Unified Patent Court question illustrates complexity of Brexit, Europe & the EU

Rare are the times that intellectual property questions sneak into the conversation of a major Brookings Institution, who were discussing, “Europe and the U.S.: The old order faces a new world,” in front of a live audience and the nation, via C-SPAN, were hit with a very specific, “in the weeds” type question from one audience member. “When can we expect to see the [European] Uniform Patent Court treaty ratified and why is Germany holding up the process?” The panel of experts made a good faith attempt at an answer, but admitted their knowledge in this particular area was limited. After the question was addressed, a sea of diplomats, lawyers, academics, and scholars in the audience could be seen googling “Uniform Patent Court.”

European Patent 0080627B1
Opening & closing for retractable fountain pen nib
25 Feb. 1987 European Patent Office

Washington think tank. Experts at the

The UPC may not be sexy like Brexit, Russia, or China in terms of US – European wonk talk, but the entangled mess is worthy of analysis, because it is directly related to Brexit, domestic state parochialism, harmonization of patents, and a developing a more integrated EU.

In June 2017, a complaint was submitted to Germany’s Constitutional Court, asking the court for an einstweilige Anordnung, to temporarily enjoin the ratification of the German Unified Patent Court Agreement Act. At the request of the court, the Office of the Federal President agreed to suspend the ratification process until a decision on the merits has been rendered by the court.

The complaint was submitted by Düsseldorf IP lawyer Ingve Björn Stjerna, and alleges a violation of the right to democracy, "democratic deficits and deficits in rule of law with regard to the regulatory powers of the organs of the UPC", "perceived lack of an independent judiciary under the UPC", and non-conformance of the UPC with EU law.

At the end of August 2017, the Federal Constitutional Court “invited the German Government, the German Bar Association and the European Patent Lawyers' Association to provide observations in response,” according to Lexology.

As of 15 September 2017, there is still no indication on a timeline for resolving the stay of ratification. Germany is an essential element for the UPC to come into force, as the treaty requires at least 13 EU states ratify the UPC under their domestic constitutional framework, plus the three largest patent filing states at the time of adoption. Those three states, as of 19 February 2013, were France, Germany, and the UK.

Courts for resolving patent disputes will be in France, Germany, and the UK, along with regional courts in other states. The registry and court of appeals will be located in Luxembourg.

In contrast to Germany, the UK did ratify acts which pave the way for the UPC to come into force, however, in navigating its exit from the EU, the UK has to make the case that the Unified Patent Court is the product of an independent treaty and not an EU institution. According to BNA, the May Government has said Brexit will end the Court of Justice of the European Union’s “direct legal authority” over the UK. On 23 August 2017, the UK government released a position paper which emphasised that parties to international treaties commonly agree to submit disputes to a non-state court.

The future of the European Patent Court is an analogy for the future of Europe; a complex web of rules, state sovereignty, Brexit, pressure from international business, and a general lack of leadership to define a future and pursue it. The experts at Brookings should rest assured that the question they were posed is one that even constitutional judges in Germany are having a difficult time answering. 

Whose prerogative is it anyway? Britain’s referendum to withdraw from EU draws constitutional legal challenges*

1. Introduction

On June 23, 2016 the British people voted to exit the European Union, or simply “Brexit”. The
United Kingdom’s EU Referendum, in which a record 72.2% of the electorate voted, resulted in 48.1% choosing to “remain” and a surprising 51.9% opting to “leave”.

Immediately after the plebiscite’s unexpected outcome, a snowball reaction began that caused turmoil in Britain’s political leadership , a weakened pound-sterling, havoc within financial markets , and challenges to the royal prerogative power . Following the vote, solicitors at Michcon de Reya, acting on behalf of an anonymous group of clients, sought assurances the government would not act without parliament.

2. R (Miller) v Secretary of State for Exiting the EU

In October 2016, the High Court of Justice’s three most senior judges – Lord Thomas of Cwmgiedd, Sir Terence Etherton, and Lord Justice Sale – heard oral arguments in London addressing whether the Crown, acting through the government, is entitled to use royal prerogative powers to trigger Article 50 of the Treaty on European Union (TEU)?  The issue central to this debate is whether the Prime Minister is entitled to use powers of the royal prerogative to commence the two year exiting process, without a vote in Parliament.

