The EUNAVFOR MED Operation and the Use of Force

On May 18, 2015, the European Council adopted Decision (CFSP) 2015/778 (Decision) launching the European Union Naval Force – Mediterranean (EUNAVFOR MED) with the aim of disrupting the business model of human smuggling and trafficking networks in the Southern Central Mediterranean.[1] The operational headquarters is located in Rome.

EUNAVFOR MED will be executed in successive phases in compliance with international law, including humanitarian and refugee law and human rights. The first phase focuses on identifying and monitoring smuggling and trafficking "networks through information gathering and patrolling on the high seas." The second phase of the operation provides for the boarding, search, seizure, and diversion of suspected vessels on the high seas or in the territorial and internal waters of the coastal state concerned.[2] A third phase allows all necessary measures regarding suspected vessels in the territory of the coastal state concerned, including the disposal of suspected vessels and related assets.[3]

This Insight aims to examine whether the military measures foreseen in the operation are subjected to requirements of classical international law regarding the use of force, such as consent of the territorial state and/or UN Security Council (SC) authorization. The first section of this Insight addresses the vague wording of the requirements for exercising such measures under Article 2 of the Decision. One reason for this vague wording may have been expediency, given the practical difficulties of clear consistency with the classical approach and the requirements of consent or of SC authorization, which are discussed in the next section. The Insight concludes with an exploration of whether the Decision opens up the possibility of such military activities being subject to essential regulatory requirements under a new global security approach emerging on an international level.

Regulatory Indecision and Vagueness

Article 2 of the Decision states, in vague and imprecise terms, that EUNAVFOR MED shall conduct the measures of the second and third phase "in accordance with any applicable UN Security Council Resolution or consent by the coastal State concerned . . . under the conditions set out in that Resolution or consent,"[4] except for operations in the high seas against vessels without nationality subject only to international law[5]—and therefore exposed to the authority of all states. The vagueness of the Decision poses a serious interpretation problem and raises questions of international law concerning the requirements for the use of military force. In particular, it is difficult to say exactly what Article 2 means by conditioning the use of these measures using the wording "any applicable UN Security Council Resolution."[6] The focal point of the political-doctrinal debate on this issue has so far been whether there is a need for prior SC authorization to use coercive measures provided for therein.

In my view and in contrast to common belief,[7] the legitimacy of the EUNAVFOR MED operation is not anchored to the requirement of prior SC authorization, which should have been established clearly and unambiguously. The opinion is confirmed by the vagueness of the third paragraph of Article 2, which entrusts the Council with assessing whether the conditions for transition beyond the first phase have been met "taking into account any applicable UN Security Council Resolution and consent by the coastal States concerned."[8] The intention of the aforementioned expression, therefore, is not to anchor the legitimacy of the military operation to one of the two classical requirements for the use of force (territorial state consent or SC authorization) referred to as alternatives. Its ambiguity was probably designed to emphasize a new approach to global security emerging in the international law (i.e., the immediate security approach),[9] should difficulties arise in obtaining the consent of Libya or the SC authorization.

Problems with the Coastal State's Consent and UN Security Council Authorization

Regulatory uncertainty indicates that the operation involves legal compromises that the system must be able to manage in order to secure political consensus.

Since the adoption of the Decision, the difficulty of obtaining consent from Libya—a chaotic country with two rival governments in Tobruk and in Tripoli—has been a central concern. The EU effectively supported the mediation efforts of the UN Special Representative for Libya, Bernardino León, in relation to an agreement between the Libyan parties on a national unity government. However, the talks between the Libyan parties turned increasingly unproductive.

On October 20, 2015, the Bernardino Léon mandate expired without success, meaning that the implementation of a first scenario of EUNAVFOR MED measures involving force based on the classical requirement of coastal state consent is currently impossible.

The other scenario foreseen by the classical approach of SC authorization seemed unlikely before the SC passed resolution 2240, which authorized member states to intercept vessels off Libya's coast suspected of migrant smuggling.[10] It is difficult to qualify human trafficking as a "threat to the peace" (and thus to ascribe it to Chapter VII, Articles 39 and 42, of the UN Charter). Further, obtaining a positive vote from Russia has proven unrealistic due to the EU's sanctions against Russia over the Ukraine crisis.

The Gordian Knot of the Operation

On June 22, 2015, the EU launched the first phase of EUNAFOR MED under Council Decision (CFSP) 2015/972.[11] The second phase, known as Operation SOPHIA, began on October 7, and thus far only concerns the boarding, search, seizure and diversion of suspected vessels on the high seas.[12] The EUNAVFOR MED does not address the Gordian knot of whether the enforcement actions in Libya's territorial waters and coast are subject to express and prior SC authorization.

