SECURITY COUNCIL RESPONSIBILITY FOR THREATS TO INTERNATIONAL PEACE

SECURITY COUNCIL RESPONSIBILITY FOR THREATS TO INTERNATIONAL PEACE AND SECURITY THE UNITED NATIONS CHARTER AND THE EU’S ROLE

MAIN TOPICS FOCUSING ON • THE SECURITY COUNCIL MANDATE (PART I) • CHAPTER VI: PACIFIC SETTLEMENT OF DISPUTES (PART II) • CHAPTER VII SC: ACTION WITH RESPECT TO THREATS OR BREACHES TO THE PEACE, AND ACTS OF AGGRESSION (PART III) • THE ROLE OF REGIONAL INSTITUTIONS (PART IV) • THE EU’S ROLE WITHIN THE SC COLLECTIVE SECURITY SYSTEM (PART V)

PART I. SC MANDATE 1. SECURITY COUNCIL (SC) (COMPOSED BY REPRESENTATIVES OF 15 MS) LIES AT THE CENTRE OF THE UN ARCHITECTURE – IT ENJOYS EXTENSIVE POWERS AND NAMELY THE PRIMARY RESPONSIBILITY FOR THE MAINTENANCE OF PEACE AND SECURITY ‘IN ORDER TO ENSURE PROMPT AND EFFECTIVE ACTION BY THE UNITED NATIONS, ITS MEMBERS CONFER ON THE SECURITY COUNCIL PRIMARY RESPONSIBILITY FOR THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY, AND AGREE THAT IN CARRYING OUT ITS DUTIES UNDER THIS RESPONSIBILITY THE SECURITY COUNCIL ACTS ON THEIR BEHALF’ (ART. 24. 1 UNC) THE FIRST PURPOSE OF THE UN CHARTER IS TO ‘MAINTAIN INTERNATIONAL PEACE AND SECURITY’ PROMOTING FRIENDLY RELATIONS AND COOPERATION AMONG NATIONS AS WELL

ART. 24. 1 IS LINKED TO THE OBLIGATION TO REFRAIN FROM THE USE OF FORCE → ‘ALL MEMBERS SHALL REFRAIN IN THEIR INTERNATIONAL RELATIONS FROM THE THREAT OR USE OF FORCE AGAINST THE TERRITORIAL INTEGRITY OR POLITICAL INDEPENDENCE OF ANY STATE, OR IN ANY OTHER MANNER INCONSISTENT WITH THE PURPOSES OF THE UNITED NATIONS’ (ART. 2. 4) ARGUING FROM ART. 2. 4, THIS PROHIBITION GOES BEYOND WAR TO ALL USE OF FORCE, WHETHER OR NOT IT IS ON A SCALE OR OF A NATURE TO BE REGARDED AS A WAR AND IT IS CONSIDERED NOWADAYS AS CUSTOMARY RULE, AND EVEN A IUS COGENS ONE, REGARDLESS OF THE APPLICATION OF THE SYSTEM OF

THIS PROHIBITION IS NOT ABSOLUTE SINCE THE CHARTER DOES NOT IMPAIR THE RIGHT OF SELF-DEFENCE (ART. 51) THE RIGHT OF SELF-DEFENCE IS A CONSEQUENCE OF A CLASSIC CONCEPT OF INTERNATIONAL LAW CHARACTERISED BY JUS AD BELLUM, I. E. THE RIGHT TO HAVE RECOURSE TO WAR, WHEREAS MODERN INTERNATIONAL LAW IS FOUNDED ON IUS CONTRA BELLUM (ART. 2. 4 UNC) THE EVOLUTION OF INT. LAW THROUGHOUT THE 20 TH CENTURY: - KELLOG-BRIAND PACT SIGNED IN 1928 - THE END OF THE FIRST WORLD WAR - THE CONSTITUTION OF THE LEAGUE OF NATIONS, WHOSE AIM WAS TO MAINTAIN PEACE THROUGH THE OBLIGATION NOT TO RESORT TO WAR (FIRST RECITAL AND ARTICLE 11)

2. BRINGING DISPUTES AND SITUATIONS TO THE ATTENTION OF THE SC - UN MEMBERS (ART. 35 PARA. 1) → PRACTICE: LETTERS TO THE PRESIDENT OF THE SC - STATES WHICH ARE NOT MEMBERS OF THE UN → CONDITION: DUTY TO ACCEPT IN ADVANCE THE OBLIGATION OF PACIFIC SETTLEMENT (ART. 35 PARA. 2)1 - GENERAL ASSEMBLY ‘MAY CALL THE ATTENTION OF THE SC TO SITUATIONS WHICH ARE LIKELY TO ENDANGER INTERNATIONAL PEACE AND SECURITY’ (ART. 11. 3) IS THERE A DIFFERENCE BETWEEN A ‘DISPUTE’ AND A ‘SITUATION’? AND IS IT NECESSARY TO DRAW A DIFFERENCE? IN BOTH CASES, SC ENJOYS THE POWER TO INTERVENE WHEN A MATTER HAS BEEN BROUGHT, THE SC MUST BE CONVENED (ART. 3 SC INTERNAL REGULATION)

3. SC GENERAL POWER TO INVESTIGATE (ART. 34) - ANY DISPUTE, OR ANY SITUATION WHICH MIGHT LEAD TO INTERNATIONAL FRICTION OR GIVE RISE TO A DISPUTE - THIS IS A GENERAL POWER OF INVESTIGATION CONFERRED TO THE SC EVEN AS REGARDS TO CHAPTER VII (THOUGH IT IS PROVIDED FOR UNDER CHAPTER VI ONLY) - THE DOMESTIC JURISDICTION LIMIT (ART. 2. 7) - THE PRACTICE OF THE SC BY FULFILLING THIS FUNCTION THROUGH SETTING UP AN AD HOC SUBSIDIARY ORGAN (COMMISSIONS, MILITARY OBSERVERS AND SO FORTH) - THE NATURE OF SC ACT: DECISION OR RECOMMENDATION ? IT IS INSTEAD AN OPERATIONAL ACT: THE PROBLEM IS WHETHER STATES ARE OBLIGED TO COLLABORATE WITH THE RELEVANT ORGAN; DOCTRINE IS DIVIDED

SHORTCOMINGS OF THE SC’S BASED SYSTEM : - IT IS FOUNDED ON THE CONSENT OF THE 5 STATES ENJOYING THE VETO POWER (ART. 23. 3) - SO IT LIES ON THE INSTITUTIONALISATION OF A ‘DIRECTOIRE DES GRANDS’ - EVEN ART. 51 (THE INHERENT RIGHT OF INDIVIDUAL OR COLLECTIVE SELF-DEFENCE) IS SOMEHOW A WEAKNESS IF THERE IS NO SETTLED AND COMMON NOTION OF SELF -DEFENCE

PART II. THE CONCILIATION POWERS OF THE SC PACIFIC SETTLEMENT OF DISPUTES (CHAPTER VI, ARTICLES 33 TO 38) BASIC PROVISION (ART. 33. 1): OBLIGATION FOR THE UN MEMBERS TO SOLVE DISPUTES THROUGH PACIFIC MEANS, I. E. - NEGOTIATION - ENQUIRY - MEDIATION - CONCILIATION - ARBITRATION - JUDICIAL SETTLEMENT - RESORT TO REGIONAL AGENCIES OR ARRANGEMENTS, OR - OTHER PEACEFUL MEANS OF THEIR OWN CHOICE

THE SCOPE OF SC MANDATE UNDER CHAPTER VI. IT MAY A) WHEN IT DEEMS NECESSARY, CALL UPON THE PARTIES TO SETTLE THEIR DISPUTE BY SUCH MEANS (ART. 33. 2) OR B) AT ANY STAGE OF A DISPUTE RECOMMEND APPROPRIATE PROCEDURES OR METHODS OF ADJUSTMENT (ART. 36. 1), WHILE TAKING INTO CONSIDERATION - ANY PROCEDURES FOR THE SETTLEMENT OF THE DISPUTE WHICH HAVE ALREADY BEEN ADOPTED BY THE PARTIES (ART. 36. 2), - AND IN PARTICULAR THE NEED TO DEFER THE DISPUTE TO THE INTERNATIONAL COURT OF JUSTICE IN ACCORDANCE WITH THE PROVISIONS OF THE STATUTE OF THE COURT (ART. 36. 3) C) AS THE SC PRACTICE SHOWS, EVEN CREATE SUBSIDIARY ORGANS ACCORDING TO ART. 29 (EG A COMMISSION OF CONCILIATION, MEDIATION, INQUIRY AND SO ON), SO AS TO RECOMMEND A SPECIFIC MEANS

CONCILIATORY NATURE OF THIS POWER, SINCE THE SC MAY ONLY HAVE RECOURSE TO ’RECOMMENDATIONS’, WHICH ARE NOT BINDING ONCE THE CHARTER WAS INTERPRETED AND APPLIED AS IF THE SC COULD ONLY ENCOURAGE THE PARTIES TO SOLVE THE DISPUTE PEACEFULLY HOWEVER, RECENT PRACTICE SHOWS THAT IT CAN ALSO INDICATE THE SOLUTION OF THE DISPUTE STILL SUCH AN INDICATION IS ONLY RECOMMENDED

THIS HOLDS TRUE EVEN IF THE SC INDICATES THE ‘TERMS OF SETTLEMENT OF THE DISPUTE’ →PROVIDED THAT ONE OF THE PARTIES HAS REFERRED THE CASE TO THE SC (ART. 37. 1) ‘IF THE SECURITY COUNCIL DEEMS THAT THE CONTINUANCE OF THE DISPUTE IS IN FACT LIKELY TO ENDANGER THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY, IT SHALL DECIDE WHETHER TO TAKE ACTION UNDER ARTICLE 36 OR TO RECOMMEND SUCH TERMS OF SETTLEMENT AS IT MAY CONSIDER APPROPRIATE’ (ART. 37. 2). SO THE SC MAY: - PROPOSE SOLUTIONS OF THE CASE, - CONDEMN ONE OF THE PARTIES TO THE DISPUTES, - SUGGEST ANY MEANS IN THE INTEREST OF THE PEACE, ETC

