I. INTRODUCTION
On 10 November 2008, the first maritime operation of the European Union (EU) was launched (EUNAVFOR Operation Atalanta) pursuant to the Council Joint Action 2008/851.Footnote 1 Its mission was set out in Article 1 as follows:
The European Union (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.Footnote 2
While Operation Atalanta was scheduled only for a year, its mandate has been prolonged on several occasions, most recently until December 2016.Footnote 3
Without doubt, this Operation, along with the concerted efforts of NATO and other States individually, has contributed to the significant reduction of piracy off the coast of Somalia.Footnote 4 This does not mean that piracy has become extinct in Africa. On the contrary, in addition to the remaining attacks off the coast of Somalia,Footnote 5 there is increased pirate activity off the coasts of Central and Western Africa, especially in the Gulf of Guinea.Footnote 6 This has already been condemned by the Security CouncilFootnote 7 and has sparked reaction from States in the region.Footnote 8
The EU has been instrumental not only in the prevention of piracy at sea but also in facilitating the prosecution of suspected pirates. It is sad but true that the number of prosecutions of arrested pirates have been proportionally low in comparison to the volume of pirate attacks since 2008.Footnote 9 The difficulties in prosecuting suspected pirates have been extensively analysed in academic literature.Footnote 10 To address the reluctance of EU Member States to prosecute captured pirates the EU has opted to enter into memoranda of understanding with countries in the region, for example Kenya, Seychelles, Mauritius and Tanzania, with a view to transferring suspects over to them.Footnote 11 It is also negotiating similar agreements with Mozambique, South Africa and Uganda.Footnote 12
It is submitted that Operation Atalanta, which marks the increasing presence of the EU on the international plane and, in casu, in the maritime domain, poses several legal questions: first and foremost, what is the legal basis of the Operation under both international and European law? Other questions include what legal framework is applicable to the Operation? Is the Union bound by the totality of the rules of the law of the sea, including the 1982 United Nations Convention on the Law of the Sea (LOSC)? Moreover, in terms of the law of international responsibility, if there are breaches of relevant international legal obligations in the course of the Operation, will these breaches be attributed to the EU itself or to the Member States? Is there room for dual attribution or for the indirect responsibility of the Union?
Similar questions arise also in cases of transfer of suspected pirates to third States pursuant to the bilateral agreements entered into by the EU. Who bears responsibility for a violation of human rights law? Interestingly, on 11 November 2011, the administrative court of Cologne ruled that Germany and not the EU had violated the prohibition of torture, inhuman and degrading treatment by transferring suspected pirates to Kenya pursuant to the EU–Kenya agreement.Footnote 13
This article addresses these questions and sets out the contours of Operation Atalanta under international law. It argues that the Operation should not be assessed as a single event, but that each of its various phases should be the subject of appraisal in the light of the applicable rules of international law and of international responsibility.
Accordingly, this article will first, briefly discuss the legal basis of the Operation from the perspective of European law. It will then shift its focus to international law and canvass its legal basis and the rules of international law applicable to each phase of the Operation; this will be followed by an analysis of issues concerning international responsibility in each of these phases. Drawing insights from the practice of the Operation per se, the paper will conclude that the EU has entered into chartered, yet muddy, waters.
II. THE LEGAL FRAMEWORK OF OPERATION ATALANTA UNDER EU AND INTERNATIONAL LAW
A. Operation Atalanta as Part of the Common Security and Defence Policy of the Union: The Legal Framework of CSDP Operations under EU Law
Operation Atalanta was the first operation of the European Union in the maritime domain,Footnote 14 but not the first mission of the EU within the framework of the Common Security and Defence Policy (CSDP).Footnote 15 The number of CSDP missions has been steadily increasing. There have been over 20 CSDP missions in third States, covering aspects of both military and civilian crisis management.Footnote 16 Since the Lisbon treaty created a single legal personality for all EU activities, this legal personality covers inter alia the activities of the EU in the framework of the common foreign and security policy, including CSDP crisis management operations. But even prior to the Lisbon treaty, it was persuasively argued that the ‘Union anyway fulfilled the criteria for an international organization to enjoy international legal personality, set out by the International Court of Justice (ICJ) in 1949’.Footnote 17 This assertion was warranted also by the various international agreements concluded by the EU in the context of its European Defence and Security Operations.Footnote 18 Therefore, acts of CSDP missions can under certain conditions be attributed to the Union.Footnote 19
As to the legal basis of CSDP operations under EU law, Article 42(1) of the Treaty on the European Union (TEU)Footnote 20 provides that the CSDP ‘shall provide the Union with an operational capacity drawing on civil and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter’. Article 43 of the TEU adds that these missions
shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation’ and may all ‘contribute to fight against terrorism, including by supporting third countries in combating terrorism in their territories.
The basic legal instrument governing each CSDP operation is a Council decision, based on Articles 43 and 28 of the TEU, adopted in accordance with the voting rules laid down in Articles 31 and 42(4) of the TEU. Under Article 28 of the TEU, these decisions of the Council ‘shall lay down their objectives, scope, the means to be available to the Union, if necessary their duration, and the conditions for their implementation’ and ‘shall commit the Member States in the positions they adopt and in the conduct of their activity’.Footnote 21
The decision, which is an act of the Council and not of the Member States jointly, is the successor to the Joint Actions adopted pursuant to Article 14 pre-Lisbon TEU. Such Joint Action, namely Council Joint Action 2008/851, was the legal basis of the EUNAFOR Operation Atalanta as it was established prior to the Lisbon Treaty.
