9 ESDP: Piracy
| (a) (30724) —
—
(b) (30728) —
—
| Council Decision concerning the signing and provisional application of the Agreement between the European Union and the Republic of Seychelles on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy, or acts of armed robbery in the territorial sea and archipelagic waters of the Republic of Seychelles, and detained by the European Union-led Naval force (EUNAVFOR) and seized property in the possession of EUNAVFOR, from EUNAVFOR to the Republic of Seychelles and for the treatment after such transfer.
Council Decision concerning the conclusion of the Agreement between the European Union and the Republic of Seychelles on the status of the of the European Union-led forces in the Republic of the Seychelles in the framework of the EU military operation ATALANTA.
|
| Legal base | Article 24 EU; unanimity
|
| Department | Foreign and Commonwealth Office
|
| Basis of consideration | EM of 30 June 2009
|
| Previous Committee Reports | None; but see (30341), (30348) and (30349) HC 19-iv (2008-09) chapter 17 (21 January 2009); also see (30040) 13989/08; HC 16-xxxvi (2007-08), chapter 17 (26 November 2008) and HC 16-xxxii (2007-08), chapter 10 (22 October 2008); also see (29953) —: HC16-xxx (2007-08), chapter 19 (8 October 2008)
|
| Discussed in Council | To be determined
|
| Committee's assessment | Politically important
|
| Committee's decision | Cleared; further information requested
|
Background
9.1 In response to growing international concern over the problem
of piracy off the coast of Somalia, the United Nations Security
Council adopted Resolution (UNSCR) 1816 (2008) in June which encouraged
"States interested in the use of commercial maritime routes
off the coast of Somalia, to increase and coordinate their efforts
to deter acts of piracy and armed robbery at sea". Then,
on 7 October 2008, the Security Council unanimously adopted UNSCR
1838, which was initiated by France and co-sponsored by 19 countries
(Belgium, Croatia, the US, UK, Italy, Panama, Canada, Denmark,
Spain, Greece, Japan, Lithuania, Malaysia, Norway, the Netherlands,
Portugal, Korea and Singapore).
9.2 Our previous reports set out the history of the
European Union's endeavours to address this problem, leading to
the creation of the first ESDP naval operation, Operation Atalanta.[37]
9.3 Most recently, the Committee considered an Explanatory
Memorandum of 15 January 2009 from the then Minister for Europe,
giving "an overview on decisions made to facilitate the progress
of Operation Atalanta" and incorporating the Joint Action
launching the operation and two Council Decisions on Status of
Force Agreements with both the Somali Republic and Djibouti. Further
details in our most recent Report included that: the Operation
Commander is Rear Admiral Phil Jones; the Operation Headquarters
is at Northwood (alongside the UK's Permanent Joint HQ); the anticipated
UK share for the year of the Operation was £1.2 million;
the mission reached Initial Operation Capacity on 13 December
2008, achieving effective handover with the NATO interim mission
which terminated the day before; then included current or planned
military contributions (either warships or Maritime Patrol Aircraft)
from 8 EU partners (UK, Belgium, France, Greece, Germany, Netherlands,
Spain, Sweden) "with others showing a strong interest in
participation"; the EU continued "to push others to
do so, including non EU states"; HMS Northumberland had been
provided for the first period of the operation; and that Operation
Atalanta will last until 13 December 2009.
9.4 The then Minister also referred to an exchange
of letters between the EU and Kenya that give the right to enter
and freedom of movement within the territory (including territorial
waters and airspace) of Kenya "strictly limited to the necessities
of the operation", and mentioned that negotiations on an
agreement on the handover of pirates for trial were now in their
final stages (the UK and Kenya having concluded a similar agreement
on 11 December 2008).
9.5 The then Minister noted that the Joint Action
raised an issue of fundamental rights, and explained that Article
12(1):
"provides that persons having committed or suspected
of having committed acts of piracy or armed robbery in Somali
territorial waters or on high seas shall be transferred to the
competent authorities of the flag Member State or to the third
State participating in the operation of the vessel which took
them captive or, if this State cannot or does not wish to exercise
jurisdiction, to a Member State or a third State which does wish
to exercise its jurisdiction over them."
and that under Article 12(2):
"these persons cannot be transferred to a third
State, including Somalia, if the conditions of transfer have not
been agreed with the third State in conformity with the applicable
international law, notably international human rights law, in
order to guarantee that no one is submitted to the death penalty,
torture or any other cruel, inhuman or degrading treatment."
9.6 The Minister went on to note that applicable
international and human rights law would include Article 7 of
the International Covenant on Civil and Political Rights, which,
she said, provides that "No-one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment."
The Minister further noted that the same provision is to be found
in the Universal Declaration of Human Rights 1948, Article 5.
