Some notes on the relations between UNSC Resolution 2240 (2015) fighting smugglers in Mediterranean and the EUNAVFOR Med “Sophia” operation

by Isabella Mercone  (Free Group Trainee – Original Version in Italian)

1. INTRODUCTION

On 9 October 2015, the Security Council of the United Nations adopted Resolution 2240 (2015), authorizing Member States to intercept vessels off  Libyan coast, suspected of migrant smuggling.

The resolution was adopted in a short time, without much discussion and ahead of schedule, with 14 votes in favour and just one abstention (Venezuela). “Incredible!” – Someone could say – “For once, the Security Council succeeded in adopting a resolution on time.” However, the true is that the adopted resolution is not the one imagined in May by the High Representative for Foreign Affairs and Security Policy of the European Union, Federica Mogherini, when operation EUNAVFOR Med was launched. But let’s go one step at a time: let’s see first where the idea of ​​EUNAVFOR Med came from and what is its goal, and let’s try to understand why the EU should have required a resolution by the Security Council, allowing it to intervene in the Mediterranean and dismantle the smuggling of migrants.

2. THE OPERATION EUNAVFOR MED (now renamed “SOPHIA”)

On 23 April 2015, the European Council, during a special meeting following a new shipwreck of a boat carrying migrants (“the greatest tragedy at sea ever”[1], with more than 700 victims and only 28 survivors, which had occurred off the Libyan coast, in the night of April 19), highlighted the need to fight smuggling of migrants and trafficking in human beings, in order to prevent further tragedies at sea.

On 13 May, the European Commission presented its Agenda on Migration, which included, among its key points, the release of a plan to tackle smuggling of migrants and trafficking in persons.

On 18 May, the Foreign Affairs Council adopted, on the basis of artt.42.4 and 43.3 of the Treaty on European Union, Decision (CFSP) 2015/778, which approved the “Crisis Management Concept”, aimed at disrupting human smugglers in the Mediterranean in the context of the common security and defence policy, and launched the military operation EUNAVFOR Med (European Union Naval Force – Mediterranean).

Finally, on 22 June, the Foreign Affairs Council adopted, on the basis of the aforementioned articles, Decision (CFSP) 2015/972, which launched EUNAVFOR Med, the first European Union military operation in the Southern Central Mediterranean[2].

Therefore, there were two decisions taken by the Council as part of the Common Foreign and Security Policy/Common Security and Defence Policy, considering the fight against smugglers and traffickers as a matter of european external common security, instead of an objective which should had been covered by an EU external action grounded on the EU competences on judicial and police cooperation in criminal matters. Has the “external defence” legal basis been chosen by the Commission and the Council to avoid an intervention of the European Parliament who is after Lisbon co-responsible for internal security and criminal justice matters ? It has not been clearly stated, but even a first year law school student would think so. It remains to be seen if also the European Parliament will share the same doubts…

As stated in Decision (CFSP) 2015/778, the first objective of the operation is “to identify, capture and dispose of vessels and assets used or suspected of being used by smugglers or traffickers”[3].

In particular, the mission includes three sequential phases:

1) “detection and monitoring of migration networks through information gathering and patrolling on the high seas in accordance with international law”;

2) “boarding, search, seizure and diversion on the high seas of vessels suspected of being used for human smuggling or trafficking, under the conditions provided for by applicable international law, and in particular the 1982 UN Convention on the Law of the Sea (UNCLOS) and the 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air (Protocol Against the Smuggling of Migrants)[4];

3) with the consent of the coastal State concerned or following the adoption of an ad hoc UN Security Council resolution, the operation may be authorized to intervene in Libyan waters to seize and, if necessary, destroy boats suspected of being used for the smuggling of migrants.

The Decision states that the operation should be conducted in compliance with international law, and in particular with the 1982 UN Convention on the Law of the Sea (UNCLOS), the 2000 Protocol against the Smuggling of Migrants by Land, Sea and air (Protocol Against the Smuggling of Migrants) and the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the 1974 International Convention for the Safety of Life at Sea (SOLAS), the 1979 International Convention on Maritime Search and Rescue (SAR), the 1976 Convention on the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention), the 1951 Geneva Convention relating to the Status of Refugees and the principle of non- -refoulement and international human rights law[5].

The decision further points out that the UNCLOS, SOLAS and SAR conventions contain “the obligation to assist people in distress at sea and to lead the survivors in a safe place; to that end, the vessels assigned to EUNAVFOR MED will be ready and equipped to perform the related duties under the coordination of the competent Rescue Coordination Centre”.

It is worth recalling that some of these issues were dealt with by the Court of Justice when it was confronted with the compatibility with EU law covering also of the “search and rescue” activity when conducted under the coordination of Frontex and, quite surprisingly, the Court recognised that these activities can fall under EU law (see HERE). On this basis, an EU Directive has been adopted in codecision with the European Parliament, and it covers also activities conducted under the EU coordination  in international waters…. 

