Council Joint Action 2008/851/CFSP of 10 November 2008 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

1 The European Union (EU) shall conduct a military operation in support of Resolutions 1814 (2008), 1816 (2008) and 1838 (2008) of the United Nations Security Council (UNSC), in a manner consistent with action permitted with respect to piracy under Article 100 et seq. of the United Nations Convention on the Law of the Sea signed in Montego Bay on 10 December 1982 (hereinafter referred to as ‘the United Nations Convention on the Law of the Sea’) and by means, in particular, of commitments made with third States, hereinafter called ‘Atalanta’ in order to contribute to: the protection of vessels of the WFP delivering food aid to displaced persons in Somalia, in accordance with the mandate laid down in UNSC Resolution 1814 (2008), the protection of vulnerable vessels cruising off the Somali coast, and the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, in accordance with the mandate laid down in UNSC Resolution 1816 (2008),

2 The forces deployed to that end shall operate, up to 500 nautical miles off the Somali coast and neighbouring countries, in accordance with the political objective of an EU maritime operation, as defined in the crisis management concept approved by the Council on 5 August 2008.

Under the conditions set by the relevant international law and by UNSC Resolutions 1814 (2008), 1816 (2008) and 1838 (2008), Atalanta shall, as far as available capabilities allow: (a) provide protection to vessels chartered by the WFP, including by means of the presence on board those vessels of armed units of Atalanta, in particular when cruising in Somali territorial waters; (b) provide protection, based on a case-by-case evaluation of needs, to merchant vessels cruising in the areas where it is deployed; (c) keep watch over areas off the Somali coast, including Somalia's territorial waters, in which there are dangers to maritime activities, in particular to maritime traffic; (d) take the necessary measures, including the use of force, to deter, prevent and intervene in order to bring to an end acts of piracy and armed robbery which may be committed in the areas where it is present; (e) in view of prosecutions potentially being brought by the relevant States under the conditions in Article 12, arrest, detain and transfer persons who have committed, or are suspected of having committed, acts of piracy or armed robbery in the areas where it is present and seize the vessels of the pirates or armed robbers or the vessels caught following an act of piracy or an armed robbery and which are in the hands of the pirates, as well as the goods on board; (f) liaise with organisations and entities, as well as States, working in the region to combat acts of piracy and armed robbery off the Somali coast, in particular the ‘Combined Task Force 150’ maritime force which operates within the framework of ‘Operation Enduring Freedom’.

Rear admiral Phillip Jones is hereby appointed EU Operation Commander.

The EU Operational Headquarters shall be located at Northwood, United Kingdom.

The Decision to launch the EU military operation shall be adopted by the Council following approval of the Operation Plan and the Rules of Engagement and in the light of the notification by the TFG to the Secretary-General of the United Nations of the offer of cooperation made by the EU pursuant to point 7 of UNSC Resolution 1816 (2008).

1 Under the responsibility of the Council, the Political and Security Committee (hereinafter referred to as the ‘PSC’) shall exercise the political control and strategic direction of the EU military operation. The Council hereby authorises the PSC to take the relevant decisions in accordance with Article 25 of the EU Treaty. This authorisation shall include the powers to amend the planning documents, including the Operation Plan, the Chain of Command and the Rules of Engagement. It shall also include the powers to take decisions on the appointment of the EU Operation Commander and/or EU Force Commander. The powers of decision with respect to the objectives and termination of the EU military operation shall remain vested in the Council, assisted by the Secretary-General/High Representative (hereinafter referred to as the ‘SG/HR’).

2 The PSC shall report to the Council at regular intervals.

3 The PSC shall receive reports from the chairman of the EU Military Committee (EUMC) regarding the conduct of the EU military operation, at regular intervals. The PSC may invite the EU Operation Commander and/or EU Force Commander to its meetings, as appropriate.

1 The EUMC shall monitor the proper execution of the EU military operation conducted under the responsibility of the EU Operation Commander.

2 The EUMC shall receive reports from the EU Operation Commander at regular intervals. It may invite the EU Operation Commander and/or EU Force Commander to its meetings as appropriate.

3 The chairman of the EUMC shall act as the primary point of contact with the EU Operation Commander.

The Presidency, the SG/HR, the EU Operation Commander and the EU Force Commander shall closely coordinate their respective activities regarding the implementation of this Joint Action.

1 The SG/HR, in close coordination with the Presidency, shall act as the primary point of contact with the United Nations, the Somali authorities, the authorities of neighbouring countries, and other relevant actors. Within the context of his contact with the African Union, the SG/HR shall be assisted by the EU Special Representative (EUSR) to the African Union, in close coordination with the presidency.

