posted on TUE 18 MAR 2014 6:31 PM
Adoption of a Resolution Imposing Sanctions on Illicit Crude Oil Exports from Libya

The Security Council is set to vote tomorrow (19 March) on a resolution imposing measures on vessels designated by the 1970 Libya Sanctions Committee to be transporting crude oil illicitly exported from Libya. The draft resolution, which is now in blue, was circulated by the US last Friday (14 March) following a failed attempt to include substantial new language on illicit export of oil in resolution 2144 which renewed the mandate of the Panel of Experts (PoE) assisting the 1970 Sanctions Committee.

The current draft resolution appears to be a direct reaction to the 8 March incident where the “Morning Glory”, a Democratic People’s Republic of Korea (DPRK)-flagged vessel, loaded oil belonging to a joint venture between the Libyan National Oil Company and some US companies in the Waha consortium at the rebel-held port of Sidra in eastern Libya. On 11 March Prime Minister Ali Zeidan of Libya was voted out of office by parliament after the government failed to immobilise the vessel while at port. It was seized on 16 March by US Navy SEALs in international waters off the coast of Cyprus at the request of both Libya and Cyprus.

This incident affected negotiations on the resolution to renew the UN Support Mission in Libya and the mandate of the PoE. After receiving US amendments regarding this incident, late last week, Council members held two rounds of negotiations at the expert level, a discussion in consultations at the permanent representative level on 13 March morning (under “any other business”) and the adoption of resolution 2144 was postponed for one day. After China and Russia indicated that they needed more time to consult with their capitals and analyse the possible implications of the new language, the P5 agreed on negotiating a separate resolution this week. Council members held two additional rounds of negotiations and a draft was put under silence procedure on 17 March. Silence was broken by several Council members, so changes were negotiated bilaterally with the US before a final draft was put in blue this afternoon.

The draft resolution, which is under Chapter VII of the UN Charter, requests that Libya inform the 1970 Sanctions Committee of any vessels transporting crude oil illicitly exported from Libya and decides that the 1970 Sanctions Committee designate those vessels for some or all measures authorised in the draft resolution on a case-by-case basis for a period of 90 days. The draft resolution also authorises member states to take all necessary measures to prohibit these vessels from entering their ports, the provision of bunkering services by their nationals or from their territory or the engagement on any transaction by their nationals and individuals and entities in their territory. (The draft resolution includes some exemptions to the measures above, such as in the case of an inspection, emergency or return to Libya.) It also requires the flag state of the designated vessel to take the necessary measures to direct the vessel not to load, transport or discharge such crude oil from Libya.

The tight timeframe for negotiations on this draft resolution has been an issue for some members. After receiving the first draft, Russia (who threatened to veto resolution 2144 if the US amendments were included) and China asked for more time in order to consult their capitals and have more clarity regarding the “Morning Glory” incident as well as the implications of the changes proposed to the sanctions regime. Some of these concerns were shared by other Council members.

A key issue for China and Russia was having the consent of the flag state as a precondition to any inspection by any member state. Even though language was included requesting that member states first seek the consent of the flag state, it is unclear if this is enough for China and Russia to vote favourably for the draft resolution.
There is a general sense that while they are unlikely to veto the resolution, abstaining is not out of the question.

Responding to concerns by some Council members, particularly Argentina, regarding the impact of this draft resolution on state practice and international law, the draft resolution states that it does not affect the rights or obligations or responsibilities of member states under international law, including rights or obligations under the UN Convention on the Law of the Sea (UNCLOS), and including the general principle of exclusive jurisdiction of a flag state over its vessels on the high seas. It also underscores that the draft resolution shall not be considered as establishing customary international law. At press time it seems that the language in the draft in blue may not have addressed all of Argentina’s concerns.

There were also discussions on the procedure for designating vessels and imposing measures with the P3 having differing views. While the US draft tasked the 1970 Sanctions Committee, rather than the Council, with imposing the measures included in the resolution, the UK stressed the need to ensure coherence with other sanctions regimes, where the Council imposes the sanctions and the relevant Sanctions Committee lists the individuals or entities meeting the designation criteria. Also, France and the UK, together with other Council members, pushed for language on compliance with international law when authorising member states to use all necessary measures for carrying out such inspections. The language agreed upon was to carry out such inspections “in full compliance with international humanitarian law and international human rights law, as may be applicable”.

Even though other resolutions authorise member states to inspect cargo from vessels when there are reasonable grounds to believe that there is a violation of a sanctions regime (such as the 1718 DPRK and 1737 Iran sanctions regimes), explicitly allowing inspections in the high seas without the consent of the flag state is unusual. Under article 110 of UNCLOS, a warship can board a foreign ship without flag state consent in very specific circumstances, such as reasonable ground for suspecting that the ship is engaged in piracy, slave trade or unauthorised broadcasting. However, the decision to allow for that by the Council would not be unprecedented. Resolution 1973 on Libya allowed for the interdiction of vessels in the high seas if there were reasonable grounds to believe that the vessel was violating the arms embargo imposed by resolution 1970.

The draft resolution also directs the PoE to monitor implementation of the measures imposed in the resolution and requests the Secretary-General to increase the PoE to six members.