own resolutions. Nevertheless, the issue of the UNSC’s competence to impose these
kind of restrictions remains, particularly when the practice has generalised and is not
based solely on its resolutions anymore. For instance, a number of bilateral or
multilateral treaties also authorise intervention in the territorial sea of another State
to fight armed robbery (for instance the ReCAAP treaty for South East AsiaRegional Cooperation Agreement on Combating Piracy and Armed Robbery against
Ships in Asia, Tokyo, 11 November 2004) or other crimes such as drug trafficking.
35
Establishing the existence of a practice by States is easy. Various States and
international organisations have conducted and are still conducting operations at sea,
using the authorisations granted by the Security Council or the consent of the
competent State (coastal or flag State). The example of anti-piracy operations off
the coast of Somalia is topical since it is one of the oldest cases. The practice has thus
started to consolidate. A great range of actors have or had been involved directly or
indirectly in counter-piracy operations in the area, including the European Union,
NATO,
36 the 151 Task force, the African Union, the SADC, the SHADE (Shared
Awareness and Deconfliction) group and individual States such as China, Russia,
India, Japan, the Republic of Korea and Iran. Similar practice is easily identifiable on
the high seas, with respect to the boarding and inspection of foreign ships.
However, identifying the opinio juris is much more delicate.
37 From a theoretical
point of view a single resolution of the Council cannot, in itself, exclude the
formation of opinio juris. But the psychological element is very difficult to establish
when the practice is based, precisely, on a resolution. Under these circumstances,
States and international organisations act on the premise that their practice will not
give rise to a customary rule and will not bind them in the future. Indeed, when they
have launched maritime operations to enforce sanctions, or to fight piracy or migrant
smuggling, the various actors involved have all made references to Security Council
resolutions as the legal basis for their action. For instance, NATO refers directly to
UNSC resolutions as the legal basis for it’s operation Allied Provider,
38 as well as
35 See Neri (2013), pp. 71 et seq.
36 NATO ended Operation Ocean Shield on 15 December 2016.
37 On the issue of identification of customary international law, see, among others: Scoville (2016);
Mohamad (2016); Baker (2016) or Blokker (2017).
38 See Final Communiqué, Meeting of the North Atlantic Council at the level of Foreign Ministers
held at NATO Headquarters, Brussels, 3 December 2008, para. 10: “As demonstrated by NATO’s
rapid deployment of Operation Allied Provider, we are greatly preoccupied by the rising incidence
of piracy off the Horn of Africa and are committed to assist in fighting this scourge, in full respect of
relevant United Nations Security Council resolutions. Accordingly, in response to requests by the
Secretary General of the United Nations, NATO and individual Allied nations’ naval forces are
providing a deterrent presence and are escorting World Food Programme-chartered vessels carrying
humanitarian aid to Somalia. NATO naval forces have also provided a maritime security presence
and escorted African Union-chartered vessels carrying logistical supplies for the African Union
Mission in Somalia (AMISOM). We welcome the EU’s upcoming ATALANTA operation. As
more actors engage in these important efforts, it is essential to ensure complementarity among them.
NATO stands ready to consider further requests for the use of Alliance naval assets to combat piracy
in this region”.
10 Security Council’s Contribution to the Evolution of the Law of the Sea: Avant. . .
187
kind of restrictions remains, particularly when the practice has generalised and is not
based solely on its resolutions anymore. For instance, a number of bilateral or
multilateral treaties also authorise intervention in the territorial sea of another State
to fight armed robbery (for instance the ReCAAP treaty for South East AsiaRegional Cooperation Agreement on Combating Piracy and Armed Robbery against
Ships in Asia, Tokyo, 11 November 2004) or other crimes such as drug trafficking.
35
Establishing the existence of a practice by States is easy. Various States and
international organisations have conducted and are still conducting operations at sea,
using the authorisations granted by the Security Council or the consent of the
competent State (coastal or flag State). The example of anti-piracy operations off
the coast of Somalia is topical since it is one of the oldest cases. The practice has thus
started to consolidate. A great range of actors have or had been involved directly or
indirectly in counter-piracy operations in the area, including the European Union,
NATO,
36 the 151 Task force, the African Union, the SADC, the SHADE (Shared
Awareness and Deconfliction) group and individual States such as China, Russia,
India, Japan, the Republic of Korea and Iran. Similar practice is easily identifiable on
the high seas, with respect to the boarding and inspection of foreign ships.
However, identifying the opinio juris is much more delicate.
37 From a theoretical
point of view a single resolution of the Council cannot, in itself, exclude the
formation of opinio juris. But the psychological element is very difficult to establish
when the practice is based, precisely, on a resolution. Under these circumstances,
States and international organisations act on the premise that their practice will not
give rise to a customary rule and will not bind them in the future. Indeed, when they
have launched maritime operations to enforce sanctions, or to fight piracy or migrant
smuggling, the various actors involved have all made references to Security Council
resolutions as the legal basis for their action. For instance, NATO refers directly to
UNSC resolutions as the legal basis for it’s operation Allied Provider,
38 as well as
35 See Neri (2013), pp. 71 et seq.
36 NATO ended Operation Ocean Shield on 15 December 2016.
37 On the issue of identification of customary international law, see, among others: Scoville (2016);
Mohamad (2016); Baker (2016) or Blokker (2017).
38 See Final Communiqué, Meeting of the North Atlantic Council at the level of Foreign Ministers
held at NATO Headquarters, Brussels, 3 December 2008, para. 10: “As demonstrated by NATO’s
rapid deployment of Operation Allied Provider, we are greatly preoccupied by the rising incidence
of piracy off the Horn of Africa and are committed to assist in fighting this scourge, in full respect of
relevant United Nations Security Council resolutions. Accordingly, in response to requests by the
Secretary General of the United Nations, NATO and individual Allied nations’ naval forces are
providing a deterrent presence and are escorting World Food Programme-chartered vessels carrying
humanitarian aid to Somalia. NATO naval forces have also provided a maritime security presence
and escorted African Union-chartered vessels carrying logistical supplies for the African Union
Mission in Somalia (AMISOM). We welcome the EU’s upcoming ATALANTA operation. As
more actors engage in these important efforts, it is essential to ensure complementarity among them.
NATO stands ready to consider further requests for the use of Alliance naval assets to combat piracy
in this region”.
10 Security Council’s Contribution to the Evolution of the Law of the Sea: Avant. . .
187