suggests that flag States have the obligation to cooperate with the inspection of the
ships flying their flags on the high seas to enforce measures decided by the Council.
3 The Council’s Self-Limitation of Its Influence on the Law
of the Sea
The Security Council’s resolutions are always limited in time, scope and space,
which makes it difficult to identify a general practice. In addition, the Council limits
the legal effects of its own resolutions by inserting exclusion clauses into them (Sect.
3.1). Nevertheless, the legal effect of these clauses is still open for discussion (Sect.
3.2).
3.1 The Systematicity of the Exclusion Clauses
In the very famous Resolution 1816 (2008) on Somalia, the Council:
[a]ffirms that the authorization provided in this resolution applies only with respect to the
situation in Somalia and shall not affect the rights or obligations or responsibilities of
member states under international law, including any rights or obligations under the
Convention, with respect to any other situation, and underscores in particular that it shall not
be considered as establishing customary international law, and affirms further that this
authorization has been provided only following receipt of the letter from the Permanent
Representative of the Somalia Republic to the United Nations to the President of the Security
Council dated 27 February 2008 conveying the consent of the TFG.
30
In the same way, resolution 2240 (2015):
[a]ffirms that the authorisations provided in paragraphs 7 and 8 apply only with respect to the
situation of migrant smuggling and human trafficking on the high seas off the coast of Libya
and shall not affect the rights or obligations or responsibilities of Member States under
international law, including any rights or obligations under UNCLOS, including the
general principle of exclusive jurisdiction of a flag State over its vessels on the high
seas, with respect to any other situation, and further affirms that the authorisation provided in
paragraph 10 applies only in confronting migrant smugglers and human traffickers on the
high seas off the coast of Libya.
31
All the resolutions authorising a derogation to the Law of the Sea principles
specify that they do not affect the rights or obligations or responsibilities of Member
States under international law, including the International Law of the Sea. However,
the specific reference to the formation of a customary rule is not automatic. For
30 Para. 9.
31 Para. 11.
10 Security Council’s Contribution to the Evolution of the Law of the Sea: Avant. . .
185
ships flying their flags on the high seas to enforce measures decided by the Council.
3 The Council’s Self-Limitation of Its Influence on the Law
of the Sea
The Security Council’s resolutions are always limited in time, scope and space,
which makes it difficult to identify a general practice. In addition, the Council limits
the legal effects of its own resolutions by inserting exclusion clauses into them (Sect.
3.1). Nevertheless, the legal effect of these clauses is still open for discussion (Sect.
3.2).
3.1 The Systematicity of the Exclusion Clauses
In the very famous Resolution 1816 (2008) on Somalia, the Council:
[a]ffirms that the authorization provided in this resolution applies only with respect to the
situation in Somalia and shall not affect the rights or obligations or responsibilities of
member states under international law, including any rights or obligations under the
Convention, with respect to any other situation, and underscores in particular that it shall not
be considered as establishing customary international law, and affirms further that this
authorization has been provided only following receipt of the letter from the Permanent
Representative of the Somalia Republic to the United Nations to the President of the Security
Council dated 27 February 2008 conveying the consent of the TFG.
30
In the same way, resolution 2240 (2015):
[a]ffirms that the authorisations provided in paragraphs 7 and 8 apply only with respect to the
situation of migrant smuggling and human trafficking on the high seas off the coast of Libya
and shall not affect the rights or obligations or responsibilities of Member States under
international law, including any rights or obligations under UNCLOS, including the
general principle of exclusive jurisdiction of a flag State over its vessels on the high
seas, with respect to any other situation, and further affirms that the authorisation provided in
paragraph 10 applies only in confronting migrant smugglers and human traffickers on the
high seas off the coast of Libya.
31
All the resolutions authorising a derogation to the Law of the Sea principles
specify that they do not affect the rights or obligations or responsibilities of Member
States under international law, including the International Law of the Sea. However,
the specific reference to the formation of a customary rule is not automatic. For
30 Para. 9.
31 Para. 11.
10 Security Council’s Contribution to the Evolution of the Law of the Sea: Avant. . .
185