These acts generally set out, inter alia, the mission and the mandate, the structure and organization of the operation, including the designation of the commanders, head of mission and headquarters, as well as the command and control relations. They also contain provisions on the status of forces or mission, financial arrangements, participation of third States and on the commencement and termination/duration of the operation. In military operations, there is usually a further Council decision which launches the operation, together with the approval of the Operation Plan and the Rules of Engagement.Footnote 22
The key decision-making body in the CSDP is the Council; however, its work is prepared by several bodies, including the Political and Security Committee (PSC), the EU Military Committee (EUMC), the Political Military Group and the Committee for Civilian Aspects of Crisis Management. The PSC plays the most crucial role, since it exercises, under the responsibility of the Council of the High Representative, ‘political control and strategic direction’Footnote 23 over CSDP operations. The Council may authorize the PSC to take the relevant decisions concerning the political control and strategic direction of the operations.Footnote 24 In practice, the PSC is authorized to amend the planning documents, the Chain of Command and the Rules of Engagement, and the appointment of the Operation/Force Commander or Head of Mission, while the decision-making powers with respect to the objectives and termination of the operation remain vested in the Council.Footnote 25
CSDP operations generally have a status independent of that of the participating States and they are subject to the command and control of the EU bodies. The Union exercises effective control through the Council, the PSC and in particular through the Operation and Force Commanders.Footnote 26 In practice, the highest level of military command in EU military operations rests with the Operation Commander. The latter will normally receive operational command over the forces put at his disposal by the participating States via a transfer of authority.Footnote 27 The next command level, the highest in the field, is the Force Commander. Not every Member State contributes personnel to each operation, and it is possible to entrust the execution of a particular task to a group of Member States which are willing and have the capability necessary to do so.Footnote 28
Finally, under Articles 37 and 218 of the TEU the EU may conclude international agreements relating to CSDP operations, including agreements on the participation of third States and on the status of forces/missions (SOFAs/SOMAs).Footnote 29 Accordingly, in the context of EUNAVFOR Operation Atalanta, the EU has concluded SOFAs inter alia with Somalia, Djibouti and the Seychelles and participation agreements with Croatia and Montenegro.Footnote 30 Also, as said above, it has concluded transfer agreements with Kenya, the Seychelles, Mauritius and Tanzania.Footnote 31
However, the agreements with Mauritius and Tanzania have been under judicial scrutiny. In its Judgment of 24 June 2014 in Case C-658/11 Parliament v Council, the Grand Chamber of the Court of Justice of the EU (CJEU) annulled the Council Decision 2011/640/CFSP of 12 July 2011 on the signing and conclusion of the agreement with Mauritius because of Council's failure to provide the Parliament with the information required under Article 218(10) of the TFEU.Footnote 32 As the CJEU underlined in its decision, by failing to do so, the Council had impeded the Parliament in the exercise of its ‘domestic scrutiny’.Footnote 33 However, the Court maintained the effects of the decision until it was replaced so as not to hamper the conduct of the Operation.Footnote 34 On the other hand, on 28 May 2014, the Parliament requested the annulment of the Council Decision by which the agreement with Tanzania on the transfer of pirates had been concluded.Footnote 35
As regards the responsibility of the Union in this regard, the starting point is Article 340 of the Treaty on the Functioning of the European Union (TFEU),Footnote 36 which reads as follows:
1. The contractual liability of the Union shall be governed by the law applicable to the contract in question.
2. In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.
The second paragraph is of significance because it establishes the principle of non-contractual liability of the Union, which should be read together with Article 268 of TFEU, according to which the ECJ ‘shall have jurisdiction in disputes relating to compensation for damage provided for in the second and third paragraphs of Article 340’. Nonetheless, this is qualified by Article 275 of the TFEU, which provides that, with the exception of its jurisdiction to monitor compliance with Article 40 of TEU and to review the legality of certain Decisions, the ECJ ‘shall not have jurisdiction with respect to the provisions relating to the [CFSP] nor with respect to acts adopted on the basis of those provisions’. Consequently, the ECJ does not have the competence to consider actions for damages relating to the conduct of CSDP Operations.
As observed by Naert,
this does not mean that there is no competent jurisdiction to judge such case. First … there are claims settlement procedures in the host state provided for under SOFAs/SOMAs … . Second, pursuant to Article 19(1), second subparagraph TFEU, ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. This is a horizontal provision that also covers CSDP.Footnote 37
This notwithstanding, it is acknowledged that such claims will have to go through national courts, which might prove not so effective.Footnote 38 For example, according to the Foto-Frost judgment, national courts may consider the validity of a Community act even though they have no jurisdiction to declare a Community act invalid. Only the Court of Justice of the EU, which is responsible for ensuring that EU law is applied uniformly in all the Member States, has the jurisdiction to declare void and invalid an act of a Community institution.Footnote 39
B. Operation Atalanta under International Law: The Legal Basis and the Law Applicable to the Operation
1. The legal basis of the operation
As stated in the Joint Action which established the Operation, ‘[t]he European Union (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’.Footnote 40 It seems, therefore, that prima facie the legal basis of the relevant operation lies in these Security Council Resolutions.
Indeed, following the increase in pirate attacks in the Horn of Africa and the advance notification of the Transitional Federal Government (TFG) of Somalia to the Secretary-General of the UN,Footnote 41 the Security Council adopted Resolution 1816 (2008) on 2 June 2008 under Chapter VII of the UN Charter, encouraging Member States to cooperate with the TFG to deter acts of piracy and armed robbery at sea and even authorizing entry in the territorial waters of Somalia for this purpose.
The EU responded by launching Operation Atalanta, on 8 December 2008, to offer protection to vulnerable vessels sailing in the area in accordance with UNSC Resolution 1816 (2008).
According to the Joint Action, the mandate of the EU naval forces was explicit:
[u]nder the conditions set by applicable international law, in particular the United Nations Convention on the Law of the Sea, and by UNSC Resolutions 1814 (2008), 1816 (2008) and 1838 (2008), Atalanta shall, as far as available capabilities allow [inter alia]: (a) provide protection to vessels chartered by the WFP, including by means of the presence on board those vessels of armed units of Atalanta, in particular when cruising in Somali territorial waters; (b) provide protection, based on a case-by-case evaluation of needs, to merchant vessels cruising in the areas where it is deployed; (c) keep watch over areas off the Somali coast, including Somalia's territorial waters, in which there are dangers to maritime activities, in particular to maritime traffic; (d) take the necessary measures, including the use of force, to deter, prevent and intervene in order to bring to an end acts of piracy and armed robbery which may be committed in the areas where it is present.Footnote 42
EUNAVFOR Operation Atalanta was thus called, in cooperation with the other naval assets in the region (NATO Operation Ocean Shield, Combined Task Force 151 and other individual nations),Footnote 43 to escort vessels chartered by the UN World Food Program as well as other merchant vessels and to suppress piracy and armed robbery, even within Somalia's territorial waters.
Although this action was triggered by Security Council Resolutions adopted under Chapter VII of the UN Charter,Footnote 44 the legal basis of the Operation does not lie in these Resolution(s); rather, the legal basis can be found, on the one hand, in the law of the sea as regards actions undertaken on the high seas and, on the other, in the prior consent of the TFG for the action undertaken within Somalia's territorial jurisdiction. As was explicitly mentioned both in the relevant SC Resolution(s) and in the founding Joint Action, States and international organizations have to act ‘in a manner consistent with the action permitted with respect to piracy under Article 100 et seq. of the United Nations Convention on the Law of the Sea’.Footnote 45 Under that treaty, all States are entitled to exercise the right of visit in respect of vessels suspected of being engaged in piracy on the high seas as well as to seize any pirate vessel and even exercise their jurisdiction over the suspected pirates.Footnote 46 Hence, as far as action undertaken on the high seas was concerned, States and, in casu, the EU were not vested with any authority or any powers that they did not already have under international law by the Security Council Resolutions.
More significantly, as regards entry into Somalia's territorial waters or the suppression of acts of violence committed therein, it would seem that, on the face of it, the legal basis lay in the relevant SC Resolutions. Indeed, in paragraph 7 of Resolution 1816 (2008), the Council decided that:
For a period of six months from the date of this resolution, States cooperating with the TFG [Transitional Federal Government of Somalia] in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TFG to the Secretary-General, may:
(a) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and
(b) Use, within the territorial waters of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery (emphases added).