PART III. SC ACTIONS UNDER CHAPTER VII THIS CHAPTER CONCERNS THE MOST IMPORTANT POWERS CONFERRED TO THE SC. IT MAY a) INTERVENE IN THE DOMESTIC JURISDICTION OF MS b) AS PRACTICE SHOWS, ADOPT MEASURES WHICH GOES BEYOND THOSE SET OUT IN CHAPTER VII → QUITE A WIDE MARGIN OF APPRECIATION, WHENEVER THE SC DECIDES THAT A GIVEN SITUATION IS LIKELY TO ENDANGER THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY OR THERE IS AN ACT OF AGGRESSION UN ACTIVITY HAS BEEN FURTHER INSTITUTIONALISED WITH THE CREATION OF THE PEACEBUILDING COMMISSION (2005), BY THE SC AND THE GA. JOINT AUXILIARY ORGAN IN WHICH 31 MS ARE REPRESENTED ITS MEETINGS ARE CONVENED ON A SINGLE ‘COUNTRY-SPECIFIC’ BASE

ASCERTAINING A THREAT TO PEACE AS ART. 39 POINTS OUT, CHAP. VII APPLIES WHEN THE SC DETERMINES ‘THE EXISTENCE OF ANY THREAT TO THE PEACE, BREACH OF THE PEACE, OR ACT OF AGGRESSION’ DISCRETIONARY POWERS ACCORDED TO THE SC, NAMELY AS REGARDS THE NOTION OF ‘THREAT TO PEACE’ THAT IS QUITE VAGUE → SEE PIRACY, NUCLEAR POWERS BY IRAN AND NORTH COREA CASES SC HAS SELDOM ASCERTAINED A VIOLATION OF PEACE (EG. CASE FALKLAND 1982; GULF WAR 1990) DEFINITION OF AGGRESSION, UNGA RESOLUTION 3314 (1974) → ‘AGGRESSION IS THE USE OF ARMED FORCE BY A STATE AGAINST THE SOVEREIGNTY, TERRITORIAL INTEGRITY OR POLITICAL INDEPENDENCE OF ANOTHER STATE, OR IN ANY OTHER MANNER INCONSISTENT WITH THE CHARTER OF THE UNITED NATIONS, AS SET OUT IN THIS DEFINITION’ RESOLUTION INCLUDES SEVERAL EXAMPLES OF AGGRESSION - LIST NOT EXHAUSTIVE AND NOT PREJUDGING THE SC POWERS (SEE ART. 4)

NO MORE DIFFERENCE BETWEEN INTERNATIONAL WARS AND CIVIL WARS, BOTH MAY BE CONSIDERED A THREAT TO PEACE ‘DOMESTIC JURISDICTION’ LIMIT IS NOT APPLICABLE MS ARE OBLIGED TO ‘REFRAIN IN THEIR INTERNATIONAL RELATIONS FROM THE THREAT OR USE OF FORCE AGAINST THE TERRITORIAL INTEGRITY OR POLITICAL INDEPENDENCE OF ANY STATE’ (ART. 2. 4) SO, THE SC DISCRETION ENJOYS NO LIMIT? THERE ARE SOME : - THE RIGHT OF INDIVIDUAL OR COLLECTIVE SELF-DEFENCE (ART. 51): THE SC MAY NOT INTERVENE AGAINST A STATE WHICH EXERCISES THIS ‘INHERENT RIGHT’. - IT IS DISPUTABLE THAT THIS RIGHT INCLUDES THE SO-CALLED PREVENTIVE SELFDEFENCE (BUSH DOCTRINE 2002, WHICH HAS BEEN DISMISSED BY THE USA IN 2010; ACCORDING TO THE OBAMA GOVERNMENT (2016) INTERNATIONAL LAW DOES NOT PROHIBIT THE USE OF FORCE IN THREE SITUATIONS: 1 SC AUTHORIZATION UNDER CHAPTER VII; 2 SELF-DEFENCE; 3 CONSENT OF THE TERRITORIAL STATE

- IT IS ALSO DISPUTABLE THAT THE RIGHT TO SELF-DEFENCE ENTAILS THE RIGHT TO HUMANITARIAN INTERVENTIONS (NATO BOMBINGS IN THE FORMER YUGOSLAVIA DURING KOSOVO CRISIS 1999) - THERE IS NO CERTAINTY EVEN ABOUT THE USE OF FORCE AGAINST A STATE FOR REACTING TO TERRORISM - IT HAS BEEN SUGGESTED THAT GIVEN THE WIDE DISCRETION CONFERRED TO THE SC, A LIMIT TO IT IS PROVIDED BY THE GENERAL REACTION OF INTERNATIONAL COMMUNITY AS A WHOLE SINCE THE SC ACTS ON THEIR BEHALF (REMEMBER: ‘IN ORDER TO ENSURE PROMPT AND EFFECTIVE ACTION BY THE UNITED NATIONS, ITS MEMBERS CONFER ON THE SECURITY COUNCIL PRIMARY RESPONSIBILITY FOR THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY, AND AGREE THAT IN CARRYING OUT ITS DUTIES UNDER THIS RESPONSIBILITY THE SECURITY COUNCIL ACTS ON THEIR BEHALF’, ART. 24. 1)

- IS THE SC ACTIVITY UNDER CHAPTER VII BOUND BY CUSTOMARY INTERNATIONAL LAW? - NEGATIVE ANSWER BY SOME AUTHORS → EG SC ECONOMIC EMBARGOS USUALLY IMPLY DEROGATIONS AND VIOLATIONS OF COMMERCIAL TREATIES - POSITIVE ANSWER IF ONE CONSIDERS THE MAIN PURPOSE OF THE UN CHARTER, ‘TO MAINTAIN INTERNATIONAL PEACE AND SECURITY, AND TO THAT END: TO TAKE EFFECTIVE COLLECTIVE MEASURES FOR THE PREVENTION AND REMOVAL OF THREATS TO THE PEACE, AND FOR THE SUPPRESSION OF ACTS OF AGGRESSION OR OTHER BREACHES OF THE PEACE, AND TO BRING ABOUT BY PEACEFUL MEANS, AND IN CONFORMITY WITH THE PRINCIPLES OF JUSTICE AND INTERNATIONAL LAW, ADJUSTMENT OR SETTLEMENT OF INTERNATIONAL DISPUTES OR SITUATIONS WHICH MIGHT LEAD TO A BREACH OF THE PEACE’ (ART. 1. 1)

WHAT ABOUT IUS COGENS (ART. 53 VIENNA CONVENTION) ? THE USE OF FORCE IS PROHIBITED AND IT IS A IUS COGENS PROVISION CHAPTER VII ALLOWS THE SC TO SUPERSEDE THIS PROVISION HOWEVER A COMBINATION OF LIMITS MAY BE ENVISAGED : 1) SC CANNOT GO BEYOND THE POWERS CONFERRED TO IT BY THE CHARTER; 2) HUMAN RIGHTS COMING FROM GENERAL INTERNATIONAL LAW → SEE THE SC PRACTICE AS REGARDS ECONOMIC SANCTIONS AND THE PRACTICE OF INDIVIDUAL LISTING

ECJ KADI RULINGS (C-415/05 2008 AND C-584/10 2013), AND ABDULRAHIM C-239/12 (2013) ‘IT IS TO BE BORNE IN MIND THAT RESTRICTIVE MEASURES ADOPTED UNDER REGULATION NO 881/2002 HAVE SUBSTANTIAL NEGATIVE CONSEQUENCES AND A CONSIDERABLE IMPACT ON THE RIGHTS AND FREEDOMS OF THE PERSONS COVERED (SEE, TO THAT EFFECT, JOINED CASES C‑ 402/05 P AND C‑ 415/05 P KADI AND AL BARAKAAT INTERNATIONAL FOUNDATION V COUNCIL AND COMMISSION [2008] ECR I‑ 6351, PARAGRAPHS 361 AND 375). APART FROM THE FREEZING OF FUNDS AS SUCH WHICH, THROUGH ITS BROAD SCOPE, SERIOUSLY DISRUPTS BOTH THE WORKING AND THE FAMILY LIFE OF THE PERSONS COVERED (SEE, INTER ALIA, CASE C‑ 340/08 M AND OTHERS [2010] ECR I‑ 3913) AND IMPEDES THE CONCLUSION OF NUMEROUS LEGAL ACTS (SEE, INTER ALIA, CASE C‑ 117/06 MÖLLENDORF AND MÖLLENDORFNIEHUUS [2007] ECR I‑ 8361), ACCOUNT MUST BE TAKEN OF THE OPPROBRIUM AND SUSPICION THAT ACCOMPANY THE PUBLIC DESIGNATION OF THE PERSONS

RECOMMENDATIONS UNDER ARTICLE 39: ‘THE SECURITY COUNCIL SHALL DETERMINE THE EXISTENCE OF ANY THREAT TO THE PEACE, BREACH OF THE PEACE, OR ACT OF AGGRESSION AND SHALL MAKE RECOMMENDATIONS, OR DECIDE WHAT MEASURES SHALL BE TAKEN IN ACCORDANCE WITH ARTICLES 41 AND 42, TO MAINTAIN OR RESTORE INTERNATIONAL PEACE AND SECURITY’ - DISTINCTION BETWEEN DECISIONS TAKEN UNDER CHAP. VI AND THOSE TAKEN UNDER CHAP. VII: SINCE THE SC FACING A THREAT TO PEACE MAY INTERVENE BOTH UNDER CHAPTER VI (EXERTING CONCILIATORY FUNCTIONS) AND CHAPTER VII - UNDER ARTICLE 39, THE ASCERTAINMENT OF A THREAT TO PEACE, THE ACT IS THE SAME - A DISTINCTION MUST BE DRAWN IF A GIVEN ACT DOES NOT SHOW ITS LEGAL BASIS → A CASE BY CASE BASIS, TAKING INTO ACCOUNT THE CONTENT OF THE ACT

