AGREEMENT

in the form of an Exchange of Letters between the European Union and the Republic of Seychelles to facilitate the transfer by a Member State of the European Union of persons arrested and detained under its national law for participating, off the coast of Somalia, in violation of the United Nations arms embargo on Somalia or in narcotic drugs trafficking

A. Letter from the European Union

Brussels, 19 July 2023

H.E. Sylvestre RADEGONDE

Minister for Foreign Affairs and Tourism – Republic of Seychelles

Your Excellency,

The European Union (‘EU’) has been carrying out a military operation to contribute to maritime security in the West Indian Ocean and in the Red Sea (‘operation Atalanta’).

The EU has given that military operation the additional tasks of contributing to the implementation of the United Nations arms embargo off the coast of Somalia in accordance with the United Nations Security Council Resolution 2182 of 2014, and to countering narcotic drugs trafficking off the coast of Somalia in the context of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 20 December 1988.

In the above context, I have the honour to propose that the EU and the Republic of Seychelles further consolidate their excellent relations, thereby contributing to peace, security and the rule of law in the Indian Ocean region, especially off the coast of Somalia, by concluding an Agreement through an Exchange of Letters to Facilitate the Transfer by a Member State of the EU of Persons Arrested and Detained Under its National Law for Participating, Off the Coast of Somalia, in Violation of the United Nations Arms Embargo on Somalia or in Narcotic Drugs Trafficking, reading as follows.

‘This Agreement shall be guided by the principles set out below.

The EU and the Republic of Seychelles:

(a) reaffirm their commitment to maintaining a legal order for the seas and oceans based upon the principles of international law, as reflected in particular in the United Nations Convention on the Law of the Sea (UNCLOS), done at Montego Bay on 10 December 1982;

(b) underline the urgent need for international cooperation in suppressing illicit maritime drug traffic, in particular off the coast of Somalia, which is recognised as an unlawful activity in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988, specifically its Article 17 regarding “Illicit traffic by sea”;

(c) recall that the abovementioned Convention provides, inter alia , that the Parties to that Convention shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of Article 17 thereof regarding “illicit traffic by sea”;

(d) emphasise the urgent need for international cooperation in the implementation of the United Nations arms embargo off the coast of Somalia in accordance with United Nations Security Council Resolution (UNSCR) 2662(2022), which renewed the provisions set out in paragraph 15 of UNSCR 2182 (2014) authorizing States, acting nationally or through voluntary multinational naval partnerships, to inspect, without undue delay, in Somali territorial waters and on the high seas off the coast of Somalia extending to and including the Arabian sea and the Persian Gulf, vessels bound to or from Somalia which they have reasonable grounds to believe are carrying weapons or military equipment to Somalia, directly or indirectly, in violation of the arms embargo on Somalia; and

(e) note that the EU Member States participating in operation Atalanta may arrest, detain and transfer to a third State, in their national capacity on the basis of their domestic law, persons involved in arms trafficking or in narcotic drugs trafficking and that the EU may conclude agreements with that third State to facilitate the transfer by an EU Member State of persons arrested and detained under its national law for participating in violations of the United Nations arms embargo on Somalia or in narcotic drugs trafficking off the coast of Somalia, with a view to the prosecution of such persons.

In addition, the EU and the Republic of Seychelles agree on the following arrangements:

The Government of the Republic of Seychelles may authorise an EU Member State contributing to operation Atalanta to transfer to the Republic of Seychelles suspected arms traffickers or narcotic drugs traffickers arrested in the context of operation Atalanta in the exclusive economic zone, territorial sea, archipelagic waters and internal waters of the Republic of Seychelles. That authorisation is extended to Seychelles flagged vessels and Seychellois citizens on non-Seychelles flagged vessels beyond the limit aforementioned, and in other circumstances on the high seas, at the discretion of the Republic of Seychelles.

The EU, aware of the limited capacities of the Republic of Seychelles to accept requests for the transfer, detention, prosecution and incarceration of suspected arms traffickers and narcotic drugs traffickers, shall provide the Republic of Seychelles with financial, human resource, material, logistical, legislative and infrastructural assistance for the detention, incarceration, maintenance, investigation, prosecution, trial and repatriation of the suspected or convicted arms traffickers and narcotic drugs traffickers. The Republic of Seychelles and the EU may, as necessary, enter into further implementing arrangements regarding financial matters for the implementation of this provision.

Unless otherwise agreed by the Republic of Seychelles and the EU Member State which transferred the suspected arms traffickers or narcotic drugs traffickers to the Republic of Seychelles, the Atalanta Liaison Officer shall be the primary contact person for the Republic of Seychelles in the implementation of this Agreement.