This case is the biggest British Constitutional question of the century and pits the royal prerogative powers of the executive branch against the sovereign powers of parliament. The government lost in the high court and is currently appealing to the UK Supreme Court.  Prime Minister Theresa May, through a spokesperson, said, “[T]he government’s planned timetable for triggering Article 50 is unchanged after the court ruling.”

a. Royal Prerogative

The royal prerogative powers were historically exercised by Britain’s monarch acting on his or her own initiative. Today, by constitutional convention, the monarch exercises the prerogative on the advice of the prime minister and the cabinet. It is under the royal prerogative that money is minted, assets allocated for war, pardons granted, and foreign affairs conducted.

b. Parliamentary Sovereignty

In the British Constitutional system, the doctrine of ‘parliamentary sovereignty’  implies the Parliament of Westminster is the supreme legal authority for the entire United Kingdom. Contrast this principle with the United States’ system of government, where a codified constitution is the highest law and the Supreme Court has the power to judicially review acts of Congress and the executive. In the UK, courts cannot generally overrule legislation and no parliament can pass laws binding a future parliament.

2. EU Referendum Act

The legal authority for the EU Referendum came from legislation passed by Parliament in December 2015.  The act said nothing whatsoever about the effect of the vote’s outcome, and the referendum was persuasive and not binding on the government. In practice, the UK government will, most likely, have to respect the vote’s results.


3. Article 50 TEU: Withdrawing from EU

Under Article 50 of the Treaty of European Union (TEU), the framework is laid for withdrawing from the EU. A two-part process is required for invoking Article 50. First, a Member State must “decide” to withdraw, and second, that member state “shall notify” the European Council of their desire to withdraw.

A “decision,” for the purposes of Article 50(1) TEU, must be in accordance with the given member state’s own constitutional requirements. This means a “decision” is made by either the exercise of the prerogative powers (i.e. Prime Minister acting on behalf of the Crown) or through a piece of primary legislation (i.e. Parliament acting in its role as sovereign).

4. Looking forward

The British government announced they planned to “notify” the EU Council of the withdrawal decision by the end of March 2017. The Queen’s 2017 Speech to Parliament will be used to introduce the Great Repeal Bill, which will nullify the European Communities Act 1972 from the statute books. The anticipated date for Brexit to be official would be the end of March 2019, which would be in time for the 2020 General Election.

The government’s timetable could be complicated by the Supreme Court upholding the High Court’s decision, Scotland pressing for a second Independence Referendum, or the Prime Minister asking the Queen to dissolve parliament, triggering a shotgun election.

Even if the Supreme Court upholds the claimant’s position that parliament, as supreme constitutional law, must vote to “decide” to withdraw, more likely than not, Members of Parliament will uphold the people’s determination to leave the EU.

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*ABA Year-in-Review 2016, Section on International Law, Europe Committee (summer 2017)

Grave hunting MacGyver style

Charles Soper graduated early
from the Colorado School of Mines
to join the army air corp.

Several years ago, when I was visiting my paternal grandparents in Denver, I asked about the person from whom my middle name and my father's name derives - Charles Soper - my grandfather's brother. Charles was a navigator on a B-17 during WWII and as the story goes was returning to England after a bombing mission and in the fog over the Channel, they hit another plane and everyone on-board was killed.

My grandparents said Charles was buried in Denver. I was surprised and asked why we never had gone to see the grave? They didn't know; by that afternoon we were driving around Fairmount Cemetery. We asked the main office for a map and they put an "x" on the map for where the plot was located. As we drove to the location, my grandparents made comments like, "This doesn't look right, the pine trees were tiny." Asking when they were last there, the said, "1945, for the funeral." Over 65 years later, trees had grow up.