PROVISIONAL MEASURES UNDER ART. 40: ‘IN ORDER TO PREVENT AN AGGRAVATION OF THE SITUATION, THE SECURITY COUNCIL MAY, BEFORE MAKING THE RECOMMENDATIONS OR DECIDING UPON THE MEASURES PROVIDED FOR IN ARTICLE 39, CALL UPON THE PARTIES CONCERNED TO COMPLY WITH SUCH PROVISIONAL MEASURES AS IT DEEMS NECESSARY OR DESIRABLE. SUCH PROVISIONAL MEASURES SHALL BE WITHOUT PREJUDICE TO THE RIGHTS, CLAIMS, OR POSITION OF THE PARTIES CONCERNED. THE SECURITY COUNCIL SHALL DULY TAKE ACCOUNT OF FAILURE TO COMPLY WITH SUCH PROVISIONAL MEASURES’ PROVISIONAL IN THE SENSE THAT THEY AIM AT PREVENTING THE WORSENING OF THE SITUATION YET THEY ARE RECOMMENDATIONS → THE SC ‘CALL UPON THE PARTIES CONCERNED’ (ART. 40), AND ART. 39 REFERS THE TERM DECISION ONLY TO MEASURES ADOPTED UNDER ARTICLE 41 AND 42 (‘DECIDE WHAT MEASURES SHALL BE TAKEN IN ACCORDANCE WITH ARTICLES 41 AND 42’) TYPICAL PROVISIONAL MEASURE: CEASE FIRE

MEASURES NOT INVOLVING THE USE OF ARMED FORCE THESE MEASURES SET OUT IN ART. 41, ALONG WITH ART. 42 MEASURES, ARE THE MOST STRIKING INNOVATION WITH RESPECT TO THE LEAGUE OF NATIONS COVENANT ‘THE SECURITY COUNCIL MAY DECIDE WHAT MEASURES NOT INVOLVING THE USE OF ARMED FORCE ARE TO BE EMPLOYED TO GIVE EFFECT TO ITS DECISIONS, AND IT MAY CALL UPON THE MEMBERS OF THE UNITED NATIONS TO APPLY SUCH MEASURES. THESE MAY INCLUDE COMPLETE OR PARTIAL INTERRUPTION OF ECONOMIC RELATIONS AND OF RAIL, SEA, AIR, POSTAL, TELEGRAPHIC, RADIO, AND OTHER MEANS OF COMMUNICATION, AND THE SEVERANCE OF DIPLOMATIC RELATIONS’ (ART. 41) SANCTIONING NATURE OF SUCH MEASURES → AGAINST A STATE RESPONSIBLE FOR VIOLATING INTERNATIONAL PEACE AND SECURITY

SC DECISION → IT IS BINDING FOR MS (SEE ART. 39 → THE SC SHALL ‘DECIDE WHAT MEASURES SHALL BE TAKEN IN ACCORDANCE WITH ARTICLES 41 AND 42, TO MAINTAIN OR RESTORE INTERNATIONAL PEACE AND SECURITY’) REGARDLESS OF THE FACT THAT IT SAYS ‘CALLS UPON’ ICJ OPINION ON KOSOVO UNILATERAL DECLARATION OF INDEPENDENCE (2010) ‘WITHIN THE LEGAL FRAMEWORK OF THE UNITED NATIONS CHARTER, NOTABLY ON THE BASIS OF ARTICLES 24, 25 AND CHAPTER VII THEREOF, THE SECURITY COUNCIL MAY ADOPT RESOLUTIONS IMPOSING OBLIGATIONS UNDER INTERNATIONAL LAW. THE COURT HAS HAD THE OCCASION TO INTERPRET AND APPLY SUCH SECURITY COUNCIL RESOLUTIONS ON A NUMBER OF OCCASIONS AND HAS CONSISTENTLY TREATED THEM AS PART OF THE FRAMEWORK OF OBLIGATIONS UNDER INTERNATIONAL LAW … RESOLUTION 1244 (1999) WAS EXPRESSLY ADOPTED BY THE SECURITY COUNCIL ON THE BASIS OF CHAPTER VII OF THE UNITED NATIONS CHARTER, AND THEREFORE CLEARLY IMPOSES INTERNATIONAL LEGAL OBLIGATIONS’ (PARA. 85)

THE LIST IS NOT EXHAUSTIVE (SEE TRAVAUX PREPARATOIRE AND TADIC RULING 1995, ILM 1996, PARA. 35) – ARMS EMBARGOS, LIST OF INDIVIDUALS WHO ARE LINKED TO A REGIME ART. 41 DEALS WITH SANCTIONS AND ITS SCOPE MAY NOT GO BEYOND MEASURES IMPLYING THE USE OF FORCE EXAMPLE OF RECENT PRACTICE: RESOLUTION N. 2118 (2013) AGAINST SYRIA THE COUNCIL DETERMINED THAT THE USE OF CHEMICAL WEAPONS ANYWHERE CONSTITUTED A THREAT TO INTERNATIONAL PEACE AND SECURITY, AND CALLED FOR THE FULL IMPLEMENTATION OF THE 27 SEPTEMBER DECISION OF THE ORGANISATION FOR THE PROHIBITION OF CHEMICAL WEAPONS (OPCW), WHICH CONTAINS SPECIAL PROCEDURES FOR THE EXPEDITIOUS AND VERIFIABLE DESTRUCTION OF SYRIA’S CHEMICAL WEAPONS. SPECIFICALLY, THE COUNCIL PROHIBITED SYRIA FROM USING, DEVELOPING, PRODUCING, OTHERWISE ACQUIRING, STOCKPILING OR RETAINING CHEMICAL WEAPONS, OR TRANSFERRING THEM TO OTHER STATES OR NON-STATE ACTORS, AND UNDERSCORED ALSO THAT NO PARTY IN SYRIA SHOULD USE, DEVELOP, PRODUCE, ACQUIRE, STOCKPILE, RETAIN OR TRANSFER SUCH WEAPONS YET, OTHER RESOLUTIONS HAVE BEEN VETOED BY RUSSIA

DOES THE SC ENJOY A GLOBAL POWER TO LEGISLATE UNDER ART. 41, SO AS NOT TO REFER TO A SPECIFIC SITUATION ? SEE EG RESOLUTIONS AGAINST TERRORISM N. 1373 (2001) AND 1540 (2004) SCHOLARS OPINIONS AND MS REACTIONS ARE DIVIDED THE MAIN ARGUMENT AGAINST THIS LIES ON THE FACT THAT THE SC POWERS ARE LIMITED TO SPECIFIC SITUATIONS ACCORDING TO THE CHARTER MAY MS DISOBEY THE SC RESOLUTIONS? SOMETIMES MS DO NOT COMPLY WITH THEM (INGENIOUS AND LUCRATIVE SCHEMES TO EVADE SANCTIONS) → DOUBTS ABOUT REAL EFFECTIVENESS OF ECONOMIC SANCTIONS UNSC HAS RECENTLY SET UP SPECIAL COMMITTEES TO SUPERVISE THE APPLICATION OF SANCTIONS, SO AS TO PREVENT THE PEOPLES CONCERNED, AND THEIR BASIC HUMAN RIGHTS, TO BE NEGATIVELY AFFECTED BY THE SANCTION → EXEMPTIONS AS REGARDS PHARMACEUTICALS

PRACTICE OF SANCTIONS THE SC ACTS UNDER CHAPTER VII WHEN IT IMPOSES MANDATORY SANCTIONS, SUCH AS TRADE EMBARGOES (ART. 41), WHILE NO-FLY ZONES ARE SANCTIONS WHICH MAY IMPLY THE USE OF FORCE (ART. 42) STRICTLY SPEAKING, ECONOMIC SANCTIONS MEAN IMPOSING RESTRICTIONS ON IMPORTS OR EXPORTS, AND TRAVEL BANS ON NAMED INDIVIDUALS, AND ASSET FREEZE CONCERNING PROPERTY (BANK ACCOUNTS BELONGING TO THE WRONGDOING STATE) LOCATED WITHIN THE JURISDICTION OF THE MS TAKING THE SANCTIONS. THEY ARE PER SE ILLEGAL, BUT THEY BECOME LEGAL AS LONG AS THEY ARE MANDATED BY THE SC SANCTIONS ARE OFTEN CRITICISED AS BLUNT INSTRUMENTS THAT HURT THE POOR AND THE WEAK THAN THE REGIME GOVERNING THE WRONGDOING STATE. SMART SANCTIONS ARE SUPPOSED TO BE THOSE AIMED AT STRATEGIC INDUSTRIES AND TRANSACTIONS

MEASURES IMPLYING THE USE OF FORCE (ART. 42) ‘SHOULD THE SECURITY COUNCIL CONSIDER THAT MEASURES PROVIDED FOR IN ARTICLE 41 WOULD BE INADEQUATE OR HAVE PROVED TO BE INADEQUATE, IT MAY TAKE SUCH ACTION BY AIR, SEA, OR LAND FORCES AS MAY BE NECESSARY TO MAINTAIN OR RESTORE INTERNATIONAL PEACE AND SECURITY. SUCH ACTION MAY INCLUDE DEMONSTRATIONS, BLOCKADE, AND OTHER OPERATIONS BY AIR, SEA, OR LAND FORCES OF MEMBERS OF THE UNITED NATIONS’ (ART. 42) DIRECT ACTION OF THE SC - OPERATIONAL NATURE OF THESE KIND OF DECISIONS SINCE ARTICLES 43, 44 AND 45 HAVE NEVER BEEN APPLIED THE SC HAS ACTED IN TWO WAYS 1) PEACE KEEPING OPERATIONS, CREATING UN FORCES ON A CASE BY CASE BASIS (CURRENTLY ABOUT 16 MISSIONS ARE ONGOING, AND 124 MS ARE INVOLVED) 2) AUTHORIZING MS TO USE ARMED FORCE

1) PEACE KEEPING OPERATIONS (PKO), DEPLOYING FORCES WHICH DO NOT FIGHT AGAINST ONE SIDE IN A CONFLICT, BUT RATHER ACT AS A BUFFER BETWEEN THE TWO WARRING SIDES, AND WHICH REMAIN IN PLACE ONLY SO LONG AS THE STATE ON WHOSE TERRITORY ARE STATIONED CONSENT FIRST GENERATION PKO ADOPTED BY THE GA (NECESSITY OF THE CONSENT OF THE LOCAL STATE; USE OF FORCE LIMITED TO SELF-DEFENCE) SECOND GENERATION PKO (AFTER 1989) → SOCIAL AND CIVIL MISSIONS, TAKING CARE OF REFUGEES AND HUMANITARIAN ASSISTANCE THIRD GENERATION PKO → MISSIONS OF PEACE ENFORCEMENT, IE IMPOSING PEACE THROUGH TO THE USE OF ARMED FORCE – THEY DO NOT REQUIRE THE NEUTRALITY OF THE MISSION, AND THE CONSENT OF THE TERRITORIAL STATE

