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EUNAVFOR OPERATION ATALANTA OFF SOMALIA: THE EU IN UNCHARTERED LEGAL WATERS?

Published online by Cambridge University Press:  19 June 2015

Efthymios Papastavridis
Efthymios Papastavridis*
Affiliation:
Part-time lecturer in public international law, Democritus University of Thrace and Research Fellow, Academy of Athens, papastavridis@academyofathens.gr.
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Abstract

EUNAVFOR Operation Atalanta has been the first maritime operation of the European Union and it has certainly been successful given the significant decrease of pirate attacks off the Somali coast. However, various issues have been raised concerning its legal basis under international law and its legal framework, including questions of responsibility. These issues are particularly interesting since the EU has a more integrated legal order than other organizations involved in such operations (eg UN, NATO). The present article attempts 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. 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 which are binding on different actors. Finally, there is an extensive discussion of questions of responsibility, which were heavily influenced by the applicable Rules of Engagement and of the actual conduct of the Operation. The conclusion is 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 suspected pirates are transferred to third States pursuant to EU agreements with such States, in which case it bears primarily responsibility.

Keywords

EU Common Security and Defence Policyhuman rightsLaw of the Seapiracyresponsibility
Type
Articles
Information
International & Comparative Law Quarterly , Volume 64 , Issue 3 , July 2015 , pp. 533 - 568
Copyright
Copyright © British Institute of International and Comparative Law 2015 

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References

1 On the legal basis of the Operation and its everyday activities see at <http://eeas.europa.eu/csdp/missions-and-operations/eu-navfor-somalia/> and at <http://eunavfor.eu/>.

2 European Union, Council Joint Action 2008/851/CFSP of November 10, 2008 on a European Union Military Operation to Contribute to the Deterrence, Prevention and Repression of Acts of Piracy and Armed Robbery off the Coast of Somalia, 2008 OJ (L 301) 31–37 (EU). See also European Union, Council Decision, 2012/174/CFSP of 23 March 2013 amending Joint Action 2008/851/CFSP on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, 2012 OJ L 89–69.

3 On 21 November 2014 the Council of the EU extended the mandate of Operation Atalanta until December 2016; see <http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/145902.pdf>.

4 See the most recent Report of the Secretary-General on the situation with respect to piracy and armed robbery at sea off the coast of Somalia, S/2014/740 (16 October 2014) at para 3.

5 There were reports of 13 incidents of piracy off Somalia reported to the International Maritime Organzation the first three quarters of 2014; ibid.

6 Pirate activity in the Gulf of Guinea differs to that in the Indian Ocean. Somali pirates focus on kidnap for ransom, capturing vessels and holding their cargo and crew in order to extract money from a shipowner. In the Gulf of Guinea pirates launch attacks primarily from Nigeria, with the aim of stealing cargo, equipment or valuables from a vessel and its crew. Of the 58 incidents of attempted and successful piracy/armed robbery in the Gulf of Guinea that were reported to the International Maritime Bureau (IMB) in 2012, 37 involved the use of firearms. In the first three months of 2013 15 incidents (including three successful hijackings) were recorded. See A Anyimadu, ‘Maritime Security in the Gulf of Guinea: Lessons Learned from the Indian Ocean’ Chatham House (July 2013) 5; <http://www.chathamhouse.org/sites/files/chathamhouse/public/Research/Africa/0713pp_maritimesecurity_0.pdf>.

7 See UN Security Council Resolutions 2018 (2011) and 2039 (2012).

8 See the Code of Conduct concerning the Prevention and Repression of Piracy, Armed Robbery against Ships, and Illegal Maritime Activities in West and Central Africa; S/PRST/2013/13 (14 August 2013); <http://www.un.org/News/Press/docs/2013/sc11091.doc.htm>.

9 As reported by the 2012 Report of the Secretary General, ‘[a]s at 30 September 2012, according to information available with UNODC, 1,186 individuals suspected of piracy had been prosecuted or were awaiting prosecution in 21 States: Belgium, Comoros, France, Germany, India, Italy, Japan, Kenya, Madagascar, Malaysia, Maldives, Netherlands, Oman, Seychelles, Somalia, Republic of Korea, Spain, United Arab Emirates, United Republic of Tanzania, United States and Yemen’; see UN Security Council, Report of Secretary-General pursuant to Security Council Resolution 2020 (2011)’, S/2012/783, 22 October 2012, at para 44. According to the 2013 Report, ‘countries in the region supported by the Counter-Piracy Programme continue to receive individuals suspected of piracy for prosecution. In total, 53 suspects remain on remand in Kenya, Mauritius and Seychelles, with the Programme supporting their trials; Report of the Secretary-General on the situation with respect to piracy and armed robbery at sea off the coast of Somalia, S/2013/623, 21 October 2013, at para 45.

