MASTER OF SCIENCE IN MARITIME SCIENCE MASTER DISSERTATION
Academic year 2017 – 2018
The importance of the SUA Convention in the fight against violence at sea
Student: Jan Van Hauwaert
Submitted in partial fulfillment of the requirements for Supervisor: Prof. Dr. Frank Maes the degree of:
Master of Science in Maritime Science Assessor: Klaas Willaert Master of Science in Maritime Science
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Word of thanks
Before moving on to the content of this master’s dissertation, I would like to express some words of gratitude.
In the first place, I would like to thank my promotor, Prof. Dr. Frank Maes, for granting me the opportunity and the privilege to write a thesis on such an interesting topic. Also, I would like to thank him for sharing his knowledge with me and for discussing with me the best way to approach this task.
I would like to express thanks to my assessor, Mr. Klaas Willaert, as well, for observing my progress and for reaching out new ideas.
Finally, a word of gratitude for my family and the people around me, especially my parents, for the many support throughout the difficult process of writing a thesis.
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List of abbreviations
BCN weapons Biological, chemical and nuclear weapons ICAO International Civil Aviation Organization ICFTU International Confederation of Free Trade Unions ICS International Chamber of Shipping ISF International Shipping Federation ISPS International Ship and Port Facility Code IMO International Maritime Organization Interpol International Criminal Police Organization LNG Liquified Natural Gas MARPOL International Convention for the Prevention of Pollution from Ships NATO North-Atlantic Treaty Organization PLF Palestine Liberation Front PLO Palestine Liberation Organization SOLAS International Convention for the Safety of Life at Sea SUA Convention Convention for the Suppression of Unlawful Acts of violence at Sea against the Safety of Maritime Navigation UN United Nations UK United Kingdom USA United States of America WMD Weapons of mass destruction
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Table of contents I. Historical background of the existence of the SUA Convention ...... 7 1. The Achille Lauro incident – the facts ...... 7 2. Consequences of the Achille Lauro incident ...... 8 2.1 A series of Resolutions ...... 8 2.2 The General Assembly of the United Nations ...... 9 2.3 The International Maritime Organization ...... 9 2.4 The Security Council of the United Nations ...... 11 3. Measures to Prevent Unlawful Acts against Passengers and Crews on Board Ships ...... 11 4. The 1988 Convention for the Suppression of Unlawful Acts of violence at sea against the Safety of Maritime Navigation ...... 14 4.1 Adoption of the SUA Convention ...... 14 4.2 Entry into force ...... 16 II. The content of the 1988 SUA Convention ...... 19 1. Scope of application ...... 19 1.1 Geographical scope of application ...... 19 1.2 Material scope of application ...... 23 2. Juridical mechanisms of the 1988 SUA Convention ...... 35 2.1 Obligation to criminalize and penalize the offences ...... 35 2.2 Jurisdiction ...... 36 2.3 Aut dedere aut iudicare ...... 44 2.4 Measures of preventive nature ...... 49 3. Conclusion ...... 51 III. The 2005 Protocol ...... 52 1. Introduction ...... 52 2. New maritime offences ...... 53 2.1 First category of offences ...... 54 2.2 Second category of offences ...... 55 2.3 Third category of offences ...... 59 2.4 Conclusion ...... 61 3. Ship-boarding procedures ...... 62 IV. Conclusion ...... 67
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Introduction
Ever since people have been sailing the seas and oceans, they also have been subject to many kinds of perils. First of all, there is the harsh environment. Vessels and their crew are continuously left at the mercy of the elements of water, wind, fire and even earth, when encountering sandbanks for example. But the perils of the sea are certainly not only of natural origin. Bearing in mind the Latin adage “homo homini lupus”, humanity itself may pose a serious threat to the safety of maritime navigation as well. The incident with the Italian cruise ship, the Achille Lauro, which was attacked by terrorists is a well-known example. Just like aviation, international maritime traffic should benefit from an international legal framework which aims at suppressing acts of violence at sea and maritime terrorism. After the Achille Lauro attack, the IMO Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (and later on, in 2005, a Protocol to it) came into existence, providing such framework. This is the subject of this master’s dissertation. A thorough research into the content and the effectiveness of the provisions will be done. As the title of this master’s dissertation says, this will be the main topic and research question. Also, I will try to identify the deficiencies of the texts. However, in my view, since the concept of anti-terrorism conventions in international law is a rather sensitive subject to States, it is important to take a closer look at the historical background and the drafting of the SUA Convention. The methodology that will be followed, consists of a classic source research of legislation, jurisprudence and, to a very small extent, case law. There are very little actual cases known in relation with the Convention. Of course, the fewer the incidents, the better.
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I. Historical background of the existence of the SUA Convention
The history and the main reason of the existence of the SUA Convention has to be held against the background of the Achille Lauro case and the combat against maritime terrorism. Concerning (civil) aviation, a series of hijackings of aircrafts towards the end of the 1960s, made clear that a legal framework was required for criminalizing and prosecuting those who were guilty of unlawful acts against safety of aviation. In 1970, the Convention for the Suppression of Unlawful Seizure of Aircraft (the “Hague Convention”) came into existence and in 1971, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (the “Montreal Convention”) was adopted and later on replaced by the 2010 Convention on the Suppression of Unlawful Acts relating to International Civil Aviation (the “Beijing Convention”, which has not yet entered into force).1
The Achille Lauro case made clear that a legal framework and similar rules were also required to ensure safety at sea.
1. The Achille Lauro incident – the facts
The MS Achille Lauro was a cruise ship flying the Italian flag at the time of the incident. On the 7th of October, 1985, the ship was hijacked by four armed members, who boarded the ship as tourists, of the Palestine Liberation Front (a faction of the Palestine Liberation Organization, PLO) off the coast of Egypt, while on its way from Alexandria to Port Said. The ship was locates on the high seas while being held by the hijackers.2
The four hijackers held the ship’s crew and passengers hostage and threatened to kill them in the case their demands would not have been given in and to blow up the ship if any rescue were to be attempted. They demanded the release by Israel of 50 Palestinian prisoners. The day after the hijacking, one of the passengers, a Jewish man with U.S. nationality in a wheelchair, was killed and thrown overboard because their demands had not been satisfied yet.
1 C. KOJIMA, “Hijacking”, Oxford Public International Law, Oxford University Press, 2015, 4-8. 2 M. H. NORDQUIST, R. WOLFRUM, J. N. MOORE, R. LONG (eds.), Legal challenges in maritime security, Leiden- Boston, Martinus Nijhoff Publishers, 2008, 42. 7
The day after this event, the terrorists surrendered, having concluded an agreement with Egypt, Germany and Italy, containing the release of the hostages in exchange for the handing over of the terrorists to the PLO.
After the news that an American citizen had been killed reached the American authorities, the President of the U.S.A. asked for the extradition of the hijackers. Egypt however denied any knowledge of the attack and gave permission to the Palestinians to leave its territory. After confirmation of the killing of the U.S. citizen, Egypt was not keen on breaking the earlier mentioned agreement.3
Later on, on the 10th of October, U.S. Navy F-14 fighters intercepted the Egyptian aircraft carrying the Palestinian terrorists and the negotiators, including PLF leader Abu Abass, on its way to Tunisia and forced the aircraft to land at a NATO base in Sicily. After the landing, the terrorists were taken into Italian custody.4 The Italian government refused the demand of the U.S. to extradite the hijackers and to provisionally arrest Abu Abass.
Eventually, 15 men were brought before the Italian courts for a number of serious breaches of domestic Italian criminal law regarding the Achille Lauro case. Some of them appeared before the tribunal, others were convicted in absentia.5
2. Consequences of the Achille Lauro incident
2.1 A series of Resolutions
As mentioned, the U.S. showed its interest in the case since the killing of an U.S. citizen was involved. The U.S. qualified the case as piracy, a statement that has led to some controversy.6 On first sight, it seems that the Achille Lauro case does not completely comply with the conditions, as implemented by the 1982 Law of the Sea Convention, for a case to be considered piracy. This will be discussed further on.
3 C. RAGNI, “Achille Lauro Affair 1985”, Oxford Public International Law, Oxford University Press, 2015, 4. 4 X., “Achille Lauro hijacking ends”(article), http://www.history.com/this-day-in-history/achille-lauro-hijacking- ends. 5 C. RAGNI, “Achille Lauro Affair 1985”, Oxford Public International Law, Oxford University Press, 2015, 5. 6 M. HALBERSTAM, “Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety”, The American Journal of International Law, American Society of International Law, 1988, Vol. 82, No. 2, 270. 8
The goal of the qualification of the case by the U.S. as piracy seems clear. As the seizure of piracy is considered to be the oldest and most well-attested example of universal jurisdiction7, there would be a legal basis for the U.S. authorities to take legal action and punish the Palestinian terrorists. However, even if the prerequisites of piracy were fulfilled in casu, the way of capturing the pirates by the U.S., by intercepting the Egyptian aircraft transporting the terrorists, remains illegitimate. International law only authorizes States to arrest the pirates themselves or to seize their vessels, not the state aircraft transporting them.8
The Achille Lauro incident made clear that there was a gap in international law and that an international legal framework was required, which deals with certain acts of violence at sea, like maritime terrorism.
2.2 The General Assembly of the United Nations
The Achille Lauro case did not pass unnoticed. The matter of international terrorism was the direct subject of Resolution A/RES/40/61 of the 9th of December, 1985 of the General Assembly of the United Nations, condemning, “as criminal, all acts, methods and practices of terrorism wherever and by whomever committed, including those which jeopardize friendly relations among States and their security”.9 After mentioning and encouraging the efforts of the International Civil Aviation Organization (ICAO) on the topic, the Resolution directly addresses the International Maritime Organization. It requests the IMO “to study the problem of terrorism aboard or against ships with a view to making recommendations on appropriate measures”.
2.3 The International Maritime Organization
The IMO had already looked into the matter of certain acts of violence at sea in a number of resolutions. Resolutions A.545(13), adopted on the 17th of November 1983, and thus before the
7 Y. TANAKA, The International Law of the Sea (second edition), Cambridge, Cambridge University Press, 2015, 382. 8 C. RAGNI, “Achille Lauro Affair 1985”, Oxford Public International Law, Oxford University Press, 2015, 11. 9 Resolution 40/61 of the General Assembly of the United Nations (9 December 1985), UN Doc. A/RES/40/61 (1985), 1. 9
Achille Lauro incident, and A.584 (14) (20 November 1985) aim respectively at taking ‘measures to prevent acts of piracy and armed robbery against ships’ and ‘measures to prevent unlawful acts which threaten the safety of ships and the security of their passengers and crew’.
Thus the Resolution of 20 November 1985, adopted after the Palestinian terrorist attack on the Achille Lauro, was not limited to piracy and armed robbery, but also refers to the broader concept of ‘other unlawful acts’. In Resolution A.584 (14), by recognizing ‘the need for the Organization to assist in the formulation of internationally agreed technical measures to improve security and reduce the risk to the lives of passengers and crews on board ships’, the Assembly further directs the Maritime Safety Committee to develop, on a priority basis, detailed and practical technical measures to ensure the security of passengers and crews on board ships.10
Remarkable is the fact that the IMO Assembly Resolution of 20 November 1985 (post Achille Lauro) refers to unlawful acts against or on board ships, ‘both at anchor and under way’ and that the Assembly calls upon all Governments, port authorities and administrations, shipowners, ship operators, shipmasters and crews to take steps to ‘strengthen port and on-board security’, without any geographical limitation. It has to be noted that the IMO Resolution of 1983 requires governments to take measures to prevent and suppress acts of piracy and armed robbery against ships “in or adjacent to their waters”. Again this means a broader concept of unlawful acts, in a geographical sense.
Also, the Resolution of 20 November 1985 explicitly includes port security, next to on-board security. By doing so, the IMO goes further than its traditional limited mandate of making “rules for ships only”, and thus extending its traditional mandate to port regulations, as had been the case for the MARPOL Convention and the adopting of reception facilities.11 With these first steps to include port security within its regulatory task, the IMO follows the sector of aviation and airport and aircraft security.12
10 Resolution A.584(14) of the Assembly of the International Maritime Organization [IMO] (20 November 1985), UN Doc., A.584(14) (1985). 11 T. MALICK NDIAYE, R. WOLFRUM, C. KOJIMA (eds.), Law of the Sea, environmental law and settlement of disputes: Liber Amicorum Judge Thomas A. Mensah, Leiden-Boston, Martinus Nijhoff Publishers, 2007, 715. 12 T. MALICK NDIAYE, R. WOLFRUM, C. KOJIMA (eds.), Law of the Sea, environmental law and settlement of disputes: Liber Amicorum Judge Thomas A. Mensah, Leiden-Boston, Martinus Nijhoff Publishers, 2007, 715. 10
2.4 The Security Council of the United Nations
On the 18th of December, 1985, the UN Security Council also formulated a resolution concerning the terrorist attack on the Achille Lauro, in which it condemns ‘all acts of hostage- taking and abduction’ and affirms the obligation of all states to take all appropriate measures to secure the safe release of people taken hostage or abducted on their territory and the prevention of these acts. Further on, it urges ‘the further development of international co-operation among states in devising and adopting effective measures which are in accordance with the rules of international law to facilitate the prevention, prosecution and punishment of all acts of hostage- taking and abduction as manifestations of international maritime terrorism.13
An important element of this resolution is that it stresses the necessity for international rules which facilitate prosecution and punishment of such acts of international maritime terrorism and unlawful acts committed at sea. As piracy is narrowly defined in the 1982 Law of the Sea Convention, the same regime of universal jurisdiction will not apply to such unlawful acts that do not fall within this definition. However, a legal regime, providing international rules for prosecution and punishment for other unlawful acts of violence at sea than piracy may be desirable.
3. Measures to Prevent Unlawful Acts against Passengers and Crews on Board Ships
At its 53rd session, on the 26th of September 1986, the Maritime Safety Committee approved the measures to prevent unlawful acts against passengers and crews on board ships14, the text of which has been adopted in an attached document MSC 53/24, annex 14.
According to the text, these measures are intended to assist Member Governments when reviewing and strengthening, as necessary, port and onboard security in accordance with resolution A.584(14). Indeed, we already saw that the Assembly of the IMO in Resolution A.584(14) of 20 November 1985 directed the Maritime Safety Committee to develop such measures.
13 Resolution 579 of the Security Council of the United Nations (18 December 1985), UN Doc., S/RES/579. 14 MSC/Circ.443 of the Maritime Safety Committee of the IMO (26 September 1986). 11
Also, Member Governments are requested to bring the measures to the attention of concerned organizations and interested parties.
First of all, this text contains some general provisions, for example that Governments, port authorities, administrations, shipowners, operators, shipmasters and crews should take all appropriate measures against unlawful acts threatening passengers and crews on board ships and that there should be appropriate legislation which, inter alia, could provide penalties for persons gaining or attempting to gain unauthorized access to the port facility and persons committing unlawful acts against passengers or crews on board ships.15
Subsequently, the text of the Maritime Safety Committee foresees that port facilities should develop and maintain an appropriate port facility security plan. This security plan should provide for measures and equipment as necessary to prevent weapons or any other dangerous devices, the carriage of which is not authorized, from being introduced by any means whatsoever on board ships and should also contain measures to prevent unauthorized access to the ship and to restricted areas of the passenger terminal.16
Similar to the aforementioned port facility security plan, the text implements that a ship security plan should be developed for each ship, containing similar measures.17
Furthermore, some annexes are attached to the document, which contain information that might be useful when developing or improving security measures.
