Published: 16 April 2020 Author: Stefan Talmon
On 19 January 2020, Germany hosted a “Conference on Libya” in Berlin in order “to create new political impetus and rally international support for finding a solution to the conflict in Libya.” The conference was attended by the Governments of Algeria, China, Egypt, France, Germany, Italy, Russia, Turkey, the Republic of the Congo, United Arab Emirates, the United Kingdom and the United States, and High Representatives of the United Nations, the African Union, the European Union and the League of Arab States. The leaders of the two main warring factions – the UN-recognized Government of National Accord in Tripoli and the self-styled Libyan National Army with its headquarters in Benghazi – were also present in Berlin but did not formally take part in the conference.
At the end of the conference, the Press and Information Office of the German Federal Government issued the 12-page long “conference conclusions” which provided, inter alia:
“5. The “Berlin Process” […] has the sole objective of assisting the United Nations in unifying the International Community in their support for a peaceful solution to the Libyan crisis. […]
6. We commit to refraining from interference in the armed conflict or in the internal affairs of Libya and urge all international actors to do the same. […]
9. We welcome […] the negotiations […] as well as all other international initiatives aimed at paving the way towards a ceasefire agreement. We call on all parties concerned to redouble their efforts for a sustained suspension of hostilities, de-escalation and a permanent ceasefire. […]
15. We call upon the United Nations to facilitate ceasefire negotiations between the parties […].
18. We commit to unequivocally and fully respect and implement the arms embargo established by United Nations Security Council Resolution 1970 (2011) and the Council’s subsequent Resolutions, including the proliferation of arms from Libya, and call on all international actors to do the same.”
The language used in the “conference conclusions” was hortatory, rather than mandatory. The main terms used were “welcome”, “call”, “reaffirm”, “reiterate”, “support”, “encourage”, “urge”, “underline”, and “stress”.
Immediately after the Berlin conference, German diplomacy worked on having conference conclusions endorsed by the UN Security Council. For example, during a Council debate on the situation in Libya on 30 January 2020, the German representative repeated an appeal that that the Security Council “should rapidly adopt a draft resolution that endorses the outcome of the Berlin conference”. Such a resolution would serve two functions: “First, it will send a signal to the people of Libya that the Security Council will not abandon them. […] Secondly, it will send a very strong message to the spoilers, because Security Council resolutions are legally binding under international law.”
Following protracted negotiations, on 12 February 2020 the Security Council adopted resolution 2510 (2020) by a vote of 14 in favour to none against, with the Russian Federation abstaining. The resolution provided in the relevant parts:
“The Security Council,
Recalling the commitment of the participants at the Berlin Conference to refrain from interference in the armed conflict or in the internal affairs of Libya and their call on all international actors to do the same,
Affirming the need for a lasting ceasefire in Libya at the earliest opportunity, without pre-conditions,
Recalling its determination in its resolution 2213 (2015) that the situation in Libya continues to constitute a threat to international peace and security,
1. Welcomes the Berlin Conference convened on 19 January 2020 and emphasises the vital importance of making progress towards a political solution to end the conflict;
2. Endorses the Conference Conclusions as contained in the document circulated as S/2020/63 and notes that these represent an important element of a comprehensive solution to the situation in Libya;
10. Recalls the commitments made at Berlin to abide by the arms embargo and demands full compliance including by all Member States with the arms embargo imposed under resolution 1970 (2011) as modified by subsequent resolutions, including by ceasing all support for and withdrawing all armed mercenary personnel, and demands all Member States not to intervene in the conflict or take measures that exacerbate the conflict; […].”
Following the adoption of the resolution, Federal Foreign Minister Heiko Maas issued the following statement:
“By endorsing the conclusions of the Berlin Libya Conference today, we have taken a big step forward on the path to solving the Libya conflict. The conclusions of the Berlin Libya Conference are now binding on all parties. Our intense negotiations in New York over the past weeks have paid off.
All international actors should take this Security Council decision seriously and now finally respect the arms embargo in full […].”
