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The missing link against piracy is … in Europe

ArrestPiratesBremen3-De0910.jpg(BRUSSELS2) The release of the 13 pirates by the Dutch frigate Evertsen, before Christmas (1), reveals a serious “lack” in the legal anti-piracy system. This may seem anachronistic… but there is currently no European anti-piracy legislation.

For almost two years since the phenomenon emerged in the Indian Ocean and the European Union has been looking into the problem, the 27 have not only not adopted harmonized legislation against piracy at sea but also don't really think about it. On several occasions, I asked the question. And the answer has always been invariably the same: “this is not on the agenda".

This is paradoxical !

The Europeans are, in fact, asking African countries to welcome suspects of acts of piracy, to adopt legislation and to have coordination that they are not capable of imposing on themselves, or even of anticipate. They even require them to respect procedural principles (2). Better ! They have succeeded in defining for their military ships which cruise off the coast of Somalia, certain (roughly) common rules of procedure (via Joint Action, the concept of operation) for apprehension, interrogation and arrest. “custody” of pirates but are incapable of defining similar rules at the civil level in the Member States.

It would be useful !

Some States have adopted or are in the process of adopting anti-piracy legislation (France, Spain, etc.) while other States do not have specific legislation. Result: today, and even more so tomorrow, EU member states will have different, even divergent, legislation and procedures in this area. However, a common definition of the act of piracy, identical procedures for implementing international law of the sea (with adaptation of national procedures for arrest, defense, etc.) and more or less harmonized sanctions would be very useful. In the same way, the implementation of a rapid transfer system, “off shore”, would be necessary, if only to avoid a new “Evertsen”. All these provisions would undoubtedly facilitate anti-piracy action off the coast of Somalia, in the Indian Ocean or in another part of the world.

The missing link

The missing link, at the legal level, is currently undoubtedly located largely more at the level of the European Union than in a hypothetical international tribunal against piracy (which resurfaces as soon as a State feels incapable of applying the law of the sea , and the universal jurisdiction it authorizes). And the Europeans are fully capable of resolving this missing link. The EU has the competence in matters of justice, police and judicial cooperation – reinforced by the Treaty of Lisbon and the recent case law of the European Court of Justice (3) – to develop substantial criminal legislation against piracy.

(1) The Evertsen releases 13 pirates for lack of a host country, a bug?

(2) Transfer of Pirates to Seychelles, Terms and Conditions (Exclusive)

The Suspects Transfer Agreement with Seychelles (exclusive)

(3) The judgments of the Court of September 13, 2005 (C-176/03) and, especially of October 23, 2007 (C-440/05) emphasize that criminal law measures may be initiated by the European Commission within the framework of Community competence in the field of maritime transport.

(photo credit: Bundeswehr, destruction of a pirate skiff)

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

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