When taking a view on this text of the Maritime Safety Committee, it must be noticed that these measures aim in particular at prevention of unlawful acts and security in port installations and ships. While these are necessary, there is still an important aspect left behind, that is the aspect of arresting, prosecution and extradition, which was one of the big issues of the Achille Lauro case. Effective measures for the ‘prevention, prosecution and punishment’ were also requested by the UN Security Council in Resolution 579.18
So the text of the Maritime Safety Committee still does not provide the required maritime international legal framework, similar to the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. In September 1986, the international rules concerning
15 MSC/Circ.443 of the Maritime Safety Committee of the IMO (26 September 1986), MSC 53/24, annex 14, 2. 16 MSC/Circ.443 of the Maritime Safety Committee of the IMO (26 September 1986), MSC 53/24, annex 14, 3. 17 MSC/Circ.443 of the Maritime Safety Committee of the IMO (26 September 1986), MSC 53/24, annex 14, 4. 18 Resolution 579 of the Security Council of the United Nations (18 December 1985), UN Doc., S/RES/579 (1985). 12
(the narrowly defined concept of) piracy, provided by the 1958 Geneva Convention on the High Seas and the 1982 Law of the Sea Convention (which had not entered into force by then), remain the only rules adopted in international treaty law for the seizure and punishment of persons involved in crimes at sea.19
To conclude, although the Measures to Prevent Unlawful Acts against Passengers and Crews on Board Ships, formulated by the Maritime Safety Committee, are the first steps in combatting, or at least preventing, maritime terrorism, they are certainly not sufficient to fill the existing legal gaps which were exposed by the Achille Lauro attack. Also, these measures adopted by the Maritime Safety Committee are not the content of some treaty or convention or another legally binding document, making it more like an obligation of effort upon governments, port authorities and facilities, shipowners, operators, etc. to effectively take these measures. This view gains support by the language used in the text, that governments, etc. “should take all appropriate measures…”.
Furthermore, it can be mentioned that the Measures to Prevent Unlawful Acts against Passengers and Crews on Board Ships, as adopted in 1986, already are a (very basic) prequel to the IMO 2002 International Ship and Port Facility Code (ISPS Code).20 Indeed, the ISPS Code and SOLAS amendments 2002 refers to the MSC/Circ.443 document.21 This code contains measures to detect security threats and take preventive measures against security incidents affecting ship or port facilities.
19 T. MALICK NDIAYE, R. WOLFRUM, C. KOJIMA (eds.), Law of the Sea, environmental law and settlement of disputes: Liber Amicorum Judge Thomas A. Mensah, Leiden-Boston, Martinus Nijhoff Publishers, 2007, 716. 20 T. MALICK NDIAYE, R. WOLFRUM, C. KOJIMA (eds.), Law of the Sea, environmental law and settlement of disputes: Liber Amicorum Judge Thomas A. Mensah, Leiden-Boston, Martinus Nijhoff Publishers, 2007, 716. 21 International Ship and Port Facility Code and SOLAS Amendments 2002, Annex, Resolution 1 of the Conference of contracting governments to the International Convention for the Safety of Life at Sea, 1974 adopted on 12 December 2002, SOLAS/CONF.5/32, 2. 13
4. The 1988 Convention for the Suppression of Unlawful Acts of violence at sea against the Safety of Maritime Navigation
4.1 Adoption of the SUA Convention
As mentioned above, the adoption of the Measures to Prevent Unlawful Acts against Passengers and Crews on Board Ships by the Maritime Safety Committee, did not provide the international legal framework which was necessary to deal with unlawful offences committed at sea, other than piracy, since the international law on piracy does not cover all threats to human life and the security of navigation at sea.
It was not (the Legal Committee of) the IMO that first came up with a draft convention. In the view of the Legal Advisors of the Foreign Ministeries of Italy, Austria and Egypt, the Achille Lauro case could not have been qualified as piracy, because of the fact that the attack was not committed for “private ends” and that there was not a second vessel involved (“two-vessel requirement”)22. There was a legal gap which had to be filled by elaborating specific international regulations concerning maritime terrorism and unlawful acts of violence at sea.23
On the initiative of Italy, Austria and Egypt, a draft convention against maritime terrorism was submitted to the IMO. This draft convention was based on other international treaties and conventions relating to specific aspects of terrorism, such as the Hague Convention on Suppression of Unlawful Seizure of Aircraft of 16 December 1970 and the Montreal Convention on the Suppression of Unlawful Acts Against the Safety of Civil Aviation of 23 September 1971.24 The Hague Convention criminalizes certain acts relating to hijacking of aircraft and already implements an ‘aut dedere, aut iudicare’25 regime and a regime of universal jurisdiction, which were also considered necessary after the Achille Lauro terrorist attack in cases of maritime terrorism.26 The 1971 Montreal Convention concerns acts of sabotage.
22 Art. 15 of the 1958 Geneva Convention on the High Seas; Art. 101 of the 1982 Law of the Sea Convention 23 M. H. NORDQUIST, R. WOLFRUM, J. N. MOORE, R. LONG (eds.), Legal challenges in maritime security, Leiden- Boston, Martinus Nijhoff Publishers, 2008, 48. 24 M. HALBERSTAM, “Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety”, The American Journal of International Law, American Society of International Law, 1988, Vol. 82, No. 2, 291. 25 “Aut dedere, aut iudicare” essentially implies the obligation of a State to either prosecute or extradite a suspect of a certain crime. 26 C. KOJIMA, “Hijacking”, Oxford Public International Law, Oxford University Press, 2015, 7. 14
The IMO Council agreed unanimously that the matter required urgent attention27 and decided to establish the ‘Ad Hoc Preparatory Committee on the Suppression of Unlawful Acts against the Safety of Maritime Navigation‘, open to all states, with the mandate to prepare a draft Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (similar to the title of the Montreal Convention), based on the draft issued by Austria, Egypt and Italy.28
The Preparatory Committee convened twice, in March and May of the year 1987 to take the draft Convention into consideration. Two draft texts were considered, the convention relating to ships and a protocol to the convention relating to fixed platforms located on the continental shelf.29 The United States, along with some other states, proposed that such platforms also should be protected from terrorist attacks.30 Drafts of the proposed convention and protocol were handed over for review and consideration by the IMO Council on its 58th session. The IMO Council at this session in June 1987 decided to convene an international Conference on the suppression of unlawful acts against the safety of maritime navigation.31
By Resolution of 20 November 1986, the International Conference on the Suppression of Unlawful Acts against the Safety of Maritime Navigation was approved by the Assembly of the IMO for 1988.32 The purpose of the Conference was “to consider the adoption of instruments on the suppression of unlawful acts against the safety of maritime navigation and the safety of fixed platforms located on the continental shelf”33.
The International Conference was to be held in Rome, on the proposal of the Italian Government in March 1988. The final texts of the Convention were adopted on the 10th of March, 1988 by consensus of 76 States, that had sent their representatives to the Conference, under the auspices of the IMO. The Palestine Liberation Organization also sent its observers to the Conference.34
27 IMO Doc. C.57/25 (1 October 1986); J. KRASKA, R. PEDROZO, International maritime security law, Leiden- Boston, Martinus Nijhoff Publishers, 2013, 803. 28 M. HALBERSTAM, “Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety”, The American Journal of International Law, American Society of International Law, 1988, Vol. 82, No. 2, 292. 29 J. KRASKA, R. PEDROZO, International maritime security law, Leiden-Boston, Martinus Nijhoff Publishers, 2013, 803. 30 H. TUERK, Combatting Terrorism At Sea – The Suppression of Unlawful Acts against the Safety of Maritime Navigation, 15 U. Miami Int’l & Comp L. Rev 337, 2008, 346. 31 IMO Doc. SUA/CONF/17 (29 March 1988), 1. 32 Resolution A.633(15) of the Assembly of the IMO (20 November 1987). 33 IMO Doc. SUA/CONF/17 (29 March 1988), 1. 34 IMO Doc. SUA/CONF/17 (29 March 1988), 4, 6. 15
So three years after the Achille Lauro incident, on the 10th of March, 1988, the IMO Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, were adopted. Finally there was an international legal basis which allows appropriate legal action against persons committing certain unlawful acts against ships engaged in international navigation and fixed platforms located on the continental shelf.35
4.2 Entry into force
According to Art. 17, 1 of the Convention, the convention shall be open for signature at Rome on 10 March 1988 by States participating in the International Conference on the Suppression of Unlawful Acts against the Safety of Maritime Navigation and at the Headquarters of the Organization by all States from 14 March 1988 to 9 March 1989. Thereafter, it shall remain open for accession to all States.
Following Art. 18, 1 of the SUA Convention, the Convention shall entry into force ninety days after the date on which fifteen States have either signed it without reservation as to ratification, acceptance or approval, or have deposited an instrument of ratification, acceptance, approval or accession in respect thereof.
The SUA Convention entered into force on the 1st of March, 1992, four years after the adoption of the Convention on the International Conference. The first fifteen countries to deposit an instrument of ratification, acceptance, approval or accession were Austria (1989), China (1991), France (1991), Gambia (1991), Hungary (1989), Germany (1990), Italy (1990), Norway (1991), Oman (1990), Poland (1991), Seychelles (1989), Spain (1989), Sweden (1990), Trinidad and Tobago (1989) and the United Kingdom (1991).36 Of course Austria, Italy and Germany, as the main driving forces begin the SUA Convention, are among the first countries to ratify the Convention. Also some other countries with an important merchant ship fleet, like France, Norway, the U.K., Spain, Sweden and China have put quick effort into ratifying or acceding the SUA Convention.
35 T. MALICK NDIAYE, R. WOLFRUM, C. KOJIMA (eds.), Law of the Sea, environmental law and settlement of disputes: Liber Amicorum Judge Thomas A. Mensah, Leiden-Boston, Martinus Nijhoff Publishers, 2007, 717. 36 Doc. Status of IMO Treaties – Comprehensive information on the status of multilateral Conventions and instruments in respect of which the International Maritime Organization or its Secretary-General performs depositary or other functions (18 April 2018), 424-426. 16
However, other States were rather slow to ratify the SUA Convention or accede to it, despite the fact that the matter gained many attention after the Achille Lauro incident and that it is a useful tool to suppress certain acts of violence at sea. In the first thirteen years after the adoption, on 31 December 2000, only 52 states became parties to the SUA Convention.37
The General Assembly of the United Nations seemed to share the same opinion, as it urges States to become parties to the SUA Convention and its Protocol and to ensure its effective implementation in Resolution 55/7.38 By doing so, the General Assembly seems to emphasize the importance of the SUA Convention in the combat against maritime terrorism and other unlawful acts of violence at sea.
The 9/11 terrorist attacks on the U.S. World Trade Centre served as a wake-up call for States in the process of becoming party to the SUA Convention. In November 2001, the Assembly of the IMO adopted another resolution in which it expresses its great concern for the security of passengers and crews on board ships, both at anchor and under way, in the context of terrorism and other unlawful acts against ships, people on shore, in port areas and offshore terminals.39 It also puts again pressure on governments which have not accepted the 1988 Rome Convention (the SUA Convention) and its Protocol by calling to consider doing so at the earliest opportunity.
The event of 9/11 and the pressure put on governments by the UN and the IMO seemed to have had its effect on the number of States becoming parties to the SUA Convention. In the years following 2001, dozens of countries became parties to the Convention. On November 30, 2006, already 142 States became parties to the Rome Treaty.40
Resolution A. 924 (22) of 20 November 2001 had another important impact on the evolutionary process of installing an international legal framework concerning maritime terrorism and other unlawful acts of violence at sea. The Assembly recognizes the need for the Organization to review, with the intent to revise, existing legal and technical measures, and to consider new appropriate measures to prevent and suppress terrorism against ships and to improve security aboard and ashore. Therefore, it requests the Maritime Safety Committee, the Legal Committee
37 R. HERBERT-BURNS, S. BATEMAN, P. LEHR (eds.), Lloyd’s MIU Handbook of Maritime Security, Boca Raton, CRC Press, 2008, 190. 38 Resolution 55/7 of the General Assembly of the United Nations (27 February 2001), UN. Doc. A/RES/55/7 (2001), 7. 39 Resolution A.924 (22) of the Assembly of the IMO (20 November 2001). 40 R. HERBERT-BURNS, S. BATEMAN, P. LEHR (eds.), Lloyd’s MIU Handbook of Maritime Security, Boca Raton, CRC Press, 2008, 190. 17 and the Facilitation Committee “to undertake, on a high priority basis, a review to ascertain whether there is a need to update the instruments” mentioned in the preamble of the resolution, among which the 1988 SUA Convention.41
Indeed, as we will see further on, a Protocol to the 1988 SUA Convention will be elaborated in 2005. This is the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 14 October 2005.
The importance of the SUA Convention and becoming member to it for combatting violence at sea has further been stressed by the UN Security Council in its Resolution 1846 of 2 December 2008. The Resolution was adopted in the context of the fight against piracy in the coast of Somalia. The Council notes that “the 1988 SUA Convention provides for parties to create criminal offences, establish jurisdiction and accept delivery of persons responsible for or suspected of seizing or exercising control over a ship by force or threat thereof or any other form of intimidation”. It further urges States parties to the Convention to fully implement their obligations under the SUA Treaty and cooperate with the Secretary-General and the IMO “to build judicial capacity for the successful prosecution of persons suspected of piracy and armed robbery at sea off the coast of Somalia”.42
With the upcoming acts of piracy in countries such as Somalia and Indonesia, the SUA Convention definitely shows its relevance. The narrow scope of the piracy concept makes the Convention, which has a broader application, a very useful tool in the process of prosecuting and extraditing suspects of piracy.
As of 5 March 2018, no less than 166 states have become party to the 1988 SUA Convention, the combined merchant fleets of which constitute approximately 95.16 % of the gross tonnage of the world’s merchant fleet.43 Considering this and the fact that currently the IMO has 173 Member States (and 3 Associate Members)44, it has to be concluded that the 1988 SUA Convention is an international legal framework that is recognized by a vast majority of States among which all States with the most important merchant fleets and has a worldwide application. It also shows that the international community is taking the threats of international
41 Resolution A.924 (22) of the Assembly of the IMO (20 November 2001), 2. 42 Resolution 1846 of the Security Council of the United Nations (2 December 2008), UN. Doc. SC/ 9514 (2008), 15. 43 Doc. Status of IMO Treaties – Comprehensive information on the status of multilateral Conventions and instruments in respect of which the International Maritime Organization or its Secretary-General performs depositary or other functions (18 April 2018), 426. 44 http://www.imo.org/en/About/Membership/Pages/Default.aspx 18 terrorism very serious. Of course, a large number of ratifications or accessions is necessary for the effectiveness of the provisions, as will be seen further on.
II. The content of the 1988 SUA Convention
In the previous part, we discussed the historical context and the process of the establishment of the 1988 SUA Convention and its Protocol on fixed platforms. In this chapter, I will give a view on the specific provisions and their meaning of the Convention, beginning with the scope of application. For structural reasons, the amendments of the 2005 Protocol will be examined in a separate chapter. Also, until today only a small number of States have accepted the 2005 Protocol, so that the provisions of the original 1988 Convention remain the most important.
1. Scope of application
1.1 Geographical scope of application
1.1.1 Art. 4 of the SUA Convention
Of course, the geographical scope of application of the Convention also is of importance. The maritime zones in which the SUA Convention applies are defined in art. 4 of the Convention. This article says:
1. This Convention applies if the ship is navigating or is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States.
2. In cases where the Convention does not apply pursuant to paragraph 1, it nevertheless applies when the offender or the alleged offender is found in the territory of a State Party other than the State referred to in paragraph 1.
Since the general purpose of the SUA Convention is to provide an international legal framework to suppress international maritime terrorism and unlawful acts of violence at sea and to fil in
19 the gaps of the international regulations on piracy, it is quite evident that an international element had to be involved in the geographical scope of application.
Following the first paragraph of Art. 4, the Convention applies when a ship is operating or is scheduled to operate seaward of any State’s territorial sea.45 It does not only apply to offences committed against ships in the high seas, but also when a ship is “navigating or is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a State, or the lateral limits of its territorial sea with adjacent States”.46 The ship has to be subject to an international voyage. The fact that the ship’s schedule is included, makes the scope wider: when a ship is intended to make an international voyage, but in reality for example did not yet leave the territorial sea when a terrorist attack occurs, the SUA Convention nevertheless applies.
