine by Russia, the subsequent suspension of delivery of a Mistral helicopter carrier to Russia from France, and the suspected presence , once again, of a Russian submarine in Swedish waters have all conspired to remind Europeans that such threats may still be of relevance. Nevertheless it is not these traditional threats to the security of EU Member States and their citizens that are preoccupying the minds of those designing the EUMSS. It is much more a growing range of threats by non-state actors and individuals which we can group together as criminal activities on or using the ocean domain. Of these the most prominent are illegal immigration into the EU via the Mediterranean, acts of piracy and armed robbery affecting European-owned ships and European trade, and the smuggling of drugs, cocaine into Europe via the South Atlantic and West Africa, and heroin into Europe via the Indian Ocean and Africa. This shift to dealing with myriad activities and actions of non-state actors mirrors in many ways the shift in military activities on land from dealing with formal military formations to combatting guerrilla attacks and terrorism. And the same problem arises. The capabilities designed to deal with the old threats are not well adapted to dealing with the new. One threat which is easy to forget, because it is usually handled by national and EU fisheries authorities, is that posed to the health of the ocean ecosystem and the sustainability of global fish stocks by illegal fisheries on the high seas and inside the Exclusive Economic Zones of states without effective fisheries surveillance and control. This, too, comes from non-state actors, even if in some cases their governments tacitly collude in their activities. Capabilities The evolution of the typology of maritime threats to EU security is accompanied by a change in the capabilities needed to deal with them. The new threats give rise to many action points, geographically scattered around the world. Policing the vast expanses of the Mediterranean is bad enough. 81 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 82 Doing this for the Indian Ocean and the south Atlantic on a continuing basis is an enormous undertaking, which can clearly only be successful on the basis of agreements with partners to do this on the basis of shared responsibility. In terms of capabilities such an exercise would require; • Development of shared systems of maritime surveillance with partners in the Indian Ocean and in the South Atlantic, where a good beginning could be made in the Gulf of Guinea. • Development of networks of surveillance drones in partnership with third countries • Stationing of surveillance planes in partner countries. • Forward operations bases for ships in the Indian Ocean and the South Atlantic. Existing Member States bases in Réunion (France) and the Falklands (United Kingdom) provide possibilities, but partners such as Cape Verde might provide logistically more suitable locations. • Greatly increased capabilities in terms of small, fast patrol vessels, to be operationally based in third country ports. This new emphasis on surveillance highlights the importance of the current development of the Common Information Sharing Environment. As the main element of shared surveillance activities it will become a template for similar partnerships with third country partners. Without this, any hope of dealing effectively with threats to EU interests in waters outside its jurisdiction would be illusory. As the activities of the European Maritime Safety Agency (EMSA) have shown, enhanced surveillance can lay the foundation for effective detection and deterrence of certain illegal activities at sea, such as the emptying of bilge tanks leading to oil pollution. It is much less use when dealing with certain less visible activities, such as drug smuggling. For such activities classified intelligence is the key tool, but it requires close cooperation with foreign intelligence agencies and mutual trust between them. Since we know that this creates difficulties even within the EU it is clear that any such cooperation with third countries would need to be preceded and accompanied by trust- building activities, based on an agreed appreciation of a common interest in its success. A shift in hardware capabilities from traditional naval vessels to equipment which might more usually be used by coastguards raises a series of questions about cooperation between agencies within an individual Member States, which are addressed below. Another consequence of this analysis is that capabilities evolve from being traditional naval assets capable of expeditionary activities to lighter assets deployed on a continuing basis overseas. It is this which suggests that forward maritime bases overseas should form part of such a strategy. On the basis of these considerations it is evident that an effective EUMSS will require Member States to invest in new capabilities of a different type and be prepared to station more assets overseas. This has, of course, budgetary impli82 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 83 cations. Assuming that Member States will be reluctant to increase their total budgets devoted to maritime security, new spending will need to be matched by new efficiencies elsewhere in the system. And it is here that the insistence on “functional integrity”, the principle that existing structures will not be affected by the development of EUMSS, emerges as the greatest obstacle to the evolution of the range of available capabilities towards a more appropriate mix. Implementation When the decision was first taken to develop EUMSS the task of coming up with the “Elements for a European Union maritime security strategy” was given to a joint working group of the EEAS and the Commission’s DG MARE. Its product went as a joint Communication of the Commission and the EEAS to the Council on 6 March 2014. Although apparently a child of the External Action Service it was not developed in consultation with the PSC, the Political and Security Committee, nor with the Military Committee. Indeed the involvement of Commission services ensured that the resulting document was not biased towards military elements of security strategies, but was free to take a much more holistic approach, bringing in an array of policy areas. As the document puts it, the strategy: “requires multilateral action integrating civil and defence cooperation; capacity building and the development of partnerships; financial and judicial investigation; and local, regional and international diplomatic efforts and political commitments as well as research and innovation and cooperation with industry.” The European Parliament was even more explicit about the holistic approach in a Report adopted by an overwhelming majority by the Foreign Affairs Committee in June 2013 on the basis of a draft by the Portuguese MEP Ana Gomes. The report “calls for coordination and articulation efforts to be mainstreamed into the EU Maritime Security Strategy, in which clear guidelines should be outlined for specific cooperation between relevant Commission Directorates-General, including Maritime Affairs and Fisheries, Home Affairs, Justice, Enterprise and Industry, Mobility and Transport, Taxation and Customs Union, Research and Innovation, and Development, as well as the European External Action Service and the Service for Foreign Policy Instruments; the same should be done for interagency cooperation between the EDA, EMSA, SatCen, Europol, Frontex, the EU Military Staff, the Crisis Management and Planning Directorate, the EU Intelligence Analysis Centre and the relevant authorities in the Member States.” The report also “calls for the creation of a truly European coastguard function, based on the experience already gained by Frontex and the European Patrol Network, to which distinct governmental bodies and entities provide capabilities, acting within a remit of case-law stemming from Justice and Home Affairs coop83 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 84 eration, aimed at protecting EU borders, European citizens and the lives of people in danger on the coastal waters of the Union”. The whole thrust of EUMSS was therefore to be to bring the work of multiple agencies in all the Member States and at EU level together to achieve more and to do so more efficiently by saving money wherever possible. And yet the “Elements” Communication could not have been more explicit about the principle of functional integrity: “there should be no change of mandate, responsibilities or competences for each stakeholder. The focus should instead be on which specific functions or tasks can better be achieved by working together with other stakeholders.” The great conundrum of EUMSS seems to be how to achieve greater efficiencies while changing nothing! It is worth asking ourselves what lies behind this apparently obtuse insistence on clinging to existing mandates and existing structures. The two most obvious reasons are the protection of existing jobs and the unwillingness to share sovereignty in the eminently sensitive area of security. Every agency engaged either directly or indirectly in the development of EUMSS must be acutely aware of the potential of the exercise to eliminate duplication of effort and the associated jobs. In principle it ought to be possible to better organise existing human and administrative resources to achieve more and even to reduce costs, but in practice there will always be winners and losers in such an exercise. Any such reorganisation is difficult to achieve even inside a single agency or government department, never mind in an area like EU maritime surveillance, in which 400 separate administrative units are said to be involved. The issue of sovereignty is less easy to analyse, wrapped up as it is in a cocoon of emotional sensitivities. The larger Member States remain tempted by the idea that they should, in principle, dispose of a full spectrum of military, including naval, capabilities, but recent defence reviews, e.g. in the United Kingdom, have demonstrated that this has become an illusion within their existing budgetary envelopes. The concept of “pooling and sharing” resources between them has therefore been adopted and is emphasised in the Council conclusions of June 2014, including through the activities of EDA, which are directed towards the common procurement of assets. The rationalisation of maritime security tasks through the gradual specialisation of individual Member States in different functions, combined with enhanced cooperation between them, is for these reasons likely to proceed only slowly. What can and should proceed faster is cooperation and coordination between civil and military agencies inside each Member State. Here sovereignty is not an issue, although the traditional jealousy between agencies may be. It may well be easier for Member States like Portugal, whose maritime activities are not divided between naval and other operations, to bring about the shift in the relative weight of different capabilities referred to above than for those in which the navy regards itself as the “Senior Service”, as is the case in the UK. 84 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 85 What seems already to be emerging in the domain of maritime security is a system of cooperation between national nodes within a complex web of cooperating agencies. In developing the EUMSS Action Plan the European Council has mandated the work to the Friends of the Presidency Group, whose members are supposed to bring to the table policy positions taking account of all the relevant national agencies. This is also the approach being adopted in working towards the Common Information Sharing Environment for surveillance. The difficulty is that sectoral agencies in different Member States already have their own networks for cooperating with each other. One such is the EU Coastguard Functions Forum, but of course similar structures exist for navies, police, judicial authorities, fisheries agencies, etc. The most difficult organisational challenge facing the development of the policy is how these transnational sectoral networks can be reconciled with the nodal structure based on national coordinating nodes, which each then have their own national network. At first sight this appears to be an enormous task and an unwieldy structure to manage. But the complexity of the task would remain even if an all-powerful agency were created, bringing together all aspects of maritime security. And experience shows that getting many parts of a single organisation to work together is just as difficult as many separate agencies, and is indeed less transparent. This complex network of mutual exchange of information and coordination can be made to work precisely if lines of communication within it and coordination responsibilities are set out in a clear and transparent manner. This is the “EU method”, in which third country partners are so interested. And the management of complexity has been – nolens volens – the distinguishing characteristic of the EU from its inception. The Action Plan will be implemented at EU level by a new Commission under President Jean-Claude Juncker and a new High Representative at the head of the EEAS, Federica Mogherini. As Vice-President of the Commission for external relations she will guide the work of the Commissioners for European Neighbourhood Policy and Enlargement Negotiations; Trade; International Cooperation and Development; and Humanitarian Aid and Crisis Management. But it is also specified in her official agreement with Juncker on her mandate that she “will also be able to draw on the Commission’s policy instruments and expertise in many areas where international partners are keen to work with us. These include policies under the responsibilities of the Commissioners for Climate Action and Energy, Transport and Space as well as Migration and Home Affairs, which have a strong external dimension.” She will also “chair a Commissioners’ Group on External Action to develop a joint approach. This Group will meet at least once a month in varying thematic and/or geographic formats, according to the needs identified.” Within this structure it will clearly be possible for Ms. Mogherini to establish working relations between all those parts of the Commission services in charge of one or other element of maritime security. It will be interesting to see to whom she delegates the task of steering this cooperation. 85 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 86 Despite the fact that the EUMSS has been so long in the making and that many are pushing for the Action Plan to be as comprehensive as possible, paradoxically the great danger may well be that too much will be attempted too quickly and that the Action Plan contains too many action points, not all of which will be capable of immediate implementation. It is therefore to be hoped that it identifies a series of priority actions that have a realistic chance of effective early implementation and that a clear and regular review mechanism is established. But the ship is now launched and we can only wish it “bon voyage”. 86 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 87 8. THE CHALLENGES OF MARITIME SECURITY IN EUROPE AND PORTUGAL Alexandre Reis Rodrigues Vice Admiral (Ret.). Vice President of the Portuguese Commission of the Atlantic. «The greatest value of the Navy will be found in events that fail to occur because of its influence» (Colin Gray) The challenges we face today in the maritime security environment – almost without common points with the past - are being addressed by nations through the adoption of new naval strategies - for the employment of naval power - and the development of maritime security strategies, which try to adopt a comprehensive posture in order to guarantee good order at sea.34 The adoption of new naval strategies - a process that started, in the U.S. in 1992, with the implementation of the strategy “From the sea” – has led to important changes in the U.S. Navy posture around the world and even in the configuration of its fleet, with the introduction of the littoral combat ship, as the first step for the creation of a new “family”35 of ships. Most of the orientations of this strategy, including those contained in the versions that followed with small variations, have been adopted by many naval powers, particularly the allied navies. 34 Good order at sea in peacetime permits the free flow of sea-borne trade and ensures that nations can pursue their maritime interests and develop their marine resources in an ecologically sustainable and peaceful manner in accordance with international order. According with Geoffrey Till, «the maintenance of good order at sea may be down at the softer, more constabulary end of the spectrum of required maritime capability in defence of the system. For all that, it is increasingly seen as a crucial enabler for global peace and security, and therefore something that should command the attention of naval planners everywhere. 35 The initial program, that has been delayed due to financial constraints, also included the Advanced Land Attack Destroyer –DD(X)- and the CG(X) for area air defense (including against ballistic missiles). 87 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 88 On the other hand, the implementation of maritime security strategies is a relatively new initiative. As a matter of fact, although started in 2005, again in the US, with the approval of “The National Strategy for Maritime Security”, only recently has began amid European countries, namely in Spain (2013) and in the United Kingdom (2014). Both countries approved their maritime security orientations as a development of their recently implemented new national security strategies. This trend will certainly consolidate in the future with other countries following the same path. Portugal, as a country with a great deal of economic, environment and security interests in the sea, particularly in view of the expected extension of the continental shelf, has a National Ocean Strategy 2013-2010 which addresses «the challenges for the promotion, growth and competitiveness of the maritime economy». However, to adopt a comprehensive approach to the subject of maritime security Portugal will definitely need to be prepared to cope with all the dimensions of maritime security, other than the economic. The adoption of a national maritime security strategy, complementing the National Ocean Strategy, in matters not covered by the latter will become inevitably. While developing that strategy, Portugal should simultaneously look to its national and international scope, bearing in mind that the latter include several obligations under the new concept of “global commons”, for whose protection we must make a contribution coherent with our status as a country in the top 20 with the greatest areas of maritime jurisdiction. Portugal is primarily responsible for a space where both the European Union and NATO expect us will be able to prevent and deter any activity that might endanger the safe and secure passage of the navigation crossing the area and to eliminate any vulnerability that might facilitate any attempt of nontraditional threats (illegal traffic of drugs, illegal immigration, etc.) trying to penetrate in Europe. These objectives require coordination in certain areas with the European Union that has approved, in June 2014, its own maritime security strategy. Where are the limits for the European Union coordination and involvement in matters whose primary responsibility belongs to the member States might be easily explained if we look to maritime security as based in three pillars – “Knowledge”: to achieve maritime domain awareness36; “Platforms”: ships, aircrafts and systems to deter and respond to the threats; “Legal regime”: the organization of the State to deal with all the challenges affecting maritime security, bearing in mind that integrating all the layers of maritime security cannot be achieved through cooperation alone. It requires unity of effort and operational effectiveness. The area of “Knowledge” is where I view an irreplaceable role for the European Union. It is presently covered by the “Common Information Sharing Environment” initiative, a step indispensable to help countries to be better equipped 36 Maritime Domain Awareness means to achieve a clear picture of all sides of maritime activity that may have impact on the security, safety, economy or environment of the domain. 88 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 89 with the picture of their areas of responsibility and interest and to organize shared systems of maritime surveillance (satellite-based radars and sophisticated remote piloted aerial systems-RPAS) that may not be within financial reach of most countries alone. In what regards “Platforms” I also recognize that the European Union should have a coordination role whenever resources of a particular member State are insufficient to cope with a more challenging situation and it is necessary to assemble contributions from other nations. However, I do not support the idea of «rationalization of maritime security tasks through the gradual specialization of individual Member States in different functions», idea developed in the paper submitted by John Richardson under the title “The complexities of EU Maritime Security Policy”. Of course, the concept of “pooling and sharing” should be explored to the maximum possible extent but never leading to task specialization, an idea that was also tried in NATO but never agreed. We must understand that no one nation will accept to be placed, for security purposes, under the dependence of others, whatever will be the level of solidarity achieved among them. As a matter of fact, I also do not see how specialization in maritime security with different functions for each country might be practically organized. The same applies to the idea of creation of a truly European coast guard function whose purposes and justification were never made perfectly clear, despite the existence of the EU Coast Guard Functions Forum. If the purpose is to develop the ability to act together whenever necessary, through training and exchange of best practices, I will certainly support the initiative, but if the intention is to organize a common capability through the integration of all assets I think that makes no sense at all. Would be appreciated if the promoters of that idea explain what they have in mind. If the concepts of “task specialization” and a “truly European coast guard function” are fully implemented I am afraid that they will inevitably lead to the denationalization37 and demilitarization38 of the concept of maritime security, the latter on the grounds also mentioned by John Richardson that military capabilities are not appropriate for dealing with the new threats. For my point of view, this ignores two facts. First, it does not take into consideration that what we call today nontraditional threats (such as piracy, illegal smuggling of goods, people, etc.) have always been activities that navies are used to deal with since ever, in their “constabulary function”39. Navies have had both the role of maintaining sea control and maintaining Denationalization is the term I make use of to refer to the tendency of transferring responsibilities that belong to the Member States to the EU level, under the argument that we need to eliminate duplication of efforts and achieve reduced costs. 38 Demilitarization of the maritime security means the refusal of employment of war ships in policing tasks to maintain good order at sea, under legal and capabilities arguments. 39 The other two functions, using the representation proposed by Ken Booth are the “combatant and the diplomatic functions”. 37 89 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 90 good order at sea for several centuries, using capabilities usually valuable for any of these roles.40 Second, it ignores the ongoing change of model that navies are undertaking to give greater importance to the role of maintaining sea order at sea while also maintaining the traditional role of sea control. In 2006, the First Sea Lord, Admiral Sir Jonathon Band, argued that the Royal Navy «should accept sacrificing quality for quantity if it is to maintain a surface fleet of sufficient size to contribute to maritime security operations on a global scale». This is in no way new for Portugal where over 60% of the navy ships (24 out of 38) were designed, built or modified for maritime security tasks. Coast guard type units are certainly more suitable and cost-effective than warships for the constabulary function but countries with great dependence on the sea would always have to maintain some sort of navy, at least as insurance over their access to the economic world. Under such circumstances, some kind of accommodation between the two roles has to be achieved in countries that cannot afford to have simultaneously both types of platforms in separate organizations. Several factors facilitate this kind of arrangement. First, navies are used to operate at any level of conflict, very often making use of the minimum force. Second, the burden of increasing surveillance, reconnaissance and enforcement requirements at greater distances, usually beyond the capabilities of coast guards, has inevitably to be shouldered by the navy and the air force. Third, if navies are expensive the best way to make the better use of the investment is to employ them in many different tasks as possible. Changes always take time, especially in big institutions where the tradition plays an important role, but even so the tendency to adopt the concept “high-lowmix” – a combination of ships designed to operate in the highest and lowest ends of the conflict’s spectrum – seems now firmly installed to allow more hulls in the water.41 Hopefully it will clear off the idea of demilitarization of maritime security, which won’t help to achieve reduced costs and avoid duplication of efforts and will not help to deal with the increasing audacity of pirates, terrorists and insurgents as shown while conducting maritime operations even against war ships.42 I fully agree with the Mr. Richardson’s recommendation that Member States should be prepared to station more assets overseas, which is a subject particularly 40 «In 1978, other than the navies of the two superpowers and a handful of near-first-rank naval states, most navies of the world were in reality coast guards, charged with ensuring maritime security and safety close by their shores, countering illegal migration and seaborne contraband, protecting marine environments and resources, and safeguarding lives and property at peril on seas», in “Towards a New Understanding of Maritime Power”, by Bruce B. Stubbs and Scott C. Truver (“The Politics of Maritime Power”). 41 As a general rule, for the policing role, quantity is more important than quality but the final combination would always be decided according the particular situation of each coastal state. Prevention always requires a high level of presence. 42 As recently shown (13th November 2014) by the attack suffered by an Egyptian war ship, 45 miles of the coast, from which five servicemen were injured and eight are unaccounted for. 90 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 91 important for Portugal if we keep in mind the orientation established in the National Security Strategic Concept in what concerns the South Atlantic and our relations with the Portuguese speaking countries. However, the conclusion presented in the article stating that assets to be employed overseas should be «lighter than the traditional assets capable of expeditionary activities» is not supported as a general rule. It depends, first and foremost, on what type of tasks we intend to use them and how we assess their requirement for self-defense if something goes wrong. I also don’t understand how this matter might be linked with the principle of “functional integrity”43, presented as the «greatest obstacle to the evolution of the range of available capabilities towards a more appropriate mix». That principle is essential as recognition that there are several models that nations can adopt for maritime security purposes, according their geographic conditions, legal regime, political outlook, etc. The important point to be kept in mind is to recognize that there is a crucial difference between maritime security and security of the maritime domain. In other words, using Geoffrey Till terminology, is to make a distinction between what is the “Home game” (maritime security) and the “Away game” (security of the maritime domain). Security of the maritime domain44 is a component of the protection of the global commons, a responsibility that belongs to all and none in particular. Here is where, from my point of view, the EU should have a leading role on organizing a coherent and effective contribution to the safeguard of the free and safe use of the international waters, as the backbone of the global trade. Maritime security45 is the maritime component of the national security and defense strategy of each individual Member States, and, as such, a responsibility that cannot be alienated to any international organization. Of course, because no nation has enough platforms and resources to «be everywhere they need to be all the time» we have to implement a collective maritime effort, a purpose for which the participation of the EU is necessary, even almost mandatory in certain areas, From the European Union Maritime Security Strategy: «The strategy is based on the following guiding principles: Functional integrity: The strategy does not affect the respective competences of the Union and its Member States in the areas covered. It is also without prejudice to the competences, sovereign rights and jurisdiction of maritime zones in accordance with relevant international law, including UNCLOS. The mandates, responsibilities and interests of member states need to be fully taken into account building upon the existing policies and instruments and making best use of existing capabilities at national and European level, while avoiding to create new structures, legislation, additional administrative burden, as well as the requirement for additional funding». 44 “Security of the maritime domain can be accomplished only by seamlessly employing all instruments of national power in a fully coordinated manner in concert with other nation-states consistent with international law»». «Success in securing the maritime domain will not come by navies acting alone, but through a layered system that integrates the full maritime capabilities and interests of governments and commercial interests throughout the World»», in “Towards a New Understanding of Maritime Power”, by Bruce B. Stubbs and Scott C. Truver (“The Politics of Maritime Power”). 45 According with Dr. Alexander Clarke (from the Phoenix Think Tank in UK), «maritime security is at its heart an exercise of risk reduction, action deterrence and event response». 43 91 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 92 as explained before. However, where national jurisdiction should prevail, duplication of efforts through the participation of EU must be avoided. Otherwise, EU participation might be viewed as a loss of sovereignty, an outcome I don’t see anybody prepared to accept. The “pooling and sharing” initiative will certainly help to minimize each individual nation’s vulnerabilities but that objective should never be extended to a level where an individual response capability to allow autonomous initial reaction will become impossible due to the dependence of other’s contributions. If these nuances of the situation are not fully understood, the new European Union maritime security strategy may not help as much as expected to mount a collective effort in the maritime domain. 92 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 93 9. THE IMPORTANCE OF INTELLIGENCE IN PORTUGAL’S MARITIME SECURITY Fernando Ângelo46 Portuguese Navy Commander, MA in Intelligence and Security Studies by the University of Salford, United Kingdom. “Outros trás na costa do reino e paragens das ilhas donde enxota os corsários, que se isso não fosse claro esta que andariam mais soltos do que andam e fariam mais dano, assim aos nossos como a outros muitos que sob a sombra e amparo de Portugal navegam por este mar mais seguros do que fariam se os corsários não tivessem algum receio das armadas de el-Rei de Portugal.” Padre Fernando Oliveira in Arte da Guerra do Mar (1555), p. 21 The vast maritime area under the jurisdiction and sovereignty of Portugal, 1,720,560 square kilometres, stands to be even larger if the claim for the extension of the Portuguese Continental Shelf is accepted by the United Nations. The predictable threats, risks and challenges that can occur in such an extensive area drives the country to possess an accurate and reliable surveillance of its maritime spaces. The security of our waters is, in lato sensu, a reason for relief and confidence to the thousands of ships that cross our seas on an annual basis, as Father Fernando Oliveira mentioned in the distant year of 1555. The main problem is identifying the best model for providing the early warning necessary to preventing strategic surprises in our maritime space. This challenge had already been identified in the Art of War at Sea, where Father Fernando Oliveira says that “captains cannot guess where the corsairs are nor when they will come, for if they knew, they would survey them and they would not allow them”47 to be a surprise to With the assistance of D.H. Gray, US Navy (Intelligence), retired. Father Fernando Oliveira, Art of War at Sea, Gráfica de Coimbra, Lisbon, 2008, p. 17. Original quotation in Portuguese: “[...] nem podem os capitães adivinhar onde andam os corsários, nem quando hão-de vir, porque se o soubessem os vigiariam e não consentiriam [...]” 46 47 93 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 94 Portuguese interests. The difficulty in monitoring and surveying the threats, here represented by the corsairs that raided Portuguese ships full of goods and spices on their way back to Lisbon, demonstrates the difficulty of finding and tracking potential threats in “a rough sea that does not show the footprints of thieves sailing freely without fear of anybody nor God”.”48 Any single formula to gain knowledge of who is doing what and where in the vast maritime reaches of national sovereignty and jurisdiction holds a great number of uncertainties. Only with collaboration among the various agencies which operate within the maritime domain can these uncertainties be dispelled. On his vision of the factors which lead to Portuguese maritime security, Vice Admiral Reis Rodrigues refers the “need to make a multidisciplinary and interdepartmental approach” in which “a unity of effort would be settled”49 for effective action by the State. This is where the issue can becomes more complex because there are multiple national and international organizations, both State and private, who in one way or another bear responsibilities related to activities that operate on the sea. The information residing in each organization and/or State department as well as the knowledge and associated value each collaborator has results in multiple visions leading to partitioning of the problem. This argument that information is “stovepiped” into narrow channels is tendentious because it sees the problem as being a cultural issue of Portuguese decision makers, yet at the same time it raises the possibility that this partitioning of information could be the essence of the problem of obtaining clear and timely maritime intelligence. If these same State and private bodies are capable of integrating into multidisciplinary teams in multinational organizations and can apply all their organizational knowledge on behalf of these institutions, why can’t they similarly use that ability on behalf of Portugal’s supreme national interest? Does the organizational ego, manifested in individual, corporative and budgetary interests outweigh the national interest and advantages of integrated knowledge sharing in a single national maritime node? Navy Captain (RES) João Fonseca Ribeiro, the Director-General of the Maritime Policy from the Ministry of Agriculture and the Sea, claimed during a conference that development without security cannot exist because criminality is always lurking to take advantage of the weaknesses of some countries in the Atlantic basin, therefore development depends on a resilient national reaction against external threats.50 A few centuries earlier, Father Fernando Oliveira also cautioned against threats that could become ever more dangerous if a proportional response in defending our interests was not given, stating that “Not only will the corsairs rob the sea, but if you let them act unopposed, they will cross the 48 Father Fernando Oliveira, The Art of War at Sea, Gráfica de Coimbra, Lisboa, 2008, p. 17. Original quotation in Portuguese: “[...] mar que é muito devasso e não mostra as pegadas por onde foram os ladrões que ali andam livremente e não temem nem a Deus.” 49 Vice Admiral Reis Rodrigues, conference at the Institute for Social and Political Sciences on the subject “Vision on the Maritime Security in Portugal”, on October 2, 2014. 50 Navy Captain (RES) João Fonseca Ribeiro, conference at the Institute for Social and Political Sciences on the subject “The Alliances to the development of the Atlantic”, on October 23, 2014. 94 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 95 land and cause unrest.”51 In order to do so, it was necessary to oppose the corsairs and other enemies with “fleets at sea that could guard our coast and interests across borders and protect us against dangers that can come by sea; which are more unpredictable than those that come by land”.52 The surveillance of the sea is a very complex business, since “the far horizon beyond which we cannot see, suddenly, without knowing from where it came from, nor which route it will take, can arise off our coast and over our ports”53 an array of threats that can cause immeasurable damage if we are not watchful. The dimensions involved, whether in terms of area or traffic density in this same space, when associated with the technical, financial resources and assets of intelligence, surveillance and reconnaissance (ISR) capability, being these ships, submarines, aircrafts or coastal stations, don’t tolerate a narrow and compartmentalized vision. The solution to the problem is in whole and not in parts by holistically combining all parties involved in securing the maritime domain. Jointly supplied information and raw data can be integrated, validated and analysed in order to extract the most credible, reliable, timely and actionable intelligence to feed the decision-making cycle. Yet, where should we direct the collection effort? Given the impossibility of comprehensively covering this vast space in real-time, where should we focus our main attention? To the Territorial Sea, the Exclusive Economic Zone, or the approximately 3.8 million square kilometres54 out to the Portuguese Continental Shelf? This cannot be adequately answered without also knowing what is most worth seeking if we are to avoid wasting scarce resources in unnecessary actions. The search for the most expected threats against Portugal’s geostrategic position will have the greatest impact in directing the collection effort in a balanced and sustained way. Portugal’s geostrategic position as one of the vertices of the triangle composed of South America and the West African coast absolutely necessitates looking for threats and risks beyond those expected to occur in our maritime spaces. Piracy certainly won’t have the same centrality and importance it had when Father Fernando Oliveira wrote his amazing book. However, it may still indirectly affect Portuguese economic interests because acts of maritime crime and piracy Father Fernando Oliveira, Art of War at Sea, Gráfica de Coimbra, Lisboa, 2008, p. 19. Original quotation in Portuguese: “[...] não somente [roubarão] o mar os corsários, mas se os deixam ir avante, atravessem a sair em terra e inquieta-la [...]” 52 Father Fernando Oliveira, Art of War at Sea, Gráfica de Coimbra, Lisboa, 2008, p. 19. Original quotation in Portuguese: “[...] armadas no mar que guardem as nossas costas e paragens, e nos assegurem dos sobressaltos que podem vir pelo mar, que são mais súbitos que os da terra [...]” 53 Father Fernando Oliveira, Art of War at Sea, Gráfica de Coimbra, Lisboa, 2008, p. 19. Original quotation in Portuguese: “[...] de muito longe donde não cuidamos, subitamente sem sabermos donde [partiu], nem que rota leva, [poderá surgir] na costa sobre os nossos portos [...]” 