9.7 The Minister also referred to the 1984 Convention
against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment, in which she noted that:
— Article
3 (1) provides "that no State Party shall expel, return or
extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected
to torture;
— Article 6 (1) that "Every human
being has the inherent right to life. This right shall be protected
by law. No one shall be arbitrarily deprived of his life";
— Article 6 (2) that "in countries
which have not abolished the death penalty, sentence of death
may be imposed only for the most serious crimes in force at the
time of the commission of the crime and not contrary to the provision
of the present Covenant and to the Convention on the Prevention
and Punishment of the Crime of Genocide";
— "this penalty can only be carried
out pursuant to a final judgement rendered by a competent court.
The death sentence cannot be imposed for crimes committed by persons
under eighteen years (Article 6 (5) and anyone sentenced to death
shall have the right to seek pardon or commutation of the sentence
(Article 6 (4))."
9.8 We once again thanked the Minister for her comprehensive
response, and had no further questions at that stage. We did,
however, ask the Minister either to deposit an Explanatory Memorandum,
or write with details of, and her views upon, the review of Operation
Atalanta that we presumed would be conducted at the end of its
year of operation, and for that Explanatory Memorandum or letter
to include information about what action the Government and the
EU had taken during the year of operation to address the root
causes of the immediate problem and what the outcomes are by then.
9.9 In the meantime, we cleared the documents, and
looked forward to receiving as soon as possible the final Council
Decision regarding the EU-Kenya agreement on the handover of pirates
for trial.
9.10 We also once more drew our report to the attention
of the Foreign Affairs and the Defence Select Committees, so that
they might continue to be aware of what the Minister had to say.[38]
The draft Council Decisions
9.11 In
her Explanatory Memorandum of 30 June 2009, the
Minister for Europe at the
Foreign and Commonwealth Office (Baroness
Kinnock of Holyhead) explains that she is able at this stage to
deposit only draft texts, and that she will provide the Committee
with a final version "once
available". In the meantime, she describes each one as follows:
Status of Force Agreement with Seychelles
"The SOFA allows the EU to freely enter territory
(including territorial waters and airspace) of the Republic of
the Seychelles and total freedom of movement thereof; the right
to detain pirates in the Republic of the Seychelles waters; immunity
of jurisdiction; immunity from all dues, customs etc."
Transfer of Persons suspected of having committed
acts of piracy, or acts of armed robbery
"The transfer agreement allows EUNAVFOR to transfer
persons detained by EUNAVFOR in connection with armed robbery
and associated seized property to the Seychelles for the purpose
of investigation and prosecution."
9.12 The Minister also recalls the provisions of
Article 12(1) and 12(2) regarding the treatment of those persons
who have been apprehended, having committed or being suspected
of having committed acts of piracy or armed robbery in Somali
territorial waters or on the high seas.
The Government's view
9.13 The Minister says that:
"The UK remains committed to international action
to counter piracy effectively in the region and is pleased to
be playing a leading role in the EU operation, by providing the
Operation Commander and Operation Headquarters . This action has
resulted in lowering the number of successful attacks in the Gulf
of Aden and to innovations such as close co-operation with both
industry and non coalition navies (eg India).
"In addition to supporting the EU operation,
the UK consults with maritime organisations, encouraging effective
prevention measures and continues with partners (including the
European Commission) in its efforts to tackle, on land, the root
causes of piracy in Somalia, which provide the only long term
solution to this problem."
9.14 She goes on to say that:
"It is strongly in the UK's interest to support
this mission because piracy off the Horn of Africa is threatening
a key global economic artery as well as regional trade. The UK
remains an important centre of global international shipping and
the Government has been working closely with the industry and
regional partners to calibrate the international response. The
UK also welcomes strongly the active role being taken by the EU
in responding to this challenge, working alongside NATO and the
multinational Combined Task Forces 150 and 151"[39]
9.15 With regard to the year to 9 June 2009, the
Minister says:
"there have been 132 attempted attacks off the
coast of Somalia, of which 29 have been successful. There are
currently (24 June) 9 ships and 151 crew member held by pirates.
Only 5 of the 2009 hijackings have been in the Gulf of Aden Transit
Corridor, and only 1 involved a vessel registered with the EU
operation and following agreed best practice. The ratio of successful
attacks in the Gulf of Aden has reduced from 1 in 3 at the end
of 2008 to about 1 in 8 for most of the year to date and 1 in
11 in May. International effort may have had effect of pushing
pirates to operation further South East including in Seychelles
waters hence the desirability of the EU concluding these agreements
with the Seychelles."