Because of the fact that a ship must be operating in an international context, the Convention does not apply when a ship is navigating within the territory of only one State. Thus, offences committed during cabotage operations within one territory, the so-called ‘petit cabotage’, are excluded from the application.47 Some governments, like the Australian Government, expressed their concern that the Convention should not apply to vessels with their nationality, engaged in purely domestic voyages (however the Australian Government did support the insertion of paragraph 2, see further).48 This can be considered as a lack, because foreign passengers might be involved in purely internal maritime transports, such as cruise trips.49 It can be noted that the 1971 Montreal Convention concerning the safety of civil aviation already applied to domestic flights for certain offences and under certain conditions.50
During the consultations on the draft of the 1988 SUA Convention, some delegations also wanted to include in the provision regarding the geographical scope of application a reference to straits used for international navigation. It was pointed out in the travaux préparatoires that this was not necessary since by definition such international straits connect two parts of the
45 H. TUERK, Combatting Terrorism At Sea – The Suppression of Unlawful Acts against the Safety of Maritime Navigation, 15 U. Miami Int’l & Comp L. Rev 337, 2008, 348. 46 T. MALICK NDIAYE, R. WOLFRUM, C. KOJIMA (eds.), Law of the Sea, environmental law and settlement of disputes: Liber Amicorum Judge Thomas A. Mensah, Leiden-Boston, Martinus Nijhoff Publishers, 2007, 720 - 721. 47 H. TUERK, Combatting Terrorism At Sea – The Suppression of Unlawful Acts against the Safety of Maritime Navigation, 15 U. Miami Int’l & Comp L. Rev 337, 2008, 348. 48 IMO Doc. SUA/CONF/8 (20 January 1988), 4. 49 T. MALICK NDIAYE, R. WOLFRUM, C. KOJIMA (eds.), Law of the Sea, environmental law and settlement of disputes: Liber Amicorum Judge Thomas A. Mensah, Leiden-Boston, Martinus Nijhoff Publishers, 2007, 721. 50 Art.4, Para. 2 of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Navigation of 23 September 1971. 20 high seas and ships that are transiting through those straits are therefore considered to travel beyond the territorial sea of a State bordering a strait. According to this text, the Convention will therefore apply in straits that are used for international navigation. Thus, on this point there should be little doubt.51
It should be noted that Chile made the following statement at the time of signature of the Convention:
"In connection with the provisions of article 4 of the present Convention, the Government of Chile shall not apply the provisions thereof to incidents that occur in its internal waters and in the waters of Magellan Strait."52
The Strait of Magellan, between Argentina and Chile, is an international strait which falls outside the scope of the regime of international straits of Part III of the 1982 Law of the Sea Convention. Freedom of navigation to the flags of all States is confirmed in the 1984 Treaty of Peace and Friendship between Argentina and Chile.53 The consequence of the unilateral statement of the Chilean Government is that it won’t apply the SUA Convention to incidents occurred in the Strait of Magellan.
According to paragraph 2 of Art. 4 the Convention also applies, in cases where the Convention normally would not apply according to the first paragraph, when the (alleged) offender is found within the territory of a State Party other than the State mentioned in the first paragraph, the latter meaning the State where the ship is navigating (or scheduled to navigate) at the time an offence is committed.54 Again, an international aspect shows up in this provision.
Of course, this provision widens the geographical scope of application of the SUA Convention. Paragraph 2 makes the SUA Convention applicable based on the location where the (alleged) offender is found (most probably after the offence already occurred), in addition to the first paragraph. A large number of State parties to the Convention is desirable for paragraph 2 to be the most effective. With the current number of 166 Member States, chances are high that an
51 IMO Doc. SUA/CONF/CW/WP.23 (4 March 1988). 52 Doc. Status of IMO Treaties – Comprehensive information on the status of multilateral Conventions and instruments in respect of which the International Maritime Organization or its Secretary-General performs depositary or other functions (18 April 2018), 428. 53 Y. TANAKA, The International Law of the Sea (second edition), Cambridge, Cambridge University Press, 2015, 102 – 103. 54 N. RONZITTI (ed.), Maritime terrorism and International Law, Dordrecht-Boston-London, Martinus Nijhoff Publishers, 1990, 74. 21
(alleged) offender is found within the territory of a Member State to the SUA Convention. As a result, the Convention sure has a broad territorial scope of application.
For paragraph 2 of Art. 4 of the SUA Convention, the Preparatory Committee seems to have had its inspiration in the 1971 Montreal Convention.55
1.1.2 Piracy
The geographical scope of the SUA Convention is much larger than the scope provided for in the case of piracy in the international law on piracy. This makes sense of course, because one of the purposes of the SUA Convention was to circumvent the narrow definition of piracy and to make the Convention applicable to a large amount of situations. Art. 101 of the 1982 Law of the Sea Convention gives a modern definition of piracy, which currently represents the existing customary law56:
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
[…]
According to this definition, an incident can only be considered as piracy when the illegal act is directed on the high seas or in a place outside the jurisdiction of any State. Incidents occurred in other maritime zones, such as the territorial sea, are immediately excluded from the scope.
55 Art. 4, para. 3 of the Montreal Convention of 23 September 1971; IMO Doc. SUA/CONF/8 (20 January 1988), 4. 56 Y. TANAKA, The International Law of the Sea (second edition), Cambridge, Cambridge University Press, 2015, 379. 22
The maritime zones, the territorial seas, archipelagic waters, international straits, the EEZ and even internal waters are basically covered by the SUA Convention,57 depending on whether there is an international aspect to the voyage of the vessel. Since many acts of violence occur in the territorial seas, the SUA Convention certainly is a helpful instrument to fill in this gap left by the international law on piracy.
1.1.3 Conclusion
It has to be concluded that the provisions of the SUA Conventions regarding the geographical scope cover a large territory and that the SUA Convention has a broad territorial field of application. It applies when a ship is navigating or is scheduled to navigate seaward of any State’s territorial sea. If this would not be the case, the Convention nevertheless applies when the (alleged) offender is found within the territory of any Member State to the SUA Convention. Therefore, the importance of the SUA Convention grows with each State becoming a member to the Treaty.
1.2 Material scope of application
1.2.1 “Ship”
Art. 1 of the SUA Convention gives a definition of “ship”: a vessel of any type whatsoever not permanently attached to the seabed, including dynamically supported craft, submersibles, or any other floating craft. As it applies to a vessel “of any type whatsoever”, the definition of “ship” seems to be wide, as long as it is not permanently attached to the seabed. To extend the definition even more, some types of craft that operate on, above or under the sea are also mentioned. An example of a dynamically supported craft is a hydrofoil boat, the hull of which does not come into contact with the water, like a regular vessel. There was a proposal to end the definition with the phrase “or structure, whether capable of navigating under its own power
57 Y. TANAKA, The International Law of the Sea (second edition), Cambridge, Cambridge University Press, 2015, 389. 23 or not”. Since these structures are also covered by “or any other floating craft”, the phrase was not added to the definition.58
It can be concluded that whenever the word “ship” is used in the SUA provisions, this must be interpreted in a very broad sense. During the informal consultations it was agreed upon that the definition of ship should be as wide as possible and that the definitions of “ship” and “fixed platform” (in case of the 1988 Protocol relating to safety of fixed platforms) should complement each other, leaving no gaps.59 This is of course important for the success of the Convention in the fight against maritime terrorism and acts of violence at sea and to ensure maritime safety. The wider the definition of the concept “ship”, the more offences at sea that are covered by the Convention. A clear definition also helps avoiding problems of interpretation. Only this way, the Convention can fulfill its purpose.
Excluded from application are warships and ships owned or operated by a State when being used as a naval auxiliary or for customs or police purposes. Government ships which have been withdrawn from navigation or laid up are also excluded (Art. 2 of the Convention). This means that government ships that are being used for other purposes, like commerce, basically fall under the scope of the Convention. As a result, for example the seizure by force of a government commercial ship will be an offence under Art. 3, 1.1 of the Convention.
Concerning warships and government ships for non-commercial use however, Art. 2, 2 states that nothing in the Convention shall affect the immunity of these vessels. Thus, a state operated non-commercial vessel, for example a research vessel, can be subject of one of the offences set out in Art. 3, but this does not affect its immunity, as provided for in the international law of the sea.60 Further on in the Convention, Art. 9 also says that “nothing in this Convention shall affect in any way the rules of international law pertaining to the competence of States to exercise investigative or enforcement jurisdiction on board ships not flying their flag”. One might say that these provisions give in to the ever existing concern of States on boarding and investigating their ships by non-flag State authorities.61
58 IMO Doc. SUA/CONF/CW/WP.18 (3 March 1988), 4. 59 IMO Doc. SUA/CONF/CW/WP.18 (3 March 1988), 1. 60 N. RONZITTI (ed.), Maritime terrorism and International Law, Dordrecht-Boston-London, Martinus Nijhoff Publishers, 1990, 73. 61 M. H. NORDQUIST, R. WOLFRUM, J. N. MOORE, R. LONG (eds.), Legal challenges in maritime security, Leiden- Boston, Martinus Nijhoff Publishers, 2008, 53. 24
1.2.2 The offender
1.2.2.1 Acts on behalf of a government
According to Art. 3, “any person” that commits one of the mentioned offences, is an offender. However this may seem very clear, at the time of the elaboration of the draft convention, there was some discussion on the profile of the offender. There was a proposal by the Government of Kuwait to add after the words “any person”, the words “even if acting on behalf of a government”. It also requested to insert in the preamble of the Convention the following:62
RECOGNIZING FURTHER that an unlawful act even if committed on behalf of a Government does not deprive such an act of its unlawful character.
Also Saudi-Arabia inserted in its submission of a draft Convention the following sentence63:
Any ordinary person or Government commits an offence if that person unlawfully and intentionally […]
The governments of some States, like Kuwait, Libya64 and Saudi-Arabia wanted illegal acts committed on behalf of governments to be included in the scope of the SUA Convention. This rather political issue was left to the Diplomatic Conference to decide upon.65 It is clear that the Kuwait proposal is less drastic than the proposal of Saudi-Arabia and aims to make sure that an individual charged with an offence could not invoke the orders of a government as a ground for exclusion of the application of the SUA Convention.66 Both proposals were eventually rejected by the Diplomatic Conference. If an individual would commit one of the offences, according to the present text it would not make a difference whether it was committed on behalf of a government or not for the application of the SUA Convention. The commission on behalf of a government can in principle not be invoked as a defense ground, since the article uses the words
62 IMO Doc. SUA / CONF / 12 (17 February 1988), 1. 63 IMO Doc. SUA/CONF/CW/WP.14 (3 March 1988), 2. 64 IMO Doc. SUA/CONF/CW/WP.15 (3 March 1988), 1. 65 Y. DINSTEIN, M. TABORY, Israel yearbook on human rights, Volume 19, Dordrecht-Boston-London, Martinus Nijhoff Publishers, 1989, 336 – 337. 66 Y. DINSTEIN, M. TABORY, Israel yearbook on human rights, Volume 19, Dordrecht-Boston-London, Martinus Nijhoff Publishers, 1989, 337. 25
“any person”.67 It can be argued that the insertion of the words “even if acting on behalf of a government” would be unnecessary.
It must be observed that the 1971 Montreal Convention on the suppression of unlawful acts against the safety of civil aviation also uses the exact same words “any person commits an offence if he unlawfully and intentionally […]”. An interesting case relating to the matter of unlawful acts of violence on behalf of governments is the Lockerbie incident.
On December 21, 1988, a bomb exploded on a Pan Am aircraft while flying above the Scottish town Lockerbie, killing all 259 passengers and crew, as well as 11 Lockerbie residents. The bomb was installed by two Libyans, who were believed to be members of Libya’s security services and part of Libya’s global terror network. At the time, Libya was led by Moammar al- Qadhafi, who was known for having an anti-western ideology and was held responsible by the U.S. for a terrorist bombing attack of disco La Belle in West-Berlin in 1986 (which was frequently visited by U.S. military personnel).68 The Lockerbie event had awoken attention in the international law scene to organized, state-sponsored terrorism.69
The United States of America and the United Kingdom demanded extradition of the two Libyans for prosecution. Both States based their demands on the obligations under the 1971 Montreal Convention, to which Libya also was a Member State. However, Libya refused extradition of both men, arguing that it is its right under the Montreal Convention to prosecute themselves, under the “aut dedere aut iudicare” principle70, as also is applicable under the 1988 SUA Convention. Thus it seems to be the case that the interpretation of offences committed by ‘any person’, can be extended to State-supported or State-financed persons. At the least, the Lockerbie case shows that (suspicion of) State involvement does not immediately exclude the application of these conventions.
For the sake of completeness, Libya did not hand over the suspects on basis of the Montreal Convention and only after many years of continuous pressure by the UN Security Council and the international community the two Libyans were finally handed over to the Netherlands.
67 N. RONZITTI (ed.), Maritime terrorism and International Law, Dordrecht-Boston-London, Martinus Nijhoff Publishers, 1990, 85. 68 K. N. TRAPP, State responsibility for International Terrorism – Problems and Prospects, Oxford, Oxford University Press, 2011 , 236. 69 D. BEDERMAN, Globalization and international law, Basingstoke, Palgrave Macmillan, 2008, 115. 70 M. PLACHTA, “The Lockerbie Affair: when extradition fails are the United Nations sanctions a solution? (The role of the Security Council in the enforcing of the rule aut dedere aut iudicare)”, Annual report for 1999 and resource material series No. 57, UNAFEI, September 2001, 93-107. 26
There, they were brought for trial before three Scottish judges and one of them was sentenced for the murder of 270 individuals at Lockerbie.71
It must also be noticed that in the preamble of the SUA Convention a paragraph was inserted, recalling Resolution 40/61 and in which the UN General Assembly "unequivocally condemns, as criminal all acts, methods and practices of terrorism wherever and by whomever committed, including those which jeopardize friendly relations among States and their security". By condemning these acts, methods and practices as criminal, it might be argued that the SUA Convention also applies to individuals acting on behalf of a government. Also, there is no express exclusion of state-supported, state-financed or State terrorism.
In another paragraph in the preamble of the 1988 SUA Convention, also referring to Resolution 40/61, it is urged upon that all States unilaterally and in co-operation with other States, as well as relevant United Nations organs, should contribute to the progressive elimination of causes underlying international terrorism and should pay special attention to all situations, including colonialism, racism and situations involving mass and flagrant violations of human rights and fundamental freedoms and those involving alien occupation, that may give rise to international terrorism and may endanger international peace and security. One can regard this paragraph as a sort of obligation of efforts put upon States, requiring States to pay special attention to the underlying reasons for international terrorism and to eliminate these reasons. Of course, this paragraph does not generate an exclusion of the application of the SUA Convention. Following TREVES, under certain circumstances it might be invoked to justify the application of milder penalties72, from the point of view of mitigating factors.
This paragraph can be considered as a compromise to the Libyan proposal to insert a paragraph which would exclude the application of the SUA Convention in case of an offence committed during the armed conflict as defined in the 1949 Geneva Convention and its Protocols, which provides for the struggle of people against colonial domination, foreign occupation and systems of racist regimes in the context of the right of self-determination.73
71 D. BEDERMAN, Globalization and international law, Basingstoke, Palgrave Macmillan, 2008, 116. 72 N. RONZITTI (ed.), Maritime terrorism and International Law, Dordrecht-Boston-London, Martinus Nijhoff Publishers, 1990, 86. 73 IMO Doc. SUA/CONF/CW/WP.15 (3 March 1988), 1; N. RONZITTI (ed.), Maritime terrorism and International Law, Dordrecht-Boston-London, Martinus Nijhoff Publishers, 1990, 85. 27
1.2.2.2 Motives of the offender
Art. 3 does not require specific motives on the part of the offender for acts to be offences under art. 3. The only requirement is that the act must be committed “unlawfully and intentionally”. After the Achille Lauro incident, an international legal framework was required that could deal with maritime terrorism and which could circumvent the narrow scope of the international law on piracy. Art. 3 does not contain any reference to a specific motive, being it political, ideological, ethnic or religious, so that the offences covered by the 1988 SUA Convention are not limited to acts of international terrorism.74 The insertion of specific motives would limit the scope of application of the Convention, which would be in contradiction with its purpose, that is to suppress international maritime terrorism and unlawful acts of violence at sea and to ensure that appropriate action is taken against persons committing unlawful acts against ships. And as mentioned earlier, the wider the scope of application, the more effective the SUA Convention will be. The SUA Convention covers the acts mentioned in Art. 3, regardless of the motive of the wrongdoer, as long as they are unlawful and intentional.