However, this paragraph makes it is clear that these actions (entry and pursuit in Somalia's waters) were authorized by the Security Council pursuant to an advance notification by the TFG. This becomes clearer in paragraph 9, which notes that ‘this authorisation has been provided only following receipt of the letter from the Permanent Representative of the Somalia Republic to the United Nations … conveying the consent of that State’. In the light of this, it has been correctly noted that ‘the Security Council Resolutions were not strictly necessary, since the Transitional Government could have granted permission for foreign States to conduct law enforcement operations within its waters … without them’.Footnote 47 It follows that this consent by Somalia sufficed for States to enter into its territorial waters,Footnote 48 which would otherwise have been a violation of its territorial integrity, and to arrest pirates in cooperation with the TFG. According to Article 20 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), ‘consent by a State to particular conduct by another State precludes the wrongfulness of that act in relation to the consenting State, provided the consent is valid and to the extent that the conduct remains within the limits of the consent given’.Footnote 49
Hence, there are sound reasons to conclude that the authorization provided by the relevant Resolutions was not legally necessary for the exercise of the right of visit and the seizure of vessels engaged in piracy and armed robbery within Somalia's territorial waters, since the consent of Somalia conveyed by the letter of 9 December 2008 to the UN, prior to the adoption of the Resolution in question, had already provided a sufficient legal basis.Footnote 50
2. The rules of international law applicable to the Operation
The international rules applicable to Operation Atalanta and the fight against piracy under international law are mainly those of the international law of the sea and of international human rights law. These rules prescribe the conduct required of the EU and its Member States from the moment that warships encounter a pirate vessel, or a vessel suspected of being engaged in piracy, on the high seas to the moment that the suspected pirates are tried for the crime of piracy jure gentium. In discussing the rules governing Operation Atalanta, however, it is important to break down the operation into its various phases since each is subject to different rules, involving different actors and calling for the application of different rules of international responsibility.
At the outset, what is piracy jure gentium? Article 101 of LOSC defines piracy as consisting of any of the following acts:
any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or passengers of a private ship … and directed: (a) on the high seas, against another ship … (b) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.
As this definition makes clear, acts of violence that occur in the territorial or internal waters of the coastal State fall beyond the ambit of the international regulation of piracy jure gentium. When such acts occur in the territorial waters or ports of States they are described as ‘armed robbery against ships’,Footnote 51 as, for example, in the territorial waters of States littoral to the Malacca StraitsFootnote 52 and in the territorial sea of Somalia.
a) Phase I: The right of visit
The first phase of a counter-piracy operation concerns the decision to exercise the right of visit the pirate vessel or the vessel suspected of being engaged in piracy. The right of visit is accorded to States as an exception to the right of navigation enjoyed by all States on the high seas (Article 90 of LOSC) and the principle of the exclusive jurisdiction of the flag State on the high seas (Article 92 of LOSC).
Under Article 110 of LOSC, all warships or other duly authorized vessels are entitled to board and search vessels suspected of being engaged in piracy. The only requirement that Article 110 sets out is that there are ‘reasonable grounds’ to suspect that the vessel has been engaged in piracy, as defined in Article 101. This provision also grants the right to visit stateless vessels, which seems particularly appositeFootnote 53 since the majority of the pirate vessels involved in piratical attacks off Somalia, usually dhows or dinghies, are stateless.
However, the legal basis for intercepting pirate vessels or vessels under the control of pirates, shifts from Article 110 to Article 105 of LOSC, which provides that ‘on the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board’.Footnote 54 Accordingly, as long as there are only ‘reasonable suspicions’ that a vessel is engaged in piracy the interception will be carried out under Article 110. However, as soon as it is considered to be a ‘pirate’ vessel, that is, a vessel definitely under the control of pirates, the interception will be carried out on the basis of Article 105 of LOSC.
The right of visit is to be exercised by warships, under both the LOSC and under customary international law. But is the right of visit also enjoyed by international organizations? As far as the EU, and Operation Atalanta, is concerned, the following observations may be made:
The EU is not party to LOSC in respect of Part VII on the high seas. By virtue of Article 4(3) of Annex XI of LOSC,
an international organization [EU] shall exercise the rights and perform the obligations which its member States which are Parties would otherwise have under this Convention, on matters relating to which competence has been transferred to it by those member States [emphasis added].
The Member States have never transferred to the Union competences in respect of piracy jure gentium. Footnote 55
As regards customary international law, the EU is not a ‘State of registry’ of vessels so as to enjoy the respective freedoms of the high seas and the rights that are accorded to flag States, such as, for example, to exercise jurisdiction over pirate vessels.Footnote 56 This, however, does not mean that the EU is not bound by the rules of customary law concerning piracy.
As the ECJ has repeatedly confirmed, the EU, including the Communities, must, as subject of international law, respect international law—both treaty and customary—in the exercise of its powers.Footnote 57 In other words, whether the EU is bound by customary international law depends on whether Operation Atalanta falls within the powers of the EU. It is submitted that the fact that the EU has competence, even, arguably, a sui generis one,Footnote 58 in the field of CSDP,Footnote 59 entails, by necessary implication, that it has the competence to engage in maritime operations on the high seas, including counter-piracy operations. Hence, since Operation Atalanta is within the powers of the EU, it is bound by the rules of customary international law which govern such operations, including the obligation to respect the freedom of navigation, as reflected in the LOSC.
It is thus no surprise that Article 2 of the Joint Action 2008/851/CFSP concerning the mandate of the mission expressly refers to the LOSC: ‘[u]nder the conditions set by applicable international law, in particular the United Nations Convention on the Law of the Sea’.Footnote 60
It follows that the EU should respect the fundamental principle of the freedom of navigation as well as the provisions regarding piracy jure gentium and the jurisdiction afforded to States to counter piracy on the high seas under customary international law, and as reflected in LOSC. Accordingly, the EU may order or authorize the interception of vessels only when they are engaged in or suspected of being engaged in piracy, as defined in Article 101 of LOSC, and delegate to the Member States only competences explicitly provided under the law of the sea, such as under Article 105 of LOSC. Needless to say, these provisions also bind the Member States individually.
b) Phase II: The conduct of the interception
The next phase of a counter-piracy operation concerns its modus operandi, ie the conduct of the interception. This phase follows the decision to exercise the right of visit over vessels suspected of being engaged in piracy or pirate vessels and concerns the boarding and the search of the vessel. It is to be distinguished from Phase I because it involves different primary rules.
The boarding warship or the other ‘duly authorized state vessel’ should, in principle, abide by the modus operandi laid down in Article 110(2)–(3) of LOSC:
[t]he warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.
In addition, the interdicting State may, in principle, use force but only in strict accordance with the requirements of necessity and proportionality. The use of force in the course of the exercise of the right of visit is subject to the rules governing law enforcement at sea, as set out in international jurisprudence and as provided in each State's Rules of Engagements.Footnote 61
Moreover, human rights law, such as the right to life, is also applicable.Footnote 62 Arguably, both States and the EU are bound by the right to life. The Charter of Fundamental Rights of the European Union (2000),Footnote 63 which guarantees the right to life in Article 2, is considered as primary EU legislation.Footnote 64
It is trite that the protection of human rights, in casu the right to life, extends to persons under the jurisdiction of State parties to the pertinent treaties. Thus, it is necessary to establish whether a situation falls within the State's ‘jurisdiction’ before the obligations in these instruments become applicable. The controversial issue of the extraterritorial application of human rights obligations is beyond the scope of this article;Footnote 65 it suffices to note that maritime interception operations, in general, should be conducted in accordance with fundamental human rights, as has been confirmed by a series of judgments of the European Court of Human Rights concerning enforcement powers on the high seas.Footnote 66
c) Phase III: Pre-detention and detention
The next phase of the operation following the boarding and search of the vessel concerns the detention or the decision to detain the suspected pirates. It is common practice in the context of Operation Atalanta for suspected pirates to be ‘pre-detained’, or held for 48 hours, during which time the Commanding Officer of the capturing warship will decide whether to detain with a view to transferring them for purposes of prosecution or to release them due to lack of evidence.