This statement is noteworthy for the assertion that endorsement of the conference conclusions by the Security Council made them “binding for all parties”. This was not a slip of the tongue. On the contrary, this view was reiterated in the following days by various Foreign Office officials. On 14 February 2020, the Director Middle East and North Africa at the Federal Foreign Office tweeted: “With UN Security Council Resolution 2510 (2020) adopted, the conclusions of the Berlin conference on Libya are now binding for all.” On the same day, Germany’s Permanent Representative to the United Nations in New York declared: “The Security Council resolution supports the Berlin results and makes them legally binding internationally.” On 16 February 2020, Federal Foreign Minister Maas once again emphasised the importance of resolution 2510 (2020) declaring:
“Everyone needs to know that – if they violate the embargo in future – then they violate a U.N. resolution and that this can’t remain without consequences.”
It is not clear by what magic trick the conclusions of the Berlin conference on Libya became legally binding. Although the Security Council alluded to its determination in resolution 2213 (2015) that the situation in Libya continued to constitute a threat to international peace and security, the Council, unlike in that and other resolutions on the situation in Libya, did not act under Chapter VII of the Charter of the United Nations. In resolution 2509 (2020), adopted only a day earlier and dealing with the Libyan sanctions, the Council determined that the situation in Libya continued to constitute a threat to international peace and security and expressly acted under Chapter VII. While there is some controversy on whether decisions adopted outside of Chapter VII can have binding effect, the large majority of States, including the permanent members of the Security Council, take the position that only decisions made under Chapter VII are legally binding. As resolution 2510 (2020) was not adopted under Chapter VII it could neither impose binding legal obligations on the UN Member States nor make the Berlin conference conclusions legally binding on all parties.
A lot has been made in the legal literature of the controversial ruling of the International Court of Justice (ICJ) in the Namibia advisory opinions that the binding force of Security Council decisions under Article 25 of the UN Charter is not limited to decisions adopted under Chapter VII. However, even the ICJ did not rule that all resolutions of the Security Council were legally binding. On the contrary, the Court held:
“The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.”
There is no indication at all in resolution 2510 (2020) that the Security Council intended to impose legally binding obligations. In particular, the term “endorse” is used to signify public approval of, or public support for, something. The Security Council has “endorsed”, for example, recommendations of the Secretary-General, the result of elections, agreements, roadmaps, peace plans, and communiqués. In the case of most of these endorsements, no reference was made to a threat to international peace and security or action under Chapter VII of the Charter. Unlike in other cases, the conference conclusions were also not put into the resolution as an annex.
The Federal Government itself stated that the conference conclusions were a “political declaration” which had “political effects”. It is difficult to understand how the endorsement of a political declaration could create binding legal obligations not just for the participants of the Berlin conference but for “all parties”.
Rather than making the Berlin conference conclusions legally binding internationally, the Security Council resolution was no more than a sign of political support for the Berlin process. This was also admitted by the German representative on the Security Council who stated upon the adoption of the resolution:
“[W]e are very pleased to see Security Council endorse the conclusions of the Conference today. With the adoption of resolution 2510 (2020), the Council sends an important signal for peace in Libya that reaffirms the concrete commitments of all participants in the Berlin Conference. It is crucial for Libya that we are able to send this signal of unity.”
Other members of the Security Council also made it clear that the resolution was intended as a sign of political support. For example, Estonia noted that the resolution “enhanced and solidified” the positive momentum achieved in Berlin, and for Viet Nam the resolution represented “a commitment on the part of the international community to strive towards a Libyan-led and Libyan-owned peace process to finally put an end to the conflict in Libya”.
Resolution 2510 (2020) is one of those resolutions of the Security Council that the world could have done without. It does not add anything in terms of substance, either to earlier resolutions or to the Berlin conference conclusions. Adopting the resolution seems to have been an end in itself for German diplomacy. Portraying a resolution as creating binding legal obligations, which it clearly does not, is at best an act of self-delusion and at worse an act undermining the credibility of international law. If by its statements the Federal Government intended to make the conflicting parties in Libya implement the Berlin conference conclusions, it failed dismally. On 13 February 2020, a day after the adoption of resolution 2510 (2020) heavy fighting resumed in Libya when troops loyal to General Haftar launched a renewed attack on the capital Tripoli in order to unseat the Government of National Accord.
Category: United Nations