54 The total of 3,870,560 km2 is the sum of 13,419 Km2 of interior waters; 50,960 Km2 of territorial waters; 1,656,181 Km2 of Exclusive Economic Zone; and 2,150,000 Km2 for the extension of the continental shelf claimed by Portugal to the United Nations. (www.marinha.pt/pt-pt/historia-estrategia/estrategia/folhetospt/Portugal_uma_nacao_maritima.pdf; accessed in 12NOV14) 51 95 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 96 in the Gulf of Guinea can affect the costs of our oil and natural gas imports. In the most drastic situation, it may constrain or even limit the free flow of these raw materials. Despite the greater likelihood of disruptions such as these, the intelligence analyst must also consider what might be the most ruinous threats to the national interest, even if they are highly unlikely to ever occur. Althoug deemed too unlikely to happen in the near future, recent indicators may show that maritime terrorism has gained a new impetus.55 With the publishing in the Fall of 2014 of the al-Qaeda linked online magazine Resurgence, the level of threat gained a new dimension after the appeal of the radical Islamic militants and supporters to attack western country ships, especially when they are navigating in chokepoints.56 The As-Sahab Foundation for Islamic Media Publication, an entity which produces media contents used by Al-Qaeda to diffuse its rhetoric, published an article in its first issue of the Resurgence titled “On Targeting the Achilles Heel of Western Economies,” dissecting all the maritime chokepoints through which millions of barrels of oil and gas pass through destined to the Northern American and European economies. They identify, in detail, the ports where the oil and the gas is loaded and the chokepoints where navigation is vulnerable to any kind of attack. They cite the attacks against the USS Cole and MV Limburg as examples of terrorist actions needed in order to destabilize the Western economies that are extremely dependent on imported oil and gas. The article finally appeals to every Mujahedin to take advantage of this strategic opportunity provided by geography to actively disrupt oil supplies, consequently increasing its price and causing an upsurge in shipping insurance premiums; amongst other damages.57 One event outside the traditional spectrum of threats which stunned the intelligence community was the attempted taking of a frigate from the Pakistani Navy, the PNS Zulfigar, by Islamic radicals in late September. Apparently, this group of former and current officers intended to perpetrate attacks against Indian and US warships, although they failed completely. The alleged pretences for this attack may serve as a motivating agent for other radical Islamic groups, through their terrorist cells, to expand this plan to cruise liners even without the collusion of the crewmembers. On the other hand, drug trafficking remains a major threat by exploiting the weaknesses of the riparian States by taking advantage of the ineffective surveillance capacity of their coast lines and the existing background “noise” to unload drugs to shore. Additionally, all seaborne activities, be they scientific, commercial, Fernando Ângelo, “The Role of Intelligence in Maritime Security” in O Mar no Futuro de Portugal [The Sea in the Future of Portugal]. Ciência e Visão Estratégica, Centro de Estudos Estratégicos do Atlântico, Lisboa, 2014, p. 254. 56 Strait of Hormuz, between Iran and Oman; Strait of Bab-el-Mandeb, between Yemen and Djibouti; the Suez Canal, Egypt; the Strait of Bosphorus and Dardanelles, both in Turkey, between the Black Sea and the Marmara Sea and the latter and the Adriatic, respectively; the Strait of Malacca, between Malaysia and Sumatra, Indonesia; and last, the Strait of Gibraltar, between Morocco and Spain. 57 Resurgence Magazine, As-Sahab Media (Issue 01, Fall 2014), p. 102. 55 96 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 97 recreational, fishing or military, require an adequate surveillance and monitoring in order to avoid strategic surprises. Not all of these activities are benign because there are actors who use them to commit illegal acts or, in some cases, perform unlicensed, unauthorized actions in areas under some nation’s jurisdiction or sovereignty for competitive advantage. In general, the Intelligence organizations responsible for informing political and military decision makers of potential threats and risks to the nation have a dynamic nature and adapt their structures and methods in order to be able to counteract new developments. With the onset of the Cold War after World War II, the nature of these organizations centred mainly on two Intelligence sources: HUMINT (Human Intelligence) and SIGINT (Signals Intelligence). During this period, the books of Ian Fleming or John Le Carré were vivid illustrations of the stereotypes associated with the secrecy and intense espionage activity of the different political ideologies. Between the fall of the Berlin Wall in 1989 and the fateful September 11, 2001, the former threats and risks that had prevailed receded into the horizon as the world lived in apparent peace, and Intelligence organizations no longer required so many personnel and substantial budgets to deal with them. After the tragic incident of the Twin Tower attacks in New York which struck at the heart of the United States of America, the Intelligence organizations that had experienced a downsizing of their methods and procedures after 1989 felt powerless to resume the intense levels of activity that they had previously carried out. During a conference at King’s College, Cambridge University, on February 18, 2011, Sir Richard Dearlove bore witness to the profound changes the Intelligence services endured after September 11 as well as their efforts to adapt to a new concept of global terrorism, transnational, unpredictable and highly changeable and adaptable thanks to technological and media globalization. Sir Richard Dearlove served at the Secret Intelligence Service, commonly known as MI6, between 1966 and 2004, taking over the role of “Mr. C”, as the post of the Head of the MI6 is referred to, during the period 1999 to 2004. As Dearlove described, there was the need to dramatically reinforce budgets, recruit agents and intelligence analysts with linguistic, social and cultural skills; and exponentially enhance the research effort in areas not previously covered. Getting out of “the box” was another need Intelligence agencies felt obliged to do in order to deal with this faceless threat, even if in strict compliance with the law and existing international rules. The complexity of looking outside the box and respecting the laws in force is the greatest challenge for Intelligence organizations which deal with transnational terrorism. During a conference at the International Institute for Strategic Studies (IISS), London, on March 25, 2010, Ellen Laipson, a member of President Obama’s Intelligence Advisory Board between 2009 and 2013, used the following metaphor to illustrate the extreme difficulty of dealing with the threats this new form of global terrorism posed: “Imagine one box that represents the law. The normal people want to be in the middle of that box. The intelligence community should be on the border line of that box, in the edge between the lawful and the unlawful.” 97 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 98 With the Islamic State (ISIS) appealing for the re-conquest of territories formerly known al-Andaluz, and with a considerable number of young Western fighters who advocate Islamic radical ideology and the establishment of the Sharia law, organizations may be forced to adopt to a new concept where the same hybrid threat can simultaneously be domestic and foreign. At the same time, the awakening of the threat of a new Cold War, with Russia assuming a defiant political, diplomatic and military posture, challenging the current world order where activities and demonstrated methods may, in lato sensu, provide a feeling of déjà vu of the decades of the Union of the Socialist Soviet Republics (USSR). Suspected Russian submarines in Swedish waters as well as scientific vessels conducting intelligence collection activities in areas of interest to the Russian Navy might indicate that the levels, modus operandi and deployment of their ships may reach levels observed during the Cold War. If Russia implements a strategy similar to the one used by USSR, we may face a dilemma and the Intelligence organizations may have to adjust to confront both a geographic and a faceless transnational threats at the same time. The question is how Intelligence organizations will make the best use of their resources, budgets, methods, sources, and procedures to address two widely differing threats. As the world is in constant transformation, Intelligence organizations have to proportionally adapt to the mutations of imminent threats against national interests, too. To further complicate the surveillance and monitoring tasks in Portuguese maritime spaces, recent years have seen a considerable growth in traffic in our waters for transit, scientific research, fishing or recreational activity. The widening of the Panama Canal and the seasonal opening of the Northern Sea Route through Arctic waters raises expectations that the number of ships in our waters will grow even more. How can we know, at any time, who they are, what they are doing and where they are going to? Not all these ships and vessels are obliged, according to the rules of the International Maritime Organization (IMO), to transmit an AIS (Automatic Identification System) signal with their location, movements and future intentions. Many are dismissed, others shut down the system making them automatically suspect, others even introduce fake data to obscure their activities, and some might even be outside the coverage of terrestrial and satellite stations, making them invisible. How can we cover this gap? We can’t, but we can mitigate these weaknesses with other systems, intelligence sources and collaborative actions with sister organizations and state departments who hold responsibilities at sea as well. Considering all the aforementioned scenarios, threats and weaknesses, what are the predictable and resulting impact they will have on the waters under national sovereignty and jurisdiction? How is it possible to trace the steps of all shipping that circulates through this huge area? The threat of maritime terrorism in the context of an attack in a chokepoint won’t have much applicability to Portugal because the wide navigation areas don’t constrain ships in terms of speed and course. In inland waters this may be a possible scenario yet very 98 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 99 unlikely, even assuming a terrifying attack such as occurred on the Achilles Lauro in 1985. Turning away from maritime terrorism, illicit activities such as drug trafficking, weapons of mass destruction trafficking, pollution, illegal fishing, and unauthorized scientific and investigation activities among others may be the most likely scenarios to occur in Portuguese maritime spaces. In many of these cases, the ships and/or vessels don’t transmit AIS and the distance they operate off the coast sometimes doesn’t allow detection though radar or electro-optical means, thus making it vitally necessary for all-source intelligence analysis to have access to the resources of other state organizations or departments. In navigation, a position obtained by a single bearing has no precision. It’s only possible to obtain an accurate position with three bearings. As such, intelligence obtained by a single source won’t have the accuracy and credibility needed. Only when confirmation through multi-sources is attained can the probability of a particular scenario or event be assessed. In order to achieve this cooperative effort, it is necessary to integrate various processes and methods where the objective will ultimately be the obtaining of reliable, accurate and timely intelligence so decision makers can act in a secure and determined manner. The first step towards a greater integration of Portugal’s information came on November 24, 2014, when the Minister of Internal Administration announced the intention to share the data of the Sistema de Vigilância Comando e Controlo (SIVICC) [Surveillance Command and Control System] with the Portuguese Navy. Until this time SIVICC information had been exclusive to the Guarda Nacional Republicana [National Republican Guard]. Data from this coastal system may be merged with other information and intelligence sources from coastal and satellite AIS, MARSUR (Maritime Surveillance),58 other Intelligence agencies and services, whether on a bilateral or multilateral basis, NATO and other international organizations with which Portugal integrates, and open source, among others. There are also other helpful systems like the Maritime Command and Control Information System (MCCIS), an information system developed for NATO Member States that allows the management of contacts of interest in a maritime context. Another system which allows an analyst to obtain geographic information is TransView (TV32), a geographic information system (SIG) developed in 1996 to manage maritime traffic, but which may be enhanced in terms of navigation safety, monitoring of shipping separation schemes and clarification of the surface overview through the integrated viewing of AIS and radar contacts. The SafeSeaNet (SSN), created in 2004 by the European Maritime Safety Agency (EMSA) following the The MARSUR is constituted of 18 countries: Belgium, Bulgaria, Cyprus, Finland, France, Germany, Greece, Ireland, Italy, Leetonia, Lithuania, Holland, Norway, Poland, Portugal, Spain, Sweden and the United Kingdom. The software that serves as a platform to share the Maritime Situational Knowledge (CSM) was declared operational on October 27, 2014, contributing to the surface view of the European Union called CISE (Common Information Sharing Environment). According to Jane’s Defence Weekly, October 28, 2014, a validation of the CISE’s technical platform will begin with the launch, on December 1 of a large 30-month EU-funded project known as ‘EU CISE 2020’, with the goal of enabling CISE to reach full operational capability by 2020. 58 99 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 100 sinking of the oil tanker Erika off the French coast in 1999, only reached its full operational status in 2009. This system enables the viewing of the position track record of a ship or a particular cargo, and also allows the maritime administrations to log a wide variety of safety related information. Marine Traffic is a free online system created in 2007, based exclusively on AIS information sent by ships and made available in almost real-time. EMSA has also begun the integration project of its maritime systems into a single operational platform, called Integrated Maritime Data Environment (IMDatE). In the near future, it may process and integrate data from maritime systems such as EMSA (SafeSeaNet, CleanSeanet59, EU LRIT DC60, THETIS61), and other external sources. Apart from the near real-time maritime traffic panorama, the IMDatE has analytical tools to evaluate in detail ships’ routes or specific events associated to one or more ships. Another system, named OverSee, appeared in 2011 when the Portuguese Navy identified the need for a support tool to help in the decision-making process in maritime search and rescue (SAR), maritime surveillance and environmental protection missions. OverSee integrates maritime traffic data from other sources such as AIS, SAT- AIS, VMS62, and SATCOM positioning systems, such as LRIT63will be integrated in the near future. Finally, in addition to a wide range of information provided by Lloyds, there is also a prototype developed by the Portuguese Navy designated AISINTEL, which has the capacity of continuous and automatic recording of AIS and VMS data as well as of data from other sources. This AISINTEL prototype enables data analysis and visualization through algorithms that allows an analysis in terms of patterns and behaviours of maritime traffic. Recognizing the tremendous complexity involved in the processing of enormous amounts of data collected ceaselessly by multiple sources around the world, and hampered by the vast diversity of tools and systems analysing the information and transforming it into knowledge, the challenge posed to the organizations with responsibilities in maritime spaces is increasing exponentially. When one learns about so many tools and systems, both the aforementioned and others not detailed in this article, that exist to aid the competent authorities managing the maritime space, one question is raised: why isn’t everything integrated in a single system capable of providing a vast array of customer-oriented services? One possible CleanSeaNet is a system based on satellites of the European Union for the detection of oil spills at sea using SAR (Satellite Aperture Radar) images. 60 The European Long Range Identification and Tracking Data Centre (EU LRIT DC) is an application that uses satellite communications to track all ships from Member States of the European Union around the world as well as any ship, regardless of its flag, as long as it’s not in more than 1000 NM from the European Union coast. 61 THETIS is an internet based application which provides information related to ship inspections, reporting them to all port controls in Europe. 62 Vessel Monitoring Service is a satellite surveillance system primarily used to monitor the location and movement of commercial fishing vessels. 63 Long-range identification and tracking (LRIT) system provides for the global identification and tracking of ships. 59 100 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 101 answer, or part of the answer, might be the different agendas, needs and requirements of all the different entities involved in the various projects, as well as idiosyncratic factors of the organizations themselves. Similarly, the lack of strategic vision to educate and train analysts with the specific mission of providing maritime intelligence from this profusion of data collecting and disseminating services may be the Achilles heel. The natural tendency is to desire machinery that can collect information, in quantity and in realtime, and systems that can, at a distance of a click, present the final solution, as if the maritime domain was a TV series like CSI Miami where the human being simply interacts with a monitor and the answer to every crime pops up clearly and can be immediately demystified. Fundamentally, humans will continue to be the centre of this entire process, or cycle, where only their capacity for critical analysis and experiential knowledge on a specific matter will enable the solution to the usually incomplete and often blurred puzzle that data alone presents. Technologically advanced systems and voluminous information and an operator without any training and sensitivity to the matter in question is a combination which can not and will not provide accurate intelligence analyses to the decision maker under any circumstance. After analysing some insights on concepts of maritime security in Portugal, the threats and risks with the highest probability to occur in the maritime spaces under Portuguese jurisdiction and sovereignty, addressing the range of tools and systems available to individuals responsible for analysing the information in the maritime domain, and the centrality that the human being represents in the whole process and consequent need for training and the prolonged stay in office, it is now time to show the importance of the creation of a national maritime information centre in Portugal, where the concepts of interagency and multidisciplinary analyses could have an important role in the management, control, surveillance, monitoring, and production of intelligence of the Portuguese maritime space. There is an example already operating in Portuguese territory. Under the authority of the Portuguese Navy, it is named Centro de Operações Marítimas (COMAR) [Maritime Operations Centre]. Another similar centre is based in the United Kingdom (National Maritime Information Centre – UK NMIC). Finally, we will consider a successful example of intelligence fusion centre at NATO - the NATO Intelligence Fusion Centre - where the importance of putting several analysts from different areas of expertise, education and training, cultures and linguistic skills operating under the same room is stressed. In 2008, COMAR was the first maritime operations centre to be developed in Portugal, with the primary mission of search and rescue (SAR) and also traditional missions that unfold in the maritime environment. To this end, COMAR is prepared to accommodate within the same space agents from the Maritime Police (PM), Immigration and Boarder Service (SEF), National Republican Guard (GNR), Criminal Police (PJ), National Authority for Civil Protection (ANPC), and others. Missions which require greater coordination and interagency cooperation are the fight against drug trafficking and illegal immigration; support in natural 101 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 102 and man-made disasters such as ocean pollution; traditional military operations and crisis support missions in theatres of operations; combatting illegal fishing; and unlicensed scientific exploitation and/or research. COMAR is staffed on a 24/7 basis by Portuguese Navy personnel and Maritime Police agents. However, in the past, during missions under the auspices of the agency to combat illegal immigration in the European Union, FRONTEX, COMAR counted on the participation of agents from the GNR and SEF. This concept of MOCs (Maritime Operational Centres) is being adopted in several countries because the synergies resulting from the intervention of several agencies participating in the maritime environment and the deployment of multiple assets available to the state in a coordinated way possess sound advantages in terms of duplication of assets and efforts. The intelligence COMAR receives, for maritime operations is made available to the entity responsible for producing intelligence in the Portuguese Navy as well as for other international organizations such as NATO and the EU, and fellow COMAR members. The next centre which can be mentioned as an example of the multidisciplinary and interagency concept is the National Maritime Information Centre (NMIC), where 16 different agencies with responsibilities within the United Kingdom’s maritime domain sit at the same table. In addition to the agencies are representatives from international and industry partners with interests at sea. Operating since 2010, this centre “brings together maritime information and intelligence from across government departments and agencies and acts as a national focal point for international partners. It provides real time information on maritime activity around the UK and areas of national interest. It supports government and industry decision-making in times of need.”64 With a concept of “separate but not separable,” it relies on the presence of a representative of each department or state agency to enable access, exclusively through these liaison officers, to the intelligence and information produced in their organizations, following the need-toknow principle. Thus, the merging of data and information from multiple sources is possible, which enables the most discriminating maritime panorama possible, and with consequent advantages to the decision makers. Finally, there is an interesting ideology that every penny spent of the allocated budget is justified to the taxpayers, which means that if this centre’s efforts help with the apprehension of cocaine with the market value of 80 million pounds, it already justifies, per se, the investment made by the state. In the practical sense of an Intelligence Fusion Centre in support of NATO (NIFC), the NIFC is an organization composed of Intelligence analysts from 24 of the 27 allied nations, with different experiences, knowledge and skills, and last but not least, the written and spoken skills of about 37 languages. The military and civilians who work at NIFC are sent by their countries for a range of functions in the different intelligence disciplines and have access to their national systems installed in https://www.gov.uk/government /speeches/the-united-kingdoms-national-strategy-for-maritimesecurity (accessed on November 11, 2014). 64 102 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 103 individual and secure compartments. When there is a need, these analysts may confirm the feasibility of sharing intelligence on a certain matter with their national Intelligence entities. The principle is not that secrets are shared, but that the knowledge that each member possesses on a particular matter, topic or subject may be the functional basis of such an organization. The human analyst is always the central element in the whole Intelligence cycle, from the promulgation of the intelligence gaps to the elaboration of the collection plan, through the subsequent processing and validation, and ending in the analysis in search of responses to gaps that triggered the whole process. In addition, the architecture of this type of Intelligence Fusion Centre encourages the promotion, maintenance and enhancement of a close relationship with universities, institutes, and study groups as well as a strong presence in the field, with NGOs for example, and with other international organizations such as the United Nations, African Union, and others. Here in the three different organizations with different missions are shown, despite different actors, organizations and nationalities, common sharing of intelligence and experience in order to avoid potential risks and threats targeting their permanent and short-term interests. Portugal’s waters are crossed by several global shipping routes flowing towards Northern Europe. The geography makes its position undeniably central, and Portugal may see, in medium-term, a substantial increase of the volume of maritime traffic in its waters; the widening of the Panama Canal or the seasonal opening of the Northern Sea Route through the Arctic waters may be the cause of this expected growth. To build a reliable, authentic and timely recognised maritime picture of such a large area, given the limitations imposed by the lack of assets, whether naval or air, which can ensure an effective coverage of about 1.7 million square kilometres;65 it is essential that information and intelligence from all sources that are available to Portugal be obtained. It is widely known that Portugal doesn’t have the sophisticated technological means to enable a near real-time coverage of its maritime spaces nor does it have UAV’s (Unmanned Aerial Vehicles) with adequate autonomy and equipment to collect imagery, video or electromagnetic and communication emissions in those areas. As we observed earlier on, the support and management of the maritime domain is primarily dependent on AIS signals; therefore, ships or vessels which don’t transmit this signal are not detectable. As intelligence remains the foundation for sustaining credible and robust maritime security, what can be done in Portugal to ensure intelligence can fill this role? One possibility could be through the creation of a maritime information centre that depended directly on a ministry and that would have official liaison from each agency, department or national organization with direct or indirect connection to the sea. By pooling under the same roof the knowledge from the scientific and technical fields, management and administration, the armed forces and security This area only includes the Exclusive Economic Zone, territorial sea and inland waters. Moreover, in terms of responsibility in search and rescue operations (SAR), Portugal has a total area of 5,792,740 km2. 65 103 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 104 forces, the centre would be a strong bet for success in the same manner as the UK NMIC. The number of human resources and budget allocated, divided among all participants, will surely compensate taxpayers in case of drug apprehension or contraband, acts of pollution, illegal fishing or unauthorized illegal activity. The traditional Portuguese inclination to avoid aligning themselves with organizations with a multidisciplinary and interdepartmental approach ought to be rejected. Instead, the human resources and budget allocated, divided among all participants, will generate returns far greater than the expense to taxpayers with each apprehension of drugs or contraband, each act of pollution prevented or controlled, and every curtailed illegal fishing activity in portuguese waters. 104 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 105 10. GERMANY’S INTEREST IN THE ATLANTIC Marisa Fernandes PhD Candidate in Strategic Studies. Researcher at the Center for Security and Defense of the Institute of Higher Military Studies. Center for Strategic Studies of the Atlantic. 1. Germany’s geopolitical position: a continental state aware of the role of the sea Germany is, essentially, a continental state surrounded by land on all sides (its land borders are with: Denmark in the North; Holland, Belgium and Luxembourg and France to the West; Switzerland and Austria to the South; Poland and the Czech Republic to the East), in an enclave position, located in the centre of the European space. It is the European state, with land borders totaling 3694 km shared with a greatest number of different states. However, Germany has also a maritime border in the North that gives it access to the North Sea and to the Baltic Sea and, consequently, is responsible for a maritime coast of 2389 km. Although its maritime border is smaller than its land border, Germany recognizes the central role of the sea and of what is related to it*. Germany is considered a “world champion in exports”, especially in terms of maritime transport, which makes it economically competitive, particularly if we consider that the costs are comparatively less using the sea as a preferred means of communication whether on the earth or in the air. So, it is a shipping nation, but also a coastal and port state, and a location for shipbuilding. On 3 June 1887, for example, Kaiser Wilhelm I laid the foundation stone of the North Sea-Baltic Canal, a project of the Chancellor Otto von Bismark that early undersdtood the importance of the sea to the German economy. The canal was opened on 21 June 1895, after 8 years of work and at a cost of 156 million Marks, by Kaiser Wilhelm II with the name of Kaiser-Wilhelm-Kanal, as the North Sea-Baltic Canal was called until 1948, in Holtenau. * 105 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 106 According to the “Annual Report 2011 - Facts and Figures on Maritime Dependence of the Federal Republic of Germany66 (“Jahresbericht2011 – Fakten und Zahlen zur maritime Abhängigkeit der Bundesrepublik Deutschland”) – a quarter of the goods arrive in Germany through the ports of the North Sea and Baltic Sea; and a total of 248.2 million tons of goods pass through the German ports.** Therefore, the creation of conditions for goods and raw materials transportation, that are imported, and on which Germany is dependent – protecting the environment, namely limiting maritime pollution - through the development of maritime and port industries, is an essential pillar of the German economy. This is an idea highlighted by the Federal Ministry of Transport, Building and Urban Development (Bundesministerium für Verkehr, Bau and Stadtenwicklung) in the document “Development Plan for a Sea Strategy for Integrated German Maritime Policy”67 (“Entwicklungsplan Meer – Strategie für eine integrierte deutsche Meerespolitik”). Additionally, Germany is also a country of marine research, maritime technologies and innovations, coastal and maritime tourism and fishing. Innovation and maritime technologies, for example, were the chosen themes of the first time that the European maritime day was celebrated in Germany, in Bremen, on 19 and 20 May 201468, which shows the German interest in these subjects. 2. “Development plan for the sea - a strategy for integrated German maritime policy” “Development plan for the sea – a strategy for integrated German maritime policy”(“Entwicklungsplan Meer – Strategie für eine integrierte deutsche Meerespolitik”) is a document, published in 2011 by the Federal Ministry of Transport, Building and Urban Development, that consolidates Germany’s maritime policy interests, focusing on the priorities, policy actions, measures and instruments in an outline of its strategic targets. The document presents three objectives: enhance the competitiveness of German industry and exploit the potential for job creation; achieve a good environmental status in the North Sea and Baltic Sea by 2020, thereby making them the cleanest and safest seas; and assume a share of the responsibility for global ecological developments and support efforts to tackle climate change. According to this document, and with respect to the first objective, “With gross value added of around 85 billion Euros and a workforce of around 400,000 66 Marine. “Jahresbericht 2011 – Fakten und Zahlen zur maritime Abhängigkeit der Bundesrepublik Deutschland”.http://www.marine.de/contentDownload/download/1320831828538S6GSVfxGvYHP HSfcUQugqa95SnzngPFstsm4xIBLTf79cAGRb9u/FaZa2011_web.pdf ** Hamburg, Germany’s largest seaport (with around 9,7 million standard containers), is accordingly the second largest container port in Europe and the fifteenth largest container port in World. 67 Federal Ministry of Transport, Building and Urban Development.“Maritime Development Plan. Strategy for an integrated German maritime policy”. http://www.bmvi.de/SharedDocs/EN/Anlagen/VerkehrUndMobilitaet/Wasser/maritime-policy-maritime-development-plan.pdf?__blob=publicationFile 68 European Comission. “European Maritime Day – Bremen 2014”. http://ec.europa.eu/maritimeaffairs/maritimeday/en/bremen-2014. 106 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 107 workers, the maritime industry is of great regional importance and of great importance to the economy as a whole”.69 It means that the role of the maritime industry is not exclusive of the maritime federal states in Northern Germany; it is also important to the states in Southern Germany. In order to achieve the second objective, the document reminds us, among other things, that Germany participated in the development of the “European Union Strategy for the Baltic Sea Region”70, adopted on 30 October, 2009 by the European Council. Another aspect referred to, is to ensure that the Baltic Sea and the North Sea both have a good environmental status by 2020, and that the federal government is making efforts to transpose the EU’s Marine Strategy Framework Directive71 into national legislation. In practice, the directive will be implemented by the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, which assumes lead responsibility with the Federal Government, which cooperates with the coastal states within the framework of a new national administrative structure. For the third objective, it is mentioned that Germany is like all industrialized nations responsible for the global climate and its changes, something in which the sea has a fundamental role. As a habitat for many species that are yet undiscovered, the sea also plays a role for human survival in general within a stable ecosystem in world. So, the more we protect the seas, the better will be our contribution towards the mitigation of climate change. In addition to these three objectives above, the federal government also established six key areas for action: strengthen marine science and research, and promote technological innovation; use the seas sustainably; protect the marine environment and tackle climate change; ensure maritime safety and security and the protection of the coastal regions and infrastructure; optimize the quality of life in coastal regions; and raise people’s awareness of the seas and their importance for the climate, the environment and prosperity. For the first key area, which is about strengthening marine science and research, and promoting technological innovation, the document “Development Plan to Sea Strategy for Integrated German Maritime Policy” states that the principles of integration, interaction and innovation, marine science and marine research (whose investment is considered a major prerequisite for economic growth and the preservation of competitiveness) are of key significance for an integrated maritime policy. The importance of technology is also still growing throughout the world. The document also states that German marine scientists have been working for many years focusing on the identification and prediction “of large-scale changes in oceanic circulation in the Atlantic sector and regional conditions in the 69 Federal Ministry of Transport, Building and Urban Development.“Maritime Development Plan. Strategy for an integrated German maritime policy”. http://www.bmvi.de/SharedDocs/EN/Anlagen/VerkehrUndMobilitaet/Wasser/maritime-policy-maritime-development-plan.pdf?__blob=publicationFile 70 EU Strategy for the Baltic Sea Region. http://www.balticsea-region-strategy.eu/ 71 EUR – LEX. “Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive). http://eur-lex.europa.eu/legal-content/ EN/TXT/?uri=CELEX:32008L0056 107 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 108 European shelf sea area and on the climate on the mainland of Europe”.72 The main aim of this work is “to translate these elements into practice and to test applications of the system for regional estimates of circulation in the North Sea and for forecasts each decade of climate variabilities”. The expression “a European shelf sea area” demonstrates the vision of Germany about something that, when alone it is in a disadvantaged position, but when it is under the “hat” of the European Union, it is in an advantaged position. In fact, Germany has only a small access to the sea, and it will not have any continental shelf extension, because Germany’s continental shelf is coincident with its economic exclusive zone, which has only 35.412 km2 (smaller than the Portuguese territorial waters with 50.957 km2.)73 This is not very much for a country with all conditions to explore the sea: human resources with know-how, technology and money. In comparison, Portugal could gain approximately 2.113.510 km2 more of sea and, although it has human resources with know-how (not still enough) and technology (not still enough), it does not have sufficient money to explore its seas. In this sense, considering the European seas and forgetting national seas, Germany wins because it has more possibilities of making use of its human resources with know-how, technology and money, by exploring the Portuguese seas, and others in the same conditions, than Portugal which has not so great conditions for doing this. Another aspect mentioned in the document is that all marine data of Germany will be available in a standardized information system, as required by the EU’s INSPIRE Directive. The goal of this directive is to ensure that the spatial data infrastructures of the member states are compatible and data is usable in a community and transnational context. For Germany it is also important to adopt “interdisciplinary research and better linkages between European research establishments”. It was with the objective of joining capacities and forces that, in 2004, the leading German marine research establishments formed the German Marine Research Consortium (KDM), which, among other tasks, represents the interests of German marine research in the bodies of the European Union. With respect to the second key area, which is related to the use of seas sustainably, Germany tries through this document to show its holistic approach. This means that on one hand, Germany wants the preservation of its industrial competitiveness as a centre of technology, production and logistics, but on the other hand, this means that it is also worried about the sustainable use of the seas. For the third key area, which is about protecting the marine environment and tackling climate change, the document states that the problems and challenges of 72 Federal Ministry of Transport, Building and Urban Development.“Maritime Development Plan. Strategy for an integrated German maritime policy”. http://www.bmvi.de/SharedDocs/EN/Anlagen/VerkehrUndMobilitaet/Wasser/maritime-policy-maritime-development-plan.pdf?__blob=publicationFile 73 Pacheco, Miguel.2013. Apontamento: Medidas da Terra e do Mar. Lisboa: Instituto Hidrográfico, p. 19. 