NORMATIVE RESOLUTIONS ADOPTED BY THE SC SC RESOLUTION N 1327 (2000) • REAFFIRMED ITS DETERMINATION TO STRENGTHEN UN PKO • STRESSED THAT PKO SHOULD STRICTLY OBSERVE THE PURPOSES AND PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS, AND NAMELY THE RULES AND PRINCIPLES OF INTERNATIONAL LAW, IN PARTICULAR INTERNATIONAL HUMANITARIAN, HUMAN RIGHTS AND REFUGEE LAW (ANNEX I) SC RESOLUTION N 1353 (2001) ON STRENGTHENING PARTNERSHIP WITH TROOPCONTRIBUTING STATES CONTAINS SERIES OF RECOMMENDATIONS AIMED AT STRENGTHENING COOPERATION WITH TROOP-CONTRIBUTING COUNTRIES AND THE SECRETARIAT IN THE AREA OF PKO

SC RESOLUTION N 2086 (2013) ENDORSED IMPORTANCE OF ‘MULTIDIMENSIONAL’ APPROACH TO PEACEKEEPING AIMED AT FACILITATING PEACEBUILDING, PREVENTING RELAPSE INTO CONFLICT MULTIDIMENSIONAL PEACEKEEPING MUST ENSURE COHERENCE BETWEEN PEACEMAKING, PEACEKEEPING, PEACEBUILDING AND DEVELOPMENT IN ORDER TO RESPOND EFFECTIVELY TO POST-CONFLICT SITUATIONS FROM THE OUTSET. IT ALSO HIGHLIGHTED THAT THE APPROACH BROUGHT COMPARATIVE ADVANTAGES IN EARLY PEACEBUILDING, INCLUDING BY DRAWING STRENGTH FROM INTERNATIONAL LEGITIMACY AND POLITICAL LEVERAGE DERIVED FROM A COUNCIL MANDATE, AND USING A MIX OF CIVILIAN, POLICE, AND MILITARY CAPABILITIES UNDER A UNIFIED LEADERSHIP. MISSIONS MANDATED TO ASSIST NATIONAL SECURITY SECTOR FRAMEWORKS, SUPPORT THE STRENGTHENING OF RULE OF LAW INSTITUTIONS IN THE HOST COUNTRY, AS WELL AS PEACE CONSOLIDATION AND INCLUSIVE POLITICAL PROCESSES, AND, AMONG OTHERS, PROTECT CIVILIANS, PARTICULARLY THOSE UNDER IMMINENT THREAT OF PHYSICAL VIOLENCE, WHILE RECOGNIZING THAT WAS THE PRIMARY

SC RESOLUTION N 2185 (2014) THE SC URGED MS AND INTERNATIONAL PARTNERS TO SUPPORT, ON REQUEST, HOSTSTATE EFFORTS TO PROFESSIONALIZE THE LAW ENFORCEMENT SECTOR AND TO ENSURE THAT INTERNATIONAL POLICING SUPPORT TO THOSE EFFORTS WAS WELL COORDINATED WITH PLANS NATIONALLY AGREED UPON THROUGH INCLUSIVE PROCESSES. WHILE ‘REAFFIRMING THAT RESPECT FOR THE BASIC PRINCIPLES OF PEACEKEEPING, INCLUDING CONSENT OF THE PARTIES, IMPARTIALITY, AND NON-USE OF FORCE, EXCEPT IN SELF-DEFENCE AND DEFENCE OF THE MANDATE, IS ESSENTIAL TO THE SUCCESS OF PEACEKEEPING OPERATIONS’ ’NOTED THE IMPORTANT ROLE THAT UN POLICE COMPONENTS CAN PLAY, WHERE MANDATED, IN STRENGTHENING THE RULE OF LAW IN CONFLICT AND POST-CONFLICT SITUATIONS, BY INTER ALIA, PROVIDING OPERATIONAL SUPPORT TO HOST STATE POLICING AND OTHER LAW ENFORCEMENT INSTITUTIONS, AND SUPPORTING THE REFORM, RESTRUCTURING AND REBUILDING OF SUCH INSTITUTIONS INCLUDING THROUGH TECHNICAL ASSISTANCE, CO-LOCATION, TRAINING AND MENTORING

LEGALITY OF PKO THERE IS NO EXPLICIT LEGAL BASIS → SPECIAL CUSTOMARY RULE HAS COMPLEMENTED THE UN CHARTER INTERNATIONAL RESPONSIBILITY FOR PKO CONDUCTS PEACE KEEPERS ARE ORGANS OF THE UN → AS A RESULT, UN BEARS RESPONSIBILITY FOR THEIR WRONGDOING HOWEVER, MANY SCHOLARS POINT OUT THAT EVEN STATES HAVE RESPONSIBILITY IF THEY HAVE A DE FACTO CONTROL ON PEACE KEEPERS

2) AUTHORIZATION TO THE USE OF FORCE US-LED COALITION TO TAKE ACTIONS AGAINST NORTH KOREA FOLLOWING THE INVASION OF SOUTH KOREA IN 1950, AND AGAINST IRAQ FOLLOWING THE INVASION OF KUWAIT IN 1990, AND MORE RECENTLY RESOLUTION 1816 (2008) CONDAMNED ACTS OF PIRACY, ARMED ROBBERY OFF SOMALIA’S COAST, AND AUTHORIZED FOR SIX MONTHS ‘ALL NECESSARY MEANS’ TO REPRESS SUCH ACTS. MS COULD • (A) ENTER THE TERRITORIAL WATERS OF SOMALIA FOR THE PURPOSE OF REPRESSING ACTS OF PIRACY AND ARMED ROBBERY AT SEA, IN A MANNER CONSISTENT WITH SUCH ACTION PERMITTED ON THE HIGH SEAS WITH RESPECT TO PIRACY UNDER RELEVANT INTERNATIONAL LAW; AND • (B) USE, WITHIN THE TERRITORIAL WATERS OF SOMALIA, IN A MANNER CONSISTENT WITH ACTION PERMITTED ON THE HIGH SEAS WITH RESPECT TO PIRACY UNDER RELEVANT INTERNATIONAL LAW, ALL NECESSARY MEANS TO REPRESS ACTS OF PIRACY AND ARMED ROBBERY; • IT IS WORTH NOTING THAT THIS AUTHORIZATION WAS BASED ON THE “TAKING NOTE OF THE SECRETARY-GENERAL’S LETTER OF 9 NOVEMBER 2007 TO THE PRESIDENT OF THE SECURITY COUNCIL REPORTING THAT THE TRANSITIONAL FEDERAL GOVERNMENT

SOMETIMES, THE SC HAS AUTHORIZED NAVAL BLOCKADES, AND FIGHT AGAINST OF SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS SC RESOLUTION 2216 (2015) AUTHORIZING MS TO INTERCEPT VESSELS OFF LIBYAN COAST SUSPECTED OF MIGRANT SMUGGLING • “ 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;

• “ 8. DECIDES TO AUTHORISE FOR A PERIOD OF ONE YEAR FROM THE DATE OF THE ADOPTION OF THIS RESOLUTION, MEMBER STATES ACTING NATIONALLY OR THROUGH REGIONAL ORGANISATIONS TO SEIZE VESSELS INSPECTED UNDER THE AUTHORITY OF PARAGRAPH 7 THAT ARE CONFIRMED AS BEING USED FOR MIGRANT SMUGGLING OR HUMAN TRAFFICKING FROM LIBYA, AND UNDERSCORES THAT FURTHER ACTION WITH REGARD TO SUCH VESSELS INSPECTED UNDER THE AUTHORITY OF PARAGRAPH 7, INCLUDING DISPOSAL, WILL BE TAKEN IN ACCORDANCE WITH APPLICABLE INTERNATIONAL LAW WITH DUE CONSIDERATION OF THE INTERESTS OF ANY THIRD PARTIES WHO HAVE ACTED IN GOOD FAITH; • “ 10. DECIDES TO AUTHORISE MEMBER STATES ACTING NATIONALLY OR THROUGH REGIONAL ORGANISATIONS TO USE ALL MEASURES COMMENSURATE TO THE SPECIFIC CIRCUMSTANCES IN CONFRONTING MIGRANT SMUGGLERS OR HUMAN TRAFFICKERS IN CARRYING OUT ACTIVITIES UNDER PARAGRAPHS 7 AND 8 AND IN FULL COMPLIANCE WITH INTERNATIONAL HUMAN RIGHTS LAW, AS APPLICABLE, UNDERSCORES THAT THE AUTHORIZATIONS IN PARAGRAPH 7 AND 8 DO NOT APPLY WITH RESPECT TO VESSELS ENTITLED TO SOVEREIGN IMMUNITY UNDER INTERNATIONAL LAW, AND CALLS UPON MEMBER STATES AND REGIONAL ORGANISATIONS CARRYING OUT ACTIVITIES UNDER PARAGRAPHS 7, 8 AND THIS PARAGRAPH, TO PROVIDE FOR THE SAFETY OF

NO LEGAL BASIS FOR AUTHORIZING MS TO USING ARMED FORCE HOWEVER CHAPTER VIII REFERS TO REGIONAL ORGANIZATIONS, BY SAYING THAT THE SC MAY AUTHORIZE THEM QUESTING THE LEGITIMACY OF AUTHORIZATIONS UNDER CHAPTER VII - A SPECIAL CUSTOMARY RULE COMPLEMENTING CHAPTER VII? YES PROVIDED THAT THE SC KEEPS CONTROL OF THE SITUATION, AND THAT THE AUTHORIZATION IS EXPLICITLY GIVEN - → THE KOSOVO CRISIS AFTER THE NATO BOMBING IN 1999 – SC AUTHORIZED UNIMIK MISSION CONCERNING THE PROVISIONAL ADMINISTRATION OF KOSOVO. YET THE RELEVANT RESOLUTION DID NOT CONTAIN ANY AUTHORIZATION EX POST OF THE USE OF FORCE BY NATO