10 See inter alia Kontorovich, E, ‘A Guantanamo on the Sea: The Difficulty of Prosecuting Pirates and Terrorists’ (2010) 98 CLR 243Google Scholar; Ademun-Okede, J, ‘Jurisdiction over Foreign Pirates in Domestic Courts and Third States under International Law’ (2011) 17 JIML 121, 124–6Google Scholar. See also the various contributions to Symposium: ‘Testing the Waters: Assessing International Responses to Somali Piracy’ (2012) 10 JICJGoogle Scholar.

11 See Exchange of Letters between the EU and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy (6 March 2009); Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Robbers (2 December 2009); Agreement between the European Union and the Republic of Mauritius on the Conditions and Modalities for the Transfer of Suspected Pirates and Associated Seized Property from the European-led Naval Force to the Republic of Mauritius and on the Conditions of Suspected Pirates after Transfer (14 July 2011) and Agreement between the European Union and the United Republic of Tanzania on the conditions of transfer of suspected pirates and associated seized property from the European Union-led Naval Force to the United Republic of Tanzania (11 April 2014). The text of the agreements with Kenya, Seychelles and Mauritius and all relevant information are available at <http://www.eeas.europa.eu/csdp/missions-and-operations/eu-navfor-somalia/background-material/index_en.htm>. For the agreement with Tanzania see <http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:22014A0411(01)&from=EN>.

12 See further discussion in Thym, D, ‘Transfer Agreements for Pirates Concluded by the EU—a Case Study on the Human Rights Accountability of the Common Security and Defence Policy’ in Koutrakos, P and Skordas, A (eds), The Law and Practice of Piracy at Sea. European and International Perspectives (Hart Publishing 2014) 167Google Scholar.

13 Re ‘MV Courier’ [2011] 25 K 4280/09 (Verwaltungsgericht Köln, 25. Kammer).

14 A second operation is about to be officially launched in relation to counter smuggling of migrants in the Mediterranean Sea. On 18 May 2015, the European Union decided to conduct ‘a military crisis management operation contributing to the disruption of the business model of human smuggling and trafficking networks’; see art 1 of the Council Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED); OJ L 122/31 (19.5.2015) (EU).

15 On the Operation Atalanta in general see Tonelli, E, ‘The EU Fight against Piracy in the Horn of Africa: The External Action at Stake’ in Andreone, G et al. (eds), Insecurity at Sea: Piracy and other Risks to Navigation (Giannini Editore 2013) 53Google Scholar and Gosalbo-Bono, R and Boelaert, S, ‘The European Union's Comprehensive Approach to Combating Piracy at Sea: Legal Aspects’ in Koutrakos, P and Skordas, A (eds), The Law and Practice of Piracy at Sea. European and International Perspctives (Hart Publishing 2014) 81Google Scholar, especially 87–134.

16 As of October 2014, there are 16 ongoing missions, both military (5) and civilian (11); see <http://www.eeas.europa.eu/csdp/missions-and-operations/index_en.htm>. For a comprehensive review of CDSP missions see Naert, F, International Law Aspects of the EU's Security and Defence Policy (Intersentia 2010)Google Scholar and Koutrakos, P, The EU Common Security and Defence Policy (Oxford University Press 2013)CrossRefGoogle Scholar.

17 Kuiper, PJ et al. (eds), The Law of EU External Relations: Cases, Materials and Commentary on the EU as an International Actor (Oxford University Press 2013) 1Google Scholar. See ‘Reparations for Injuries Suffered in the Services of United Nations’ ICJ Reports (1949) 173, 178–9 and Gautier, P, ‘The Reparation for Injuries Case Revisited: The Personality of the European Union’ (2000) 4 Max Planck Yearbook of United Nations Law 331Google Scholar.

18 See inter alia Sari, A, ‘The Conclusion of International Agreements by the European Union in the Context of ESDP’ (2008) 57 ICLQ 53CrossRefGoogle Scholar and Wessel, RA, ‘The EU as a Party to International Agreements: Shared Competences, Miexed Responsibilities’ in Dashwood, A and Maresceau, M (eds), Law and Practice of EU External Relations (Cambridge University Press 2008) 152Google Scholar.

19 cf pre-Lisbon, the ECtHR had held that ‘CFSP decisions are therefore intergovernmental in nature. By taking part in their preparation and adoption each State engages its responsibility. That responsibility is assumed jointly by the States when they adopt a CFSP decision’; SEGI and Gestoras Pro-Amnistia v 15 States of the European Union; App No 6422/02 and 9916/02; admissibility decision of 23 May 2002.