108 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 109 the seas and oceans today show the consequences of the human activity and pressure on them. So, it is essential there exists an interaction between the maritime sectors and players and, above all, coordinated and inclusive actions at regional, national, European and international levels. Making a connection with the second key area, the document also mentions that “the lasting protection and preservation of the ecosystems of the seas and oceans is are necessary prerequisites for the sustainable management of marine resources.”74 With respect to the fourth key area, which is about ensuring maritime safety and security, and the protection of the coastal regions and infrastructure, the major requirements for the sustainable use of marine resources are maritime safety and security and the protection of the seas in general. They are also essential conditions for sea-based economic activities (such as blue biotechnology, offshore wind generation and the use of the seas as trade routes, just to give some examples), in which Germany is deeply evolved. Following this goal, the establishment of a Maritime Safety and Security Centre (MSZ) by the federal government and the coastal states, in Cuxhaven (in the state of Niedersachsen), as a result of an administrative agreement of 6 September 2005, should be recognized. For the fifth key area, which is about optimizing the quality of life in coastal regions, the document states that “given the numerous clashes between environmental protection and economic development interests, especially in coastal regions”, the Spatial Planning Regulations for the German Exclusive Economic Zone and, in line with a EU recommendation, Integrated Coastal Zone Management75 (ICZM) have been introduced in Germany. In what respects to the sixth key area, which is about raising people’s awareness of the seas and their importance for the climate, the environment and prosperity, the document proposes the following measures: the attendance, by high-level political representatives of the federal government, at the Central European event marking European Maritime Day on 20 May each year; the commemoration of the European Maritime Day in Germany (it took place, in 2014, in Bremen); the use of existing events, such as maritime evenings, trade fairs, conferences, academic symposia, among others, in order to attract the attention of the German people; the development of a Maritime Policy Centre of Excellence, coordinated by the Federal Government, of databases and of a website including a “maritime policy” communications platform; the organization of a “Blue Week”, a “Maritime Week” or similar, at the same time as the National Maritime Conference; the presentation of marine research projects; the development of brochures for schools; and the use of maritime policy issues for designing curricula. 74 Federal Ministry of Transport, Building and Urban Development.“Maritime Development Plan. Strategy for an integrated German maritime policy”. http://www.bmvi.de/SharedDocs/EN/Anlagen/VerkehrUndMobilitaet/Wasser/maritime-policy-maritime-development-plan.pdf?__blob=publicationFile 75 ICZM is a management approach for reducing conflicts on land and at sea, for preserving or improving the quality of the environment and for supporting the coordination, based on the guiding principle of sustainability, among economic, social and ecological interests in the development of the coast. 109 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 110 2.1.”The sea – Our blue wonder” the context of the “Development Plan to Sea – Strategy for Integrated German Maritime Policy“, the German federal government created the logo “The Sea – Our blue Wonder” (“Das Meer - Unser Blaues Wunder”), in order to increase public awareness about the central role of the sea in our lives on the planet earth. The oceans are the largest habitat on earth, they have a greatest impact on climate change and, at same time, they are a source of raw materials, energy, food and medical drugs. However, it is essential to use its waters for maritime transport in a globalized economy (maintaining the seas clean and safe) and explore its resources in a sustainable way, avoiding the destruction of the marine environment. This logo can be used for projects, exhibitions and other activities around the theme of the sea. In 201476, there were almost 50 different projects, developed especially by the states of North Germany, and related not only with the use and exploration of the sea, but also with the importance of its protection. At this moment, most of the projects are in the North of Germany, as the map below shows77, in the federal states of Niedersachsen, Bremen, Hamburg, Schleswig-Holstein, Mecklenburg-Vorpommern, Brandenburg and Berlin. (c) 2014 Bundesministerium für Verkehr und digitale Infrastruktur Bundesministerium für Verkehr und digitale Infrastruktur. „Projeckte „Das Meer – Unser Blaues Winder“ – Liste aktueller Projekte. http://www.bmvi.de/DE/VerkehrUndMobilitaet/Verkehrspolitik/ Meerespolitik/BlauesWunder/Projekte/projekte_node.html?gtp=126616_liste%253D3 77 Bundesministerium für Verkehr und digitale Infrastruktur. „Projeckte „Das Meer – Unser Blaues Winder“ – Projektkarte – Verteilung der Projekte in Deutschland. http://www.bmvi.de/DE/ VerkehrUndMobilitaet/Verkehrspolitik/Meerespolitik/BlauesWunder/Projekte/projekte_node.html 76 110 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 111 For this year of 201578, as the following table shows, there are seven foreseen projects up to this moment namely, exhibitions, workshops and debates, making use of the role that communication could have for a greater public awareness of the questions related with the seas and oceans. Project Responsible Places Dates Observations Dauerausstellung Deutsches des Museums Schifffahrtsüber die museum Schifffahrt [Permanent exhibition about shipping] Bremerhaven Permanent It is a permanent exhibition about shipping. More information: http://www.dsm.museum /ausstellung/dauerausstellung.44. de.html Globaler GEOMAR Ansatzdurch Modulare Experimente (GAME) [Global Approach by Modular Experiment] Kiel From March to December (annually) International project (among 26 countries) related with ecological issues, in which Portugal is also involved with Universidade do Algarve, Universidade da Madeira and Universidade de Lisboa. More information: http://www.geomar.de/en /research/fb3/fb3eoe/fb3-eoeb/game/game-networkpartner-institutes/game-n etwork-partner-institutsiii/ Sustainable Modes of Arctic Resource-driven Transformations (SMART) Potsdam Also 2015? Public workshops and lectures. More information: http://www.iasspotsdam.de/de/forschung scluster/nachhaltigeinteraktionen-mit-deratmosphaeresiwa/luftverschmutzungund-4 Institute for Advanced Sustainability Studies (IASS) Bundesministerium für Verkehr und digitale Infrastruktur. „Projeckte „Das Meer – Unser Blaues Winder“ – Liste vergangener Projekte. http://www.bmvi.de/DE/VerkehrUndMobilitaet/ Verkehrspolitik/Meerespolitik/BlauesWunder/Projekte/projekte_node.html?gtp=126616_liste%253 D2 78 111 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 112 Project Responsible Places Dates UNDINE (Underwater a Nature Experience) Bund für Umwelt und Naturschutz, Deutschland (BUND), Landesverband SchleswigHolstein e. V. On demand On demand Project developed between Germany and Denmark (INTERREG4A program “Fehrmarn Belt Region”), with respect to the Baltic Sea. It is a set of initiatives (like short underwater films, dive site mapping, guided snorkeling activities, brochures, etc.) in the fields of environmental education, nature conservation, tourism and media design. More information: http://www.undinebaltic.eu/ Vortragsreihe “Wissen schaffen” [Lectures “creating science”] GEOMAR GEOMAR Hörsaal Ostufer, Wischhofstr. 1-3, 24148 Kie 13 January 2015 Public lecture. More information: http://www.geomar.de/se rvice/veranstaltungen/oef fentliche-veranstaltungen/wissenschaffen/ Inwater Solutions RunKOM Kommunikation & Management Hannover 13-17 April 2015 Exhibition that presents innovative marine technologies and solutions for sustainable marine economy. More information: http://www.inwatersolutions.de/ “Blaue Stunde - Fragen und Antworten zu Meer & Küste ”[Blue Hour – Questions and Answers about sea and coasts] EUCC Die Küsten Union Deutschland e. V. German mar- 2015 itime coast with the North Sea and the Baltic Sea (Elaborated by the author) 112 Observations Debate with experts, with live transmissions on the internet. More information: http://euccd.de/ New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 113 3. German Marine Research German Marine Research is organized in a consortium, Konsortium Deutsche Meersforschung (KDM), composed of all large research institutions, universities, non-university institutes and museums. With eleven years of existence, the Consortium of German Marine Research, known as KDM, has as its major goals79: to advance with science and research, in particular in the field of marine sciences, including polar and coastal research; to foster the collaboration of its member institutions and the development of joint research programs; to intensify cooperation with German, European and international marine research partners, and with the use of infrastructure and large equipment; and to collectively represent the interests of marine research towards decision-makers not only in Germany and in the European Union, but also towards the general public. 3.1. Spatial distribution of the German Marine Research members in Germany Elaborated by the author (2015) With a total of 16, all in the North of Germany, the members of KDM are located especially in Bremen (5), Hamburg (3), Mecklenburg-Vorpommern (3), Schleswig-Holstein (3) and Niedersachsen (2). In Bremen, there are the following institutions: Alfred Wegener Institute Helmholtz Centre for Polar and Marine Research (in Bremerhaven); Jacobs University Bremen - School of Engineering and Sciences; MARUM Center for Marine Environmental Sciences; Max Planck Institute for Marine Microbiology; and the Centre for Tropical Marine Ecology (ZMT). Konsortium Deutsche Meeresforschung.“ Ozeanobservatorien in der Schlüsselregion AtlantikArktis - eine Vision. http://www.deutsche-meeresforschung.de/de/ozeanobservatorien 79 113 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 114 In the state of Hamburg, there are these institutions: Center for Earth System Research and Sustainability (CEN); Max Planck Institute for Meteorology (MPI Hamburg); and Thünen Institutes of Sea Fisheries, of Fisheries Ecology, and of Baltic Sea Fisheries (TI Aquatic Resources). The state of Mecklenburg-Vorpommern hasthe Department of Maritime Systems, Interdisciplinary Faculty, University of Rostock (in Rostock); the German Oceanographic Museum (in Stralsund); and the Baltic Sea Research Institute Warnemünde (IOW) (in Rostock-Warnemünde). In Schleswig-Holstein, there are the GEOMAR Helmholtz Centre for Ocean Research Kiel (in Kiel); Helmholtz-Zentrum Geesthacht, Centre for Materials and Coastal Research (in Geesthacht); and Kiel Marine Science - Centre for Interdisciplinary Marine Science, University of Kiel (in Kiel). Finally, the state of Niedersachsen has the Institute for Chemistry and Biology of the Marine Environment, the University of Oldenburg (in Oldenburg) and the Senckenberg Research Institute, Wilhelmshaven (in Wilhelmshaven). 3.2. Open Ocean Observatories: a worldwide presence, but with greater relevance in the Atlantic For marine research, Germany has two kinds of observatories: the coastal observatories, and the open ocean observatories, on which this section will be focused. In fact, Germany has observatories all around the world, in all oceans, but its great presence is in the Atlantic Ocean. Elaborated by KDM80 Konsortium Deutsche Meeresforschung.“ Open Ocean Observation with German contribution: current status and future needs”. http://www.deutsche-meeresforschung.de/en/openoceanobservatories 80 114 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 115 In this sense, only in the Atlantic Ocean, where Germany has the greatest presence in the marine research as stated, it has 17 open ocean observatories (1 to 17). In second place, is the Pacific Ocean, where Germany has 4 open ocean observatories (25 to 28). Then, in third place, is the Arctic Ocean with 3 observatories (18 to 20). Antarctica and the Indian Ocean have 2 observatories each (21 to 22 and 23 to 24 respectively). 3.2.1. Spatial distribution of those responsible for the Atlantic Observatories in Germany Adapted by the author (2015). Regarding the Atlantic Ocean, oversight of the teams of the observatories 1 to 17 have affiliation, in most cases, with the GEOMAR – Helmholtz-Zentrum für Ozeanforschung Kiel, in the State of Schleswig-Holstein, in the North of Germany. These are the cases of the open ocean observatories with the numbers 1, 2, 5, 9, 10, 11, 15, 16 and 17. In second place, there is Bremen. Two officials are from the Bremen University (numbers 3 and 8) and the other two from MARUM – Zentrum für Marine Umweltwissenschaften – Universität Bremen (numbers 13 and 14). 115 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 116 In third place, there is Hamburg. Two officials are from Hamburg University (numbers 6 and 7) and another one is from BSH Hamburg – Bundesamt für Seeschiffahrt und Hydrographie (number 4). With respect to the official responsible for the observatory in Azores (number 12), he is the only one with affiliation to IOW- Leibniz-Institut für Ostseeforschung Warnemüde in Rostock, in the state of Meckelnburg-Vorpommern. All these institutions are located in the North of Germany, in states with direct access to the sea, the North Sea and/ or the Baltic Sea, as demonstrated by the map above. With these open ocean observatories, Germany has these goals: to monitor and forecast changes in the key region of Atlantic-Arctic; to improve methodological approaches in the research and visualization of the ocean environment; to investigate the marine life and the impact of change through time and space, using high-resolution in situ observations; and to contribute to sustainable, environmentally friendly offshore exploration and operation technologies. Germany identifies, as technical challenges the following: the real time monitoring of ocean processes; the reliable use of underwater platforms for building and maintenance of measuring instruments; improving the long-term behavior of instruments and sensors; the development of efficient methods for preventing corrosion and fouling; the trouble-free operation of the systems used; the interactive access to all functions of the instruments; and the interchangeability of measuring instruments by appropriate standardization. For the future, Germany intends to achieve the following: the integration of the latest methods from the fields of robotics, nanotechnology and marine genomics; practical investigations using new underwater measurement methods; the real-time monitoring of ocean processes linked to geo-referenced information products; and the seamless integration of research data into the international Earth Observation Network GEO. 3.2.3 German Marine Research near Portuguese waters: the Case of the Azores Observatory (number 12) Among the open ocean observatories in the Atlantic, and located in 33.º North and 22º West, in the middle of the Northeast Atlantic – about halfway between the archipelago of Azores and the archipelago of Madeira – is the German Azores Observatory81, something that is unique. It is a station, with the name Kiel276, installed under water and responsible for the registration of the different parameters of the water column at different depth levels since 1980. As the following map elaborated by Miguel Bessa Pacheco (2015), the German station is located in an area in which Portugal does not have sovereignty or jurisdiction. It is an area of international waters, included in the space proposed by Portugal to be the extension of its continental shelf. 81 Leibniz – Institut für Ostseeforschung Warnemünde. „Kiel 276 - Azoren Observatorium“. http://www.io-warnemuende.de/azoren-observatorium.html 116 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 117 Elaborated by Miguel Bessa Pacheco (2015) According to Joanna Waniek (2015), from Leibniz-Institut für Ostseeforschung Warnemünde, this observatory has a goal of providing information about changes of temperature, currents and biological activity in the water, which results in seasonal and decadal time scales. At the same time, it provides information on the location of the Azores front that contain two water bodies which are separate from each other. This is a region that makes possible the direct study of ocean dynamics and climate change. When the station has new data, it sends the information to be analyzed in Germany. This does not mean that the information will be (or not be) shared with Portugal later, but, in this sense, Waniek (2015) stated that her team maintains a relation of cooperation, since a long time ago, with her colleagues in Portugal, especially in Lisbon and in the archipelago of Madeira. Until today the main conclusions of the research developed by this station are the following: the Azores front has a great influence on the phytoplankton of the region, which joins with the Gulf Stream; the uppermost 500 m of the water column has clearly warmed in the last 3 decades about 0.15 degrees; and the dust records from the Sahara show that the dust brings a large input of nutrients to the region, stimulating the primary production. 3.3. German Research Vessels by the German Research Vessels Portal German marine research would not be possible without research vessels; Germany has seven different research vessels82, presented in the German Research Although its research vessels total 15, they are divided into: large research vessels (POLARSTERN, METEOR and SONNE); medium-sized research vessels (MARIA S. MERIAN, POSEIDON, ALKOR and HEINCKE); small research vessels (ELISABETH MANN BORGESE, LITTORINA , LUDWIG PRANDTL , SENCKENBERG, and UTHÖRN); and vessels of federal research agencies (CLUPEA, SOLEA and WALTHER HERWIG III). Konsortium Deutsche Meeresforschung. „Organization for Research Vessels”. http://www.deutsche-meeresforschung.de/en/organizationresearchvessels 82 117 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 118 Vessels Portal, which could be used for a cruise proposal: POLARSTERN, METEOR, SONNE, MARIA S. MERIAN, POSEIDON, ALKOR and HEINCKE. These research vessels are equipped for projects of biology, geology, geophysics, glaciology, geochemistry, oceanography, and meteorology. In the map below there are shown some of them with the indication of the spatial areas, in which they usually cruise. Source: Portal deutsche Forschungsschiffe83 3.3.1. The Research Vessels used in the case of Azores Observatory: FS POSEIDON and FS Maria S. Merian Focusing on the case of Azores Observatory, the team uses mostly the research vessel POSEIDON, and sometimes they use the research vessel MARIA S. MERIAN. The POSEIDON84 is a medium-sized research vessel, which operates primarily in the North Atlantic Ocean and the Mediterranean Sea. It is usually available for research cruises in the fields of oceanography, marine biology and geology. The research vessel MARIA S. MERIAN85 is able to cruise not only in the Mediterranean Sea and the North Atlantic Ocean, but also in the sub polar Norwegian Sea. The ship’s owner is the Federal State of Schleswig-Holstein, and the POSEIDON has a length of 61 m and a cruising speed of 9 kn. Its endurance is a maximum of 21 days and its scientific staff could be composed of 11 persons (maximum). In comparison, the MARIA S. MERIAN, which is owned by Federal State of Mecklenburg-Western Pomerania, has a length of 95 meters and a cruising speed of 12.5 kn. Its endurance is a maximum of 35 days and its scientific team could be a maximum of 23 persons. Portal deutsche Forschungsschiffe. https://www.portal-forschungsschiffe.de/en/start Portal deutsche Forschungsschiffe. „Research Vessels – POSEIDON. “https://www.portal-forschungsschiffe.de/en/vessels/poseidon 85 Portal deutsche Forschungsschiffe. „Research Vessels – MARIA S. MERIAN“. https://www.portal-forschungsschiffe.de/en/vessels/maria-s-merian 83 84 118 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 119 POSEIDON Dimensions Overall length: 60,8 m Length between perpendiculars: 55,0 m Overall width: 11,4 m Draught: 4,9 m MARIA S. MERIAN Overall length: 94,76 m Length between perpendiculars: 86,51 m Overall width: 19,20 m Draught: 6,5 m (7,0 m max.) Displacement Light: 1318 t Useful scientific charge: 24 t Light: 4493 t Useful scientific charge: 150 t Endurance 21 days 35 days Number of scientists 11 scientists 23 scientists Equipments: Hydro acoustic systems 1. Krupp-Atlas-Elektronik, 293, Pilot-Echolotanlage (Multibeam echosounder – hidrography); 2. Elac, Schwinger LSE138, LAZ 5100 (Navigation echosounder); 3. L3-Elac: Sende-, Empfangs- & Bedieneinheit Hydrostar 4900 mit LAZ MP25x01 und DAZ25 (Single beam echosounder – hidrography); 4. DoLog, EM-log &Sat-Log (Doopler-Log); 5. ELAC SB 3050 (Multibeam system86). 1. Atlas PARASOUND DS P70 (Deep-sea sub-bottom profiler – marine geology); 2. Kongsberg EM 120 (Multibeam echosounder – hidrography); 3. Kongsberg EM1002 (Multibeam echosounder – hidrography); 4. Kongsberg EA600 (Single beam echosounder – hidrography); 5. Kongsberg EN250 (Navigation echosounder); 6. Acoustic Doppler Current Profiler (similiar to a sonar); 7. Schallprofilsonde (Sound velocity profiler); 8. feste Schallsonde mit Temperatursensor (Temperature profiler); 9. USBL-UnterwasserPositionierungssystem (Ultra-short baseline); 10. Atlas DOLOG 22 (Doppler-Log87). (Elaborated by the author (2015)) - It is used to the depiction of objects floating in the water column (plankton, fish schools). It is also able to detect methane gas bubbles within the water column. It is the ideal tool for mapping the continental shelf, up to 3000 m depth, and 4000 square meters seafloor coverage. 87 It is used to measure the ship speed in relation to the sea. 86 119 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 120 3.4. German Maritime Technology: All the conditions needed to research more than half of the total area of the oceans ! In addition to the research vessels with their own equipment88, there is much sophisticated equipment that can be used by marine science institutions, as presented in the table below. Equipment Owner Working Water depth AUV SEAL 5000 MARUM (Bremen) Up to 5000 m AUV ABYSS GEOMAR (Kiel) Between 2000 m and 6000 m CMOVE89 MARUM (Bremen) Down to 3000 m Research Submersible JAGO90 GEOMAR (Kiel) About 400 m ROV CHEROKEE 1000 m MARUM (Bremen) About 1000 m ROV QUEST 4000 m MARUM (Bremen) Down to 4000 m ROV KIEL 6000 GEOMAR (Kiel) About 6000 m ROV PHOCA 3000 GEOMAR (Kiel) Up to 3000 m Sea floor drill rig MeBo, incl. LARS91 MARUM (Bremen) Down to 200 m (Elaborated by the author, 2015) This equipment shown is from MARUM (5) and GEOMAR (4). There are also two AUV, one platform CMOVE, one submersible, four ROV that are usually used in pairs and one sea floor drill rig MeBo. Thus, Germany has all the conditions to research water depths up to 6000 m. Given the fact that more than 50% of the area of the global oceans has a water Portal deutsche Forschungsschiffe. „Equipment“. https://www.portal-forschungsschiffe.de/en/ equipment 89 It serves as a platform for geophysical measurements in the seabed. CMOVE is of particular interest to carry out measurements of the microbial activity in the surface sediment and for this microelectrodes are used. 90 Its typical applications are deep-water exploration of the seafloor and the overlying water column as well as digital photo/video documentation; selective collection of specific organisms, rock, gas and water samples; deployment of instruments; and environmental impact studies; inspections and salvages. 91 It is a robotic drill rig, which is deployed on the sea floor and operated remotely from the research vessel to drill up to 80 min to the sea floor. Besides core drilling, it is also used for borehole logging in the logging-while tripping mode as well as for the instrumentation of boreholes for long-term monitoring of pressure and temperature changes within the sediments. 88 120 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 121 depth up to 6000 m92, it means that Germany could research more than 50% of the total area of the oceans. 3.5. German Maritime Research Projects: The interest in marine resources Among the German Maritime Research Projects, Germany has projects directly related with more efficient, safe and clean use of technology in shipping, such as the LASSE and GasPax Projects. Funded by the German Federal Ministry for Education and Research and the German Federal Ministry for Economics and Technology, LASSE targets the behavior of ships in heavy seas and the assessment of ship response, and the related hazards and loads on ship structures through the use of numerical simulation. This is a project of a consortium under the coordination of Flensburger Schiffbau-Gesellschaft GmbH& Co. KG, composed of the Hamburg University of Technology, the Technical University Berlin, the Hamburg Ship Model Basin and Ocean Waves GmbH. GasPax Project, for example, is a project for the development of three gasfueled ship types, a Mega Yacht (Lürssen), a Cruise Ship (Meyer Werft) and a RoPax Ferry (FSG). On the other hand, Germany also has, among its maritime research projects, various projects that reflect its interest in marine resources, which it could explore through its open ocean observatories especially because it has a small sea and these marine resources are only found in great water depths, as in Atlantic Ocean, for example. These marine resources, which Germany tries to find are for its Pharmaceutical Industry, such as the case of a past project which was developed, with the collaboration of other countries (such as Finland, Denmark, Indonesia, Norway, Chile, United Kingdom), called MARINE FUNGHI. It was developed between May 2011 and April 2014, from marine bacterias and funghis, which, when isolated in laboratory, could naturally produce biochemical compound that could kill other cells, such as cancer. Another project, also related with marine resources, but focused on energy, is the project SUGAR – Submarine Gas Hydrate Deposits: Exploration, Exploitation and Transport, which is funded by the Federal Ministry of Economics and Technology and the Federal Ministry of Education and Research. Led by the Leibniz Institute for Marine Science (IFM-GEOMAR) in Kiel, this project has the goal of developing a safe and eco-friendly procedure combining undersea methane production with carbon dioxide storage. Germany believes it does not have gas hydrate deposits of its own and, as a consequence, it must go through the experimentation and exploration of the methane gas from its presence all around the world... According to the data presented by Pacheco (2014, p.7), the first biggest area of the oceans, with 116.882.045 km2 (32, 20%), has a water depth between 4000 and 5000 m; the second biggest area, with 78.934.449 km2 (21,75%), has a water depth between 3000 and 4000m, and the third biggest are, with 76.208.571 km2 (20,99%), has a water depth between 5000 and 6000 m. 92 121 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 122 BIBLIOGRAPHY AAVV.2014.Ciclo de Conferências: Perspetivas do Mar Português. Lisboa: Academia de Marinha. Briese Schiffahrts GmbH & Co. KG., Maria S. Merian - Handbuch“. http://www.briese.de/fileadmin/downloads/Forschung/Handbuch-Maria-S-Merian.pdf (Accessed on 15 January, 2015). Bundesministerium für Verkehr und digitale Infrastruktur. „Projeckte „Das Meer – Unser Blaues Winder“ – Projektkarte – Verteilung der Projekte in Deutschland. http://www.bmvi.de/DE/VerkehrUndMobilitaet/Verkehrspolitik/Meerespolitik/Blaues Wunder/Projekte/projekte_node.html (Accessed on 25 January, 2015). Bundesministerium für Verkehr und digitale Infrastruktur., Projeckte „Das Meer – Unser Blaues Winder“ – Liste vergangener Projekte. http://www.bmvi.de/DE/ VerkehrUndMobilitaet/Verkehrspolitik/Meerespolitik/BlauesWunder/Projekte/ projekte_node.html?gtp=126616_liste%253D2 (Accessed on 25 January, 2015). Bundesministerium für Verkehr und digitale Infrastruktur. „Projeckte „Das Meer – Unser Blaues Winder“ – Liste aktueller Projekte. http://www.bmvi.de/DE/ VerkehrUndMobilitaet/Verkehrspolitik/Meerespolitik/BlauesWunder/Projekte/projekte_node.html?gtp=126616_liste%253D3 (Accessed on 25 January, 2015). Central Intelligence Agency. “The World Fact Book”- Europe - Germany. https://www.cia.gov/library/publications/the-world-factbook/geos/gm.html (Accessed on 18 January, 2015). EU Strategy for the Baltic Sea Region. http://www.balticsea-region-strategy.eu/ (Accessed on 4 February, 2015). EUR – LEX. “Directive 2008/56/EC of the European Parliament and of the Council of 17 June, 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive). http://eurlex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32008L0056 (Accessed on 4 February, 2015). European Commission. “European Maritime Day – Bremen 2014”. http://ec.europa.eu/maritimeaffairs/maritimeday/en/bremen-2014 (Accessed on 4 February, 2015). European Commission – Research & Innovation. “Deep Cure”. http://ec.europa.eu/ research/infocentre/article_en.cfm?artid=33676 (Accessed on 25, 2015). European Commission – Research & Innovation. “New horizons in International Goods Transport”,http://ec.europa.eu/research/infocentre/article_en.cfm?id=/research/headlines/news/article_14_04_24_en.html?infocentre&item=Infocentre&artid=31979 (Accessed on 25 January, 2015). Federal Ministry of Transport, Building and Urban Development. “Maritime Development Plan. Strategy for an integrated German maritime policy”. http://www.bmvi.de/SharedDocs/EN/Anlagen/VerkehrUndMobilitaet/Wasser/maritimepolicy-maritime-development-plan.pdf?__blob=publicationFile (Accessed on 9 January, 2015). 122 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 123 GEOMAR. “FS Poseidon – Handbuch für Nutzer“. http://www.geomar.de/fileadmin/content/zentrum/ze/fs/Poseidon-Handbuch/Poseidon-Handbuch.pdf (Accessed on 15 January, 2015). Konsortium Deutsche Meeresforschung. http://www.deutsche-meeresforschung.de/ de/index (Accessed on 6 January, 2015). Konsortium Deutsche Meeresforschung.“ Open Ocean Observation with German contribution: Current Status and Future Needs”. http://www.deutsche-meeresforschung.de/ en/openoceanobservatories (Accessed on 6 January, 2015). Konsortium Deutsche Meeresforschung., Organization for Research Vessels”. http://www.deutsche-meeresforschung.de/en/organizationresearchvessels (Accessed on 8 February, 2015). Konsortium Deutsche Meeresforschung.“ Ozeanobservatorien in der Schlüsselregion Atlantik-Arktis - eine Vision„. http://www.deutsche-meeresforschung.de/de/ozeanobservatorien (Accessed on 6 January 2015). Leibniz – Institut für Ostseeforschung Warnemünde., Kiel 276 - Azoren Observatorium“. http://www.io-warnemuende.de/azoren-observatorium.html (Accessed on 30 January, 2015). Marine. “Jahresbericht 2011 – Fakten und Zahlen zur maritime Abhängigkeit der Bundesrepublik Deutschland”. http://www.marine.de/contentDownload/download/1320831828538S6GSVfxGvYHPHSfcUQugqa95SnzngPFstsm4xIBLTf79cAG Rb9u/FaZa2011_web.pdf (Accessed on 1 June, 2013). Pacheco, Miguel.2013. Apontamento: Medidas da Terra e do Mar. Lisboa: Instituto Hidrográfico. Portal Deutsche Forschungsschiffe. Equipment. https://www.portal-forschungsschiffe.de/ en/equipment (Accessed on 24 January, 2015). Research in Germany. “Maritime Technologies – Research Projects”. http://www.researchin-germany.org/en/research-areas-a-z/maritime-technologies/Research-Projects.html (Accessed on 1 February, 2015). Silva, Jaime.2014. O Potencial do Mar Português: Uma Análise Estratégica. Lisboa: Instituto de Estudos Superiores Militares. Waniek, Joanna.30/01/2015. Re: SPAM(16)—— Fwd: Azoren Observatorium - Einige Fragen. 123 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 124 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 125 11. THE PORTUGUESE SOUTHERN MARITIME BORDER: GENESIS, PROBLEMS AND THE FUTURE OF THE SELVAGENS ISLANDS Pedro Quartin Graça ISCTE - University Institute of Lisbon. PhD in Public Policies. Researcher at DINÂMIA’CET (ISCTE) and CIIMAR - Interdisciplinary Center of Marine and Environmental Research of the University of Porto It is an incontestable fact that the Selvagens islands are, from the point of view of geography, an independent archipelago. It is also a fact that the Selvagens, located between the Portuguese Madeira islands and the Spanish islands of the archipelago of Canaries have been involved for centuries in the centre of an Iberian dispute between the two countries. However, the question that must be placed first is the one regarding precisely the existing greater geographic proximity between Selvagens and Canaries if compared with the proximity between those islands and the Madeira archipelago. In other words, we should first examine if that shorter distance between Selvagens and Canaries is, or is not, relevant concerning the sovereignty of the islands. And this argument comes up because it is the only known argument that was presented by Spain in order to justify the alleged sovereignty that, in one certain and unique moment, Spain’s public presented trying to claim the islands. To this question the Permanent Commission of International Maritime law answered and defended, in a document dated 15 of February of 1938 concerning the “nationality of the “Selvagens Islands” the fact that Selvagens are closer from the Canaries than to Madeira has no importance for the effect of deciding whether belonging to the Portuguese sovereignty or the Spanish sovereignty”. The first invoked reason is, therefore, precisely the one of a geographic order. In these terms, and in accordance with the conclusions of the document made by the Commission, “geographically, the Selvagens form an autonomous archipelago”. But the truth is that, much more important than the point of view of geography, is the fact that the history of the Selvagens and, in particular, the part referring to 125 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 126 the property and the ownership of that space, show us that Portugal or Portuguese people were, with little doubt, the unique sovereigns of the islands. It is also important to demonstrate clearly that the alleged Spanish sovereignty over the Selvagens, is not today, and it never was in the past, supported in any title or known legal document, or confirmed, by the way, with the events verified along the centuries. There had always existed, in the course of the history of the Selvagens, only unilateral allegations of sovereignty on the part of Spain toward the islands, but not more than this. The Selvagens were during centuries the object of private property, but always on the part of Portuguese citizens and, since 1971, after being sold, they were registered on behalf of the Portuguese State. Still, before this referred sale, the islands were property of a Portuguese citizen, Luiz da Rocha Machado and, still before, in the XVI century, they belonged to the Madeira s family with the title of Cayados. Also the discoverer Diego Gomes (of Sintra) referred to the islands when he wrote that the Selvagens were discovered by the caravels of Infant D. Henrique and that they were inhabited. From this we can conclude that, until their discovery by the Portuguese, the Selvagens were not inhabited and that Portugal, from the moment when it discovered them, started to consider them as being Portuguese. It means, therefore, that the Selvagens islands belong to Portugal by “right of discovery and uninterrupted ownership”. This is certified, in addition, by the fact that, since the settling of Madeira, the Selvagens and the Desertas islands have been incorporated into the Government of that archipelago and, currently, they belong to the administrative District of the Funchal. Also, the Portuguese State has considered itself systematically competent to legislate about the islands, and it is possible to read in the preamble of the Decree of 1 of November of 1932, in which is stated that “the Desert Islands and the Selvagens, pertaining islands to the administrative district of the Funchal, constitute private property”. It was also stipulated that those islands were considered as a regimen of hunting reserve, in favour of the respective owners. The assumption of sovereignty on the part of Portugal on the Selvagens islands does not result, however, only from the legislative practice, but also from a generalized consensus by the most sanctioned international partners in the domain of science, geopolitics, defence, among others, as well as by diverse international organisations such as UNESCO which recognizes the Portuguese sovereignty on the islands. It is also important to state that we cannot find any firm and permanent protests on the part of Spain regarding the Portuguese sovereignty, which did only occur once in the past at the beginning of the first decade of the XX century (1911), at a moment when Spain tested a timid sovereignty claim on the territory and received a proper and ready answer on the part of Portugal. After that, in 1929, Rear admiral Gago Coutinho declared that the Selvagens islands had always belonged to Madeira and, therefore, to Portugal. Three years 126 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 127 later, in 1932, this declaration was strengthened in practice through the construction of a geodesic landmark by Portugal. The month of July, 1971 is an important date in the history of the Selvagens because, in that year, the Portuguese State acquired from a Portuguese citizen, Luis Rocha Machado, the Selvagens islands in order to establish on the islands a natural reserve, including the circumjacent maritime spaces up to the bat metric depth of 200 meters. Some years before that, in 1967, the rights of hunting for the juvenile cagarras, which belonged to Simplício Passos Gouveia, was sold to Paul Alexander (Alec) Zino, Marques Gouveia and José Fernando. However they decided not to hunt more on the islands. The history of the islands is full of incidents that, along centuries, have occurred. The conflicts with foreigners, concretely with Spanish citizens, who had places in the Selvagens during the past centuries, were rarely object of passionate debates in Portugal, contrary to the situation at the Spanish national and regional parliaments and the Senate, places where the debates were sometimes extremely violent. Those incidents are, generally, of two types: 1) overflights or attempts to land by airplanes and helicopters on the Selvagens islands, and 2) apprehensions of Spanish ships and fishing boats, or the practice of forbidden underwater hunting by Spanish fishermen from Canaries in the surrounding Portuguese waters. All that happened because Spain and Portugal - countries which did sign the Convention of the United Nations on the Right of the Sea and the Related Agreement to the application of Part XI of this Convention – have a problem with the unilateral delimitation that Portugal established of its Territorial Sea, its Continental Platform and its Exclusive Economic Zone, in particular with the delimitation of the flank south of the EEZ in the sub-area of Madeira. Also, not less important, is the qualification of the Selvagens as “islands” – as Portugal argues - and not, as Spain defends, as inhabited rocks. Referring to the delimitation of the maritime and aerial spaces of the Selvagens, in 1977 Portugal, under law n. º 33/77 approved the institution of the Exclusive Economic Zone and has set as 12 miles the width of the Territorial Sea of Portugal proceeding, consequently, to the extinction of two other figures: the Contiguous Zone and the Zone of Fishing between the 6 and 12 miles. Spain, one year after the approval of the Portuguese legislation, also approved the creation of its EEZ, through Law nº 15/1978. In this same year, Portugal also set the limits of its EEZ, under the Decree n. º 119/78 of June 1, which defined, even though with provisional character, the limits of the Exclusive Economic Zone. In the case of the delimitation of the area of Madeira, the stocking distance between the Selvagens and the archipelago of the Canaries was traced. In this year, and as a sequence of the approval of the above-mentioned Portuguese law, Spain protested formally and reacted through the presentation of a verbal note, dated of 18 of August and emitted by its Ministry of the 127 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 128 External Affairs. In the referred Note, Spain sets as its basis for the protest in two sources: • The absence of ratification on the part of Portugal of the “Agreements of Guarda” of 1976 and, • The delimitation of the southern flank of the sub-area of Madeira, in the corresponding part to the ZEE of the Selvagens Islands. In sum, Spain supported the position it assumed on the basis of the argument of that, in the terms of the International law, the EEZ and the Continental Platform must be delimited according to the equity criteria, and, also, that Spain does not recognize the Selvagens or the international statute of “islands”, with the consequent impossibility of attibuting an EEZ to them. In the attempt to solve the existing problems of delimitation between Portugal and Spain, Madrid was the location of a meeting between the two countries from 18 to 20 December, 1978. The Spanish delegation to this meeting, in a way that was considered as an implicit recognition of the Portuguese sovereignty over the Selvagens Islands, defended the thesis of the median line, without, however, having included the Selvagens within the definition of its tracing. Portugal made its position very clear when needed about the Selvagens, not only the attribution of Continental Platform, as well as of EEZ, counting on the Selvagens corresponding position to the median line. The confrontation of these two positions results in the existence of a zone of litigation that corresponds to a total of 42.511 sm. No agreement was possible between the two countries and Spanish government authorities have defended since that date, in various internal state institutions, the reopening of the negotiations with Portugal for the delimitation concerning, in the Spanish own words, the “circumstances that occur in this maritime space”. Meanwhile the Portuguese sovereignty over the Selvagens, as well as their legal classification as “islands” has been strengthened in the last decades, namely through periodic visits by the Presidents of the Republic and other politicians responsible like the minister of defence, and parliamentary delegations, among others. Mário Soares made two visits to the Autonomous Region of Madeira during his two mandates as President. The visit to the Selvagens took place in September of 1991. Some years later, in 2003, the Portuguese President Jorge Sampaio went also to the Selvagens. On the 4 of July, 2010 the islands received the visit of the minister of defence, during which he inaugurated an allusive monument to the 58 years of the Portuguese Air Force presence in the southern part of the Portuguese territory. In 2013 it was the turn of the present President of the Republic, Aníbal Cavaco Silva, who visited the Selvagens and, in an original initiative, spent the night on the island Great Savage, different from what had occurred with his predecessors, and was, by the way, the first Portuguese Head of state to do so. That’s the reason why Spain stated in 2013, through the Verbal Note n.