Legal Basis for Implied Maritime Embargo Operations

If the maritime implementation of economic sanctions is not mentioned in the
resolution, the question arises as to whether implied maritime embargo operations
are actually mandated by the UN, or are set up in order to support UN decisions. It
seems hard to see how a resolution can be a legal basis for maritime embargo
operations if there is no mandate in the first place. If States take the initiative to
deploy naval forces in support of measures taken under an Article 41 resolution that
has no wording indicating that economic sanctions can also be implemented at sea,
and secondly, for which the UNSC usually decides that States shall take steps to
prevent by their nationals or from their territory or using their flagged vessels
certain embargoed actions that do not go beyond the jurisdictional reach of a State
and excludes foreign-flagged vessels, the resolution itself may not actually be the
proper legal basis, but might only serve as an argument to politically justify or to
legitimize the presence of naval forces off the coast of a State which is subjected to
sanctions. A decision to deploy naval forces to sea should then be sought outside
Chapter VII of the UN Charter, such as the decision of a regional organization to
deploy military means, made possible because of the notion of freedom of navigation
on the high seas. This allows States to deploy naval forces at sea on their
own initiative without any further decisions from the UNSC, or the consent of a
State and without crossing third-state boundaries. The actual presence of naval
assets is made possible because of the rules applicable to the different maritime
zones, but is not based on explicit authorization by the Council or the consent of a
State. Consequently, no enforcement authority is given to naval forces to implement
economic sanctions at sea. In the absence of explicit authorization, their powers are
basically restricted to monitoring and reporting. Still, however, even in a diplomatic
coercion role, as Booth mentions, warships are in support of foreign policy, ‘but by
means of signaling rather than shooting’. Zeigler mentions that the information that was reported by NATO and the WEU maritime operations during the Yugoslavia conflict ‘provided sufficient information about violations to enable …
the Security Council … to pass resolution 787’, which gave explicit authority to
enforce sanctions at sea. McLaughlin views implied maritime embargo operations,
which he calls ‘passive naval action’, more as a form of diplomatic coercion which
is ‘encompassed in a modern form by the peaceful settlement provisions of UN
Chapter VI’.