A Proposed African Court with Jurisdiction Over Piracy: How Will This Work?

It is our pleasure to introduce Oliver Windrige as today’s guest contributor.

Oliver Windridge is a British lawyer specializing in international human rights and international criminal law, currently based in The Hague, Netherlands. He is founder of the blog The ACtHPR Monitor, on twitter @acthpr_monitor. In June 2014 Oliver was one of five non-African lawyers to be appointed to the Court’s inaugural List of Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of any organisation affiliated to the author.

Following on from my recent post at The ACtHPR Monitor on the future African Court on Justice and Human Rights (ACtJHR), this post explores at further length one of the other 14 crimes which will fall under the jurisdiction of the ACtJHR – piracy.

As a brief introduction and recap, the African Court on Justice and Human Rights is a proposed African Union backed court. The ACttJHR has yet to become operational, requiring ratification from at least 15 African Union member states. Once operational, the ACtJHR will consist of three sections; a general affairs section dealing with commercial and civil matters, a human rights section that will replace the current African Court on Human and Peoples’ Rights, and an international criminal section which will have an ambitious jurisdiction over 14 international crimes including piracy as well as genocide, crimes against humanity and war crimes.

That piracy is one of the ACtJHR’s 14 crimes is worth noting in and of itself. Since the court will have the backing of at least 15 AU member states it can be said to be a truly international, albeit continental, court and therefore can safely be referred to as the first international court with the jurisdiction to try piracy cases (the International Criminal Court (ICC) does not have jurisdiction over piracy). Until now the international element of piracy cases has been often seen as international cooperation in manning the seas, but it has been national jurisdictions- most notably in the Seychelles, Kenya and Mauritius- which have born the burden of prosecuting the cases, albeit with financial and professional help from other countries. The inclusion of piracy in the ACtJHR Statutes moves the cases themselves into the international arena and has the potential to bring piracy into a truly international setting, thus alleviating the burden from individual countries to prosecute these cases.

As to the law itself, Article 28F of the ACtJHR’s draft Statute defines piracy as follows:

a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private boat, ship or a private aircraft, and directed:
i. on the high seas, against another boat, ship or aircraft, or against persons or property on board such boat, ship or aircraft;
ii. against a boat, ship, aircraft, persons or property in a place outside the jurisdiction of any State
b) any act of voluntary participation in the operation of a boat, ship or of an aircraft with knowledge of facts making it a pirate boat, ship or aircraft;
c) any act of inciting or of intentionally facilitating an act described in sub paragraph (a) or (b).

This definition is an exact replication of Article 101 of the United Nations Convention on the Law of the Sea with the addition of “boat” alongside ship or aircraft throughout.  This is unsurprising given the Convention’s almost universal position as reflecting customary international law on piracy.

Article 28N of the ACtJHR Statute also sets out the modes of liability through which accused can be commit piracy, as follows:

An offence is committed by any person who, in relation to any of the crimes or offences provided for in this Statute:

i.                    Incites, instigates, organizes, directs, facilitates, finances, counsels or participates as a principal, co-principal, agent or accomplice in any of the offences set forth in the present Statute;

ii.                  Aids or abets the commission of any of the offences set forth in the present Statute;

iii.                Is an accessory before or after the fact or in any other manner participates in a  collaboration or conspiracy to commit any of the offences set forth in the present Statute;

iv.                Attempts to commit any of the offences set forth in the present Statute.

These modes of liability apply to all 14 crimes under the Court’s jurisdiction.  It is interesting to note how some of these modes of liability mesh with the piracy definition: for example, Article 28F(c) refers to inciting piracy as a crime whereas Article 28N(i) refers to inciting as a mode of liability.

Despite these small issues regarding the relationship between the definition of piracy and modes of liability, the ACtJHR Statute raises many more practical questions, not least of which is whether this court can really work?

Regarding jurisdiction, under Article 46F of the ACtJHR Statute, the ACtJHR will be able to exercise its jurisdiction over piracy cases where:

1. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party;

2. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Assembly of Heads of State and Government of the African Union or the Peace and Security Council of the African Union.

