Fighting Piracy and Armed Robbery in the XXI Century: Some Legal Issues Surrounding the EU Military Operation Atalanta

• Author: Andrea de Guttry
• Position: Ordinario di Diritto internazionale nella Scuola superiore "Sant'Anna" di Pisa
• Pages: 325-350

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@1. Introductory remarks

1. Piracy is an old phenomenon which has regained momentum in recent times. Although the attention of the mass media was focused mainly on recent events off coasts of Somalia, it is fair to mention that there are basically 4 areas in which pirates have been active in the last decade: in the South China Sea, in the seas facing West Africa, in the Caribbean Sea and, more recently in East Africa and specifically off the coasts of Somalia¹. According to the International Maritime Organization (IMO): "In 2008, the number of reported piracy attacks off East Africa rose astronomically. Barely a day seemed to pass without a new incident being reported (...). In the first quarter of 2008, there were 11 piracy

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attacks in that region, rising to 23 in the second quarter and rocketing to 50 in the third and 51 in the fourth quarters, making a total of 135 attacks during 2008, resulting in 44 ships having been seized by pirates and more than 600 seafarers having been kidnapped and held for ransom"².

In the 2009 annual piracy report issued by the ICC International Maritime Bureau's Piracy Reporting Centre (IMB PRC) a total of 406 incidents of piracy and armed robbery have been reported. According to this report, in 2009, 153 vessels were boarded, 49 vessels were hijacked, 84 attempted attacks and 120 vessels fired upon. A total of 1052 crew were taken hostage; 68 crew were injured in the various incidents and eight crew killed. 2009 has however seen a significant shift in the area of attacks off Somalia. While the 2008 attacks were mostly focused in the Gulf of Aden, 2009 has witnessed more vessels also being targeted along the East coast of Somalia.

These events raised serious concerns in the International Community as the freedom of navigation in the highs seas was put in danger and severely affected in an area which has a clear strategic importance for the free flow of goods and persons and for fishing. The problems were exacerbated by the fact that Somalia has been facing for an extremely long period a difficult internal situation which contributed to the definition of Somalia as a failed State notwithstanding the continuous effort of various international actors to broker a solution to the internal disputes.

The debate about what to do in order to properly answer these new challenges started within the most concerned organization, namely the IMO³ and spread rapidly towards other relevant organizations (both at universal and regional levels) and towards interested States⁴, many of which decided to send

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naval assets to patrol the Gulf of Aden in an effort to protect international commercial shipping⁵. In this framework the EU decided to become a major player in the deterrence of piracy off the Somali coast by launching Operation Atalanta in December 2008, the first maritime ESDP (after the Lisbon Treaty, CSDP) mission.

Although it is not the first time that a maritime multinational operation has been put in force in order to react against challenges to the freedom of navigation in the high seas⁶, to prevent and repress specific crimes (such as narcotraffic, terrorism⁷, illegal trafficking of mass destruction devices⁸) or to enforce UNSC Resolutions⁹, the specific Operation Atalanta, being the first EU maritime operation, presents unique features which deserve to be analysed.

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This paper aims at analysing some legal issues related to the EU Military Operation Atalanta. After a thorough review of the numerous legal sources existing both within and outside the EU legal system and regulating various aspects of the Operation, the paper then concentrates on the content of the international agreements signed by the EU with Somalia and other neighbouring Countries in order to fully operationalise the mission. These Agreements will be examined against the background of existing international, and in particular Human Rights, obligations which are incumbent on the EU and its members States. In the well known 2003 document "A Secure Europe in a Better World, European Security Strategy"¹⁰, and in the following Report on the Implementation of the European Security Strategy Providing Security in a Changing World adopted in Brussels on December 11, 2008¹¹, the EU leaders undertook a formal commitment: "We need to continue mainstreaming human rights issues in all activities in this field, including ESDP missions, through a people-based approach coherent with the concept of human security"¹². Operation Atlanta takes its place within a brand new trend of ESDP/CSDP operations: it is therefore of utmost importance to conduct it in full compliance with the basic values and principles inspiring the European Security Policy as well as the European Security Strategy¹³. This paper will try to clarify if and to what extent the design and implementation of Operation Atlanta is coherent with the above mentioned commitments and values expressed by the EU.

@2. The fight against piracy in contemporary International Law

2. The definition of piracy is contained in Article 101 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) which is generally considered to be a codification of existing customary international law. The phrasing of this Article makes it very clear that piracy can be committed only on or over international waters (including the high seas, the exclusive economic zone, and the contiguous zone), in international airspace, and in other places beyond the territorial jurisdiction of any nation¹⁴. In order to be qualified as piracy, the act has to be committed by private ships or private aircraft for private ends. Most of the recent events off the coast of Somalia perfectly fit into this definition.

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As far as armed robbery against ships is concerned there is a widely accepted definition: "any unlawful act of violence or detention of any act of depredation, or threat thereof, other than an act of piracy, directed against a ship or persons or property on board of such ship, within a State's internal waters, archipelagic waters and territorial sea"¹⁵.

Finally the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation¹⁶ has to be mentioned as this Convention is not limited to acts on the high seas: according to this Convention any person commits an offence if that person unlawfully and intentionally commits, attempts to commit, threatens to commit, or abets the seizure or exercise of control over a ship by force or threat of force or any form of intimidation. The Convention applies if the ship is navigating or is scheduled to navigate into, through, or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States. In all other cases, the Convention also applies when the offender or alleged offender is found in the territory of a State Party other than the State in whose waters the offence occurred¹⁷.

Considering the gravity of these crimes a general duty of all nations to cooperate in the repression of piracy has emerged in the International Community. This duty has been written in an uncontroversial manner both in Article 14 of the 1958 Geneva Convention on the High Seas and in Article 10 of the UNCLOS, both of which provide that States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State. Article 105 of the UNCLOS Convention furthermore states: "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. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith".

In order to strengthen the effectiveness of the fight against piracy and armed robbery, reinforced regional cooperation among States plays an important role. The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against ships in Asia, signed in November 2004 by 16 Asian countries is a significant example of the potential positive impact of regional cooperation in mak-

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ing navigation in the high seas more secure. More recently, in January 2009, another important regional agreement was adopted in Djibouti by States in the region: the Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden¹⁸. The signatories States expressed their commitment to interdicting ships suspected of engaging in acts of piracy or armed robbery against ships ensuring that persons committing or attempting to commit acts of piracy or armed robbery against ships are apprehended and prosecuted; and facilitating proper care, treatment, and repatriation for seafarers, fishermen, other shipboard personnel and passengers subject to acts of piracy or armed robbery against ships, particularly those who have been subjected to violence.

@3. The relevant UN Security Council Resolutions

3. The UN Security Council has been monitoring closely the events off the Somali coast since the very first piracy act: the situation created by pirates has been immediately considered as a clear threat to peace and security allowing, therefore, the Security Council to use all means available under Chapter VII of the UN Charter. Considering the extremely sensitive nature of the issue and the continuous evolution of the events, the SC decided, wisely according to the present author, to adopt a step-by-step strategy: in its first Resolution devoted to the issue at stake - Resolution 1772 (2007) of 20 August 2007 - the Security Council...