20 Consolidated version of the Treaty on European Union [2012] OJ C 326/13.

21 Art 28, ibid.

22 For example, EUNAVFOR Operation Atalanta was launched by Council Decision 2008/918/CFSP of 8 December 2008 on the launch of a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Atalanta) (2008) OJ L 330/19; see <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:330:0019:0020:EN:PDF>.

23 See Council Doc 11096/03 EXT I (26 July 2006).

24 Art 38 of the TEU.

25 See F Naert, ‘The International Responsibility of the Union in the context of its CSDP Operations’ in M Evans and P Koutrakos (eds), The International Responsibility of the European Union (Hart Publishing 2013) 313, 318.

26 See Naert (n 16) 515–16.

27 For the command and control arrangements in military operations see Council Doc 11096/03 EXT I (26 July 2006) 6–7 and 15–16.

28 Arts 42(5) and 44 of the TEU.

29 See Sari, A, ‘The Conclusion of International Agreements by the European Union in the context of ESDP’ (2007) 56 ICLQ 53–86Google Scholar and Koutrakos, P, ‘International Agreements in the Area of the EU's Common Security and Defence Policy’ in Cannizzaro, E et al. (eds), International Law as Law of the European Union (Martinus Nijhoff 2011) 157Google Scholar.

30 See relevant information at <http://www.eeas.europa.eu/csdp/missions-and-operations/eu-navfor-somalia/background-material/index_en.htm> and discussion in Gosalbo-Bono and Bolaert (n 15) 132–3.

31 See (n 11).

32 Case C-658/11 Parliament v Council, Judgment of the Court (Grand Chamber) (24 June 2014); <http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62011CJ0658&from=EN>. See also short commentary in <http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62011CJ0658&from=EN>.

33 ibid, para 79.

34 ibid, para 90.

35 See Case C-263/14, Parliament v Council (still pending); see on the application <http://curia.europa.eu/juris/document/document.jsf?docid=154549&doclang=EN>. The author is thankful to the anonymous reviewer(s) for bringing to his attention these cases regarding transfer agreements.

36 Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47.

37 Naert (n 25) 331.

38 See further discussion in ibid 331.

39 Foto-Frost, Case 314/85, Court of Justice, Judgment of 22 October 1987, para 15. The author is indebted to the anonymous reviewers for the reference to this case.

40 See EU, Council Joint Action 2008/851/CFSP.

41 See Letter of 20 November 2008 of the TFG to the Security Council, as referred to at the Preamble of SC Res 1846 (2008).

42 ibid, art 2 as corrected by the Corrigendum to Council Joint Action 2008/851/CFSP of 10 November 2008, 2008 OJ EU L 253/18 (25.9.2009) (emphasis added). This mandate has been subsequently amended, most recently by Council Decision 2014/827/CFSP of 21 November 2014 amending Joint Action 2008/851/CFSP on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast OJ EU L 335/19 (22.11.2014). According to this Decision, art 1(3) is replaced by ‘In addition, Atalanta may contribute, as a non–executive secondary task, within existing means and capabilities and upon request, to the EU's integrated approach to Somalia and the relevant activities of the international community, thereby helping to address the root causes of piracy and its networks.’

43 On the other assets in the region and how they coordinated their action see inter alia Guilfoyle, D, ‘Combating Piracy: Executive Measures on the High Seas’ (2011) 53 Japanese Yearbook of International Law 149, 155Google Scholar.

44 On the issue of authorization of Chapter VII powers, the benchmark work is of Sarooshi, D, The United Nations and the Development of Collective Security (Oxford University Press 1999) 13Google Scholar. See also Blokker, N, ‘Is the Authorization Authorized? Powers and Practices of the UN Security Council to Authorize the Use of Force by Coalitions of the Willing’ 11 EJIL (2000) 541CrossRefGoogle Scholar and Sicilianos, L-A, ‘Entre Multilatéralisme et unilatéralisme: l'autorisation par le Conseil de sécurité de recourir à la force’ 339 RCADI (2008) 9Google Scholar.

45 See Council Joint Action 2008/851/CFSP and also SC Res 1816 (2008) para 7 (emphasis added).

46 See arts 105 and 110 of the United Nations Convention on the Law of the Sea, 1833 UNTS 397; entered into force 16 November 1994; as at 7 January 2015, LOSC has 167 parties, including the EU; see at <http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm#The United Nations Convention on the Law of the Sea> [hereinafter: LOSC]. On the right of visit in general see Guilfoyle, D, Shipping Interdiction and the Law of the Sea (Cambridge University Press 2009)CrossRefGoogle Scholar and Papastavridis, E, The Interception of Vessels on the High Seas (Hart Publishing 2013)Google Scholar.