UN ADMINISTRATION OF TERRITORIES KIND OF MEASURES TAKEN UNDER CHAPTER VII IN SOME FAILED STATES, AFTER CIVIL WARS IN POST-CONFLICT PEACE-BUILDING SITUATIONS AND MEANWHILE ASSUMING GOVERNMENTAL FUNCTIONS IN THE TERRITORIES CONCERNED (EG BOSNIA-HERZEGOVINA, TIMOR EST-UNTAET, KOSOVO-UNMIK) UNMIK → RESOLUTION 1244 (1999) UNTAET → RESOLUTION 1272 (1999) - NEITHER CHAPTER XII (INTERNATIONAL TRUSTEESHIP SYSTEM), NOR ART. 75 (‘THE UNITED NATIONS SHALL ESTABLISH UNDER ITS AUTHORITY AN INTERNATIONAL TRUSTEESHIP SYSTEM FOR THE ADMINISTRATION AND SUPERVISION OF SUCH TERRITORIES AS MAY BE PLACED THEREUNDER BY SUBSEQUENT INDIVIDUAL AGREEMENTS’) ARE SOUND LEGAL BASIS, GIVEN THAT SC ACTED UNDER CHAPTER VII - ACCORDING TO SOME, ART. 41 IS A CONVINCING THEORY - AD HOC CUSTOMARY RULE, COMPLETING THE CUSTOMARY RULE ON THE LEGITIMACY OF PKO

PART IV AUTHORIZING REGIONAL ORGANIZATIONS CHAPTER VIII, AUTHORIZATION EX ART. 53. 1 ‘THE SECURITY COUNCIL SHALL, WHERE APPROPRIATE, UTILIZE SUCH REGIONAL ARRANGEMENTS OR AGENCIES FOR ENFORCEMENT ACTION UNDER ITS AUTHORITY. BUT NO ENFORCEMENT ACTION SHALL BE TAKEN UNDER REGIONAL ARRANGEMENTS OR BY REGIONAL AGENCIES WITHOUT THE AUTHORIZATION OF THE SECURITY COUNCIL, WITH THE EXCEPTION OF MEASURES AGAINST ANY ENEMY STATE, AS DEFINED IN PARAGRAPH 2 OF THIS ARTICLE, PROVIDED FOR PURSUANT TO ARTICLE 107 OR IN REGIONAL ARRANGEMENTS DIRECTED AGAINST RENEWAL OF AGGRESSIVE POLICY ON THE PART OF ANY SUCH STATE, UNTIL SUCH TIME AS THE ORGANIZATION MAY, ON REQUEST OF THE GOVERNMENTS CONCERNED, BE CHARGED WITH THE RESPONSIBILITY FOR PREVENTING FURTHER AGGRESSION BY SUCH A STATE’ THE EXCEPTION MUST BE READ IN COMBINATION WITH ART. 51

MOREOVER, UNDER CHAPTER VIII IS THE SC OBLIGED TO DEFER SITUATIONS CAPABLE TO THREAT INTERNATIONAL PEACE TO RO? TAKE NOTE THAT ‘THE SECURITY COUNCIL SHALL ENCOURAGE THE DEVELOPMENT OF PACIFIC SETTLEMENT OF LOCAL DISPUTES THROUGH SUCH REGIONAL ARRANGEMENTS OR BY SUCH REGIONAL AGENCIES EITHER ON THE INITIATIVE OF THE STATES CONCERNED OR BY REFERENCE FROM THE SECURITY COUNCIL’ (ART. 52. 3) DIFFERENT INTERPRETATION OF THIS CLAUSE. ICJ HELD THAT ‘ALL REGIONAL, BILATERAL, AND EVEN MULTILATERAL, ARRANGEMENTS THAT THE PARTIES TO THIS CASE MAY HAVE MADE, TOUCHING ON THE ISSUE OF SETTLEMENT OF DISPUTES OR THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE, MUST BE MADE ALWAYS SUBJECT TO THE PROVISIONS OF ARTICLE 103’ OF THE UN CHARTER, WHICH READS AS FOLLOWS ‘IN THE EVENT OF A CONFLICT BETWEEN THE OBLIGATIONS OF THE MEMBERS OF THE UNITED NATIONS UNDER THE PRESENT CHARTER AND THEIR OBLIGATIONS UNDER ANY OTHER INTERNATIONAL AGREEMENT, THEIR OBLIGATIONS UNDER THE PRESENT

REGIONAL ORGANIZATIONS (RO) ACT ON BEHALF AND UNDER CONTROL OF THE SC (‘UNDER ITS AUTHORITY’) AUTHORIZATION IS TO BE GIVEN IN ADVANCE, AND CAN BE REVOKED BY THE SC RO MAY NOT ACT WITHOUT A SC AUTHORIZATION. IN PRACTICE SUCH A SITUATION IS RARE (NATO BOMBINGS IN EX JUGOSLAVIA IN 1999) SC MAY ALSO RESTORE THE LEGITIMACY OF THE RO ACTIVITY EX POST, IF ALL THE UN MS ACQUIESCE TO THE SC RESOLUTION SC RECENT PRACTICE LIES ON THE APPLICATION OF CHAPTER VII, RATHER THAN CHAPTER VIII, SINCE IT AUTHORIZES MS AND/OR THE RO

PART V. THE EU’S ROLE WITHIN THE SC COLLECTIVE SECURITY SYSTEM EXAMPLES OF AUTHORIZATIONS GIVEN TO THE MS OF THE UN → ACTING UNDER CHAPTER VII - ARTEMIS CONGO RES. 1484 (2003) ENACTED THROUGH EU CSDP MISSION • “ 3. CALLS ON MEMBER STATES TO CONTRIBUTE PERSONNEL, EQUIPMENT AND OTHER NECESSARY FINANCIAL AND LOGISTIC RESOURCES TO THE MULTINATIONAL FORCE AND INVITES CONTRIBUTING MEMBER STATES TO INFORM THE LEADERSHIP OF THE FORCE AND THE SECRETARY-GENERAL; • “ 4. AUTHORIZES THE MEMBER STATES PARTICIPATING IN THE INTERIM EMERGENCY MULTINATIONAL FORCE IN BUNIA TO TAKE ALL NECESSARY MEASURES TO FULFIL ITS MANDATE;

- EXAMPLES OF AUTHORIZATIONS DIRECTLY GIVEN TO THE EU 1. EUFOR ALTHEA IN BOSNIA-HERZEGOVINA RES. 1575 (2004) – - “TAKING NOTE OF THE LETTERS BETWEEN THE EUROPEAN UNION AND NATO SENT TO THE SECURITY COUNCIL ON 19 NOVEMBER 2004 ON HOW THOSE ORGANISATIONS WILL COOPERATE TOGETHER IN BOSNIA AND HERZEGOVINA IN WHICH BOTH ORGANISATIONS RECOGNIZE THAT THE EUFOR WILL HAVE THE MAIN PEACE STABILISATION ROLE UNDER THE MILITARY ASPECTS OF THE PEACE AGREEMENT (S/2004/916; S/2004/915), • “FURTHER TAKING NOTE OF THE CONFIRMATION BY THE PRESIDENCY OF BOSNIA AND HERZEGOVINA, ON BEHALF OF BOSNIA AND HERZEGOVINA, INCLUDING ITS CONSTITUENT ENTITIES, OF THE ARRANGEMENTS FOR EUFOR AND THE NATO HEADQUARTERS PRESENCE (S/2004/917), • “WELCOMING IN THE LIGHT OF THE FORTHCOMING EU MISSION THE EUROPEAN UNION’S INCREASING ENGAGEMENT IN BOSNIA AND HERZEGOVINA,

• “ 10. AUTHORIZES THE MEMBER STATES ACTING THROUGH OR IN COOPERATION WITH THE EU TO ESTABLISH FOR AN INITIAL PLANNED PERIOD OF 12 MONTHS A MULTINATIONAL STABILIZATION FORCE (EUFOR) AS A LEGAL SUCCESSOR TO SFOR UNDER UNIFIED COMMAND CONTROL, WHICH WILL FULFIL ITS MISSIONS IN RELATION TO THE IMPLEMENTATION OF ANNEX 1 -A AND ANNEX 2 OF THE PEACE AGREEMENT IN COOPERATION WITH THE NATO HQ PRESENCE IN ACCORDANCE WITH THE ARRANGEMENTS AGREED BETWEEN NATO AND THE EU AS COMMUNICATED TO THE SECURITY COUNCIL IN THEIR LETTERS OF 19 NOVEMBER 2004, WHICH RECOGNIZE THAT THE EUFOR WILL HAVE THE MAIN PEACE STABILISATION ROLE UNDER THE MILITARY ASPECTS OF THE PEACE AGREEMENT; • 18. REQUESTS THE MEMBER STATES ACTING THROUGH OR IN COOPERATION WITH THE EU AND THE MEMBER STATES ACTING THROUGH OR IN COOPERATION WITH NATO TO REPORT TO THE COUNCIL ON THE ACTIVITY OF EUFOR AND NATO HQ PRESENCE RESPECTIVELY, THROUGH THE APPROPRIATE CHANNELS AND AT LEAST AT THREE-MONTHLY INTERVALS;

2. EUFOR CONGO RES. 1671 (2006) • “ 1. TAKES NOTE OF THE LETTER ADDRESSED BY THE PERMANENT REPRESENTATIVE OF THE DEMOCRATIC REPUBLIC OF THE CONGO TO THE PRESIDENT OF THE SECURITY COUNCIL DATED 30 MARCH 2006 (S/2006/203) AND OF THE SUPPORT OF THE GOVERNMENT OF THE DEMOCRATIC REPUBLIC OF THE CONGO FOR THE TEMPORARY DEPLOYMENT OF A EUROPEAN UNION FORCE (“EUFOR R. D. CONGO”) TO SUPPORT MONUC DURING THE PERIOD ENCOMPASSING THE ELECTIONS IN THE DEMOCRATIC REPUBLIC OF THE CONGO; • “ 2. AUTHORIZES, FOR A PERIOD ENDING FOUR MONTHS AFTER THE DATE OF THE FIRST ROUND OF THE PRESIDENTIAL AND PARLIAMENTARY ELECTIONS, THE DEPLOYMENT OF EUFOR R. D. CONGO IN THE DEMOCRATIC REPUBLIC OF THE CONGO; • INVITES THE EUROPEAN UNION TO TAKE ALL APPROPRIATE STEPS WITH A VIEW TO THE WELL-COORDINATED DISENGAGEMENT OF ITS FORCE FOLLOWING THE COMPLETION OF ITS MANDATE; • “ 8. DECIDES THAT EUFOR R. D. CONGO IS AUTHORIZED TO TAKE ALL NECESSARY MEASURES, WITHIN ITS MEANS AND CAPABILITIES, TO CARRY OUT THE FOLLOWING TASKS,

