What's In Blue

Posted Tue 14 Jun 2016

Vote on a Resolution on Maritime Interdiction to Implement the Arms Embargo on Libya

This afternoon (14 June), the Security Council is scheduled to vote on a resolution aimed at ensuring implementation of the arms embargo on Libya. In May, European Security Council members started discussing this product, which was drafted by the UK. It was further negotiated among all fifteen members over the last two weeks. The negotiation of some issues, including flag state consent and the use of force to interdict vessels, has proven difficult. At press time, it was unclear if a compromise had been reached and whether some Council members may choose not to support the text.

The draft provides a one year authorisation for member states, acting nationally or through regional organisations, to inspect, in the high seas off the coast of Libya, vessels bound to or from Libya which they have reasonable grounds to believe are violating the arms embargo. It further authorises member states to seize and dispose arms and ammunition found during the inspection of these vessels.

The 2015 final report of the Panel of Experts of the 1970 Sanctions Committee highlighted the weak capacity available to enforce the arms embargo on the high seas, hence recommending the creation of a maritime monitoring force to prevent the entry into and exit from Libya of arms or related materiel in violation of the arms embargo. On 23 May, the Council of the European Union adopted conclusions regarding the extension of the mandate of EUNAVFOR MED Operation Sophia to support the implementation of the arms embargo on the high seas, pending the authorisation of the Security Council.

There were several controversial issues during the negotiation process. In the past, it has been difficult to negotiate resolutions authorising the interdiction of vessels on the high seas or in the territorial waters of a third country, whether in the context of fighting human trafficking, the implementation of sanctions or counter-piracy measures. Seeking flag state consent before interdiction was once again a difficult aspect of these negotiations. It seems that for China and Russia not requesting flag state consent would be against the general principle of exclusive jurisdiction of a flag state over its vessels on the high seas, as well as against the principle of freedom of navigation. However, given that attaining the cooperation of flag states can at times be difficult and that there are concerns about the timeliness and effectiveness of interdictions in this context, several Council members pushed not to require consent by the flag state. In the end, the draft that will be put to a vote includes a reference to making good-faith efforts to first seek the consent of the vessel’s flag state prior to any inspections. The text furthermore creates a requirement to subsequently report to the Sanctions Committee such interdictions, including the efforts made to seek the consent of the vessel’s flag state and the results of the inspection. At press time, it seemed that the failure to reach a compromise on this issue could result in a non-unanimous adoption*.

Another difficulty in the negotiations was defining the instances in which member states are authorised to use force. The initial draft circulated by the UK included an authorisation to use “all necessary measures” in interdicting vessels. Some Council members wanted further guarantees that this was not a blanket authorisation to use force; as a result of these members’ concerns, compromise language was added to authorise member states to use “all measures commensurate to the specific circumstances.”

Counter-terrorism language was incorporated at the request of Egypt, which wanted this resolution to play a role in stemming the flow of foreign terrorist fighters to and from Libya and disrupting efforts to arm terrorist groups based in Libya and listed under the ISIL (Da’esh)/Al-Qaida Sanctions regime. In this context, the draft requests the Secretary-General to report, in 30 days, on the threat posed to Libya and neighbouring countries by foreign terrorist fighters recruited by or joining ISIL/Al-Qaida or its affiliates. Even though the draft makes reference to resolution 2253 and the measures against ISIL/Al-Qaida affiliates, it does not include specific reference to supporting the implementation of that sanctions regime.

In the draft, the Council reaffirms that the GNA may submit exemption requests to the arms embargo. The draft also reiterates the Council’s call for the Government of National Accord (GNA) in Libya to appoint a focal point for the Sanctions Committee and provide information relevant to the Sanctions Committee’s work. This includes the structure of the security forces under its control and the infrastructure in place to ensure the safe storage, registration, maintenance and distribution of military equipment by the government’s security forces.

* Post-script: Once the draft was in blue, a change was made to ensure that member states make good-faith efforts to first “obtain” the consent of the flag state, prior to any inspection, instead of “seek” such consent. Resolution 2292 was adopted unanimously.

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