The same Decision [(CFSP) 2015/778)] has appointed Rear Admiral Enrico Credendino EU Operation Commander of EUNAVFOR MED and it has designed Rome as its Operational Headquarters (articles 3 and 4 of the Decision).

Once the operational plan was approved, the first phase of the operation could start, on 22 June. This was completed on 7 October, when the second phase, more “operational” officially began. The move was decided by the EU Political and Security Committee (PSC) on 28 September, after the Ministers of the Foreign Affairs Council, informally meeting earlier this month (on the 3^rd and 5^th), had given their consent[6], and after the General Affairs Council had declared satisfied the conditions necessary for the transition beyond the first phase, as stated in art.2.3 of the Council Decision of 18 May. This, despite the criticisms and concerns of those who fear that this kind of military operations can cause further casualties at sea. The PSC Committee Decision determines the transition to phase two, approves the rules of engagement and establishes that the operation shall be renamed “Sophia”[7].

As a result, the fleet of EUNAVFOR Med is currently capable of boarding, searching, seizing and diverting on the high seas any vessels suspected of being used for human smuggling or trafficking in persons. Quite surprisingly, the European Parliament has never been officially consulted, even if, according to the Treaty, it should be consulted for the main choices of the EU external security policies. 

Quite unexpectedly, on 9 October, only two days after the start of the phase two, the UN Security Council adopted a resolution on the subject.

3. THE UN RESOLUTION 2240 (2015).

After being repeatedly invoked by the Council and its president, the High Representative for Foreign Affairs and Security Policy of the European Union, Federica Mogherini, the UNSC resolution authorizing the EU operation against smugglers in the Mediterranean has finally arrived. The Security Council approved the text, drawn up on the Italian initiative on 9 October, with the favourable vote of all the members, except from Venezuela, which abstained. For once, then, even Russia has authorized a EU foreign policy military intervention. However, the reason of this oddity can be easily found by giving a glance at the resolution and comparing it with the one wished for by the Council and High Representative.

Resolution 2240 (2015) does not authorize to intervene in Libyan waters, as provided for in Decision (CFSP) 2015/778, but only in international waters off Libya. This is the condition imposed by Russia for the adoption of the resolution, which therefore has a more limited scope than expected, and does not allow the move to the “real” phase 2 of the operation, entailing actions in Libyan waters. In addition, the Russian ambassador reiterated that, implementing the resolution, the EU and Member States are expected to strictly comply with international law, particularly with the 1982 Convention on the Law of the Sea, avoiding any expansive interpretation, as in fact is already affirmed in the resolution. Finally, the Russian representative expressed his satisfaction for the existence of a monitoring mechanism.

Content of UNSC Resolution 2240(2015)

The UNSC resolution falls under “the umbrella” of Chapter 7 of the UN Charter and does not exclude, but only as a last resort, the use of military force.

The primary international legal instruments to be applied are the UN 1982 Convention on the Law of the Sea[8] with regard to activities in the seas and oceans, and the Convention against Transnational Organized Crime, the Protocol against the Smuggling of Migrants by Land, Sea and Air and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children[9], annexed to the Convention, as concerns the fight against smuggling of migrants and trafficking in persons. Needless to say most of these international texts have been already implemented by the EU legislation in codecision with the EP (which seems no more aware of it ..)

Moreover, the resolution also mentions the International Convention for the Safety of Life at Sea (SOLAS, 1974) and the International Convention on Maritime Search and Rescue (SAR 1979), to remind States and the EU about their obligations towards migrants at sea, no matter what their status.

After recalling its declaration of 21 April on the recent tragedy in the Mediterranean, reaffirming its commitment to guarantee the sovereignty, independence, territorial integrity and national unity of Libya, and underlining that Libya maintains the primary responsibility to prevent any increase in the smuggling of migrants on its territory and its seas, the Security Council, highlighting the need to put an end to deaths at sea, condemns all forms of human trafficking and smuggling in Libya, requires Member States and EU to support Libya in the prevention and repression of this serious phenomenon and authorizes them, for an initial period of one year, to “inspect and seize the vessels that are found on the high seas off the coast of Libya, when there are reasonable grounds to believe or suspect that they are or will be used for the smuggling of migrants”.

In addition, with the aim to “stop organized crime organizations engaged in smuggling, and prevent the loss of human lives”, the resolution allows Member States and regional organizations (read as: the EU) to seize the vessels that are confirmed as being used for smuggling of migrants. Then, it clarifies that any further action against inspected vessels, including their disposal, shall be taken “in accordance with international law and with due consideration of the interests of any third parties who have acted in good faith”.

Finally, the resolution authorizes the Member States and regional organizations to use all necessary measures to address the smuggling of migrants, but always within the limits of compliance with international human rights law.