47 See Chatham House, Briefing Note, ‘Pirates and How to Deal with Them’, Africa Programme and International Law Discussion Group, 22 April 2009, at 3, < http://www.chathamhouse.org/sites/files/chathamhouse/public/Research/Africa/220409pirates_law.pdf> and Treves, T, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 EJIL 399, 406CrossRefGoogle Scholar.

48 In Resolution 1851 (2008), the Council went even further and authorized the ‘land pursuit’ of the pirates in Somalia, again with the consent of the TFG; see SC Res 1851 (2008) para 6.

49 See art 20 of ILC Articles on Responsibility of States for Internationally Wrongful Acts, UN General Assembly Official Records; 56th Session, Supp No 10 at UN Doc A/56/10 at 31 [hereinafter: ARSIWA].

50 See also further analysis in Papastavridis (n 46) 178–80.

51 Armed robbery is defined as ‘any unlawful act of violence or detention or any act of depredation or threat thereof, other than an act of piracy, directed against a ship or against persons or property on board such a ship, within a state's jurisdiction over such offences’; IMO, Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against Ships, adopted 29 November 2001, Res A922(22), art 2(2)..

52 On the attacks in the Malacca Straits, see inter alia JS Burnett, Dangerous Waters: Modern Piracy and Terror on the High Seas (Plume 2003) 9.

53 Stateless vessels are the vessels lacking any claim to nationality under art 91 of LOSC on the basis either of State registration or some other right to fly a State's flag; see further remarks in Papastavridis (n 46) 54.

54 The definition of a ‘pirate ship’ is provided by art 103, which sets out that ‘a ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in art 101.

55 See <http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm>.

56 In accord is also Talmon, S, ‘Responsibility of International Organizations: Does the European Community Require Special Treatment?’ in Ragazzi, M (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Brill 2005) 405, 411CrossRefGoogle Scholar. cf the European Parliament Resolution of 10 May 2012 on maritime piracy, P7_TA-PROV(2012)0203, noting that, ‘on the high seas, according to international law, in all cases, including actions taken in the fight against piracy, the national jurisdiction of the flag state applies on the ships concerned, as well as to the military staff deployed on board’, para 30.

57 See inter alia: Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, paras 9–10; Case C-162/96 Racke [1998] ECR I-3655, paras 45–46; Case C-366/10, The Air Association of America, Judgment of December 2011, para 101. See also Giannelli, A, ‘Customary International Law in the European Union’ in Cannizzaro, E, Plachetti, P and Wessels, R. (eds), International Law as Law of the European Union (Martinus Nijhoff 2012) 93Google Scholar.

58 Marise Cremona avers that ‘it is logically difficult to imagine a type of competence that is neither exclusive, nor shared nor complementary, the CFSP appears to be a type of sui generis competence that shares characteristics of both shared and complementary competences’; Cremona, M, ‘Defining Competence in EU External Relations’ in Dashwood, A and Maresceau, M (eds), Law and Practice of EU External Relations (Cambridge University Press 2008) 34, 65Google Scholar. For a contrary opinion, namely that CFSP competence as such is lacking, as Member States merely use the Union to exercise their own competences. Hermann, C, ‘Much Ado about Pluto? The Unity of the Legal Order of the European Union Revisited’ in Cremona, M and de Witte, B, EU Foreign Relations Law ‒ Constitutional Fundamentals (Hart Publishing 2008) 20–51Google Scholar.

59 See generally Eeckhout, P, EU External Relations Law (2nd edn, Oxford University Press 2011) ch 11CrossRefGoogle Scholar; Trybus, M and White, N (eds), European Security Law (Oxford University Press 2007)CrossRefGoogle Scholar; Blockmans, S (ed), European Union and Crisis Management (Asser Press 2008)CrossRefGoogle Scholar.

60 Art 2 as corrected by the Corrigendum to Council Joint Action 2008/851/CFSP of 10 November 2008.

61 See eg the ITLOS, M/V ‘SAIGA’ (No 2) (Saint Vincent and the Grenadines v Guinea) case, 1 July 1999, para 155 and ITLOS, Virginia G case (Panama v Guinea-Bissau) (Case No 20), Judgment of 14 April 2014, para 362. For further discussion see Papastavridis (n 46) 68–73.

62 See art 6 of the International Covenant on Civil and Political Rights, 19 Dec 1966, 999 UNTS 171 (ICCPR). See also art 2 of the Convention on the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (ECHR).

63 Charter of Fundamental Rights of the European Union (2000/C 364/01)  <http://www.europarl.europa.eu/charter/pdf/text_en.pdf>.

64 On 1 December 2009, with the entry into force of the Treaty of Lisbon, the Charter was given binding legal effect on the EU institutions and on national governments equal with the EU Treaties. See art 6 of TEU.

