One aspect of the UN Security Council Resolutions on Libya that has not received much attention is the authorization of maritime interdiction for the purposes of enforcing the arms embargo against Libya. Yet, there are a number of interesting questions that arise in this context.
The arms embargo against Libya was established in UN Security Council Resolution 1970 in order to:
prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training, financial or other assistance, related to military activities or the provision, maintenance or use of any arms and related materiel, including the provision of armed mercenary personnel whether or not originating in their territories…
Resolution 1970 further called upon Member States, and in particular states in the region, to inspect all cargo to and from Libya passing through their territory. Such inspections had to be “consistent with international law, in particular the law of the sea and relevant international civil aviation agreements.” This condition has important implications for the circumstances in which the arms embargo could be enforced.
This condition would have certainly prevented the enforcement of the arms embargo against ships of other states sailing on the high seas because such ships are outside the territory of member states and they have a right to freedom of navigation. Whether or not it would have prevented the enforcement of the embargo against ships in the territorial sea is another question. The territorial sea is presumably within the territory of a state so the right to inspect would seem to apply. However, ships in the territorial sea have a right of innocent passage under international law. The question is whether ships carrying arms in violation of an international embargo are in innocent passage. The Law of the Sea Convention makes clear in Article 19 that passage is not innocent if it is “in violation of the principles of international law embodied in the Charter of the United Nations.” Given the the Security Council had explicitly called for the arms embargo, it must be wondered whether ships in the territorial sea carrying cargos in violation of the embargo can be considered in violation of the principles of the Charter of the United Nations?
The enforcement of the arms embargo has subsequently been tightened up in Resolution 1973. The new resolution replaces the original text on enforcement with the following text:
[The Security Council] Calls upon all Member States, in particular States of the region, acting nationally or through regional organisations or arrangements, in order to ensure strict implementation of the arms embargo established by paragraphs 9 and 10 of resolution 1970 (2011), to inspect in their territory, including seaports and airports, and on the high seas, vessels and aircraft bound to or from the Libyan Arab Jamahiriya, if the State concerned has information that provides reasonable grounds to believe that the cargo contains items the supply, sale, transfer or export of which is prohibited by paragraphs 9 or 10 of resolution 1970 (2011) as modified by this resolution, including the provision of armed mercenary personnel, calls upon all flag States of such vessels and aircraft to cooperate with such inspections and authorises Member States to use all measures commensurate to the specific circumstances to carry out such inspections.
Thus, the enforcement of the arms embargo is explicitly extended to the high seas and it would seem to apply to the ships of any state. This provision is significant because it represents a modification of the right to freedom of the high seas as enshrined in international law and exemplified in Article 87 of the Law of the Sea Convention. Certain substantive and procedural conditions are attached to the exercise of this right of enforcement. First of all, the inspecting state must have reasonable grounds to believe that a ship has on board cargo which is prohibited by the arms embargo. Secondly, the inspecting state must immediately inform the UN Secretary-General and the Committee created under Resolution 1970 of any action taken to enforce the embargo. Such notification must be followed by an initial written report containing an explanation of the grounds for the inspection and the results of the inspection. States must then submit a more detailed report containing relevant details of the inspection and any seizures that took place.
What the Resolution does not say is what happens if the suspicions of the inspecting state were ill-founded. Ships interdicted on the high seas under UN Security Council Resolution 1937 do not have any obvious right to seek compensation if it turns out that the inspection was not necessary. This can be contrasted with the position taken in the Law of the Sea Convention when inspections on the high seas are authorized. Article 110 of the Convention, setting out a right to inspect vessels of other states on the high seas for certain purposes (including piracy, slavery and unauthorized broadcasting) explicitly provides that “if the suspicions provide to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.” This is an important provision because it recognizes that the right to visit is an exception to the general principle of high seas freedom. There is no such recognition in Resolution 1973.
The UN Security Council Resolution also does not specify what types of ships may be inspected. Clearly it covers merchant vessels but does the Resolution also operate as an exception to the immunity of government ships used on non-commercial service as found in Article 96 of the Law of the Sea Convention? It could argued that a Security Council Resolution takes priority over the Law of the Sea Convention by virtue of Article 103 of the United Nations Charter. At the same time, it could be argued that derogations from well-established principles of customary international law should be made explicit in the text of a Resolution.
As for the issue of compensation I would argue that the Chorzow factory case and the subsequent practice, opinio juris and case-law provides a firm legal basis for such a claim.
“[…]the Court observes that it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation.”