LOSC does not address this phase, but only stipulates in Article 105 that those on board a pirate vessel may be arrested by the seizing vessel and may be subsequently tried by any State before whose courts they are brought and be subject to penalties imposed by its laws.Footnote 67 This pre-detention and detention phase is, however, governed by international human rights law as the suspected pirates are under the jurisdiction of the State concerned. The rights to be respected and protected during this phase include:
a) the prohibition of torture, degrading and inhumane treatment,Footnote 68 including the prohibition of non-refoulement under Article 33 of the Refugee Convention (1951) and under customary international law.Footnote 69 Accordingly, no suspected pirate should be subject to torture, degrading and inhumane treatment or to be sent, transferred or released to go to a country, where he or she is likely to face persecution, other ill-treatment or torture.Footnote 70
b) the right to liberty and security. Under Article 5 of the ECHR, detention must be in accordance with a procedure prescribed by law, which must be accessible, foreseeable and must afford legal protection to prevent arbitrary interferences of the right to liberty. Safeguards relating to the right to liberty include: informing the persons detained of their rights, allowing them to contact a lawyer and bringing them before an appropriate judicial authority within a reasonable timeFootnote 71
The relevance of the right to liberty in the present context was affirmed on 4 December 2014 in the first judgments of the European Court of Human Rights concerning piracy off Somalia in the cases of Ali Samatar and Others v France Footnote 72 and Hassan and Others v France. Footnote 73 The applicants in both cases were arrested and subsequently prosecuted by the French authorities for acts of piracy that were committed against the French cruise ship Ponant and the French yacht Carré d'As in 2008 respectively. Relying on Article 5 section 1 (right to liberty and security), the applicants in the case of Hassan and Others alleged that their detention by the French military authorities from 16 to 23 September 2008 had no legal basis, while in both cases, relying on Article 5 section 3 (right to liberty and security), the applicants complained that they had not been ‘brought promptly before a judge or other officer authorised by law to exercise judicial power’ after their arrest by the French army in Somali territorial waters.
With respect to the first claim, the Court held that while the arrest was lawful pursuant to SC Resolution 1816 (2008), the French legal system in force at the relevant time did not provide sufficient protection against arbitrary interference with the right to liberty and had therefore been a violation of Article 5 section 1. Also, the Court found a violation of Article 5 section 3 on account of the fact that on their arrival in France, the applicants had been taken into police custody rather than being brought ‘promptly’ before a French legal authority.Footnote 74
It is true that both these cases concerned incidents that occurred prior to the launching of Operation Atalanta in 2009. Nevertheless, the findings of the Court will inevitably inform the conduct of the operation by the EU and its Member States. Specifically, it is necessary that all Member States have in place procedures that are in full compliance with the requirements of Article 5 of ECHR as well as ensuring that they are diligent in bringing suspected pirates promptly before the competent judicial authorities.
d) Phase IV: Transfer and trial
The next phase concerns the transfer of the suspected pirates to the third State, their actual trial and, if proven, conviction. The applicable primary rules are as follows:
a) Article 105 of LOSC, which permits the assertion of legislative and enforcement jurisdiction over piracy jure gentium.
b) International human rights law, including the right to life, the prohibition of torture, inhuman or degrading treatment or punishment, the prohibition of non-refoulement and the right to a fair trial.Footnote 75 At the minimum, the right to fair trial includes the right to be heard by a competent, independent and impartial tribunal, the right to a public hearing, the right to be heard within a reasonable time, the right to counsel and the right to translation.Footnote 76
c) Bilateral Transfer Agreements: The transfer of the suspected pirates to States, such as Kenya, Seychelles and Mauritius, is governed by bilateral agreements with the EU.
These rules bind, in principle, both the States involved in the transfer and trial of the suspected pirates, including the States to which the latter are transferred, and the EU, when the transfer is attributable to it. It goes without saying that the EU will bear ex contractu responsibility for the violation of the transfer agreements, which it has concluded.
III. INTERNATIONAL RESPONSIBILITY
Having identified the relevant primary rules governing each phase of EUNAVFOR Operation Atalanta, it is time to assess the application of secondary rules of international responsibility in relation to them.Footnote 77 This analysis of the rules on responsibility demonstrates that cases of international responsibility, including shared responsibility,Footnote 78 may arise in this context, although each incident will require careful scrutiny. As with the primary rules, the analysis of the secondary rules will follow each phase of the counter-piracy operation. First, however, the general and pivotal question of the attribution of the acts of the Member States to the EU will be considered. Finally, a specific case giving rise to international responsibility arising from the Operation will be discussed.
A. The Question of the Attribution: Member States de jure or de facto Organs of the EU?
In applying the rules of international responsibility in the context of Operation Atalanta, it is evident that the most perplexing, yet most important, question is whether the allegedly wrongful conduct is to be attributed to the EU itself or to the Member States. The answer turns on the application of the general rules of attribution, since no special rules of attribution exist for the EU.Footnote 79 Such general rules of attribution have been recently drafted by the International Law Commission (ILC) and included in the Articles on the Responsibility of International Organizations (ARIO).Footnote 80 These rules are set out, mainly, in Articles 6 and 7 of the ARIO.Footnote 81 With respect to the status of these articles as a matter of international law, being the work of the ILC, they constitute either codification or progressive development of international law.Footnote 82 In any case, since there is no other codification of rules on attribution of wrongful conduct to international organizations, they serve well as a point of reference for the assessment of the responsibility questions at hand.
Thus, according to Article 6 of ARIO,
the conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization.
Without dwelling upon the particularities of the legal position of Member States in CSDP operations,Footnote 83 it can be argued that Member States function neither as organs nor as agents of the EU in the context of these operations.Footnote 84 In general, there are two models that may serve as the basis for the attribution of the acts of Member States to the organization concerned under Article 6, these being the ‘organic’ or the ‘competence’ model.Footnote 85
The ‘organic model’ means simply that the organization can be shown to have been acting through its organs. However, in the context of CSDP operations, ‘the EU acts are carried out via the authorities of its Member States, instead of the EU itself, having its own administrative presence in its Member States’, which is at variance with the ‘organic model’.Footnote 86
According to the ‘competence model’, responsibility should basically lie where there is competence.Footnote 87 A key concept of this model, however, is that the EU must exert ‘normative control’, in the sense that the legality of the Member States’ action is ultimately controlled by the EU judiciary and it is the EU rather than the Member State concerned which can remedy the alleged wrongs.Footnote 88 This is not the case with regard to the conduct of CSDP operations, since the ECJ lacks jurisdiction.Footnote 89
A further question concerns de facto organs, that is, bodies which are under the ‘effective’ control of the EU for the purposes of Article 7 of the ARIO, which provides that
[t]he conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.