65 See inter alia Milanović, M, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford University Press 2011)CrossRefGoogle Scholar.

66 See inter alia, Medvedyev and Others v France App No 3394/03 (ECtHR, 10 July 2008), confirmed by the Grand Chamber in its judgment of 29 March 2010; Hirsi Jamaa and Others v Italy App No 27765/09 (ECtHR, Grand Chamber Judgment of 23 February 2012). See also Papastavridis, E, ‘European Convention of Human Rights and the Law of the Sea: the Strasbourg Court in Unchartered Waters?’ in Fitzmaurice, M and Merkouris, P (eds), The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications (Martinus Nijhoff 2013) 117, 122Google Scholar.

67 On the ‘universal jurisdiction’ established by art 105 and its contested relevance see inter alia Kontorovich, E and Art, S, ‘An Empirical Examination of Universal Jurisdiction for Piracy’ (2010) 104 AJIL 436CrossRefGoogle Scholar.

68 See eg art 3 of ECHR, art 7 ICCPR and art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec 1984, 1465 UNTS 85 (hereinafter: CAT).

69 Art 33(1) reads as follows: ‘1. No Contracting State shall expel or return (‘‘refouler’’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’; see Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137. See in general Wooters, C, International Legal Standards for the Protection from Refoulement (Intersentia 2009)Google Scholar.

70 See inter alia Soering v UK (1989) 98 ILR 270, at para 88; Ahmed v Austria (1997) 24 EHHR 278, at paras 39–40, Saadi v Italy, App No 37201/06, Judgment of 28 February 2008, at para 125 and M.S.S. v Belgium and Greece, App No 30696/09, Grand Chamber, Judgment of 21 January 2011 at para 344ff .

71 See also Medvedyev case, para 80 and Malone v UK Series A No 82 (ECtHR, 2 August 1984) para 67 and  Vassis and Others v France (App No 62736/09), Judgment of 27 June 2013, at paras 52–62.

72 Ali Samatar and Others v France (App Nos 17110/10 and 17301/10), Judgment of 4 December 2014.

73 Hassan and Others v France (App Nos  46695/10 and 54588/10), Judgment of 4 December 2014.

74 See also in this repsect Vassis and Others v France (n 71).

75 Under art 14 of the ICCPR, ‘in the determination of any criminal charge, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’.

76 See also art 6 of ECHR.

77 On the distinction between ‘primary’ and ‘secondary’ rules see Cassese, A, International Law (2nd edn, Oxford University Press 2005) 244Google Scholar and Linderfalk, U, ‘State Responsibility and the Primary-Secondary Rules Terminology’ (2009) 78 NordJIntlL 53Google Scholar.

78 For the term ‘shared responsibility’ see Nollkaemper, A and Jacobs, D, ‘Shared Responsibility in International Law: A Conceptual Framework’ (2013) 34 MichJIntlL 359Google Scholar, 366ff.

79 Notwithstanding the inclusion of art 64 of ARIO on lex specialis, there are virtually no provisions dealing specifically with responsibility in the context of CSDP operations. See Naert (n 25) 336.

80 See arts 4–9 of the Draft Articles on the Responsibility of International Organizations (2011); ILC Report, Sixty-Third Session, UN Doc A/66/10 (2011) 50–170 [hereinafter: ARIO] In resolution 66/100 of 9 December 2011, the General Assembly took note of the Articles on the Responsibility of International Organisations, the text of which was annexed to the resolution.

81 Rules on the attribution of conduct to international organizations are also included in art 8 (‘excess of authority or contravention of instructions’) and art 9 (‘conduct acknowledged and adopted by an international organization as its own’).

82 See art 1(1) of the Statute of the International Law Commission, adopted by the General Assembly in resolution 174(II) of 21 November 1947, available at <http://legal.un.org/ilc/texts/instruments/english/statute/statute_e.pdf>. At least, there is certainty with respect to the attribution of acts of agents of international organization under art 6 according to the ICJ, ‘Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights’, Advisory Opinion, ICJ Reports 1999, 88–9, para 66.

83 See in this regard Sari, A and Wessel, R, ‘International Responsibility for EU Military Operations: Finding the EU's Place in the Global Accountability Regime’ in Van Vooren, B, Blockmans, S and Wouters, J (eds), The Legal Dimension of Global Governance: What Role for the EU? (Oxford University Press 2013)Google Scholar available also at <http://www.utwente.nl/mb/pa/research/wessel/wessel88.pdf>.

84 See eg Case T-271/10 R, H v Council and Commission, Order of the President of the General Court, 22 July 2010, para 20. In accord are Sari and Wessel ibid, 23.