The fact that there is no reference to certain motives, is also an important difference with the international law on piracy. One of the five elements to identify piracy, as set forth in Art. 101 of the 1982 Law of the Sea Convention, is that the illegal act of violence, detention or depredation must be committed for private ends. It must be noted that this was one of the reasons that the Achille Lauro incident could not be qualified as a case of piracy, since the terrorist attack was not carried out for private ends, but for political motives. The private ends requirement is a restriction which considerably limits the scope of application of the rules concerning piracy. Acts of violence committed in order to destabilize a government or to cause unrest or terror for religious, ethnic or political grounds, acts of liberation movements, etc. slip
74 B. SAUL, “Civilizing the Exception: Universally Defining Terrorism”, in Aniceto Masferrer (ed), Post-9/11 and the State of Permanent Legal Emergency: Security and Human Rights in Countering Terrorism (Springer, 2012), chapter 3, 13: “Accordingly, based on the international community‘s identification of the underlying wrongfulness of international terrorism, terrorism can be deductively defined as follows: (1) Any serious, violent, criminal act intended to cause death or serious bodily injury, or to endanger life, including by acts against property; (2) Committed for a political, ideological, religious or ethnic purpose; and (3) Where intended to: a) Create extreme fear in [or seriously intimidate] a person, group, or the general public; or b) Unduly compel a government or an international organization to do or to abstain from doing any act. 28 through the mazes of the piracy-net.75 As a result, the legal consequences which are applicable on acts of piracy, such as the universal jurisdiction, won’t apply.
The SUA Convention acts in these cases as an important safety net to make sure that proper legal consequences are possible and given to cases that had slipped away from the rules governing piracy, because they did not meet the conditions of the definition.
1.2.2.3 Conclusion
By using the words “any person commits an offence […]”, the SUA Convention is again given a broad scope of application, which contributes to the effectiveness of it and to achieve its goals. The question whether it would also apply to governments, can not be answered with a straight answer and it looks like the drafters wanted to maintain a level of vagueness on this point, however the Convention itself seems to hint it does. Also, the history of the Lockerbie incident, in which there were strong suspicions of State-supported terrorism, showed that (the suspicion of) government involvement did not immediately exclude the Montreal Convention, on which the SUA Convention was based and which has a lot of similarities with the SUA Convention, from its application. However, the principle of aut dedere aut iudicare gives rise to another problem, that is that the State, which supported the unlawful acts, might establish its own jurisdiction over its own nationals. This may create doubt on the part of other States wheter proper legal action will be taken against the offenders (as was the case with the Lockerbie incident).
Not inserting conditions regarding motives of the offender, can be considered as an improvement towards the rules on piracy and overall as an advantage for the effectiveness of the SUA Convention. Such conditions could only limit the field of application. The SUA Convention plays an important role in case of acts of violence which are not purely committed for private ends and has an important subsidiary purpose in cases which are difficult to define as piracy but nevertheless merit adequate punishment.
75 R. WOLFRUM, “Fighting terrorism at sea: Options and Limitations under International Law”, https://www.itlos.org/fileadmin/itlos/documents/statements_of_president/wolfrum/doherty_lectire_130406_ eng.pdf, 3. 29
1.2.3 Offences covered by the 1988 SUA Convention
Now that we have discussed the geographical scope of application of the SUA Convention and the concept of “ship”, we will have a closer look at the offences, which are carried out by Art. 3 of the Convention. The article sums up a number of unlawful acts that are considered to be offences under the Convention. One must keep in mind the background and the raison d’être of the SUA Convention: to provide an international legal framework that deals with maritime terrorism and other unlawful acts of violence at sea, to fill in the gaps left by the (narrowly defined) international law on piracy and to ensure safety of maritime navigation. The offences are divided in two groups, the primary and the secondary offences.
1.2.3.1 Primary offences
The first paragraph of the Convention contains a number of well-described crimes against maritime safety, which are the offences that are covered by the Convention. Again, it is clear that the 1988 SUA Convention was based on the 1970 Hague Convention concerning the unlawful seizure of aircraft and the 1971 Montreal Convention.
The first offence concerns the seizing or exercising of control over a ship by force or threat thereof or any other form of intimidation. It is formulated nearly the same as Art. 1 of the 1970 Hague Convention. If the SUA Convention already was in existence at the moment of the seizing of the Achille Lauro vessel, the incident could have been considered an offence under Art. 3, para. 1, a), and the SUA Convention would have been applicable. As a consequence, based on Art. 10 of the Convention, the “aut dedere aut iudicare” principle, Egypt would have been obliged to either prosecute the Palestinian terrorists themselves, or to extradite them, instead of just letting them leave its territory.
The other offences are based on the 1971 Montreal Convention, again using nearly the same formulations. It concerns the performance of acts of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; the destruction or damaging of a ship or its cargo which is likely to endanger the safe navigation of that ship; the placement of devices or substances on a ship which is likely to cause the destruction of or damage to the ship or which is likely to endanger the safety of navigation; the destruction or damaging of maritime navigational facilities or the serious interference with their operations likely to endanger safe
30 navigation; communication of false information which endangers safe navigation; or the killing or injuring of persons in connection with any of the aforementioned offences.
At the time of the drafting of the 1988 SUA Convention, there were some concerns regarding the use of the words “likely to endanger the safe navigation of the ship” and “likely to endanger the safety of a fixed platform” (relating to the 1988 Protocol). Australia expressed its concern that the words “likely to endanger” might be too narrow. Instead, the Australian delegation proposed to insert the words “could affect the safe navigation of the ship” or, if this was not acceptable, the phrase “could endanger”.76 The reason for this proposal is the consideration that a terrorist incident may involve unlawful acts of violence against persons on board a ship, which are not at all likely to affect the safety of navigation of the ship although it is conceivable that they could.
The proposal of the Australian delegation was not accepted. This means that if one of the acts of Art. 3, para. 1, b) – e) occurs, the Convention does not apply if the act is not likely to endanger the safe navigation of the ship (although it could). Acts which merely affect isolated individuals rather than the safe navigation of the ship and which simply take place on board the ship are excluded from the scope of the 1988 SUA Convention.77 For example, acts of violence against persons on board only fall under the scope of the Convention if that act is likely to endanger the safe navigation of the ship.78
Personally, I agree with using the words “likely to endanger”, rather than “could affect” or “could endanger”, as the Australian delegation proposed. The phrase “could endanger” seems too vague and a difficult question to assess, with possible disputes between States as a consequence. The scope of application might become too broad, as rather minor crimes on board ships also might fall under the scope because it is conceivable that they theoretically could affect safe navigation, but in practice are not likely to endanger it. There would be the risk that the SUA Convention would surpass its original target, that is unlawful acts committed against ships and the safety of maritime navigation.
The 1971 Montreal Convention also uses the phrase “likely to endanger”. It can be argued though that certain situations on board aircraft are more likely to endanger the safety of the aircraft and the passengers than those same situations would be on board ships. This was also
76 IMO Doc. SUA/CONF/10 (20 January 1988), 1. 77 M. FLORY, R. HIGGINS (eds.), Terrorism and international law, London, Routledge, 1997, 81. 78 Art. 3, Para. 1, b) of the 1988 SUA Convention. 31 the reasoning of the Australian government.79 On the other side, it might be desirable not to deviate too much from the treaties the SUA Convention is based upon, in order to avoid problems of interpretation and to improve the consistency between the two conventions.
Special attention must be paid to the offence described as the destruction or the seriously damaging of maritime navigation facilities or the serious interference with their operation, if any such acts is likely to endanger the safe navigation of a ship80, and the communicating of false information, thereby endangering the safe navigation81. The insertion of both offences were the consequence of a proposal made by New Zealand. It suggested that the SUA Convention should be as comprehensive as possible in protecting the safety of maritime navigation and suppressing unlawful acts against it.82 Also, the same offences were included in the 1971 Montreal Convention, so that it is consistent with it.
Indeed, offences of this nature can have serious consequences for the safety of maritime navigation in certain situations. For example, destroying or interfering with navigation aids, like beacons or radars, for the purpose of deliberately misleading ships navigating through crowded or difficult waterways. As New Zealand remarks, not all such offences will necessarily have serious consequences for the safety of maritime navigation.83 The phrase “likely to endanger”, which we discussed earlier, serves as a filter to distinguish the serious cases from the more trivial incidents.
The expression “maritime navigation facilities” also requires a few words of explanation. There is no definition in the SUA Convention, nor in the 2005 Protocol. According to PLANT it includes, for example, structures as buoys, lights, light-ships and radar beacons, but not normally port and harbor installations.84 With regard to the interpretation of these facilities, it is interesting to pay some attention to the more recent convention concerning the suppression of unlawful acts relating to international civil aviation, namely the Beijing Convention. According to Art. 2, c) of the Convention, for the purpose if this Convention, “air navigation facilities” include signals, data, information or systems necessary for the navigation of the aircraft. The phrasing of the article seems to suggest that this is not an exhaustive list. Since
79 IMO Doc. SUA/CONF/10 (20 January 1988), 1. 80 Art. 3, Para. 1, e) of the 1988 SUA Convention. 81 Art. 3, Para. 1, f) of the 1988 SUA Convention. 82 IMO Doc. SUA/CONF/CW/WP.1 (1 March 1988), 1. 83 IMO Doc. SUA/CONF/CW/WP.1 (1 March 1988), 2. 84 M. FLORY, R. HIGGINS (eds.), Terrorism and international law, London, Routledge, 1997, 81. 32 these Conventions show many similarities and have the same purpose, this list may give an idea on how to interpret the “mirror” provision in the SUA Convention.
In my view, the insertion of an offence relating to the misuse of maritime navigation facilities certainly is just. Especially in places where there can be a lot of traffic and regularly used sea lanes, interfering with navigation aids can have dramatic consequences for crew, passengers and ships. The insertion of this provision also contributes to the idea that the Convention should be as comprehensive as possible.
About the communicating of false information, it must be noted that this is only considered an offence if safe navigation really is endangered and not merely “likely” to be endangered. Also, the communication of false information, but of which the communicator was not aware that it was incorrect, can not be considered an offence under the SUA Convention.
An interesting proposal of another subparagraph to be added to the Convention was made by the Government of Iran.85 It observes that destroying navigational facilities and communicating false information are considered offences, but endangering international waterways, which it considers also a serious offence, is not. The following subparagraph was proposed:
“[…] obstructs the international shipping routes or causes them to be obstructed or interferes in those routes by any means whatsoever which is likely to endanger the safe navigation of ships.”
The proposal did not make it in the final draft of the Convention. However, one can imagine situations that correspond with this description, that are not covered by the other offences, and which certainly can endanger safe maritime navigation. To give a simple example, the situation where a shipping route has been infested with naval mines or other explosive devices, which obstruct the shipping route and pose a serious threat for ships. Theoretically, this situation is not covered by the offences in Art. 3 of the 1988 SUA Convention. The 1988 Convention could only apply if a ship would already have been destroyed or damaged. Such a provision would not be consistent with the 1971 Montreal Convention, but the offence, as described above, is much less likely to occur in aviation, since it seems more easy to obstruct a shipping route than the air space.
85 IMO Doc. SUA/CONF/CW/WP.3 (1 March 1988). 33
1.2.3.2 Secondary offences
The second paragraph of Art. 3 contains the so-called secondary offences, to which the provisions of the SUA Convention also will apply. The first one concerns the attempt to commit one of the offences of the first paragraph.
The second one is about being an accomplice of a person committing an offence of the first paragraph. The SUA Convention goes further than the Hague and Montreal Convention by also making it an offence to abet the commission of one of the offences, carried out by any person. Persons who abet or are accomplices of a person who attempts to commit an offence of paragraph 1 are not included in Art. 3, Para. 2, b) of the Convention, although some States, like Australia, insisted on it.86 This is remarkable, because in the 1971 Montreal Convention, persons who are accomplices of a person who attempts to commit an offence are covered. One can wonder whether there is a valid reason for not adopting a similar provision in the 1988 SUA Convention. Also, this is not fixed by the 2005 Protocol.
Finally, it is also an offence to threaten, with or without a condition, depending on how this is regulated under national law, to commit one of the offences of the first paragraph, subparagraphs b), c) and e), for the purpose of compelling a physical or juridical person to do or refrain from doing any act.87 This threat must also be likely to endanger the safe navigation of the ship in question. The insertion of this phrase seems at its place, so that any unreasonable threat is filtered out and only serious threats are covered. The phrase “with or without condition” is added because in some national legislations, such a condition is required for a threat to be a punishable crime.
The qualification of such threats as offences is new with respect to the Hague and Montreal Convention. According to TREVES, it is probably included because of the wish to deal with the practice of terrorists of resorting to threats which may dramatically disrupt communications, including safety of navigation.88 It certainly is something that can improve the effectiveness of the Convention and contribute to the purpose of the Convention, that is to ensure safe maritime navigation, free from all threats. Situations, for example, in which terrorists threaten to blow up
86 IMO Doc. SUA/CONF/10 (20 January 1988), 2. 87 Art. 3, Para. 2, c) of the 1988 SUA Convention. 88 N. RONZITTI (ed.), Maritime terrorism and International Law, Dordrecht-Boston-London, Martinus Nijhoff Publishers, 1990, 79. 34 passenger ships to force the release of certain prisoners or the withdrawal from a certain conflict zone, are conceivable.
As mentioned, the qualification of threats as an offence, was not provided for in the Hague and Montreal Convention. It can be observed that the more recent Beijing Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation of 10 September 2010 now also makes the threat to commit certain of the primary offences an offence on its own, under circumstances which indicate that the threat is credible.89
1.2.3.3 Conclusion
It can be concluded that the SUA Convention covers a wide range of maritime offences.90 It covers nearly all acts of violence at sea, committed against ships. The scope is even enlarged by the second paragraph of Art. 3, by criminalizing those who attempt, abet, are accomplices of offenders or threaten such acts of violence. The SUA Convention covers the acts which do not correspond to the legal definition of piracy and fills in the gaps which are left by the international law on piracy.
2. Juridical mechanisms of the 1988 SUA Convention
2.1 Obligation to criminalize and penalize the offences
Art. 5 of the SUA Convention contains the obligation for the contracting State Parties to “make the offences set forth in article 3 punishable by appropriate penalties which take into account the grave nature of those offences”.
The difference in the choice of words with the Montreal and Hague Convention is remarkable on this point. These conventions impose the obligation upon Member States to make the offences punishable by severe penalties.91
89 Art. 1, Para. 3 of the Beijing Convention of 10 September 2010. 90 J. ASHLEY ROADS CAPT., Global Conventions on Maritime Crimes Involving Piratical Acts, 46 Case W. Res. J. Int'l L. 91 (2013), http://scholarlycommons.law.case.edu/jil/vol46/iss1/6, 98. 91 Art. 2 of the 1970 Hague Convention; Art. 3 of the 1971 Montreal Convention. 35
It is however an exact reproduction of Art. 2 of the 1979 Hostages Convention92. There were no considerations of changing this in the SUA Convention.93 The formulation “appropriate penalties which take into account the grave nature” was the result of a compromise, after a debate about whether penalties should be “severe” or “appropriate” in order to sufficiently punish and deter offenders.94 It gives a certain margin of appreciation to the State Parties, while the punishments have to be in proportion with the gravity of the offence.
