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Repressing Migrant Smuggling by the UN Security Council and EU Naval Military Operation Sophia: Some Reflections on Jurisdiction and Human Rights

Published on November 3, 2017        Author: 

On 5 October 2017, the UN Security Council through S/RES/2380 (2017) renewed for the second time the enforcement powers that S/RES/2240 (2015) granted to states in order to fight migrant smuggling and human trafficking off the coast of Libya.

In a previous blog post that I wrote here in October 2015, I concluded by wondering what the effects will be of S/RES/2240 (2015) and by questioning, from several standpoints, the use of military action against migrant smugglers and human traffickers and in the overall management of the migrant crisis.

These UN Security Council resolutions provide the legal basis for the EU naval operation mandated with the task of disrupting the business model of migrant smugglers and human traffickers in the Southern Central Mediterranean: EU NAVFOR MED Operation Sophia. Established in 2015 by Council Decision (CFSP) 2015/778, its mandate has been renewed until 31 December 2018.

Criticisms of Operation Sophia are widespread and concerns over its failure to meet its objectives and its human rights implications are no secret (see among others Meijers Committee and Not so Humanitarian after All). On the occasion of the second renewal of the S/RES/2240 (2015), it’s time to take a closer look at Operation Sophia’s results, at the legal shortcomings of the web of legal instruments regulating its actions, and the various consequences these have had. Read the rest of this entry…

 

Fighting Transnational Crimes at Sea under UNSC’s Mandate: Piracy, Human Trafficking and Migrant Smuggling

Published on October 30, 2015        Author: 

On 9 October 2015 the UNSC adopted S/RES/2240 (2015) authorizing states to exercise exceptional powers with respect to ships suspected of being engaged in human trafficking and migrant smuggling on the high seas off the costs of Libya. In the context of counter piracy in Somalia, the UNSC had already adopted a series of resolutions since 2008 allowing for exceptional actions to suppress transnational criminality at sea (see S/RES/1816 (2008), as most recently renewed by S/RES/2184 (2014) until 12 November 2015).

The fight against piracy seems to have a lot in common with the fight against human trafficking and migrant smuggling, and both show a dangerous trend towards the repression of transnational criminality through the recourse to military force. Indeed, UNSC resolutions have in both cases constituted the basis for naval military operations (current counter piracy operations are EUNAVFOR Operation Atalanta and NATO Operation Ocean Shield, whereas the EU naval operation against migrant smuggling is EUNAVFOR Med, recently renamed Operation Sophia)

Insofar as they provoke similar thoughts and concerns, a comparison between these landmark resolutions is therefore worthwhile.

The first issue of note concerns the identification of the situation triggering the UNSC’s powers under Chapter VII of the UN Charter. In the resolutions dealing with piracy off the coast of Somalia, piracy was not deemed to constitute a threat to international peace and security in itself (although it could have been). Rather, piracy was characterized as a factor exacerbating the situation in Somalia, which constituted a threat to international peace and security in the region. However, in resolution 2240 (2015) no mention is made of the situation in Libya as amounting to a threat to international peace and security. Such a qualification was indeed deleted from a previous draft (see What’s In Blue). Instead, it is the ‘recent proliferation of, and endangerment of lives by’ human trafficking and migrant smuggling in the Mediterranean Sea off the coast of Libya’ that is regarded as the situation that needed to be addressed through the UNSC’s action under Chapter VII. The resolution confines itself to expressing concern that the situation in Libya is being exacerbated by these crimes. It is therefore the repression of a crime itself, and its impact on human lives, which is used to ground the UNSC’s powers. Read the rest of this entry…

Filed under: EJIL Analysis
 
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