exceptions to the principle of the exclusive jurisdiction of the flag State on the high
seas. In international law, abundant practice is likely to contribute to the evolution of
the rule. It is thus necessary to look into the practice to determine if we can observe
such an evolution. The Security Council has authorised third States, in specific
situations, to inspect foreign ships on the high seas. For instance, Resolution 1973
(2011) on Libya:
Calls upon all Member States, in particular States of the region, acting nationally or through
regional organizations 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.
22
In the same way, the Council has granted authorisations in the framework of
fighting criminal activities at sea such as crude oil trafficking
23 or human trafficking
and migrant smuggling.
24 The wording of these resolutions nevertheless contains
limitations in terms of the authorisation. Indeed, Resolution 2146 (2014) “Authorizes Member States to inspect on the high seas vessels designated by the Committee
pursuant to paragraph 11”.
25 As a result, States cannot inspect any foreign ships on
the high seas to fight crude oil traffic, but only the ships designated by the Committee
created by the Council. Additionally, recent resolutions usually refer to the rights of
flag States and request inspecting States to ask for their authorisation prior to the
boarding of ships. For instance, Resolution 2240 (2015):
7. Decides, with a view to saving the threatened lives of migrants or of victims of human
trafficking on board such vessels as mentioned above, to authorise, in these exceptional and
specific circumstances, for a period of one year from the date of the adoption of this
resolution, Member States, acting nationally or through regional organisations that are
engaged in the fight against migrant smuggling and human trafficking, to inspect on the
high seas off the coast of Libya vessels that they have reasonable grounds to suspect are
being used for migrant smuggling or human trafficking from Libya, provided that such
Member States and regional organisations make good faith efforts to obtain the consent of
the vessel’s flag State prior to using the authority outlined in this paragraph [. . .]
9. Calls upon all flag States involved to cooperate with respect to efforts under paragraphs 7 and 8, and decides that Member States acting nationally or through regional
organisations under the authority of those paragraphs shall keep flag States informed of
22 Resolution 1970 (2011), 26 February 2011, para. 11 and Resolution 1973(2011), 17 March 2011,
para. 13. Bold added by the author.
23 Resolution 2146 (2014), 19 March 2014.
24 Resolution 2240 (2015).
25 Resolution 2146 (2014), para. 5.
10 Security Council’s Contribution to the Evolution of the Law of the Sea: Avant. . .
183
seas. In international law, abundant practice is likely to contribute to the evolution of
the rule. It is thus necessary to look into the practice to determine if we can observe
such an evolution. The Security Council has authorised third States, in specific
situations, to inspect foreign ships on the high seas. For instance, Resolution 1973
(2011) on Libya:
Calls upon all Member States, in particular States of the region, acting nationally or through
regional organizations 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.
22
In the same way, the Council has granted authorisations in the framework of
fighting criminal activities at sea such as crude oil trafficking
23 or human trafficking
and migrant smuggling.
24 The wording of these resolutions nevertheless contains
limitations in terms of the authorisation. Indeed, Resolution 2146 (2014) “Authorizes Member States to inspect on the high seas vessels designated by the Committee
pursuant to paragraph 11”.
25 As a result, States cannot inspect any foreign ships on
the high seas to fight crude oil traffic, but only the ships designated by the Committee
created by the Council. Additionally, recent resolutions usually refer to the rights of
flag States and request inspecting States to ask for their authorisation prior to the
boarding of ships. For instance, Resolution 2240 (2015):
7. Decides, with a view to saving the threatened lives of migrants or of victims of human
trafficking on board such vessels as mentioned above, to authorise, in these exceptional and
specific circumstances, for a period of one year from the date of the adoption of this
resolution, Member States, acting nationally or through regional organisations that are
engaged in the fight against migrant smuggling and human trafficking, to inspect on the
high seas off the coast of Libya vessels that they have reasonable grounds to suspect are
being used for migrant smuggling or human trafficking from Libya, provided that such
Member States and regional organisations make good faith efforts to obtain the consent of
the vessel’s flag State prior to using the authority outlined in this paragraph [. . .]
9. Calls upon all flag States involved to cooperate with respect to efforts under paragraphs 7 and 8, and decides that Member States acting nationally or through regional
organisations under the authority of those paragraphs shall keep flag States informed of
22 Resolution 1970 (2011), 26 February 2011, para. 11 and Resolution 1973(2011), 17 March 2011,
para. 13. Bold added by the author.
23 Resolution 2146 (2014), 19 March 2014.
24 Resolution 2240 (2015).
25 Resolution 2146 (2014), para. 5.
10 Security Council’s Contribution to the Evolution of the Law of the Sea: Avant. . .
183