2.2 Jurisdiction
The next part is about the system of jurisdiction set forth in Art. 6 of the SUA Convention. This is of course of importance to find out which States have jurisdiction over an offender and also to make sure that an offender will be subject to prosecution (or extradition) in an effective manner. Art. 6 stipulates the following:
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 3 when the offence is committed:
a) against or on board a ship flying the flag of the State at the time the offence is committed; or
b) in the territory of that State, including its territorial sea; or
c) by a national of that State.
2. A State Party may also establish its jurisdiction over any such offence when:
a) it is committed by a stateless person whose habitual residence is in that State; or
b) during its commission a national of that State is seized, threatened, injured or killed; or
c) it is committed in an attempt to compel that State to do or abstain from doing any act.
92 International Convention against the Taking of Hostages of 17 December 1979. 93 M. FLORY, R. HIGGINS (eds.), Terrorism and international law, London, Routledge, 1997, 82. 94 B. SAUL, “International Convention against the Taking of Hostages”, United Nations audiovisual Library of International Law 2014, 5. 36
3. Any State Party which has established jurisdiction mentioned in paragraph 2 shall notify the Secretary-General of the International Maritime Organization (hereinafter referred to as "the Secretary-General"). If such State Party subsequently rescinds that jurisdiction, it shall notify the Secretary-General.
4. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 3 in cases where the alleged offender is present in its territory and it does not extradite him to any of the States Parties which have established their jurisdiction in accordance with paragraphs 1 and 2 of this article.
5. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.
2.2.1 Compulsory and optional jurisdiction
Art. 6 establishes a two-tier system. The first consists of a compulsory jurisdiction. Each State Party must take the necessary measures to establish its jurisdiction when an offence of Art. 3 has been committed against or on board a ship flying its flag, when the offence is committed within its territory (including territorial sea) or when an offence is committed by a national of that State. In these cases, the State party is obliged to establish its jurisdiction over the offender. This also reduces the risk that States, for whatsoever reason, refuse to establish jurisdiction, so that offenders escape from prosecution, however it must be noted that Art. 6 only concerns the establishment of jurisdiction, not the exercise of it.
Consequently, the SUA Convention also provides a system of optional or voluntary jurisdiction. A State may establish its jurisdiction over offences when they are committed by stateless persons (“apatride”) whose habitual residence is in that State, when a national of that State is killed, injured or threatened during the execution of the offence, or when the offence is carried out in an attempt to force a State to do or not to do something. The inclusion of this discretionary jurisdiction is the compromise between the States which wanted the nationality of the victim or coercion of a State and those parties who were opposed to jurisdiction based on these grounds.95
95 M. H. NORDQUIST, R. WOLFRUM, J. N. MOORE, R. LONG (eds.), Legal challenges in maritime security, Leiden- Boston, Martinus Nijhoff Publishers, 2008, 57. 37
Thus, States that have a certain link with the offence, may, at their own discretion, establish their jurisdiction. This is of course of importance when a State has a special interest, for example because of the involvement of a national, in establishing its jurisdiction over a certain offence and in prosecuting the offender. The case of the Achille Lauro may provide for a good example, in which the U.S.A. wanted to establish its jurisdiction over the terrorist, because a U.S. national was killed. If the 1988 SUA Convention already existed, it could have established its jurisdiction based on Art. 6, Para. 2, b).
It must be kept in mind that, when a State Party has established its (optional) jurisdiction in accordance with the second paragraph, or withdraws from this, it must give notice of this to the Secretary-General of the IMO.96 The Convention does not however provide any consequence when this duty is not respected.97 The other Conventions also do not contain such a provision.
2.2.2 Concurrence of jurisdictions
The SUA Convention provides a broad range of criteria to set jurisdiction, which closes possible jurisdictional gaps.98 However, this makes it very conceivable that multiple States have established jurisdiction, so that there is situation of concurring jurisdictions over the same offence. The question rises which State eventually will have the final jurisdiction and possibility to prosecute the (alleged) offender.
Following TANAKA99, in a case where there is both compulsory jurisdiction and a State establishing its optional jurisdiction, it seems reasonable that the first one should be given priority.
More difficult to assess is the situation in which multiple claims for jurisdiction are invoked within the same group of jurisdictional criteria. There is no explicit order of priority in the
96 Art. 6, Para. 3 of the SUA Convention. 97 N. RONZITTI (ed.), Maritime terrorism and International Law, Dordrecht-Boston-London, Martinus Nijhoff Publishers, 1990, 80. 98 Y. TANAKA, The International Law of the Sea (second edition), Cambridge, Cambridge University Press, 390. 99 Y. TANAKA, The International Law of the Sea (second edition), Cambridge, Cambridge University Press, 391. 38
Convention, although some States urged upon this. However, paragraph 5 of Art. 11 of the Convention seems to suggest somewhat of a priority in favor of the flag state100:
A State Party which receives more than one request for extradition from States which have established jurisdiction in accordance with article 7 and which decides not to prosecute shall, in selecting the State to which the offender or alleged offender is to be extradited, pay due regard to the interests and responsibilities of the State Party whose flag the ship was flying at the time of the commission of the offence.
Some States, like France101, were opposed to this provision and proposed its deletion. In the opinion of the French Government, this is a matter of expediency which should be left entirely to the unrestricted judgement of the courts and such a provision may give rise to disputes and even to litigations among States. Indeed, it can be argued that if the question of extradition is left to the courts, which are of course more likely to take a decision based on legal grounds, this might reduce the risk of political involvement and disputes between governments.
The proposal was not accepted and paragraph 5 was kept. It must be noted that paragraph 5 does not imply a strict obligation to give priority to the flag state, but only that “due regard to the interests and responsibilities” of the flag state must be paid. In principle, the requested State still has the discretion to decide and there is no absolute right of priority for the flag state. It is also unclear how far this “due regard” reaches.102 Eventually, it will remain a matter of discretion for the State detaining the alleged offender. A similar provision can also not be found in the Montreal Convention or the Beijing Convention in the case of civil aviation.
Another proposal to insert an additional article (11A), which would set out certain circumstances under which a request for extradition should not be granted, was made by the Government of Kuwait.103 According to this article, the request for extradition shall not be granted if the requested State Party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality, ethnic origin or political opinion or that the position of the (alleged) offender may
100 M. HALBERSTAM, “Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety”, The American Journal of International Law, American Society of International Law, 1988, Vol. 82, No. 2, 302. 101 IMO Doc. SUA/CONF/6 (21 December 1987), 5. 102 M. HALBERSTAM, “Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety”, The American Journal of International Law, American Society of International Law, 1988, Vol. 82, No. 2, 303. 103 IMO Doc. SUA/CONF/CW/WP.7/REV.1 (3 March 1988). 39 be prejudiced for these reasons or for the reasons that communication with him by the appropriate authorities of the State which is entitled to diplomatically protect him, can not be effected.
This seemingly obligatory – because of the use of the word “shall” – ground for refusal of extradition also did not make it through the deliberations and was not adopted in the Final Draft. It is based on Art. 9, Para. 1 of the 1979 Hostages Convention. A reason for the not acceptance of this article might be that such a diplomatically sensitive provision might give rise to disputes between State Parties. This would also limit to a certain extent the sovereign discretion of States in their decision-making. In order not to entirely do away with the concerns of Kuwait and other States supporting such a provision, a paragraph 6, which will be discussed next, was inserted in Art. 11.104
Paragraph 6 of Art. 11 provides another, however with rather small importance, criterium which should be taken into account by the requested State. In considering a request for extradition, the requested State should pay “due regard” to whether the rights of the (alleged) offender, subject of the extradition, as set forth in Art. 7, Para. 3, can be effected in the requesting State. These consist of the right to have communication with an appropriate representative of the State of which he is a national and the right to be visited by such a representative of that State.
These rights are to be exercised in conformity with the laws and regulations of the State where the (alleged) offender is present, under the condition that these laws must be able to give full effect to the purpose for which these rights are granted. This condition certainly is a useful addition.
In the 1979 Hostages Convention, it is also provided for that the aforementioned provisions shall be without prejudice to the right of any State Party, claiming its jurisdiction on the ground that the offender is a national of that State (or has his habitual residence in that State), to invite the International Committee of the Red Cross to communicate and visit the (alleged) offender. This provision was new with respect to the Montreal and the Hague Convention, but it has not been repeated in the 1988 SUA Convention, for which no clear reason can be found. This can be considered a lack in the Convention, since it might be helpful for the State claiming jurisdiction to monitor the situation of its nationals.
104 IMO Doc. SUA/CONF/CW/RD (20 April 1988), 10; IMO Doc. SUA/CONF/CW/WP. 40 (8 March 1988), 2. 40
Art. 6, Para. 4 also introduces an important role for the State within which territory the (alleged) offender is found. If it does not extradite him to any of the State Parties that have established their jurisdiction according to the two-tier system, that State must establish its jurisdiction over the offence. The consequence of the decision not to extradite is that this State is obliged to start proceedings for the purpose of prosecution before its own competent authorities (the “aut dedere aut iudicare” principle).105 Further on, this will be viewed in more detail.
Basically, this provision comes down to another ground for establishing jurisdiction over an offence. While other States with a stronger link with the offence are obliged to or may establish jurisdiction based on paragraph 1 and 2 of Art. 6, nothing in the 1988 SUA Convention obliges the State Party within which territory the offender is found to hand over the suspect. It will have to prosecute though, if it does not extradite the suspect. This way, any possible jurisdictional gap is closed and odds are very small that a suspect will escape from prosecution. This contributes to the purpose of the SUA Convention, to ensure that proper legal consequences are given to persons who committed crimes against safe maritime navigation.
A very interesting case relating to the matter of jurisdiction, is the United States v. Shi.106 Lei Shi, a Chinese national, and cook on board a Taiwanese fishing vessel, registered in the Republic of the Seychelles, had killed the (Taiwanese) captain on board the ship, while in international waters, approximately 800 miles south of Hawaii. The captain was alleged to have beaten and humiliated the cook several times. The first mate was also killed by Shi. He took control over the ship for two days, setting course for China and threatened scuttle the vessel and to kill everybody who would not obey him.
Eventually, the crew was able to overpower him and set course for Hawaii. Since nobody knew how to operate the radio, the company, not hearing from the vessel for a while, contacted the U.S. Coast Guard. Later on, according to the U.S. Government, after receiving a waiver of jurisdiction over the vessel from the Republic of Seychelles and permission from the acting master, the Coast Guard boarded the vessel and assisted driving the vessel to Honolulu Harbor, where Shi was arrested pursuant to a federal complaint.
A magistrate judge had issued warrants for the arrest of the crewmembers as material witnesses. However, some of them filed motions to quash the material witness on the ground that the court did not have jurisdiction over the offence.
105 Art. 10 of the SUA Convention. 106 U.S. District Court for the District of Hawaii, U.S.A. v. Lei Shi, 1 May 2003. 41
The court did not agree with this. There was being referred to the SUA Convention, to which the U.S. was a State Party, and the 18 U.S. Code § 2280, which implements the SUA provisions. Since Shi had seized and exercised control over a ship by force and threat and had killed two people in connection with the commission of that act, he certainly had committed a SUA offence.
The court had established its jurisdiction on the fact that the offender “was found” within the territory of the United States. It is being pointed out that China and the Seychelles also have grounds to establish jurisdiction, but under the terms of the Convention, neither the Seychelles nor China has a mandatory or greater claim to prosecute than the United States. The discretion to extradite is left to the United States under both the Convention and 18 U.S. Code § 2280. the defendant argued that the "found in" language did not apply because he was brought to United States territory by force. This argument was rejected by the United States Circuit Court for the District of Columbia, arguing that "the word `found' means only that the hijacker must be physically located in the United States," and not that the defendant was voluntarily within the United States or first detected in the United States.
The court concluded that it had jurisdiction over the offence.
2.2.3 Dispute resolution within the SUA Convention
With multiple State Parties having the obligation or option to establish jurisdiction and the possibility that multiple States have an interest in establishing jurisdiction in order to prosecute the alleged offender, it is conceivable that international disputes may rise. Art. 16 of the SUA Convention addresses the problem of disputes between State Parties. When disputes concerning the interpretation or application of the Convention can not be settled through negotiations within a reasonable time, one of those States may, at its request, submit the case to arbitration. Thus, theoretically, jurisdictional problems could be submitted to arbitration on request of one of the parties, which will be most likely the State that wants to prosecute the offender.
The first paragraph of Art. 16 further stipulates that if the parties can not come to an agreement on the organization of the arbitration within six months, each of the parties may refer the dispute to the International Court of Justice.
42
However, it must be noted that paragraph 2 of Art. 16 allows States to declare, at the time of signature, ratification, acceptance or approval, that it does not consider itself bound by any or all parts of the previous discussed provision. A total of 22 States have also made use of this option.107 This does not immediately imply that those States don’t want to submit their disputes to arbitration or the International Court of Justice. As some of the States clarify in their declarations, they maintain that disputes concerning the application or interpretation of the Convention may be submitted to such institutions only with the prior agreement of all parties involved. Indeed, according to the first paragraph of Art. 16, the request of only of the parties involved is sufficient start proceedings for arbitration or the International Court of Justice.
As mentioned earlier, 22 States have made reservations on Art. 16, Para. 1. This is a rather small number compared to the 166 State Parties to the 1988 SUA Convention. The wide acceptance of the article can be considered as a great success.
Despite its existence for many years, up until today there are no examples known of arbitrations or cases brought before the International Court of Justice relating to the application or interpretation of the SUA Convention.108 However, the 1971 Montreal Convention contains a similar provision, which already resulted in a case before the International Court of Justice.109
2.2.4 Conclusion
The 1988 SUA Convention does not provide for universal jurisdiction, like the international law on piracy does. Instead, a two-tier system is installed, consisting of compulsory and discretionary jurisdiction grounds. To close any possible jurisdictional gap, it is provided for that when the (alleged) offender is found within the territory of a State Party, if that State does not extradite him, is obliged to start proceedings before its own competent authorities. Problems
107 Doc. Status of IMO Treaties – Comprehensive information on the status of multilateral Conventions and instruments in respect of which the International Maritime Organization or its Secretary-General performs depositary or other functions (18 April 2018), 427-432; States which have declared not to be bound by (any or all of the provisions of) Art. 16, Para. 1, are: Algeria, Argentina, Armenia, Azerbaijan, Brazil, China, Cuba, Egypt, France, Germany, India, Iran, Israel, Moldova, Mozambique, Myanmar, Qatar, Saudi Arabia, Tunisia, Turkey, United Arab Emirates, Vietnam. 108 Md S. KARIM, Maritime terrorism and the Role of Judicial Institutions in the International Legal Order, Leiden-Boston, Martinus Nijhoff Publishers, 2016, 20. 109 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the aerial incident at Lockerbie (Libyan Arab Jamahiriya vs. United States of America), oral proceedings/oral statement, 14 October 1997. 43 may arise when multiple State Parties have established their jurisdiction, especially when jurisdictions are based on grounds of the same jurisdictional group. However, the Convention seems to hint at a special favor for the flag state. Also, a State must pay special attention to the question whether the rights of the suspect, set forth in Art. 7, can be effected in the State requesting for extradition. When disputes rise between States, the SUA Convention also provides the option to submit the conflict to arbitration or the International Court of Justice. It is sufficient that one of the parties involved requests for arbitration, unless a party has made a reservation to Art. 16, Para. 1.