3. The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 46G.

Therefore, even if countries with prevalent piracy issues such as Somalia are not a state party to the ACtHJR the Court will be able to exercise jurisdiction to hear the case if it is referred to by another state party, which raises the possibility of countries directly affected by piracy, for example Kenya or Tanzania, referring piracy matters to the Court.

An interesting issue will be the capture of alleged pirates irrespective of who referred a piracy matter to the Court. Whilst there is general agreement that universal jurisdiction allows third party states to capture pirates who may be nationals of non-ACtJHR member states, it will be interesting to see how the interplay works between their capture and the handing over to the ACtHJR, since this process may result in several countries being involved.  For example, piracy off the coast of Tanzania referred to the ACtJHR by Kenya could lead to the capture of Somali alleged pirates by the British Navy who could then be transferred to the ACtJHR for trial.

Presumably, a memorandum of agreement or understanding will need to be drafted between those authorities patrolling the seas around Africa who are not member states of the ACtJHR, for example the British Navy, and the ACtJHR.  Such a memorandum would need to specify that patrolling authorities which are not member states of the ACtJHR will hand over into the custody of the ACtJHR persons captured allegedly committing piracy once a matter is referred to the Court. The transfer of individuals would be the same as suspects for genocide, crimes against humanity or other crimes. That the suspects would be detained by third party states also would not be dissimilar to an accused being detained by a third party (for example a Rwandan being detained in Kenya)

The power of these patrols to carry out arrests would be unlikely to attract debate since it is long recognized that piracy enjoys universal jurisdiction. However, capture raises the issue of indictments. Under the ICTR, ICTY, ECCC, SCSL and ICC, indictments are issued against named persons, almost always not in the custody of the court. With piracy cases, however, it is far less likely that such named person indictments can be issued unless for particularly notorious leaders or land-based backers. Instead, the bulk of piracy arrests and transfers to the ACtJHR are likely to be those picked up on the high seas by patrols who find them. These alleged pirates will not be previously known to the authorities and will therefore not have named indictments issued against them unless a blanket indictment was somehow issued which would be fraught with additional legal issues.

The lack of indictment is not necessarily a problem- people are arrested and detained for criminal offences at the national level everyday without outstanding indictments- but it is likely to be an administrative headache to process new indictments and still uphold the suspect’s rights to a first appearance without delay. This is to say nothing of the fact that the process of handling suspects without outstanding indictments is fundamentally different to that of suspects wanted for crimes such as genocide and crimes against humanity where a prosecutor often spends considerable time crafting indictments based on research and investigations. The difference between these indictments means that piracy prosecutions even within a international court such as the ACtJHR are likely to have more in common with a domestic robbery case than that of a genocide case. On the positive side, this could well mean a more efficient process since indictments would be relatively short, containing small numbers of charges and therefore lead to shorter trials, with smaller amounts of evidence and fewer witnesses required. On the negative side, these cases could be slowed down by a prosecutor having to put together a case only once an alleged pirate has been captured. This process of only starting investigations once a suspect is detained has the potential to massively slow down the whole judicial process and may well run counter to the prosecution office’s processes for trying crimes such as genocide and crimes against humanity.

In reality, this could mean the ACtJHR international criminal law section will effectively contain two strands- a fast track/small cases chamber to deal with matters such as piracy and a second strand which would deal with larger cases of genocide, crimes against humanity, war crimes etc.

In addition, some of the long held problems of prosecuting piracy at an international level may well come to the fore once the ACtJHR is up and running, namely the unwillingness of some countries to financially back prosecutions that have a large commercial element. Without wishing in any way to diminish the undoubtedly harrowing ordeals hostages are subjected to, there remains the fact that the victims of piracy include wealthy shipping and cargo companies- not the type of victims which usually illicit much sympathy from the international community. The issue of victims also leads to the issue of prosecuting piracy cases at the international level at all. As is often stated, the prosecution of crimes such as genocide and crime against humanity is more than just the prosecution of individuals but also the international community’s rejection of policies or ideals which lead to the crimes committed, as well as the international community’s condemnation of crimes it considers unacceptable and abhorrent. When it comes to piracy, there are no such policies or ideals- piracy occurs for financial reasons.  Although it is recognised that the money may be financing an ideal or policy equally as abhorrent as those prosecuted through genocide or crimes against humanity, the fact remains that piracy is at its core a financial crime. This difference has the practical effect that different levels of perpetrators are likely to be tried for piracy matters compared to other international criminal law prosecutions. For example, where the International Criminal Tribunal for Rwanda set out to prosecute those at the very top of the Rwandan government and army, the likelihood is that those piracy suspects captured at sea are not the very top of the piracy trade, but rather the “tools” used to carry it out- the very people international tribunals have not sought to prosecute.