9.16 With regard to activity at the United Nations,
the Minister reports that:
"The UK supported a new piracy resolution (UNSCR
1851) adopted by the Security Council on 16 December 2008. This
called for the establishment of an International Contact Group
on Piracy off the Coast of Somalia (CGPCS). The CGPCS has met
three times, the most recently in May in New York. The CGPCS established
four working groups focusing on the following areas;
- Working Group 1 — Operational
co-ordination and regional capability development — UK lead
- Working Group 2 — Judicial Frameworks for
Arrest, Prosecution and Detention of Pirates — Danish lead
- Working Group 3 — strengthening Commercial
Shipping Self-Awareness and Self-Defence — US lead
- Working Group 4 — Improving Diplomatic
and Public Information Efforts — Egyptian lead"
9.17 Finally, recalling that, having started on 8
December, reached Initial Operation Capacity (IOC) on 13 December
2008 and being intended to last until 13 December 2009, EU Ministers
agreed in May to extend Operation Atalanta for a further 12 months,
and that the revised Joint Action to extend the operation will
be prepared and submitted to the Committee "after the summer."
Conclusion
9.18 We note that the General Affairs and External
Relations Council (GAERC) on 15 June adopted the following conclusions:
"The Council noted that the Operation ATALANTA
had demonstrated its ability to act effectively against piracy,
that piracy off the coast of Somalia was likely to remain a serious
threat beyond Operation ATALANTA's current end date of 13 December
2009, and that early agreement on extending the operation would
facilitate the necessary force generation. In this context, the
Council agreed that Operation ATALANTA should be extended for
one year from its current end date"[40]
9.19 We understand the benefit regarding force
generation of early agreement on extending the operation. But
we presume that the mandate will also need to be changed. We therefore
draw the Minister's attention to the need to ensure that the Joint
Action is submitted for scrutiny in good time for questions to
be raised and answered, and not in a last minute rush before the
Christmas recess.
9.20 We also draw her attention to:
— the
need for Explanatory Memoranda to explain all the relevant information
and not assume expert knowledge; the Committee should not, in
its view, have to search the internet to find out what Combined
Task Forces 150 and 151 are;
— the request to her predecessor that
her Explanatory Memorandum should include information about, and
her views upon, the achievements, failings and lessons learned
in Operation Atalanta's first year and what action the Government
and the EU have taken during the year of operation to address
the root causes of the immediate problem and what the outcomes
are by then.
9.21 We would also ask the Minister to let us
know what happened with regard to the agreement between the EU
and the Kenyan authorities on the handover of pirates for trial,
negotiations upon which were, her predecessor said in her January
Explanatory Memorandum, in their final stages.
9.22 In the meantime, we clear the documents.
37 (300400 13989/08; see HC 16-xxxvi (2007-08), chapter
17 (26 November 2008) and HC 16-xxxii (2007-08), chapter 10 (22
October 2008); also see (29953) -: HC16-xxx (2007-08), chapter
19 (8 October 2008); see headnote. Back
38
(30341), (30348) and (30349) HC 19-iv (2008-09) chapter 17 (21
January 2009); see headnote. Back
39
Combined Task Force 150 (CTF-150)
is a multinational coalition naval task force with logistics facilities
at Djibouti established to monitor, inspect, board, and stop suspect
shipping to pursue the War on Terrorism and in the Horn of Africa
region (HOA) (includes operations in the North Arabia Sea to support
Operation Iraqi Freedom (OIF), and operations in the Indian Ocean)
to support Operation Enduring Freedom - Horn of Africa (OEF-HOA).
These activities are referred to as Maritime Security Operations
(MSO). Countries presently contributing to CTF-150 include Canada,
Denmark, France, Germany, Pakistan, Sweden, the United Kingdom
and the United States. Other nations who have participated include
Australia, Italy, Netherlands, New Zealand, Portugal, Spain, and
Turkey. The command of the task force rotates among the different
participating navies, with commands usually lasting between four
and six months. The task force usually comprises 14 or 15 vessels..
CTF-150 is coordinated with, and incorporates vessels of, the
US Navy's Fifth Fleet, under the Combined Forces Maritime Component
Commander/Commander US Naval Forces Central Command in Bahrain.
On January 8, 2009, the United States Fifth Fleet headquarters
in Manama, Bahrain announced the formation of CTF-151.
The USS San Antonio (LPD-17) was designated as the first
flagship, serving as an afloat forward staging base (AFSB) for
a variety of force elements. Initially, CTF-151 consisted of the
San Antonio, USSMahan(DDG-72), and HMSPortland(F79),
with additional warships expected to join this force. Twenty countries
were expected to contribute to the force, including Canada, Denmark,
France, the Netherlands, Pakistan and Singapore. On 29 May, the
Australian Government re-tasked Australian Warship HMAS Warramunga (FFH 152)
from duties in the Persian Gulf to the taskforce. Back
40
See Council Conclusions at http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/gena/108452.pdf
Back
| 