º 186 of its Permanent Mission at the United Nations, and symptomatically emitted 128 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 129 almost simultaneously with the visit of the President Cavaco Silva to the Selvagens, that Portuguese territory cannot be classified as islands, but only as “rocks”. What circumstances are those that Spain repeatedly refers to and that will certainly interfere with the future of the islands? The fact is that Spain has no arguments to claim any title of sovereignty regarding the islands. That s why Spain is trying to demonstrate that the Selvagens are rocks, with no population or economic activity and with no right to claim any establishment of an Exclusive Economic Zone. This means that Spain, differently from what occurred in the 1970s, and in spite of defending in public direct conversations with Portugal, does not necessarily want this subject to be directly argued between the two Iberian countries, but prefers to submit it, after a possible failure in the talks with Portugal, to an international court like the International Court of Justice or the International Law of the Sea. Spain hopes to receive some benefits from a “salomonic” division of the Portuguese waters or the institution of a condominium between the two countries in the disputed area. And the curious part of this question is that there are no territorial and maritime disputes between Portugal and Spain, not mentioning the one of Olivença. But, in the contrary, the practice shows us that, there is a conflict “in the land” between the two countries and the economic interests are, of course, behind the Castilian pretensions. The probable existence in the marine sub-solo of the Selvagens of several minerals, cobalt and nickel, as well as major products that can be used in the blue biotechnology field is reason enough for the Spanish pretension. IF we add the possible existence of hydrocarbons, this will be greater motivation for Spain to try to appeal to the courts in order to claim its rights regarding those waters. What should Portugal do regarding this important matter? First, Portugal can adopt the position of “no reaction” to the Spanish intentions. The country has, in fact, and also under Portuguese law, the property of the islands and of its EEZ and, therefore, Portugal has no interest in opening any kind of negotiations with the Kingdom of Spain. Secondly, Portugal, from a different point of view, and as an internationally respected country, can decide to make some changes regarding the legal situation of its southern maritime border. In that particular case, Portugal should state that the opening of any kind of negotiations regarding the Selvagens would depend on two other major political questions: That those negotiations regarding Selvagens should not be bilateral with Spain but should have the participation of a third country, Morocco, and The final resolution of the question of Olivença should be solved, at the same time, but not technically connected with this matter. Also, at that time, Portugal should possess a complete and detailed number of legal and historic arguments to present concerning the history and the legal situation of the Selvagens, namely the ones referring to the Portuguese sovereignty and historic presence in the territory. 129 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 130 Portugal should also state its legal arguments regarding the legal qualification of the Selvagens as “islands”, considering the population and economic activity in the area on ecology and public policies concerning the environmental protection, as recognized by the United Nations, either to present at a bilateral negotiation, or to argue in any international court. This position must be enforced by diplomatic efforts of the Portuguese Foreign Office with Portugal international friends from the USA, UK and the partners of the CPLP. In the Selvagens Portugal should enforce some military presence by the Navy as well as developing some compatible eco-tourism, with the possibility of the presence of a somewhat higher number of scientists/researchers and others at the same time, divided between the two islands. All those efforts may contribute to helping develop the Portuguese southern maritime border and the Selvagens archipelago. BIBLIOGRAPHY Daveau, Suzanne, Portugal Geográfico, 1.ª edição, Lisboa, Edições Sá da Costa, Lda, 1995. Antunes, Nuno Sérgio Marques, A delimitação de espaços marítimos, Relatório de mestrado de Direito internacional público, Lisboa, 1996. Bellesteros, Ángel, “Contenciosos y Diferendos de la Diplomacia Española”, Madrid, Cultiva Libros, Maio de 2013. Baptista, Eduardo Correia, “A vigência dos Tratados da Guarda entre Portugal e Espanha relativos à Delimitação de Espaços Marítimos”, in Homenagem ao Prof. Doutor André Gonçalves Pereira, Coimbra Editora, Coimbra, 2006. Barberan, Jose Antonio de Yturriaga, La actual revision del derecho del mar: una perspectiva española, Instituto de Estudios Políticos, Vol. 1: 2ª Parte; Vol. 2: Parte 1, Madrid, 1975. Barberan, José Antonio de Yturriaga, Ámbitos de soberanía en la Convención de las Naciones Unidas sobre el Derecho del Mar, Una perspectiva Española”, Ministerio de Asuntos Exteriores, Area de Documentacion y Publicaciones,1996. Bastos, Fernando Manuel Pereira de Loureiro, Algumas contribuições para a compreensão da natureza jurídica da Zona Económica Exclusiva: os pressupostos de enquadramento do problema, Lisboa, 1988. Biscoito, Manuel José, Ilhas Selvagens – História de uma Reserva, in Diário de Noticias do Funchal, 4 de Janeiro de 1993. Calatayud, Esperanza Orihuela, España y la delimitación de sus espacios marinos, Universidad de Murcia, 1989. Cândido, António Manuel de Carvalho Coelho, “A Convenção de Montego Bay e Portugal – Delimitação das Zonas Marítimas da Madeira”, in http://www.iesm.mdn.gov.pt/s/ Cisdi/boletim/Artigos/art_7.pdf Coelho, Paulo Domingos das Neves, O Traçado das Linhas de Base – O Caso Particular das Linhas de Fecho e de Base Retas Portuguesas, Lisboa, Abril de 2012. 130 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 131 COMISSÃO DE DIREITO MARÍTIMO INTERNACIONAL (C.D.M.I.), «Pareceres...», 3 vols, 1964, 1978, 1994, Marinha, Lisboa. Correia, António Augusto Peixoto, Anexo ao Relatório do Comandante do N.R.P. “Faial”, Base Naval do Alfeite, 23 de Fevereiro de 1951, não editado e não publicado, 1951. Gouveia, Jorge Bacelar/Quadros, Fausto/Otero, Paulo, Portugal e o Direito do Mar, edição do Instituto Diplomático do Ministério dos Negócios Estrangeiros, Lisboa, 2004. Graça, Pedro Quartin Graça, A importância das ilhas no quadro das políticas e do Direito do mar: o caso das Selvagens, Chiado Editora, 2014. Lynce de Faria, Duarte Manuel, “A Jurisdição e a Delimitação dos Espaços Marítimos em Portugal – Do Rio Minho às Ilhas Selvagens, na Golada do Guadiana e no Mar de Timor”, in Revista Jurídica, n.º 25, Abril 2002. Reis, Susana Margarida Gonçalves, As Ilhas Selvagens: as manobras espanholas, ameaças e oportunidades, Mestrado em Estratégia 2011-12, Instituto Superior de Ciências Sociais e Políticas, Junho de 2012 Ribeiro, Manuel Almeida, A Zona Económica Exclusiva, Lisboa, 1992. Sarmento, Artur, As Selvagens, Funchal, 1906. Vieira, Alberto, AS ILHAS-Navegação e Economia no Atlântico nos séculos XV e XVI, online, Funchal, CEHA, disponível em: http://www.madeiraedu.pt/Portals/31/ CEHA/avieira/ilhas.pdf 131 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 132 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 133 12. A NEW PACT FOR BRAZIL AND PORTUGAL Luís Alexandre Carta Winter Catholic University of Paraná. Consultant with the Project. From November 4th to 7th, 2014, we had the privilege to participate in Cascais, Portugal, in discussions about strategies for the South Atlantic Ocean and on the extension of the Portuguese Continental Shelf. This little essay has as its unique purpose to externalize a personal position about the first of those themes. Brazil has 23,102 km of border, including 7,367 km of ocean and 15,735m of land. The islands of Trindade and Martins Vaz, the eastern end of Brazil are located 1,167 km from the Brazilian coast and 2,400 miles from the African coast. The empty geographical space beyond our maritime frontier is significant. The increase of the continental plataform to 350 nautical miles is important, but it is just one of our many questions, since there are no threats nor disputes regarding Brazilian maritime geographical space. Portugal‘s idea to transform the South Atlantic into a mainly Lusophone space is meritorious, but it faces some economic, political and implementation challenges. The expenses and means of implementation are issues of an economic order. But the political issue, in my view, demands a broader analysis of the nature of the proposal. What does the Portuguese proposal represents in the present context? Is it an alliance proposal? And would this imply a change of the portuguese optics? To discuss the South Atlantic is mainly to discuss a South-South relationship. It may seem paradoxical to discuss it with Portugal, though, since Portugal is in Europe and therefore in the northern hemisphere. Portugal has joined Europe in the EU and in our view, happens to be European, and therefore part of the North. On the other hand, our relationship with Portugal was always precious, so much so that in our Constitution, in article 12, II, § 1, there is a unique treatment provided especially to the Portuguese: 133 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 134 Art. 12. Are Brazilians: II-naturalized: a) those, in accordance with the law, who acquired the Brazilian nationality, and originated from Portuguese-speaking countries only require residence for one year uninterrupted and moral probity; b) foreigners of any nationality, residing in the Federative Republic of Brazil for more than fifteen years uninterrupted, and without criminal conviction, since acquiring the Brazilian nationality. (Wording by constitutional amendment nº 3, review of 1994). §1 the Portuguese people with permanent residence in the country, if there is reciprocity in favour of Brazilians, will be assigned the rights inherent to the Brazilian, except in the cases provided for in this Constitution. (Wording by constitutional amendment nº 3, review of 1994. In 2000, Brazil and Portugal signed the Treaty of Friendship, Cooperation and Consultation which replaced several treaties previously signed between the two, such as the Agreement Between the United States of Brazil and Portugal for the abolition of visas in Diplomatic and Special Passports, celebrated in Lisbon, on Octuber 15th, 1951, by Exchange of notes; the Treaty of Friendship and Consultation between Brazil and Portugal, signed in Rio de Janeiro, on November 16th, 1953; the agreement on Visas in Ordinary Passports between Brazil and Portugal, concluded in Lisbon, by Exchange of notes, on August 9th, 1960; the Cultural Agreement between Brazil and Portugal, signed in Lisbon, on September 7th, 1966; the Additional Protocol to the agreement, signed on September 7th, 1966; and the Cultural Agreement, celebrated in Lisbon, on april 22th, 1971; the Convention on Equality of Rights and Duties between Brazilians and Portuguese people, signed in Brasília, on September 7th, 1971; the agreement, by Exchange of notes, between Brazil and Portugal, for the abolition of payment of the fee of residence by each country‘s nationals residing on the territory of the other, signed in Brasilia, on july 17th, 1979; the Framework Cooperation Agreement between the Government of the Federative Republic of Brazil and the Government of the Portuguese Republic, signed in Brasilia, on May, 7th, 1991; and the agreement between the Government of the Federative Republic of Brazil and the Government of the Portuguese Republic concerning the Exemption of visas concluded in Brasilia, on April, 15th, 1966. And this just in the last sixty-three years! That being said, there is a whole history of ties that bind the two countries. The Treaty of Friendship, of 2000, poses as its goal and purposes, among others, the strengthening of bonds between the two people, aiming to ensure the peace and progress in international relations, in the light of the objectives and principles enshrined in the United Nations Charter. Although stated in this Treaty, among its fundamentals, Brazilian and Portuguese`s participation in regional integration processes - such as the European 134 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 135 Union and MERCOSUL – seeking an approximation between Europe and Latin America for the intensification of its relations, the entry of Portugal into the EU changes this relation both under our, and the Portuguese, perspectives. Portugal has to follow European rules. It is useless to claim that Portugal can open doors for us in the EU: we don’t need Portugal for that! We have 204 million inhabitants. We are a large Country, a Continental Country. Europe, with the European Russian 3,960,000 km2 makes a total area of 10,180,000 km2. We, alone, are 8,519,000 km2. In other words, we are bigger than Europe, excluding Russia. But our history began when the Portuguese landed here. We have an umbilical relationship! Thus, we shall return to the initial question. It is possible to have a Lusophone relationship in the South Atlantic with a European Portugal? By way of comparison: England may be in the geographical area of Europe, but its relations with the US are, today, stronger than its relationship with the EU. In 2015, we will be celebrating the two hundred years of the United Kingdom of Portugal, Brazil and Algarve which made, for a brief time, the South Atlantic become a Lusitanian lake. Although we are independent now, that is the relationship we aim to have with Portugal: an alliance, more than mere cooperation. Then we can start to work more deeply with the idea of a Lusophone South Atlantic, even based in the Treaty of Friendship, looking forward to the consolidation of the Community of PortugueseSpeaking Countries (CPLP), in which Brazil and Portugal are integrated, making CPLP a key tool in the pursuit of shared interests such as the economic, social and cultural development based on the respect of fundamental rights and freedoms as set out in the Universal Declaration of Human Rights, and also relying on the principle of democratic organization of Society and the State, in pursuit of greater and wider social justice. 135 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 136 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 137 13. CAPE VERDE: REDEFINING STRATEGIC OPTIONS Fátima Monteiro University of Cape Verde. Doctoral degree (PhD) in RLL/Portuguese Studies, Harvard University. Certificate in Diplomacy/International Relations, INA, Oeiras, Portugal. On the eve of completing forty years as an independent country, Cape Verde is more than ever at a crossroads, especially when we consider the multiple challenges and strategic options it faces in economic, geopolitical and socio-cultural terms. In this article I will examine strategic options made so far, and those that may follow in the future, relying on proposals that have fuelled debates for the past several years both within academia and in the broader context of civil society under the impulse of Cape Verdean political authorities and non-governmental entities. Partnerships for the Development and Economy of Small Island States It is recognised that, since the period of one-party governance, Cape Verdean leaders have managed with reasonable success the resources they had, including those that were being provided by their international partners. However, the options and models adopted in this first decade and a half of the 21st century have not been able to solve problems that are so crucial to ensure the quality of life and social cohesion of the Cape Verdeans such as poverty reduction, employment and economic growth. After a cycle of sustained growth which ends around 20052006, Cape Verde is confronted today with challenges that, if not overcome with success, can make the country go back to levels close to those it occupied before its graduation as a middle-income country. The international assistance served, from the beginning, both to prevent the humanitarian catastrophe that prolonged drought would have caused in the absence of this mechanism, and to fund development programs in the start-up phase of the 137 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 138 sovereign State. But these external funding sources have been interrupted for the most part, and sooner or later they will have a purely residual nature. What are the options available in the economic field for Cape Verde, one should ask? João Estêvão says that when Cape Verde became independent in 1975, the country was living an economic model inherited from the 19th century, which included three fundamental elements: services, emigration and integration into the Portuguese imperial space (Estratégia, 2003). Any of these three elements was marked, according to Estêvão, by a prominent common trait – that of being directed to the supplying of labour, either to the Portuguese space, with the relocation to the colonies of Cape Verdean administrative cadres, or out of that space, through emigration. Still according to Estêvão, this economic scheme, that made Cape Verde strongly dependent on the emigrant remittances and on the transfers from the colonial central government to the colony, was reproduced after independence, with one difference: the transfers from the central government were replaced by the international assistance. It is known that during the first fifteen years after independence economic development was based on a socialist ideology, with strong centralisation and State intervention in economic activity. But in the late 1980s, with the affirmation of representative democracy in the world, catalysed by the fall of the Berlin Wall and the dissolution of the Soviet bloc, Cape Verde went through a major change in its economic and political systems. In the first free parliamentary election, held in 1991, the winner was the Movement for Democracy (MpD). The MpD governments undertook a series of measures aimed at changing the Cape Verdean economy into a market and private basis economy. These initiatives meant, briefly, to insert the Cape Verdean economy into the world economy, to create mechanisms that could favour the flourishing of the private sector, foreign direct investment, savings and capital accumulation, human development and the development of transport infrastructures, telecommunications, and environmental protection. The African Party for the Independence of Cape Verde (PAICV) would in turn win the 2001, 2006 and 2011 legislative elections, and is currently in the final stage of a governing mandate that ends in 2016. Based on the analysis of the government programs and economic policies implemented during the first mandate of the PAICV (2001-2006), one can conclude that there was some continuity regarding the MpD governance, especially when it came to the consolidation of the Cape Verdean economy as a market economy and its internationalisation. Among the most relevant measures adopted during this period are the greatest empowerment of the business class, the increase of foreign investment and exports, monetary indexation (PEG), and some degree of administrative decentralisation through e-governing. Thus, regardless of the parties in government, between the political and economic opening and the middle of the first decade of the 21st century there was, in general, a reasonable degree of success in accomplishing government programs adopted when we look at the indicators and statistics. However, when we confront 138 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 139 the ambitious program in view for the last two mandates of the PAICV (20062011, 2011-2016) for the economic sector (which includes the preservation of nature and environmental balance, the increase of employment and poverty reduction, competitiveness of services, expansion and greater competitiveness of tourism, infrastructure expansion, consolidation of the financial system, culture at the service of development, advanced training and qualification of human resources , strengthening of economic regulation), one can easily argue that what was proposed falls short of the results achieved, particularly when we take into account the volume of the investments made. These poor results can be attributed to various factors, the most decisive of which can be related, on the one hand, to a return to models practised in the period before the political opening – with the increasing State centralisation and intervention in the economic domain and the closure of the market to private initiative – and, on the other hand, to the fact that internationalisation strategies are not appropriate to the country profile of Cape Verde. Following Estêvão again, the options made in the economic field in more recent years have not taken into account the condition of Cape Verde as a small island country, overlooking in that way its real potential and vocation. Furthermore, concludes Estêvão, the economic policies adopted have left Cape Verde in a position of great vulnerability, because they are not directed towards a true “nationalisation” of the economy, which is more heavily dependent than ever on external factors. Geopolitical options: Between the Special Partnership with the EU and the ECOWAS The EU In a cyclic way, the issue of Cape Verde’s regional integration, especially with regard to its greater or lesser closeness to Europe or greater or lesser remoteness from Africa returns to the surface of the Cape Verdean society and to the agenda of governmental authorities, triggering debates that are more or less heated, and somehow contentious. In the first two decades after independence the desire of rapprochement to Europe materialised in particular through intensive bilateral cooperation with the “partners for development”, especially with those countries where large Cape Verdean communities were established – Portugal, the Netherlands and Luxembourg. As far as Cape Verde’s cooperation with the European Union is concerned, it took place broadly within the framework of the Lomé Convention, which Cape Verde joined soon after independence. From 2001, already within the framework of the Cotonou Agreement – which succeeds the Lomé Convention – Cape Verdean authorities began to explore the idea of cooperating with Europe in more ambitious terms, something which was at some point designated “enhanced cooperation”. This idea evolved into the project of a “special partnership” that was endorsed by the European Council of 19-20 November 2007. 139 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 140 There were, meanwhile, from 2001 to the end of 2007 some initiatives in support of the project that should be noted: in March 2005, Mário Soares and Adriano Moreira lead a petition signed by prominent figures of the Portuguese society, as the then Minister of Foreign Affairs Diogo Freitas do Amaral and many academics. The petition advocated the acceptance of Cape Verde into the EU, and immediate negotiations between Cape Verde and the EU for that purpose. The petition argued that Cape Verde “matters to Europe not only because of security and defence”, but also “for being the best expression of a cultural syntheses that the euro world experience produced”. The gains from that membership should be evident according to the petitioners to both parties, and this would translate above all into an increase of the consumer market, on the one hand, and a better use of Cape Verde’s geostrategic position, on the other. The petitioners knew, however, that Cape Verde did not meet at that time, as it does not meet still today, the necessary requirements to aspire to European membership, namely because its geographical location commits it to the African continent. Admitting that a step back in terms of sovereignty would be unacceptable for most Cape Verdeans (via referendum, something which the constitution does not provide for) in order to bind Cape Verde to a European State – in this case, Portugal – and be able to reach its inclusion in the community club, there were however, at the time the petition was presented, more realistic and achievable scenarios of mutual approach, including: a. Establishing a “Special Partnership” between Cape Verde and the EU (the option that was made and prevailed so far). b. Having Cape Verde as an Associated State. c. Including Cape Verde in the European Neighbourhood Policy. From a European standpoint, the integration of Cape Verde in the ENP would have been consistent with the European Security Strategy, whose purpose is to create around the EU external borders “zones of peace and security”. The Communication of the Commission of December 2004 is clear in this regard. It says: “With its historic enlargement […] the European Union has taken a big step forward in promoting security and prosperity on the European continent. EU enlargement also means that the external borders of the Union have changed. We have acquired new neighbours and have come closer to old ones. These circumstances have created both opportunities and challenges. The European Neighbourhood Policy is a response to this new situation. It will also support efforts to realise the objectives of the European Security Strategy […] The objective of the European Neighbourhood Policy is to share the benefits of the EU’s 2004 enlargement with neighbouring countries in strengthening stability, security and well-being for all concerned. It is designed to prevent the emergence of new dividing lines between the enlarged EU and its neighbours and to offer them the chance to participate in various EU activities, through greater political, security, economic and cultural co-operation”. 140 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 141 It should the underlined at this point that by the time the Special Partnership was agreed, Cape Verde had become, along with other West African countries, especially its Portuguese-speaking closest neighbour Guinea-Bissau, a favourite locus of illicit activities linked to transnational organised crime, notably drug trafficking, trafficking in human beings and arms trafficking. Despite its high degree of “functionality” as a national State, when compared to its neighbours in the African continent, Cape Verde remains a country marked by enormous vulnerabilities. These can be more easily overcome, and eventually converted into strengths, if the Cape Verdean authorities know how to take full advantage of the special partnership with the EU. Some of these strengths would be in serving as a political and economic interlocutor between the EU and West Africa, while enhancing its geostrategic capabilities in the combat of illicit trafficking and affirming itself as a hub of services in mid-Atlantic. This is precisely what is emphasized in the Communication of the Special Partnership: “Cape Verde has a natural vocation to serve as a bridge between the African, European and American continents, what constitutes the key element around which Europe and Cape Verde share common interests and challenges. […] It shares with the EU several strategic priorities, particularly with regard to certain security-related issues, such as the fight against illegal trafficking (drugs, illegal immigration, etc.). […] Thanks to its geographical position, the country can make a substantial contribution to the fight against illegal trafficking and its opening in terms of security constitutes one of its main strengths in the process of rapprochement to the EU [...]”. By the middle of the first decade of the 21st century Cape Verde had become part of the list of the countries most vulnerable to transnational organized crime. This was not only a consequence of the wave of undocumented migrants coming via sea from West Africa towards Europe using Cape Verde as a pathway, but also a consequence of the use of its vast EEZ as a pathway for drug trafficking. The fact is thoroughly documented by the Cape Verdean press. An article published by the online newspaper A Semana states, in 2007: “A report of the International Narcotics Control Board (INCB) released in late February pointed Cape Verde, Benin, Ghana, Guinea-Bissau, Nigeria and Togo as the main West African countries that act as hubs for the transport of cocaine to Europe. According to the INCB, a United Nations structure, Cape Verde and Guinea-Bissau are used as transit and storage zone of cocaine from South America destined for Europe.” Concerning arms trade, another article in the paper reports around the same period: “The arms trade in Cape Verde has not only been growing lately as it has been causing several victims in society. The evidence of this is the more than 60 weapons of various calibres seized in the last 12 months, just by the squadrons of Achada de Santo António and Palmarejo. […] The weapons are mostly from the United States of America. They enter the country by sea and in barrels (drums) disguised with other objects [...], says [the] commander of Achada de Santo 141 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 142 António police station. (…) If there was a work of intense surveillance to vessels circulating along the coast and a more rigorous inspection by the Customs, the weapons wouldn’t be so available, as they are in Praia. This official confirms that there are crime repression actions, but they are not enough, because it is also necessary to act on prevention. The director of Praia’s Customs (...) acknowledges weaknesses in the verification work done by customs, but he discards the possibility that weapons pass under the “nose” of that institution. (…)The easiest way to introduce weapons is through yachts and fishing boats because “there is no effective control of the coast” [he says] (...), [explaining] that only 20% of the loads are checked: “At the moment we do not have adequate means for effective verification. We make a random choice of the goods”. Finally, concerning illegal migration, the newspaper reveals a situation that is similar to what has been happening today in the Mediterranean Sea, with the only difference lying in the number of people involved. “A boat with about 40 stowaways docks today, 7, at the pier of Praia. […] the stowaways, from West Africa, had been for several days adrift at sea. As in previous occasions, it is very likely that the group had been trying to reach the Canary Islands, after its members had been recruited in various parts of the continent. The last case of its kind took place in November last year, when a pirogue with 130 immigrants was located in Porto Novo, Santo Antão Island. Last February, Cape Verde accepted, for allegedly humanitarian reasons, to receive a group of 37 individuals repatriated by Spain, sending them back to their respective countries — Senegal, Guinea-Bissau, Guinea-Conakry, etc. The patrolling of Cape Verde waters by ships of Portugal, France, Spain and the United States contributed to the decrease in the flow of illegal immigrants that had been being delineated towards this archipelago”, states the article. (07.06.07) ECOWAS The ECOWAS Treaty was signed in Lagos, Nigeria, in 1975, with the aim of promoting the economic integration of the West African region. In 1993, as referred by Manuel Amante da Rose, it was revised since neither the 1975 Treaty nor the Additional Protocols that changed it provided effective economic integration and political cooperation among its signatories. As Manuel Amante da Rosa also refers, the new 1993 Treaty failed to include, as did the first Treaty, mechanisms that could help to prevent or provide timely response to conflicts in the region, and particularly to the cyclic scourge of armed civil conflicts. Despite the demonstrations of goodwill regularly advanced by the West Africans leaders, ECOWAS had become by the end of the past century, in the words of Amante da Rosa “an unarticulated organisation – financially and politically – which was unable to meet the requests of the detailed integration program it had formatted for itself.” When Cape Verde adhered to the Treaty, argues still Amante da Rosa, expectations placed in the African development sub based on sub regional 142 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 143 integration were high, and the prospects of development for Cape Verde were bleak. The historical and political context in which it had become independent, with the participation of Cape Verdeans in the armed struggle led by the PAIGC, justified in itself, moreover, an integration based on political assumptions. It is inevitable to attest, however, four decades after independence, that the benefits of membership in ECOWAS for Cape Verde are not clear and visible. Nigeria holds about 60 percent of ECOWAS population and more than half of the regional GDP, asserting itself consequently as the sub regional power. Little margin for intervention will be reserved for smaller countries such as Cape Verde, despite its relative success. Due to its small economic, population, linguistic, ethnic, religious dimension and the physical separation from the mainland, Cape Verde will always be, argues Amante da Rosa finally, on the outskirts of ECOWAS, unless it is allowed a “special” role in that context. That “special” role is no doubt implicit in the Special Partnership. The question is whether the remaining ECOWAS States are receptive to a differentiated role for Cape Verde, and whether Cape Verde is prepared to play it to the fullest of its potencial. Final Notes If on one hand the challenges that Cape Verde faces when it is almost completing its fortieth anniversary as independent country are of considerable magnitude, on the other hand there is the awareness that the country has developed economically and culturally, and matured politically. It can be argues that its critical mass and sense of citizenship have reached a higher stage when compared with the early days of independence. These interconnected factors, are can be seen as the result of a continued investment in human development. The recent demonstrations across the islands against the approval of the Statute of the Holders of Political Office, which predicted a salary increase of about 65% and led to the presidential veto, should attest, if nothing else, that the Cape Verdean civil society sees itself as an part of the solutions and the strategic options that the country will eventually adopt in the near future. REFERENCES Adebajo, Adekeye (et al), West Africa Security Challenges: Building Peace in a Troubled Region, Lynne Reinner, London, 2004. Amante, Manuel, Breves Considerações sobre a Problemática da Imigração em Cabo Verde: Subsídios para Inclusão no Task Force Interministerial sobre Segurança e Defesa, MNEC, Praia, 2006. Cabo Verde: Plano Estratégico de Redução da Pobreza- Relatório de Seguimento, FMI n.º 10/367, 2010 Fundo Monetário Internacional Dezembro de 2010. 143 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 144 Estêvão, João, O Desenvolvimento de Cabo Verde e o Modelo de Integração Económica Internacional, in Estratégia, n.º 20, IEEI, Lisboa, 2003. Monteiro, Fátima, Cabo Verde na Encruzilhada Atlântica, in Estratégia, n.º 20, IEEI, Lisboa, 2003. Trafique de Cocaine en Afrique (Le), Report, NU Office contre la drogue et le crime, NY, Juin, 2007. 144 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 145 14. THE GULF OF GUINEA MARITIME CHALLENGES Miguel Bessa Pacheco Portuguese Navy Commander. Member of the Portuguese Navy Research Center (CINAV) Introduction There is no economic development without safety and security, and there is no security without sovereignty. This known axiom applies to both land and sea. Africa has always been seen as a promising continent. It is the second largest in size, with 20% of the earth’s landmass, as well as in population, with about 1 billion people, representing 15% of the world’s population. Its resources are valuable for both local and third countries’ economic development, but their sustainable exploitation is still a challenge, especially in the maritime domain due to, among other reasons, the shortfall or lack of sovereignty and law enforcement instruments. The Gulf of Guinea (GoG) area holds some of the most relevant maritime natural resources in the Atlantic and faces multiple challenges in order to make better profit from them; therefore, it is the focus of this paper. The Gulf of Guinea The GoG comprises a geographic area just south of the Saharan desert that includes the Atlantic African countries, their maritime domains and adjacent high seas from Cape Verde, in the north, to Angola, in the south. The littoral and archipelagic countries of the GoG include Cape Verde, Senegal, Gambia, Guinea-Bissau, Guinea, Sierra Leone, Liberia, Ivory Coast, Ghana, Togo, Benin, Nigeria, Cameroons, Equatorial Guinea, S. Tomé & Príncipe, Gabon, Republic of the Congo, Democratic Republic of Congo and Angola. Altogether these countries have about 287 million people that represent about one third of the whole continent. In Figure 1 there is a map that shows the political limits of the littoral GoG countries, their Economic Exclusive Zone (EEZ) and the population density in Africa. 145 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 146 Figure 1 - The Gulf of Guinea countries, EEZ and population density The EEZ of the GoG litoral countries totals 3.3 million square km, first ranking Cape Verde, Angola and Equatorial Guinea. The territorial seas add about 208 thousand square km and the continental shelf claims, so far presented to the United Nations, represent an area of about 1.1 million square km. The near shore waters of the GoG hold some of the world’s largest offshore oil and gas fields, especially off Nigeria and Angola (Figure 2). Figure 2 – Maritime boundaries and oil and gas offshore fields in the GoG International, regional and local criminal activities are intrinsically related with the incapacity of states to make and/or enforce their laws. This was clear when the Somalia government collapsed and maritime piracy went through the roof. The “fragile states index” is published annually and it ranks the world countries regarding their collapse probability (Fund for Peace, 2014). This index takes into 146 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 147 account, among other indicators, the demographic pressure, group grievance, uneven development, poverty and economic decline, human rights and security apparatus. The political reality in the GoG is generally evaluated as fragile due to regime challenges or instability, generalized poverty and high levels of criminality. In the GoG countries there are five that figure within the 20 most fragile states in the world. Democratic Republic of Congo is the 4th most fragile, being included in a set of countries in very high alert. Guinea, Ivory Coast and Guinea-Bissau are in the high alert list and Nigeria, in the 17th place, is in the “simple” alert list. Among the GoG countries, Angola is the one with the most uneven development, followed by Equatorial Guinea and Nigeria. Guinea, Guinea-Bissau and Sierra Leone are the ones with most poverty. Democratic Republic of Congo, Equatorial Guinea and Nigeria are the worst evaluated considering human rights. Major GoG international stakeholders, such as the United States, the European Union, France, and the United Kingdom have a particular interest in the GoG due to its mineral (oil and gas) and live natural resources (fish). The exploitation of these resources implies the use of the sea, both as a source, as well as means of transportation. Figure 3 shows the major maritime routes off West Africa. The GoG maritime routes with Europe and the USA are of great value for there are no chokepoints between their coasts, and sailing distances are shorter than the ones to the Middle East great oil producing countries. These factors are major in transportation costs and security attractiveness. Figure 3 – Shipping traffic density (2004-2005)93 In 2013 Africa produced 10.1% of world’s oil94 and 6.0% of gas95 (British Petroleum, 2014). Africa’s proven reserves of oil and gas represent 7.7% and 7.6% respectively, of the world’s, most of them located in the GoG area. These figures and the fact that there are no major international conflicts between GoG countries have Adapted from Halpern, B., Walbridge, S. et al (2008). Nigeria was responsible for 2.7% and Angola for 2.1%. 