Above are just some of the issues which will likely emerge once the ACtJHR is operational and begins to consider piracy cases. What is not in dispute is that piracy in the modern age has been a significant problem for Africa. It therefore seems logical that the ACtJHR will be the first international court to have jurisdiction over piracy cases. What remains to be seen is whether the Court will succeed in providing an African solution to this African problem.

European Court of Human Rights Orders France to Pay Damages to Somali Pirates

The European Court of Human Rights recently issued a decision (Ali Samatar and Others v. France and Hassan and Others v. France) ruling that French authorities had violated the rights of Somali pirates, when they held them in custody for an additional 48 hours on French soil, before officially charging them with specific crimes.  One group of piracy suspects was held for four days before being transferred on to French soil, and another group was held for slightly over six days before being transferred to France and charged before a judicial authority; the Court held that these delays were justified, because of the existence of “completely exceptional circumstances” noting that the original arrests took place thousands of miles from French territory.  However, the Court held that the additional 48-hour delay on French soil violated the suspects’ rights to liberty and security under the European Convention on Human Rights, Article 5(3).  In fact, the European Court judges held that French authorities had ample time to draw up the official charges against these piracy suspects, while the suspects were held overseas (for four and six days respectively), and that the additional delay on French soil could not be justified because, according to a formal statement by the Court, “[t]he convention’s Article 5.3 was not designed to give the authorities the opportunity to intensify their investigations for the purpose of bringing formal charges against the suspects.”  The Court did not fault French authorities for arresting the suspects abroad, or question the legality of such overseas arrests and detention practices.  The Court ordered France to pay damages in the amount of 9,000 Euros to one group of pirates, and 7,000 Euros to the other.

These particular pirates had attacked two different French vessels in 2008 and had kidnapped multiple hostages.  The hostages were released in exchange for multi-million dollar ransoms, and the pirates were subsequently apprehended by the French military on the Somali coast.  The European Court of Human Rights decision awarding damages to this group of pirates has been heavily criticized by maritime organizations, such as the International Maritime Bureau (IMB), as well as seafarers’ support groups, such as the Maritime Piracy Humanitarian Response Programme (MPHRP).  An IMB spokesman stated that “There are practical difficulties with respect to the gathering of evidence and transporting of the alleged perpetrators when a crime is committed at sea, thousands of miles from where the court proceedings take place, compared to a crime committed ashore,” and expressed concern that the Court decision would discourage other European nations from taking appropriate enforcement action against suspected pirates.  Roy Paul, program director for MPHRP, voiced even stronger criticism of this decision: “The claim this constituted a ‘violation of their rights to freedom and security’ is an insult to the seafarers and yachtsmen they attacked as surely this is the true violation of the seafarers’ rights to freedom and security. These pirates, in my opinion, gave up any of their rights when they set sail to attack innocent seafarers who were simply doing their essential work.”

Article 5(3) of the European Convention, which French authorities violated according to the above decision, states as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise  judicial  power and shall be entitled to trail within a reasonable time or to release  pending trial…”

In addition to a violation of Article 5(3), the Court also found that French authorities had breached Article 5(1) (right to liberty and security) in the Hassan and Others case, because the French system applicable at the time “had not sufficiently guaranteed the applicants’ right to their liberty.”