85 Kuijper, PJ and Paasivirta, E, ‘EU International Responsibility and its Attribution: From the Inside Looking out’ in Evans, M and Koutrakos, P (eds), The International Responsibility of the European Union (Hart Publishing 2013) 35, 49Google Scholar.

86 ibid.

87 This approach responds to the core of EU activities in the internal market; see ibid, at 54.

88 See ibid, at 55 and also Hoffmeister, F, ‘Litigating against the European Union and its Member States – Who Responds under the ILC's Draft Articles on International Responsibility of International Organizations?’ (2010) 21 EJIL 723, 741CrossRefGoogle Scholar.

89 See art 275 TFEU.

90 See the ARIO Commentary to art 7, at 19–26.

91 Tzanakopoulos, A, Disobeying the Security Council (Oxford University Press 2011) 40CrossRefGoogle Scholar.

92 ECtHR, The Case of Jaloud v The Netherlands (App No 47708/08), Grand Chamber, Judgment of 20 November 2014. See also short commentary of the case at <http://www.ejiltalk.org/jaloud-v-netherlands-new-directions-in-extra-territorial-military-operations/>.

93 According to the Court, ‘[having retained full command] the respondent Party is therefore not divested of its “jurisdiction”, within the meaning of Article 1 of the Convention, solely by dint of having accepted the operational control of the commander of MND (SE), a United Kingdom officer’; ibid, para 143.

94 ‘the Court cannot find that the Netherlands troops were placed “at the disposal” of any foreign power, whether it be Iraq or the United Kingdom or any other power, or that they were “under the exclusive direction or control” of any other State’, para 151.

95 Sari and Wessel (n 83) 21. cf the view of Kuijper and Paasivirta that the EU ‘may feel more comfortable with the “effective” control test’, (n 83) at 54.

96 See Wessel, R and den Hertog, L, ‘EU Foreign, Security and Defence Policy: A Competence-Responsibility Gap?’ in Evans, M and Koutrakos, P (eds), The International Responsibility of the European Union (Hart Publishing 2013) 351Google Scholar.

97 Sari and Wessel (n 83) 18.

98 See Wessel and den Hertog (n 96) 351.

99 ANNEX C TO OP ATALANTA EU OHQ SOP LEGAL 001, DATED 26 MARCH 2009 (on file with the author).

100 RULES OF ENGAGEMENT IMPLEMENTATION MESSAGE FOR OPERATION ATALANTA (ATALANTA OHQ ROEIMPL001) (on file with the author).

101 See Flow Chart, ANNEX C TO OP ATALANTA EU OHQ SOP LEGAL 001, DATED 26 MARCH 2009 (on file with the author).

102 See MatrixRoE Atalanta (13.09.2009) (on file with the author).

103 ibid.

104 According to the EUNAVFOR, Operation Order, ‘When the Scene of Action Commander (SAC) of the intercepting unit determines that a vessel should be boarded (Series 17 apply), the active cooperation of the Master or the individual in control of the vessel of the intercepted vessel should be sought. The Master should be informed of the following: a. The intention to board; b. The authority under which the boarding is taking place; c. The purpose of the boarding; d. That no harm will be done to the vessel, crew or cargo and that he/she should slow or stop to facilitate the embarkation of a boarding party’; OPERATION ORDER FOR EUROPEAN UNION NAVAL FORCE OPERATION ATALANTA COUNTER PIRACY IN THE GULF OF ADEN AND SOMALI BASIN (Version 1 Dated 17 Dec 2008); ANNEX E APPENDIX 1 OF REFERENCE D (on file with the author). See also Papastavridis (n 46) 59.

105 For these terms see OPERATION ORDER FOR EUROPEAN UNION NAVAL FORCE OPERATION ATALANTA COUNTER PIRACY IN THE GULF OF ADEN AND SOMALI BASIN (Version 1 Dated 17 Dec 2008);  ANNEX E APPENDIX 2 OF REFERENCE D.

106 See also ibid ANNEX E APPENDIX 1 OF REFERENCE D, para 9.

107 ibid (emphasis added).

108 See (n 93) and accompanying text.

109 F Messineo, ‘Multiple Attribution of Conduct’, SHARES Research Paper No 2012–11, available at <www.sharesproject.nl> and also in Nollkaemper, PA and Plakokefalos, I (eds), Principles of Shared Responsibility: An Appraisal of the State of the Art (CUP 2014) 41CrossRefGoogle Scholar.

110 See Jaloud v The Netherlands case (n 92).

111 ‘Although it may not frequently occur in practice, dual or even multiple attribution of conduct cannot be excluded. Thus, attribution of a certain conduct to an international organization does not imply that the same conduct cannot be attributed to a State; nor does attribution of conduct to a State rule out attribution of the same conduct to an international organization’; ARIO Commentary, 16.