As we walked around the location, we didn't see the grave. I got to noticing there was a line of markers and then none for a while. Looking at the map and hearing my grandparents say in the background it was between two pine trees, I decided "x marks the spot" and pulled out my Swiss Army knife and sunk it into the grass. (To this day I still don't know why I decided to do that) The blade hit something hard. It was like a scene from MacGyver! I cut a piece of sod and began to see a letter appear - S, then O - P - E - R! We pulled a bottle of water from the car and uncovered and washed the rest of the marker. It had sank 2 inches below the grass. My grandparents contacted the cemetery and the marked was lifted to regulation height.

As we approach the 71st anniversary of VJ Day, we must never forget those who gave the ultimate sacrifice and the families who carry the heavy hearts for the nation. It is to those who have worn the uniform that I salute.

Brexit, International law & the UK Constitution

On June 23, 2016, the “shot heard round the world” was the British people voting to exit the European Union (EU), or simply “Brexit”. The United Kingdom’s (UK) EU Referendum, in which a record 72.2% of the electorate voted, resulted in 48.1% choosing to “remain” and a surprising 51.9% opting to “leave”. Immediately after the referendum’s unexpected outcome, a snowball reaction began that affected the UK’s political landscape and international financial markets.

The political casualties and financial impacts of the Brexit vote have been monumental and historic to say the least. As financial markets opened on Friday, June 24, 2016, the Pound Sterling had its worst trading day since the 1967 devaluation, losing 8% by 18:00 BST. The FTSE 250 index took a 7.2% hit, the worst since the October 1987 crash. The Stoxx Europe 600 index fell by 7%, the steepest one day drop since the Financial Crisis of 2008. British banks also took major hits, as Barclays PLC lost 30% at one point on the 24th and the Royal Bank of Scotland Group closed the trading day down 18%.

The UK Prime Minister, David Cameron, who campaigned to remain in the EU, became the first casualty of the EU Referendum when he announced he would stand-down at the Conservative Party’s meeting in October 2016. The presumptive replacement, the former Mayor of London, Boris Johnson, a Member of Parliament (MP), became the second casualty when fellow Brexit leader, William Gove MP, withdrew his support of Mr. Johnson before launching his own campaign to become the Party’s leader and Mr. Cameron’s replacement. Two weeks after the Brexit vote, a runoff leadership ballot was cast on July 8, 2016, in which Mr. Gove was eliminated. Andrea Leadsom MP, a finalist, pulled-out of the Conservative Party leadership battle on July 11, 2016, leaving a clear path for Home Secretary Theresa May to become Britain’s Prime Minister two-days later.

Amongst the political and financial roller-coaster that ensued, the legal aspects of withdrawing the UK’s membership from the EU are an unchartered and complicated legal web. For starters, the EU Referendum was only advisory to Parliament and not binding on the Government. The UK Constitutional and Public International law legal battles, which are currently underway, are of great interest to lawyers and scholars since they have never been applied in practice.

Under the foundational pillar of the British Constitutional system, the doctrine of “parliamentary sovereignty” implies that the Parliament of Westminster is the supreme legal authority of the United Kingdom of Great Britain and Northern Ireland. Contrast this principle with the United States’ system of government, where a codified constitution is the highest law and the Supreme Court has the power to judicially review acts of Congress and the executive. In the UK, courts cannot generally overrule legislation and no parliament can pass laws binding a future parliament.

Some refer to the British Constitution as “unwritten,” though this is not entirely accurate. Parliament has passed laws which, politically speaking, limit the scope of the doctrine of parliamentary sovereignty. These laws include: the European Community Act 1972, the Acts creating the Scottish Parliament and Welsh Assembly, the Human Rights Act 1998, and the Constitutional Reform Act 2005 that established the UK Supreme Court (on October 1, 2009), separate from the House of Lords, to serve as the nation’s highest appellate court. Other acts have received higher standing in the British constitutional hierarchy too. Fundamentally, the principle of parliamentary sovereignty remains in place as, at least theoretically, a future parliament could repeal any of these acts.

Perhaps the most significant British constitutional development has been the UK’s participation as a Member State of the European Community (now European Union) since January 1, 1973. The effect of joining the EU was that the UK had its “Constitution” subjected, for the first time, to the exercise of powers by and processes of an entirely non-domestic set of institutions.