The Court press release is attached below.

udgments Ali Samatar v. France and Hassan v. France Suspects of piracy against French vessels appre

Mauritius Court Acquits Twelve Somali Piracy Suspects

To the disappointment of many involved in the global fight against Somali piracy, the Intermediate Court of Mauritius acquitted twelve Somali piracy suspects in a verdict delivered on November 6, 2014.  The twelve suspects had attempted to attack a Panama-flagged commercial vessel, MSC Jasmine, in early January 2013.  Shortly after the attempted attack against MSC Jasmine, the suspects were apprehended by joint European Naval Forces, and brought to Mauritius to stand trial pursuant to a transfer agreement which Mauritius had concluded with the European Union.  As I have previously blogged, similar transfer agreements exist between  capturing authorities and two other regional partner States, Kenya and the Seychelles.  While the latter two had already prosecuted numerous piracy suspects, this piracy trial was the first of its kind in Mauritius, and the acquittal appears surprising for both legal and political reasons.

First, the acquittal is legally bizarre, to say the least.  The Mauritian court reached its acquittal decision based on several grounds.  First, the court declared that the prosecution had not reached its burden of proof as to the identity of the suspects, and whether these twelve individuals were the same ones who actually fired shots against MSC Jasmine.  The facts are undisputed as to the following: the MSC Jasmine was attacked on January 5, 2013, by a small white skiff with six to eight men on board.  The attack was repelled by the armed security officers on board MSC Jasmine, after an exchange of fire which lasted approximately forty-five minutes.  The next day, on January 6, 2013, French authorities operating under the auspices of Operation Atalanta intervened and arrested twelve suspects, in the relative vicinity of the attempted attack against MSC Jasmine; the twelve suspects were on board a skiff and a larger whaler, which had been tracked and observed over the previous twenty-four hours.  The arresting authorities presumed that the whaler was the larger mother ship, and that the skiff was the one involved in the attack on MSC Jasmine.  The arresting authorities searched the whaler and the skiff; they found no obvious fishing equipment on board, but no weapons either.  The suspects were held on board the French ship, Surcouf, for several weeks, because it took about ten days for European Union authorities to decide against prosecuting these suspects, and it took Mauritius about fifteen days to accept jurisdiction pursuant to the above-mentioned transfer agreement.  The suspects arrived to Mauritius on January 25, 2013; they were advised of the charges against them (including piracy) and of their right to obtain the assistance of counsel.  During trial, most suspects denied that they had engaged in piracy and argued that they were fishermen who, for different reasons, did not have fishing equipment on board.  Moreover, the defense argued that the prosecution failed to establish that the twelve suspects were the same individuals who fired shots at MSC Jasmine the day before their arrest, because only six to eight individuals participated in the attack from the small skiff, whereas the arrested suspected numbered twelve.  The prosecution argued that these individuals were all involved in the piracy attack, that some had been on the skiff while others remained on board the mother ship/whaler, and that under the theory of common intention, used in the Seychelles piracy prosecutions, all suspects could be charged with the same act of piracy, regardless of their actual roles in the attack.  The court determined that while those present on the skiff could be prosecuted together under a variant of the common intention theory of liability, “The same conclusion cannot however be reached as regards the other four to six persons who were on the whaler at the material time, so that there clearly cannot be simultaneousness of the act of the co-authors and mutual assistance to an author of a crime in view of the significant distance between the skiff and the whaler. At best, they are accomplices….”

This conclusion led the court to determine that the issue of proper identification presents another hurdle in the prosecution’s case, because it is impossible to determine which of the twelve suspects were present on board the skiff during the attack, and which were merely accomplices waiting on the whaler/mother ship. “We find that it would be most unreasonable and unfair to find all twelve accused parties guilty as co-authors when we have clear evidence that not all of them formed part of the illegal act of violence, since some were in a whaler at significant distance from the skiff.”  The court thus concluded that the prosecution had failed to establish its case, beyond a reasonable doubt, as to the identity of the suspects.

This conclusion is unfortunate and in sharp contrast with other piracy prosecutions, including those in the Seychelles, which the prosecution had relied upon. While it is true that it may be difficult to determine which pirates had accomplished which roles in the piracy act, it is also true that many other courts have used “common intention” or “joint criminal enterprise” types of liability to prosecute groups of defendants, without having to determine the scope of their particular roles in the criminal endeavor.  This prosecutorial tool is a widely accepted mechanism for imposing criminal liability on joint perpetrators, which should be available in all piracy prosecutions, like in the Seychelles.  Otherwise, almost all piracy suspects will be able to shield themselves from liability by asserting that it is unclear which role each of them had played in a piracy attack.

