The EUNAVFOR MED Operation and the Use of Force

Abstract

On 22 June, the European Union launched the first phase of its EUNAVFOR-MED operation to contribute to dismantling smuggling networks in the Mediterranean. The authorizations provided in the SC resolution 2240 only apply to the situation of migrant smuggling and human trafficking "on the high seas off the coast of Libya." To justify enforcement measures implying the use of force in the two stages following the first (i.e. in Libya's territorial waters and coast), the EU cannot rely on either the consent of the coastal state concerned (since the agreement signed in Morocco on December 17, 2015 between representatives of Libya's rival governments still poses implementation issues) nor on UN Security Council authorization (due to the expected veto of Russia).

The only way forward is that of intervention for tutelary purposes ("tutelary intervention"), which does not rest on "authorization" and/or "consent". The conditions exist to legitimize the European mission by moving along the path delineated by the "immediate security approach" in the ongoing US-led intervention in Syria against ISIL although Europe is hesitant especially as security policy is its Achilles heel.

Note: Reprinted with permission from the American Society of International Law, © American Society of International Law.