In seven situations the UNSC has authorized maritime embargo operations to
enforce economic measures at sea: Southern Rhodesia, Iraq, The Former
Yugoslavia, Haiti, Sierra Leone, Lebanon and Libya. Maritime embargo
operations aim at implementing economic sanctions adopted by the UNSC at sea.
That the enforcement of the embargo physically takes place at sea, distinguishes it
from UN sanctions adopted by the UNSC that do not also authorize enforcement at
sea, and which are restricted to implementation under national jurisdiction. Rather
than only relying on national implementation of sanctions by member-states within
their respective jurisdictions, maritime embargo operations add another, physical,
dimension at sea directly against a sanctioned State and within the theater of
conflict itself. Arguably, maritime embargo operations can be considered as a step
between economic sanctions and military enforcement operations in order to put
more pressure on the target state. But it can also be seen as a part of the military
enforcement measures. Which one it may be or draws closes to, obviously depends
on the actual circumstances in which the UNSC has authorized such activity. Since
the UNSC authorized military means to implement economic sanctions at sea
debate has arisen on whether these military operations, and the use of force used in
pursuit of the mission, are based on either Article 41 (economic enforcement
measures) of the UN Charter, or should be positioned within the context of Article
42 (military enforcement measures). The ‘41/42’ debate first arose during the
imposition of economic sanctions against Iraq, after the Iraqi invasion of Kuwait in 1990 Sanctions against Iraq and their implementation at sea by the maritime
interception force (MIF) lasted until the UNSC adopted, in May 2003, SC Res.
1483 (2003) that ended the sanctions regime. In the years following the Iraqi
experience interception operations were also conducted during the conflicts in the
former Yugoslavia, Haiti and Sierra Leone. Although these maritime embargo
operations made the implementation of economic sanctions at sea an accepted
practice, it continued to stir the discussion on the legal basis for the naval
enforcement of economic sanctions. In the maritime embargo operations that followed, during the conflicts in Lebanon and Libya, the debate did not, however, resurface. Klein has also briefly touched upon the issue but has not added a contemporary view of her own.
The debate on the legal basis for naval enforcement at sea is especially relevant
from a naval operator’s perspective. At the operational level the core issue is
whether naval forces that are deployed in maritime embargo operations to oversee
and implement economic sanctions imposed at sea can resort to coercive measures,
including the use of force. Do commanders of warships need flag State authority to
board a vessel, or can they base their powers on the mandate of the UNSC? Can
so-called disabling fire be used when a vessel refuses to comply with the warship’s
crew who are executing a UN mandate, or are actions only limited to monitoring
and reporting? These are just a few examples of practical questions which make
understanding the legal basis and legal regime under which they operate a significant
issue for military practitioners. As McLaughlin states: ‘It is thus essential that
we understand how Articles 40, 41 and 42 interact, because it is this interaction
which defines the spectrum with which UN-mandated interdiction can take place.’
The next paragraphs consider the question of the legal grounds for maritime
embargo operations that are utilized to implement economic measures adopted by
the UNSC. To analyse this question this chapter will first argue that maritime
embargo operations can broadly be categorized into two types of operations,
namely implied and explicit maritime embargo operations. Second, it reassesses the
main arguments of the 41/42 debate, primarily against the background of the
present-day application of Article 42. It will argue that the applicability of Article
42 has evolved in such a manner that the existing reluctance in the mid-1990s
concerning the possibility to position maritime embargo operations within Article
42 may now be less strong. Lastly, a few remarks are made concerning the question
of whether or not the use of force within the realm of Article 41 is possible in the
context of maritime embargo operations.
Two Types of Maritime Embargo Operations
The UNSC has made much use of the ability to impose sanctions based on Article
41 of the UN Charter. The first sanctions ever to be adopted by the UNSC were the
sanctions against Southern Rhodesia in 1966, which was also the first time that a
maritime interdiction operation, the so-called Beira Patrol, supported the implementation
of sanctions. Article 41 reads as follows: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United
Nations to apply such measures. These may include complete or partial interruption of
economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of
communication, and the severance of diplomatic relations.
