[Lee Jae-min] Pirates, private security firms, consuls

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.