Saturday, March 7, 2009
Responding to UN Resolutions 1814 (2008) 1816 (2008), 1838 (2008) on the situation in Somalia and which call for states and regional organizations to take action to protect shipping against acts of piracy, the EU launched military operation EU NAVFOR “Atalanta” (Atalanta is a character from ancient Greek mythology). This operation, which is the first EU maritime operation, is conducted in the framework of the European Security and Defence Policy (see Title V of the Treaty on European Union)
Two important legal acts are worth reading in this respect.
(1) The Council Joint Action 2008/851 CFSP of 10 Nov. 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (text available here).
According to Article 14 of the Treaty on European Union, EU “joint actions shall address specific situations where operational action by the Union is deemed to be required. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.” This is exactly what Council Joint Action 2008/851 does.
According to its Article 1(1): The EU “shall conduct a military operation in support of Resolutions 1814 (2008), 1816 (2008) and 1838 (2008) of the United Nations Security Council (UNSC), in a manner consistent with action permitted with respect to piracy under Article 100 et seq. of the United Nations Convention on the Law of the Sea signed in Montego Bay on 10 December 1982 (hereinafter referred to as ‘the United Nations Convention on the Law of the Sea’) and by means, in particular, of commitments made with third States, hereinafter called ‘Atalanta’ in order to contribute to:
— the protection of vessels of the WFP delivering food aid to displaced persons in Somalia, in accordance with the mandate laid down in UNSC Resolution 1814 (2008),
— the protection of vulnerable vessels cruising off the Somali coast, and the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, in accordance with the mandate laid down in UNSC Resolution 1816 (2008)”
(2) The Council Decision 2008/918/CFSP of 8 Dec. 2008 on the launch of a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Atalanta). Text available here.
This decision follows up on the previous Joint Action and in particular, its Article 5, which called for the adoption of a decision to launch the EU military operation. Accordingly, the Council approves here the launch of “Operation Atalanta”.
An interesting political and legal development occurred on March 6, 2009. The EU and Kenya signed in Nairobi the agreement on the conditions of transfer of suspected pirates to Kenya. This agreement is said to be the first of its kind between the EU and a country in the region as it defines the modalities for the transfer of persons detained in the course of counter-piracy operations by the EUNAVFOR Atalanta to Kenya for prosecution. The Press release contends that “by enabling EUNAVFOR to bring pirates to justice, this agreement will enhance the deterrence effect of the operation.” It appears that some EU Member States were concerned that if their ships brought the pirates back to the EU, the pirates might be tempted to apply for asylum there.
This agreement enables EU participating countries to set aside Article 12(1) of Council Joint Action 2008/851 CFSP previously cited and according to which “persons having committed, or suspected of having committed, acts of piracy or armed robbery in Somali territorial waters or on the high seas, who are arrested and detained, with a view to their prosecution, and property used to carry out such acts, shall be transferred: — to the competent authorities of the flag Member State or of the third State participating in the operation, of the vessel which took them captive, or — if this State cannot, or does not wish to, exercise its jurisdiction, to a Member States or any third State which wishes to exercise its jurisdiction over the aforementioned persons and property.”
One interesting question, however, is whether EU Member States can trust Kenya to comply with the conditions mentioned in Article 12(2): “No persons referred to in paragraphs 1 and 2 may be transferred to a third State unless the conditions for the transfer have been agreed with that third State in a manner consistent with relevant international law, notably international law on human rights, in order to guarantee in particular that no one shall be subjected to the death penalty, to torture or to any cruel, inhuman or degrading treatment.”