EU law, the body of law developed by the EU and its institutions, is superior to laws of the whole of Great Britain and Northern Ireland until the UK officially withdraws. When the UK joined the European Community, some scholars and pundits claimed that the UK Parliament had given away aspects of its own sovereignty in exchange for access to the Common Market – a constitutional question that has remained contentious ever since is whether the United Kingdom can withdraw from the EU.

The legal authority for the referendum came from legislation passed by Parliament in December 2015.

University of Cambridge Law Professor Mark Elliott commented that:

“The legislation that provided for a referendum to be held said nothing whatsoever about the effect of the outcome of the referendum, and the result does not place the Government under any legal obligation to secure Brexit.”

While the Government is not legally obligated to trigger an exit from the EU, the political reality is that the electorate is expecting the Cabinet to respect the will of the populace and perform according to the outcome of the referendum.

Prior to the vote, Dr. Alan Renwick of University College London’s (UCL) Constitutional Unit wrote:

“In purely legal terms, a referendum vote to leave places no obligation on the Prime Minister to invoke Article 50 [TEU]. Indeed, it places no obligation on him to do anything: the referendum is, formally, advisory only. In practice, of course, he will have to respect the result.  But does that mean invoking Article 50?”

The legal point that is currently being debated is whether the Prime Minister has the prerogative to act on the vote’s result without Parliament taking any prior action. University of Glasgow’s Regius Professor of Law, James Chalmers, has expressed the view that this was a matter of dispute:

“There may be litigation seeking a declaration that an Act of Parliament is required. My expectation is that there will be an Act of Parliament, because there is no clear gain in proceeding without one.”

Further, British diplomat David Riley, during a June 29, 2016 Brookings Institution event stated that:

“While the legislation is not binding on the Government, nor does the legislation say Parliament has a role in the making of Article 50 [TEU]. It is for the Prime Minister to decide when to invoke Article 50 and the extent to which he or she wishes to involve Parliament.”

On June 29, 2016, an Informal meeting of the 27 heads of state or government (UK excluded) of the EU Member States indicated the European Council is expecting Article 50 TEU (Treaty of Lisbon) to be the legal basis for withdrawal and that official notice to withdraw must come from the UK Government. Since the Prime Minister is the head of the UK Government, it will be for Mr. Cameron’s replacement to send an Article 50 notice to the EC in Brussels.

Under the Treaty of Lisbon 2007 (which consolidated and amended the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU)), which came into force December 2009, there are two possible routes for a Member State to leave the EU. The logical route is to proceed under Article 50 TEU, as it is the treaty provision which governs what happens when a Member State decides to withdraw from the Union; the alternative, unlikely method is under Article 48 TEU, which governs the process for amending of the treaties of the EU.

Article 48 TEU, governs the rules for its revision and amendment. Implementing Brexit via Article 48 TEU would be to revise the Union’s membership list to exclude the United Kingdom as a Member State from the EU treaties. In theory, this option sounds easy, but would be challenging from both a procedural and political aspect, as two layers of veto powers are involved. Under Article 48 TEU, there must first be unanimous agreement among all Member States to trigger it. Thus, each Member State would have a veto power. The second layer of veto power occurs when each national government must ratify, according to the Member State’s method for amending its own national constitution, the revisions to the TEU.

Under Article 50 TEU, once an EU Member State has decided to withdraw from the EU, the Member State “shall notify,” in other words, legally communicate that intent to the European Council, thus triggering a two-year negotiations period. The negotiation period exists to ensure the conclusion of a withdrawal agreement concerning trade provisions, EU treaty arrangements, etc. The EU Council is granted the authority to conclude such withdrawal agreement on behalf of the Union by a qualified majority of Member States (after obtaining consent from the EU Parliament). The UK exit date would be either the date of the withdrawal agreement or two years from the date of, “notification of decision”.

If after two years no agreement is reached, the UK, under Article 50(3) TEU, would simply cease to be an EU Member State without any transitional provisions or trade deals. A negotiated withdrawal is adventitious for achieving transitional and post-exit trade, tax, and citizenship arrangements. The prospect of negotiating an agreement is one of the UK’s, the EU’s, and individual Member States’ strongest bargaining chips in the Article 50 process. However, an automatic withdrawal, two years after commencement of Article 50, does not necessarily mean non-use of the power to negotiate a withdrawal agreement is a horrible outcome. The UK and EU would be free to make treaties post-withdrawal in the same way that the EU can make treaties with other non-Member States.