2.3 Aut dedere aut iudicare
In this part, a closer look will be taken at what can be considered the heart of the SUA Convention, the obligation to either extradite an (alleged) offender or to submit the case to its own competent authorities for prosecution. This is also known as the principle of “aut dedere aut iudicare”. The reasoning behind this principle is that offenders and terrorists won’t find a safe haven (at least not within the territories of the State Parties) and will eventually face justice, either within the State they are found or in a State asking for extradition. It is certainly not a new concept, since similar provisions can be found in the 1971 Montreal Convention110 and the 1970 Hague Convention.111 It is therefore a common principle to many of the sectoral anti- terrorism conventions. It is set out in Art. 10 of the Convention:
1. The State Party in the territory of which the offender or the alleged offender is found shall, in cases to which article 6 applies, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.
2. Any person regarding whom proceedings are being carried out in connection with any of the offences set forth in article 3 shall be guaranteed fair treatment at all stages
110 Art. 7 of the 1971 Montreal Convention. 111 Art. 7 of the 1970 Hague Convention. 44
of the proceedings, including enjoyment of all the rights and guarantees provided for such proceedings by the law of the State in the territory of which he is present.
As the article stipulates, proceedings are in accordance with the national law of the prosecuting State. It also emphasizes that the maritime offences must be treated as an offence of grave nature, which implies that appropriate effort and attention are required and that the appropriate consequences should be given to it. Thus, it can be considered that the Convention requires States to take the offences against the safety of maritime navigation seriously. As discussed earlier, Art. 5 requires States to adopt appropriate penalties for the offences of the Convention in national law.
This does not however impose a strict obligation to actually punish the offender. The case must only be submitted without delay to the courts and they must take a decision in the same manner as in the case of other grave offences. It will always depend on the independency, efficiency and sense of justice and responsibility of the competent courts whether appropriate punishment will be given. This can be considered a lack of the SUA Convention (and similar conventions).112
The principle of aut dedere aut iudicare in the SUA Convention is explicitly applicable on the offender, as well as the alleged offender. As a consequence, persons who are supposed to have committed a SUA offence, however their guilt (still) might not be entirely certain, this is no valid reason for a State Party to neglect its obligation to either prosecute or extradite the alleged offender. By making the principle expressly applicable on both the offender and alleged offender this contributes to the effectiveness and the purpose of the SUA Convention. In the similar provisions of the 1970 Hague Convention and the 1971 Montreal Convention, there is only a mentioning of the “alleged offender” and this has not been changed in the 2010 Beijing Convention. However it was not the purpose to differ in substance on this part from its precedents113, it can still be useful to avoid any unnecessary ambiguity.
As was mentioned earlier on in this text, no provisions within the 1988 SUA Convention affect the discretion of the detaining State on its decision whether to extradite the (alleged) offender or prosecute him itself. This has its consequences for the so-called ‘political offences’. The
112 M. H. NORDQUIST, R. WOLFRUM, J. N. MOORE, R. LONG (eds.), Legal challenges in maritime security, Leiden-Boston, Martinus Nijhoff Publishers, 2008, 55. 113 M. FLORY, R. HIGGINS (eds.), Terrorism and international law, London, Routledge, 1997, 87. 45
Convention, just like its precedents, does also not contain a ‘political offence exception’114. The result is that State Parties are free to decide whether to extradite or not persons who have committed political offences and can, in principle, refuse extradition on the mere ground that it is a political offence. In some antiterrorism Conventions, such as the 1997 Bombings Convention115, it is provided for that a request for extradition based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives.
It must be noted that a copy of this provision has been inserted in the SUA Convention by the 2005 Protocol. Also the 2010 Beijing Convention adopted such a provision. States that have accepted and ratified the 2005 Protocol may not refuse extradition on the sole ground that the offence is a political offences or is inspired by political motives. In fact, the political offence exception is hereby expressly excluded. In the preparatory documents of the 2005 Protocol116, the “widening/strengthening of the regulations on jurisdiction and extradition, including for instance, making it obligatory not to use the political offence exception in order to deny extradition” was marked as one of the issues considered for the purpose of review. Thus, the purpose of this seems to be to fortify the aut dedere aut iudicare principle.
Further on, according to paragraph 2 of Art. 10, any person regarding whom proceedings are being carried out with relation to one of the offences of Art. 3, “shall be guaranteed fair treatment at all the stages of the proceedings”. This includes enjoyment of all rights and guarantees provided by the law of the State within which territory the offender is present. This article is clearly based on Art. 8, Para. 2 of the 1979 Hostages Convention.
More specifications regarding these rights and guarantees are missing. With relation to the Hostages Convention, it was stated that the rights in question are elaborated in bilateral and multilateral treaties on consular relations and in various human rights treaties, such as the International Covenant on Civil and Political Rights and in regional human rights treaties. The effect of the addition of ‘all rights and guarantees provided for such proceedings by the law of the State in which the offender is present’ is unclear.117
114 The political offence exception is a provision within extradition treaties which mandates the contracting State Parties not to allow extradition for crimes which are of a political character, see also R. STUART PHILLIPS, "The Political Offence Exception and Terrorism: Its Place in the Current Extradition Scheme and Proposals for Its Future," Penn State International Law Review 1997, Vol. 15: No. 2, Article 4 , 340 115 International Convention for the Suppression of Terrorist Bombings of 15 December 1997. 116 Doc. LEG 84/6 of the Legal Committee of the IMO (13 March 2002), 3. 117 https://www.fiu.go.tz/InternationalConventionAgainstTheTakingOfHostages.pdf, 146. 46
Similar provisions are lacking in the 1971 Montreal Convention and the 1970 Hague Convention. However, the more recent 2010 Beijing Convention now contains the following provision:
Any person who is taken into custody, or regarding whom any other measures are taken or proceedings are being carried out pursuant to this Convention, shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of international law, including international human rights law.118
The fair treatment formula now also has been inserted in the Beijing Convention. An important element has been added, that is the inclusion of applicable provisions of international law and international human rights law. There can be no more reasonable doubt that important treaties of human rights law, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, are included in the fair treatment of persons who are taken into custody or against whom proceedings are being carried out with relation to the Beijing Convention.
The latter is something that the 1988 SUA Convention is lacking, although it would give more clarity to the fair treatment provision and can be an important detail. It is however fixed by the 2005 Protocol to the SUA Convention. The phrase “and applicable provisions of international law, including international human rights law” has been inserted in paragraph 2 of Art. 10, giving more understandability to the content of “fair treatment”.
When it comes to the phase of prosecution before a competent authority of a State Party, Art. 12 aims to establish cooperation between State Parties in order to bring proceedings to a successful conclusion. It says that States shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the SUA offences. One of the purposes of the SUA Convention is to make sure that offenders will face justice (which is also the ratio legis behind the aut dedere aut iudicare principle). States should cooperate and assist each other in their criminal proceedings in order to make sure that proper legal consequences are given to offenders.
The article also includes the providing of assistance in obtaining evidence which is at the disposal of State Parties and is necessary for the proceedings. It imposes on the Member States a duty to cooperate in the supplying of evidence. It is very conceivable that other States have
118 Art. 11 of the 2010 Beijing Convention. 47 collected evidence with relation to the committed SUA offence, for example when preparations were made within that State. Sharing these records of evidence facilitates the procedures with relation to the offence and the offender and may lead to a desirable result. Assistance must be provided not only during the trial, but also in the proceedings prior to the trial.119. Originally, the text said “including the supply of evidence at their disposal necessary […]”, but at the time of the drafting of the 1988 SUA Convention, the proposal was made by Spain to change this. It is explained that the aim of the Convention is that cooperation between States should be as extensive as possible so that the evidence to be provided should not be restricted to what is available at a given moment, but should also extend to evidence that may subsequently be obtained.120 Thus, the words “assistance in obtaining” imply that not only evidence which is already available must be communicated to other State Parties, but also that this duty to assist is a continuous duty throughout the whole process.
The aforementioned obligation to render assistance in connection with criminal proceedings, shall be carried out by the State Parties in conformity with any existing treaties on mutual assistance between States.121 If such treaties should not exist between certain States, assistance shall be afforded in accordance with national law. The insertion of the latter in the provision was considered necessary, because there were (and still are) many States which are not bound by such treaties relating to criminal matters. This void should be compensated by internal law.122
In order to strengthen this system of rendering assistance to facilitate the criminal proceedings, the 2005 Protocol added an Art. 12bis. Persons who are being detained or serving a sentence within the territory of one State Party and whose presence is required in another State Party for the purpose of identification, testimony or providing assistance in obtaining evidence for the investigations or prosecution relating to the SUA (and 2005 Protocol) offences, may be transferred under certain conditions. First of all, those persons must freely give their informed consent. This implies on one hand that they cannot be forced to be transferred and on the other hand that they must give their consent, after being informed on the transfer. The Protocol does not specify this “informed consent”. It is logical that certain elements, such as the reason of transfer, the consequences and the rights of that person should be part of the “informed
119 M. FLORY, R. HIGGINS (eds.), Terrorism and international law, London, Routledge, 1997, 88. 120 IMO Doc. SUA/CONF/CW/WP. 30 (7 March 1988), 1. 121 Art. 12, Para. 2 of the SUA Convention. 122 IMO Doc. SUA/CONF/CW/WP. 30 (7 March 1988), 1. 48 consent”. Also, both States must agree on the transfer, subject to potential conditions which they deem appropriate.
It can be concluded that the principle of aut dedere aut iudicare, as set forth in Art. 10, really is one of the core provisions of the 1988 SUA Convention and finds its purpose in ensuring that a person who has committed a SUA offence will be subjected to prosecution within the territory of any State Party. Basically, the decision whether to prosecute or to extradite shall be made by the State Party within which territory the (alleged) offender is found and which also is entitled to establish its jurisdiction over him, pursuant to Art. 6, Para. 4 of the Convention. While in theory, an offender will always be prosecuted, this does not however guarantee that he will actually receive punishment, proportionate to the offence. State Parties of which the legal system (prosecutors and courts) are known to have a certain degree of independency, efficiency, sense of justice and responsibility will be more likely to give appropriate consequences to persons who have committed a SUA offence.
2.4 Measures of preventive nature
Although the title of the 1988 Convention mentions the words “suppression of unlawful acts”, the Convention itself mainly aims at the prosecution of offenders afterwards and cooperation between State Parties. It does not provide for the possibility to take immediate action to suppress an act of violence, the same way as the international rule on piracy does.123 This can be considered as a lack in the 1988 SUA Convention.
Only one article in the SUA Convention, Art. 13, is of a preventive nature with relation to the SUA offences. It says that State Parties shall cooperate in the prevention of the offences set forth in Art. 3. They shall do so, in the first place by taking all practical measures to prevent preparations in their respective territories for the commissions of the SUA offences, regardless of if they would take place within or outside their territories. This means that States must pay attention to possible preparations of, inter alia, terrorist attacks which would take place outside their territories, thus including other countries. Due to the fact that the article only says “within
123 R. WOLFRUM, “Fighting terrorism at sea: Options and Limitations under International Law”, https://www.itlos.org/fileadmin/itlos/documents/statements_of_president/wolfrum/doherty_lectire_130406_ eng.pdf, 10. 49 or outside their territories”, these other countries where an offence might take place don’t have to be necessarily Member States to the SUA Convention.
This part seems to be based on Art. 4 of the Hostages Convention. However, Art. 13 of the SUA Convention is not a complete copy of Art. 4 of the Hostages Convention. The provision in the Hostages Convention ends with “including measures to prohibit in their territories illegal activities of persons, groups and organizations that encourage, instigate, organize or engage in the perpetration of acts of taking of hostages”.
This has not been taken over in the 1988 SUA Convention, although some States, such as Saudi Arabia, adopted the identical provision in their draft conventions.124 It can be argued that this clause already is included in “practical measures to prevent preparations” and that the insertion of it therefore would be unnecessary. The IMO report also stated that the deletion of this phrase was not intended in any way to constitute a departure from the basic idea in the relevant provision of the Hostages Convention.125 Thus, it can be considered that such measures should also be taken by the State Parties.
The insertion of this phrase might cause some ambiguity. Since it’s expressly about “illegal” activities, it might give the idea that activities that are not strictly illegal but which could also promote the commission of offences do not fall under the obligation to prohibit. The obligation to take “all practical measures” leaves a large margin of appreciation to State Parties to determine what is practical. On the other hand, giving an example can render the prevention provision less abstract.
With relation to prevention, the 2010 Beijing Convention, as well as its predecessor the 1971 Montreal Convention, provide that “States Parties shall, in accordance with international and national law, endeavor to take all practicable measures for the purpose of preventing the offences”.126 The use of the word “endeavor” may give rise to the interpretation of this provision that it is more some sort of obligation of efforts, rather than a strict obligation to take such measures. The language used in Art. 13, Para. 1 of the SUA Convention is more of a compulsory nature, which, in my view, can be applauded and may contribute to the effectiveness of the SUA Convention.
124 IMO Doc. SUA/CONF/CW/WP.14 (3 March 1988), 6 - 7. 125 M. HALBERSTAM, “Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety”, The American Journal of International Law, American Society of International Law, 1988, Vol. 82, No. 2, 307, referring to Doc. PCUA 2/5 of the IMO (2 June 1987), Para. 137. 126 Art. 16, Para. 1 of the 2010 Beijing Convention.; Art. 10, Para. 1 of the 1971 Montreal Convention 50
Second, State Parties shall cooperate to prevent the commission of the SUA offences by exchanging information in accordance with their national law, and coordinating administrative and other measures taken as appropriate to prevent the commission of the offences. This provision is an exact copy of the Hostages Convention. With respect to this Convention, it is stated that such measures could include refusal to admit suspects into a Party's territory or other concerted efforts to monitor the international movement of suspects. Also, there is little doubt that this provision entails coordination of police efforts (including close cooperation with international police organizations, such as Interpol).127 It can be assumed that the same applies to the similar provision in the SUA Convention.
It can be concluded that the 1988 SUA Convention does not offer much effectiveness in suppressing violence at sea when it comes to the prevention of maritime terrorism and other unlawful acts. It focusses on state cooperation and the taking of measures to prevent preparations for commission of such acts and the exchange of information. The 1988 SUA Convention does not provide rules with respect to preventive actions by law enforcement officials or authorities against foreign vessels which are (possibly) involved in an offence, like boarding and searching of vessels. This can be considered as a lack in the Convention. However, it must be noted that the 2005 Protocol does insert ship-boarding procedures in the SUA Convention, allowing for more appropriate action at the moment the offence is being or is about to be carried out. The 2005 Protocol amendments will be discussed further on.
3. Conclusion
Just like its precedents, the 1988 SUA Convention establishes the fundaments and the basics of a legal framework for the suppression of acts of international maritime terrorism and other acts of violence at sea. It can be said that the Convention has quite a broad scope of application, with respect to both the geographical and the material scope. The basic features of establishing jurisdiction and the principle of aut dedere aut iudicare are also introduced with relation to maritime offences and their committers. To a smaller extent, the SUA Convention pays attention to the prevention of the commission of the SUA offences. In my view, one of the greatest achievements of the Convention is its worldwide recognition and acceptance, so that chances are very high that the provisions of the Convention will apply when an offence is
127 https://www.fiu.go.tz/InternationalConventionAgainstTheTakingOfHostages.pdf, 148. 51 committed. However, to me one of the biggest deficiencies seems to be the fact that it does not contain any provision which allows taking action “in the heat of the moment”, when an attack is actually being carried out or is about to be carried out. The Convention mainly focusses on legal action to be taken against an offender after an offence has been committed.
III. The 2005 Protocol
1. Introduction
Earlier on, it was mentioned that it was urged in Resolution A.924 (22) to develop the existing treaty further and to improve and to update the provisions of the 1988 SUA Convention. After the 9/11 terrorist attacks, the IMO considered that a review of the existing legal and technical measures to prevent and suppress terrorist acts against ships both at port and at sea, as well as improve security aboard and ashore was necessary.
However the 1988 SUA Convention formed the basis of the legal framework in the combat against maritime terrorism and other unlawful acts at sea and described certain maritime offences, other than piracy, following its precedents (such as the Montreal Convention), the event of 9/11 made clear that there was still some work to do.