On this basis, the criterion for attributing conduct either to the contributing State or to the international organization is based on the ‘effective’, in the sense of factual, control that is exercised over the specific conduct of the organ or agent placed at the receiving organization's disposal.Footnote 90 There are various views as to what amounts to ‘effective control’ for the purposes of attributing the conduct of Member States to an international organization. For example, according to Tzanakopoulos what matters is the ‘normative effective control’, this meaning that ‘Member States of an international organization are under the effective normative control of the latter when they have no discretion or no “margin of appreciation” in the implementation of a binding normative act of the organization’.Footnote 91
On the other hand, it is arguable that the ‘effective control’ criterion not only requires that the international organization exerts ‘operational control’, but also exercises actual ‘command’ over the Member State's personnel. In other words, in the context of multinational operations, the crucial question might be whether a State retains ‘full command’ over its personnel, even though the operational control is vested with another authority, be it an international organization or a State. According to the recent judgment of the Grand Chamber of the European Court of Human Rights in the Jaloud v The Netherlands case (20 November 2014),Footnote 92 the fact that the Netherlands had retained such command was decisive for the Court's finding that it exercised jurisdictionFootnote 93 and that its troops were not placed ‘at the disposal’ of any foreign power for the purposes of attribution.Footnote 94
This ‘full command’ criterion was relevant in the factual matrix of that case, since the violation under scrutiny concerned the investigation conducted subsequent to the killing of the applicant's son, over which only the Netherlands retained ‘command’ and ‘control’. In more general terms, however, the ‘full command’ criterion should not be of such decisive character, for it is highly unlikely that national contingents in such multinational operations would delegate the ‘command’ of their units to the international organization or another State. Thus ‘effective control’ should rather have the meaning of ‘operational control’ or, more aptly, it should respond to the question of who has the decision-making authority for each and every act or omission that may be in violation of international law.
In the context of the present enquiry, it has been argued that the EU does indeed exercise ‘effective control’, in the sense of Article 7 in the context of CDSP missions.Footnote 95 As Wessel and Den Hertog maintain, it is tempting to apply the effective control argument mutatis mutandis to CSDP missions.Footnote 96 After all, these missions may be under the operational control of the EU through CDSP bodies: indeed, overall responsibility for the conduct of EU missions rests with the Council; it is for the Council to initiate and terminate operations, to determine their mandate, to appoint the Operational and Force Commanders and to approve key documents, such as the Operation Plan and the Rules of Engagement. Moreover, acting under the authority of the Council, the Political and Security Committee (PSC) exercises political control and strategic direction of EU missions.Footnote 97
This notwithstanding, and as Wessel and Den Hertog acknowledge, ‘attribution to the international organization is no rigid rule … a case-by-case analysis and application of the “effective control” concept is crucial’.Footnote 98 Thus, reference should be made to the actual modus operandi of the Operation Atalanta in order to shed light upon the factual question whether the Union does exercise effective control over the ostensible wrongful conduct.
B. Responsibility Arising from the Decision to Visit the Suspected Vessels
Firstly, responsibility arising from the decision to board pirate vessels or vessels suspected of being engaged in piracy in the context of Operation Atalanta will be assessed; particular consideration is given to whether the decision to board the suspected pirate vessel should be attributed to the EU itself or to the Member State whose flag the boarding warship flies.
1. The rules of engagement of Operation Atalanta
It is readily apparent from the Operational Order for the EUNAVFOR Operation Atalanta,Footnote 99 the Rules of Engagement (ROE) of the Operation,Footnote 100 the Flow ChartFootnote 101 as well as the everyday practice that, in principle, Member States retain a wide margin of discretion in their decision to intercept suspected vessels: For example, it is telling that they retain the freedom to shift to national ‘Operational Control’ (OPCON) whenever they consider it appropriate. In addition France, a major contributing nation, has appended a caveat to the Rules of Engagement stating that their implementation would always require the prior agreement of national authorities, implying that this may entail shifting to national OPCON.Footnote 102 Similarly, Greece has also appended a caveat stating that it does not authorize boarding by a Greek unit.Footnote 103 Such caveats are usually appended to the ROEs of EU Operations and underscore the lack of normative control by the EU in the present context.
In practice, what happens is the following: warships of the Member States which encounter a vessel suspected of being engaged in piracy may proceed to a ‘peaceful approach’ of the vessel;Footnote 104 they may also ‘divert’, ‘harass’, ‘ride off’, or ‘fire warning shots’ in the vicinity of a suspected pirate vessel or ‘obstruct’ the boarding of a merchant vessel.Footnote 105 All these measures are authorized at the national level and there is no need for any authorization by EUNAVFOR. Should the Member State consider that there is need for further action, including exercising the right of visit, the Rules of Engagement provide as follows.
‘If the Master of the vessel is co-operative and the EU Force Commander authorises the boarding (emphasis added), a boarding party should be dispatched to the vessel. If found or suspected to be in violation of the rules, the Operation Commander should be informed’ (ROE 171). If the Master does not acknowledge the communication or continuously refuses to cooperate in allowing the boarding to take place, then the boarding is to be regarded as ‘non cooperative’. ‘It is then for the FHQ [Force Headquarters] to determine boarding capabilities across the force, both amongst MS [Member States] and 3rd State TCNs [Troop Contributing Nations], in order to establish the availability of teams that are able to take down a mother ship, or other pirate vessels where the vessel to be boarded is deemed non co-operative’ (ROE 172).Footnote 106 It is only in such cases that the Force Commander may order a Member State to dispatch units in the area of the operation in order to contribute to the boarding.
In addition, ‘if the Master is expected to, or has stated that he will, use force to prevent the boarding party […], then any subsequent boarding is to be regarded as ‘‘opposed’’ and appropriate measures may be taken’; the authorization is then given by the Operation Commander, but, very significantly, under ROE 173, ‘opposed boarding will only be executed and conducted according to the executing States’ Rules and regulations and with its approval‘ (emphasis added). Similarly, the use of minimum force to secure the release of vessels personnel taken by pirates is authorized by the Operation Commander; however, ‘the release operation can only be launched with the consent of the flag State of vessels being released’ (ROE 336).Footnote 107 Of course, all the above ROEs would not apply should the Member States decide, in the meantime, to revert to national OPCON, as the French units do.
In conclusion, the assessment of whether the right of visit should be exercised is made by the Commanding Officers of the Member States, who also have the authority to decide all necessary pre-boarding measures, such as diversion or the firing of the warning shots. The EU Force Commander comes into play later and either, first, ‘authorizes’ the boarding in cases of ‘unopposed boarding’ or second, directs the dispatch of the military units and authorizes the boarding in cases of ‘non-cooperative boarding’ (emphasis added). The EU Operation Commander, on the other hand, authorizes the boarding in cases of ‘opposed boarding’ with the consent of the Member State as well as authorizes the use of force in order to free a vessel under piracy with consent of the flag State (emphases added).
