Conflicts between United Nations Security Council resolutions and the 1982 United Nations Convention on the Law of the Sea, and their possible resolution

Since 1990 the UN Security Council has adopted a number of resolutions calling on UN members to take various kinds of action that have the potential, depending on how those resolutions are interpreted, to interfere with States’ navigational rights under the 1982 United Nations Convention on the Law of the Sea (1982 LOS Convention). These resolutions, virtually all of which were explicitly adopted under Chapter VII of the UN Charter, fall into a number of different categories. A first category is resolutions providing for the enforcement of sanctions imposed under Article 41 of the Charter. They include Resolution 221 (1966)(paragraph 5 of which calls on the British government “to prevent, by the use of force if necessary, the arrival at Beira of vessels reasonably believed to be carrying oil destined for Southern Rhodesia”); Resolution 665 (1990) (paragraph 1 of which calls on those UN Member States deploying maritime forces in the Persian Gulf to “use such measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping, in order to inspect and verify their cargoes and destinations and to ensure strict implementation” of the economic sanctions imposed on Iraq); Resolutions 787 (1992)(paragraph 12 of which contains similar provisions in respect to the former Yugoslavia) and 820 (1993)(paragraphs 28 and 29 of which “prohibit all commercial maritime traffic from entering the territorial sea” of the Federal Republic of Yugoslavia and authorize States to “use such measures commensurate to the specific circumstances asmay be necessary under the authority of the Security Council to enforce” this prohibition); Resolutions 875 (1993) and 917 (1994)(of which paragraphs 1 and 10, respectively, contain provisions in respect to Haiti similar to those in Resolutions 665 and 787); and Resolution 1132 (1997) (paragraph 8 of which contains similar provisions as regards Sierra Leone). A second category of Security Council resolutions that have the potential to interfere with States’ navigational rights relates to the prevention of trafficking in weapons of mass destruction (WMD). Such resolutions include Resolution 1540 (2004)(paragraphs 3(c) and 10 of which call on all States to develop effective border controls to prevent illicit trafficking in WMD and to take cooperative action to prevent such trafficking “consistent with international law”) and Resolution 1718 (2006)(in paragraph 8(f) of which the Security Council “decides” that in order to prevent trafficking in WMD with North Korea, all UN Member States should take, “consistent with international law, cooperative action including through inspection of cargo to and from” North Korea). A third, and related, category concerns resolutions to prevent the transfer of certain materials to particular States. Examples include Resolution 1695 (2006) (paragraph 3 of which“requires all Member States . . . consistent with international law to . . . prevent missile and missile-related items, materials, goods and technology from being transferred” to North Korea) and Resolution 1696 (2006) (paragraph 5 of which contains similar provisions in respect to Iran). Unlike the resolutions in the first category, the resolutions in the second and third categories do not explicitly refer to action being taken against shipping at sea. Nevertheless their wording seems broad enough to encompass such action, although in the case of Resolution 1540 its drafting history suggests otherwise. A fourth category of Security Council resolutions that have the potential to interfere with 1982 LOS Convention navigational rights relates to the prevention of terrorism. The main example of such resolutions is Resolution 1373 (2001), paragraph 2(b) of which “decides” that all States shall “take the necessary steps to prevent the commission of terrorist acts.” There seems to be no reason why such steps could not include action against ships while at sea. Last and certainly very far from least is the well-known set of Security Council resolutions authorizing States to “use all necessary means” (in other words, force) to achieve a particular goal, including Resolutions 678 (1990) (relating to Iraq), 794 (1992) (Somalia), 940 (1994) (Haiti) and 1264 (1999) (East Timor). There seems no reason why “necessary means” could not cover the use of force directed at ships at sea in addition to the use of force on land and in the air, which are both clearly covered. This article will attempt to answer three questions arising from the above resolutions and from possible future Security Council resolutions that could interfere with navigational rights enshrined in the 1982 LOS Convention: 1. Is there in fact, or is it likely that there could be, a conflict between such UN Security Council resolutions, however interpreted, and provisions of the 1982 LOS Convention concerned with navigational rights? 2. If so, are such conflicts resolved by either the UN Charter or the Convention? 3. Would a dispute settlement body acting under Part XV of the Convention have the competence to consider and rule on the above two questions, as well as the competence to interpret relevant UN Security Council resolutions? Given the breadth and generality of some of the provisions of the resolutions quoted above, it may be essential for a 1982 LOS Convention dispute settlement body to interpret these provisions if it is going to be able to answer questions 1 and 2.