{"id":4642,"date":"2015-10-07T10:34:56","date_gmt":"2015-10-07T14:34:56","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/nsj\/?p=4642"},"modified":"2015-10-30T10:15:30","modified_gmt":"2015-10-30T14:15:30","slug":"mediterranean-migrant-crisis","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2015\/10\/mediterranean-migrant-crisis\/","title":{"rendered":"The Mediterranean Migrant Crisis: Key Considerations for the UN Security Council"},"content":{"rendered":"

Brian Wilson*<\/em><\/p>\n

A PDF of this article is available here<\/a>.<\/p>\n

The worsening<\/a> migrant<\/a> crisis in the Mediterranean has been called the greatest humanitarian crisis of our time<\/a>. Thousands have perished on maritime transits occurring in overcrowded, unsafe boats, and the United Nations estimates that as many as 850,000 people<\/a> may attempt to cross the Mediterranean en route to Europe in 2015-2016. Until the complex land-based issues related to this crisis are resolved, naval assets will be called on to conduct boardings, rescues, and as appropriate, take law enforcement action. Unfortunately, there is no consensus regarding whether existing authorities, essentially the international legal framework, to address mass migration is sufficient, and if not, what action should be taken.<\/p>\n

International instruments that are relevant in response maritime operations include the UN Law of the Sea Convention, the Search and Rescue (SAR) Convention, the Salvage Convention, SOLAS, the UN Convention Against Transnational Organized Crime and its 2000 Protocol Against the Smuggling of Migrants by Land, Air, and Sea (Palermo Protocol), and a number of human rights treaties. Any amendment to these documents, for example, to explicitly distinguish between SAR and mass migration, develop procedures for disembarkation of migrants, or identify conditions when those in the private sector that conduct a rescue would enjoy legal immunity, would likely take years. To best position States conducting maritime operations on the water today, the United Nations Security Council is uniquely positioned to take immediate action.<\/p>\n

UN Security Council Resolutions provide innovative legal tools and a broader basis under international law to confront humanitarian and maritime security challenges, complementing land-based responses. At least 25 Security Council resolutions since 1966 have authorized the enforcement of embargoes, cargo verification, and boarding foreign flagged vessels on the high seas. There are limits, however, to Security Council action. Discussions in New York may very well center on whether proposals at the Security Council<\/a> to authorize interdictions within Libya\u2019s territorial sea, or on the high seas, will unintentionally undermine internationally recognized, time-honored law of the sea principles related to authorities of the coastal and flag state.<\/p>\n

The arcane issue of flag state authority may never dominate diplomatic headlines. Yet this area of international law represents a lynchpin to global trade, ensuring cargo moves quickly, efficiently, and without interference. Thus, under the law of the sea, a vessel on the high seas, even if operated by criminal smugglers, would generally only be subject to the jurisdiction of the country in which the ship is registered. That poses a significant obstacle to meaningfully conducting interdiction operations and holding those who commit illicit acts legally accountable. The UN Security Council has the ability to authorize boardings of foreign flagged vessels when such measures are necessary to maintain or restore international peace or security, but has judiciously employed such action over the past 50 years. While no one questions something must urgently be done to address the migrant crisis, securing agreement on next steps, particularly on the water, has proven difficult.<\/p>\n

Over the past five years, the frequency of resolutions with a maritime focus has dramatically increased. That is not bad thing. However, strict reliance on text adopted by the UN Security Council in the past year on maritime threats in Yemen and Somalia would be misplaced, as those resolutions include vague, imprecise text. These recent efforts are in contrast to Security Council resolutions spanning five decades that provided toolkits to address an array of threats in the maritime environment that include Hezbollah, North Korea, al Qaida, Iran, Al-Shabaab, and Somali piracy, but a lack of awareness regarding these authorities may limit their use during the next crisis.<\/p>\n

The Security Council has adopted resolutions that led to operational challenges of more than 12,000 ships<\/a> along with the pursuit of the German-flagged vessel, Hansi India<\/em>, transporting arms from Iran to Hezbollah in Lebanon, the North Korean-flagged freighter M\/V Kang Nam 1<\/em><\/a> believed to be carrying missile components, the Belize-flagged M\/V Light<\/em><\/a> suspected of shipping missile components and technology from a North Korean port, blockading and diverting Cyprus-flagged M\/V Vento Di Ponente<\/em><\/a> suspected of carrying proscribed arms and related material into Libya, and counter piracy operations on the high seas, in the Somali territorial sea, and on land<\/a>.<\/p>\n

When assessing options for the Mediterranean migration crisis, there are four general categories of maritime-focused Security Council resolutions:<\/p>\n