95 Nigeria was responsible for 1.1%. 93 94 147 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 148 led several analysts to flag a growing strategic role of the GoG in the energy market. Also, the grade of GoG oil is very good. Crude oil is evaluated according to its sweetness (sulphur content) and weight (API gravity degree). The best money value from crude oil distillation is achieved from sweet and light oil. GoG oil is sweet and light. For oil and gas production, in 2009 there were 801 fixed platforms off the GoG countries96 (Saldanha Bay IDZ, 2012, p. 15), and it is expected that this number is higher today. Pipelines and floating units are used to store and transport crude and gas from the platforms to terminals and to shore. In 2014, 37 of the world’s 151 oil floating production storage and offloading units were operating in the GoG97, 98. To dig new wells, the offshore oil and gas industries use rigs. In 2014, the GoG rig fleet was about 99 vessels and platforms, which had a utilization rate of 65%. Altogether it is a very significant and expensive infrastructure. From 2002 until 2014, the growth of oil and gas production in the GoG combined with the evolution of oil prices ($18/barrel in 2002 and always increasing up to $111/barrel in 2011) have generated very interesting revenues, especially from 2011 until mid 2014. Gulf of Guinea maritime challenges Despite its richness in natural resources, the GoG area is experiencing maritime safety and security problems that might affect future investments in the oil and gas industries. Security in the GoG is a major problem due to ship robbery, kidnapping, hostage taking and oil theft. When these activities occur in the territorial sea, or interior waters of a country, the laws of the coastal countries and their navy, coast guard and/or police authorities constitute the fighting elements framework. When assaults on ships occur outside the territorial sea they are classified as maritime piracy acts, and can be prevented by any naval ship from any country. Illegal activities in the GoG that are maritime related also include money laundering, illegal arms and drugs trafficking, oil bunkering, oil theft, human trafficking and smuggling, dumping of toxic waste and destruction of oil infrastructures. The scale and type of maritime criminality is strongly related and connected to the scale of the inland criminality. It is not possible to dissociate them, and in the coastal zones, one feeds the other. The number of piracy and armed robbery attacks in the GoG, from 2012 until October 2014, reached a total of 138 (Figure 4), in many of which hostages were taken. About 45% of them (62) occurred in the Nigerian EEZ, territorial sea or interior waters. In 2013, costs to stakeholders of GoG piracy and armed robbery assaults were estimated at between $565 million and $681 million (Oceans Beyond Piracy, 2013, p. 55). These numbers still differ significantly from the 2013 Somali piracy economic costs that were estimated between $3.000 million and $3.200 million (ibidem, p. 7). 96 Nigeria (310), Angola (169), Gaban (101), Congo (84), Camaroons (66), DR Congo (42), Eq. Guinea (16), Ivory Coast (11) and Ghana (2). 97 Nigeria (13), Angola (13), Ghana (1), Ivory Coast (2), Equatorial Guinea (4), Gabon (2) and Congo (2). 98 Offshore Magazine - 2014 Worldwide Survey of Floating Production, Storage and Offloading (FPSO) Units, available from < http://tinyurl.com/nkx5vsr >, [January 2015]. 148 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 149 Although maritime piracy and assaults to ships have occurred in both sides of Africa, the regional circumstances and modus operandi are quite different. Somalia still is a failed state, meaning that it still lacks maritime law enforcement capability, especially in its territorial sea. With this reality, the official Somalia government authorizes international forces to pursue and attack pirates and criminals within its territorial sea and even ashore. Despite some specific internal problems and their limited capabilities, GoG countries do have control over their own police and armed forces institutions. Up until the present, no GoG country has seemed willing to allow international forces to fight criminals inside their territorial seas. For the same reason, shipping is not allowed to have private armed security personnel onboard inside territorial waters. Looking at the geography, maritime routes in the Indian Ocean towards Europe point toward a gulf with a chokepoint (Bal-el-Mandeb), through which ships are always sailing and no real alternative routes exist to this line of communication. The GoG is an area of open waters in the Atlantic, and attacks to ships are mainly made inside or near the countries’ territorial sea, when they are anchored or slow moving. In Somalia, the attacked ships and their entire crews are taken for ransom and can be held hostage for very long periods of time, sometimes years. In the GoG, criminals select high value crew members (i.e. the captain and the head of engineering) and take them to land for ransom. Ships are not held for more than a few days, just enough time to transfer the oil into another ship involved in the black market or to a storage site ashore. Attackers in the GoG tend to be more violent than in the Indian Ocean. They also are very well armed and have some capability to directly fight law enforcement authorities.99 Figure 4 - Piracy attacks and armed assaults to ships in the GoG (2012 until October 2014)100 Some attacks have been made by criminals armed with AK-47 (Kalashnikov) assault rifles, machine-guns and rocket launchers. 100 Piracy and armed robbery data compiled from the International Maritime Organization monthly reports. Available from <http://tinyurl.com/jwbfj6w>, [January 2015]. 99 149 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 150 Several sources estimate that illegal oil bunkering and oil theft in Nigeria alone might reach 5% to 10% of the country’s production. That represents a daily theft of 100,000 to 200,000 barrels of oil. There are two major schemes in place for oil stealing: assault oil tankers, preferably anchored offshore, and break into the oil pipeline system. Stolen oil is either sold on the black market and then somehow transferred to the “clean” oil market, or locally distilled and sold in the domestic one. The large amounts of oil that are at stake, and the continuum of theft is a symptom of generalized corruption among law enforcement authorities and politicians. In the last decade, several high ranked officials have been detained in Nigeria over oil theft related crimes. To fight oil theft, the government of Nigeria, through its navy, has launched a “No crude oil theft campaign” claiming that stolen oil represented an annual loss of about 20 billion dollars.101 This is a very high loss since the annual revenues from the oil industry totaled about 50 billion dollars in 2011. The “no crude oil theft campaign” seems to be a real effort to get security into Nigerian waters because the instruments and actions related to it are diverse and have already shown some results. The shipping industry is not completely innocent in the GoG criminality schemes. Some crews also participate in irregular activities selling some oil, unaccounted for, for private benefit, or transferring stolen oil from the black to the clean oil market. For this reason, some attacks are not reported to authorities, and the official maritime related crime numbers are considered conservative. One of the major concerns related to oil theft is that at some point the terrorist group Boko Haram, that dominates the north of Nigeria, could be able to get control of some parcels in the south and finance its activities with oil. This would lead to a different scale of insecurity in the region and the establishment of links with other terrorist organizations. Some authors say that, in the GoG countries, only political and economic national leaders have been benefiting from the oil and gas industries (Fidelis Allen, 2012), implying that the revenues have not been applied to the common social, economic and environmental policies. According to the Resource Governance Index102, Nigeria (40th), Angola (41st) and the Democratic Republic of Congo (44th) have “weak” natural resources revenues governance scores while Cameroons (47th) and Equatorial Guinea (56th) are considered to be “failing” in their revenues governance. Only Ghana (15th) and Liberia (16th) have a classification of “partially satisfactory”. No GoG country is classified in the “satisfactory” rank of natural resources revenues governance. In the case of Nigeria, in recent years, oil and gas revenues have represented about 70% of the country’s annual budget. In Angola the percentage is also very Fact sheet available from <http://tinyurl.com/po7s8ax>, [january 2015]. The Resource Governance Index is a publication that, based on fifty indicators, measures the quality of governance in the oil, gas and mining sector from 58 countries (Revenue Watch Institute, 2013). 101 102 150 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 151 high. This means that the variation of oil and gas prices dictates significant changes in both country’s economies. At a time when oil price is as low as $48/barrel (January 2015), some GoG countries are starting to struggle with major economic difficulties. Overspending in times of oil high prices, and not diversifying these economies, threatens local political stability, country development and population well-being that further increases the fragility of these states. Second to hydrocarbons (oil and gas), fish is the most valuable maritime natural resource in the GoG. Illegal, unreported, unregulated fishing (IUU) and overfishing represent a security problem that directly affects the GoG countries’ economies, population well-being and sustainable management of natural resources. The West Africa IUU fishing is estimated to be about 37% of all catches, representing a loss to local economies of $828 million to $1600 million per year (Environmental Justice Foundation, 2012, p. 7). Most illegal fishing is done by trawlers that keep destroying sea bottom ecosystems, and purse seines for tuna fishing. A tuna fishing vessel, in a two week campaign, can make up to 2 million dollars of catch103. Maritime safety is also a problem in the GoG area, especially concerning maritime pollution and safety of navigation. Oil spills due to industry operations104 and to robbery disputes (mainly over pipelines) are very frequent. In recent years the Niger Delta had an average of an oil spill per day. These incidents have destroyed very important ecosystems that supported local fishing populations, making them poorer than before the oil industry settlement! This is why the majority of the population claims that the oil industry is a curse. Maritime accidents, especially groundings, due to poor hydrographic information and the lack of aids to navigation are also a problem, together with the fact that the search and rescue services are very limited, or non-existent in some GoG countries. Strategies for the Gulf of Guinea Several national, regional and international strategies have been designed to address the GoG maritime problems. The maritime security and safety problems diagnosis are very well known, and lines of action have been identified and agreed upon. The most holistic strategy was discussed and presented by the African Union in 2012 (African Union, 2012) for it addressed both safety and security challenges, covered the entire area of interest, and was agreed to by all local Governments. In 2013 a major regional political effort was made to formally set up a strategy for the maritime safety and security for the GoG. In the Yaoundé summit, countries belonging to the Economic Community of Central African States (ECCAS), to the Economic Community of Western African States (ECOWAS) and to the Gulf of In <http://www.mtisc-gog.org/msg/regional-threats-to-mariners/>, [January, 2015]. Due to the fact that big tankers cannot enter GoG ports, a ferry system exists for transferring oil from shore to ship. This operation is not spill risk free and represents an opportunity for criminals to attack when ships are transferring fuel between them, since they are dead in the water. 103 104 151 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 152 Guinea Commission (GGC) signed a declaration between the heads of state and governments on maritime safety and security in their common maritime domain (Figura 5). Also signed were: a memorandum of understanding on the maritime safety and security in central and West Africa and a code of conduct concerning the repression of piracy, armed robbery against ships, and illicit maritime activity in West and Central Africa. The main lines of action established by the GoG countries to stop maritime criminality concerned: sharing and reporting relevant information; interdicting ships and/or aircraft suspected of engaging in transnational organized crime in the maritime domain, maritime terrorism, IUU fishing and other illegal activities at sea; ensuring that persons committing, or attempting to commit, transnational organized crime in the maritime domain, or maritime terrorism, IUU fishing and other illegal activities at sea, are apprehended and prosecuted; and providing for the proper care, treatment, and repatriation of seafarers, fishermen, other shipboard personnel and passengers subjected to transnational organized crime in the maritime domain, maritime terrorism, IUU fishing, and other illegal activities at sea, particularly those who have been subjected to violence. Figure 5 – Member Countries of the ECCAS, ECOWAS and GGC Due to the rising dispute between Russia, NATO and the European Union (EU), the strategic value of the GoG is higher to the E.U., because it needs to be much less dependent on Russian energy resources, and one way out is shifting its energy imports to other suppliers, such as the GoG. Considering the 2013 African political agreements, the EU designed a strategy to support the regional agreements (Council of the European Union, 2014). This strategy states that the EU and its Member States, working in coordination with local and international partners, adopt a comprehensive approach to help GoG countries to deal with the area maritime security problems focusing on four specific objectives: building a common 152 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 153 understanding of the scale of the threat in the Gulf of Guinea and the need to address it among the countries in the region and the international community; helping governments of the region build robust institutions, maritime administrations and multiagency capabilities to ensure maritime awareness, security and the rule of law along the coast; supporting prosperous economies in this region in line with national and regional development strategies, to create employment and assist vulnerable communities to build resilience and resist criminal or violent activities; and strengthening cooperation structures between the countries of the region and the regional organizations to take the necessary actions to mitigate the threats at sea and on land. Other stakeholders, such as the USA, France and the UK have taken measures to defend their interests in the GoG area. These include navy ship port visits to GoG countries, logistic and naval support to local navies, help with local capacity building of maritime security instruments and patrol of the area high seas. Conclusions For the EU and the USA the GoG is a growing strategic area in the Atlantic due to its increasing richness in maritime natural resources, especially hydrocarbons. Looking at the geopolitical problems that surfaced from the 2014 Ukraine crises, it is essential for the EU to shift some of its energy imports from Russia to other suppliers. On the other side of the Atlantic, due to the increase of domestic shale oil and gas production, the USA is reducing its oil import needs. Still, it has strategic interests in the GoG for this area does not have regional problems such as the ones in the Middle East, there are some American oil companies operating in the GoG and it is fundamental that today’s criminality is downsized or eliminated before terrorist groups take control over the oil and gas business to finance their activities. That would create a very dangerous dynamic between GoG oil and terrorist groups, opening a new front in the USA fight against terrorism. Since the GoG is producing about 5% of world oil, it is also important that this source of energy is not disrupted, so that prices don’t rise. The main maritime challenges in the GoG can be grouped into two major classes: security and safety. The security problems are not exclusively related to the maritime area. They have several links to inland social, economic and criminality dynamics. Actually, problems around the oil industry started on land, and just after offshore exploration started they expanded to the sea. Major security problems are maritime piracy and armed robbery, including kidnapping of crew elements and oil theft; illegal arms and drug trafficking; human trafficking and smuggling; dumping of toxic waste at sea; and illegal, unreported and unregulated fishing and overfishing. Major safety problems are related to very frequent oil spills, ship accidents and groundings due to lack of, or limited, aids to the navigation and poor hydrographic coverage of coastal waters. The growing dimension of the GoG maritime problems has induced a new and more profitable collaboration between local countries and international stake153 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 154 holders. Several strategies have been designed and lines of action are being implemented, but results are still not satisfying. All strategies point to maritime situation awareness and intervention measures, but these will just fight the symptoms of the problem, not its causes. It is also necessary to change domestic policies, oil revenues governance and corruption, as well as to fight inland criminality that feeds on, and is fed by, maritime criminality. The events concentration analysis and the location of major oil and gas fields indicates that Nigeria is the ground zero for the problems and the focus for the solutions. Start there and then move to the other countries. Now another challenge has just come up, and seems it will last for a couple years. The oil price has fallen down to a level where most offshore field production generates low profit, or are not even viable. This reality might have an impact on the GoG maritime security, but it surely will affect the oil revenue governance and countries’ gross national product. The already difficult way of life in the GoG will get much worse. Let’s keep in mind that the oil price may change, but human life ransoms do not. BIBLIOGRAPHY AND REFERENCES AFRICAN UNION. 2050 Africa’s Integrated Maritime Strategy. [S.l.]. 2012. ALLEN, Fidelis, «Oil and Security in the Gulf of Guinea: Reflections on the External and Domestic Linkages», Journal of Sustainable Development, vol. 5, n.º 4, April 2012. BRITISH PETROLEUM. BP Statistical review of world energy. [S.l.]. 2014. Code of conduct concerning the repression of piracy, armed robbery against ships, and illicit maritime activity in west and central Africa. Yaoundé. 2013. COUNCIL OF THE EUROPEAN UNION. EU Strategy on the Gulf of Guinea. Brussels. 2014. Declaration of the Heads of State and Government of Central and West African States on Maritime Safety and Security in their Common Maritime Domain. Yaoundé. 2013. ENVIRONMENTAL JUSTICE FOUNDATION, Pirate Fishing Exposed. The fight against illegal fishing in West Africa and the EU, London, [s.n.], 2012. FUND FOR PEACE, Fragile States Index 2014, Washington, [s.n.], 2014. G. HUREAU, S. Serbutoviez, C. Silva, G. Maisonnier. Investment in exploration-production and refining. IFP Énergies nouvelles. [S.l.]. 2013. HALPERN, Benjamin; WALBRIDGE, S.; et al, «A Global Map of Human Impact on Marine Ecosystems», Science, vol. 319, n.º 5865, february 2008, pp. 948-952. KATSOURIS, Christina; SAYNE, A., Nigeria’s Criminal Crude:International Options to Combat the Export of Stolen Oil, London, Chatham House, 2013. KEN-WORGU, Kenneth. Petroleum service projects in the gulf of guinea. Texas A&M University. Texas. 2011. Memorandum of understanding among ECCAS, ECOWAS and CGC on Maritime Security in Central and West Africa. Yaoundé. 2013. 154 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 155 OCEANS BEYON PIRACY, The state of maritime piracy 2013, [S.l.], Oceans Beyond Piracy, 2014. REVENUE WATCH INSTITUTE, The 2013 Resource Governance Index. A Measure of Transparency and Accountability in the Oil, Gas and Mining Sector, [S.l.], [s.n.], 2013. SALDANHA BAY IDZ. Environmental Impact Assessment For The Proposed Oil & Gas Off-Shore Supply Base And Marine Repair Complex At The Saldanha Bay Idz Annexure 1. [S.l.], p. 38. 2012. UKEJE, Charles; ELA, W. M., African Approaches to Maritime Security - the Gulf of Guinea, Abuja, Friedrich-Ebert-Stiftung, 2013. 155 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 156 156 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 157 15. THE MARITIME SECURITY IN THE GULF OF GUINEA: THE ENERGY SECURITY OF EUROPE AND THE POTENTIAL ROLE OF PORTUGAL* José Francisco Lynce Zagallo Pavia Lusíada Universitys of Lisbon and Porto. Director of Lusíada Research Centre of International Politics and Security. Abstract The Gulf of Guinea has become the new strategic hotspot for two main reasons: the first is its increased importance of its oil and natural gas production and exports; the second is the growing menace of piracy and other threats replacing the Gulf of Aden as one of the dangerous ocean waters in the world. We will try to demonstrate that there is a potential linkage between that area and the energy security of Europe, due to the increasing importance of the Gulf of Guinea as a potential supplier of oil and gas, which are increasingly exposed to disruption. Should the International Community launch a new maritime operation in this African sub-region? And could this endeavour contribute to the energy security of the European States? And what could be the role of Portugal? This paper will argue that according to the International Law, the UN Security Council Resolutions, the interests of the International Community and the energy security of its members, the concerned States should engage in such an endeavour. * This is a modified and updated version of the Research Paper, in co-authorship with Dr. Brooke Smith-Windsor: “From the Gulf of Aden to the Gulf of Guinea: A New Maritime Mission for NATO?”, Research Division – NATO Defense College – N.º 100 – January 2014. 157 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 158 1 - The Gulf of Guinea: the New Hotspot For geopolitical and geoeconomic purposes this paper will consider the Gulf of Guinea as an area that stretches from the shores of Dakar, in Senegal, to the coastline of Angola, roughly the area under MOWCA (Maritime Organization of West and Central Africa) supervision. This organization aims to reinforce cooperation among member States in the face of mounting piracy attacks, armed robbery, drug trafficking, illegal exploitation of resources and terrorism, but it has no binding authority and it lacks funding to be effective.105 The other three regional organizations in the area are: the ECOWAS (Economic Community of West African States), the ECCAS (Economic Community of Central African States) and the GGC (Gulf of Guinea Commission). This is an area very rich in natural resources like oil, natural gas, iron ore, gold, diamonds, cobalt, copper, columbinetantalite, uranium, chrome, tin, manganese, nickel, platinum, lead, coal, bauxite, cocoa, forestry and also fisheries products. Three of the top oil and natural gas producers, in sub-Saharan Africa, are in the region, namely, Nigeria, Angola and Equatorial Guinea; this oil-rich region presents several advantages: 1 – It produces mostly “Light Sweet Crude Oil” which is easier and cheaper to refine than Middle Eastern Oil. 2 – The region’s light, sweet grade crude articulates closely with U.S. environmental considerations and the design of U.S. refineries.106 3 – Most of the production is located offshore which decreases transport and minimize the risks of disturbance and attacks.107 4 – Proximity to two of the world’s main consumers of energy, North America and Western Europe, reduces the costs of transportation. 5 – “The Gulf of Guinea benefits from the absence of maritime transit chokepoints between the region and those parts of the world. Major portions of world crude oil pass through relatively narrow shipping maritime lanes known as chokepoints. All these channels are passages for important flows of oil carried on oil tankers. However, the narrowness of the chokepoints makes them susceptible to blockades, pirate attacks and shipping accidents. The Gulf of Guinea is almost free of these risks”.108 105 Michael L. Baker, Toward an African maritime Economy: Empowering the African Union to Revolutionize the African Maritime Sector, Naval War College Review, Spring 2011, Vol.64, N.º 2, http://www.usnwc.edu/getattachment/b49b0b07-c0a4-41e1-964d-dc37cf03e0b0/Toward-an-AfricanMaritime-Economy—Empowering-the (Accessed 01 Sep 2013). 106 David L. Goldwyn and J. Stephen Morrison, A Strategic U.S. Approach to Governance and Security in the Gulf of Guinea, Washington D.C, Center for Strategic and International Studies, 2005. P. 5. 107 Stephanie Hanson, Vying for West Africa s Oil, Council on Foreign Relations, 2007, http://www.cfr.org/angola/vying-west-africas-oil/p13281 (Accessed 25 Jun 2013). 108 “The world maritime lanes for oil transportation include the Strait of Hormuz leading out of the Persian Gulf through the Gulf of Oman and the Arabian Sea; the Strait of Malacca linking the oil supplies from the Middle East with the Asian major consuming markets by connecting the Indian Ocean to the South China Sea and the Pacific Ocean; the Bab el-Mandab connecting the Red Sea to the Gulf of Aden and the Arabian Sea; the Panama Canal linking the Pacific Ocean to the Atlantic 158 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 159 Although, those risks are mounting, namely because of piracy, the geopolitical risks are lower as compared, for example, with those of the Strait of Hormuz or the Suez Canal. To demonstrate the importance of this region it is expected that this year, in 2015, the United States will import a quarter (25%) of its oil needs from this area109, as a strategy to became less dependent from the volatile region of the Middle East and diversify its suppliers. Portugal, to give another example, imports 20% of its oil from Nigeria and 40% of its natural gas110. The Gulf of Guinea currently accounts for 13% of oil and 6% of gas imports to the EU (European Union).111 This figure could rise – namely in natural gas – in a strategy to diversify the natural gas imported from Russia. As we will demonstrate below, in spite of the threats that we also face in this sub-region, the importance of Africa as a viable supplier of natural gas to Europe is mounting and the geopolitical advantages are enormous. Nevertheless, we should not forget that there are several threats that can jeopardize all these opportunities, advantages and optimistic projections, and those are piracy attacks, drug trafficking, illegal flows of migrants and terrorism. All of these challenges stem from the poor ability of the States in the region to control their coastal areas and exercise sovereignty over their territories, namely the maritime territory and the EEZ (Exclusive Economic Zone). Moreover it is precisely because of those weaknesses that this situation arises; the “Fragile States” - the ones who are unable to fulfill their goals of providing Security, Justice and WellBeing to their populations - are easily used as safe havens for pirates, drug traffickers and terrorist networks. Unfortunately, this has already happened in most countries in the area. In recent years several organizations, like the IMB (International Maritime Bureau), have reported a substantial increase in the number of piracy attacks in Ocean through the Caribbean Sea; the Suez Canal passage from the Red Sea and Gulf of Suez to the Mediterranean Sea; and the Turkish Straits or Bosporus linking the oil supplies from the Caspian Sea to the Mediterranean Sea markets through the Black Sea”. Damian Ondo Mañe, The Emergence of the Gulf of Guinea in the Global Economy, IMF Working Paper, December 2005, http://www.imf.org/external/pubs/ft/wp/2005/wp05235.pdf (Accessed 03 Apr 2013). 109 James M. Bridger, Act Now to Forestall West African Piracy, Atlantic-Community.Org, 07 Nov 2011, http://www.atlantic-community.org/index/Open_Think_Tank_Article/Act_Now_to_ Forestall_West_African_Piracy (Accessed 03 Feb 2013). 110 Catarina Mendes Leal, “As Relações Energéticas entre Portugal e a Nigéria: Riscos e Oportunidades”. IDN Cadernos n.º 3, Lisboa, Instituto de Defesa Nacional, Maio de 2011. Pp. 65-66. 111 This figure is rising demonstrating the importance of these energy flows to the EU. Some european countries like Portugal, Spain, France, United Kingdom, Italy, Germany and the Netherlands are increasingly dependent on oil and gas imports from this african sub-region. On the other hand they will also diversify their geopolitical risks. In January 2013, the EU launched an initiative to combate piracy in the Gulf of Guinea: “the Critical Maritime Routes in the Gulf of Guinea Programme (CRIMGO) will help governments across West and Central Africa to improve safety of the main shipping routes by providing training for coastguards and establishing a network to share information between countries and agencies across the region”. http://europa.eu/rapid/pressrelease_IP-13-14_en.htm (Accessed 30 Sep 2013). 159 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 160 the coastal waters of the Gulf of Guinea. The map bellow clearly illustrates the dimension of those attacks: Figure 1. Actual and attempted incidents of piracy/armed robbery in the Gulf of Guinea. Source: www.ics-ccs.org/piracy-reporting-centre/live-piracy-map. Apud http://www.chathamhouse.org/sites/default/files/public/Research/Africa/0713pp_maritimesecurity_0.pdf. (Accessed 20 Sep 2013). The human costs are considerable since the pirates there tend to commit brutal acts of armed robbery and not hold hostages for ransom, as is the case in the Gulf of Aden region. The economic costs of piracy, which in the case of Somalia are 160 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 161 estimated at several billion dollars,112 are related to a number of factors: ransoms, piracy insurance, security equipment and guards, re-routing, need for increased speed, prosecutions and imprisonment, labor, military operations, and general regional impact. With the deterioration of the situation in the Gulf of Guinea, it is expected that the economic impact is arguably comparable. Concerning the situation described above in the Gulf of Guinea, the United Nations Security Council has approved two resolutions: the Resolution 2018, on 31 October, 2011, and Resolution 2039, on 29 February, 2012. More recently, the Security Council, in a presidential statement, on 14 August, 2013, called for a comprehensive regional approach to combat piracy in the Gulf of Guinea. The international community concerns over the piracy threats in the Gulf of Guinea are mounting with the escalation and increased violence of the attacks. Thus, with the legal framework of the International Law, the Security Council Resolutions, the political will of the European Union and NATO s member States, with the accordance of the AU and other African regional organizations, and last but not the least, with the cooperation of the coastal States, a maritime operation is conceivable with immense gains for all the parts involved and even for the ones who are not directly involved, but will benefit from more secure ocean lanes and free flow of goods, namely energy. 2 - The Energy Security of Europe and the Potential Role of Portugal Energy security became again a more important topic due to the recent events in Eastern Europe and the potential use (misuse!) of energy supplies as an “economic weapon” by the Russian federation. The EU imports 34% of its oil and 32% of its natural gas from the Russian federation.113 The following chart shows the European countries dependency on natural gas imports from Russia: There are only nine countries that have no dependency on natural gas imports from Russia; two of them are not EU members: Switzerland and Norway. The level of dependency of the Baltic States, Finland, Czech Republic, Slovakia, Jonathan Bellish et al, The Economic Cost of Somali Piracy, One Earth Future Working Paper, 2012, http://oceansbeyondpiracy.org/sites/default/files/ecop2012final_2.pdf (Accessed 10 Sep 2013) 113 Paul De Grauwe, “Como Parar a Agressão”, In: Expresso nº 2188, 4/10/2014. 112 161 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 162 Bulgaria, Austria, Greece, Poland and Slovenia makes them very vulnerable to the “Energy blackmail” that Russia can impose. One of the solutions could be the diversification of the supplies and the Iberian Peninsula, and particularly Portugal, could contribute to this objective. The importation of natural gas in its liquid form (the LNG – Liquefied Natural Gas) by maritime routes using cryogenic sea vessels is very cost efficient to transport over long distances. That LNG could be transported to Portuguese and Spanish ports that have the infrastructure to “regasify” it and distribute it as pipeline natural gas. The pipeline system of the Iberian Peninsula thus will connect to France across the Pyrenees and the gas could be distributed across Europe.114 The main suppliers could be the States in the Gulf of Guinea (Nigeria, Angola and Equatorial Guinea), but also Algeria, and, in the near future, Mozambique115 and Tanzania. There is also the possibility that the United States could become an exporter of shale gas to the European Union. President Obama has already discussed the issue with his European partners in a strategy to contribute to the energy diversification of Europe and thus greater autonomy from the Russian imports. Portugal could contribute to this strategy in two ways: upstream, by contributing with the NATO and European Union operations to tackle the piracy and/or terrorist threats in the Gulf of Guinea thus securing the sea lanes and the constant and viable supply of gas and oil116; and downstream, by being a hub for the imports of LNG, with the capacity to regasify it, store it and distributes it as pipeline natural gas to the pipeline system of the EU. The geopolitical risks – namely piracy and/or terrorism – could jeopardise this entire strategy, thus the need for an international operation lead by NATO with the European Union117 as a counterpart. This would avoid the situation like the one in the Gulf of Aden, of two maritime operations, Ocean Shield lead by 114 Chancellor Merkel with the Spanish Premier Mariano Rajoy already discussed this strategy. The Portuguese Prime-Minister, Passos Coelho, also discussed this with his counter-parts in the EU. More recently the FLAD (Luso-American Foundation) has launched a “ Energy Security Program” and this issue is discussed in the first research paper that was released, cfr: http://www.flad.pt/wpcontent/uploads/2014/10/FLAD-PSE-Risco-Geopolitico-Gas-Natural-Europa-EUA-Africa.pdf (Accessed 06/10/2014). 115 “Mozambique could become the world s third largest exporter of liquefied natural gás (LNG)” Cf. Mozambique - The Emergence of a Giant in Natural Gas, http://www.sptec-advisory.com/ SPTEC_Advisory-Mozambique-The_Emergence_of_a_giant_in_Natural_Gas.pdf (Accessed 01/10/2014). 116 The Portuguese armed forces are already in the region – actually they are in the region since the fifteen century; there are five Portuguese speaking countries in the West coast of Africa - participating in the American lead military exercises, Obangame Express and Saharan Express, under the auspices of the APS (African Partnership Station). Cf. http://www.navy.mil/submit/ display.asp? story_id=80539 (Accessed 11/08/2014) and http://www.africom.mil/Newsroom/Article/ 11857/exercise-saharan-express-2014-commences (Accessed 11/08/ 2014). 117 The EU has approved, on 17 March 2014, its Gulf of Guinea Strategy pointing out that the mounting piracy attacks and insecurity can result in a serious situation: “The consequences include growth in criminal and terrorist activity, which also pose a growing threat to the European Union (EU).” Cf. http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/141582.pdf (Accessed 10/04/2014). 162 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 163 NATO and Atalanta lead by the EU, with roughly the same objectives – with the aim of securing the sea lanes and transforming the West African states, and others, into safe and reliable suppliers of energy, making them a viable alternative to the volatile supplies of Russian gas. Conclusions The importance of the sea is undeniable. The international shipping industry is responsible for carrying around 90% of world trade, so the food security, the energy security, the environmental security and the overall economic and military security is unattainable without the security of the sea lanes. The threats identified in this paper can cause serious damages to the international community as a whole. The U.S. has already created the Africa Command (AFRICOM), in 2007 and as President George W. Bush has explained: “This new command will strengthen our security cooperation with Africa and help to create new opportunities to bolster the capabilities of our partners in Africa. Africa Command will enhance our efforts to help bring peace and development, health, education, democracy, and economic growth in Africa.”118 Furthermore, as was highlighted above, the energy security of Europe could be unattainable without the diversification of its sources and the African supplies could contribute immensely to that end. The sea-lanes are of vital importance, so is the security of the maritime transports. The geopolitical risk of energy security could be minimized, and the Russian threats, namely to the more vulnerable countries, could be set aside. Lastly, the role of Portugal, as was mentioned, could be of great importance, especially in the securitization of the main sources of supply, in a region where it has had a presence for centuries, the Gulf of Guinea119, and taking advantage of its own maritime coast and its deep water ports – namely the Atlantic port of Sines – to become a hub of energy storage and distribution – LNG – to the consumers of Europe, thus contributing to the diversification of energy supplies of the EU.120 President George Bush, February 6, 2007 http://www.whitehouse.gov/news/releases/ 2007/02/20070206-3.html (Accessed 15 Jun 2012). 119 Mesquita Onofre, Portuguese navy commander, emphasises that: “ (...) The African countries of the CPLP (Community of Portuguese Speaking Countries) can have the chance of, in articulation, contribute to the security of the Gulf of Guinea, taking advantage of the Portuguese maritime experience for the development of their securitization capabilities and also benefit of the membership of Portugal in the biggest commercial block in the world: the EU with strong interests in the region”. Mesquita Onofre, Portugal e a Segurança no Golfo da Guiné, Jornal da Economia do Mar, nº 2, Setembro de 2014. 120 To be totally honest and accurate this idea is not intirely new. In a paper of June 2011, Cf. Ruben Eiras et al, Segurança Nacional e Estratégias Energéticas de Portugal e Espanha, IDN Cadernos nº 4, Lisboa, Instituto de Defesa Nacional, Junho de 2011, Ruben Eiras came up with this idea with slight different nuances. The author is now the Director of the Energy Security Program of FLAD and released a Policy Paper with the same perspective. Cf. http://www.flad.pt/wp-content/uploads/2014/10/FLAD-PSE-RiscoGeopolitico-Gas-Natural-Europa-EUA-Africa.pdf (Accessed 05/10/2014). More recently another paper came up with roughly the same idea: Gustavo Plácido dos Santos, Nigeria: An Alternative Energy Source for the European Union?, IPRIS Viewpoints, nº 165, November 2014, http://www.ipris.org/php/download.php?fid=827 (Accessed 08/12/2014). 118 163 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 164 BIBLIOGRAPHY: - Catarina Mendes Leal, As Relações Energéticas entre Portugal e a Nigéria: Riscos e Oportunidades. IDN Cadernos n.º 3, Lisboa, Instituto de Defesa Nacional, Maio de 2011. - David L. Goldwyn and J. Stephen Morrison, Promoting Transparency in the African Oil Sector, Washington D.C, Center for Strategic and International Studies, 2004. - David L. Goldwyn and J. 