This knot has not been completely untied even by the unexpected SC resolution 2240, adopted on October 9 (with Russia voting in favor), in which the SC "[d]ecides" to authorize for one year "Member States, acting nationally or through regional organisations," to inspect suspected vessels on the high seas provided "good faith efforts" are made to obtain the consent of the vessel's flag state; seize inspected vessels and dispose of them; and use all appropriate measures in confronting migrant smugglers or human traffickers necessary to carry out these activities.[13] The authorizations provided in the cited paragraphs only apply to the situation of migrant smuggling and human trafficking "on the high seas off the coast of Libya," while the resolution "[c]alls on Member States acting nationally or through regional organisations, including the EU, to assist Libya upon request" to prevent, investigate, and prosecute such acts "through its territory and in its territorial sea."[14]

Consequently, resolution 2240 seems scarcely effective, particularly when compared to SC resolution 1846 on combatting piracy, which considered "the lack of capacity of the Transitional Federal Government," referring to its unreliable consent, and enabled states to enter the territorial waters of Somalia and use all necessary means to repress acts of piracy. Resolution 2240 is indeed the result of a compromise: while enabling a hesitant Europe to break the deadlock and implement coercive measures on the high seas, in failing to authorize the measures in Libya's waters and coast, it risks compromising the operation by delaying and limiting its action. That is why the resolution allows the door to remain open to the use of force other than that authorized by the SC or Libya's consent, consonant with a realist rejection of consent as an essential condition of legitimacy, certain that Libya's government is incapable of controlling all Libyan territory.

Evidently, resolution 2240 does not bind Europe to Libyan consent as the SC does not "decide" but only "calls on" member states to assist in taking coercive measures in Libyan waters on Libya's "request." It seems reasonable to assume that the SC allows the EU to decide to implement these measures even without the consent of the Libyan government, albeit in accordance with international law.

This leads to asking whether ensuring respect for international law really requires SC authorization of raids and other such coercive measures or indeed Libya's consent.

This question is relevant as rules governing the use of force have been modified over time by changes in international law and UN practice, determined by globalization and the emergence of global values that the UN Charter, which dates back to 1945, does not adequately protect. Chapter VII of the UN Charter sets out measures involving the use of force, which in principle should only be applicable to states (and not to non-state actors) where there is a "threat to the peace, breach of the peace or act of aggression."[15]

The principal changes regarding the use of force occurred as a result of globalization of terrorism and other forms of organized crime: international law limits state sovereignty in favor of securing human rights/global values. Moreover, the UN has secured assistance in states' unilateral military actions for the joint management of humanitarian crises and jointly develop mechanisms (with the international organizations to which they are parties) to comanage measures involving the use of force outside of Chapter VII,[16] thereby overcoming the impasse of the Yalta formula granting veto power to the permanent members of the SC.[17]

Challenges Deriving from the Concept of "Tutelary" Intervention

The new approach to the security of global assets/interests/values is the "immediate security approach" based on a few key requirements related to the responsibility to protect norm and intervention for tutelary purposes ("tutelary" intervention). This type of intervention (which includes humanitarian intervention) includes forms of military coercion (raids and other military measures) on ships and aircraft in the sea and air space as well as in the territory of other states without UN authorization to use force, even without the consent of the territorial state concerned in cases of urgent necessity in the presence of serious violations of fundamental rights when the territorial state is "unwilling or unable" to act.

In such a case, the intervention is not directed "against" the territorial state. Rather, it aims to protect the internationally recognised fundamental interests themselves. This type of action is "collective" in nature and is made possible by the "exceptional widening of the material and coercive powers" of the states engaged in the intervention and exercised outside their own jurisdiction. Limitations to sovereignty are not punitive, although they compel the territorial state to tolerate the implementation of the collective will by reason of the greater value accorded to global interests beyond the particular interests of individual states. The force that intervening states use in a complementary or substitutive way can therefore not be considered "international force."[18]

As a result, this type of intervention is not subject to prior SC authorization. However, as a form of collective guarantee of global interests, it remains under the UN's strict political control. It must be performed in compliance with any applicable SC resolutions as well as the criterion of proportionality and the mandatory nature of jus cogens norms imposing respect for life and the safety of migrants. In specific cases, such an action is considered legitimate provided the appropriate UN bodies (the General Assembly and the SC) and public opinion have not censured the intervention.

The EUNAVFOR MED operation presents the distinctive features required for "tutelary" intervention. Coherence is signalled by the mission's collective purpose aimed at combating human trafficking rather than defending the national interests of EU member states, expressly stated in the Decision[19] and reinforced by openness to participation by third states.[20] Furthermore, Libya and most states bordering the Mediterranean are "unwilling or unable" to stem the spread of this phenomenon. Finally, the need for intervention was officially presented by the EU High Commissioner Federica Mogherini at the SC meeting last May where she stated the "urgent need to respond in an immediate and joint way" to "an exceptional situation [that] requires an exceptional and coordinated response."[21]

Conclusion

"Tutelary" intervention would be a viable path to a lawful action under international law in Libya's waters and coast even after resolution 2240. Undoubtedly, compared to UN authorized intervention it represents a greater risk for agent states wholly charged with the possible failure of military action and subject to international control and global public opinion and scrutiny.

Among the pitfalls for the EU are the risks that this operation entails, especially the loss of human life, which must be absolutely avoided under general and conventional international law. Further risks are the use of force by ISIS and the likely reaction of the coastal/flag states, which requires calibrating military activity to minimize the impact on their sovereignty as otherwise it would not be legal under international law.

The awareness of the greater risk of this option caused (and still causes) the EU to wait until the conditions for SC authorization are right, which would put the operation under the UN umbrella, especially as security policy is its Achilles heel. The stakes are high since efficiently managing the EUNAV-SOPHIA operation would accelerate the incomplete process of European political integration and guarantee the EU a role on the global community stage.

About the Author: Giuliana Ziccardi Capaldo is a Professor of International Law, University of Salerno, and General Editor, Global Community YILJ, Oxford University Press.