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Exchange of Letters between the European Union and the Government of Kenya on the Conditions and Modalities for the Transfer of Persons Suspected of Having Committed Acts of Piracy

Published online by Cambridge University Press:  27 February 2017

Eugene Kontorovich
Eugene Kontorovich*
Affiliation:
Northwestern University School of Law
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Type
International Legal Documents
Information
International Legal Materials , Volume 48 , Issue 4 , August 2009 , pp. 747 - 759
Copyright
Copyright © American Society of International Law 2009

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References

* This text was reproduced and reformatted from the text available at the EUR-lex website: (visited August 17, 2009) <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:079:0049:0059:EN:PDF.

1 See generally Eugene Kontorovich, International Legal Responses to Piracy off the Coast of Somalia, ASIL Insights, Feb. 6, 2009, available at <http://www.asil.org/insights090206.cfm.

2 See Eugene Kontorovich, ‘A Guantanamo on the Sea’: The Difficulty of Prosecuting Pirates and Terrorists, 98 Cal. L. Rev. (forthcoming Feb. 2010), available at <http://ssrn.com/abstract=1371122.

3 Corey Flintoff, Prosecuting Pirates: No More Walking the Plank, Nat’l Pub. Radio, Jan. 18, 2009, available at <http://www.npr.org/templates/story/story.php?storyId=99169738; EU Launches Anti-Piracy Mission Off Somalia, AFP, Nov. 10, 2008, available at <http://afp.google.com/article/ALeqM5gUh2CGJ_4hpC-tFNErBw-knE9ATg; Marie Woolf, Pirates Can Claim UK Asylum, Sunday Times Online, Apr. 13, 2008, available at < http://www.timesonline.co.uk/tol/news/uk/article3736239.ece (“The [British] Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft”)

4 See United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3(1), opened for signature Dec. 10, 1984, 1465 U.N.T.S. 85, reprinted in 23 I.L.M. 1027 (“No State Party shall expel, return (‘refouler’) 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”); see also Fiona de Londras, Saadi v. Italy: European Court of Human Rights Reasserts the Absolute Prohibition on Refoulement in Terrorism Extradition Cases, ASIL Insights, May 13, 2008, available at <http://www.asil.org/insights080513.cfm>.

5 See French Warship Thwarts Pirate Attack, Nat’l Pub. Radio, available at <http://www.npr.org/templates/story/story.php?storyId=99036159; Marcus Hand, French Navy Captures 19 Somali Pirates, Lloyd’s List, Jan. 5, 2009, available at <http://www.lloydslist.com/ll/news/french-navycaptures-19-somali-pirates/20017603853.htm. The European Court of Human Rights ruled recently that such assurances do not in themselves excuse refoulement. See de Londras, supra note 4.

6 In a dynamic reminiscent of the simultaneous efforts to find countries to take the Guantánamo detainees that the U.S. did not want to prosecute and yet feared releasing, the Western nations turned to poorer countries.

7 Michael Bahar, Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory For Naval Anti-Piracy Operations, 40 Vand. J. Transnat’l L. 1, 36 (2007).

8 See id.; James Kraska & Brian Wilson, Fighting Pirates: The Pen and the Sword, 25 World Pol’y J. 41, 46-47 (Winter 2008), available at <http://www.mitpressjournals.org/doi/abs/10.1162/wopj.2009.25.4.41 (noting pirates received seven year sentences).

9 Republic of Kenya, Ministry of Foreign Affairs, Kenya and the United Kingdom Sign a Memorandum of Understanding on Piracy Along the Coast of Somalia, available at <http://www.mfa.go.ke/mfacms/index.php?option=com_content&task=view&id=305&Itemid=62.

10 David Morgan, U.S. Delivers Seven Somali Pirate Suspects to Kenya, Reuters, Mar. 5, 2009, available at <http://www.reuters.com/article/worldNews/idUSTRE52480N20090305.

11 See United Kingdom House of Commons Daily Debates (May 14, 2009), <http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090514/text/90514w0010.htm.

12 Dan Lett, Canada Asks Kenya to Prosecute Pirates: MacKay, Winnipeg Free Press, May 21, 2009, available at <http://www2.canada.com/news/canada+asks+kenya+prosecute+pirates+mackay/1617277/story.html?id=1617277.