112 ‘The Court does not consider that, as a result of the authorization contained in Resolution 1511, the acts of soldiers within the Multinational Force became attributable to the United Nations or – more =importantly, for the purpose of this case – ceased to be attributable to the troop contributing nations’: see Al-Jedda v United Kingdom, (App No 27021/08), Grand Chamber, Judgment of 7 July 2011, at para 80.

113 It found that Dutch peacekeepers were under the effective control of authorities in The Hague, rather than the UN, and that attribution could potentially be to both the UN and The Netherlands; Court of the Appeal in The Hague, Mustafić and Nuhanović, LJN Br0132, 5 July 2011, at 5.3. See also Nollkaemper, A, ‘Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’ (2011) 9 JICJ 1143–57Google Scholar. On 6 September 2013, the Dutch Supreme Court affirmed the Court of Appeal's strong approach to dual attribution, holding that it was possible that both The Netherlands and the UN had effective control over the same wrongful conduct and that attributing the conduct to The Netherlands did not in any way determine whether the UN also had effective control (para 3.11.2). The Judgment is available at <http://www.rechtspraak.nl/Organisatie/Hoge-Raad/OverDeHogeRaad/publicaties/Documents/12%2003324.pdf>.

114 The term ‘indirect responsibility’ is credited to Ago, see Roberto Ago, Special Rapporteur, Eighth report on State responsibility, 1979 (A/CN.4/318 and Add.1 to 4), para 2–3.

115 See Chapter IV of ARIO and accompanying commentary.

116 Under art 17(2) of ARIO, ‘[a]n international organization incurs international responsibility if it circumvents one of its international obligations by authorizing member States or international organizations to commit an act that would be internationally wrongful if committed by the former organization and the act in question is committed because of that authorization’.

117 See N Nedeski and PA Nollkaemper, ‘Responsibility of international organizations “in connection with acts of States’”, SHARES Research Paper 08 (2012), ACIL 2012–05, at 8; <www.sharesproject.nl>.

118 See Tzanakopoulos (n 91) 48; Ahlborn, C, ‘The Rules of International Organizations and the Law of International Responsibility’, SHARES Research Paper 02 (2011), ACIL 2011–03Google Scholar, at <www.sharesproject.nl>.

119 Otherwise, France could not shift to national control, if the right of visit was based only on the authorization of EUNAVFOR.

120 As the ILC mentions in the ARIO Commentary, quoting the ARSIWA Commentary to art 15 ARSIWA, ‘the term “controls” refers to cases of domination over the commission of wrongful conduct and not simply the exercise of oversight, still less mere influence or concern’, and that ‘the word “directs” does not encompass mere incitement or suggestion but rather connotes actual direction of an operative kind’, at 38.

121 Wessel and den Hertog are in accord of the application of this provision generally in the context of CFSP operations: ‘Situations in which Member States are directed or controlled by the Union form the foundation of the CFSP’, (n 94) at 355.

122 See ARIO Commentary, at 36–7 and Reinisch, A, ‘Aid or Assistance and Direction and Control between States and International Organizations in the Commission of Internationally Wrongful Acts’ (2010) 7 IOLR 63Google Scholar.

123 Wessel and den Hertog (n 95) 357.

124 See (n 100) (emphasis added).

125 As held in the landmark case of Osman v United Kingdom (1998), art 2 requires States not only to restrain from causing death, but also to take measures to protect the lives of individuals within their jurisdiction; Osman v United Kingdom, App No 87/1997/871/1083, Grand Chamber Judgment of 28 October 1998, 29 EHRR 245.

126 See OP ATALANTA EU OHQ STANDARD OPERATING PROCEDURE: HANDLING OF DETAINEES / SUSPECTED PIRATES / ARMED ROBBERS AT SEA AND EVIDENCE COLLECTION, OP ATALANTA EU OHQ, SOP LEGAL 001, DATED 26 MARCH 2009, at para 2.2 (on file with the author) [hereinafter: Guidance to EUNAVFOR] (emphasis added).

127 See Flow Chart (n 101).

128 Guidance to EUNAVFOR (n 126), para 2.4 (emphasis added).

129 See ibid, Enclosure 8 to Annex B. It has anonymously been reported to the author that the persons under the present circumstances are not considered to enjoy the full protection of human right treaties; on the contrary, they are perceived to be persones extra juridicates (communication with the author, 5 April 2013) (emphasis added).

130 Guidance to EUNAVFOR (n 125) at para 3.

131 It is reported also that ‘over 60% of the pirates apprehended under Operation Atalanta are released, which illustrates the impunity of the pirates’; see Tuerk, H, Reflections on the Contemporary Law of the Sea (Martinus Nijhoff 2012) 95CrossRefGoogle Scholar.