In addition, the court determined that the prosecution had failed to establish that the alleged piracy act satisfied the “high seas” requirement under the Mauritius Piracy and Maritime Violence Act. Section 2 of this Act defines the “high seas” as ““high seas –(a) has the same meaning as in UNCLOS; and (b) includes the EEZ.”  In a bizarre twist of legal reasoning, the court determined that the term “EEZ” in Section 2 of the Piracy and Maritime Violence Act refers only to the Mauritian EEZ, so that the term “high seas” in Section 2, quoted above, only includes the Mauritian EEZ while excluding all other countries’ EEZs.  Because the attack against MSC Jasmine took place within the Somali EEZ, the court determined that the prosecution had failed to satisfy the “high seas” requirement under Mauritian law.  This conclusion is unfortunate and contrary to UNCLOS and many other national piracy laws.  UNCLOS clearly defines the high seas as including all EEZs and excluding only the coastal states’ territorial seas.  It is unclear how the Mauritian law can be interpreted differently, as it clearly states that the meaning of “high seas” is the same as in UNCLOS!

Finally, the court found that the twelve suspects had been detained illegally by the French authorities, because of the length of their detention (about three weeks) before they were transferred to Mauritius and charged with a particular crime (piracy). The court examined the issue of detention legality under French law, and thus also under the European Convention on Human Rights (because France was the flag state where these suspects were detained).  The court discussed multiple European Court of Human Rights cases to determine whether the length of detention in this case was reasonable, and ultimately decided that it was not, because the period of three weeks was excessive, because the piracy suspects may have been mistreated by the French authorities, and because they could have been airlifted as opposed to transported by boat to Mauritius.  “We do not find that the present matter was met with “wholly exceptional circumstances” which warranted the twelve accused parties being detained or retained, and therefore deprived of their liberty for such a long period on board of the Surcouf….This finding in itself is so grave that it would have warranted the stay of proceedings outright against all twelve Accused in view of a flagrant breach of a fundamental right of the highest importance in a democratic society.”

This conclusion is unfortunate as well, as it appears that a case of piracy truly represents “exceptional circumstances” (under the European Convention on Human Rights) warranting a longer delay before the suspects are transferred to competent prosecuting authorities. The suspects had been apprehended on the high seas, far from Mauritius, and it was unclear which State would accept jurisdiction and subject these suspects to trial.  Under such circumstances, a delay of three weeks appears more than reasonable, and it is unfortunate that the Mauritian court reached a different conclusion.  While respecting procedural rights of any criminal defendant is of utmost importance to all democratic nations, detaining piracy suspects on board a ship for three weeks while determining where to ultimately prosecute them does not rise to the level of a flagrant due process violation which would justify a court’s decision to dismiss.  It would have been far more beneficial, in light of the necessity to appropriately combat piracy on a judicial level, to convict these suspects, provided that the prosecution had established all the other elements of the offense of piracy.

Last but not least, the outcome of this case is surprising politically. Mauritius had benefitted financially from its transfer agreement and its decision to open court-house doors to piracy prosecutions.  In this particular case, the press had reported that Mauritius was paid the sum of 3 million Euros to accept these piracy suspects and to prosecute them in Mauritian courts.  It appears from reading this verdict that the Mauritian court somehow forgot about its country’s important role in the global fight against piracy, and engaged instead in dubious legal reasoning leading toward acquittal.  We can only hope that the case will be overturned on appeal.


Oil Tanker Pirated Off Ghana Coast

On June 7th, reports surfaced that a Liberian tanker had gone missing off the coast of Ghana.  The captain had apparently made a distress call reporting that the vessel was being attacked by pirates.  As of today, the ship remains missing; unfortunately, is it likely that it has been pirated and we can only speculate as to the kinds of demands that pirates will make regarding the ship and its crewmembers.