Many of the sanctions imposed by the UNSC have coincided with the conduct of
military peace support operations. Although some authors have suggested that the
effectiveness of sanctions also depends on the willingness of States to use coercive
measures, such as the use of military force, most of the UN sanctions are
adopted without implementation instruments that include the use of military means.
Following the traditional division between Articles 41 and 42 UN Charter, sanctions
imposed through Article 41 have in fact very little to do with the use of
military means, but form a crucial and mandatory pre-step in restoring international
peace and security to what is considered to be the ultimum remedium: action
through military means as is provided for in Article 42. Maritime strategist Geoffrey
Till has argued that imposing maritime operations to enforce economic sanctions
does not force the targeted State to change its policy. He claims that the relevancy
of MEO on a political level is gained rather by the fact that it shows that everything
possible has been undertaken to avoid to compelling compliance through the use of
military force.
On a number of occasions States have decided to deploy naval assets at sea to
support the economic sanctions, either at the express authorization of the UNSC,
but also without express authorization. Broadly speaking, two types of maritime
embargo operations can be distinguished: Implied maritime embargo operations and
explicit maritime embargo operations. The key difference between these two types
is whether the UNSC has explicitly authorized the implementation of economic
sanctions at sea. These two types of embargo operations will be considered in more
detail below.
Implied Maritime Embargo Operations
In the past, the UNSC has adopted a number of resolutions that were based on
Article 41 in the context of which the international community took the initiative to
deploy naval forces. Although the political developments in these cases may have
been such that States or regional organizations were politically expected or even asked by the UN to deploy military means to support the decisions of the UNSC, the point to note in these resolutions is that the UNSC did not specifically adopt military measures to implement sanctions from the sea. These military operations,
launched without express authorization from the UNSC to support adopted economic
sanctions from the sea, can be called implied maritime embargo operations.
From the wording of the resolutions it does not become apparent that the UNSC
actually seeks, or authorizes any enforcement of economic sanctions at sea. The
target audiences of the resolutions are the member states which, pursuant to Article
25 of the UN Charter, are obliged to take measures to implement the decisions of
the UNSC. These resolutions aim to seek implementation through national procedures,
rather than through military means at sea. Two examples of implied maritime
embargo operations can be given:
In the case of Southern Rhodesia the UNSC adopted SC Resolution 217 (1965),
shortly after SC Resolution 216 (1965) condemning the unilateral declaration of
independence by the Ian Smith Government. Although with SC Resolution 217 the
UNSC did not as yet take the step of mandatory economic measures under
Chapter VII, the UK (the former colonial power) launched the Beira Patrol.
Mobley mentions that the resolution ‘[w]as to serve as the original (if flimsy) legal
justification for later British maritime intercept operations, giving the United
Kingdom reason to expect the cooperation of the flag States of suspect tankers’.
In the second example, during the crisis in the former Yugoslavia, in July 1992
NATO and the Western European Union (WEU) decided to launch Operations
Maritime Monitor and Sharp Vigilance in support of SC Resolutions 713 (1991)
and 757 (1992) to contribute to the monitoring of sanctions adopted by the UNSC.
Neither resolution contained any explicit authority for naval enforcement, but
merely decided (713) that under Chapter VII ‘all States shall … immediately
implement a general and complete embargo on all the deliveries of weapons and
military equipment to Yugoslavia’. Resolution 757 added the mandate for States to
implement SC Res. 713, but only within their jurisdictional powers.
In 2011, a third example almost came into being: during the early stages of the
Libya crisis NATO Secretary-General Rasmussen announced that NATO would set
up an embargo operation to monitor UN sanctions that were adopted in SC Res.
1970 (2011). This resolution was expressly based on Article 41 and did not contain any explicit authority to deploy naval forces to enforce the embargo with the use of armed force at sea. As the situation developed, however, NATO
actually started its military operations only after the UNSC adopted SC Res. 1973
(2011) that authorized explicit enforcement authority on the high seas.
If SC Resolution 1973 would not have contained this authorization and if NATO
would have gone ahead with the deployment of naval forces off the coast of Libya,
then deploying warships at sea to support a UN resolution would have been a case
of implied maritime embargo operations.