A “decision,” for the purposes of Article 50(1) TEU, must be in accordance with the given Member State’s own constitutional requirements. This means a “decision” is made either by the exercise of the prerogative powers (i.e. Prime Minister acting on behalf of the Crown) or through a piece of primary legislation (i.e. Parliament acting in its sovereign role). The EU Referendum vote was merely advisory, and to comply with the “constitutional” element in Article 50, either the prerogative power or the parliamentary powers, depending on the point of view, must be used to formally “notify” the European Council in order to trigger Article 50(3) TEU’s two year clock.

Assuming a “decision,” for Article 50 TEU purposes is to be made by Parliament, a few scenarios might playout:  

(a) Scottish National Party (SNP), Labour, and a few Conservatives could lead a revolt and refuse to take action; or

(b) The same could vote down any measure upholding the results of the EU Referendum.

In Addition, Parliament might also pass a bill which would restrict the exercise of the prerogative power by the Prime Minister, thus preventing him or her from acting on the results of the EU Referendum. If the next Prime Minister, who will take office in October 2016, decides that both the ‘decision to withdraw’ and ‘notice to the European Council of the decision’ are prerogative powers, then there may occur a scenario in which ‘statute beats prerogative’.

Alternatively, UK Constitutional Law Association fellows Nick Barber, Tom Hickman, and Jeff King argue any prerogative power that would otherwise be available to the Government in order to make an Article 50 TEU withdrawal decision is displaced by the European Communities Act of 1972. The argument is based on the holding in the Fire Brigades Union case, in which Lord Browne-Wilkinson said, “‘It would be most surprising if prerogative powers could be validly exercised by the Executive so as to frustrate the will of Parliament expressed in the statute.” The difficulty of challenging the prerogative in this way is that the EC Act of 1972 does not confer any particular rights on anyone. The Act does, however, show Parliament’s will to give effect to the UK’s obligations under EU treaty law within the country. Since foreign relations are usually perceived as a part of the prerogative powers, triggering Article 50 TEU may be both the exercise of a common prerogative authority through the usage of a treaty provision and going against the implied will of Parliament through nullifying its 1972 Act. This question will further be debated as the Michcon de Reya law firm seeks a definitive answer.

On July 3, 2016, solicitors at Michcon de Reya, acting on behalf of an anonymous group of clients, contacted government lawyers to seek assurances that Article 50 will not be triggered without an act of Parliament. The solicitors at the law firm, who are not advocates, retained the services of renowned constitutional advocates who were bestowed the distinguished title of Queen’s Counsel (QC), The Lord David Pannick QC of Blackstone Chambers and Rhodri Thompson QC of Matrix Chambers, as barristers who have standing to appear in court for Michcon de Reya’s clients. The Lord Pannick QC sits on the Constitution Committee in the UK House of Lords.

After the Brexit vote, the Petitions Committee, which is made up of 11 backbench Members of Parliament, received an e-petition with over  4 million signatures asking the Government for a 2nd EU Referendum. Under a convention of Parliament, any e-petition with over 100,000 signatures will be debated in the House of Commons. This petition is scheduled for debate on September 5, 2016. However, the Government responded by saying:

“The Prime Minister and Government have been clear that this was a once in a generation vote and, as the Prime Minister has said, the decision must be respected. We must now prepare for the process to exit the EU and the Government is committed to ensuring the best possible outcome for the British people in the negotiations.”