Although piracy has been on the decline off the coast of Somalia, in 2013 the number of piracy attacks rose by one-third off the coast of West Africa, thereby driving up insurance rates and threatening the safety of maritime routes in this region.  The root cause of West African piracy seems to be the uprising in the Nigerian oil-rich Niger Delta, where criminal networks and gangs have blossomed.  West African pirates typically hijack larger ships carrying precious cargo, such as oil.  Attacks have taken place in Nigeria, but also off the coasts of Ghana and Cote d’Ivoire, undermining the development of West Africa as an oil and gas hub by destabilizing deliveries.  West African pirates seem particularly daring.  In an earlier attack, in January 2014, they attacked a vessel off the coast of Angola and sailed it all the way up to Nigeria.

As I have reported earlier on this blog, the development of West African piracy is a serious concern, as it threatens to destabilize the region and thwart economic development.  Unfortunately, it is questionable whether lessons learning from the global combat against Somali piracy will be of any value, as the two piracy models differ on many levels.  The rise of West African piracy underscores the need for the international community to continue its anti-piracy efforts, despite a decline in Somali piracy attacks.

UNOSAT Global Report on Maritime Piracy – a Geospatial Analysis

As part of its UNOSAT programme, the United Nations Institute for Training and Research recently launched a global report on the geospatial analysis of piracy activities. UNOSAT uses satellite derived geoinformation in critical areas such as humanitarian relief, human security, strategic territorial and development planning.

The global report, building primarily on data maintained by the International Maritime Organization, explores how trends in geospatial patterns and severity of reported piracy incidents are developing from 1995 to 2013.

Maritime Circulation and Piracy 2006-2013

Courtesy UNOSAT Global Report on Maritime Piracy

Not surprisingly, two areas were observed because of the significant trends in piracy activities: the Western Indian Ocean, including the Gulf of Aden, and the Gulf of Guinea. In the Indian Ocean, including the Malacca Strait, and in South America, no major trends were observed. Piracy in the Malacca Strait, however, continues to be a major disruptor for safe routes in the eastern Indian Ocean.

As for the Western Indian Ocean, the following observations are made:

  • There has been a significant reduction in the number of pirate attacks during 2013 – to the extent one can claim they have almost stopped (28 incidents in 2013, of which only 8 since 15th August). Not a single vessel was hijacked;

  • The median distance from where an attack is reported to the nearest coast has dropped from close to 400 km in 2010 to under 50 km in 2013, thus indicating a considerable reduction in the radius of successful pirate activities;

  • Incidents involving the use of rocket propelled grenades, relatively heavy armour for pirates, has decreased from 43 in 2011 to 3 in 2013;

  • Ransom amounts paid to pirates have decreased from US$150M in 2011 to about US$60M in 2012;

  • In addition to the well-known feature of piracy “mother ships” from which fast-going skiffs can radiate, a new trend of floating armoury vessels supplying anti-piracy entities with weapons out in international waters is observed.

The Gulf of Guinea differs from the western Indian Ocean, although the overall number of attacks carried out is of a smaller scale:

  • The number of attacks show no sign of decreasing;

  • Attacks in the high seas have increased, while attacks in ports are on the decrease;

  • The types of attacks have gone from low-intensity towards more violent acts;

  • The Financial losses to the national economies for countries with ports in the Gulf of Guinea are considerable. This has forced certain countries to take military action that has proven successful.

The findings confirm the already well-known trends in modern day piracy in these areas.

Several organisations collect and analyse data relevant to piracy. While there have been major improvements in information-sharing, this is yet another area in the fight against piracy which suffered from fragmentation of approaches and consequently from dispersion of resources. The report thus provide for a number of recommendations for standardisation and possible better coordination.

Notably, the report advocates for the creation of a “severity index” to better differentiate the gravity in the use of violence during reported incidents in future data collection and analysis. The report indeed remarks how for close to half of reported piracy incidents no threat of violence has been reported. A similar index is used by the ReCAAP in monitoring piracy incidents in South East Asia.

The report also highlights how the distance from the coasts from which the pirate carry out their attacks is correlated to the pirates’ technical and operational capabilities and could thus function as an early predictor of an escalation in the attacks.