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SECURITY AND GOVERNANCE IN THE EXTENDED CONTINENTAL SHELF ZONES OF THE LUSOPHONE SOUTH André Thomashausen University of South Africa. Chair of the Institute of Foreign and Comparative Law. Abstract This paper summarizes the current EEZ and future enlarge EEZ legal and security regimes and identifies the challenges resulting from vast maritime areas falling primarily under the responsibility of coastal states. It reports on the claims for enlarged EEZs made by Angola, Guinea Bissau, Mozambique and São Tomé, as the four countries examined in the category of the Lusophone South. As common maritime security threats, environmental security, food security, national security and economic security are identified and assessed. Finally the overall issue of legal and naval governance in the EEZs and future enlarged EEZs of the “Lusophone South” is explored and a new suggestion for the establishment of a Joint Maritime Strategy between the Lusophone South and Portugal is developed. Maritime Security and Governance Maritime security and governance are the central concerns of all who wish to navigate or use in any way the oceans and marine resources, including the deposits of natural resources in the subsoil of the continental crust and continental shelves.121 The present article will limit this consideration to four Portuguese speaking nations on the African mainland, namely (from North to South): Guinea Bissau, São Tomé and Principe, Angola and Mozambique. The “Lusophone South” 121 Craig Forrest, “The balancing of maritime interests in the Southern African oceans in the light of the new international maritime security regime”, XLI (2008) CILSA, pp. 1-23. 169 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 170 in strictly geographical terms would be confined to Angola and Mozambique. It is nevertheless opportune, for the examination of maritime safety and governance strategies to include Sao Tome and Principe and Guinea Bissau. Maritime security and governance on the littoral oceans are major common interests shared in very similar ways by these four Portuguese-speaking countries. They share kindred legal systems, common trade links, linguistic and political identities, as well as a common history in their independence struggles whilst Portuguese colonies. Not all these factors are shared by the island State of Cape Verde which is considered to be in a “special relationship” with the EU who have attested Cape Verde that it “shares Europe’s values and cultural heritage and is an important partner for the EU”.122 EEZs and Enlarged EEZs The 1982 UN Convention on the Law of the Sea codified the universal legal framework of the oceans. The preamble of the Convention (in its 4th paragraph) highlights the aspect of environmental security of the oceans, postulating “the equitable and efficient utilization of their resources, the conservation of living resources and the study, protection and preservation of the marine environment“.123 The main maritime powers agreed in the 1982 Convention to accept the EEZ concept and even the enlarged EEZ concept, provided that the new zones would not fall under the sovereignty of the coastal State, and provided that the traditional freedoms of the high seas were preserved in the new zones. The developing coastal States had demanded that the new zones be made subject to their sovereignty, regardless of any actual capacity to exercise or defend such sovereignty. The comprise created a sui generis legal regime that allows costal states to extended the application of many national laws to their EEZ areas, and in future to the EEZ areas enlarged up to 350 miles, is so far as justified for the protection and regulation of the exploitation of resources within these waters. The claim of a Coastal State for an extension of its EEZ up to a maximum of 350 nautical miles is conditioned by the ability of the Coastal State to produce scientific verification to the satisfaction of the Commission on the Limits of the Continental Shelf, established under Article 76 (8) and Annex II to the Convention on the Law of the Sea. The deadlines for claiming an extension of the EEZ were postponed due to the delay in the publication of the Scientific and Technical Guidelines of the Commission, which were adopted only on 13 May 1999.124 Complicated procedural and substantive issues arise where two states make conflicting claims for the extension of their EEZ, whilst the scientific boundaries http://eeas.europa.eu/cape_verde/index_en.htm, accessed 15 Apr. 2015. Text at: http://www.un.org/depts/los/convention_agreements/convention_overview_ convention.htm, last accessed 5 Apr. 2015. 124 Alex G Oude Elferink, Continental Shelf, Commission on the Limits of the, Wolfrum et al, ed., Max Planck Encyclopedia of Public International Law - MPEPIL, May 2007. 122 123 170 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 171 of the EEZ extension have not yet been determined. Such a conflict is currently still unresolved between Spain and Portugal.125 For the confirmation of Mozambique’s claim of an extended exclusive economic zone by the Commission on the Limits of the Continental Shelf, a resolution will have to be found to the potentially conflicting claims of Madagascar, France, Comoros, Seychelles and Tanzania. Fortunately, regarding the potential dispute concerning the extension of the EEZ of Mozambican and South African, a tacit agreement is already place, based on what parties consider their “bilateral customs”.127 A further future challenge in the extended EEZ lies in the provisions of Article 82 of the Convention on the Law of the Sea, under which the coastal state who benefits from mining operations in its extended EEZ should contribute an offset fee, to compensate the international community and theoretically all or some land locked States. EEZ Enlargement Claims of the Lusophone South Angola submitted its claim for an extension of its EEZ up to the limits of its continental shelf on December 6, 2013,128 based on the study prepared by the Inter-ministerial Commission for Delimitation and Demarcation of Maritime Spaces of Angola, established for the purpose.129 The Commission received essential technical support from Brazil and Portugal, on the basis of the 2010 Defense Strategy Cooperation Agreement of the Community of Portuguese Language Countries. The greatest difficulty was encountered in applying only four baselines - two north, in Luanda, and two south, in Namibe - which did not meet the requirements of the Convention on the Law of the Sea. The rectification and improvement of the submission has been delayed due to the lack of national scientific capacity. See the Note Verbal: http://www.un.org/depts/los/clcs_new/submissions_files/prt44_09/prt_re_esp _2013_09_06_13_14_21_886.pdf e: ”Continental Shelf Submission of Portugal, Pursuant to Art. 76, Para. 8 of UNCLOS, Executive Summary”, p.4 also: Figs. 1-4, 2009; http://www.un.org/ depts/los/clcs_new/ submissions_files/submission_prt_44_2009.htm, accessed 5 Apr. 2015. 126 Elísio Benedito Jamine, Maritime Boundaries Delimitation, Management and Dispute Resolution. Delimitation of the Mozambique Maritime Boundaries with Neighbouring States (Including the Extended Continental Shelf) and the Management of Ocean Issues, United Nations (NY) 2007, 158 pp; (http://www.un.org/depts/los/nippon/unnff_programme_home/ fellows_pages/fellows_papers/ jamine_0607_mozambique.pdf), accessed 15 Apr. 2015. 127 On this, a rather fundamental study and reflection is owed to the late Miguel Galvão Teles, “Costume bilateral em Direito Internacional Público”, in: O Direito, Ano 142, N.º 2 – 2010, pp 353368 (http://www.mlgts.pt/xms/files/Publicacoes/Artigos/2010/Costume_bilateral_em_direito_internacional_publico.PDF, accessed 14 Apr. 2015. 128 See the listing of submissions: https://www.un.org/depts/los/clcs_new/commission_ submissions.htm, accessed 15 Apr. 2015. For the submission by Angola see : https://www.un.org/depts/los/clcs_new/submissions_files/ ago69_2013/es_ago_en.pdf . 129 Despacho Presidencial No 106/13, Diário da República Iª Série n.º 211 de 1 de Novembro de 2013 (Pág. 3000); http://www.scm.gov.ao/diploma_texto.php?diplomaID=117987, accessed 15 Apr. 2015. 125 171 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 172 Mozambique requested already on 7 July 2010 an additional area of 136 000 square kilometers, to extend its continental shelf for a total of 676 000 square kilometers, having received specialized technical assistance from the Commonwealth Secretariat, Germany, South Africa, France and Norway.130 The submissions of Angola and Mozambique illustrate the great difficulty and the high costs of the research and analysis of geomorphological data required to satisfy the criteria of Article 76 of the Convention on the Law of the Sea. The difficulties in motivating an extension of the exclusive economic zone explain the delays in the filing of the requests by Guinea Bissau and Sao Tome and Principe. In Guinea Bissau, the definition of baselines in accordance with the Convention becomes difficult due to the coastal geography of this country. In São Tomé and Principe, the continental shelf of the islands is relatively small and difficult to determine because of the great depth of the waters that surround the islands. Eventually and benefitting from technical cooperation with Portugal and Norway, in the context of an “Action Plan Praia (Cape Verde)” of 28 November 2010, Guinea Bissau and São Tomé and Principe, together with the Republic of Cabo Verde, the Republic of The Gambia, the Republic of Guinea, the Islamic Republic of Mauritania, the Republic of Senegal and the Republic of Sierra Leone, filed a joint submission on 25 September 2014.131 The success of the joint EEZ enlargement claim is still uncertain. What is certain however is that Angola and Mozambique will become the two giants of the EEZ enlargement process, by gaining maritime surfaces of 897 876 km² in the case of Angola and 676,000 km² in the case of Mozambique. These areas are equivalent to the surfaces of the national territories of Pakistan and Burma, respectively. The claimed territorial extensions impose maritime governance and security responsibilities on Angola and Mozambique that neither country will ever be able to discharge with conventional naval strategies. The situation will be no different in respect of the Joint EEC Extension claimed by Cape Verde, The Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone. The Four Components of Maritime Security Maritime security has different objectives that reflect the strategic uses and functions of the oceans: 1. First, the environmental safety of the planet depends on its oceans; no scientific doubt remains that the oceans are more decisive than any other factor for the future of our climates, including global warming. 130 Ibid, note 16 above. For the submission of Mozambique see: https://www.un.org/ depts/los/clcs_new/ submissions_ files/ moz52_10/moz_2010_es.pdf, accessed 15 Apr. 2015. 131 https://www.un.org/depts/los/clcs_new/submissions_files/submission_wa7_75_2014.htm; for the executive summary of the submission see here: http://www.un.org/Depts/los/ clcs_new/submissions_files/wa775_14/wa7_es_en_sept2014.pdf; see also: http://cnelepc-gb.org/pdf/eng/ noticias/clcs_invitation_presentation.pdf , all accessed 15 Apr. 2015. 172 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 173 2. Secondly, human food safety also depends, without any scientific doubt, on the oceans as our main and essential source of plant and animal proteins. 3. Thirdly, global economic security depends on the economic viability of maritime transport and thus shipping, which is an absolute condition for the attainment of the human development and globalization goals of the World Trade Organization (WTO). 4. Fourthly, the national maritime safety of coastal waters including the unenlarged and enlarged EEZ, is crucial to the survival especially of underdeveloped countries in Africa, where such maritime security cannot be minimally guaranteed, the regression of states into ungoverned territories or “failed states” is a foreseeable consequence. All four maritime security concerns must be countered by appropriate governance measures. Legal certainty in the legal regimes governing coastal waters under the absolute and relative sovereignty of costal states is a pre-condition for the attainment of the maritime security. Governance establishes the basis upon which security measures can be adopted and implemented. MARITIME ENVIRONMENTAL SECURITY The climate crisis of planet earth is the big existential theme of humanity, as most recently reconfirmed by the 5th Report of the Intergovernmental Panel on Climate Change (IPCC).132 The universal consensus is that the only decisive impact on the increase in CO2 in the atmosphere results from the transformer mechanisms inherent in the life of the oceans. Also no scientific doubt remains that the relative slowdown of global warming over the past two decades is due to the ability of the oceans to absorb CO2 and transfer heat to the deep oceans.133 The ecology and the environmental protection of the oceans are maritime security concerns that are also existential security concerns of mankind. It follows that maritime environmental security should inspire more strongly the policies, initiatives and measures taken for the protection of the environment, thus far focused rather on protection on land, simply because this is where environmental threats are more present and visible than on the oceans.134 IPCC Fifth Assessment Report: Climate Change 2013 (AR5); Climate Change 2014: Impacts, Adaptation, and Vulnerability - SUMMARY FOR POLICYMAKERS 31 March 2014; http://ipccwg2.gov/AR5/images/uploads/IPCC_WG2AR5_SPM_Approved.pdf ; see also: http://www.wmo.int /pages/themes/climate/international_ipcc.php; http://www.ipcc.ch/publications_and_data/publications_and_data_reports.shtml#1; accessed 15 Apr. 2015. 133 W D Nordhaus, “Why the Global Warming Skeptics are Wrong”, in: The New York Review of Books, 22 Mar 2012, http://www.nybooks.com/articles/archives/2012/mar/22/why-global-warmingskeptics-are-wrong/?utm_medium=email&utm_campaign=February+28+2012&utm_content =February+28+2012+CID_195731e3751cf26ce0870891a2cb4dba&utm_source=Email+marketing+software&utm_term=Why+the+Global+Warming+Skeptics+Are+Wrong, accessed 15 Apr. 2015. 134 Doris König, “Marine Environment, International Protection”, in Wolfrum et al, ed., Max Planck Encyclopaedia of Public International Law - MPEPIL, Apr. 2011. 132 173 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 174 Each of the four countries of the Lusophone South considered here has vast coastal dimensions even in conventional terms of the delimitation of their EEZs: Angola with a coastal length of 2.253 km and an area of 518.433 square kilometers of EEZ, and Mozambique with a coastline of 2,470 km and an area of 578.986 square kilometers of EEZ. Sao Tome and Principe has a non-extended EEZ of 165.364 square kilometers and Guinea Bissau a non- extended EEZ of 106.117 square kilometers.135 These are vast areas that exceed the endurance of most naval patrol craft, and will in any event require several days to cross from north to south or east to west. Each of the countries of the Lusophone South runs a high ecological risk in the event of a significant rise in sea levels and worsening situations of temporal instabilities, causing flooding, erosion and destruction of coastal installations. It would thus appear compelling that Angola, Mozambique, Sao Tome and Principe and Guinea Bissau should engage more actively in the defense of their direct interests in preserving the climate balance and the ecology of the oceans. MARITIME FOOD SECURITY The fish catch statistics for 2011 from the World Food Organization, the Food and Agriculture Organization of the United Nations (FAO) indicate the following total volumes136 and also estimates of supply / consumption per capita for Angola, Mozambique, Guinea Bissau and São Tomé and Principe:137 Potential capture pa Anual captures pa Consumption per capita per year Angola 700.000138 213 500 15,7 kg Mozambique 269.000139 189 035 6,5 kg Database of the “Sea Around Us Project”: http://www.seaaroundus.org/eez/, accessed 15 Apr. 2015. FAO Yearbook of Fishery Statistics, 2011. Summary tables, World fisheries production, by capture and aquaculture, by country (2011), ftp://ftp.fao.org/FI/STAT/summary/a-0a.pdf. 137 FAO Yearbook of Fishery Statistics, 2011. Summary tables, Appendix I - Fish and fishery products - apparent consumption; ftp://ftp.fao.org/FI/STAT/summary/appIybc.pdf, accessed 15 Apr. 2015. A discrepancy exists in the statistical data for Mozambique, with several sources suggesting an annual production of less than 40.000 t. These however did not take into account estimates of the yields obtained by informal fishing activities. See: http://www.mozpesca.gov.mz/images/estatistica.pdf ; FAO, Source book for the inland fishery resources of Africa..., Country file Mozambique; http://www.fao.org/docrep/005/T0473E/T0473E06.htm#ch12 also: República de Moçambique, Ministério das Pescas, Balanço da Campanha de Pesca – 2011, p. 20, http://www.adnap.gov.mz/images/documentos/outros/balanco_campanha_pesca_2011.pdf, accessed 15 Apr. 2015. 138 FAO’s Fishery Country Profile for Angola (2007); http://www.fao.org/fishery/ facp/AGO/en#CountrySector-Overview and ftp://ftp.fao.org/FI/DOCUMENT/fcp/en/ FI_CP_AO.pdf, accessed 15 Apr. 2014. 139 Numbers given by Ministério da Pesca, “Table 1 - Potential for fisheries and aquaculture”, http://www.mozpesca.gov.mz/index.php/en/economies-and-policies/economic-analysis, accessed 15 Apr. 2015. 135 136 174 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 175 Guiné-Bissau São Tomé e Príncipe Potential capture pa Anual captures pa Consumption per capita per year 150.000140 6750 2,3 kg 8500141 3900 28,2 kg As the table illustrates, an Angolan citizen can consume a average little less than 1.3 kg of fish per month, a Mozambique citizen only 0.5 kg, and the average consumer in Guinea Bissau only as little as 200 grams per month. São Tomeans in comparison enjoy relative abundance of marine protein, having at their disposal nearly 2½ kg of fish per capita per month, half of what for instance the average Portuguese consumer will consume. The data reflects that in each of the four countries of the Lusophone South, fishing is far from reaching its potential, yet there are indications of overfishing and resource depletion. In the case of Angola, the total size of the resource was estimated at close to 700,000 tons in 1970, dropping to an estimated 370,000t currently. Even taking into account legal fishing quotas granted to third countries such as the EU, the development indicates sustained and significant fish poaching.142 The “Review of Impacts of Illegal, Unreported and Unregulated Fishing on Developing Countries” concluded in 2005, for the Angolan EEZ alone, concluded that in the very least 72.000 t annually were lost to illegal fishing.143 For Mozambique a recent estimate puts the loss resulting from illegal fishing at 67 million USD.144 República da Guiné-Bissau, Ministério de Desenvolvimento Rural e Agricultura, Recursos Naturais e Ambiente, Estratégia e Plano de Acção para a Biodiversidade na Guiné-Bissau, 1997; p.29-30; http://www.didinho.org/PLANODEACCAOPARAABIODIVERSIDADENAGUINEBISSAU.pdf, accessed 15 Apr. 2015. 141 Mé-Chinhô Costa Alegre, Towards a National Ocean Policy in Sao Tome and Principe, UN (New York) 2009, P 7; http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/costa-alegre_0910_sao-tome-principe.pdf, accessed 15 Apr. 2015. 142 A. Thomashausen, “ANGOLAN MARITIME SECURITY”, in: 2008 (No 2) Revista de Ciências Sociais e Políticas, pp 7 – 32 (18); FAO’s Fishery Country Profile for Angola (2007), p 3; http://www.fao.org/fishery/facp/AGO/en#CountrySector-Overview and ftp://ftp.fao.org/FI/DOCUMENT/fcp/en/FI_CP_AO.pdf, accessed 15 Apr. 2015. 143 Review of Impacts of Illegal, Unreported and Unregulated Fishing on Developing Countries. SYNTHESIS REPORT, July 2005. Marine Resources Assessment Group Ltd. London, UK; A Thomashausen, supra (n 22), pp 30-31, http://www.imcsnet.org/imcs/docs/iuu_fishing_ synthesis_report_mrag.pdf, accessed 15 Apr. 2015. 144 http://transparentsea.co/index.php?title=Mozambique:illegal_fishing, accessed 15 Apr. 2015. See also: “ILLEGAL FISHING IN SOUTHERN AFRICAN WATERS AND BEYOND: PREVENTION AND LAW ENFORCEMENT”, Summary of the first expert one-day symposium convened by the Institute of Marine & Environmental Law (IMEL) and the Marine Research Institute (Ma-Re) in collaboration with INTERPOL’s Project Scale on 9 July 2013 at the University of Cape Town; http://ma-re.uct.ac.za/wp-content/uploads/2013/08/FinalFisheries-Symposium-SummaryReport.pdf, accessed 15 Apr. 2015. 140 175 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 176 The decline in fisheries resources also impacts on employment in Angola, Mozambique, Guinea Bissau and São Tomé and Principe. In the case of Angola, it is estimated that a total of 235,000 workers are employed in the primary and secondary sectors of the fishing industry.145 According to FAO data, in reality half of Angola’s population depends for their livelihood on the fishing industry.146 For Mozambique, the estimate including the informal sector is 350,000 workers,147 and for São Tomé and Principe and Guinea Bissau it can easily be assumed that fishing is the only relevant industrial activity. In this context very little comfort is forthcoming from the bitter dispute between the European Union and Angola over fishing rights which revealed the one sidedness of the type of fishing agreements practiced by the EU practiced.148 In the case of Mozambique, for example, a Tuna Fishing Agreement provides for a “financial contribution” 980,000 Euros (besides small payments of licenses for vessels), in exchange for an annual catch volume of 8000 ton of tuna fish.149 In the case of São Tomé and Principe, the EU Fisheries Partnership Agreement of 2006 provides for “financial contributions” in the annual amount of 682,500 Euros, in addition to low rates for the licensing of vessels.150 Thus the “base price” of the EU per ton of tuna caught in Mozambique is 112.50 Euros, and in the waters of São Tomé 97.50 euros, i.e. an insignificant value of less than one Euro per kg of tuna, when considering its actual market value. It is clear that all the added value in the tuna fishing business of the EU is accumulated in the EU and never in the country in whose waters the resource is taken. In Guinea Bissau, a protocol of 1997 (currently suspended due to the military coup of April 2012) provided more generous “compensation payments” of 8.5 million euros per year, but this must be read in the context that fishing by foreign vessels in this country’s waters had reached nearly 6 times the volume harvested by national fishing activities, without taking into account clandestine and illegal fishing.151 The argument in defense of these modest financial contributions will suggest that at least they encourage the existence of a legal and declared segment of FAO, Fisheries and Aquaculture Statistics 2011, p 18; http://www.fao.org/docrep/019/i3507t/ i3507t.pdf, accessed 15 Apr. 2015. 146 FAO, Fishery Country Profile for Angola (2007), p. 8; ftp://ftp.fao.org/FI/DOCUMENT/fcp/ en/FI_CP_AO.pdf, accessed 15 Apr. 2015. 147 Ministry of Fisheries Mozambique, A Management Plan Proposal for the Marine Linefishery of Mozambique, May 2013, p 8: http://www.adnap.gov.mz/documentos/plano/PG_Peixe %20_linha2013.pdf, accessed 15 Apr. 2015. 148 See: European Parliament approves end of fishing agreement due to demands from Angolan government, http://www.macauhub.com.mo/en/news.php?ID=1315, accessed 15 Apr. 2015. 149 http://ec.europa.eu/fisheries/cfp/international/agreements/mozambique/index_pt.htm, accessed 15 Apr. 2015. 150 http://ec.europa.eu/fisheries/cfp/international/agreements/sao_tome/index_pt.htm, accessed 15 Apr. 2015. 151 http://ec.europa.eu/fisheries/cfp/international/agreements/guinea_bissau/index_pt.htm, accessed 15 Apr. 2015. 145 176 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 177 European fishing activities, which is an improvement over illegal fishing that contributes nothing. However, such reasoning encourages the passive and rentier mentality of the small and weak political elites in the maritime resource countries. Rather than encouraging commercial partnerships for the emergence of national fishing industries, the EU fishing policy encourages African governments to “farm out” the utilization of their resources to foreign industries, generating easy but small revenue for consumption, to the detriment of sustainable development. Of the various multi- and bilateral agreements that regard Angola, Guinea Bissau, Mozambique and São Tomé152, the Fisheries Protocol of the Southern African Development Community (SADC) deserves special mention. The Protocol is in force since August 8, 2003, and both Angola and Mozambique are member states.153 The Protocol commits member countries to actively develop the fisheries sector, on the basis of sustainability and regional cooperation. The protocol defines the strategies for the further strengthening of marine based food security, inter alia through the establishment in 2010 of a SADC Monitoring Control and Surveillance Regional Centre for the combating illegal fishing, with the assistance of the EU.154 The work of the Centre is intended to overcome in the future the scarcity of naval resources in the member States, by facilitating cooperation and integrating training, equipment maintenance, logistics, intelligence gathering and maritime intelligence, with support from other international organizations and industrialized countries. There are great expectations about the role of South Africa in this cooperation within SADC. However, limitations of financial, material and human resources in South Africa limit this country’s aspirations to become a pivotal State in maritime security and governance in the Southern African oceans.155 Thus maritime cooperation within the group of Lusophone countries, including Brasil and Portugal will continue to play and own and independent role. MARITIME ECONOMIC SECURITY Maritime economic security could be defined to include maritime food security, but is in this paper distinguished in view of the different challenges posed, for instance, by the mining for maritime resources, especially hydrocarbons. Ver listagem: http://ec.europa.eu/fisheries/documentation/publications/cfp_factsheets/rfmo_pt.pdf, accessed 15 Apr. 2015. 153 Official Portuguese text here: http://faolex.fao.org/docs/pdf/moz50050.pdf ; see also: http://www.sadc.int/documents-publications/show/Protocol_on_Fisheries2001.pdf#, accessed 15 Apr. 2015. 154 See on the ACP Fish II project: http://acpfish2-eu.org/uploads/com%20tproducts/ S_AFRICA(low).pdf; also http://www.afdb.org/en/projects-and-operations/project-portfolio/project/p-z1-aaf-008/. Windhoek Declaration of 4 July 2008: http://www.commonwealthfisheries.org/ admin/downloads/docs/SADC%20Statement%20of%20 Commitment%20on%20IUU%20Fishing %20040708.pdf, accessed 15.Apr. 2014 155 See for instance: “Arms deal vessels marooned by neglect”, Sunday Times (Johannesburg), 14 December 2014. 152 177 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 178 Of the four countries considered here, is evidently Angola that has the most developed hydrocarbon exploration industry and the most advanced economic development in its EEZ. With an output of close to 2 million barrels a day, Angola is the 3rd largest oil producer in Africa and globally the 6th largest exporter of hydrocarbon products to the USA. The Angolan state depends with 90% of its revenue on the oil industry which contributes half the gross domestic product of the country. Virtually 100% of the production is located offshore, with 65% in deep sea and ultra-deep sea production areas, racking up large amounts of capital invested, in total more than 20 billion dollars.156 The enormous economic value of the production and drilling platforms in the Angolan EEZ, but also of the hydrocarbon deposits themselves, pose challenges to economic maritime security. With the future enlargement of the EEZ to a near double its current dimension, the demands placed on economic maritime security will be even bigger and more difficult to satisfy. Although thus far less developed, the hydrocarbon resources in the EEZ of Mozambique are almost of equal importance. The latest findings have confirmed natural gas reserves in the Rovuma basin of at least 150 trillion cubic feet (150tcf) with another 170tcf of inferred reserves that may become available through future exploration. Mozambique is set to rank amongst the 10 largest natural gas producers in the world within the next ten years.157 A first production is scheduled to deliver 10 million tons of LNG per year (MTPA) as from 2019, roughly equivalent to 10 GW of electricity, at an estimated investment budget of 20 billion dollars.158 As in Angola, production will be offshore, approximately 90 km into the EEZ, exposing key installations to the open sea. São Tomé and Principe is also a country with very large reserves of hydrocarbons in its EEZ, estimated at 11 billion barrels, partially located in an exploration area shared with Nigeria.159 Exploration work over the past two decades has A Thomashausen, supra (n 22), pp 11-13 com as demais referências. Moira L. McConnell, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone, in: General Reports of the XVIIIth Congress of the International Academy of Comparative Law/Rapports Généraux du XVIIIème Congrès de l’Académie Internationale de Droit Comparé 2012, pp. 453-466. 157 Ministerio dos Recursos Minerais, Plano Director do Gás Natural, MAio 2014, p. 9 (http://www.inp.gov.mz/pt/Politicas-Regime-Legal/Legislacao-Regime/Plano-Director-do-GasNatural) “Gas Reserves at Mozambique field scaled up”, The Economic Times, 2 Apr. 2014, http://articles.economictimes.indiatimes.com/2014-03-12/news/48154514_1_rovuma-growingindian-gas-market-lng-project, accessed 15 Apr. 2015; SPTEC Advisory, 2012 Country Review Mozambique The Emergence of a Giant in Natural Gas, http://www.sptec-advisory.com/SPTEC_AdvisoryMozambique-The_Emergence_of_a_giant_in_Natural_Gas.pdf, accessed 15 Apr. 2015. 158 http://www.epmag.com/anadarko-mozambique-lng-deals-horizon-790981, accessed 15 Apr. 2015. 159 African Development Fund – AfDB, São Tomé and Príncipe – Maximizing Oil Wealth for Equitable Growth and Sustainable Socio-Economic Development, 2013; http://www.afdb.org/fileadmin/uploads/afdb/Documents/Project-and-Operations/Sao%20Tome%20and%20Principe%20%20Maximizing%20oil%20wealth%20for%20equitable%20growth%20and%20sustainable%20soci o-economic%20development.pdf, accessed 15 Apr. 2015. 156 178 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 179 been slow due to high operating costs in ultra-deep waters, but also due to the perception of high political risks of investing in São Tomé and in the joint area between São Tomé and Nigeria. What is not in doubt is the challenge for economic security in the São Tomé and Principe EEZ, especially so from when the first oil production is expected to commence, in 2016. Guinea-Bissau is expecting to confirm hydrocarbon deposits in a near future, due to the proximity of the territory of the important deposits located in Equatorial Guinea. Exploration work is being conducted inter alia by Sonangol, Total and Swedish Svenska Petroleum.160 Once deposits are confirmed, and as in cases of Angola, Mozambique and São Tomé and Principe, maritime security and governance issues will arise, to safeguard investments in hydrocarbon activities, whilst protecting the very vulnerable and unique maritime environment and ecology along the coastline of Guinea Bissau. NATIONAL MARITIME SAFETY Incidents of piracy, currently still in an “infant” stage have been affecting exploration and production platforms in the Angolan EEZ, where small night raids have managed to steal equipment such as small generators units. Undeterred, piracy can easily spread and grow in West Africa, as it did in the East, at the Horn of Africa. A clearly frightening risk is ever present that a piracy or terrorist attack on an oil or gas production platform could provoke untold ecological damage and immense economic losses. Some production units in the Angolan EEZ are producing in excess of 200.000 barrels of oil per day. National maritime security must protect shipping and the integrity of the marine and coastal borders of the coastal country and ensure the viability of the fishing industry and exploitation of natural resources. The safety of maritime transport has an immediate priority. Due to the lack of development of land transport infrastructures, all four countries considered here depend on costal shipping as well as on ocean shipping for more than 90% of their imports and exports on the African continent.161 Even small increases in sea transport costs have a negative impact on the fragile economies of the African continent. Piracy off the East African coast has to date affected more than 120 vessels, resulting in costs of over 250 million dollars for the safeguarding of vessels, cargo and crews, causing insurance premiums to have increased by a multiplying factor of 40. In addition, the immense costs incurred by the interventions of various naval forces in Eastern Africa waters, on the basis of the resolutions of the UN Security Council nos. 1838 and 1851 of 2008, must be factored in. http://www.energy-pedia.com/country.aspx?country=148; http://www.capenergy.co.uk/ Operations/guineabissau/index.html; both accessed 15 Apr. 2015 161 The Brenthurst Foundation, Maritime Development in Africa, Discussion Paper 2010/03 (with contributions from Rear Admiral Steve Stead, Knox Chitiyo, Cpt Johan Potgieter and Geoffrey Till. Johannesburg 2010, p. 5. 160 179 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 180 The absence of naval forces with an actual intervention capacity in all African coastal states, is a widely documented fact. The only exception (although relative) is South Africa, but its naval capacity remains limited and partially incapacitated,162 and has little relevance to the EEZs of Angola and Mozambique, situated at distances of over 2000 nautical miles from any naval bases in South Africa. Maritime Governance The genesis of the Convention on the Law of the Sea illustrates the difficulty of finding a universal consensus on human conduct in relation to the oceans. It is thanks to the work of Fernando Loureiro Bastos on “Internationalization of the Maritime Natural Resources” in 2005 that the Portuguese-speaking world has a modern reference treatise on this. As documented and analyzed by Loureiro Bastos in his third chapter,163 the entry into force of the Convention in 1994 took 12 years, following nearly 10 years of preparatory work, undertaken from 1973 to 1982 by a total of 164 Parties, which included six non-independent States, eight national liberation movements, twelve specialized agencies, nineteen intergovernmental organizations, and a number of quasi-autonomous units of the UN as well as a host of non-governmental Organizations.164 Even so, before the Convention could enter into force in 1994, an additional or supplementary treaty was required, conditioning the application of chapter XI of the Convention. The conditioning of the provisions of chapter XI (mainly on the mining of the seabed), proved necessary so as to address specific reservations and demands made by the United States. All the same and somewhat extraordinarily, the conservative (Republican) American members of Congress continue to this date to block the ratification of the Convention by the United States.165 There are currently 165 parties to the Convention5 indicating its widespread support as the prevailing legal order for the oceans. The Convention entered into force universally (but not for the US) on November 16, 1994, having been ratified by the Portuguese speaking nations in Africa as follows: Guinea-Bissau on August 25, 1986, Sao Tome and Principe on 3 November 1987, Angola on 5 December 1990 and Mozambique on 13 March 1997. Article 76 of the Convention on the Law of the Sea is the legal basis for the eventual enlargement of the zone that coastal states may exclude from the application of the (relative) freedom of the high seas (Art. 87), thereby subjecting these See above n 35. F L Bastos, A Internacionalização dos Recursos Marinhos, Almondina (Lisboa) 2005, 194-204; see also: F L Bastos, “The governance models for oceans and the United Nations Convention on the Law of the Sea”, in: (2012) 37 South African Yearbook of International Law - SAYIL, 110-130. 164 Andree Kirchner, “History of the Law of the Sea”, in Rüdiger Wolfrum (ed), Max Planck Encyclopaedia of Public International Law (online ed., 2007). 165 See inter alia: Michale J Kelly, United States Ratification of the Law of the Sea Convention: Securing our Navigational Future while Managing China’s Blue Water Ambitions, 45 (2012) Case Western Reserve Journal of International Law, pp. 461-472. 162 163 180 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 181 enlarged areas, at least partially, to the exercise of the national rights and economic jurisdiction of the coastal states. The innovative element of this Article 76 is the guarantee of an exclusive economic zone of 200 nautical miles (equivalent to 370 km) irrespective of the actual extension of the continental shelf but subject to the coastal states’ option to claim an extension of their EEZ up to the outer limits of the continental shelf, limited to a maximum distance of 350 nautical miles (648 km).166 The theoretical foundation of this arrangement is an absolutist concept of the idea of territorial sovereignty, whereby the continental shelf is seen as a natural prolongation of the land territory, up to the outer limits of the continental shelf, and without consideration of any actual possibilities of exercising state sovereignty over such permanently submerged areas.167 The application of the principles of territorial sovereignty to the notion that the land could simply extend into the sea, omits from its conceptual foundation the all-important element of sovereignty, namely the requirement of actual domain and of an actual ability to exercise authority over a territory. The condition of an actual control is a constitutive element of sovereignty. This concept is one of the oldest in international law, ruling that the state can only claim statehood if others acknowledge that it exercises an effective control over a clearly defined territory and those people who inhabit that territory permanently.168 By abandoning the element of effective control as the basis of sovereignty, Art. 76 of the Convention conditioned the extension of territorial sovereignty over what used to be maritime areas pertaining to high seas, by limiting the extent and use of such rights.169 Article 77 is the key provision and uses the same terminology as Art. 56 regarding the un-enlarged EEZ. Art. 77 provides that the coastal State has “sovereign rights” to explore and exploit the natural resources in the enlarged EEZ. The reference to “sovereign rights” grants these rights as exclusive rights, barring other states’ same rights from the enlarged EEZ. The concept was used in an attempt to prevent coastal states from claiming classic sovereignty over the enlarged and un-enlarged EEZ but nevertheless grant the coastal states all other rights necessary for and connected with the exploration and exploitation of: (1) non-living resources on the seabed, subsoil and superjacent waters, (2) living resources of the seabed, subsoil and superjacent waters and (3) others.170 Peter Tobias Stoll, “Continental Shelf”(at par. 17 et seq), in: Rüdiger Wolfrum (ed), Max Planck Encyclopaedia of Public International Law (online ed, 2008). 167 BH Oxman “The Territorial Temptation: A Siren Song at Sea”, in (2006) 100 AJIL 830–51. 168 Juliane Kokott, “States, Sovereign Equality”, in: in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (online ed, 2009); Jorge Bacelar Gouveia, Manual de Direito Internacional Público, 2 ed (Lisboa) 2005, pp 430. 169 Ian Townsend-Gault, “The ‘Territorialisation’ of the Exclusive Economic Zone: A Requiem for the Remnants of the Freedom of the Seas?”in: Clive H. Schofield , Seokwoo Lee and Moon-Sang Kwon, eds, The Limits of Maritime Jurisdiction, 2013 (Brill / Nijhoff), pp. 65-76. 