The 2005 Protocol added some important elements to the Convention. On the one hand, some new offences were introduced, which would enlarge the material scope of application of the Convention. One of them concerns the use of a ship as a weapon to cause injury or death, like was the case on the 9th of September, 2001, when hijacked airplanes were deliberately crashed into the World Trade Center, killing thousands of people.
On the other hand, attention was paid to the preventive aspect. The 1988 SUA Convention primarily had its importance in the identification of maritime offences, the providing of the grounds for establishing jurisdiction and the principle of aut dedere aut iudicare. As was already stated earlier on, the Convention itself mostly has its use and importance after the offence has been committed. The issue of the prevention of maritime terrorism was never really addressed by the International Community. Only one article was aimed at prevention (Art. 13 of the 1988 SUA Convention). The 2005 Protocol adds provisions permitting the boarding and searching or investigating of a suspect ship by law-enforcement officials of another State Party
52 when such a ship is located seawards of any State’s territorial sea and is reasonably suspected of being involved in, or reasonably believed to be the target of one of the offences set forth in the Convention and the Protocol.128
The 2005 Protocol further on adds some other provisions to or changes the provisions of the 1988 SUA Convention, some if which were already discussed in the previous part relating to the 1988 SUA Convention. The focus of this part will lie on the above mentioned elements, because those are the most important additions of the 2005 Protocol.
The importance of the 2005 Protocol is relatively low at the moment, since only 41 States currently have ratified the Protocol. The 1988 SUA Convention still plays the most vital role when it comes to the suppression of maritime terrorism and acts of violence at sea. However, this does not mean that the number of ratifications of the Protocol would not increase in the future. An increase in the number of ratifications of the Protocol would certainly have a positive influence in enhancing maritime security and counter-terrorism efforts, because more offences are covered and it opens up possibilities for preventive visiting and boarding of suspect ships.
2. New maritime offences
New forms of terrorism, like the 9/11 act, and the proliferation and development of weapons of mass destruction showed that the offences as set forth in the 1988 SUA Convention would not suffice to cover all acts of maritime terrorism and some States, like the U.S., urged upon an update. It was also the U.S., the victim State of the 9/11 attack, that led the Correspondence Group, of which the task was to develop a working paper concerning possible amendments and to draft the amendments and make a memorandum to the IMO Assembly to convene an international diplomatic conference in order to consider and adopt the amendments to the 1988 SUA Convention.129 An update on the existing offences of the original SUA Convention was required. The 2005 Protocol adds three new categories of offences, which will be discussed in this chapter.
128 R. HERBERT-BURNS, S. BATEMAN, P. LEHR (eds.), Lloyd’s MIU Handbook of Maritime Security, Boca Raton, CRC Press, 2008, 191. 129 K. R. SINGH, Coastal Security: Maritime Dimensions of India’s Homeland Security, New Delhi, Vij Multimedia, 2012, 83. 53
2.1 First category of offences
The 2005 Protocol widens the (material) scope of application of the Convention by adding some new offences. The first ones are described in a new Art. 3bis. Any person commits an offence if he unlawfully and intentionally, when the purpose of that act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act (i) uses against or on a ship or discharges from a ship, any explosive, radioactive material or BCN weapon in a manner that causes or is likely to cause death or serious injury or damage, (ii) discharges from a ship, oil, LNG or other harmful substances which are not mentioned in the previous phrase, in such quantity or concentration that causes or is likely to cause death or serious injury or damage, (iii) uses a ship in a manner that causes death or serious injury or damage or (iv) threatens, with or without condition (depending on national law), to commit any of the previous offences.
In the first place, it must be noted that the purpose of the act is conditioned. This differs from the first series of offences, set forth in the original 1988 SUA Convention. The motive of the act must be to intimidate a population or to compel a State or international organization to do or not to do a certain act. This corresponds with the classic concepts of terrorism. Thus, some sort of terrorist motive is required for these acts in order to be an offence under the 2005 Protocol.130 The insertion of a terrorist motive as a condition might be the result of the concerns expressed by the shipping industry about a growing criminalization of seafarers due to the growing number of maritime offences.131 Indeed, the requirement of a terrorist motive ensures the fulfilling of the activities of seafarers without any reluctance because of possible criminalization.
Also, whereas some of the offences of the 1988 SUA Convention had to be “likely to endanger the safe navigation of a ship”, the new offences only have to be “likely to cause death or serious injury or damage”. In my view, the latter is less strict, since acts that are likely to cause death, injury or damage are not necessarily likely to endanger the safe maritime navigation of a ship. Otherwise, acts that are likely to endanger the safe navigation of a ship are inherently also likely to cause death, injury or damage. From this point of view, the scope is also enlarged.
130 R. HERBERT-BURNS, S. BATEMAN, P. LEHR (eds.), Lloyd’s MIU Handbook of Maritime Security, Boca Raton, CRC Press, 2008, 192. 131 Doc. LEG 88/3/2 of the Legal Committee of the IMO (19 March 2004), 2. 54
The use against a ship of any explosive is also inserted amongst the first category of new offences. With relation to this, the case concerning the M. Star, a VLCC oil tanker operated by a Japanese company and flying the flag of the Marshall Islands, is said to have been attacked by a terrorist group based in southern Lebanon and linked to Al-Qaeda, in 2010. The U.S. Maritime Administration would have confirmed this attack.132 A person was injured after an explosion (caused by a suicide bomber in a speedboat) had taken place. For this case, the 2005 Protocol could have been relevant if the attack by nature would not have endangered the safe navigation of the ship or was likely to.
The use of a ship as a weapon, like was the case with the 9/11 terrorist attack, is covered by the phrase “uses a ship in a manner that causes death, injury or damage. It is conceivable that, similar to the event of 9/11, a ship, operated by terrorists, would ram into another ship, port facilities or other maritime structures, causing death, serious injuries or damage. In the wake of aircraft terrorist attack of 9/11, such offences are now covered.
For the sake of completeness, BCN weapons are biological, chemical or nuclear weapons. A more detailed definition is provided for in the Protocol, more specifically in art. 2, Para. 1, d) (which amends Art. 1 of the SUA Convention).
2.2 Second category of offences
A second new category of offences concerns offences related to the non-proliferation of weapons of mass destruction. It is considered an offence under the 2005 Protocol if any person, unlawfully and intentionally, transports on board a ship (i) any explosive or radioactive material, knowing that it is intended to be used to cause, or in a threat to cause, with or without a condition, depending on national law, death or serious injury or damage for the purpose of intimidating a population, or compelling a government or an international organization to do or to abstain from doing any act, (ii) any BCN weapon, (iii) any source material, special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material, knowing that it is intended to be used in a nuclear explosive activity or in any other nuclear activity not under safeguards pursuant to an IAEA comprehensive safeguards agreement, and finally, (iv) any equipment, materials or software or
132 http://edition.cnn.com/2010/WORLD/meast/11/22/gulf.attacks/ 55 related technology that significantly contributes to the design, manufacture or delivery of a BCN weapon, with the intention that it will be used for such purpose.133
In short, this provision obliges State Parties to criminalize illegal and intentional traffic on the high seas of weapons of mass destruction and other materials, equipment and delivery systems which are related to the use or the threat of the use of such weapons.134
This part of Art. 3bis was probably one of the most sensitive and controversial provisions at the time of the drafting of the Protocol.135 The concerns existed amongst the important flag states and the international shipping organizations that the “transport provisions” would be worded too broadly and too generally, so that innocent seafarers, involved in maritime transport of nuclear material intended for pacific purposes and the transfer of “dual use” items, would run a high risk of being criminalized. Also, the shipping organizations had stated that “ shipping is a service industry in competition with other modes of transport. It is therefore essential that the proposed amendments to the SUA Convention do not disadvantage shipping by putting in place requirements that do not apply to other transport modes, for example by only criminalizing the transport of weapons of mass destruction in maritime transport”.136
The International Chamber of Shipping (ICS), the International Shipping Federation (ISF) and the International Confederation of Free Trade Unions (ICFTU) suggested the deletion of this part, because the transport of WMD is not an activity which should not be per se treated as an act of terrorism. Instead, it is argued that, if the transport is intentionally connected with terrorist activity towards a Government or an international organization, the transport will be considered as aiding the commission of a criminal act and will give rise to criminal liability as proposed in article 3ter(3) (accomplice) and (5) (contributor).137
If such a provision were to be inserted, the shipping sector insisted on conditioning such acts with a terrorist motive or mental elements of knowledge and intent. These subjective and mental elements should establish the basis for who is criminally liable.138
133 Art. 3bis, Para. 1, b) of the SUA Convention (as amended by the 2005 Protocol). 134 R. HERBERT-BURNS, S. BATEMAN, P. LEHR (eds.), Lloyd’s MIU Handbook of Maritime Security, Boca Raton, CRC Press, 2008, 192. 135 Doc. LEG 90/4/7 of the Legal Committee of the IMO (6 April 2005), 5. 136 Doc. LEG 88/3/2 of the Legal Committee of the IMO (19 March 2004), 9. 137 Doc. LEG 88/3/2 of the Legal Committee of the IMO (19 March 2004), 9; Art. 3ter, mentioned above, eventually became Art. 3quater in the final 2005 Protocol. 138 Doc. LEG 89/4/8 of the Legal Committee of the IMO (24 September 2004), 14. 56
Eventually, only in the offence described above under (i) the (knowledge of) a terrorist motive is inserted, however it was proposed, inter alia by Brazil, to make this a general condition, applicable to all the offences under Art. 3bis, Para. 1, b), as is the case for Art. 3bis, Para. 1, b).139 This proposal was not upheld in the final draft.
It was especially the U.S. Government that supported the language of the article as it is, and maintained that the language in the final draft is consistent with Resolution 1540 of the UN Security Council and the international non-proliferation treaties. This Resolution directly aims at the proliferation of nuclear, chemical and biological weapons, as well as their means of delivery. The Council, gravely concerned by the threat of illicit trafficking in nuclear, chemical, or biological weapons and their means of delivery, and related materials, decided, inter alia, all States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including transport-related measures. It also calls upon States to promote the universal adoption and full implementation, and, where necessary, strengthening of multilateral treaties to which they are parties, whose aim is to prevent the proliferation of nuclear, biological or chemical weapons.140
The U.S. Government defends the “transport provisions” by stating that “the safeguard provisions of the SUA protocol will ensure that innocent seafarers will not be subjected to criminal prosecution under the amended SUA Convention simply for being on board a vessel that was engaged in or used for illegal purposes”.
More specifically, it is argued that the amendments make clear that persons including seafarers who have not intentionally participated in carrying out the acts proscribed by the SUA Convention, will not be subjected to criminal prosecution. Persons on board a vessel who have no knowledge of − and have not intentionally participated in − conduct that is illegal under the Convention, cannot be the subject of criminal prosecution by their mere presence on board that vessel. Both under the existing article 3, and under the offences proposed for inclusion as articles 3bis, 3ter, and 3quarter, a person cannot be found to have committed an offence within the meaning of the Convention unless they have “unlawfully and intentionally” committed an act that is explicitly proscribed by the Convention.141
139 Doc. LEG 90/4/7 of the Legal Committee of the IMO (6 April 2005), 5. 140 Resolution 1540 of the Security Council of the United Nations (28 April 2004), UN Doc., S/RES/1540 (2004). 141 Doc. LEG/CONF. 15/14 of the IMO (20 September 2005), 7-10. 57
Further on, the U.S. Government emphasizes that individual offences also contain subjective elements that would exclude innocent carriers and seafarers from their reach. For example, with relation to the dual-use offence provision142, the transporter must have the intention that the dual use items will be used in the design, manufacture or delivery of a biological, chemical or nuclear weapon. In most situations, a seafarer, for example, would not have the requisite general knowledge and intent, let alone the additional specific intent required under this provision. When containers are ordinarily sealed and loaded at port, a seafarer would not know what is in the containers. In order for a seafarer to be held criminally liable, a prosecuting State must prove, for example, that the seafarer (1) knew what the item was, (2) intentionally initiated, arranged or exercised effective control, including decision-making authority, over the movement of the item by, for example, smuggling the item on board or placing the item in a container to be loaded on the ship and (3) had the intention that the item will be used in the design, manufacture or delivery of a biological, chemical or nuclear weapon.143
It should be noted that the 2010 Beijing Convention contains the same transport provisions. It actually even goes a little bit further, by saying that also persons who are causing the transport or facilitating the transport of such weapons, materials and equipment may commit an offence.
Paragraph 2 of Art. 3bis provides an exception to the “transport provision”. It shall not be considered an offence to transport an item or material covered by paragraph 1(b)(iii) or, insofar as it relates to a nuclear weapon or other nuclear explosive device, paragraph 1(b)(iv), if such item or material is transported to or from the territory of, or is otherwise transported under the control of, a State Party to the Treaty on the Non-Proliferation of Nuclear Weapons. The resulting transfer or receipt may not be contrary to the obligations of a State Party under the Non-Proliferation Treaty and, if the item or material is intended for the delivery system of a nuclear weapon or other nuclear explosive device of a State Party to the Non-Proliferation Treaty the holding of such weapon or device is not contrary to that State Party’s obligations under that Treaty.
To conclude, the draft provisions, as defended by the U.S. Government, in the end made it into the final draft of the 2005 Protocol and the proposals made by the shipping organizations and a quite large amount of States for the insertion of a general terrorist motive, were not accepted. The offence for trafficking in WMD requires knowledge and intent to a certain degree, but a
142 Art. 3bis, Para. 1, b), (iv) of the SUA Convention (as amended by the 2005 Protocol. 143 Doc. LEG/CONF. 15/14 of the IMO (20 September 2005), 11. 58 terrorist motive, save for the offence under (i) and in which the terrorist motive is indirectly involved, is not necessary. By doing so, also profit making out of these transports are covered, and not purely terrorist activities. Of course, from the point of view of combatting illegal traffic of such weapons, material and equipment, this is a desirable formulation and the scope is broader than mere terrorist activities.
On the other hand, these more strict formulations may lead to reluctance from certain States, like States that are not party to the Non Proliferation Treaty, like India144, to enter the 2005 Protocol as a State Member. Until now, there are only 42 Contracting Members to the SUA Convention.145 However some important flag States, such as Panama, Marshall Islands, the Netherlands, the U.S. and the U.K. are amongst them, and the combined merchant fleet of all the Member States are representing 39, 13% of the gross tonnage of the world’s merchant fleet, this is still rather a small amount compared to the 166 State Parties to the original 1988 SUA Convention. It would be a good thing for the effectiveness of the 2005 Protocol if the same number of States would become Party to the Protocol and hopefully, it does not have to come to another terrorist incident, like 9/11, but this time involving WMD, before States realize the importance of it.
2.3 Third category of offences
The 2005 Protocol introduces a final, third category of offences , which establishes a new tool for dealing with persons who have committed one of the SUA offences or offences under certain other UN terrorism Treaties, such as the 1970 Hague Convention and the 1971 Montreal Convention. It shall be an offence within the meaning of the SUA Convention to, unlawfully and intentionally, transport another person on board a ship knowing that this person has committed an act which constitutes an offence set forth in the SUA Convention (as amended
144 Doc. LEG 90/4/5 of the Legal Committee of the IMO (17 March 2005), 9. 145 Doc. Status of IMO Treaties – Comprehensive information on the status of multilateral Conventions and instruments in respect of which the International Maritime Organization or its Secretary-General performs depositary or other functions (18 April 2018), 439 59 by the 2005 Protocol) or an offence set forth in any treaty listed in the Annex146, with the intent to assist that person to evade criminal prosecution.147
This also goes beyond the scope of the 1988 SUA Convention, which only dealt with acts that endangered the safety of maritime navigation148 and even goes, indirectly, further than purely maritime offences. Again, there are requirements of “knowledge and intent”. The person transporting the offender must be aware of the fact that he had committed an offence and he must have the intention to help him evade criminal prosecution. This way, innocent and unknowing seafarers should be protected against possible, unjust criminal liability. However, in my view, the idea can be considered that it might be difficult to bring proof of the absent of “knowledge and intent”. Of course, in most legal systems it is up to the prosecutors to provide such evidence, but still, it can be argued that the insertion of something like a presumption, save counterproof, of innocence on the part of seafarers and masters, in the article could have been considered.