Even though the majority of the British electorate may have voted in favor of exiting from the EU, the UK will continue to remain a Member State until key constitutional questions are resolved in order to begin the withdrawal process. The first order of business is deciding if a decision has been made which meets the UK’s Constitutional process. The New Government has intimated it will honor the outcome of the Referendum and withdraw from the Union using Article 50 TEU. The New Prime Minister, Ms. May, has indicated how the withdrawal process should take place, but this is only one opinion, and more importantly, just the beginning of the process. It is quite clear, that even if the New Government were to not follow the advice of the electorate, the financial and political damage is already irrecoverable. The world has already reacted to Brexit, as though the vote’s outcome were contractually binding. The snowball effect in terms of political shifting and financial and business turbulence will continue for the next several years. The legal issues of how national constitutional law interacts with international treaty law will test unprecedented waters. The legal debate on how to leave, and then, how to unravel a union that has existed since 1973, will be a daunting challenge to say the least.  It is speculated Brexit will prompt changes in formal rules and conventions within the EU and will serve as a case study to other nations contemplating what would happen if they were to follow the UK. The legal path of leaving the EU is a watershed moment in the history of UK Constitutional and Public International law.

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*Special thank you to Emory University J.D. (Class of 2017) candidate Anton Stewart, BA, LL.B. for assistance in various aspects on this article.

Soper, Matthew. "Brexit, International law &; the UK Constitution." ABA Section of International law; Europe Update Issue 13 (July 2016) (Brexit Special Edition) Web. 2016.

West African piracy escalates

West Africa becomes the most dangerous waters for seafarers as piracy becomes more violent.

Nigerian Navy captures 6 pirates who hijacked & renamed a Saudi Arabian oil tanker.

Recently, for example, a training manoeuvre off the coast of West Africa turned into a real-life rescue mission. French embassy officials notified Ghanaian and US diplomats of a possible pirate ship loitering off Abidjan, Ivory Coast. The referenced ship was the Dubai-owned MT Maximus, which was leased to a South Korean firm, carrying a cargo of 4,700 tonnes of diesel fuel.

The MT Maximus had been hijacked on February 11th. Navy ships from the US, Ghana, Togo, and Nigeria shadowed the MT Maximus for 800 miles across the Gulf of Guinea until Nigerian Special Forces stormed aboard on February 20th. A firefight broke out and the Nigerian forces killed their first pirate ever during a boarding. Six pirates were captured and 18 seafarers were freed. Several pirates escaped in a skiff, along with two crewmen, who still remain held hostage for ransom.

This anecdote of the MT Maximus illustrates the successes and challenges posed by increased piracy activity in the Gulf of Guinea. The International Maritime Organization (IMO) reports that over 90% of the world’s trade is carried by sea. About 2-3% of all vessels broadcasting AIS globally, transit the Gulf of Guinea region annually, but 20% of all maritime crime occurs in the Gulf of Guinea.

Nigerian Rear Admiral Henry Babalola, recently commented, “International cooperation is the new

mantra for maritime security. We cannot go at it alone.” Admiral Babalola stressed the economic impact of piracy on the world; by pushing up maritime insurance, security, et cetera, all of which is ultimately passed on to the consumers.

While the percentage of International commercial shipping that transits through the Gulf of Guinea region may seem small, the total economic cost incurred by the International community, regional states, and the industry, through combatting or preventing piracy for the year 2015, was estimated at $719.6 million; the shipping industry has borne 61% of this cost.

Nigerian Rear Admiral Henry Babalola

In 2015, the European Union (EU) spent nearly $3.5 million (€3 million) on counter-piracy related activities in the Gulf of Guinea region. These projects included the Gulf of Guinea maritime transport support and the Critical Maritime Route in the Gulf of Guinea Project (CRIMGO). The EU is responsible for funding over 60% of all International counter-piracy efforts in the West African region.

For the first time in half a decade the United Nations Security Council, on 26 April 2016, sitting in New York City, dedicated a session to discussing Gulf of Guinea piracy and associated crimes.

H.E. Paul Menkveld, Deputy Permanent Representative of the Netherlands to the UN, said, “Illegal maritime activities in the Gulf of Guinea are not only a problem of West-African states. They are our problem as well. Because these activities harm regional trade and economic development. Because they hinder the flow of commerce between Europe and West-Africa and thus prosperity at a larger scale.”