2. Application of the secondary rules to the decision to visit the suspected vessels
It follows from the foregoing modus operandi that the EU enjoys neither an exclusive decision-making authority, nor does it have the effective ‘operational’ control over the boarding as such in all cases, let alone ‘full command’ of the Member States’ units.Footnote 108 In particular:
a) in cases of ‘unopposed’ and ‘non-cooperative’ boardings, it is the EU Force Commander that ‘authorizes’ the boarding on the basis of information given by the Commanding Officer. Thus it seems that the EU exercises ‘effective control’, in the sense of ‘operational control’, over the acts and omissions of the Member States in this regard. However, there is no certainty whether this ‘authorization’ suffices to attribute the decision to board the vessel solely to the EU.
On the one hand, if we adopt the position of Messineo, ‘the transfer of attribution from a state or an International Organization to an international organization should occur every time that the transferred organ is both functionally integrated in the receiving organization and has ceased to be so with regards to the sending state or International Organization’.Footnote 109 This seems not to be the case here. From the perspective of the Jaloud case,Footnote 110 it is clear that Member States do retain the ‘full command’ over their units. Hence, from this viewpoint, it seems that this conduct cannot be attributed solely to the EU.
Alternatively, it might be argued that this is a case of ‘dual attribution’, ie attribution both to the EU and to the Member State involved, since the Member State continues to retain command of the warship concerned. According to the ILC, dual attribution of conduct, ie attribution to both the international organization and to the Member State should not be precluded.Footnote 111 This possibility was also left open by the European Court of Human Rights in the recent Al Jedda caseFootnote 112 as well as by the Dutch Courts in the Mustafić and Nuhanović cases.Footnote 113
On the other hand, focusing solely on the conduct under scrutiny here, namely the decision to board the vessel, it is hard to escape the conclusion that the ‘decision-making authority’ for this act is the EU. If Member States do not revert to national operation control (eg French units), the ostensibly wrongdoing conduct will be under the ‘effective control’ of the EU Force Commander and thus attributable to the EU. It is the author's view that this is an example of an instance in which the application of the rules of attribution set out in Article 7 in the ARIO do not lead to a very satisfactory outcome.
b) Dual attribution, however, may arise in the case of ‘opposed boarding’ in which both the EU Operation Commander and the Member State will decide to board the suspected vessel. It may also arise in cases in which the boarding is co-decided by the EU Operation Commander and the flag State of the vessel under suspicion of piracy. In such cases, joint responsibility, in the sense of co-authorship of the decision to board, may arise should the suspicions which gave rise to the boarding prove unwarranted.
3. ‘Indirect responsibility’ of the EU
In any event, the responsibility of the EU and its Member States may arise on a different basis: even though a certain act may not be directly attributed to the EU, the EU may incur ‘indirect responsibility’,Footnote 114 ie responsibility ‘in connection with acts of States’, for the conduct in question.Footnote 115
Under Chapter IV of ARIO, an organization may be held responsible if it aids or assists a State in committing an internationally wrongful act (Article 14), or if it directs and controls a State in the commission of such an act (Article 15), or if it coerces a State or another organization to commit an act that would, but for the coercion, be an internationally wrongful act (Article 16). Moreover, under Article 17, an international organization can be held internationally responsible if it circumvents one of its international obligations; either by adopting a decision binding member States to commit an act that would be wrongful if it had committed the act itself (Article 17(1)); or by authorizing member States to commit an act that would be internationally wrongful it if had committed the act itself, but in the latter case only if the act in question is committed because of that authorization (Article 17(2)).
In the present context, it is easy, first, to exclude the provision on ‘coercion’ due to lack of any form of coercion on the part of the EU. As regards Article 17(2) of the ARIO,Footnote 116 it is true that it speaks of ‘authorization’ to be given to Member States, and this is what actually occurs in case of boardings under scrutiny. Nevertheless, the application of this provision to the present case should not be lightly presumed: firstly, it cannot be considered as reflective of customary international law,Footnote 117 secondly, it has been criticized for setting out a primary rather than a secondary rule since its application is not contingent on the existence of an international wrongful act.Footnote 118 More importantly, it would not be applicable here since the act in question, namely visiting the suspected vessel, is not ‘committed because of that authorisation’, in the words of the respective provision, but because it is permitted by Article 110 of the LOSC.Footnote 119
On the other hand, the provisions of Article 15 of the ARIO concerning ‘direction or control’ could be applicable in a specific case where military units have been directed to the scene of the operation in order to conduct a ‘non-cooperative boarding’. Article 15 requires ‘actual direction of an operative kind’ on the part of the organization,Footnote 120 which does occur in this specific context.Footnote 121 Thus the EU could incur ‘derivative/indirect responsibility’ pursuant to Article 15, along with the individual responsibility of the Member State which conducted the hypothetically unlawful boarding, in addition to its own alleged direct responsibility for the co-authorship of the act itself. Additionally, if the warship of a Member State directed to the scene by the EU Force Commander assists the warship that conducts the boarding, it may also be held responsible for ‘aid and assistance’ pursuant to Article 16 of ARSIWA. It is noteworthy that the ARIO recognizes that the ‘derivative’ responsibility of the international organization is without prejudice to the responsibility of the State that commits the act in question (Article 19).
Article 15 is not, however, of significant assistance in the cases of simple authorization by the EU Force Commander to board vessels as there is no ‘actual direction of an operative kind’; in such cases, the most pertinent provision seems to be Article 14 of the ARIO, ie ‘aid or assistance’.Footnote 122 Consequently, even if such conduct were not to be attributed to the EU, which this author believes should be the case, the EU would be responsible for ‘aid or assistance’, since the planning of the operation as a whole and the explicit authorization on the part of the EUNAVFOR are certainly facilitative of the wrongful decision to board the vessel.
In conclusion, there is certainly some difficulty in applying the existing secondary norms in the context of the EU operations. Indeed, as Wessel and den Hertog recognize, ‘the complex nature of CSDP decision-making and implementation calls for a case-by-case analysis which is to take account of the special position Member States have in conducting EU military missions’.Footnote 123 Such case-by-case analysis can result not in a ‘competence-responsibility gap’, as the above authors suggest, but in rather solid assertions concerning international responsibility, despite the not entirely satisfactory matrix of secondary rules adopted by the ILC. Thus, it is suggested that the EU and the Member States may well both incur responsibility for co-authorship of the ostensible wrongful boarding, and, in addition, the EU may incur ‘indirect’ responsibility for aiding and assisting or for directing and controlling the conduct of the Member States.
C. Responsibility Arising from the Conduct of the Interdiction
As regards responsibility arising from the actual boarding and search of the pirate vessel or the vessel suspected of being engaged in piracy in the course of EUNAVFOR Operation Atalanta (Phase II), the following observations can be made: should the Commanding Officer (CO) of the warship receive authorization from the EU Force Commander (FC) to board the vessel, the CO will conduct the operation in accordance with the Rules of Engagement (RoEs) already authorized by the EU organs. However, the EU official message concerning the Implementation of the RoEs states that ‘force is authorized for use in certain circumstances …, in accordance with national law on the use of force in self-defence and the extant Roe profile, which is drawn from the regulations and limitations within LOSC and pertinent UNSCRs [UN Security Council Resolutions]’.Footnote 124 It is thus readily apparent that the operational control rests with the Member State rather than with the EU Force Commander. More importantly in cases of ‘opposed boarding’, which may result in the loss of life, the Member State is required to give its consent. In practice, the CO will only inform the Force Commander or the Operation Commander at the end of the operation. Significantly, the Member State also retains exclusive authority in relation to criminal or discipline matters that may arise in the course of the operation, ie the ‘full command’.