170 Robert Beckman & Tara Davenport, “The EEZ Regime: Reflections after 30 Years”, in: Harry N. Scheiber and Moon Sang Kwon, eds, Proceedings from the 2012 LOSI-KIOST Conference on Securing the Ocean for the Next Generation, 2013; Dolliver Nelson, “Exclusive Economic Zone”, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (online ed, 2008); 166 181 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 182 The enlarged EEZ regime is the same as the un-enlarged EEZ regime. It is the result of a difficult compromise between the interests of coastal states and landlocked states, as well as between traditional sea powers and developing states, especially in Africa and South America. The maritime powers agreed to accept the EEZ concept and even the enlarged EEZ concept, provided that the new zone was not under the sovereignty of the coastal State, and provided that the traditional freedoms of the high seas were preserved in the new zone. The coastal States had demanded that the new zones be made subject to their sovereignty, regardless of any actual capacity to exercise or defend such sovereignty.171 The hope that the provisions establishing the un-enlarged as well as the enlarged EEZ would safeguard a residual high seas character within these areas has not been supported well by state practice. Instead of a sui generis legal regime, many developed coastal states have extended near absolute sovereign control over their EEZ, by simply extending the application of most their laws to the EEZ area. The Netherlands’ practice is a vivid demonstration of this practice.172 The practice of applying the criminal jurisdiction of the coastal state in its EEZ, in conditions of lacking capacity of any kind of enforcement, results in situations that can hinder intervention. Foreign vessels will not be able to intervene without having been allowed to do so by the coastal state, and even then, will not be allowed to exercise their own jurisdiction or enforce the laws of their flag. As a result the criminal prosecution of piracy and other criminal activities is rendered difficult by complex jurisdictional issues and conflicts of criminal laws.173 This effect was evidently not intended by the rules of the Convention on the Law of the Sea,174 but in the case of the countries in the Lusophone South, little legal certainty exists in regards to measures serving the protection of national maritime security in the affected EEZs and in the future, enlarged EEZs. Agencies and international capacities designed to combat piracy operate on the basis of the International Convention for the Safety of Life at Sea (SOLAS), 1974 (as amended in 2003) and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) 1988 (with amendments in 2005). But the effectiveness of the provisions made in these conventions depends Nelson, supra (at n.º 49), para 17 et seq. C P Verwer, “The Law Applicable on the Continental Shelf and the EEZ”, 14 (3) EJCL Electronic Journal of Comparative Law, (December 2010), http://www.ejcl.org/, accessed 5 Apr. 2015; Robert Beckman & Tara Davenport, supra (n 8); Moira L. McConnell, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone, in: Karen B Brown & David V Snyder, eds, General Reports of the XVIIIth Congress of the International Academy of Comparative Law, 2012, pp 453 – 467. 173 Robert Beckman, « Maritime Security and Jurisdiction over Pirates and Maritime Terrorists”, in Clive H. Schofield , Seokwoo Lee and Moon-Sang Kwon eds, supra n 49, pp 349-371; Helmut Tuerk, “Piracy and the Law of the Sea”, in Harry N. Scheiber and Jin-Hyun Paik, eds, Regions, Institutions, and Law of the Sea, 2013 (Brill / Nijhoff), pp. 491-513. 174 Nelson, supra (at n.º 49), par. 86 et seq. 171 172 182 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 183 on the responsiveness and cooperation of coastal states.175 For Angola, Mozambique, Guinea Bissau and São Tomé and Principe it is an urgent requirement that they should secure their full participation in the procedures and processes established by SOLAS and SUA. Evidently, the surveillance and control of fishing activities and also of the exploitation of natural resources in the EEZ are the responsibility of the coastal state. However, in the absence of minimally adequate naval resources, this postulation of sovereignty of a coastal state simply causes a huge area that is effectively lawless. The at least partial removal of the application of international law and of the law of the (high) sea in the EEZ and the extended EEZ, without sufficient capacity in existence for the effective enforcement of any national laws, will cause a situation where vast sea areas will exist in a legal void. Considering the urgency in securing maritime security and governance in the EEZ and the future extended EEZs, without any realistic prospects for an adequate development of own and national naval and coastal surveillance capabilities, the countries of the Lusophone South will be forced to consider innovative and cooperative e alternatives to the classic naval strategies. The nations of the Lusophone South, have in common the reality of underdeveloped fisheries industries, enormous potential for exploitation of natural resources in the EEZ, and the dramatic lack of any real capacity to monitor and secure their vast EEZ and even bigger enlarged EEZ areas. Despite having solemnly adopted in 2006 a National Maritime Strategy,176 Portugal has thus far not been able to convince Angola, Guinea Bissau, Mozambique and São Tomé and Principe to commit to a joint and Lusophone Maritime Cooperation. The main reasons, as very aptly and recently analyzed by Pedro Seabra,177 are the relative disinterest of NATO in the South Atlantic, the cautious but consistent distance of Brasil towards any naval involvement beyond its own EEZ and future enlarged EEZ, and stringent financial constraints in Portugal itself. Nevertheless, Portugal’s continuous contribution to the training of key navy personnel of the countries of the Lusophone South has established a firm basis for close and effective cooperation and has resulted in the holding of bi-annual top level naval conferences attended by all Portuguese speaking navies, since 2008. An obstacle to the strengthening of maritime cooperation of the countries of the Lusophone South has been the South African foreign policy preference for its alliance with Brasil, Russia, India and the PR China in the BRICS framework.178 Along with the BRICS option, South Africa is anxiously trying to construe a new hegemony over the SADC member states, including Angola and Mozambique, Craig Forrest, supra n.º 1, pp 9-15. Gazetted in Diário da República, 1.a série—No 237—12 de Dezembro de 2006, p 8316 et seq. 177 Pedro Seabra, “A case of unmet expectations: Portugal and the South Atlantic”, 13 (3) Portuguese Journal of Social Science (2014), pp 331-346. 178 A E Abdenur, M Folly, K Moura, S A S Jordão and P Maia, “The BRICS and the South Atlantic: Emerging arena for South-South cooperation”, 21 (3) South African Journal of International Affairs (2014), pp 303-319. 175 176 183 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 184 but without any interest in relations with São Tomé and Principe and Guinea Bissau. Both Mozambique and Angola have cautiously resisted being taken under the wings of the traditionally very proud and capable South African navy. They have not failed to see that the navy of the new South Africa is hardly operational, with up to 80% of its vessels and airborne capabilities continuously unserviceable, understaffed and underfunded. The BRICS proposition is a relevant to maritime security and governance in the Southern African oceans in so far as the Chinese navy is concerned. China has for at least a decade shown an interest in establishing a naval presence in the South Atlantic and eventually succeeded in establishing regular naval cooperation with Namibia. However, China has not been able to engage with Angola on maritime issues, even though Angola has been trying to rehabilitate or rather restablish its naval capacity for a decade already, since 2005. Russia who used to entirely provide Angola’s maritime security until the early nineties, has not been showing any interest in cooperating on naval issues in Southern Africa. India, the third large BRICS partner, will regularly visit the South African navy but is not pursuing its possible strategic interests in the Southern African oceans, even though large petroleum companies from India have acquired interests in concessions in Mozambique and Angola. Brazil finally is continuing to pursue a traditional bi-lateral approach in its few contacts with Angola regarding maritime issues.179 Against this background, the prospects of a shared and integrated maritime strategy between the countries of the Lusophone South and Portugal continue to be attractive, in particular in the field of human resources and naval personnel development where language continues to be an essential and natural factor of allegiance. Realistically, the countries of the Lusophone South can find modern training opportunities, study and integration of maritime information and intelligence and capacity building only in Portugal.180 A suggestion for the establishment of a South Atlantic Treaty Organization in the early eighties is all but forgotten.181 However, in a much smaller group of nations that share very similar interests and risks, cooperation beyond the level of navy personnel development not only appears possible, but realistic, if pursued in a sustainable manner. A more optimistic view is advocated by Pedro Seabra, “Brazil and the economic drivers for the securitization of the South Atlantic”, Paper delivered at European Consortium for Political Research (ECPR) General Conference, 3-6 September, 2014 – Glasgow, UK, see http://ecpr.eu/filestore/paperproposal/242ee680-134e-4ef5-a469-ded8b37e9b49.pdf, accessed 15 April 2015. 180 Pedro Borges Graça, “Por um Sistema de Informações Estratégicas Marítimas”, in: AAVV, 1º Simpósio das Marinhas dos Países de Língua Portuguesa, Cadernos Navais, nº 26, Grupo de Estudos e Reflexão Estratégica / Edições Culturais da Marinha, pp. 131-138. 181 Andrew Hurrell, “The Politics of South Atlantic security: a survey of proposals for a South Atlantic Treaty Organisation”, 59 (2) International Affairs (Royal Institute of International Affairs) (1983), pp. 179-193. 179 184 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 185 To ensure sustainability, modern lease agreements for naval patrol craft and mixed crews could become a viable alternative for the countries of the Lusophone South. Further, the security and law enforcement provided by a modern naval presence in the EEZ and in future also enlarged EEZs of Angola, Guinea Bissau, Mozambique and São Tomé and Principe would represent a benefit to industries operating in these zones, and such benefit could be translated into monetary values that may become recoverable from the benefitting industries. The major themes for such a modern Joint Maritime Strategy could be: • Updating and harmonization of maritime laws and regulations with particular emphasis on cooperation under the International Convention for the Safety of Life at Sea (SOLAS) of 1974 (as amended in 2003) and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) of 1988 (amended in 2005). • A design and prioritization process for the harmonized choice and definition of naval equipment capable of being utilized, used and maintained in an integrated manner. • The joint preparation, training and command of integrated coastal patrol and maritime police forces of the South • The sharing and integration of maritime intelligence. • The joint preparation of naval forces for the provision of maritime aid and response in cases of environmental disasters. • The creation of an integrated Center for the Study of the Extended Continental Shelf for the identification of resources that will become available as a result of enlargement. • The promotion of a “Culture of the Sea” for the integration of marine industries in the national development plans. A Joint Maritime Strategy of the countries of the “South Lusophone” presents itself as the most appropriate strategy for economic, social and political stability and development, thus countering the efficiently and effectively the risks of continuing not to provide for security and governance over vast maritime areas.182 Last but not least, an improved approach to maritime security and governance would contribute significantly to the goals of development and stability in Angola, Guinea Bissau, Mozambique and São Tomé and Principe. See the through and fundamental work of Inês Sousa, “Maritime Territorial Delimitation and Maritime Security in the Atlantic”, Atlantic Future Scientific Paper 07 (Sept. 2014), 20 pp (online publication): http://www.atlanticfuture.eu/contents/view/maritime-security-in-the-atlantic. 182 185 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 186 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 187 17. POWER AND SCIENCE IN THE CONTEXT OF THE COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF Tiago Figueiredo Martins Researcher of the project at the Center for Public Administration and Public Policies, Institute of Social and Political Sciences of the University of Lisbon. Center for Strategic Studies of the Atlantic. «La mer a toujours été battue par deux grands vents contraires: le vent du large, qui souffle vers la terre, est celui de la liberté; le vent de la terre vers le large est porteur des souverainetés. Le droit de la mer s’est toujours trouvé au coeur de leurs affrontements.» René-Jean Dupuy INTRODUCTION The possibility of coastal states extending their continental shelves has greatly revolutionized the international agenda for the oceans in the last decade, putting in the spotlight the Commission on the Limits of the Continental Shelf (CLCS), an international expert body established under the United Nations Convention on the Law of the Sea (UNCLOS). The origin of the CLCS lies on Article 76 of the UNCLOS, which has the great merit of setting a definable limit for the outer continental shelf. As a result of this tremendous innovation, the Commission was created in order to oversight the observance of these new criteria by the various coastal states. According to UNCLOS Annex II, Article 3, the “functions of the Commission” shall be: (a) to consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend 187 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 188 beyond 200 nautical miles, and to make recommendations in accordance with article 76 and the Statement of Understanding adopted on 29 August 1980 by the Third United Nations Conference on the Law of the Sea; (b) to provide scientific and technical advice, if requested by the coastal State concerned during the preparation of the data referred to in sub- paragraph (a). The mandate of the Commission is embodied in Article 76, which states in its paragraph 8 that: “The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.” Although primarily laying its activity on scientific and technical guidelines, the magnitude of the task performed by the Commission is well beyond what was originally anticipated by the Convention. In this sense, it is quite revealing that a study prepared during the third United Nations Conference on the Law of the Sea by the Secretariat estimated that there would be 35 coastal States with continental shelves beyond 200 nautical miles. By now, there are already 77 completed submissions and there are still new submissions on their way to the desk of the Secretary-General of the United Nations (UN), which represents a major challenge, if not the biggest challenge for the Commission nowadays.183 The UNCLOS revolutionized the process of delineation of outer limits of maritime zones by putting under the supervision of a body of independent (or sointended) experts the submissions prepared by the coastal states for the extension of their continental shelves. As Miguel Soares, the Under-Secretary-General for Legal Affairs of the United Nations Legal Counsel recently stated, “incorporating the postulates of geology, geophysics and hydrography in the provisions of the Convention, the drafters acknowledged that science can shape the diplomatic discourse and facilitate the achievement of negotiated solutions.”184 In fact, coastal states are nowadays “forced” to look at their maritime space aspirations through the lens of science and the Commission is the paramount example of the important role science can play in international diplomacy. THE COMPOSITION OF CLCS AND THE METHOD OF ELECTION OF ITS MEMBERS The twenty-one members of the Commission are experts in the fields of geology, geophysics or hydrography and are elected by States Parties to the Convention from among their nationals, having due regard to the need to ensure equitable geographical representation. Pursuant to article 2, paragraph 3, of annex II to the Convention, “not less than three members shall be elected from each geographical region”. Soares, M. (2013), Statement during the Thirty-third session of the Commission on the Limits of the Continental Shelf, United Nations Head Quarters http://legal.un.org/ola/media/info_from_lc/mss/speeches/MSS_CLCS_33rd_session-11-Nov2013.pdf 184 Idem. 183 188 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 189 The current Commission is constituted by six members from Asia, five from Africa, four from “Latin America and Caribbean”; three from “Western Europe and Others” and three from “Eastern Europe”. If we analyze the membership report of the Commission since 1997, we conclude that, among the 167 ratifying countries of the UNCLOS, there are eleven nations which have managed to have their representatives in all the 4 Commissions formed yet. “PERMANENT MEMBERS” (SINCE 1997) Brazil Latin America and Caribbean Argentina Mexico Africa Nigeria Cameroon Japan China Asia India Korea Malaysia Eastern Europe Russia Elaborated by the Author. Members are elected by secret ballot, with those elected receiving a majority of two thirds of the votes of those present and voting. According to the Rules of Procedure, where the first round of voting is inconclusive, the subsequent three rounds would be restricted to the two candidates who received the highest votes in the first round. Thereafter, the next three rounds would be open to all the candidates but the three rounds thereafter would again be restricted.185 The understanding of the method of election of the officers of the Commission and of its proceedings is of utmost importance for the purpose of grasping the “political nature” of the Commission. After all, we are talking about an “electoral process”, with actual candidates of each state – less or more official – where there are negotiations eventually leading to the withdrawing of candidates of some of the states taking part of the election in favor of third ones. All this process sets up a true balance of powers and hence a hierarchy of forces. If we have a hierarchy of forces, then we are standing firmly and with both feet in political ground, no matter how hard states or candidates themselves try to refute this reality. 185 CFR http://www.un.org/press/en/2012/sea1972.doc.htm 189 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 190 MEMBERS OF THE COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF 2012-2017 NAME NATIONALITY Arshad, Muhammad Pakistan Awosika, Lawrence Nigeria Carrera, Galo Mexico Charles, Francis L. Trinidad and Tobago Glumov, Ivan Russian Federation Haworth, Richard Canada and UK Jaoshvili, George186 Georgia Heinesen, Martin Denmark Kalngui, Emmanuel Cameroon Leder, Nenad187 Croatia Lu, Wenzheng China Madon, Mazlan Malaysia Mahanjane, Estevão Mozambique Marques, Jair Brazil Njuguna, Simon Kenya Oduro, Isaac Ghana Park, Yong Republic of Korea Paterlini, Carlos Argentina Ravindra, Rasik India Roest, Walter R. Netherlands Urabe, Tetsuro Japan Uscinowicz, Szymon Poland Another paradigmatic example of serious contradiction within the Commission is the fact that its members are supposed to serve in their personal capacities even though the expenses associated to their accommodation and displacements to New York shall be supported by the states which nominated each member. Beyond this, lots of members of the Commission are acting simultaneously as consultants to 186 187 Resigned on 16 January 2015. Elected on 10 June 2015. 190 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 191 other states parties to the Convention, raising therefore ethical issues hard to conciliate.188 This situation is in deep contrast with the functioning of many other UN bodies where the expenses are borne collectively either by the UN or by the conference of states parties to the relevant treaty. This can be an obstruction to the independence of the officers and may make them more accountable to the nominating state than to the Meeting of States Parties to the United Nations Convention on the Law of the Sea (SPLOS). Accordingly, I believe it should be considered the compensation of the twenty-one officers by the UN s regular budget, which would simultaneously represent an alternative to the actual Voluntary Trust Fund for the purpose of defraying costs of participation of the members of the Commission from developing states in the meetings of the Commission (travel expenses and daily subsistence allowance). This Voluntary Trust Fund, established in October 2000 and administered by the Division for Ocean Affairs and the Law of the Sea (DOALOS), had already proven to be inefficient for the purpose of addressing the extended absences of the officers of the Commission which greatly hinder the effectiveness of Commission s work.189 In addition to these ethical and budgetary issues, there are other controversial topics regarding the functioning of the Commission. One of these topics concerns the expertise expected from the officers of the Commission which is absolutely daunting as they must consider wide-ranging issues. Bearing in mind the duty of the Commission “providing scientific and technical advice during the preparation of data to be submitted to the Commission” as well as the legal ramifications of Commission s work, wouldn t it be reasonable considering the inclusion of officers with a legal background?190 The same question is pertinent as for the inclusion of an International Seabed Authority (ISA) representative. Although nowhere in the Convention is stated ipsis verbis that the Commission has either the purpose or the function of preserving the Area, it is irrefutable that, while dealing with the various submissions, the Area is pretty much at stake. Therefore, the inclusion of an ISA element could prove very effective in order to decrease the likelihood of exaggerated claims on behalf of the coastal states. This is even more relevant given the fact that the CLCS is an autonomous treaty body which has no formal relationship with any other body created under the UNCLOS. Still on the composition of the CLCS, I argue that it would be advantageous to discuss the importance of electing younger members for the Commission by establishing a minimum percentage of officers between the 45 and 60 years old. If we look at the graphic below, we immediately perceive that the majority of the officers are above 60 years old. Notwithstanding the importance of having experienced people working in the Commission, the truth is this is a very physical UNCLOS , Annex II, art.2º, p. 5 In 2014 contributions for the purpose of defraying the cost of participation of the members from developing states had been received from China, Iceland, Ireland, Mexico and the Republic of Korea. As at the end of November 2014, the trust fund had an approximate balance of $725,000. 190 UNCLOS, Annex II, Article 3 188 189 191 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 192 demanding position due to the multiple displacements required for attending the meetings in New York. Therefore, I personally believe that younger officers would be able to perform these tasks in a more swiftly manner, thus improving the efficiency of the whole Commission. Elaborated by the Author. THE WORKLOAD OF THE COMMISSION As the number of submissions rises, the scrutiny over the work of the Commission increases along with the pressure put on its members. The magnitude of the task faced by the Commission is well beyond what was originally anticipated by the UNCLOS and thus dealing with its workload is a monumental undertaking. Number of Days spent in New York by the Members of the Commission Elaborated by the Author. 192 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 193 When the Convention was negotiated it was not thought necessary to establish a full-time body to consider submissions from coastal States, but 30 years have passed and the actual state of affairs calls for this deployment. The issue of extended absences from the Commission is a real problem and the attendance of every member at every session of the Commission is critical in order for it to function effectively and to deliver recommendations as expeditiously as possible, while maintaining a high level of quality and expertise while carrying out its functions. If we look at the average of recommendations of the Commission since the beginning of its work in 2001, it amounts to only two recommendations per year and in 2013, there was none. The absence of recommendations in 2013 is partly explained for the extended absences of some of the officers, namely Mr. George Jaoshvili (Georgia) and Mr. Sivaramakrishnan Ravindra (India), but also for the fact that, from 2012 to 2013, nearly 62% of the officers changed.191 In addition to this, plenary meetings with full translation and interpretation services could not be scheduled with respect to the sessions of the Commission held in October and November, which obviously resulted in delays in the consideration of submissions and the adoption of recommendations by the full Commission.192 Submissions and Recommendations Elaborated by the Author As of 19 May 2015, 77 submissions had been made to the Commission. Of these submissions, CLCS made recommendations on only 22. CFR Letter dated 14 April 2014 from the Chair of the Commission on the Limits of the Continental Shelf addressed to the President of the twenty-fourth Meeting of States Parties, p.5, §23 (http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N14/299/83/PDF/N1429983.pdf?OpenElement). 192 Idem, p.4, §19. 191 193 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 194 The CLCS has tried to accelerate its work by increasing the number of subcommissions entrusted with the task of considering submissions by states. Given the Commission s workload, its chairman stated in 2007 that it might take until 2035 to review all of the claims. Although the 21 members divide themselves into several subcommissions to expedite its work, Commission s workload seems to exceed its capacity, both human and financial and the time allocated to the consideration of the various submissions and frequency of CLCS meeting seems inadequate. Besides this, the subject of the conditions of service of the members of the Commission has been the main issue under debate for the last few years at the UN Headquarters of the CLCS. For a few years now it is a recurrent topic in Statements of the Chair, in the Meeting of States Parties to the Convention and even in Resolution 68/70 (2013), through which the General Assembly expressed its concern about the implications of the workload of the Commission for the conditions of service of its members. It has even been created an Open-Ended Working Group on the Conditions of Service of the Members of CLCS, who promoted in late 2014 a survey where the members expressed their frustration at not being eligible to receive insurance coverage through UN employees health insurance, in contrast with what happens with the International Tribunal on the Law of the Sea (ITLOS) or the ISA; complained about the loss of income or benefits and even career development perspectives in their regular jobs owing to attendance at sessions in New York. More generally, members stressed the great personal sacrifice involved in attending the sessions in New York every year for 21 weeks and claim for the same benefits received by other UN staff members, namely medical insurance coverage and also claim for additional working space in UN headquarters.193 All of this represents a big challenge for the SPLOS. It is within the States Parties responsibility to provide the Commission with more resources and better work conditions. It is also up to the SPLOS to compel the Commission committing with a schedule of pre-set time regarding the number of subcommissions to be established and the number of recommendations to be issued per year. Only through this formal engagement would the SPLOS be able to hold the Commission account for its activities. THE INTERACTIONS BETWEEN STATES AND THE COMMISSION While being an expert technical body with a scientific based discourse, the Commission is deeply involved in a process which is political in its very nature. It is, as Ted L. McDorman put it, “a technical body in a political world”.194 193 CFR “Survey for the information of the Coordinators of the Open-ended Working Group on the Conditions of Service of the Members of the Commission on the Limits of the Continental Shelf” (Annex) in Letter dated 14 April 2014 from the Chair of the Commission on the Limits of the Continental Shelf addressed to the President of the twenty-fourth Meeting of States Parties (http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N14/299/83/PDF/N1429983.pdf?OpenElement) 194 McDorman, Ted L. (2002), “The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World”, Faculty of Law, University of Victoria, Canada. 194 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 195 The history of exchanges held between the Commission and the Meeting of States Parties fully corroborates this thesis and it is paradigmatic of the diplomatic skills required both from the Chair of the Commission and from its other members integrating the subcommissions, who also held meetings on a regular basis with the delegations of the various submitting states.195 Besides the consultations, the Commission also receives communications from the states. For instance, at its thirty-fourth session (27 January-31 March 2014), the Commission observed that communications had been received from certain states concerning submissions, with a request to restrict the circulation of these communications to the members of the Commission. In this regard, the Commission noted the general interest of Member States of the United Nations, as well as States Parties to the Convention, in the transparency in the work of the Commission, and decided, except in relation to communications from submitting states transmitting confidential data and information, to encourage states not to restrict the circulation of their communications only to the members of the Commission to the extent possible.196 This is a sensitive issue since most states have declared their entire submissions to be confidential and even the Commission s recommendations are not fully released, which is in contrast with the modus operandi of the International Court of Justice, for instance, which has already resolved major boundary disputes without resorting to such a level of secrecy. Although the Commission makes available a summary of concluded and pending work, the Commission s Rules of Procedure do not make it a very transparent decision-making body, which morally undermines its own claim for more transparency.197 A good example of this lack of transparency is posed by the manner in which the Commission dealt with a recent case of potential breach of confidentiality by a member, concerning a divulging of information pertaining to confidential correspondence. On 4 August 2014, the Commission was informed by its Chair of a potential breach of confidentiality that had allegedly taken place during the international workshop on the new developments on the Law of the Sea, which was held at the University of Xiamen, China, from 24 to 25 April 2014. The allegations concerned the potential disclosure of internal procedures of the Commission and the disclosure of information contained in a note verbale from a state, which was not in the public domain. The Commission decided to The United Kingdom (29 meetings) and Brazil (20 meeting) are two major examples of these dynamics. 196 SPLOS/270, Letter dated 14 April 2014 from the Chair of the Commission on the Limits of the Continental Shelf addressed to the President of the twenty-fourth Meeting of States Parties (http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N14/299/83/PDF/N1429983.pdf?OpenElement) 197 Subedi, Surya P. (2011), “Problems and Prospects for the Commission on the Limits of the Continental Shelf in Dealing with Submissions by Coastal States in Relation to the Ocean Territory Beyond 200 Nautical Mile”, The International Journal of Marine and Coastal Law (26), p.424 195 195 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 196 refer the matter to the Committee on Confidentiality in order to establish the facts. The Committee constituted an investigating body comprising all five of its members (Messrs. Park (Chair), Heinesen, Kalngui, Marques and U cinowicz). The Committee on Confidentiality endorsed the conclusion reached by the investigating body that the available evidence had not been sufficient to conclude that a breach of confidentiality had taken place regarding the divulging of information pertaining to the internal proceedings of the Commission at the international workshop. On the other hand, available evidence was sufficient to conclude that a breach of confidentiality had taken place regarding the divulging of information pertaining to confidential correspondence (note verbale not in the public domain). Following a thorough examination of the matter, the Commission decided to inform the SPLOS of the willingness of the member concerned to cooperate to clarify this complex question in the interest of transparency and the Chair of the Commission met with a representative of the State Party affected by the breach of confidentiality, whom expressed his appreciation to the Commission and undertook to bring the information to the attention of his Government.198 This particular case is most revealing of the importance of notes verbales within the interaction between the Commission and States Parties, but it is not the only case. The process of submission of the proposals is bilateral in its origin (stateCLCS) but it rapidly gains an interstate dynamic as every state might react to the executive summary of each submission through the notes verbales. If we look at the Portuguese submission, we quickly realize that Spain used this feature (the notes verbales) as a “thrown weapon” in order to try to leverage its position in the context of the disagreement with Portugal over the statute of Ilhas Selvagens. The history of interactions goes as follows. In the note verbale issued in 10th of June 2009, it is said that the Government of Spain “does not object to Portugal s request that the Commission should consider its submission documentation relating to Madeira Islands Region”. In July 2013 however the Government of Spain notes: “while the Portuguese Government whishes the United Nations to recognize its exclusive economic zone and continental shelf in 2015 and to include the Ilhas Selvagens in both of them, Spain does not agree that the Ilhas Selvagens in any way give rise to an exclusive economic zone. It does however agree that they give rise to a territorial sea as it considers them to be rocks (…) Spain also reiterates its previous objection, whereby it refused its consent to any delimitation of exclusive economic zones between Madeira and the Canary Islands”199 CFR CLCS`s Thirty-fifth session, New York, 21 July-5 September 2014 (http://www.un.org/ga/search/view_doc.asp?symbol=CLCS/85) and thirty-sixth session, New York, 20 October-28 November 2014 (http://www.un.org/ga/search/view_doc.asp?symbol=CLCS/86) 199 Note verbale Spain 5 July 2013 (http://www.un.org/depts/los/clcs_new/submissions_files/ prt44_09/esp_re_prt2013e.pdf) 198 196 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 197 In 6 September 2013, the Portuguese government reacted as follows: “the Portuguese continental shelf beyond 200 nautical miles, as delineated in the Portuguese submission (…) does not include in any part the natural prolongation of the land territory of Ilhas Selvagens due to their geographical location. As a result, the Ilhas Selvagens are not, in any circumstance, reflected in the Portuguese submission”.200 In this same note verbale, the Portuguese government takes also the opportunity to confirm the absence of unresolved disputes with Spain, despite the fact that there are no agreed maritime boundaries between Portugal and Spain. In 2015, after the partial submission by Spain on the limits of its continental shelf in the area west of the Canary Islands (17 December 2014), and following a note verbale from Portugal whereby no objection was raised as to the consideration of its content by the Commission, the Government of Spain decides to do a “strategic retreat” by reiterating the statement in its first note verbale of 10 June 2009 and by abstaining from any direct reference either to the exclusive economic zone entitlement or even to Ilhas Selvagens. Furthermore, Spain communicates to the Commission “its willingness to undertake, in agreement with Portugal, the lateral delimitation of the continental shelf between the two countries as soon as the Commission has examined their claims”. Although the Commission have never reacted to any of the notes verbales, this case is paradigmatic of the Commission on the Limits of the Continental Shelf as a “political arena” where states fight for their interests. THE POSSIBILITIES OF OTHER STATES TO HAVE AN IMPACT Still on the interactions between the Commission and states, Annex I of the Rules of Procedure, standing for “Submissions in case of a dispute between States with opposite or adjacent coasts or in other cases of unresolved land or maritime disputes”, is the point when other states can exert most influence. For the outer limit of the continental shelf beyond 200 nautical miles, the coastal State should consider the impact the claims of neighboring states and the positions of other third states might have on the making of a submission to the CLCS. Other States usually may refer to the validity of baselines, questions in respect of the application of the provisions of Article 76 or disputes over territory. Such issues do not prevent a coastal State from making a submission to the CLCS, since Article 76 (10) provides: “the provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts”. Moreover, article 9 of Annex II to the UNCLOS Note verbale Portugal 6 September 2013 (http://www.un.org/depts/los/clcs_new/submissions_files/prt44_09/prt_re_esp_2013_09_06_13_14_ 21_886.pdf) 200 197 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 198 provides: “The actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts.” The experience to date indicates that it is likely that States in most cases will not reach agreement on the bilateral boundaries before making a submission to the Commission. Nonetheless, Rule 46(1) of the Rules of Procedure and Annex I to the Rules outlined a mechanism, in accordance with which coastal states “may” make their submissions and the Commission “shall” consider submissions where there is a “dispute” in the delimitation of the continental shelf between opposite or adjacent States and “other cases of unresolved land or maritime disputes”. The primary condition is that the Commission will “not consider” submissions where a land or maritime dispute exists unless all states that are parties to the dispute have given their prior consent, meaning they agree to the consideration of each other’s’ submissions. Only then the Commission would be in position of issuing recommendations. A good example of the manner of working of the Commission in this type of cases is given by the Myanmar-Bangladesh conflict. Here the Commission abstained itself from establishing a subcommission for the consideration of Myanmar s submission “owing to the absence of an official communication from Bangladesh” indicating that consent existed on its behalf for the respective consideration. Once communications were made both by Bangladesh and by Myanmar, the Commission took note of those communications but decided to further defer the consideration of the submission of Myanmar as there had been no developments indicating that consent existed on the part of both states for this consideration. The process of defining the outer limits of the continental shelf, as it is defaulted in Article 76, is not intended to settle coincidentally in any way delimitations of overlapping areas of continental shelf. The role of the Commission is to assist or undermine the legal or political legitimacy of a state claim to delineate its continental margin outer limit. The greater the coincidence between the claim of the state and the recommendations of the Commission, the more likely is the recognition of legitimacy of that outer limit by other states. The UNCLOS in any case does not confer a right on third states to participate in the process involving the CLCS and the coastal state however Article 9 of Annex II to the UNCLOS indicates that matters related to the delimitation of boundaries between States are first of all the concern of the states involved. In other words, rather than involving third States in the consideration of a submission, the Commission is to “insulate” itself from such matters.201 The lodging of observations on a submission by a third state with the request to take them into account in the consideration of that submission raises fundamental questions concerning the nature of the procedure to establish the outer limits of the continental shelf beyond 200 nautical miles. In this context, the case Elferink, Alex G. Oude (2009), “The Establishment of Outer Continental Shelf Beyond 200 Nautical Miles by the Coastal State: The Possibilities of Other States to Have an Impact on the Process”, The International Journal of Marine and Coastal Law (24), p. 555 201 198 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 199 involving Brazil and the United States (US) is a good indicator of how the Commission handles this type of “interference” by third states. The US raised some doubts concerning the submission by Brazil on issues related with sediment thickness and the Vitoria-Trindade feature. The US comments were not framed in the terms of Annex I to the Rules of Procedure of the Commission, a point which was underlined in the response by the CLCS. The Commission further observed that under Annex II to the UNCLOS and the Commission’s own Rules of Procedure, other states can play only one role in the case of a dispute between States with opposite or adjacent coasts or in other cases of unresolved land or maritime disputes and the subcommission charged with examining the Brazilian submission was instructed to disregard the US comments. The fact that observations by third states will not be taken into account in the consideration of a submission does not mean however that such observations cannot make an impact on the Commission s recommendations. Such remarks may have an indirect impact drawing the attention of the officers of the Commission to issues that might require particular attention in the consideration of a submission. Opening the door to the “formal” consideration of comments by third states in the submission process would turn the bilateral procedure involving the Commission and a coastal state into a process involving other states, increasing even more the complexity of an already very complex process. CONCLUSIONS The Commission on the Limits of the Continental Shelf is a unique body in the context of the United Nations and it has a delicate position in the political framework of the delineation of national and international maritime spaces. State practice suggests that states may consult on a broad array of issues concerning submissions at the preparatory stage, from negotiations on bilateral maritime delimitation to defining common positions in relation to a submission. The course of these discussions may have a significant impact on the approach states take in lodging a submission to the CLCS. Although being frequently labeled as a technical body, the truth is that Commission’s recommendations are subject to a great scrutiny from the states parties to the UNCLOS and others, having thus a great impact in the international relations. At the same time, the UNCLOS does not provide for the settlement of disputes between the Commission and States Parties and the possibilities for objecting to outer limits which have been established on the basis of the recommendations of the Commission are more limited than would be the case for other maritime limits that have been established unilaterally by a coastal state precisely due to the involvement of the Commission in the process. The Commission will not take up comments by other states in the consideration of a submission, which is in accordance with the UNCLOS since the consideration of a submission entails an interaction between the coastal State and the 199 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 200 Commission and does not envisage any role for third States. Nevertheless, this does not mean that other states cannot influence the process, even if indirectly. As to the main challenges ahead of the Commission, the financial challenge is crucial to address in order to improve the effectiveness and efficiency of the Commission, namely by having a full-time team of experts preparing the recommendations in queue. This move would also be advantageous for the purpose of resolving the ethical issues currently posed by the situation of having Commission’s officers who should act on an individual basis but whose displacement and accommodation expenses are still defrayed by the nominating member states. Another major challenge ahead of the Commission is the Arctic. The development of Arctic oil reserves in the last decades reflects a sensitive balance of powers in the region which will test, more than ever, the dexterity of the officers of the Commission in dealing with the political interests present in this region.202 The political context of ocean boundary-making has already proved that states are not willing to delegate to third-parties the delimitation of its maritime frontiers despite they are aware of the importance of working together with bodies such as the CLCS so that their claims are better legitimated.203 The extension of continental shelves beyond 200 nautical miles represents for most of coastal states the last remaining opportunity to extend their territory and the Commission is at the center of this process. The role played by the Commission has an impending political nature which is inescapable since the delineation of the continental margin outer limit aims at the subsequent delimitation of an international frontier which represents the outer limit of the national sovereignty of a given state. This is the reason why we must realize that ultimately boundary-making is political and not technical. It is impossible for the Commission to place itself apart of the political framework in which it is deeply involved, although it is true that the sovereign rights of delimitation of the frontiers keep on the sphere of the states. It is within this context that the Commission persecutes the goal of rendering exaggerated claims less likely and less legitimate, thus promoting pathways for the ultimate purpose of the United Nations: the maintenance of international peace. BIBLIOGRAFIA Coelho,P. N. (2011), “How Legal is Article 76 s Continental Margin?” in Maria Scientia, Lisboa, Universidade Católica, pp.101-112. Correia, António N. (2014), “A Extensão da Plataforma Continental - Tensões e Górski, Thomasz (2009), A Note on Submarine Ridges and Elevations with Special Reference to the Russian Federation and the Arctic Ridges, Ocean Development & International Law, 40:51–60 203 Fabres, Joan et al.