13 Exchange of Letters between the European Union and the Government of Kenya on the Conditions and Modalities for the Transfer of Persons Suspected of Having Committed Acts of Piracy and Detained by the European Union-led Naval Force (EUNAVFOR), and Seized Property in the Possession of EUNAVFOR, from EUNAVFOR to Kenya and for their Treatment after such Transfer art. 2(a), 2009 O.J. (L 79) 49, available at <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:079:0049:0059:EN:PDF [hereinafter MoA].

14 Id. art. 2(c).

15 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].

16 Derek Kilner, UN Official Calls for Dismissal of Kenya’s Police Chief, Attorney General, Voice o>sc>f,/sc> Am.,s Feb. 25, 2009, available at <http://www.voanews.com/english/2009-02-25-voa59.cfm.

17 MoA art. 3.

18 Id. art. 4.

19 The monitoring mechanism is essentially self-reporting. Kenya is obligated to inform the EU on the status of the detainees, including “any deterioration of their physical condition and of any allegations of improper treatment.” MoA art. 5(c), (e). EU officials are to be given access to the transferees. Id. art. 5(e).

20 Jeffrey White, German Lawyers Launch Pirate Defense Team, Christian Sci Monitor, Apr. 15, 2009, available at <http://www.csmonitor.com/2009/0416/p06s01-wogn.html (“According to the 12-page complaint, the German government agreed to have the accused pirates moved to the Shimo La Tewa prison in Kenya knowing full well the deplorable conditions at the facility, which houses 3,500 inmates in overpopulated cells and where prisoners can contract deadly health infections in as little as six weeks”).

21 MoA art. 4(f)(5).

22 Matthias Gebauer & Holger Stark, Somali Pirate Trial Tests Limits of EU Mission, Speigel Online Int’l, Apr. 1, 2009, available at <http://www.spiegel.de/international/world/0,1518,616760,00.html (describing Kenyan demands that EU nation secure presence in court of captain of attacked vessel, over whom EU does not have custody, as well as EU military personnel involved in capture).

23 See Travis Kavulla, Prosecuting Captured Somali Pirates Poses Challenges, Fox News,. Nov 26, 2008, available at <http://www.foxnewscom/story/0,2933,457827,00.html.

24 UNCLOS art. 105 (emphasis added).

25 See U.N. International Law Commission, Articles Concerning the Law of the Seawith Commentaries, 1956 (II) Yearbook of the International Law Commission art. 43, at 283 (emphasis added):

This article gives any State the right to seize pirate ships (and ships seized by pirates) and to have them adjudicated upon by its courts. This right cannot be exercised at a place under the jurisdiction of another State.

26 See UNCLOS art. 104 (“A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft”).

27 See Report of the International Law Commission at 283.

28 See generally Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation, 45 Harv. Int’l L.J. 183 (2004).

29 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 27 I.L.M. 668 (1988), entered into force 1992 (also known as the “Rome Convention”).

30 See id. art. 6(1) (allowing any state party to prosecute defendants found in their territory); id. art. 11 (allowing for extradition of suspects to any flag state).

31 Celestine Achieng, U.S. Navy Hands over 17 Pirates to Kenya, Reuters, June 10, 2009, at <http://www.reuters.com/article/africaCrisis/idUSLA1052558.

32 See id.

33 James Butty, Kenyan Foreign Minister Sheds Light On U.S.- Kenya Piracy Agreement, Turkish Weekly, Jan. 28, 2009, available at <http://www.turkishweekly.net/news/63755/kenyan-foreign-minister-shed-light-on-u-s-kenya-piracyagreement-.html (quoting Kenyan foreign minister as saying the MoA with the United States is “not an open door for dumping pirates onto Kenya soil because it will not be acceptable”); James Thuo Gathii, Kenya Has no Duty to Try Pirates Arrested Elsewhere, Business Daily (Nairobi), Apr. 15, 2009, available at <http://www.bdafrica.com/index.php?option=com_content&task=view&id=14049&Itemid=5821 (arguing that piracies trials will clog Kenya courts, and that there is nothing “in it for us”).

34 See Achieng, supra note 31; see also Kontorovich, supra note 2, at 1 (noting same concern on the part of European officials). 35 MoA at 1 (observing that MoA “may be varied by mutual agreement” or terminated on six months notice).

36 Id. art. 2(a).