posted on Thu 8 Oct 2015 1:13 PM
Vote on a Resolution on Human Trafficking and Migrant Smuggling in the Mediterranean

Tomorrow (9 October), the Council is expected to vote on a resolution* aimed at disrupting human trafficking and the smuggling of migrants on the high seas off the coast of Libya. The draft was circulated in September by the UK, and following three rounds of negotiations and bilateral discussions with a number of countries, was put under silence yesterday until this morning, and is expected to be in blue shortly. Even though some European members of the Council were hoping to adopt the resolution before a 23 September EU Council meeting, there were a number of unresolved issues that could have made it difficult for some Council members to support the resolution. A decision was made to put the negotiations on hold for a period of time in order to try to resolve the issues and garner more support for the draft resolution. At press time, it was still unclear how many of these countries may now be willing to support the text.

The draft resolution authorises member states, acting nationally or through regional organisations, to inspect vessels on the high seas off the coast of Libya that they have reasonable grounds to suspect are being used for migrant smuggling or human trafficking. Furthermore, the draft authorises member states to seize vessels if there is confirmation that they are being used for migrant smuggling or human trafficking from Libya. These authorisations are for a period of one year from the date of the adoption, and the draft stresses how these are given in exceptional and specific circumstances. (In the past, it has been difficult to get agreement on resolutions authorising the interception of vessels, whether in the context of the implementation of sanctions or counter-piracy measures, since some Council members feel strongly about not contravening the freedom of navigation principle codified in the UN Convention on the Law of the Sea.)

Not surprisingly, flag state consent for interdiction on the high seas, which starts 12 nautical miles from the Libyan shore, was an issue that required some discussion. Under the UN Convention on the Law of the Sea, ships on the high seas are subject to the exclusive jurisdiction of their flag state. However, the Convention states that this is not a prerequisite if ships are engaged in piracy, slave trading or unauthorised broadcasting, or with regard to stateless vessels. In the past, Council members have found it difficult to agree on issues related to flag state consent in the case of Libya as well as Somalia. The compromise language authorises interdiction provided that member states make good faith efforts to obtain the consent of the vessel’s flag state prior to relying on the authorisation provided by the draft resolution.

It seems that the two most divisive issues during negotiations related to references to Chapter VII and the use of force. Several Council members, including Chad, Russia and Venezuela, raised concerns over the implications of having a Chapter VII resolution with a broad mandate. Following bilateral negotiations, the draft to be voted on is under Chapter VII but states that this is specifically to put an end to the recent “proliferation of, and endangerment of lives by, the smuggling of migrants and trafficking of persons in the Mediterranean sea off the coast of Libya”. On 21 September, Ambassador Fode Seck of Senegal, as President of the African Group, sent a letter to the Council President requesting further consultations on the draft and stressing that its emphasis “on the enforcement aspect under Chapter VII will not bring the much-needed change” to prevent people from fleeing dangerous situations and looking for safer living conditions in Europe.

In relation to the use of force, one of the difficulties 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 confronting migrant smugglers or human traffickers. Some Council members wanted further guarantees that this was not a blanket mandate to use force. As a result of the members’ concerns compromise language was added to authorise member states to use “all measures commensurate to the specific circumstances” in confronting them. (This language was also used in resolution 2146 which authorised the interdiction of vessels transporting crude oil illicitly exported from Libya.) However, it seems that Chad was still uncomfortable with the implications of the use of force and had questions about the mandate of the EU operation. It suggested that a broader approach to dealing with this problem would be more appropriate. At press time it was unclear whether some Council members, who had issues with the language regarding the two issues mentioned above, were going to support the adoption of the draft resolution.

While Council negotiations were put on hold during the high-level debate of the UN General Assembly, amendments were made to the draft in order to secure the consent of the Libyan permanent mission to the UN. In a 22 September letter, Ambassador Ibrahim Dabbashi (Libya) raised some issues Libya had with the draft, including concerns regarding the reference to Chapter VII and other issues related to linking the situation of Libya with migrant smuggling and human trafficking. As a result of bilateral negotiations with the UK, a reference to the situation in Libya being a threat to international peace and security was deleted from the draft and the agenda item for the adoption of the draft resolution will be “maintenance of international peace and security” instead of “the situation in Libya”. (The consent of Libyan authorities is expected to be key in later stages of the deployment of the EU operation.)

Some Council members stressed the need to respect international refugee law, as well as the protection of the rights of migrants and asylum seekers. The draft underscores that it is not intended to undermine the human rights of individuals or prevent them from seeking protection under international human rights law and international refugee law.

The resolution is expected to provide legal backing for the EU NAVFOR MED’s operation in the high seas (which was renamed Operation Sophia on 28 September). This operation, which was launched in June, is aimed 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. Council negotiations over a draft resolution authorising such an operation earlier this year (April-May) were put on hold following difficulties getting consent from Libyan authorities to operate in the territorial waters of Libya and its shore. Following the humanitarian crisis in the Mediterranean this summer, EU Council members decided to narrow the scope of the resolution to vessels operating on the high seas off the coast of Libya. A subsequent phase of the deployment of the operation in the territorial waters and on the shore of Libya is likely to be contingent upon the formation of a government of national accord in Libya.

* Post-Script: The resolution was adopted on 9 October as S/RES/2240 with 14 votes in favour and one abstention (Venezuela).