(2010), “Continental Shelf - The Last Maritime Zone”, Grid Arendal UNEP 202 200 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 201 Conflitos”, O Mar no Futuro de Portugal, Centro de Estudos Estratégicos do Atlântico, Lisboa, pp. 207-217. Fabres, Joan et al.(2010), “Continental Shelf - The Last Maritime Zone”, Grid Arendal UNEP. Dupuy, R.J and Vignes, D. (1985), ‘La mer sous compétence nationale’ in Traité du Nouveau Droit de la Mer, Económica, Paris. Elferink, Alex G. Oude (2009), “The Establishment of Outer Continental Shelf Beyond 200 Nautical Miles by the Coastal State: The Possibilities of Other States to Have an Impact on the Process”, The International Journal of Marine and Coastal Law (24), pp. 535-556. Górski, Thomasz (2009), “A Note on Submarine Ridges and Elevations with Special Reference to the Russian Federation and the Arctic Ridges, Ocean Development & International Law”, 40:51–60. Jares, Vladimir (2009), “The Continental Shelf Beyond 200 Nautical Miles: The Work of the Commission on the Limits of the Continental Shelf and the Arctic”, Vanderbilt Journal of Transnational Law, Vol. 42:1265. Macnab, Ron (2008), “Submarine Elevations and Ridges: Wild Cards in the Poker Game of UNCLOS Article 76”, Ocean Development & International Law, 39:223–234. McDorman, Ted L. (2002), “The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World”, Faculty of Law, University of Victoria, Canada.Serdy, Andrew (2011), “The Commission on the Limits of the Continental Shelf and its Disturbing Propensity to Legislate”, The International Journal of Marine and Coastal Law (26). Soares, M. (2013), Statement during the Thirty-third session of the Commission on the Limits of the Continental Shelf, United Nations Head Quarters. Subedi, Surya P. (2011), “Problems and Prospects for the Commission on the Limits of the Continental Shelf in Dealing with Submissions by Coastal States in Relation to the Ocean Territory Beyond 200 Nautical Mile”, The International Journal of Marine and Coastal Law (26). 201 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 202 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 203 18. PORTUGAL AND THE ATLANTIC OCEAN: THE CHALLENGES-RESPONSES COMPLEX Pedro Borges Graça Institute of Social and Political Sciences of the University of Lisbon. Researcher at the Center for Administration and Public Policies. Principal Investigator of the Project. Director of the Center for Strategic Studies of the Atlantic. 1. An Urgent Time for Portugal and the Atlantic Ocean: The Concept of Tempo Tríbio In these times of “Anglobalization”, as Niell Fergurson call it in “Empire” (2004: xxiv-xxviii), Portuguese speaking authors are fully ignored in the social sciences field, particularly amidst theorists in the fields of International Relations and Strategic Studies. The concept of “tempo tríbio” is therefore most unknown among English speaking authors as it was defined by the Brazilian author Gilberto Freyre (1981: passim) and followed by the Portuguese Adriano Moreira (1997: passim), a reference in the Portuguese speaking world in what concerns international relations theory; “tempo tríbio” refers to the understanding of social reality as a dynamic process of continuous integration of the Present with the Past and the Future. That is, people, groups and institutions, including states and nations, are what they are in a given Present from context and circumstances, from consequence of the facts produced in the Past until that given moment and from strategic projects of Future that are been designed and debated in that same moment. So, when this key concept is applied to the study of the process of social interaction that is taking place in Portugal regarding its maritime space, it opens the understanding of the situation as a longue durée link of actually nine centuries of Portuguese “atlantist” history that was literally broken in 1974-75 by an exclusive “europeist” strategic option in terms of foreign policy. This was only questioned almost a generation afterwards when Portugal signed the agreement of constitution of the Portuguese speaking countries community in 1996 and the realization of the International Exhibition in Lisbon on the Oceans in 1998. 203 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 204 The beginning of the 21st century saw therefore the emergence of a new interest for the Atlantic Ocean in Portugal along with a perceived growing economic crisis against which Portugal seems to be destined to fight continuously and loose. The process of the extension of the continental shelf has appeared as a mobilization factor for the access to the foreseen and forecasted resources of the sea, to defeat that destiny, but the truth is that ten years after the first official strategic report on the matter – O Oceano: Um Desígnio Nacional para o Século XXI204 (CUNHA.2004) - there is still neither clear direction nor minimum relevant results in terms of maritime economy growth or even, for instance, the development of relevant businesses around maritime expertise. Likewise, albeit there is an official and efficient organism for the study of Portuguese continental shelf for the construction of the extension proposal for the United Nations Commission on the Limits of the Continental Shelf (CLCS), maritime research and technology projects directly represents only 3,6 % of the official scientific financing framework (MARTINS in GRAÇA&MARTINS.2014:109) So, what tempo tríbio approach tell us is that, at the level of government decision-making as in private sector, currently Portugal is still in a process of integrating Past and Future through oral and written discourse with no substantial practical mainstream public policies for the exploitation of its territory in the Atlantic Ocean. The most visible fact, with most strategic implications, is the lack of a sound political coordination of the sea policy. More than ten years after that official strategic report, the coordination is at the moment divided into several official departments, what means that in reality the situation is characterized by an effective incoordination, with immediate and growing negative consequences for the exploration and exploitation of the Portuguese maritime territory, whose area is huge. Even without the extension of the continental shelf, it represents 40% of the continental territory of European Union. 2. The Challenges-Responses Dynamics in the History of Portugal Portugal is an independent state since the 12th century. Around 1250 its continental territory was configured with the conquest of Algarve. In the 15th century the desert archipelagos of Madeira and Azores were discovered and populated by the Portuguese, already a very consistent state with a very conscious nation, a pioneer version of the modern nation-state. In that same century, Portugal expanded fully into South Atlantic with the discoveries of its desert islands and archipelagos and the entire African Coast, the maritime passage to Indian Ocean and Asia and finally Brazil. The expertise of sailing in the Atlantic environment was levelled to scientific excellence, and since that time, until the Portuguese final decolonization process in 1974-1975, the Atlantic Ocean was the “interface mode” of national budget equilibrium. After this last date, and until now, in 2015, for virtually two generations, Portugal entered into a historic period of continuous national budget disequilibrium, only balanced in 1204 “The Ocean: A National Purpose for the 21St Century” 204 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 205 some way for short periods by IMF intervention in the late 70’s and again in the beginning of the 80’s, the filiation with European Community since the second half of the 80’s and again recent IMF and European Union intervention from 2011 to 2014. In fact, throughout history, the Atlantic Ocean was the way in which Portugal escaped the forced cornered and isolated land position towards Spain and Europe. By way of this position, Portugal became a maritime trading post between North and South Europe in medieval ages consolidating and heritage from Roman Empire times, and then expanded its maritime routes and trade along South Atlantic. From Arnold Toynbee’s point of view, “the greater the challenge, the greater the stimulus” [1946 (1987, I-VI:140)]. The wide open sea was indeed a colossal and stimulating challenge for the Portuguese and the response matched it, much in terms of strategic planning, intelligence production and scientific knowledge, namely in the fields of astronomy, of nautical engineering and architecture, and of geography, both physical and human; but less in terms of creating a last and enduring economic empire. The Portuguese practically invented and launched globalization in the 15th and 16th centuries and Portugal was for quite a while far ahead of any country on the understanding of the global dimension of Human Kind and its unity as Humanity albeit cultural differences. The acknowledgment of that role is in Thomas More’s masterpiece Utopia, published in 1516, concretely with the main character Rafael Hitlodeu, a Portuguese noble, navigator and sage that throughout the book pronounces the speech “of a republic’s best state”. Nevertheless, it is a fact that the response faded away from the 16th century onwards, although the colonization until the 19th century of Brazil, more than 90 times the size of Portugal, was a consequent challenge whose response is impressive in what concerns the dimension and political unity of the country. A simple comparison with the states partition of South America, the rest being all Spanish speaking countries, is illuminating. The same principle applies to the colonization of Angola and Mozambique during the 20th century, just to name the two biggest Portuguese African colonies, respectively 14 times and 8 times the size of Portugal. With regard to the Great Discoveries, Hegel saw the Portuguese as a people who had been given a historic mission because of its special maritime conditions (HEGEL. 1965: 216,228), but Alfred Mahan referring to national character stressed the fact that Portugal was note able to develop agriculture, industry and commerce from such conditions, and that a scarce 5% of the gold from Brazil in the 18th century profited the country, seeing this as “a striking example of the difference between real and fictitious wealth” (MAHAN. 1890: 52). So, one can say that the Portuguese had an unceasing great long challenge inasmuch as, being such a small and peripheral and cornered European country with poor demography and very small inner market, for centuries had to deal with a succession of derived challenges that at the end, as a people, were unable in formulating an effective response to improve and sustain national wealth throughout history as other European countries have done. In such terms, the main cause was 205 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 206 an “excessive challenge”, as Toynbee put it? (TOYNBEE. [1946]1987, I-VI: 140). Not quite in those terms, because in Toynbee’s analysis the challenge of the Portuguese Discoveries had been stimulated by the Moors pressure in the Middle Age and the response ended in the 17th century because of the lack of that pressure and consequently Portugal “began to relax and lose the lead among the competing Powers of its own Western World” (idem: 124-125). Indeed, this explanation seems far from historic truth. Long before that pressure was released the Portuguese met maritime commerce and economic decadence in the beginning of the 16th century followed by political occupation and dominance by the Spanish between 1580 and 1640.205 In fact, the explanation relies in the conjunction of excessive challenge and strategic exhaustion: the first due to the extension and dispersion of overseas territories and prolonged demographic and sociological effort along with an orthodox catholic non-capitalist ethics, with no decentralization dynamics for society and private entrepreneurship from the absolute centralized power of the Portuguese Kings; the second due to the historical continuity of that challenge along with all its implications in terms of financing, economics, logistics, scientific and technological capacities, and namely the lacking of capacity to build an industrial structure oriented for commerce and exportations following the Discoveries. Several attempts to do so failed, as in the period of Methuen Treaty with England in the turn of 17-18th centuries or with Marquês de Pombal government in the third quarter of that same 18th century. This pattern is visible throughout the contemporary history of Portugal until 1974-1975 and is still modulating Portuguese economy in this beginning of the 21st century. The key question today is whether Portugal will be able to overcome the challenge of the exploration and exploitation of the Atlantic Ocean resources and possibilities for the benefit of national economic and social development, and in an environmental sustainable way, or will it fail before it. 3. A Huge Challenge: The Dimension of Portuguese Maritime Territory In fact, Portugal is facing a huge challenge as a fully Atlantic State with its islands and continental territory. It has the 4th largest Exclusive Economic Zone of the European Union, with a size of 1.7 million km2, which corresponds to about 19 times its land area and 40% of European Union’s territory (PACHECO apud GRAÇA&MARTINS.2014: 25-35). It is therefore a huge area, even when compared with most big maritime countries in the world. Moreover, Portugal sub205 The poetic obra-prima of Luís de Camões, Os Lusíadas, ilustrastes the great admiration of the Portuguese of the 16th century for the extraordinary achievement of their ancestors one century before them, moreover in such poor demographic conditions of approximately 1 million inhabitants. The wrongly named Cantino Planisphere or Cantino World Map (upon the italian spy Alberto Cantino who obtained that planisphere in Lisbon, in 1502, through bribery in a covert operation), and whose correct designation in Portuguese is “Padrão Real” (King’s Pattern), testifies the advanced scientific knowledge of Portugal, the extension and dimension of the enterprise and the competitive advantage in comparison with all the others European nations, including Spain with Colombo that attained the Caribbean islands convinced that he was discovering India and the Orient. 206 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 207 mitted to the United Nations a proposal for the extension of its continental shelf, resulting in an increase of about 2.1 million km2, thus totalling 3.8 million km2 or 42 times its land area. Therefore, this very small country is about to become one of the largest oceanic countries of the world (11th) with a huge economic potential for its growth and development. Still, with an average of 200.000 ships sailing Portuguese waters every year, the Search and Rescue Responsibility area of Portugal (SAR) adds maritime dimension to Portuguese shared governance of the Atlantic Ocean: 62 times the land area of Portugal and almost the size of the United States Atlantic SAR or one third of the North Atlantic206, as the map below shows. It’s worth notice that between 2010 and 2012 there were executed 1937 operations and rescued 2031 persons in the Portuguese SAR, meaning a recognized world reference indicator of 98% success.207 Concerning deep waters, the deepest seabed lies at 6.000 meters, with an average of 3.000 meters and 95% of the area under 1.000 meters. One immediate consequence of the extension of the continental shelf process was indeed the acquisition of an underwater robot for the cartography of the seabed with capacity to attain the 6.000 meters, and the effective underwater knowledge that it is producing. These geographic circumstances and its geologic and biologic characteristics are synonymous of potential resources of several kinds that might be the solution for the historic Portuguese economic crisis (SILVA.2014). But the exploration, http://www.emfa.pt/www/noticia-786 http://www.marinha.pt/pt-pt/meios-operacoes/comando-apoio/centros/Paginas/Busca-Salvamento.aspx 206 207 207 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 208 exploitation, knowledge and surveillance of the Atlantic Ocean is in fact a huge challenge for Portugal with both internal and external dimensions, including safety, security, environment and governance. 4. The External Challenges By external challenges I mean the set of international political conditions or factors that somehow establishes a framework into which Portuguese sea public policies are called to act as adequate responses. First of all, there was a basic challenge to which a response has been already given: the mapping of the Portuguese continental shelf for the proposal of the extension of its limits, consigned to the United Nations on May 11th, 2009, as seen below. Source: www.emepc.pt/a-submissao-portuguesa Now, Portugal has to wait for the decision, and this really is not a factor that should collide or weaken the resolve to pursue the development of national maritime economy. For that matter, it cannot justify the lack of designing, planning 208 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 209 and implementation of robust maritime public policies, this is, there is no plausible justification for negative or impeditive implications for political decision-making. Another and immediate challenge is the European Integrated Maritime Policy (IMP) created in 2007. Portugal was a key actor in the designing phase of this policy, namely in 2006 while contributing to the “Commission Green Paper: Towards a future Maritime Policy for the Union: a European vision for the oceans and seas”, in line with the Lisbon Strategy, as testified in the Summaries of EU Legislation.208 Indeed, referring to José Manuel Barroso and the usual decisionmaking process in European Commission concerning public policies initiatives, John Richardson states that IMP is “one of those rare examples of an idea which actually came from the Commission President” (RICHARDSON apud GRAÇA & MARTINS. 2014: 281).209 But, from that stage, Portugal will have to deal in the future with a harsh political and common decision-making reality whose proportional voting criteria depends on national demographics rather than national maritime areas. In fact the hugeness of Portuguese sea – for instance in comparison with German or Spanish seas - doesn’t correspond to its importance in the voting hierarchy of European Union, what means that future Portuguese maritime policies are most vulnerable to a possible, indeed probable path of European shared sovereignty on related maritime issues. In this context, the kind of leadership that Portuguese functionaries and advisers showed during José Manuel Barroso’s presidency on maritime policy issues was somehow more fictitious than real, and therefore it tends to be levelled in the future by the low Portuguese capacities for the development of national maritime economy and the exploration and exploitation of the Atlantic Ocean. In a pessimistic view, one could quote the ancient biblical and common Portuguese saying that “those who plant winds collect storms”. Another challenge comes from the closest West Atlantic neighbour of Portugal, the United States, whose maritime exploration and exploitation power is unmatched. The present strategic thinking and formulation in a number of public departments, think tanks, universities and research centres towards the Atlantic Ocean will continue to develop and pressure the creation of a governance framework that will contemplate the encounter of financing with environment sustainability from Atlantic partners. With the goal of promoting a “New Atlantic Community”, the Atlantic Basin Initiative, led by the Center for Transatlantic Relations (CTR) of Johns Hopkins University is most active in this domain and the Spanish ex-prime-minister, José Maria Aznar, has a very relevant role on it.210 The Map below, presented at the Sea Seminar in May, 2013 at the School of Social and Political Sciences of the University of Lisbon by Paul Isbell from CTR is a good example of the proposal to implement Atlantic’s governance and must be noticed how North Atlantic shortened way from the anglo-american axis (and matching Portugal’s SAR) and how South Atlantic’s area is big and central. http://europa.eu/legislation_summaries/maritime_affairs_and_fisheries/maritime_affairs/l66029_ en.htm 209 John Richardson headed the task force for IMP since 2005. 210 http://transatlanticrelations.org/sites/default/files/EPG_Eminent_Persons_March_2013.pdf. 208 209 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 210 In this context, Portugal is also called to give a response of initiative and leadership in Atlantic issues and agenda, namely north-south issues, that corresponds to the “weight” of its maritime territory, which will be even bigger if the claim of the extension of the continental shelf is approved.211 A historical or natural challenge, related with the two previous ones, is the network in which Portugal is involved with Portuguese speaking countries, namely the Comunidade dos Países de Língua Portuguesa (CPLP). This multilateral organization is already working in strengthen its ties on “assuntos do mar” (sea issues) with the “Estratégia da CPLP para os Oceanos” (strategy for the oceans) elaborated in 2009, the biennial “Reunião dos Ministros dos Assuntos do Mar” (ministers of the sea meetings) that started in 2010, the “Secretariado Técnico Permanente dos Assuntos do Mar” (task force for the sea) and among other projects the plans to create an “Observatório de Informação Estratégica Marítima” (strategic maritime information observatory)212. However, the overall task seems to be very uncertain in a short-medium term due to the very slow and somehow shifting decision-making process of the organization. For instance, the biennal meeting of 2014 did not happened. On the other hand, there is no sound articulation with bilateral relations. It is not certain, for example, if the interests and concerns of Portugal relating the Atlantic Ocean are the same of Brazil,213 or even if there is enough financial capacity 211 To fully understand the dynamics of this “movement”, see Paul Isbell.2012. Energy and the Atlantic. The Shifting Energy Landscape of the Atlantic Basin. Washington: The German Marshall Fund of The United States; and John Richardson et alii.2012. The Fractured Ocean. Current Challenges to Maritime Policy in the Wider Atlantic. Washington: The German Marshall Fund of The United States. 212 http://www.cplp.org/id-3826.aspx 213 See Luís Alexandre Carta Winter essay in this book. 210 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 211 to boost a common “lusophone” strategy for the oceans. The recent and immediate history of CPLP is very much unfavorable to an optimistic foresight on that capacity (GRAÇA.2008). These particular aspects are critical for any assessment of the situation because, besides Brazil and Portugal, the other Atlantic members of CPLP are diverse in territory dimension and financing and maritime capacity, not only in scientific knowledge but also in terms of naval power and ocean surveillance. Yet, in respect to South Atlantic, Brazil is in fact the major power in all aspects, what tends to be forgotten or downgraded in the analysis produced by North Atlantic authors and institutions like those quoted before with regard to the Atlantic Basin Initiative. Concerning Atlantic Ocean governance proposals for the future, there is a traditional dualistic approach in terms of geography that divides it in North and South, with North Atlantic countries currently considering the Gulf of Guinea as a matter of security concern and pretext to have a military presence there. And Portugal has an aligned position in those North Atlantic countries frameworks. Now, taking in consideration the position of Brazil, the question is that in a geopolitical perspective there is what we can call a Central Atlantic besides North and South Atlantic dividing that links these two parts and dominates geographic and maritime areas of the later, not to speak in geostrategic terms and south-south cooperation (See Schematic Map below). In other words, Central Atlantic is South Atlantic’s core. So, Brazil’s claim is that it must have a leading role in that Central Atlantic and that is why the United States (US) and France were invited for the exercise CRUZEX V in 2010, and there was no contradiction at all in that invitation about Brazil’s dislike of the presence of NATO or US in South Atlantic, publically and repeatedly stressed by Brazilian authorities, contrary to the view expressed by Armando Marques Guedes in “The Fracture Ocean” (RICHARDSON.2012:39). Moreover, at that time it was at stake the decision to purchase about forty jet fighters to US, France or Sweden, a contract that would eventually be signed with Swedish SAAB constructor in 2014.214 In practice, this is a strategic option by Brazil that establishes a knowledge transfer and shared industrial project partnership that will keep way military technology dependency from major North Atlantic powers. http://www.cavok.com.br/blog/f-x2-jobim-deve-anunciar-rafale-vencedor-durante-a-cruzex/ and http://www1.folha.uol.com.br/poder/2014/10/1538928-brasil-assina-compra-de-cacas-por-us-54bi.shtml 214 211 New Challenge of The Atlantic_Layout 1 15/07/20 14:59 Page 212 Schematic Map THE PRESENCE AND RELEVANCE OF BRAZIL IN THE SOUTH ATLANTIC USA EU AZORES PORTUGAL MADEIRA SOUTH ATLANTIC CAPE VERDE BRAZIL BRAZIL CANÁRIAS SENEGAL NIGERIA BRAZIL BRAZIL S. TOME AND PRINCIPE BRAZIL BRAZIL ANGOLA BRAZIL SOUTH AFRICA In this context, the challenge that Portugal faces in the context of CPLP strategy for the oceans, particularly in what concerns South Atlantic, demands a complex response that is equally strategic and not only of diplomatic nature, and whose timing is now. It is really a national option of historic proportions, a clash between strategic visons of the future: the strategic european option and the strategic atlantic option. 5. The Internal Challenges The already known resources in the Portuguese sea are somehow impressive, and much reduced areas have been explored until now (SILVA.2014). In the Azores Islands, in the heart of the Atlantic Ocean, for instance, hydrothermal vents are being discovered and are potential sources of copper, lead, zinc, silver and gold. In what concerns oil and gas, there are favourable geologic conditions in the deep and ultra-deep offshore west of the Portuguese continental margin. In the southern offshore, next to Moroccan maritime territory, the discovery of mud volcanoes also presents probabilities of future exploitation of methane along with oil and gas. In addition to all this, besides others possibilities there are a vast mass of marine biological resources for several industry applications, namely the pharmaceutical industry. 212 New Challenge of The Atlantic_Layout 1 15/07/20 15:00 Page 213 Thus, facing a permanent economic crisis for almost one decade, and with a historical path that shows economic growth linked with the Atlantic Ocean and across it, the Portuguese are being challenged with building wealth and prosperity in the economy of the sea and therefore to put in place public policies and private investment efforts leading to a situation where the percentage of the sea in GDP would be much higher than the current 3%. Last year, the government designed a so called “national strategy for the sea 20132020”, that aims to increase the percentage to 4.5% during that period, but critics are arising with the observation that until now the “strategy” never took off from the document. In fact, Portugal is facing a set of challenges regarding the progressive implementation of the economy of the sea that can be divided in two groups: one has to do with security and governance; the other with the combined scientific, economic and environmental. The truth is that it is not possible to boost the ocean economic potential if there is a weak sea public policy structure in terms of coordination and functional leadership, and correspondent lack of investment capacity. To address this last problem, strategic international partnership options are essential and must be defined timely. This debate is happening know in Portugal and, despite the urgency, responses are not yet so clear and timely as they should be, since it deals with the questioning of geoeconomics options in recent Portuguese history regarding Europe, the United States and the Atlantic Portuguese Speaking Countries. But time flies and Portugal is in urgent need of scientific, technological and Investment capacity to boost its ocean economic potential. As the Portuguese economy is not generating gains to be applied in sea businesses, is foreign investment practically inevitable to fill the gap? The subsequent question is how to negotiate that investment in a way that will not compromise or even engulf Portuguese sovereignty over its sea resources, that is without becoming too much dependent on foreign investment. Two positions can be observed at the moment among Portuguese maritime economy decision-makers on that matter: explore first and negotiate later; negotiate first and explore later. The first one argues that it is better to spend more time acquiring and accumulate knowledge on sea resources in order to negotiate out of a strong position; the later argues that time is money which is urgently needed for the exploration and exploitation process. How will these two positions evolve in the near future? Are they reconcilable or is there only room for just one? The most relevant and even crucial question, still without a clear answer and without which it will not be possible to respond with consistency to any of the others challenges is whether the decision-making process in terms of maritime public policies must remain decentralized or not? In fact, the observation of the situation today indicates there is no clear division on that matter among decisionmakers, nor clear statements by the two main political forces on their electoral programs for the near future. Nevertheless, from the same observation angle, 213 New Challenge of The Atlantic_Layout 1 15/07/20 15:00 Page 214 before the hypothesis of a more centralized framework to improve coordination of the public sector and consequent facilitation of the private sector, it seems that two scenarios are in order: a deputy minister of the prime-minister for the sea or a double tutorage between the ministry of agriculture, fisheries and sea and the ministry of the treasure. 6. A Route into the Future: the responses so far and those that would be necessary by decision-makers It can be said that the movement of strategic reorientation for the sea in Portugal has been given fruits since it was launched almost one generation ago. The proposal for the extension of continental shelf before the United Nations is surely its most significant aspect, and it can been seen that a completely empty space was filled in terms of political discourse and civil society growing consciousness regarding the dimension and potential of the Portuguese sea and the wealth that can be obtained from its biological and geological resources. So, for the moment, although there are more words than actions, Portugal is in a path of responding to the new challenge that the Atlantic poses once again after nine centuries of history. The vital response lies however in the political domain because that challenge requires the overpassing of the incoordination situation that constitutes nowadays the framework of Portuguese maritime public policies for the sea. But, if the scenario above referred of the “double tutorage” would be put implemented, albeit much in accordance with traditional Portuguese political culture, it would express a tendency to reproduce and further increase that incoordination situation. So, the crucial, the vital factor that requires a strong attention by decisionmakers most simply is coordination. There is no vision, no strategy, no planning, no exploration and exploitation of the maritime resources that will succeed without coordination. Underlining this seems a La Palisse expression, but simple and clear the idea may be, the observation repeatedly shows it is the main vulnerability of Portuguese public policies for the sea. But, along wit this vital factor, in a historic perspective the Portuguese are confronted with a dilemma of multiple proportions: Does Portugal need to conjugate the current strategic European option with the historical strategic Atlantic option? Can Portugal do that or is it able to do that? How? Must Portugal chose or is compelled to choose only one of the two? What would be the consequences of that option for Portuguese maritime economy and development? A route into the future of Portugal in the Atlantic Ocean is not possible without solid answers to these questions. 214 New Challenge of The Atlantic_Layout 1 15/07/20 15:00 Page 215 BIBLIOGRAPHIC REFERENCES CUNHA, Tiago Pitta (Coord.). 2004. O Oceano: Um Desígnio Nacional para o Século XXI. Lisboa. Comissão Estratégica dos Oceanos. FERGURSON, Niell. 2004. Empire. How Britan Made the Modern World. London: Penguin Books. FREYRE, Gilberto.1981.Insurgências e Ressurgências Atuais. Cruzamentos de Sins e Nãos num Mundo em Transição. Rio de Janeiro: Editora Globo. GRAÇA, Pedro Borges. 2008. O Problema do Consenso Histórico na Área Lusófona, in Revista de Ciências Sociais e Políticas, n.º 2, ISCSP/UTL, pp. 123-139. GRAÇA, Pedro Borges. 2008. Por Um Sistema de Informações Estratégicas Marítimas. Lisboa: Grupo de Estudos e Reflexão Estratégica/Edicões Culturais da Marinha. GRAÇA, Pedro Borges.2010. Mundo Secreto. História do Presente e Intelligence nas Relações Internacionais. Luanda. Instituto de Informações e Segurança de Angola. GRAÇA, Pedro Borges e MARTINS, Tiago (Coord.). 2014. O Mar no Futuro de Portugal : Ciência e Visão Estratégica. Lisboa: Centro de Estudos Estratégicos do Atlântico. HEGEL, G.W.F. [1822-30] 1965. La Raison dans L’Histoire. Introduction à la Philosophie de l’ Histoire. s/l : Librairie Plon. ISBELL, Paul.2012. Energy and the Atlantic. The Shifting Energy Landscape of the Atlantic Basin. Washington: The German Marshall Fund of The United States. MAHAN, A. T. 1890. The Influence of Sea Power Upon History, 1660-1783. Boston: Little, Brown and Company in http://www.gutenberg.org/files/13529/13529-h/13529h.htm. MARTINS, Tiago. O Cluster do Conhecimento do Mar Português, in GRAÇA, Pedro Borges e MARTINS, Tiago (Orgs.). 2014. O Mar no Futuro de Portugal : Ciência e Visão Estratégica. Lisboa: Centro de Estudos Estratégicos do Atlântico, pp. 97-116. MOREIRA, Adriano.1997. Teoria das Relações Internacionais. Coimbra: Livraria Almedina. PACHECO, Miguel Bessa, A Geografia Marítima de Portugal, in GRAÇA, Pedro Borges e MARTINS, Tiago (Orgs.). 2014. O Mar no Futuro de Portugal : Ciência e Visão Estratégica. Lisboa: Centro de Estudos Estratégicos do Atlântico, pp. 25-35. RICHARDSON, John. A New Voyage of Discovery: The Development of Integrated Maritime Policy as an Element of EU External Policy, in GRAÇA, Pedro Borges e MARTINS, Tiago (Orgs.). 2014. O Mar no Futuro de Portugal : Ciência e Visão Estratégica. Lisboa: Centro de Estudos Estratégicos do Atlântico, pp. 281-290. RICHARDSON, John et alii.2012. The Fractured Ocean. Current Challenges to Maritime Policy in the Wider Atlantic. Washington: The German Marshall Fund of The United States. SILVA, Jaime Ferreira. 2014. O Potencial do Mar Português: Uma Análise Estratégica. Lisboa: Instituto de Estudos Superiores Militares. TOYNBEE, Arnold [1946] 1987. A Study of History, Vols I-VI & VII-X. New York/Oxford: Oxford University Press. 215 New Challenge of The Atlantic_Layout 1 15/07/20 15:00 Page 216