In the first quarter of 2016, the International Chamber of Commerce (ICC) International Maritime Bureau’s (IMB) Piracy Reporting Centre (PRC) reported 6 successful attacks and 6 unsuccessful attacks by pirates off the coast of Nigeria, Côte d'Ivoire, and the Democratic Republic of the Congo. These latest figures highlight growing violence as 44 seafarers have been kidnapped, as of 27 April 2016. This is compared with 15 seafarers who were kidnapped in all of 2015.

On 3 May 2016, the US-based non-governmental organization, Oceans Beyond Piracy (OBP), presented their sixth annual State of Maritime Piracy 2015 report in London at the United Kingdom Chamber of Shipping. Lead author, Matthew Walje, explained that the business model for West African pirates shifted in 2015 from theft, robbery, and hijack-for-theft to kidnap-for-ransom.

OBP’s report showed that the cooperative International efforts by the EU, the US, China, Russia, India, and Japan naval task forces of over two dozen vessels has reduced piracy off the coast of Somalia from 151 attacks in 2011 to 17 pirate attacks in 2015. Mr Walje urged caution, saying when the EU Naval Force concludes its task force in 2018, there needs to be a shift to capacity building, economic development within Somalia, and local maritime law enforcement, otherwise the conditions remain ripe for potential future hijackings, kidnappings, and ransom demands.

Southeast Asian piracy has seen spikes over the last 15 years, but regional states have proven capable of supressing piracy. In 2015, there were 199 reported instances of piracy in Southeast Asia, with 67% of those occurring near Malacca or the Straits of Singapore. A major decline occurred in the fourth quarter of 2015, as law enforcement began arresting and prosecuting pirate kingpins.

The International community has arrested and prosecuted hundreds of pirates from the Gulf of Aden and the Western Indian Ocean region, but the process is expensive and complex, not to mention the kingpins onshore continue to operate with near-complete impunity from the law. This scenario is especially true in the Niger Delta Region in West Africa, Mr Walje commented.

Unrest in the Niger Delta Region culminated when militants caused massive disruptions to the continent’s largest producer of crude oil. In 2009, an amnesty deal was reached with militants, which included huge cash payments to fighters. According to Daniel Alabrah, the programme’s spokesman, $1.2 billion (€1 billion) has been paid to some 30,000 militants.

States in the Gulf of Guinea are struggling to keep their seas under control. While lower oil prices have cut the costs of naval patrols and embankment teams in half, it has also meant a shift in the pirate business model from hijack-for-theft to kidnap-for-ransom.

In addition to lower oil prices and increased maritime law enforcement patrols, the 28 March 2015 Nigerian presidential elections were a catalyst for increased uncertainty. Incumbent Goodluck Jonathan, whose support came from the Niger Delta states, lost to General Muhammadu Buhari. Elections have been a powder keg, as the predominantly Muslim north, which is poorer than the southern, mainly Christian, Niger Delta, tends to align with opposing political parties. Boko Haram, a jihadist group, operates in the north, organized pirate gangs base their operations in the Niger Delta region. Nigeria is not only Africa’s most populace nation, but in 2014 it overtook South Africa as the continent’s largest economy.

In a recent interview with American University Professor Stefano Costanzi, an expert in the computational study of complex problems in biomedicine and social sciences, he observed three main trends in Gulf of Guinea piracy thus far in 2016, as compared to 2015.

First, there have been more attacks on vessels, especially in waters off the Niger Delta Region. Local militants are allegedly behind most of these attacks. The amnesty program, which provides income for former militants, is winding down, and is supposed to be completely shutdown by 2017. It is likely more militants in the Niger Delta Region will turn to piracy to replace lost income.

Second, piracy in the Gulf of Guinea shifted from oil theft to a kidnap for ransom model. Oil prices are low and the Nigerian government shutdown several illegal refineries, making oil theft less profitable than kidnapping. As of 10 May 2016, all major attacks on vessels have involved kidnapping.

Third, there have been more unsuccessful attacks. The fact that more attacks are foiled indicates that maritime security in the region is getting better. The Nigerian navy responded promptly to several incidents. Perhaps more importantly, many attempted attacks were foiled by armed guards riding onboard.

