actions taken with respect to their vessels, and calls upon flag States that receive such
requests to review and respond to them in a rapid and timely manner.
26
Consequently, under this resolution, States have to seek the flag State’s consent
“in good faith”, but the authorisation to inspect the foreign ship remains if the flag
State fails to answer the request. Whereas in Resolution 1929 (2010) on Iran, the
consent of the flag State seems to be required, with the Council simply asking flag
States to cooperate with the inspections by authorising them. The resolution is
formulated as follows:
[the Council] notes that States, consistent with international law, in particular the law of the
sea, may request inspections of vessels on the high seas with the consent of the flag State,
and calls upon all States to cooperate in such inspections if there is information that provides
reasonable grounds to believe the vessel is carrying items the supply, sale, transfer, or export
of which is prohibited by paragraphs 3, 4 or 7 of resolution 1737 (2006), paragraph 5 of
resolution 1747 (2007), paragraph 8 of resolution 1803 (2008) or paragraphs 8 or 9 of this
resolution, for the purpose of ensuring strict implementation of those provisions.
27
Sometimes, the authorisation to inspect is accompanied by an authorisation to
seize and dispose of prohibited items, for instance in Resolution 1929 (2010) on
Iran.
28 These few examples show that every situation leads to a different response
from the Council. The extent of the authorisation and its modalities varies from one
situation to another. As a result, it is very difficult to identify a consistent practice in
terms of inspecting foreign ships on the high seas in general. However, one can
observe that, when a threat to international peace and security is identified by
Security Council and sanctions have been adopted, the Council accompanies these
sanctions by maritime measures in order to enforce them on the high seas. The quasiautomaticity of these measures questions the existence of a general right to inspect
foreign ships on the high seas to enforce Security Council resolutions. The practice is
not consistent enough to be able to give rise to such a general right and indicates that
an express authorisation from the Council is still needed. However, this practice has
limited the discretionary right of the flag States to grant consent to the boarding of
their ships by foreign vessels on the high seas. Article 25 of the UN Charter
29
combined with the wording of the resolutions adopting sanctions or embargoes,
26 Resolution 2240 (2015).
27 Resolution 1929 (2010), 9 June 2010, para. 15.
28 Para 16. “Decides to authorise all States to, and that all States shall, seize and dispose of (such as
through destruction, rendering inoperable, storage or transferring to a State other than the originating or destination States for disposal) items the supply, sale, transfer, or export of which is
prohibited by paragraphs 3, 4 or 7 of resolution 1737 (2006), paragraph 5 of resolution 1747
(2007), paragraph 8 of resolution 1803 (2008) or paragraphs 8 or 9 of this resolution that are
identified in inspections pursuant to paragraphs 14 or 15 of this resolution, in a manner that is not
inconsistent with their obligations under applicable Security Council resolutions, including resolution 1540 (2004), as well as any obligations of parties to the NPT, and decides further that all States
shall cooperate in such efforts”.
29 “The Members of the United Nations agree to accept and carry out the decisions of the Security
Council in accordance with the present Charter”.
184
K. Neri
requests to review and respond to them in a rapid and timely manner.
26
Consequently, under this resolution, States have to seek the flag State’s consent
“in good faith”, but the authorisation to inspect the foreign ship remains if the flag
State fails to answer the request. Whereas in Resolution 1929 (2010) on Iran, the
consent of the flag State seems to be required, with the Council simply asking flag
States to cooperate with the inspections by authorising them. The resolution is
formulated as follows:
[the Council] notes that States, consistent with international law, in particular the law of the
sea, may request inspections of vessels on the high seas with the consent of the flag State,
and calls upon all States to cooperate in such inspections if there is information that provides
reasonable grounds to believe the vessel is carrying items the supply, sale, transfer, or export
of which is prohibited by paragraphs 3, 4 or 7 of resolution 1737 (2006), paragraph 5 of
resolution 1747 (2007), paragraph 8 of resolution 1803 (2008) or paragraphs 8 or 9 of this
resolution, for the purpose of ensuring strict implementation of those provisions.
27
Sometimes, the authorisation to inspect is accompanied by an authorisation to
seize and dispose of prohibited items, for instance in Resolution 1929 (2010) on
Iran.
28 These few examples show that every situation leads to a different response
from the Council. The extent of the authorisation and its modalities varies from one
situation to another. As a result, it is very difficult to identify a consistent practice in
terms of inspecting foreign ships on the high seas in general. However, one can
observe that, when a threat to international peace and security is identified by
Security Council and sanctions have been adopted, the Council accompanies these
sanctions by maritime measures in order to enforce them on the high seas. The quasiautomaticity of these measures questions the existence of a general right to inspect
foreign ships on the high seas to enforce Security Council resolutions. The practice is
not consistent enough to be able to give rise to such a general right and indicates that
an express authorisation from the Council is still needed. However, this practice has
limited the discretionary right of the flag States to grant consent to the boarding of
their ships by foreign vessels on the high seas. Article 25 of the UN Charter
29
combined with the wording of the resolutions adopting sanctions or embargoes,
26 Resolution 2240 (2015).
27 Resolution 1929 (2010), 9 June 2010, para. 15.
28 Para 16. “Decides to authorise all States to, and that all States shall, seize and dispose of (such as
through destruction, rendering inoperable, storage or transferring to a State other than the originating or destination States for disposal) items the supply, sale, transfer, or export of which is
prohibited by paragraphs 3, 4 or 7 of resolution 1737 (2006), paragraph 5 of resolution 1747
(2007), paragraph 8 of resolution 1803 (2008) or paragraphs 8 or 9 of this resolution that are
identified in inspections pursuant to paragraphs 14 or 15 of this resolution, in a manner that is not
inconsistent with their obligations under applicable Security Council resolutions, including resolution 1540 (2004), as well as any obligations of parties to the NPT, and decides further that all States
shall cooperate in such efforts”.
29 “The Members of the United Nations agree to accept and carry out the decisions of the Security
Council in accordance with the present Charter”.
184
K. Neri