3. EUFOR CHAD RES. 1778 (2007), AUTHORIZED ESTABLISHMENT OF ‘MULTIDIMENSIONAL PRESENCE’ IN CHAD, CENTRAL AFRICAN REPUBLIC – UNANIMOUSLY ADOPTING - ACTING UNDER CHAPTER VII OF THE CHARTER OF THE UNITED NATIONS - DETERMINING THAT THE SITUATION IN THE REGION OF THE BORDER BETWEEN THE SUDAN, CHAD AND THE CENTRAL AFRICAN REPUBLIC CONSTITUTES A THREAT TO INTERNATIONAL PEACE AND SECURITY, • THE EUROPEAN UNION OPERATION, MANDATED UNDER THE BINDING CHAPTER VII OF THE UNITED NATIONS CHARTER, WAS AUTHORIZED TO TAKE “ALL NECESSARY MEASURES” TO HELP PROTECT CIVILIANS IN DANGER, TO FACILITATE DELIVERY OF HUMANITARIAN AID AND TO HELP PROVIDE UNITED NATIONS PERSONNEL WITH PROTECTION AND FREEDOM OF MOVEMENT (PARA 6). • IN A RELATED PROVISION, THE SC ASKED THE SECRETARY-GENERAL TO REPORT TO IT ON ARRANGEMENTS FOR FOLLOWING UP THE EUROPEAN UNION OPERATION SIX MONTHS FROM ITS START, INCLUDING ON A POSSIBLE UNITED NATIONS OPERATION

4. BINUCA CENTRAL AFRICAN REPUBLIC (CAR) RESOLUTION N 2134 (2014) • MANDATE FOR THE EUROPEAN UNION OPERATION IN THE CAR • 43. AUTHORIZES THE EUROPEAN UNION TO DEPLOY AN OPERATION IN THE CAR AS REFERENCED IN THE LETTER DATED 21 JANUARY 2014 FROM THE HIGH REPRESENTATIVE OF THE EUROPEAN UNION (S/2014/45); • 44. AUTHORIZES THE EU OPERATION TO TAKE ALL NECESSARY MEASURES WITHIN THE LIMITS OF ITS CAPACITIES AND AREAS OF DEPLOYMENT FROM ITS INITIAL DEPLOYMENT AND FOR A PERIOD OF SIX MONTHS FROM THE DECLARATION OF ITS FULL OPERATIONAL CAPACITY; • 45. REQUESTS THE EUROPEAN UNION TO REPORT TO THE COUNCIL ON THE IMPLEMENTATION OF THIS MANDATE IN THE CAR AND TO COORDINATE ITS REPORTING WITH THE REPORTING BY THE AFRICAN UNION REFERRED TO IN PARAGRAPH 32 OF RESOLUTION 2127; SEE ALSO RES 2196 (2015)

EULEX KOSOVO RES 1244 (1999) THIS RESOLUTION PROVIDES A FRAMEWORK FOR THE RESOLUTION OF THE CONFLICT IN KOSOVO BY AUTHORISING THE DEPLOYMENT OF AN INTERNATIONAL CIVILIAN AND MILITARY PRESENCE THAT WOULD PROVIDE AN INTERNATIONAL TRANSITIONAL ADMINISTRATION AND SECURITY PRESENCE THAT WOULD OVERSEE THE RETURN OF REFUGEES AND THE WITHDRAWAL OF MILITARY FORCES FROM KOSOVO. THE RESOLUTION ALSO STATES THAT THE INTERNATIONAL CIVILIAN PRESENCE WILL FACILITATE A POLITICAL PROCESS TO DETERMINE THE FUTURE STATUS OF KOSOVO. ‘DECIDES ON THE DEPLOYMENT IN KOSOVO, UNDER UNITED NATIONS AUSPICES, OF INTERNATIONAL CIVIL AND SECURITY PRESENCES, WITH APPROPRIATE EQUIPMENT AND PERSONNEL AS REQUIRED, AND WELCOMES THE AGREEMENT OF THE FEDERAL REPUBLIC OF YUGOSLAVIA TO SUCH PRESENCES’ (PARA 5) ‘AUTHORIZES MEMBER STATES AND RELEVANT INTERNATIONAL ORGANIZATIONS TO ESTABLISH THE INTERNATIONAL SECURITY PRESENCE IN KOSOVO’ (PARA 7) WHOSE RESPONSIBILITIES ARE LISTED IN PARA 11 ‘WELCOMES THE WORK IN HAND IN THE EUROPEAN UNION AND OTHER INTERNATIONAL ORGANIZATIONS TO DEVELOP A COMPREHENSIVE APPROACH TO THE ECONOMIC DEVELOPMENT AND STABILIZATION OF THE REGION AFFECTED BY THE KOSOVO CRISIS, INCLUDING THE IMPLEMENTATION OF A STABILITY PACT FOR SOUTH EASTERN EUROPE WITH

THE UN CHARTER AND THE EU SYSTEM • MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY IS THE MAIN AIM OF THE UN CHARTER GOALS → COMPLEMENTARY COMPONENTS ARE: PROMOTING FRIENDLY RELATIONS AND COOPERATION AMONG NATIONS AS WELL AS RESPECT FOR HUMAN RIGHTS • THE SAME NORMATIVE VALUES GUIDE THE UNION’S ACTION ON THE INTERNATIONAL SCENE - EU DRAWS INSPIRATION FROM THE UN CHARTER → UN PRINCIPLES FORM KEY FEATURES OF THE COMMON FOREIGN AND SECURITY POLICY (CFSP), AS WELL AS THE COMMON SECURITY AND DEFENCE POLICY (CSDP) (→ ARTICLES 3(5), AND 21(1) AND (2) TEU, 23 TEU)

- THE EU RECOGNIZES THE PRIMARY RESPONSIBILITY OF THE UN SECURITY COUNCIL (UNSC) IN PRESERVING PEACE AND PREVENTING INTERNATIONAL CONFLICTS → ECJ CASE LAW: THE EU LEGAL ORDER ATTACHES ‘SPECIAL IMPORTANCE’ TO ARTICLE 24 OF THE UN CHARTER AND NAMELY TO THE VITAL ROLE OF THE SC FOR THE MAINTENANCE OF PEACE AND SECURITY ON THE INTERNATIONAL SCENE - DESPITE REQUIRING SOME ADJUSTMENTS WHEN THE EU IMPLEMENTS INDIVIDUAL SANCTIONS (THE PRIMACY OF SECURITY COUNCIL DOES ENTAIL A JUDICIAL REVIEW OF THE LAWFULNESS OF THE EU IMPLEMENTING MEASURES IN LIGHT OF FUNDAMENTAL RIGHTS) - → EX MULTIS SEE KADI I RULING; JOINED CASES C-399/06 P AND C-403/06 P HASSAN, PARAS 69 TO 75) YET, THE ECJ HAS NEVER CALLED INTO QUESTION THE PRIMACY OF THE UNSC RESOLUTIONS (JOINED CASES C-402/05 P AND C-415/05 P, KADI, PARA. 294)

SO, AS A MATTER OF ITS LEGAL ORDER, THE EU, THROUGH ITS CFSP, IS COMMITTED TO PURSUING FOUR MAIN OBJECTIVES, WHICH ARE LARGELY FORGED UPON THE UN CHARTER PRINCIPLES: - I) THE PRESERVATION OF PEACE AND THE PREVENTION OF CONFLICTS; - II) THE DEVELOPMENT OF DEMOCRACY AND THE RULE OF LAW; - III) THE PROTECTION OF HUMAN RIGHTS, INCLUDING THE RIGHTS OF CHILDREN; - IV) AND, FINALLY, THE PROMOTION OF INTER- NATIONAL COOPERATION AND RESPECT FOR INTERNATIONAL LAW. THE PURSUIT OF THESE VALUES ALSO CONCERNS THE CSDP, WHICH IS “AN INTEGRAL PART” OF THE CFSP (ARTICLES 24(1) AND 42 TEU) THIS IS NOT A SURPRISE, SINCE EU ENJOYS INTERNATIONAL PERSONALITY AND THEREFORE IS BOUND TO RESPECT INTERNATIONAL LAW - THE NEED TO ABIDE BY SUCH PRINCIPLES AND CUSTOMARY INTERNATIONAL LAW IS REITERATED IN ARTICLE 21(1), (2) AND (3) TEU

CSDP AFTER THE LISBON TREATY CSDP HAS TWO FACETS: INTERNAL AND EXTERNAL CSDP MISSIONS CONCERN THE EXTERNAL ONE AND NAMELY THIRD COUNTRIES AND REGIONS FACING CONFLICT AND POST-CONFLICT SITUATIONS. OVERALL, THEY FALL UNDER THE NEED TO BRING OR MAINTAIN PEACE AND TO PREVENT FURTHER CONFLICTS, RANGING FROM PEACE-BUILDING OPERATIONS, TO RE-BUILDING NATIONAL ADMINISTRATION IN ACCORDANCE WITH THE PRINCIPLE OF THE RULE OF LAW IN LIMITED CASES, CSDP MISSIONS COVER ALSO ENFORCEMENT ACTIONS CSDP OPERATIONS MAY BE CONSIDERED AS EUROPEAN POSITIVE PEACE TOOLS, SINCE THEY ADDRESS CAUSES OF CONFLICTS AND AIM AT RE-ESTABLISHING PEACEFUL LIVING CONDITIONS IN THE GEOGRAPHICAL AREA CONCERNED. THE EU HAS LED, UNDER THE UMBRELLA OF CSDP, ROUGHLY 30 CIVILIAN AND MILITARY MISSIONS, EITHER AUTONOMOUSLY OR WITH RECOURSE TO NATO RESOURCES

