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.

 

 

New Article on Aiding and Abetting Piracy

piracy renaissance table of contents

My article on intentional facilitation and incitement to piracy has at long last been published in the Florida Journal for International Law. It argues that general principles of law as discerned from the jurisprudence of international criminal tribunals may serve as the basis for the application of appropriate modes of responsibility for piracy. Ultimately, as applied to two piracy cases in the U.S. it concludes that aiding and abetting piracy may be perpetrated on Somali territory or territorial waters and still be subject to jurisdiction within the U.S. In view of the time-lapse between initial submission and publication (as is often the case in law review publishing), the editors graciously allowed me to append a postscript, updating the progress of two appeals in separate circuit courts which agreed in large part with my conclusions.

Reprinted with permission from the Florida Journal of International Law. 

The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force – An Update

A guest post by David Hammond. For a background, see also our previous post on the publication of the 100 Series Rules. 

David Hammond is the Head of Maritime Practice at 9 Bedford Row International Chambers London, author of the 100 Series Rules, a former frontline Royal Marines’ Officer and former head maritime lawyer to the United Kingdom’s Chief of Joint Operations for counter-piracy matters. He is an Associate Research Fellow of the Greenwich Maritime Institute and international speaker on maritime Rules for the Use of Force. The comments within this post comprise the personal opinion of the author and do not constitute any measure of formal legal advice whatsoever and howsoever read. Formal legal advice may be obtained on instruction.

Also posted at All About Shipping and the Bridge.

Background

Over the past two years, the 100 Series Rules (“the Rules”) have been conceived, researched, drafted and finally published in soft-copy form as of May 3, 2013 as a first edition. They are a first for the commercial maritime industry and go one step further than simple guidance for the drafting Rules for the Use of Force (RUF) and guidance as to where responsibility lies for producing RUF as an inclusive part of a commercial contract. At the time of writing, the 100 Series Rules have been short-listed in support of one of the five finalists for the Lloyds List Global Awards 2013 Maritime Lawyer of the Year.

At the very least, the Rules provide a lawful core set of principles and RUF for use by emerging companies. At best, they provide a point of reference that can be relied upon as a robust legal interpretation for the lawful use of force by international organisations and State entities, enabling auditing, standardisation and accountability in any chain of events where force is lawfully used at sea in self-defence.

The Rules have been developed for the benefit and use of the entire maritime industry, intended to be referred to without the imposition of State or geographical boundaries, overly restrictive interpretations, interference from commercial entities seeking commercial advantage or State authorities seeking State advantage.  In short, the previous lacuna in provision to the international community of an actual model set of rules has been filled and is now being further developed alongside the registered “Supporting Entities”, as highlighted on the website.

The Law

The law that underpins the Rules is that of individual self-defence; itself a universal concept that can be found to outdate modern legislative interpretations going back to the Bible, Koran and other main religious texts by way of example. It is the individual right of all persons in every region, in every country and that includes indigenous seafarers, merchant sailors, as well as Privately Contracted Armed Security Personnel (PCASP), to be able to lawfully defend themselves against criminal acts of violence.

The Rules themselves are concise in terms of their core principles. They are concise in their outline of graduated defensive response measures that individuals may be required to undertake to protect themselves and those immediately around them. This, of course, includes the use of lethal/deadly force as a last resort, in self-defence.

The drafters of the Rules have researched significant numbers of individual State’s legislation covering the issue of self-defence (presentations containing this research may be found open-source on the website). They have subsequently identified the international objective law test of what is “reasonable and necessary” within the Rules, while accounting for proportionality in the use of any force as against an identified treat. The objective test stands as a higher standard as against which actions may be measured than that necessarily found in some State’s legislation at the individual national subjective level. In some cases, individual State’s legislation may well exceed that laid down in the Rules.

The 100 Series Rules will not, however, provide any form of indemnity or immunity whatsoever against civil or criminal liability when force has been used unlawfully.

International Supporting Entities

The Rules are currently supported in their conception and use by over 40 international entities. These currently include a main flag State, ISO, Lloyds Register, BIMCO, UNICRI, SAMI as well as international maritime associations representing the world’s shipowners and ship managers, international PMSCs, insurance and maritime intelligence providers and leading international law firms specialising in piracy matters. In short, this is an international effort driven by leading commercial entities based upon practical and pragmatic real-time experiences, combined with the general call for clarity of rules, transparency in their use and accountability for the lawful use of force at sea.

IMO and ISO

In support of ISO PAS 28007-2012, the Rules were first submitted to ISO in October 2012. They were accepted a work item and are undergoing a final review at the time of writing.

 In June 2013, the Rules passed through the IMO at Maritime Safety Committee 92 as an INF paper sponsored by the Republic of the Marshall Islands, ISO, BIMCO and the International Chamber of Shipping. They were subsequently noted by the IMO and unchallenged for the detail of their contents following the session.