EU-Mauritius Transfer Agreement at Risk?

It is our pleasure to welcome a post by Marta Bo, Visiting Researcher at the University of Amsterdam Center for International Law.  Marta’s post discusses a recent challenge to the validity of the EU-Mauritius transfer agreement, brought by the European Parliament to the European Court of Justice.  Welcome, Marta! 

In Case no. C-658-11 the European Parliament (EP) is requesting the Court of Justice of the European Union to annul Council Decision 2011/640/CFSP of 12 July 2011 on the agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates seized from the European Union Naval Force (EU NAVFOR) to the Republic of Mauritius.

In its first plea, the EP contests the legal basis of the EU-Mauritius transfer agreement which was adopted within the framework of the common foreign and security policy (CFSP). The adoption of Article 37 TEU as a legal basis entailed, from a procedural point of view, the application of Article 218 (5) and (6) TFEU which dispense the Council from seeking the consent of or consulting the EP when concluding agreements which relate solely to the CFSP.  According to the EP the contested decision is invalid because it does not exclusively relate to CFSP, but is also linked to other fields, such as judicial cooperation in criminal matters and police cooperation, to which the ordinary legislative procedure applies. In its second plea, the EP claims that the Council has fallen short of complying with the obligation to immediately and fully inform it at all stages of the procedure (Article 218 (10) TFEU).

The EU-Mauritius transfer agreement is only one among several agreements (see here and here) on the transfer of suspected pirates that the EU has concluded with third States on the basis of EU Council Joint Action 2008/851/CFSP of 10 November 2008

EU Council Joint Action 2008/851/CFSP was explicitly adopted to put into effect UNSC Resolutions 1814 (2008), 1816 (2008) e 1838 (2008) calling, inter alia, for international cooperation to combat the threat to international peace and security constituted by the situation in Somalia. To this end, the Joint Action established EU NAVFOR – operation Atalanta, the first European Security and Defence Policy (ESDP) naval military operation. Its mandate (extended until December 2014) embraces: a) the protection of both World Food Programme vessels delivering food aid to the Somali population and, more generally, of vulnerable vessels cruising the so-called Area of Operation; b) the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast through the use of necessary measures, including the use of force; c) the arrest, detention and transfer of pirates in view of prosecution being brought under Article 12 .

Article 12 of the ‘Atalanta’ Joint Action specifically deals with adjudicative jurisdiction and is the legal basis for agreements between the EU and third States on the transfer of suspected pirates captured by EU NAVFOR, such as the one concluded with Mauritius. It indeed provides that in case of inability or unwillingness of the flag Member State or the third State participating in the operation, of the vessel which took them captive, suspected pirates shall be transferred to a Member State or any third State which wishes to exercise its jurisdiction; on the other hand, transfers to any third State are prohibited when the conditions agreed for the transfer are inconsistent with international human rights law.

It is against this background that Advocate General Bot in his Opinion delivered on 30 January 2014 assessed the content and objectives of the EU-Mauritius transfer agreement.

In proposing the dismissal of the first EP’s plea AG Bot asserted that transfer agreements are not only closely linked to the ‘Atalanta’ Joint Action, which comes under the CFSP, but they are essential to its implementation and effectiveness (para 71 of the Opinion). The Joint Action is a measure that should be situated in the context of the fight against Somali piracy in order to preserve international peace and security having due regards to human rights (paras. 83 and 114 of the Opinion). The close link between transfer agreements and the ‘Atalanta’ Joint Action results in the formers squarely falling within the aims of the EU’s external action and, in particular, within Article 21(2)(a)-(c) and (h) TEU, which set out objectives traditionally assigned to the CFSP. In addition, although transfer agreements contain measures similar to judicial cooperation in criminal matters and police cooperation, such traditional instruments of the Area of Freedom, Security and Justice could be mobilized in favor of  objectives of the CFSP and be absorbed therein (para. 118 of the Opinion). In AG Bot’s view the transfer agreement relates exclusively to the CFSP within the meaning of Article 218(6) TFEU and therefore the contested decision was rightly based solely within the framework of the CFSD.