UK-based Dryad Maritime’s Head of Operations, Michael Edey, in an interview with World Maritime News, said, “Kidnap is a relatively easy crime with big financial returns. Unlike the hijack of ships for ransom or for their cargoes of valuable fuel, the groups involved do not need to worry about how to offload and sell the cargo, as in the Gulf of Guinea, or maintain control of the ship in a safe area while the ransom negotiations took place, as with Somali pirate hijacks. In short, kidnap is significantly less risky.”

OBP’s research indicates that as many as 70 percent of all kidnapping incidents in the Gulf of Guinea

go unreported.

Margaret Orakwusi, the former president of the Nigerian Trawler Owners Association, said, “It’s just like the sea pirate attacks; most of the attacks are not being reported. Probably out of frustration by the owners of the vessels. You know when you continuously report and nothing is happening and the victims are not helped.”

During 2015, ransoms in the Gulf of Guinea, of up to $400,000 were recorded being paid by ship owners to recover vessel and crew from pirates. While the total amount paid to pirates remained nearly unchanged from $1.68 million in 2014 to $1.6 million in 2015, the level of violence significantly increased, including mock executions. At least 1,225 seafarers were subjected to attacks in 2015 and 23 were killed. By contrast, only one seafarer was murdered in the Gulf of Guinea during 2014.

The rise in kidnappings has been especially alarming for European shippers. Pirates believe they can demand higher ransoms for crew from the West. Currently, seafarers from Poland, the Ukraine, and Russia are being held by West African pirates.

The situation in the Gulf of Guinea will remain uncertain, as the political developments in Nigeria have resulted in former amnesty payees taking to the seas to back-fill lost income. Low global oil prices caused a shift in the criminal model from theft and robbery to kidnap and ransom. Nigeria and regional states have increased maritime security patrols and placed armed guards aboard commercial ships transiting the gulf. These tactics have quelled the situation for now, but the International community, in particular the EU, will need to help develop sustainable alternatives to piracy, increase capacity building, and put political pressure on regional states to prosecute the kingpins, who are ultimately responsible for the increased levels of piracy off the west coast of Africa.

Common sense: a new approach for society?

A wise person is made, not born. So then, what are the virtues of a wise person? King Solomon (c 1011-931 BC) described a wise person as one who is clever and has a discerning mind to judge the difference between a right and wrong decision. A wise person learns from wise teachers. Wisdom depends on experience and not just any experience: you need the time to get to know the people you are serving; permission to be allowed to improvise; the ability to try new things; and the ability to learn from failures. Without wisdom, brilliance is not enough.

The education system in Chicago is structured such that every teacher must be on the same page of the curricula, on the same day and instructions are given as to what teachers are to say and which questions to avoid. Such a system is an insurance policy against complete failure, but stifles wisdom, lacks virtue and doesn’t instil character into students. This is why when legislators say students need to focus on reading, writing and maths, then science, history and the arts get swept under the rug and the US stands astonished that European students who attain a proper well-rounded education surpass the American students on exams and performance.

The cutting edge in America has been creativity and the ability to make dreams happen to not collapse when the antagonists say nay. This entrepreneurial spirit is what creates the American Dream. Barry Schwartz mentions two tools society uses when rules fail: (i) more rules and (ii) change the incentives. Neither of which tap: virtue, morality, character or common sense. When one class fails, the rules are tightened, the curriculum becomes more rigid and the pay structure reflects not wavering from the prescribed text. Pretty soon the mould is cast and to think outside the box is undesirable. It is no surprise that with limited science and foreign language classes in formative years, few American students pursue careers in those directions. An over focus on reading and writing has not produced great readers or authors, but college drop-outs who never acquired a virtuous passion for learning. This is where rules and incentives have failed.

The solution is to provide students early on with as wide a range of learning categories as possible and empower teachers to use their wisdom to inspire students to engage in subjects which fits their interest and aptitude. A child may hate reading, until s/he discovers a book on NASA, outer-space and rockets. Without question certain subjects must be taught and within those there are important texts which are of the utmost importance to be learnt. The American elementary curricula should not be so rigid as to not allow giving students the incentive to want to learn or not allowing a teacher go into more depth when doing so is only for the benefit of the students. A little more common sense would be appropriate in a society driven by more rules and traditional incentives.