132 See Crawford, J and Hyndman, P, ‘Three Heresies in the Application of the Refugee Convention’ (1989) 1 IJRL 155, 171CrossRefGoogle Scholar.

133 Art 3(2) of the TFEU reads as follows: ‘The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competences, or insofar as its conclusion may affect common rules or alter their scope’. See further discussion in Wessel and den Hertog (n 95) 344.

134 cf the Othman (Abu Qatada) v the United Kingdom case (App No 8139/09), ECHR (Fourth Section), Judgment of 17 January 2012.

135 cf R Ago, ‘Third Report on State responsibility’ UNYBILC (1971-II) 271 (emphasis added).

136 See ARIO Commentary, 90.

137 See inter alia Soering v UK (1989), 98 ILR 270, at para 88; M.S.S. v Belgium and Greece, App No 30696/09, Grand Chamber, Judgment of 21 January 2011, at para 344ff.

138 See Agreement between the European Union and the Republic of Djibouti on the status of the European Union-led forces in the Republic of Djibouti in the framework of the EU military operation Atalanta (3.2.2009) OJ L 33/43 available at <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:033:0043:0048:EN:PDF>.

139 See EUNAVFOR Press Release (4 March 2009) available at <http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/esdp/106500.pdf>.

140 See Re Muhamud Ηashi and 8 Others v Republic, [2009] KLR Misc App No 434 of 2009; available also at Lloyd's List (8 November 2010) 17.

141 The section provides: ‘[t]he jurisdiction of the courts of Kenya for the purposes of this Code extends to every place within Kenya, including territorial waters; see <http://www.kenyalaw.org/Downloads/GreyBook/8.%20The%20Penal%20Code.pdf>.

142 See Re Muhamud Ηashi and 8 Others v Republic, at 33. See also Odeke, A, ‘Somali Piracy: Jurisdiction over Foreign Pirates in Domestic Courts and Third States under International Law’ (2011) 17 JIML 121, 139Google Scholar.

143 See the decision of the Kenyan Court of Appeal on 18 October 2012; <http://piracylaw.files.wordpress.com/2012/10/kenya-hashi-appeal-opinion.pdf>.

144 Re ‘MV Courier’ (n 13). As of 25 May 2013, the case was still pending at the appellate level: Re ‘MV Courier’, 4 A 2948/11 (Oberverwaltungsgericht Münster). See commentary of the case in C Kress, Die moderne Piraterie, das Strafrecht und die Menschenrechte Gedanken aus Anlass der deutschen Mitwirkung an der Seeoperation ATALANTA in Weingärtner, D (ed), Die Bundeswehr als Armee im Einsatz (Nomos 2012) 95Google Scholar and Petrig, A, ‘Arrest, Detention and Transfer of Piracy Suspects: A Critical Appraisal of the German Courier Case Decision’ in Andreone, G et al. (eds), Insecurity at Sea: Piracy and other Risks to Navigation (Giannini Editore 2013) 153Google Scholar.

145 ibid, paras 59–77.

146 ibid, paras 31–36.

147 ibid, paras 37–50.

148 ibid, paras 32, 38, 52–59.

149 As Petrig reports, ‘the competent German prosecutorial authorities opened an investigation and issued arrest warrants against all nine intercepted persons on 6 March 2009. On the following day, however, the prosecutorial authority discontinued the investigation according to Section 153c of the German Code of Criminal Procedure. This decision was taken after the inter-ministerial decision-making body informed the prosecutorial authorities about its finding that the suspects should be transferred to Kenya pursuant to the transfer agreement concluded between the European Union and Kenya on 6 March 2009’; see A Petrig (n 144) 155.

150 It is also telling that the relevant EUNAVFOR Press Release of 11 March 2009 refers to an EU handover of suspected pirates to Kenya (on file with the author). This was also confirmed in the communication between the German OHQ and the EUNAVFOR FC (on file with the author).

151 See art 275 of TFEU and further comments in Eeckhout (n 58) 497.

152 Naert (n 25) 337.

153 See art 6(2) of TFEU.

154 On 5 April 2013, negotiations of the 47 Council of Europe Member States and the EU finalized the draft accession agreement of the EU to the ECHR. For the text of the draft agreement see <http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf> and a short commentary in SHARES Briefing Paper – A New Framework for Allocating International Responsibility: the EU Accession to the European Convention on Human Rights (2014), <www.sharesproject.nl>.

155 The Opinion identified problems in the draft agreement with regard to the compatibility with EU law of the EU's accession to the ECHR . See Court of Justice of the EU (Full Court) Opinion 2/2013 (18 December 2014) at <http://curia.europa.eu/>.