If the Republic of Seychelles agrees to the transfer of a prisoner under point 1 above, the Attorney General of Seychelles shall have 10 working days from the expiration of an order of the competent court for the holding of the transferred suspects to decide on the sufficiency of the available evidence for prosecution.

The EU Member State which has transferred the suspected arms or narcotic drugs traffickers to the Republic of Seychelles shall promptly ensure, upon a request by the Republic of Seychelles, that the transferred persons are transferred back to their country of origin or to any other appropriate country, within 10 days of the EU Member State having been notified of such a decision, in the event of:

(a) a decision by the Attorney General of Seychelles that there is insufficient evidence to prosecute;

(b) where the Republic of Seychelles decides that it no longer wishes to prosecute the transferred persons;

(d) completion of the terms of imprisonment or of the procedure for transferring to the country of origin or to any another country to serve any period of imprisonment in accordance with relevant agreements.

The EU and the Government of the Republic of Seychelles agree that the transferred persons, in the event of any request by the Republic of Seychelles to that effect under point 5 above, should be accommodated in designated facilities in Seychelles pending their further transfer.

The EU and the Government of the Republic of Seychelles further agree that the following guarantees shall apply in respect of transferred persons:

(a) transferred persons shall be treated humanely and shall not be subjected to torture or cruel, inhuman or degrading treatment or punishment, or to the death penalty, shall receive adequate accommodation and nourishment, access to medical treatment and shall be able to carry out religious observance;

(b) transferred persons shall be brought promptly before a judge or other officer authorised by law to exercise judicial power, who shall decide without delay on the lawfulness of their detention and shall order their release if the detention is not lawful;

(d) in the determination of any criminal charge against them, any transferred persons shall be entitled to a fair and public hearing by a competent, independent and impartial court or tribunal established by law;

(e) transferred persons charged with a criminal offence shall be presumed innocent until proven guilty according to law;

(f) in the determination of any criminal charge against them, transferred persons shall be entitled to the following minimum guarantees, in full equality:

(i) to be informed promptly and in detail in a language which he understands of the nature of the charge against them;

(ii) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of their own choice;

(iii) to defend themselves in person or through legal assistance of their own choice; to be informed, if they do not have legal assistance, of that right; and to have legal assistance assigned to them, in any case where the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it;

(iv) to examine, or have examined, all evidence against them, including affidavits of witnesses who conducted the arrest, and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them;

(v) to have the free assistance of an interpreter if they cannot understand or speak the language used in court; and

(vi) not to be compelled to testify against themselves or to confess guilt.

(g) transferred persons convicted of a crime shall be permitted to have the right to have their conviction and sentence reviewed by, or appealed to, a higher tribunal in accordance with the law of Seychelles; and

(h) the Republic of Seychelles shall not transfer any transferred person to any other State without prior written consent from the EU Member State which brought the person to the Republic of Seychelles.

Disputes arising out of the implementation or interpretation of this Agreement shall be resolved by the EU and the Government of the Republic of Seychelles through negotiations via diplomatic channels.

This Agreement may be amended by written consent between the EU and the Republic of Seychelles. Such amendments shall enter into force on such date as may be agreed by the EU and the Republic of Seychelles.

10.

The EU and the Republic of Seychelles may terminate this Agreement at any time by a written notification informing the other Party of the intent to terminate it. The termination shall take effect six months after the date of receipt of the notification. The termination of this Agreement shall not affect any rights of the Parties arising out of the execution of this Agreement before such termination, including the rights of any transferred persons as long as they are held in custody or are being prosecuted by the Republic of Seychelles when the termination takes effect, nor shall it affect any other obligation under this Agreement, including financial obligations; unless otherwise agreed by the EU and the Republic of Seychelles."

Your Excellency,

If the principles and arrangements set out above are acceptable to the Republic of Seychelles, I have the honour to propose that this letter and Your Excellency’s reply to that effect constitute a legally binding international agreement between the European Union and the Republic of Seychelles, which will enter into force on the date on which your letter of reply is received.

Accept, Excellency, the assurances of my highest consideration.

Yours sincerely,

For the European Union

Josep BORRELL FONTELLES

B. Letter from the Republic of Seychelles

Victoria, 3 August 2023

Mr Josep BORRELL FONTELLES

High Representative of the European Union for Foreign Affairs and Security Policy

Your Excellency,

I have the honour to acknowledge receipt of your letter dated 19 July 2023 proposing an Agreement between the Republic of Seychelles and the European Union through an Exchange of Letters to Facilitate the Transfer by a Member State of the EU of Persons Arrested and Detained Under its National Law for Participating, Off the Coast of Somalia, in Violation of the United Nations Arms Embargo on Somalia or in Narcotic Drugs Trafficking, which reads as follows: