Chapter 10
Security Council’s Contribution
to the Evolution of the Law of the Sea:
Avant Garde or Self-Limitation?
Kiara Neri
Abstract Undoubtably, the UNSC has played a significant role in the recent
evolution of the Law of the Sea. This role is very clear when we focus on the
derogations to the core principles of the law of the sea that UNSC has granted along
the years (in the framework of the enforcement of sanctions and embargoes, to fight
various traffics at sea—migrants; drugs; crude oil, etc.—or to combat piracy and
armed robbery). These authorizations have enabled an evolution of the practice at
sea, but they are based on exceptions, derogations granted on a case to case basis.
The chapter wishes to explore the following question: have UNSC resolutions given
rise to an evolution of the rule? The links between the Resolutions at stake and the
formal sources of international law are unclear. Can these resolutions really lead to a
modification of the fundamental rules applicable at sea, conventional or customary?
The exemption clauses contained in the UNSC resolution excluding the formation of
a customary norm are challenging. Indeed, when it authorizes Member States to
penetrate Somali territorial waters to combat armed robbery or when it authorizes the
boarding of foreign ships in the high seas to fight migrant smuggling, the Council
indicates that these resolutions “shall not affect the rights or obligations or responsibilities of member states under international law” and “shall not be considered as
establishing customary international law”. In doing so, UNSC is affecting the scope
of its own contribution to the evolution of the law of the sea.
K. Neri (*)
Jean Moulin Lyon 3 University, Faculty of Law, Lyon, France
e-mail: kiara.neri@univ-lyon3.fr
© Springer Nature Switzerland AG 2020
M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea,
https://doi.org/10.1007/978-3-030-42671-2_10
177
Security Council’s Contribution
to the Evolution of the Law of the Sea:
Avant Garde or Self-Limitation?
Kiara Neri
Abstract Undoubtably, the UNSC has played a significant role in the recent
evolution of the Law of the Sea. This role is very clear when we focus on the
derogations to the core principles of the law of the sea that UNSC has granted along
the years (in the framework of the enforcement of sanctions and embargoes, to fight
various traffics at sea—migrants; drugs; crude oil, etc.—or to combat piracy and
armed robbery). These authorizations have enabled an evolution of the practice at
sea, but they are based on exceptions, derogations granted on a case to case basis.
The chapter wishes to explore the following question: have UNSC resolutions given
rise to an evolution of the rule? The links between the Resolutions at stake and the
formal sources of international law are unclear. Can these resolutions really lead to a
modification of the fundamental rules applicable at sea, conventional or customary?
The exemption clauses contained in the UNSC resolution excluding the formation of
a customary norm are challenging. Indeed, when it authorizes Member States to
penetrate Somali territorial waters to combat armed robbery or when it authorizes the
boarding of foreign ships in the high seas to fight migrant smuggling, the Council
indicates that these resolutions “shall not affect the rights or obligations or responsibilities of member states under international law” and “shall not be considered as
establishing customary international law”. In doing so, UNSC is affecting the scope
of its own contribution to the evolution of the law of the sea.
K. Neri (*)
Jean Moulin Lyon 3 University, Faculty of Law, Lyon, France
e-mail: kiara.neri@univ-lyon3.fr
© Springer Nature Switzerland AG 2020
M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea,
https://doi.org/10.1007/978-3-030-42671-2_10
177