2 At operational level, the EU Operation Commander shall act as the contact point with, in particular, ship-owners' organisations, as well as with the relevant departments of the UN General Secretariat and the WFP.

1 Without prejudice to the decision-making autonomy of the EU or to the single institutional framework, and in accordance with the relevant guidelines of the European Council, third States may be invited to participate in the operation.

2 The Council hereby authorises the PSC to invite third States to offer contributions and to take the relevant decisions on acceptance of the proposed contributions, upon the recommendation of the EU Operation Commander and the EUMC.

3 Detailed modalities for the participation by third States shall be the subject of agreements concluded in accordance with the procedure laid down in Article 24 of the Treaty. The SG/HR, who shall assist the Presidency, may negotiate such agreements on behalf of the Presidency. Where the EU and a third State have concluded an agreement establishing a framework for the latter's participation in EU crisis management operations, the provisions of such an agreement shall apply in the context of this operation.

4 Third States making significant military contributions to the EU military operation shall have the same rights and obligations in terms of day-to-day management of the operation as Member States taking part in the operation.

5 The Council hereby authorises the PSC to take relevant decisions on the setting-up of a Committee of Contributors, should third States provide significant military contributions.

6 The conditions for the transfer to a State participating in the operation of persons arrested and detained, with a view to the exercise of jurisdiction of that State, shall be established when the participation agreements referred to in paragraph 3 are concluded or implemented.

The status of the EU-led forces and their personnel, including the privileges, immunities and further guarantees necessary for the fulfilment and smooth functioning of their mission, who: are stationed on the land territory of third States, operate in the territorial or internal waters of third States, shall be agreed in accordance with the procedure laid down in Article 24 of the Treaty. The SG/HR, who shall assist the Presidency, may negotiate such arrangements on behalf of the Presidency.

1 On the basis of Somalia's acceptance of the exercise of jurisdiction by Member States or by third States, on the one hand, and Article 105 of the United Nations Convention on the Law of the Sea, on the other hand, persons having committed, or suspected of having committed, acts of piracy or armed robbery in Somali territorial waters or on the high seas, who are arrested and detained, with a view to their prosecution, and property used to carry out such acts, shall be transferred: to the competent authorities of the flag Member State or of 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 its jurisdiction, to a Member States or any third State which wishes to exercise its jurisdiction over the aforementioned persons and property.

2 No persons referred to in paragraphs 1 and 2 may be transferred to a third State unless the conditions for the transfer have been agreed with that third State in a manner consistent with relevant international law, notably international law on human rights, in order to guarantee in particular that no one shall be subjected to the death penalty, to torture or to any cruel, inhuman or degrading treatment.

The conditions governing the presence on board merchant ships, particularly those chartered by the WFP, of units belonging to Atalanta, including privileges, immunities and other guarantees relating to the proper conduct of the operation, shall be agreed with the flag States of those vessels.

1 The common costs of the EU military operation shall be administered by Athena.

2 The financial reference amount for the common costs of the EU military operation shall be EUR 8300000. The percentage of the reference amount referred to in Article 33(3) of Athena shall be 30 %.

1 The SG/HR is hereby authorised to release to the United Nations and to other third parties associated with this Joint Action, classified EU information and documents generated for the purposes of the EU military operation up to the level of classification appropriate for each of them and in accordance with the Council's security regulations .

2 The SG/HR is hereby authorised to release to the United Nations and to other third parties associated with this Joint Action, unclassified EU documents relating to Council deliberations on the operation which are covered by the obligation of professional secrecy pursuant to Article 6(1) of the Council's Rules of Procedure .

1 This Joint Action shall enter into force on the date of its adoption.

2 Joint Action 2008/749/CFSP shall be repealed as from the date of closure of the coordination cell put in place by that Joint Action. It shall be closed on the launch date of the operation referred to in Article 6 of this Joint Action.

3 The EU military operation shall terminate 12 months after the initial operating capability is declared, subject to the prolongation of UNSC Resolutions 1814 (2008) and 1816 (2008).

4 This Joint Action shall be repealed following the withdrawal of the EU force, in accordance with the plans approved for the termination of the EU military operation, and without prejudice to the relevant provisions of Athena.

1 This Joint Action shall be published in the Official Journal of the European Union.

2 The PSC's decisions on the appointment of an EU Operation Commander and/or EU Force Commander, as well as the PSC's decisions on the acceptance of contributions from third States and the setting-up of a Committee of Contributors shall likewise be published in the Official Journal of the European Union.