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From: Biniam Tekle (biniamt@dehai.org)
Date: Tue May 31 2011 - 09:23:16 EDT
http://www.koreaherald.com/opinion/Detail.jsp?newsMLId=20110531000788 [Lee
Jae-min] Pirates, private security firms, consuls
2011-05-31 18:31
No. 1: One way to sail through the pirate-infested Gulf of Aden with peace
of mind is purchasing security services. Protection Vessels International,
Ltd. is one of such security corporations founded by former British special
forces personnel. It provides escort and protection services to merchant
ships. PVI is a maritime version of Blackwater Inc., which provides security
services to officials and military personnel in Iraq and Afghanistan.
When a security vessel of the PVI visited the port of Masswa, Eritrea, on
Dec. 24 for refueling, the company's employees were arrested by the Eritrean
police on charges of possession of illegal firearms.
Then came exchanges of barbed words between Britain and Eritrea. Britain has
been criticizing the Eritrean government for denying the right of consular
access to the detained Britons. This is the right of the consul to visit its
own nationals who have been arrested by the state where the consul is
posted. Under the 1963 Vienna Convention on Consular Relations, to which
almost all countries have acceded, a country putting a foreign national to a
criminal proceeding has an affirmative obligation to notify the consul
dispatched from the foreigner's country. The foreign arrestee should also be
informed of the right to communicate with the consul from his or her home
country. The consul should then be permitted to have access to the person in
custody.
This convention constituted the basis on which the U.S. demanded consular
access when its citizen was arrested by the Syrian government earlier this
month. When four Japanese nationals were arrested for allegedly filming a
military installation in China last fall, Tokyo also demanded full consular
access. China also raised the same issue upon the arrest of its nationals by
the Indian authorities at the Indo-Nepalese border in January this year.
>From time to time, this obligation evolves into an international dispute.
Mexico and Germany raised this issue at the International Court of Justice
in The Hague against the United States (in Avena case and LaGrand case,
respectively) when their consuls have not been notified of their nationals'
arrest and trial in the United States. Mexico and Germany ultimately
prevailed in these litigations. In a 2010 dispute, the world court also
found similar violation when the Democratic Republic of the Congo failed to
notify the Guinean consul when a Guinean national was arrested in Kinshasa.
In these disputes, regarding the notification obligation, an argument was
made that the arrest and nationalities of the detained were already made
public through press reports, rendering consular notification unnecessary.
The court disagreed with this line of argument by effectively holding that
irrespective of the public knowledge, what is necessary under the 1963
Vienna Convention is the official notification.
No. 2: The first foreign piracy trial by Korea was completed last Friday.
With journalists from roughly 50 international news outlets covering the
trial, the Busan District Court sentenced four Somali pirates arrested on
Jan. 22 to harsh punishment, spanning from 13-year imprisonment to life
imprisonment.
As this was the first attempt of this kind, quite a few logistical and
procedural issues have surfaced since the pirates' arrival in Korea in
late-January, including attorney appointment, arranging interpretation and
adjustment to detention facilities. The recent confession of some pirates
that they would like to settle down in Korea may allude to the effort of the
law enforcement agency to preserve their procedural due process rights.
As noted above, to the extent the pirates are foreigners subject to a
criminal proceeding in Korea, the checklist should also take note of the
procedural requirements applicable in the international plane including the
consular notification and access.
Since the Somali pirates' arrival in Korea, the press coverage of their
investigation and detention has presented a detailed account of the
proceedings in Korea. None of the press reports, however, refer to
notification to or communication with the Somali representatives or their
delegates as the proceedings were pending. The only contact, according to
the media, seems to be the discussion with the Somali official in Oman
relating to the repatriation of the bodies of the pirates killed in the
rescue operation.
If the necessary communication has been done already or Somalia has somehow
waived its right to it, that is good. But if that is not the case as it
appears to be, the relevance of the obligation in this particular context
should be explored without any further delay. In case one wonders, both
Korea and Somalia are parties to the 1963 Vienna Convention along with 171
other countries.
Not surprisingly, Somalia does not maintain a diplomatic mission in Korea.
The nearest one is in Beijing. It is not clear whether under the
circumstances the consular notification and access should be given to the
country's Beijing mission or to the Foreign Ministry in Mogadishu, or
whether such notification and access can be excused entirely.
Alternatively, maybe there is an honorary consul in Korea for the country,
which is often the case for countries without permanent embassies or
consulates. In addition, sometimes countries delegate their consular access
rights to a third country when its mission does not exist in a given country
as seen in the 1995 U.S.-Sweden agreement under which the Swedish embassy in
Pyongyang provides basic consular protective services to U.S. citizens
traveling in North Korea. These alternative scenarios might be relevant in
the present case.
Although the factual situation is not clear, this aspect of the procedural
requirements is something that should be carefully examined lest Korea faces
unintended embarrassment in the future.
By Lee Jae-min
Lee Jae-min is a professor of law at the School of Law, Hanyang University,
in Seoul. Formerly he practiced law as an associate attorney with Willkie
Farr & Gallagher LLP. -- Ed.
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