It must be noted that not only the transport over sea, by ship, of the actual offenders constitutes an offence, but also the transport of persons who attempted to commit an offence, accomplices of offenders, organizers and directors of offences and contributors to the commission of offences, shall be considered an offence.
With respect to the treaties listed in the annex, it was taken into account that certain State Parties to the SUA Convention might not necessarily be Parties to certain of the treaties listed in the Annex. State Parties may declare that such treaties shall be deemed not to be included for the application of Art. 3ter of the 2005 Protocol.
146 The treaties listed in the Annex are: 1) Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on 16 December 1970; 2) Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971; 3) Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973; 4) International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979; 5) Convention on the Physical Protection of Nuclear Material, done at Vienna on 26 October 1979; 6) Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988; 7) Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on 10 March 1988; 8) International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997; 9) International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999. 147 Art. 3ter of the SUA Convention (as amended by the 2005 Protocol). 148 R. HERBERT-BURNS, S. BATEMAN, P. LEHR (eds.), Lloyd’s MIU Handbook of Maritime Security, Boca Raton, CRC Press, 2008, 192. 60
Also, it is provided that the list of the Annex can be updated. Relevant treaties can be added on the proposal of any State Party. Those treaties must have entered into force, must be ratified, accepted, approved or acceded to by at least 12 State Parties149 and must be open to the participation of all States.
This third category certainly is a useful addition to the Convention and provides welcome support not only to the fight against acts of violence committed at sea, but also to the suppression of violence and forms of terrorism in other fields, such as aviation. Counterterrorism Conventions may criminalize persons aiding and abetting a fugitive-offender to flee during the course of an offence, but this provision also takes care of assisting fugitives of offences after the offence has been committed.150 It is a bit of a missed opportunity that the new 2010 Beijing Convention does not contain a similar provision, so that the transporting of offenders under the SUA Convention by means of an aircraft, would also be an offence under that Convention.
It must be noted that the Beijing Convention is not (yet) adopted in the Annex of the SUA Protocol, since it has not yet entered into force.
2.4 Conclusion
It can be concluded that, with the 2005 Protocol, the scope of the offences of the SUA Convention has been enlarged considerably. The new categories certainly go much further than ensuring the safety of maritime navigation. In particular, the transport provisions, which focus on the transport over seas of WMD and related material and equipment, were a huge innovation. Despite the sensitive subject and many opposition, the transport provisions made it into the 2005 Protocol. Prohibiting transports of WMD and related material and equipment also implies preventing actual usage and construction of such weapons, which surely is something to support. However, the effectiveness of the legal framework, fully depends on the number of State Parties. The bodies of the UN should persist in convincing and calling upon States to become party to and to implement the provisions of the 2005 Protocol, so it can apply to the fullest extent.
149 These must be State Parties to the 2005 Protocol, not just the 1988 SUA Convention. 150 X., Consolidated Treaties and International Agreements, New York, Oxford University Press, 2007, vol. 2, 268. 61
3. Ship-boarding procedures
A huge innovation by the 2005 Protocol and important addition to the SUA Convention, but also a matter which was subject of debate at the time of the drafting of the Protocol, is the insertion of an Art. 8bis. This provision creates a ship-boarding regime and sets forth a system of specific procedures which facilitate the boarding by non-flag states of a ship suspected of being involved in one of the offences of the SUA Convention.
It must be pointed out that the article does not introduce changes to existing international maritime law. The procedures seek to eliminate the need to negotiate time-consuming ad hoc bilateral boarding arrangements with the flag state in case of suspicions of criminal maritime activities151 and to allow more swift action, also by other states than the flag state, when there are reasonable grounds to believe that one of the SUA offences is about to be or is being carried out.
The core of the article can be found in paragraph 5. This provides for that, whenever law enforcement or other authorized officials of a State Party (“the requesting Party”) encounter a ship flying the flag or displaying marks of registry of another State Party (“the first Party”) located seaward of any State’s territorial sea, and the requesting Party has reasonable grounds to suspect that the ship or a person on board the ship has been, is or is about to be involved in the commission of one of the SUA offences (of course including the new offences), and the requesting Party desires to board, it must follow a specific procedure.
Before going into detail on this specific procedure, I will discuss the general requirements. First of all, the boarding of a ship under the 2005 Protocol may only be carried out in relation to a vessel that is outside the territorial sea of any other state.152
Second, there must be “reasonable grounds to suspect” that a ship is involved in the conduct of a SUA offence. The same language is used in the right of visit as provided for in Art. 110 of the 1982 Law of the Sea Convention. It is up to the requesting Party to assess whether the grounds of suspicion are reasonable. This should not be taken to lightly, since the requesting
151 X., Consolidated Treaties and International Agreements, New York, Oxford University Press, 2007, vol. 2, 270. 152 N. KLEIN, “The right of visit and the 2005 Protocol on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation”, Denver Journal of International Law and Policy 2008, Vol. 35: 2, 320. 62
Party can be held liable for any damage, harm or loss when the grounds for such measures prove to be unfounded.153 Also, nothing in the Protocol obliges the requesting Party to explain to the flag state why it has reasonable grounds to suspect that a ship is involved in a SUA offence. Of course, the flag state can ask all relevant information prior to authorization.154
First, it must request, in accordance with paragraphs 1 and 2, the confirmation of the claim of nationality by the first Party.
When nationality is confirmed, the requesting Party shall ask the first Party, thus eventually the flag state of the suspect ship, for authorization to board and to take appropriate measures with regard to that ship. These measures may include stopping, boarding and searching the ship, its cargo and persons on board, and questioning the persons on board in order to determine if an offence has been, is being or is about to be committed.
The further process depends on the reaction of the flag state. The first possibility is that the flag state authorizes, on an ad hoc basis, the requesting Party to board and to take appropriate measures, as described above, subject to the conditions imposed by the flag state (if any). So the express authorization of the flag state is still required. This is further in paragraph 5 reflected as one of the other possibilities, that is the case in which the flag state would decline to authorize a boarding and search. It is emphasized that if the flag state declines, the requesting Party shall not board the ship or take measures without the express authorization of the flag State. This is not surprising, since boarding by a non-flag state is in direct conflict with the freedom of navigation, which is a fundamental freedom recognized under the international Law of the Sea. This was also the concern of some States during the drafting of the 2005 Protocol.155
The flag state may also decide to conduct the boarding and search with its own law enforcement or other officials or to conduct the boarding and search together with the requesting Party. Given the principle of the exclusive flag state jurisdiction on the high seas, this is quite evident.
State Parties must respond to requests “as expeditiously as possible”. This rather vague formulation is regrettable. A specific time range or something like “as soon as the flag state takes notice of the request” would seem to be favorable.
153 Art. 8bis, Para. 10, b), (i) of the SUA Convention, as amended by the 2005 Protocol. 154 N. KLEIN, “The right of visit and the 2005 Protocol on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation”, Denver Journal of International Law and Policy 2008, Vol. 35: 2, 321. 155 Doc. LEG 90/4/5 of the Legal Committee of the IMO (17 March 2005), 13. 63
The Protocol also offers the option156 for State Parties to notify the Secretary-General that, with respect to ships flying its flag or displaying its mark of registry, the requesting Party is granted authorization to board and search the ship, its cargo and persons on board, and to question the persons on board in order to locate and examine documentation of its nationality and determine if an offence has been, is being or is about to be committed, if there is no response from the first Party within four hours of acknowledgement of receipt of a request to confirm nationality.
This introduces a sort of silent or implicit consent mechanism, if the flag state had previously given its permission by notifying the Secretary-General. This provision was not adopted without any opposition. Some delegations suggested that the problem of time zones and different public holidays made the four-hour time limit procedure impracticable. Also, the notion of “tacit acceptance” was considered not acceptable because it was inconsistent with the right of a flag State to exercise jurisdiction. If a State was unable to confirm or refute the nationality of the ship, it was in no position to consent to boarding.157 Nevertheless, the provision was accepted since it is clearly defined when the four-hour waiting time starts to run and State Parties may or may not, at their own discretion, decide whether to make such notification to the Secretary-General or not.158
This is followed by another, similar, opt-in provision.159 Flag states may notify the Secretary- General that a requesting state is “authorized to board and search a ship, its cargo and persons on board, and to question the persons on board in order to determine if an offence has been, is being or is about to be committed. This goes further than the previous provision, because there is no four-hour waiting time for acknowledgement of receipt of a request to confirm nationality. This opt-in clause creates a power conferred by treaty to exercise the right of visit.160
Since both provisions are opt-in provisions, State Parties are entirely free to choose as to whether they will relinquish their authority for the purposes of preventing or responding to the offences of the 1988 SUA Convention and the 2005 Protocol. To me, the “opt-in” formulation seems the most logical choice, since many States are very reluctant to give up to a certain extent their exclusive flag state jurisdiction and the Protocol would have little State Members if an
156 Art. 8bis, Para. 5, d) of the SUA Convention, as amended by the 2005 Protocol. 157 Doc. LEG 88/13 of the Legal Committee of the IMO (18 May 2004), 73. 158 Doc. LEG 89/4/1 of the Legal Committee of the IMO (20 August 2004), 13. 159 Art. 8bis, Para. 5, e) of the SUA Convention, as amended by the 2005 Protocol. 160 N. KLEIN, “The right of visit and the 2005 Protocol on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation”, Denver Journal of International Law and Policy 2008, Vol. 35: 2, 325. 64 absolute right of visit for the State Members would be inserted. This would have a very high impact on the fundamental principle of the freedom of navigation.
When, as a result of the boarding and search, evidence should be found with relation to a SUA offence, the flag state may also authorize the requesting Party to detain the ship, cargo and persons on board pending receipt of disposition instructions from the flag State. The requesting Party is also obliged to promptly communicate the results of the boarding, search and detention to the flag state, as well as evidence found of illegal activities which are not subject to the SUA Convention.
The flag state may subject its authorization for boarding, searching and detain to conditions, including obtaining additional information from the requesting Party, and conditions relating to responsibility for and the extent of measures to be taken. The requesting Party may not take additional measures unless with the express authorization of the flag state. However, in cases of imminent danger to the lives of persons or where those measures derive from relevant bilateral or multilateral agreements, prior authorization is not necessary.161 Again, it is apparent that the Protocol does not want to deviate from the fundamental principles of the freedom of navigation and the exclusive flag state jurisdiction on the high seas and that prior authorization of the flag state remains to be the basic thought.
Article 8bis of the 2005 Protocol includes several safeguards when a State Party takes measures against a ship, including boarding. These safeguards include: not endangering the safety of life at sea; treatment of all persons on board in a manner which preserves their basic human dignity and with respect to applicable international (human rights) law; ensuring that boarding and search will be carried out in accordance with applicable international law; taking due account of the safety and security of the ship and its cargo; taking measures in a manner that is environmentally sound; taking reasonable efforts to avoid a ship being unduly detained or delayed. It is obvious that law enforcement officials must take due care when boarding foreign vessels.
These safeguards are always applicable, and come on top of any condition which the flag state may have constituted, pursuant to art. 8bis, Para. 7. With relation to the use of force, paragraph 9 states that the use of force must be avoided except when necessary to ensure the safety of its officials and persons on board, or where the officials are obstructed in the execution of the authorized actions. Any use of force shall not exceed the minimum degree of force which is
161 Art. 8bis, Para. 7 of the SUA Convention, as amended by the 2005 Protocol. 65 necessary and reasonable in the circumstances. This language seems to be inspired on Article 22(1)(f) of the Agreement for the Implementation of the Provisions of the U.N. Convention on the Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and therefore, the use of force provision is consistent with current practice on the use of force in international law.162
Also important to note is that the flag state still has the right to exercise jurisdiction over a (by the requesting State) detained ship, cargo or other items and persons on board, including seizure, forfeiture, arrest and prosecution. However, the flag State may, subject to its Constitution and laws, waive its primary right to exercise jurisdiction and authorize the enforcement of another State’s law against the vessel, cargo or other items and persons on board.
The rules on boarding can be regarded as a major and innovative step in suppressing terrorism at sea and allow a more appropriate and effective approach for non-flag states when encountering a vessel which might be involved in the commission of one of the offences of the SUA Convention. However, at the same time, the drafters of the 2005 Protocol had tried to respect the freedom of navigation, as one of the most fundamental principles of international law of the sea, to the biggest extent. Flag state authorization to board a ship flying its flag remains the basic idea. Also, it may set forth conditions to the boarding and the Conventions itself contain certain safeguards, which should always be respected by the Party requesting for a boarding. Nevertheless, it can’t be denied that the boarding provisions are step forward in fighting maritime terrorism and unlawful violence at sea.
162 J. ASHLEY ROADS CAPT., Global Conventions on Maritime Crimes Involving Piratical Acts, 46 Case W. Res. J. Int'l L. 91 (2013), http://scholarlycommons.law.case.edu/jil/vol46/iss1/6, 111. 66
IV. Conclusion
I have indicated the merits and the deficiencies of both the original 1988 SUA Convention and the 2005 Protocol. Both seem to have their own purpose. The 1988 SUA Convention mainly focusses on ensuring that persons who have committed offences at sea will face legal proceedings and trial. The most important provision in the 1988 Convention is the principle of “aut dedere aut iudicare “, which obliges State Parties to either extradite an (alleged) offender or prosecute him. The jurisdiction provisions ensure that there will always be a State Party that has jurisdiction over the offence. The State party in which territory the alleged offender is found, will always have jurisdiction over the offence, closing any possible jurisdictional gap. However, while in principle an offender will face prosecution, there is no obligation to actually punish him. There is an obligation for State Parties to make the offences punishable by appropriate penalties, which take into account the grave nature of the offences, but whether an offender will eventually receive the appropriate punishment, depends entirely on the legal system, the courts and the prosecutors, of that State.
The 2005 Protocol on the other hand has its main contribution to the protection of the safety of maritime navigation in enlarging the existing scope of maritime offences and the insertion of ship-boarding possibilities. The new categories of offences actually go much further than the mere ensuring of safety of maritime navigation. The so-called “transport provisions”, which prohibit the transport of WMD by seas, are the primary example of this, because the mere transportation of such weapons itself does not necessarily pose a threat to the safety of maritime navigation. But the prohibition of the unlawful transport of WMD by sea, certainly contributes to maintaining international peace and order and is a huge step forward in regulating (unlawful) global transport of WMD.
The 2005 Protocol also adds ship-boarding procedures, the absence of which could be considered a lack of the original 1988 SUA Convention. Finally, there is a possibility for non- flag states to actually intervene in “the heat of the moment”, when an offence is about to be, is being or just has been carried out. The basic principle however remains prior authorization by the flag state. There clearly was a concern that the exclusive rights of the flag state on the high seas should not be infringed. This is not surprising, since the exclusive flag state jurisdiction is a well-established and well-known principle of international law of the sea. The authorization can be given on an ad hoc basis, or State Parties can make use of the “opt-in” provisions. The latter implies a sort of tacit authorization, when the flag state does not respond within four hours
67 or even without this time frame. But, States should always pay due attention to the conditions which the flag state may have set forth and the safeguards of the 2005 Protocol. The ship- boarding possibilities also are a big step forward in suppressing violence at sea. However, it only has use if a huge amount of States become Party to the 2005 Protocol. This is, until now, the biggest problem which is faced by the Protocol. Only a fourth of the Parties to the 1988 SUA Convention, are also Party to the 2005 Protocol. It is up to the UN Bodies to keep promoting the importance of the Protocol and to call upon States to become Party to the Protocol, so that it can optimize its effectiveness to the fullest extent.
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