China and Russia Want Limits on Europe’s Use of Force Against Migrant Smugglers

Europe’s diplomatic push to secure U.N. authorization to use force against suspected human smugglers in the Mediterranean Sea ran into resistance this week from China and Russia, which have raised concerns that the initiative could interfere with the freedom to maneuver on the high seas, according to Security Council diplomats.

The pushback from China and Russia comes as Europe is straining to demonstrate that it can control the influx of hundreds of thousands of refugees fleeing violence and persecution in places like Iraq, Syria, Eritrea, and Somalia. Britain, which is leading the European efforts at the United Nations, has written a draft resolution that would grant European navies the authority to use military force to confront the smugglers under Chapter VII of the U.N. Charter.

In the past two years, the United Nations has recorded a massive increase in the number of refugees and migrants fleeing turmoil in their countries for the prospects of a better life in Europe. More than 350,000 refugees and migrants have arrived in Europe by sea this year. Many never survive the trip. So far this year, at least 2,600 have died making the journey by sea, according to the International Organization for Migration (IOM). In 2014, more than 3,000 people died crossing the Mediterranean, the majority of whom had left on their fatal journeys from Libya. There were about 700 such fatalities in 2013, according to the IOM.

In May, the European Union established a naval force — known as EUNAVFOR Med — to dismantle the smuggling networks that transport immigrants from Libya to Italy. The maritime force has been fully operational since late July, but its activities have been largely limited to patrolling the Mediterranean Sea and collecting intelligence. Many European governments believe that the next stage of the operation — confronting smuggling ships on the high seas — would require a U.N. Security Council resolution authorizing the use of force. Britain is taking the lead in drafting such a resolution.

Even if it prevails in securing Russian and Chinese support for the resolution, London and other European powers hope to eventually return to the U.N. Security Council to seek expanded powers to chase human smugglers into Libyan territorial waters and ultimately on to Libyan soil. So far, Libyan authorities have opposed granting the Europeans the right to use force on Libyan soil or in Libyan territorial waters, saying it would infringe on Libyan sovereignty.

Despite Chinese and Russian concerns, Britain and some other European countries are confident that they can secure unanimous support for the resolution by next week. But other council diplomats say that the Russian and Chinese concerns are yet to be resolved.

Beijing and Moscow want Britain to include a provision in the resolution that would restrict European naval forces from boarding or seizing a ship until they received a green light to do so from the so-called “flag state” — the government where the ship was registered, according to European diplomats. One U.N.-based diplomat said that provision would “not be very practical,” noting that European ships can hardly wait for a return call from flag states like Panama and Liberia, which are responsible for registering most international vessels, when encountering a ship in distress or in a situation in which refugees’ lives are at stake.

“If it’s clear, beyond a reasonable doubt, that there are people on board a ship being smuggled, you don’t want to have to go through the laborious process of getting in touch with the flag state and waiting for their approval,” according to the diplomat. “This is about saving lives.”

Britain is prepared to include compromise language in the text expressing European countries’ intention to make a good-faith effort to seek consent by contacting authorities from the flag state. But the resolution would not require securing such consent. “We cannot be waiting for the flag state to respond,” the diplomat said.

In the past, China, Russia, and other countries have expressed concern that the U.N. Security Council, by authorizing the interdiction of pirates or other lawbreakers at sea, could allow naval forces to routinely harass ships from rival countries on the high seas.

When the U.N. Security Council voted in 2008 to authorize the interdiction of pirate ships off the coast of Somalia, it included language ensuring that the resolution would not serve as a precedent permitting the boarding of ships in other parts of the world. The resolution includes a provision making clear that the council’s action should be restricted to international waters along the shores of Somalia and that it “shall not be considered as establishing customary international law” that could be applied elsewhere.

Britain is working with the other permanent members of the council — China, France, Russia, and the United States — to see whether they can strike a similar compromise for ships carrying desperate refugees. “We are confident agreement can be reached,” said one Western diplomat. The diplomat indicated that any objections to the resolution by Russia or China “are not insurmountable.”

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