Współpraca państw UE w realizacji polityki akwenowej na przykładzie pierwszej, morskiej, militarnej operacji EUNAVFOR ATALANTA

The uncontrollable outbreak of piracy attacks off the Somali coast has lately made the East African coast the area where the majority of all global maritime crimes occur. Located in East Africa, Somalia borders one of the most important maritime communication routes on Earth: the Suez Canal – the Red Sea – the Gulf of Aden. EU states could be acutely affected by the disruption of sea trade in this area, therefore they have become actively involved in fighting piracy off the Somali coast. As a result of political, organizational and legal activity, the Council of the EU established the first maritime military operation under the auspices of the European Union – EUNAVFOR Somalia – Operation Atalanta. The efficient operation of EU naval forces, hundreds of miles from European shores would not have been possible had it not been for an extensive and comprehensive maritime policy. Not only has its implementation enabled the EU to chase pirates in the Somali basin, or helped bring any criminals detained before the courts, but is has also influenced countries outside the European Union.

Who Will Prosecute Piracy in Africa?

The prosecution of piracy and armed robbery off the Somali coast has been at the centre of political and academic discourse since the initiation of the counter-piracy campaign. Notwithstanding the principle of universal jurisdiction which is widely seen as applicable to piracy, the overwhelming majority of the states involved in counter-piracy operations have proved reluctant to prosecute alleged pirates within their national courts. The international community seems to have selected the establishment of piracy prosecution centres in other states in the region, mainly Kenya, the Seychelles, Mauritius, and Tanzania, while at the same time it is making efforts to enhance prison capability within Somalia for the transfer of tried pirates. International prosecution does not fit the crime of piracy and armed robbery and in any event seems not to be an option for the international community. Nevertheless, there are many jurisdictional issues to be addressed in relation to the prosecution of piracy off Somalia, especially by third states.

Somali piracy should stay below previous peaks

Significance The announcement follows recent incidents and seizures that prompt concerns that large-scale piracy could return to Somalia. A spate of piracy between 2008-11 spurred international and global efforts to enhance maritime security. Maritime actors will look to assess whether past actions were successful at warding off the threat and what is the most advisable course to take to lessen piracy risks. This may include addressing both drivers on land and marine developments. Impacts International cooperation to counter piracy has proven relatively effective; efforts are likely to continue at reduced levels. Having been marginalised, African states play a smaller role in the counter-piracy efforts but will remain a major victim. An increase in piracy could result in elevated shipping costs when transiting near or through determined hotspots. Incidents off the Somali coast could dip in the coming months with the onset of the monsoon and resulting rough seas.

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

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.