In light of the foregoing, it is submitted that the EU lacks any operational, ie effective control of law-enforcement operations conducted by Member States, with the consequence that the latter should not be considered as ‘de facto organs’ of the EU for the purposes of Article 7 of the ARIO. The comments made above regarding the possibility of the indirect/derivative responsibility of the EU as well as on the possible complicity of third States should they assist in the operation, are also relevant here.
In addition, there might be responsibility arising from separate wrongful acts: a primary rule applicable to the present operational Phase is the right to life, enshrined in both the ECHR and the EU Charter of Fundamental Rights, which binds directly the EU organs. Therefore, it could be argued that the EU bears responsibility separate from, or parallel with, Member States for failing to meet the positive obligation of safeguarding the right to life in the course of a maritime interception operation.Footnote 125 This involves a wrongful conduct, in the form of an omission, separate from the wrongful conduct of the Member State, eg the disproportionate use of lethal force against suspected pirates, which is attributed directly to the latter State.
D. Responsibility Arising from the Pre-Detention/Detention of Suspected Pirates
There are good reasons which militate against the responsibility of the EU for the ostensible violations of human rights in this Phase of an operation. As explicitly provided in the Guidance to EUNAVFOR, ‘the decision as to whether an individual suspected of piracy or armed robbery at sea may be detained rests with the Commanding Officer (emphasis added). When making this decision he should seek legal advice from both national authorities and from the EU OHQ as necessary’.Footnote 126 It is apparent that seeking advice from the EU Operation Headquarters does not suffice to attribute the conduct to the EU. In addition, according to OPLAN, ‘decision either to transfer either to release has to be made within 48 h after CO's decision to detain’;Footnote 127 thus, again, it is the Commanding Officer, that is, the Member State, who has the decision-making authority to release the detainees or to transfer them for the purposes of prosecution.
Furthermore, the Guidance to EUNAVFOR provides that ‘while the day to day supervision of detainees may fall to a number of personnel within a TCN vessel, ultimate responsibility for the proper treatment of detainees remains with the Commanding Officer until the release of the detainee or the transfer to another appropriate authority for prosecution’.Footnote 128 Thus, the ‘ultimate control’, or, in the words of ARIO, ‘effective control’ rests with the Member State. Accordingly, any breaches of human rights, eg the prohibition of torture or inhuman or degrading treatment or punishment under Article 3 of ECHR, would be attributed to the Member State.
At this point, it is noteworthy that the Guidance to EUNAVFOR includes various safeguard provisions which are only applicable to detainees and not to suspected pirates in the pre-detention phase.Footnote 129 Nevertheless, those in pre-detention do come under the jurisdiction of the interdicting States and ergo within the purview of ECHR. The reason for this is merely that there is no need for the formal detainment of the persons concerned to be considered as subject to the protection of the Convention, since the cornerstone criterion is the existence of sufficient control of these persons by the organs of a State party to the Convention. Thus the Member States concerned would be held responsible for any human rights violation during this phase. On the other hand, it is highly unlikely that the EU would incur responsibility in this respect, for the simple reason that it lacks any jurisdiction over the persons concerned.
E. Responsibility Arising from the Decision to Transfer or Release the Suspected Pirates
It is suggested that both the EU and its Member States incur responsibility under certain circumstances. There are four courses of action available to Commanding Officers under EUNAVFOR operational control, namely:
a) To transfer the detained person to the competent authority of the TCN making the capture (in which case national legal advice is required and the OpCdr needs to be informed); b) to transfer the detained individual to the competent authority of a Member State (a bilateral agreement and national legal advice will be required and OpCdr informed); c) to transfer the detained individual to the competent authority of a Third State with whom the EU has an agreement after decision from the OpCdr, d) To release the individual, if there is no or insufficient evidence to suggest that they are pirates or armed robbers, ‘or despite the initial intention transfer to Third State it proves not to be possible, for whatever reason’.Footnote 130
It is submitted that situations (a) and (d) would engage the responsibility of the Member State, while situation (b) could engage the responsibility of both Member States involved, though for separate wrongful acts. Finally, situation (c), which paradoxically is very rare in practice,Footnote 131 would, first and foremost, engage the responsibility of the EU and the State to which the persons are transferred, whilst the Member State may only be held responsible for complicity or for another wrongful conduct, ie chain refoulement, namely causing a person to return to another place from which refoulement occurs subsequently.Footnote 132
In more detail, and as noted above, decisions to transfer detainees to Kenya, Seychelles, Mauritius and Tanzania are made by the EU Operation Commander in accordance with the terms of the EU agreements with the respective States. These agreements are not ‘mixed agreements’ but are concluded exclusively by the EU pursuant to Article 3(2) of the TFEU.Footnote 133 It follows therefore that any breach of these agreements or of relevant human rights obligations would be attributable to the EU under Article 6 of ARIO, in addition to the State-party concerned. Thus, if, for example, Kenya uses evidence against suspected pirates before its domestic courts that is obtained by torture, the responsibility for this wrongful act would rest not only with Kenya, but also with the EU for having transferred the persons concerned to a State where they have faced the risk of torture or of evidence obtained by torture being been used in proceedings against them in violation of their right to a fair trial (Article 19 para 2 of the EU Charter of Fundamental Rights and Articles 3 and 6 of ECHR).Footnote 134
A Member State who facilitates transfers to the competent authorities of third States (eg Kenya) would not be liable for the transfer as such: this is attributed to the EU, since the Member State would be acting for for the benefit and under the authority of the EU in this regard.Footnote 135 However, the Member State could be found responsible under Article 58 of ARIO for aiding or assisting the EU in the commission of the wrongful act.Footnote 136 In addition, ex hypothesi, it could also be found in violation of its positive obligations under Article 3 of ECHR, in the sense that it knowingly allowed the transfer of the suspected pirate by the EU to a State where the latter faced the risk of torture or other inhuman or degrading treatment or punishment.Footnote 137
It should be noted that there is another State which might be held responsible in the context of transfers pursuant to EU agreements, this being Djibouti. Djibouti is the ‘host State’ for many of the land-based activities of Operation AtalantaFootnote 138 and through which suspected pirates are transferred to third States. Hypothetically, Djibouti would incur parallel responsibility for allowing violations, for example, of the principle of non-refoulement occurring in its territory.
F. RESPONSIBILITY OF THE EU AND MEMBER STATES IN PRACTICE: THE MV COURIER CASE
At this point, it is appropriate to consider and discuss questions of responsibility arising from the MV Courier case before the German courts concerning Operation Atalanta, and, more specifically, its first interdiction operation.