On the other hand, in fact, the resolution emphasizes that migrants “must be treated with humanity and dignity” and “their rights must be fully respected”. Therefore, it calls on Member States to fulfil their obligations under international law, and in particular those arising from international human rights and refugee law.

• Some remarks on the resolution.

The UN Security Council’s choice, emerging from the resolution, to authorize the use of force in the fight against migrants smugglers, has been severely criticized by the representative of Venezuela, who, justifying his abstention, explained that «the possibility of applying Chapter VII of the Charter in a humanitarian situation is a “serious mistake”, which risks to create a dangerous precedent» (emphasis added). Furthermore, he stated that «the human rights of people should have the priority over a concept of security that puts human lives at risk». Finally, he argued that this migratory crisis, which should be addressed through the General Assembly’s democratic approach, had at its root causes the military interventions in Iraq, Libya and Syria.

After the vote, the majority of the Council members emphasized that the resolution is expected to be implemented in full compliance with international law concerning state sovereignty and non-interference in internal affairs, as well as all the rules aimed at ensuring the respect of migrants’ rights and dignity.

The representatives of the United Kingdom, Chad, Malaysia, Venezuela and Chile also recalled that this can not be the only measure against smuggling of migrants, which is to be fought by eliminating its root causes, such as poverty, armed conflict and extremist groups.

Beyond the political decision to authorize the use of force, and the “humanitarian” one, generally shared, that the utmost priority must be to ensure the safety of the people on board, some comments arise spontaneously while reading the resolution.

First, it seems clear that this resolution does not permit to move completely to phase two of the operation, allowing only actions on the high seas, and not in Libyan waters.

By analyzing the content of the resolution, it can be seen that the fifth paragraph, authorizing States to inspect a ship without nationality, if they have reasonable grounds to suspect that it was used for smuggling of migrants, repeats exactly what is stated in the seventh paragraph of Article 8 of the Protocol against the Smuggling of Migrants. The situation is different for flagged vessels suspected of being used for smuggling of migrants: while the Palermo Protocol provides for a mandatory procedure, which has to be followed by the State that intends to carry out an inspection, in order to obtain the prior consent of the flag State[10], the resolution allows derogations of such rule, “in exceptional and specific circumstances, provided that states “make good faith efforts to obtain the consent of the flag State” (Para. 7 of the Resolution).

Finally, it remains to understand: what could be the reasonable grounds that could make one believe that a ship is used for smuggling; when it can be said that a State has actually made good faith efforts to obtain the consent of the flag state and which circumstances allow Member States to use force against boats, provided that the resolution does not give any clarification in this regard.

• Why did the European Union need to resort to a UN resolution?

As seen in the second paragraph, the Decision establishing the EUNAVFOR MED mission required the consent of the state concerned or an ad hoc resolution of the Security Council for the transition to its second phase. Since Libya (State concerned) does not currently have any truly representative government that could legitimately give its consent, the EU necessarily needed a UN resolution authorizing its military intervention in Libyan waters.  By the way, this is not the first time that the EU has recourse to a UN resolution to solve a European problem: only last year, the Security Council passed Resolution 2178 (2014) against “foreign fighters” (see separate posts on this blog).

4. WHAT EFFECT WILL THE UN RESOLUTION HAVE ON THE EU OPERATION IN THE MEDITERRANEAN?

As already mentioned, the resolution of 9 October does not allow to move to the “real” second phase of EUNAVFORMED (now renamed: Sophia). So, what effect will it have on the EU military operation and in the fight against smuggling of migrants in the Mediterranean?

First, there is no doubt that Resolution 2240 (2015) has served to give the blessing of the Security Council to the operation, which can now pass on to the first stage of phase two with greater legitimacy, as the High Representative Federica Mogherini said, when she was informed of the vote.

In addition, the French representative said after the vote that the resolution «is intended to provide the EU with the necessary legal guarantees to conduct operations under the second phase of the operation. The text sets out precisely the circumstances under which the use of force could be used while protecting the migrants». 

After that, in practice, the resolution does not introduce any significant changes, apart from authorizing states to derogate the rule that requires the prior consent of the flag State to carry out inspections on flagged vessels, and the possibility to make use of force, although only in the extreme case. Therefore, Sophia seems lacking the legal basis or political coverage that could allow it to enter Libyan territorial and internal waters.

4.1 What is now to be expected from the EU operation “Sophia”?

After gaining the legitimacy of the international community, strengthened by the addition of 7 frigates and several helicopters, submarines and drones to its original equipment (the aircraft carrier Cavour, an Italian frigate and a submarine, a German frigate and a German supply ship, plus an auxiliary British ship), “Sophia” will continue its operations towards the dismantlement of smuggling in the Mediterranean, although only on the high seas. Will this activity be challenged before the European Court as it happened for other EU measures implementing UNSC Resolutions ? If so it will be up to the Court find again a way out from a legal Gordian Knot.

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