UN Security Council Resolution 2240: Authorizing Member States to Intercept Vessels off Libyan Coast Suspected of Migrant Smuggling
Gwenaele Proutière-Maulion, Université de Nantes
While the discussion has been proceeding since April 2015, it will have been necessary to wait until October 9th, 2015 so that the UN Security Council finally adopted a resolution 2240 on 9 October 2015, on the basis of an Italian initiative. With 14 votes in favour and one abstention (Venezuela), acting under Chapter VII of the Charter of the United Nations, the UNSC decided to authorize Member States to seize vessels that were confirmed as being used for migrant smuggling of human trafficking from Libya.
The resolution were subject of intense negotiations among Parties, which are justified in particular by the refusal of the Libyan government to give its agreement to the action of the European naval forces committed in the operation EUNAVFOR-MED renamed SOPHIA on 28 September 2015.
After recalling its declaration of 21 April 2015 on the recent tragedy in the Mediterranean area, reaffirming its commitment to guarantee the sovereignty, independence, territorial integrity and national unity of Libya, and underlining that Libya has primary responsibility for prevention of any increase in the smuggling of migrants on its territory and its territorial waters, the Security Council highlights the need to put an end to deaths at sea and condemns all forms of human trafficking and smuggling in Libya, but also 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”.
The primary international legal instruments to be applied are the UN 1982 Convention on the Law of the Sea, the Convention against Transnational Organized Crime, the Protocol against the Smuggling of Migrants by Land, Sea and Air and its annexed Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, as to the fight against smuggling of migrants and human trafficking. 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 of their obligations towards migrants at sea.
Acting nationally or through regional organizations, Member states are authorized to use all necessary measures to address migrant smuggling or human trafficking in strict compliance with international human rights law. However, the Council underscored that the authorizations did not apply with respect to vessels entitled to sovereign immunity under international law.
The Council called upon Member States acting nationally or through regional organizations engaged in the fight against migrant smuggling and human trafficking to inspect on the high seas off the coast of Libya any unflagged vessels on the basis of reasonable grounds to believe that they had been, were being, or imminently would be used by organized criminal enterprises for migrant smuggling or human trafficking from Libya, including inflatable boats, rafts and dinghies. Member States and regional organisations shall make good faith efforts to obtain the consent of the vessel’s flag State prior to using this authority, for a period of one year from the date of the adoption of this resolution.
The resolution authorized also Member States to seize vessels inspected under the authority of paragraph 7 that are confirmed as being used for migrant smuggling or human trafficking from Libya, and underscores that further action with regard to such vessels inspected, including disposal, will be taken in accordance with applicable international law with due consideration of the interests of any third party acting in good faith. Member States shall keep flag States informed of actions taken against their vessels, and flag States that receive such requests are asked to review and respond to them in a rapid and timely manner.
At least, the Council further calls for Member States to consider ratifying or acceding to, and for States parties to effectively implement the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.
Resolution 2240 (2015) thus states two derogations from the international law by granting the European two exorbitant privileges:
- The possibility to inspect vessels and to arrest people without authorization of the Flag state as the resolution does not clarify 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.
- The possibility to destroy the seized vessels “in accordance with international law and with due consideration of the interests of any third parties who have acted in good faith”.
It can be seen that the fifth paragraph, authorizing States to inspect a ship without nationality, on the basis of reasonable grounds to suspect that it was used for smuggling of migrants, repeats exactly what is stated in paragraph 7 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, the resolution allows derogations from such a rule, in exceptional and specific circumstances, given that states “make good faith efforts to obtain the consent of the flag State” (Para. 7 of the Resolution). It is regrettable that the resolution did not clearly define the following used expressions that might be source of disputes in the future:
- the reasonable grounds that could make one believe that a ship is used for smuggling;
- the good faith efforts made by State to obtain the consent of the flag state;
- the circumstances that would allow Member States to use force against suspected boats.
Besides, this intervention is actually limited in high seas. It still remains impossible to inspect vessels in the Libyan territorial waters or to conduct operations in Libya and the EU still needs a UN resolution to authorize its military intervention in Libyan waters. Nevertheless, this resolution provides the EU the necessary legal guarantees to conduct operation under the second phase of SOPHIA. This operation, launched in last June, aims at disrupting “the business model” of human smuggling and trafficking networks in the Southern Central Mediterranean by making systematic efforts to identify, capture and dispose of vessels and enabling assets used or suspected of being used by migrant smugglers or traffickers. Since the beginning of last October, 20 boats and 18 presumed smugglers have been already seized or arrested and handed over to Italian authorities.
Even if, the UN Security Council resolution does not authorize SOPHIA to intervene in Libyan waters, it highlights the major role of this operation to tackle the management of the migratory crisis. This time, the EU has shown its capacity to develop a global approach and has shown to the international community how necessary it is to take measures at an international level to face immediate and long-term consequences of the migratory crisis. Following the example of the fight against piracy in which the EU has taken the leadership, the complexity of this problem requires a comprehensive approach that transcends the military and security approach supported by some States. As for the fight against piracy, it is crucial that the EU enhances its work with all its partners, including countries from Africa, countries of origin and transit and of course regional organizations.
SOPHIA is thus part of a global approach adopted by the EU regarding migrations, which aims at fighting against the symptoms and underlying causes of human smuggling such as conflicts, poverty, climate change and persecutions. The representatives of the United Kingdom, Chad, Malaysia, Venezuela and Chile, for which military operation cannot be the sole measure against smuggling of migrants, have highlighted these issues during the resolution’s negotiations.
Lessons from the fight against piracy have shown how important is the possibility for the European armed forces to intervene in Somali territorial waters to be able to act as closely as possible to the illegal networks. Another UNSC resolution and the agreement of the Libyan government will be probably necessary in the next months so that SOPHIA will be truly efficient, since Libya does not yet have any truly representative government being able to guarantee the safety of Libyan territorial waters. But a first step has been made in the strict respect of the international legal framework. Beyond, this resolution also shows the new capacity of the EU to mobilize the international community around the fight against threats affecting the world maritime traffic.
 Explaining his county’s abstention from the vote, the representative of Venezuela said the problem was being tackled in an “erroneous” manner. The possibility of applying the Charter’s Chapter VII to a humanitarian situation was a “serious mistake”, setting a dangerous precedent that the Council had established through a back door and usurped from the General Assembly’s purview
 Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the in the Southern Central Mediterranean (EUNAVFOR MED), OJ L.122/31 of 19.05.2015; Council Decision (CFSP) 2015/972 of 22 June 2015 launching of the EU military operation in the Southern Central Mediterranean (EUNAVFOR MED), L 157/51 of 23.06.2015
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 Vote on a Resolution on Human Trafficking and Migrant Smuggling in the Mediterranean / What's In Blue.pdf
 Migrants : 20 bateaux de passeurs saisis ou coulés grâce à l’opération SOPHIA. Le Parisien.fr
 Mercone I., op. cit. Crédits Photos : politico.eu