THE CSDP PROVIDES ‘THE UNION WITH AN OPERATIONAL CAPACITY DRAWING ON CIVILIAN AND MILITARY ASSETS. THE UNION MAY USE THEM ON MISSIONS OUTSIDE THE UNION FOR PEACE-KEEPING, CONFLICT PREVENTION AND STRENGTHENING INTERNATIONAL SECURITY IN ACCORDANCE WITH THE PRINCIPLES OF THE UNITED NATIONS CHARTER’ (ART. 42, PARA 1 TEU) TASKS OF CSDP UNDER THE EU → CIVILIAN AND MILITARY MISSIONS MAY ‘INCLUDE JOINT DISARMAMENT OPERATIONS, HUMANITARIAN AND RESCUE TASKS, MILITARY ADVICE AND ASSISTANCE TASKS, CONFLICT PREVENTION AND PEACE-KEEPING TASKS, TASKS OF COMBAT FORCES IN CRISIS MANAGEMENT, INCLUDING PEACE-MAKING AND POSTCONFLICT STABILISATION. ALL THESE TASKS MAY CONTRIBUTE TO THE FIGHT AGAINST TERRORISM, INCLUDING BY SUPPORTING THIRD COUNTRIES IN COMBATING TERRORISM IN THEIR TERRITORIES’ (ART. 43, PARA 1 TEU)

MEMBER STATES MAKE CIVILIAN AND MILITARY CAPABILITIES AVAILABLE TO THE UNION FOR THE IMPLEMENTATION OF THE COMMON SECURITY AND DEFENCE POLICY (ART. 42, PARA 3 TEU) → THEY ARE MULTINATIONAL FORCES (ART. 42, PARA 3 TEU) → MADE TO CONTRIBUTE TO THE OBJECTIVES DEFINED BY THE COUNCIL → MEMBER STATES PROGRESSIVELY UNDERTAKE TO IMPROVE THEIR MILITARY CAPABILITIES (ART. 42, PARA 3 TEU) AS REGARDS THE EU MEMBER STATES WHICH ARE ALSO MEMBERS OF THE UNSC, THEY - CONCERT AND KEEP THE OTHER MEMBER STATES AND THE HIGH REPRESENTATIVE FULLY INFORMED - DEFEND THE POSITIONS AND THE INTERESTS OF THE UNION, WITHOUT PREJUDICE TO THEIR RESPONSIBILITIES UNDER THE PROVISIONS OF THE UNITED NATIONS CHARTER’ (ART. 34. 2 TEU)

- MUTUAL ASSISTANCE CLAUSE STIPULATES THAT THE ‘OBLIGATION’ ADDRESSED TO MEMBER STATES TO AID AND ASSIST ‘BY ALL MEANS IN THEIR POWER’ SHOULD BE CARRIED OUT ‘IN ACCORDANCE WITH ARTICLE 51 OF THE UNITED NATIONS CHARTER’ (ARTICLE 47(7) TUE) - EU MEMBER STATES MIGHT NOT CIRCUMVENT UN OBLIGATIONS ON THE PRETEXT OF CONFLICTING EU TREATY ENGAGEMENTS - → ARTICLE 103 UN CHARTER, WHICH AIMS TO PRESERVE THE INTEGRITY OF THE CHARTER, IN THE AREA OF THE MAINTENANCE OF PEACE PARTICULARLY, WOULD IN PRINCIPLE IMPEDE SUCH A RESULT. - → A SUITABLE INTERPRETATION AND APPLICATION OF ARTICLE 351 TFEU CONFIRMS THAT APPROACH

LOOKING AT THE CSDP PRACTICE, THE EU MAY NOT LAUNCH A PEACEKEEPING OPERATION, INCLUDING ENFORCEMENT ACTIONS, OR A PEACE ENFORCEMENT OPERATION TOUT COURT, WITHOUT THE SC AUTHORIZATION OR WELCOMING → OTHERWISE THE EU WOULD BREACH THE PRINCIPLE OF NON-INTERVENTION IN INTERNAL AFFAIRS AND THE PROHIBITION OF THREAT OR USE OF FORCE - ARTEMIS AND EUFOR MISSIONS IN DEMOCRATIC REPUBLIC OF CONGO (2003 AND 2006): THE UNSC AUTHORISED THE DEPLOYMENT OF MULTINATIONAL FORCES, WHILE CONGOLESE AUTHORITIES EX ANTE WELCOMED THE EU MILITARY SUPPORT TO MONUC DURING THE ELECTORAL PROCESS

- IN 2010 THE EU COUNCIL JUSTIFIED THE LAUNCHING OF A MILITARY MISSION TO CONTRIBUTE TO THE TRAINING OF SOMALI SECURITY FORCES (THE SO-CALLED EUTM SOMALIA) →THE PREAMBLE OF THE COUNCIL DECISION STATED THAT THE UNSC RESOLUTION 1872 (2009) ON THE SITUATION IN SOMALIA ‘STRESSED THE IMPORTANCE OF THE RE-ESTABLISHMENT, TRAINING, EQUIPPING AND RETENTION OF SOMALI SECURITY FORCES, AND URGED MEMBER STATES AND REGIONAL AND INTERNATIONAL ORGANISATIONS TO OFFER TECHNICAL ASSISTANCE FOR THE TRAINING AND EQUIPPING OF THE SOMALI SECURITY FORCES. IN ITS RESOLUTION 1897 (2009), ADOPTED ON 30 NOVEMBER 2009, THE UNSC RECALLED ITS PREVIOUS RESOLUTIONS AND REAFFIRMED ITS RESPECT FOR THE SOVEREIGNTY, TERRITORIAL INTEGRITY, POLITICAL INDEPENDENCE AND UNITY OF SOMALIA’ - THE DIFFICULT CASE CONCERNING THE EULEX KOSOVO MISSION - THE LARGEST CIVILIAN CSDP OPERATION ESTABLISHED SO FAR - AS LONG AS THE CSDP MISSION IS PURELY CIVILIAN AND THERE IS A LOCAL GOVERNMENT OR AN EFFECTIVE AUTHORITY, THE WILL OF THE LATTER SEEMS SUFFICIENT - A COHERENT PRACTICE REGARDING EU CIVILIAN INTERVENTION

THE FACT THAT IN SOME CASES THE UNSC HAS WELCOMED (RATHER THAN AUTHORIZED) THE EU INTERVENTION IS NOT CONTRADICTORY: WELCOMING CAN BE CONSIDERED AS AN ELEMENT OF LEGITIMACY IN TERMS OF UN SYSTEM AND GENERAL INTERNATIONAL LAW INSOFAR AS THE EU ENVISAGES ELEMENTS OF MILITARY OR COERCIVE INTERVENTION IN SITUATIONS OF ARMED CONFLICT, THE UNDERLYING ASSUMPTION OF THE RELEVANT PRACTICE IS THAT THE EU INTERVENTION IS TO BE FOUNDED, AS A MATTER OF INTERNATIONAL LAW, ON THE UN CHARTER AND THE SUPREMACY OF THE UNSC YET EU SEEMS TO CONSIDER THE CONSENT OF THE HOST STATE AS NECESSARY WHEN THE EU ACTIVITY REQUIRES THE COOPERATION OF THE LOCAL AUTHORITIES. IN THIS RESPECT, A CLEAR ILLUSTRATION IS FOUND IN THE EU MILITARY TRAINING IN MALI

WHEN IT COMES TO ENFORCEMENT ACTIONS FALLING UNDER CHAPTER VII OF THE UN CHARTER AND INTERNATIONAL LAW (INTERCEPTIONS OF SHIPMENTS, THE USE OF FORCE AND SO FORTH), THE UNSC AUTHORIZATION IS A NECESSARY PRECONDITION TO BE FULFILLED IN ORDER TO CONSIDER THE EU INTERVENTION AS LEGITIMATE UNDER THE EU LEGAL ORDER THE RECENT COUNCIL DECISION TO CONDUCT A MILITARY CRISIS MANAGEMENT OPERATION IN THE SOUTHERN AND CENTRAL MEDITERRANEAN SEA (EUNAVFOR MED OR OPERATION SOPHIA) SEEMS TO CONFIRM THIS REASONING. AS A MATTER OF FACT, THE EU HAD FIRST SOUGHT, THROUGH THE ACTIVITY OF ITS HIGH REPRESENTATIVE, AND THEN WAITED UNTIL IT HAS OBTAINED UNSC AUTHORIZATION BEFORE LAUNCHING COERCIVE MEASURES (I. E. CAPTURING AND DESTROYING THE TRAFFICKERS’ BOATS) ON THE HIGH SEAS OFF THE COAST OF LIBYA. YET IT INITIALLY HAD ENVISAGED THE LAUNCHING OF COERCIVE MEASURES IN THE

BY MEANS OF RESOLUTION 2240 (2015), THE UNSC, APPARENTLY ACTING UNDER CHAPTER VII OF THE CHARTER, AUTHORIZED MEMBER STATES TO INTERCEPT VESSELS OFF LIBYAN COAST SUSPECTED OF MIGRANT SMUGGLING - WITH 14 VOTES IN FAVOUR AND ONE ABSTENTION BY VENEZUELA MS, ACTING NATIONALLY OR THROUGH REGIONAL ORGANIZATIONS, WERE AUTHORIZED TO USE ALL MEASURES IN CONFRONTING MIGRANT SMUGGLES OR HUMAN TRAFFICKING IN FULL COMPLIANCE WITH INTERNATIONAL HUMAN RIGHTS LAW. HOWEVER, THE COUNCIL ALSO UNDERSCORED THAT THE AUTHORIZATIONS APPLIED PROVIDED THAT A SET OF LEGAL CONDITIONS ARE FULFILLED. INDEED, THE SC :

• “WELCOMING SUPPORT ALREADY PROVIDED BY THE MOST CONCERNED MEMBER STATES, INCLUDING MEMBER STATES OF THE EUROPEAN UNION (EU), TAKING INTO ACCOUNT INTER ALIA THE ROLE OF FRONTEX AND THE SPECIFIC MANDATE OF EUBAM LIBYA IN SUPPORT OF THE LIBYAN GOVERNMENT, AND BY NEIGHBOURING STATES, • “ACKNOWLEDGING THE EUROPEAN COUNCIL STATEMENT OF 23 APRIL 2015 AND THE PRESS STATEMENT OF THE AFRICAN UNION PEACE AND SECURITY COUNCIL OF 27 APRIL, WHICH UNDERLINED THE NEED FOR EFFECTIVE INTERNATIONAL ACTION TO ADDRESS BOTH THE IMMEDIATE AND LONG-TERM ASPECTS OF HUMAN TRAFFICKING TOWARDS EUROPE, • “TAKING NOTE OF THE DECISION OF THE COUNCIL OF THE EUROPEAN UNION OF 18 MAY 2015 SETTING UP ‘EUNAVFOR MED’ WHICH UNDERLINED THE NEED FOR EFFECTIVE INTERNATIONAL ACTION TO ADDRESS BOTH THE IMMEDIATE AND LONGTERM ASPECTS OF MIGRANT SMUGGLING AND HUMAN TRAFFICKING TOWARDS EUROPE, • “TAKING FURTHER NOTE OF THE ONGOING DISCUSSIONS BETWEEN THE EU AND THE LIBYAN GOVERNMENT ON MIGRATION RELATED ISSUES,