American Standards

There appears to be a dual-track approach to this issue of standardisation as between the US-based ASIS organisation and the European International Organisation for Standardisation (ISO). This article will not debate the pros and cons of the two initiatives, noting only that up to the point of the release of the 100 Series Rules, there was no other reference to an international model standard freely made available to the maritime industry.  Further, without competition, in what is an otherwise commercially focused arena, lone imposed standards may fall foul of anti-competition rules and legislations.

The maritime environment is of course is an entirely different environment to that of both established and emerging land-based operations, often undertaken with the backing of a UN mandate following a period of war-fighting as part of an international, non-international or internal armed conflict, often involving NATO forces and where the Law of Armed Conflict may have been invoked.  In stark comparison and as most readers will know, piracy, armed robbery and hijacking are criminal acts that require a constabulary response and hence the restriction in the maritime environment, (outside of armed conflict) for the need for recognised RUF, as opposed to offensive Rules of Engagement (ROE).

In tandem with the text of the American National Standard PSC 1-2012 ‘Management System for Quality of Private Security Company Operations – Requirements with Guidance’ and reassuringly so, the 100 Series Rules includes the same consideration and understanding for the need of the requirement for human rights at a State, commercial and individual level. The essence and intent of the American and European Human Rights Conventions, as well as the UN Universal Declaration of Human Rights and supporting texts have been rightly integrated as part of the comprehensive approach to the issue of maritime RUF.

Furthermore, 9 Bedford Row International (9BRi) Chambers’ Maritime Practice, will shortly be releasing the first international model guideline document “Model Guiding Principles and Best Practice for Human Rights Considerations in the Maritime Industry” ©Copyright 2013 9BRi. It will be available through http://www.100seriesrules.com/Human_Rights. This will be for the reference and use by the maritime (including the maritime security) industry and interested third parties. It will be based upon current international conventions and decided international case law, backed by a comprehensive legal advice.

Summary

Currently, there stands a lawful international model for maritime RUF that works, is internationally supported, widely socialised and rapidly growing so.  As a model set of actual rules, the 100 Series addresses the commercial requirements of the international maritime industry in greater depth than any other currently available RUF guidance and there are no cogent reasons why the established 100 Series cannot complement emerging land standards.

As seen with the development of Best Management Practice (BMP), the 100 Series Rules will remain at the disposal and for the use of the international maritime industry. It will be an iterative document that will develop over time, but most importantly, it should not be undermined by entities seeking commercial advantage at the expense of supporting and protecting seafarers in undertaking often difficult and dangerous roles at sea.

The 4th Circuit Agrees – Kingpins on Land are Pirates Too

Weeks after the DC Circuit issued its opinion in US v. Ali, finding pirate aiders and abettors who never enter the high seas to be equally guilty of piracy, the 4th Circuit has issued its opinion in US v. Shibin reaching the same result. It held:

[UNCLOS] Article 101 reaches all the piratical conduct, wherever carried out, so long as the acts specified in Article 101(a) are carried out on the high seas. We thus hold that conduct violating Article 101(c) does not have to be carried out on the high seas, but it must incite or intentionally facilitate acts committed against ships, persons, and property on the high seas.

The 4th Circuit relies in part on the DC Circuit opinion in Ali, but it also points to recent UN Security Council resolutions encouraging states to investigate and prosecute those who illicitly finance, plan, organize, or unlawfully profit from pirate attacks off the coast of Somalia. The 4th Circuit panel states that “Clearly, those who “finance, plan, organize, or unlawfully profit” from piracy do not do so on the high seas.”

Let us take a moment to take a broader view of the policy implications of these legal results. Both Shibin and Ali raise interesting points of law that will need to be resolved before high-level pirates are prosecuted in national courts. But it bears emphasis that there remains a level of the pirate hierarchy that continues to enjoy impunity. The financiers of these operations and their criminal masterminds have not been indicted in any jurisdiction, despite international efforts to trace funds and to bring inciters and facilitators to justice. If the courts in Ali and Shibin had reached the opposite result, it would limit the prosecution of pirate aiders and abettors to the jurisdiction where the facilitator acted. In these cases, that state is Somalia. Despite some recent improvements, it is not clear that Somalia’s criminal justice system is prepared for complex prosecutions of financial criminals or for criminal masterminds who never set foot on pirate ships. Thus a contrary legal result in these cases would have undermined the transnational system of criminal justice that has been adopted to address Somali piracy.

Ali post-script – Potential Rehearing en banc

As readers will note from the last two posts, the Federal Court of Appeals in Washington DC ruled in US v. Ali, that piracy may include aiding and abetting committed from shore (i.e. not on the high seas). As per custom, a three-judge panel issued this ruling. Ali’s attorney has now filed a Petition for Rehearing en banc (by the entire court). Federal Courts of Appeal are reluctant to grant rehearing en banc because of the drain on judicial resources. This is especially true in the DC Circuit which has only granted rehearing in a single case in each of the last few terms. Nonetheless, the DC Circuit has indicated some interested in Ali’s petition for rehearing as last week it ordered the government to respond. Rehearing of the case could result in the same or different outcome. But it would also raise the profile of the case for possible hearing at the US Supreme Court.