According to the relevant EUNAVFOR press release:
[o]n 3 March 2009, the German warship RHEINLAND PFALZ, which joined the EU NAVFOR ATALANTA counter-piracy operation on 8 February, successfully fended off a pirate attack on the German owned MV COURIER as it transited through the Gulf of Aden. On receiving the alarm call the German frigate, helped by the American CTF 151 destroyer MONTEREY, launched helicopters to assist the besieged vessel […] The pirates abandoned their attack soon after the helicopters arrived “on scene” and the RHEINLAND PFALZ's Sea Lynx pursued one of the two escaping skiffs for over 10 miles, firing warning shots to stop the vessel before the warship closed in to board and search it […] A total of nine suspects were arrested and a large amount of fuel, weapons and ladders were discovered and confiscated.Footnote 139
Following the arrest and transfer to Kenya pursuant to the EU agreement, the Kenyan Court of First Instance held in Mohamed Hashi and 8 Others that ‘Kenyan Courts are not conferred with or given jurisdiction to deal with any matters arising or which have taken place outside Kenya’.Footnote 140 As the crime concerned was not committed in territorial waters within the jurisdiction of Kenya under section 5 of Kenyan Penal Code,Footnote 141 the Court ordered the immediate and unconditional release of the applicants from custody.Footnote 142 This decision was appealed by the Prosecutor and on 12 November 2010, the High Court of Kenya decided not to release the prisoners until further notice, while the Court of Appeal overruled the decision of the Court of First Instance and convicted them for piracy.Footnote 143
In the meanwhile, the applicants initiated proceedings in Germany complaining that their arrest and their transfer applicants had been in violation of the German Constitution, the ECHR and the ICCPR. On 11 November 2011, the administrative court of Cologne held Germany accountable for transferring the complainant to Kenya in violation of the principle of non-refoulement.Footnote 144 It stated that the conditions of detention at the Shimo-La-Tewa prison at the time of the transfer, namely the overcrowding, poor sanitary facilities, shortage of water for hygiene and pest infestation in combination with high temperatures amounted to inhuman and degrading treatment.Footnote 145 However, those parts of the complaint relating to the arrest and detention at sea did not convince the Court: It held that the initial arrest was lawful since Article 105 LOSC provided a sufficient legal basis for arresting piracy suspects on the high seas.Footnote 146 Furthermore, the Court found that the complainant's detention on board the German frigate was in accordance with the procedural safeguards flowing from the right to liberty. Most importantly, it did not find a violation of the right to liberty even though the complainant was not brought before a German judge while detained on board the German frigate for more than a week. Rather, it decided that the right to be brought before a judge was respected because the complainant was taken before a Kenyan judge upon his transfer.Footnote 147
Interestingly for our purposes, Germany argued before the administrative court of Cologne that acts taken by Germany while contributing to EUNAVFOR were not attributable to the German State because a transfer of authority to the European Union had taken place. While the Court left the issue open as regards the arrest and detention, it decided the question of attribution regarding the part of the complaint which related to the transfer. It opined that Germany had played a decisive part in the decision to transfer the suspect and so the violations in relation thereto were attributable to Germany.Footnote 148
Without discussing this case in detail, it is suggested that in light of the assertions made above in respect of the responsibility of the EU or the Member State in connection with the transfer of suspected pirates, the transfer in question was made under the authority of the EU pursuant to the relevant agreement with Kenya. Thus, from the moment the German Commanding Officer under the instructions of the German Government decided to delegate the responsibility for Hashi and others to the EU Operation Commander, Germany was acting as an organ or agent of the Union; it follows that if the wrongful conduct in question is the ultimate decision to transfer or release the suspected pirates, it is the EU and not Germany that should be held responsible. Even though it was the German authorities that initially decided not to prosecute and to send the suspected pirates to Kenya,Footnote 149 the legal basis was the EU–Kenya agreement and thus the EU had the final decision-making authority.Footnote 150
As discussed above, Germany could only be found responsible for complicity or for another internationally wrongful act, ie the breach of its positive obligation under Article 3 of the ECHR to ensure that the suspected pirates would not be transferred to a State, in casu Kenya, where they were at risk of being subjected to torture, inhuman or degrading treatment or punishment. In the author's opinion, the decision of the Court of Cologne did not adequately address the ground on which Germany was responsible and it is up to the appeals’ court to shed more light on this.
In more general terms, the MV Courier case underscores the ‘responsibility-gap’ of the Union in the context of CSDP operations. It is unfortunate that the Court of Justice of the European Union does not have any jurisdiction with respect to the provisions relating to CFSP, ‘nor with respect to acts adopted on the basis of those provisions’.Footnote 151 Accordingly, any claim arising from the conduct of the EU in the course of the Operation Atalanta can only be submitted to national courts. This is certainly decisive in holding the Member States primarily liable for any wrongful conduct committed in the course of the Operation Atalanta; otherwise, we have to accept a responsibility regime barren of any processes for implementation and enforcement. As Naert concludes, ‘in cases where the EU is responsible under international law, EU law may nonetheless require the involvement of Member States courts and may provide that a Member State will ultimately pay compensation or be responsible for answering a claim’.Footnote 152
The situation may change to a certain extent should/when the EU finally accedes to the ECHR.Footnote 153 It will then be possible that both the Member State involved and the EU may become co-respondents in a case before the Strasbourg Court. As provided for in the 2013 Draft Accession Agreement, the relevant application would have to be filed against the Member State, to which the act is attributed and the EU may then join as co-respondent.Footnote 154 However, Opinion 2/13 on this Draft Agreement delivered by the CJEU on 18 December 2014 postponed, for the time being, any progression towards the EU acceding to the ECHR.Footnote 155
IV. CONCLUDING REMARKS
EUNAVFOR Operation Atalanta has been the Union's first maritime operation and it has certainly been successful in view of the significant decrease of pirate attacks off the Somali coast. However, it has brought to the fore a variety of issues concerning its legal basis under international law, the applicable legal framework and its responsibility. These issues are even more interesting in the case of the EU, since the Union possesses a more integrated legal order than other organizations undertaking such operations, such as the UN and NATO. Inevitably, the allocation of responsibility between the EU and its Member States has proved the most perplexing issue, exacerbated by the lack of clearly established rules and clear-cut answers.
The present article has attempted to address these issues against the background of international and European law. Even though the legal basis of the Operation is clear from a European law perspective, there have been certain misconceptions concerning the legal basis of the Operation under international law. In particular, the Operation is conducted under the rules of the law of the sea and pursuant to the consent of the TFG and it is not mandated as such by the relevant Security Council Resolutions. Additionally, the delineation of the Operation's legal framework requires a careful analysis of the rules applicable to each of its phases and of its addressees, since each phase is subject to different rules binding different actors.
Finally, there has been an extensive discussion of questions responsibility for which were heavily influenced by the applicable Rules of Engagement and of the actual conduct of the Operation. The conclusion has been that, at least on the high seas, responsibility should primarily rest with the flag States rather than with the EU. However, in most cases the EU is indirectly responsible for violations of international law, except in cases where it has authorized the interdiction of the suspected pirate vessel, in which case it is jointly responsible or when the suspected pirates are transferred to third States pursuant to EU agreements with such States, in which case it bears primarily responsibility. Finding the Member States primary responsible is also dictated by the simple fact that the ECJ lacks jurisdiction over the activities in the context of CSDP operations; thus, even if in the future the Union is to be found co-respondent before the Strasbourg Court, the courts of the Member States serve as the ‘first port of call’ for any legal action.