‘CALLS ON MEMBER STATES ACTING NATIONALLY OR THROUGH REGIONAL ORGANISATIONS, INCLUDING THE EU, TO ASSIST LIBYA, UPON REQUEST, IN BUILDING NEEDED CAPACITY INCLUDING TO SECURE ITS BORDERS AND TO PREVENT, INVESTIGATE AND PROSECUTE ACTS OF SMUGGLING OF MIGRANTS AND HUMAN TRAFFICKING THROUGH ITS TERRITORY AND IN ITS TERRITORIAL SEA’ (PARA 2) ‘CALLS UPON MEMBER STATES ACTING NATIONALLY OR THROUGH REGIONAL ORGANISATIONS THAT ARE ENGAGED IN THE FIGHT AGAINST MIGRANT SMUGGLING AND HUMAN TRAFFICKING TO INSPECT, AS PERMITTED UNDER INTERNATIONAL LAW, ON THE HIGH SEAS OFF THE COAST OF LIBYA, ANY UNFLAGGED VESSELS THAT THEY HAVE REASONABLE GROUNDS TO BELIEVE HAVE BEEN, ARE BEING, OR IMMINENTLY WILL BE USED BY ORGANISED CRIMINAL ENTERPRISES FOR MIGRANT SMUGGLING OR HUMAN TRAFFICKING FROM LIBYA, INCLUDING INFLATABLE BOATS, RAFTS AND DINGHIES’ (PARA 5) ‘FURTHER CALLS UPON SUCH MEMBER STATES TO INSPECT, WITH THE CONSENT OF THE FLAG STATE, ON THE HIGH SEAS OFF THE COAST OF LIBYA, VESSELS THAT THEY

• “ 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; • “ 8. DECIDES TO AUTHORISE FOR A PERIOD OF ONE YEAR FROM THE DATE OF THE ADOPTION OF THIS RESOLUTION, MEMBER STATES ACTING NATIONALLY OR THROUGH REGIONAL ORGANISATIONS TO SEIZE VESSELS INSPECTED UNDER THE AUTHORITY OF PARAGRAPH 7 THAT ARE CONFIRMED AS BEING USED FOR MIGRANT SMUGGLING OR HUMAN TRAFFICKING FROM LIBYA, AND UNDERSCORES THAT FURTHER ACTION WITH REGARD TO SUCH VESSELS INSPECTED UNDER THE AUTHORITY OF PARAGRAPH 7,

• “ 10. DECIDES TO AUTHORISE MEMBER STATES ACTING NATIONALLY OR THROUGH REGIONAL ORGANISATIONS TO USE ALL MEASURES COMMENSURATE TO THE SPECIFIC CIRCUMSTANCES IN CONFRONTING MIGRANT SMUGGLERS OR HUMAN TRAFFICKERS IN CARRYING OUT ACTIVITIES UNDER PARAGRAPHS 7 AND 8 AND IN FULL COMPLIANCE WITH INTERNATIONAL HUMAN RIGHTS LAW, AS APPLICABLE, UNDERSCORES THAT THE AUTHORIZATIONS IN PARAGRAPH 7 AND 8 DO NOT APPLY WITH RESPECT TO VESSELS ENTITLED TO SOVEREIGN IMMUNITY UNDER INTERNATIONAL LAW, AND CALLS UPON MEMBER STATES AND REGIONAL ORGANISATIONS CARRYING OUT ACTIVITIES UNDER PARAGRAPHS 7, 8 AND THIS PARAGRAPH, TO PROVIDE FOR THE SAFETY OF PERSONS ON BOARD AS AN UTMOST PRIORITY AND TO AVOID CAUSING HARM TO THE MARINE ENVIRONMENT OR TO THE SAFETY OF NAVIGATION; • “ 11. AFFIRMS 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

“ 17. REQUESTS STATES UTILISING THE AUTHORITY OF THIS RESOLUTION TO INFORM THE SECURITY COUNCIL WITHIN THREE MONTHS OF THE DATE OF ADOPTION OF THIS RESOLUTION AND EVERY THREE MONTHS THEREAFTER ON THE PROGRESS OF ACTIONS UNDERTAKEN IN EXERCISE OF THE AUTHORITY PROVIDED IN PARAGRAPHS 7 TO 10 ABOVE’

CONCLUSION THE ULTIMATE RATIONALE OF CSDP MILITARY MISSIONS INVOLVING THE USE OF FORCE AND/OR OTHER MILITARY MEASURES – I. E. TRUE ENFORCEMENT ACTIONS UNDER THE UN CHARTER – SEEMS TO BE BASED ON THE ASSUMPTION THAT UNSC AUTHORIZATION IS NEEDED AS A MATTER OF EU INTERNAL LEGALITY, WHICH BASICALLY CONTAINS A RENVOI TO THE UN CHARTER PRINCIPLES IN OTHER WORDS, FROM AN EU POINT OF VIEW, THE INSTITUTIONS SEEMS TO FAVOUR THE APPROACH ACCORDING TO WHICH THE UN PROVISIONS RELATING TO THE MAINTENANCE OF PEACE AND SECURITY IMPLY THAT ANY ENFORCEMENT ACTION (OUTSIDE THE SPHERE OF ARTICLE 51 OF THE UN CHARTER), REQUIRES A COVERING BY THE UNSC THIS POSITION IS PERSUASIVE BEARING IN MIND THE ‘SPECIAL IMPORTANCE’ OF THE SECURITY COUNCIL UNDER THE UN CHARTER, AS THE EU PRIMARY LAW AND THE ECJ RECOGNIZE, AND THE IUS COGENS CHARACTER OF THE RULE CONCERNING THE PROHIBITION OF THE USE OF FORCE OBLIGATION TO REPORT TO THE SC, ACCORDING TO UN PRACTICE

UNSURPRISINGLY, HOWEVER, THE CONSENT OF THE HOST STATE IS CONSIDERED AS AN ADDITIONAL CONDITION TO BE MET WHEN THE EU ACTIVITY REQUIRES THE COOPERATION OF THE LOCAL AUTHORITIES. ON THE CONTRARY AND IN COHERENCE WITH THE RELATION BETWEEN THE EU AND THE UN CHARTER, AS WELL AS PRINCIPLES OF INTERNATIONAL LAW, IF THE CSDP MISSION IS PURELY CIVILIAN AND THERE IS A LOCAL GOVERNMENT OR AN EFFECTIVE AUTHORITY, THE CONSENT OF THE HOST-STATE SUFFICES

IN PRINCIPLE, A DUALISTIC PERSPECTIVE SHAPES THE RELATIONSHIP BETWEEN THE EU LEGAL ORDER AND THE UN CHARTER (THOUGH THE EU IS NOT A UN MEMBER) BEING AN AUTONOMOUS LEGAL ORDER, THE EU IS HELD TO CONTRIBUTE TO PEACE, SECURITY AND THE PROTECTION OF HUMAN RIGHTS, AS WELL AS TO THE STRICT OBSERVANCE OF INTERNATIONAL LAW, INCLUDING RESPECT FOR THE PRINCIPLES OF THE UN CHARTER. HOWEVER, AS THE ECJ HELD, EU APPLIES UN RESOLUTIONS AS LONG AS THEY RESPECT EU FUNDAMENTAL RIGHTS SEE KADI RULING (PARAS. 280 TO 330) : ECJ ADDRESSED THE RELATIONSHIP BETWEEN THE INTERNATIONAL LEGAL ORDER UNDER THE UNITED NATIONS AND THE EU LEGAL ORDER, AND - STRESSED THE AUTONOMY OF THE EU LEGAL SYSTEM, OBSERVANCE OF WHICH IS ENSURED BY THE COURT BY VIRTUE OF THE EXCLUSIVE JURISDICTION CONFERRED ON IT BY ARTICLE 220 EC, JURISDICTION THAT THE COURT HAS, MOREOVER, ALREADY HELD TO FORM PART OF THE VERY FOUNDATIONS OF THE COMMUNITY (SEE, TO THAT EFFECT, OPINION 1/91 [1991] ECR I‑ 6079, PARAGRAPHS 35 AND 71, AND CASE C-

• IT ALSO HELD THAT THE APPLICATION OF UN PROVISIONS WITHIN THE EU LEGAL SYSTEM ‘CANNOT, HOWEVER, BE UNDERSTOOD TO AUTHORISE ANY DEROGATION FROM THE PRINCIPLES OF LIBERTY, DEMOCRACY AND RESPECT FOR HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ENSHRINED IN ARTICLE 6(1) EU AS A FOUNDATION OF THE UNION’ (PARA 303). ‘ARTICLE 307 EC MAY IN NO CIRCUMSTANCES PERMIT ANY CHALLENGE TO THE PRINCIPLES THAT FORM PART OF THE VERY FOUNDATIONS OF THE COMMUNITY LEGAL ORDER, ONE OF WHICH IS THE PROTECTION OF FUNDAMENTAL RIGHTS, INCLUDING THE REVIEW BY THE COMMUNITY JUDICATURE OF THE LAWFULNESS OF COMMUNITY MEASURES AS REGARDS THEIR CONSISTENCY WITH THOSE FUNDAMENTAL RIGHTS (PARA 304) ‘NOR CAN AN IMMUNITY FROM JURISDICTION FOR THE CONTESTED REGULATION WITH REGARD TO THE REVIEW OF ITS COMPATIBILITY WITH FUNDAMENTAL RIGHTS, ARISING FROM THE ALLEGED ABSOLUTE PRIMACY OF THE RESOLUTIONS OF THE SECURITY COUNCIL TO WHICH THAT MEASURE IS DESIGNED TO GIVE EFFECT, FIND ANY BASIS IN