Although the Court of Justice does not have jurisdiction in matters related to the CFSP (Article 24(1) TEU), the AG claimed that the CFSP cannot completely escape the scrutiny of the EU judicature, because it must be able to assess the validity of the procedure adopted to conclude a treaty. AG Bot suggested that the second plea should also be dismissed in light of the fact that the obligation of the Council to inform the Parliament at all stages of the procedure is less stringent in CFSP procedures (where consent from or consultation of the Parliament is not required). Surprisingly, he argued that the Council complied with its obligation by informing the Parliament three months after the agreement was concluded.

It now remains to be seen whether the Court of Justice will follow AG Bot’s arguments. In case it won’t, what consequences will a ruling of annulment have for the EU transfer agreement with Mauritius? Will the annulment have any impact on the piracy trials ongoing before Mauritian courts?

Under Article 264 TFEU the institution whose act has been declared void is required to take the necessary measures to comply with the judgment of the Court. In brief, the Council will have to remedy the grounds on which the annulment was pronounced, which means that it will have to adopt the proper legal basis and procedure.

Since there are important reasons of legal certainty, especially with regards to ongoing piracy trials before Mauritian Courts, the Court of Justice may also want to exercise its discretion either to decide which of the effects of the annulled decision shall be considered as definitive or to maintain its effects until a new decision is founded on an appropriate legal basis (Article 264 TFEU). This would ensure that previous transfers of pirates to Mauritian courts are unaffected by the Court’s ruling.

Moreover, the adoption of the proper legal basis and procedure by the Council will also ensure that the EU avoids being in breach of its commitments under the agreement. Although the annulment of the EU internal act concluding the agreement cannot per se have any consequences with respect to Mauritius, it could impair EU capacity to comply with the obligations arising from the agreement, as a result of which the EU could incur international responsibility.

Indeed, the EU remains responsible under international law for the performance of the treaty and could not invoke its internal law as justification for its failure to perform the agreement (Article 27 VCLTIOs ). In addition, it could not invoke the fact that its consent to be bound by the agreement was invalid since it was expressed in violation of its internal rules regarding competence to conclude treaties, in order to avoid international responsibility (Article 46 VCLTIOs).

Although the VCLTIOs has not yet entered into force, the corresponding rules regarding Internal law and observance of treaties and Provisions of internal law regarding competence to conclude treaties contained in its sister Convention (Articles 27 and 46 VCLT) may be accepted as representing customary law, which is binding for the EU.  

Therefore, in light of the importance of the security of legal relations and the irrelevance of internal questions regarding the procedure used for the conclusion of a treaty, the responsibility of the EU for the performance of the transfer agreement cannot be affected by the annulment of the Council decision.



Piracy in Corsica?

The French press reported recently a piracy attack off the South-West coast of Corsica, a French island in the Mediterranean Sea.  According to the press reports, the attack took place on February 16th, and the victim vessel was a French yacht, with three passengers (including the yacht owner) on board.  The four attackers were allegedly both masked and armed; they managed to quickly neutralize the yacht passengers and to lock them up inside the cabin.  After about three hours, the attackers forced the victims to embark on a smaller life boat (which had been attached to the larger yacht), and then abandoned them on the sea.  Luckily for the victims, they managed to reach the southern coast of Corsica safely, where they reported the attack.

While the reasons for the attack remain uncertain as of now, it is possible that the attackers were part of a yacht trafficking ring.  Such a ring existed during the last decade, between southern France, Corsica, and Tunisia, before it was successfully dismantled through law enforcement operations.  Piracy attacks in the Mediterranean Sea are of course virtually inexistent.  It was thus surprising to hear about reports of this attack.

Legally speaking, it is unclear whether this attack can properly be classified as “piracy.”  Under the United Nations Convention on the Law of the Sea, an act of piracy has to be committed on the high seas – waters beyond the 12-nautical-mile territorial sea of the littoral state.  In this instance, the French press did not specify where the attack took place and whether it occurred in the French territorial sea or on the high seas (the article mentioned that the attack took place “near” the coast of Corsica).  If the attack did take place on the high seas, then we would be witnessing the incidence of piracy off the coast of France – something that the world has not seen in several centuries!