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.
The second issue relates to the exceptional powers that these resolutions grant states in the face of the identified threats. UNSC resolutions on piracy in Somalia allow states to enter Somali territorial waters for the purpose of repressing piracy ‘in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law’ (para. 7 of S/RES/1816 (2008)). Therefore, these resolutions extend the applicability of UNCLOS enforcement and adjudicatory powers in relation to piracy and, in particular, the right to stop, board and search suspect pirate vessels and the right to try suspect pirates enshrined in Articles 110(a) and 105 UNCLOS to Somali territorial waters. More controversial, in the anti-piracy resolutions, is the ‘all necessary means’ formula. States are allowed to ‘[u]se, within the territorial waters of Somalia, […] all necessary means to repress acts of piracy and armed robbery’. The contours of, and limits on, the use of force remain uncertain despite the resolutions’ specification that the resort to forcible action must be exercised ‘in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law’, which must be read as subjecting the use of force to the principles of necessity, unavoidability, and reasonableness.
S/RES/2240 (2015), dealing with human trafficking and migrant smuggling from Libya, also grants enforcement powers in that it authorises states to inspect, search, and dispose of vessels engaged in human trafficking and migrant smuggling (paras. 7 and 8 of S/RES/2240 (2015)). Operation Sophia’s mandate (see Article 3 of Council Decision (CFSP) 2015/778), unlike in counter piracy operations, does not include the arrest and detention of suspect human traffickers and smugglers. Perhaps this is because it is unclear whether states concerned have jurisdiction to prosecute, unlike with the case of piracy where there is universal jurisdiction.
The ‘all necessary means’ formula has been avoided in S/RES/2240 (2015) despite having been included in a previous draft (see What’s In Blue). Instead, states are entitled to ‘use all measures commensurate to the specific circumstances in confronting migrant smugglers or human traffickers’ (para. 10). This compromise formulation again leaves constraints on the use of force in this scenario uncertain.
The third issue concerns the violation of state sovereignty. Breaches of state sovereignty in the context of counter-piracy resolutions only concern Somali territorial integrity. However, it must be borne in mind that these resolutions were adopted on the request and with the consent of the Transitional Federal Government (TFG) of Somalia. The TFG retained the power to designate which states’ vessels could act pursuant to the Resolutions. Preoccupation with state sovereignty is evidenced by the wide range of saving clauses contained in anti-piracy resolutions inasmuch as: 1) their application is limited to piracy in Somalia; 2) they should not be interpreted as establishing customary law; and 3) they should not ‘affect the rights or obligations or responsibilities of member states under international law, including any rights or obligations under the’ UNCLOS (para 9 of S/RES/1816 (2008)). The sovereignty of the flag states did not seem to be at issue inasmuch as pirate ships are often flagless and, even when this is not the case, the UNCLOS explicitly provides that piracy is an exception to the flag state’s exclusive jurisdiction.
On the contrary, encroachments upon state sovereignty pursuant to the authorizations contained in S/RES/2240 (2015) in the context of migrant smuggling do concern the sovereignty of the flag state (that’s why the enforcement powers are made contingent upon States and regional organisations’ ‘good faith efforts to obtain the consent of the vessel’s flag State’). Unlike Somalia in the context of piracy, Libya did not give its consent to operations taking place in its territorial waters for the purposes of repressing human trafficking and migrant smuggling off its coasts. This notwithstanding, S/RES/2240 (2015) contains similar saving clauses to those in counter-piracy resolutions.
Regardless of the reasons beyond the adoption of UNSC 2240 (2015) (such as the management of Europe’s migrant crisis or the indirect need to address the deteriorating situation in Libya) this resolution provides us with a great opportunity to reflect upon the worrying tendency among states to resort to the authority of the UNSC under Chapter VII in order to permit the use force and violation of state sovereignty in the suppression of transnational criminality. The blurring of the distinction between warfare and the fight against crime puts international human rights law under great strain. Particularly concerning in this new context is the risk to the safety of migrants and their human rights that may ensue from the exceptional powers accorded to states in the fight against human traffickers and migrant smugglers. What is more, the UNSC’s expanding practice considering transnational crimes as, directly or indirectly, amounting to a threat to international peace security (see terrorism, piracy, and migrant smuggling), given the discretion of and the power imbalance in the UNSC, reinforces the criticism concerning the ‘democratic deficit in the development of transnational criminal law’, and I would add, in the implementation of transnational criminal law. In some cases, the use of forcible actions entailed by a military model and its selectivity may in turn exacerbate, rather than solve, the problem.