Revised treaties to address unlawful acts at sea adopted at international conference
Diplomatic Conference
on the Revision of the SUA Treaties: 10-14 October 2005
Amendments to the
Convention for the Suppression of Unlawful Acts (SUA) Against the Safety of
Maritime Navigation, 1988 and its related Protocol, which provide the legal
basis for action to be taken against persons committing unlawful acts against
the safety of navigation (and against fixed platforms located on the continental
shelf), have been adopted by the Diplomatic Conference on the Revision of the
SUA Treaties.
The Conference,
which met from 10 to 14 October 2005 at the London Headquarters of the International
Maritime Organization (IMO), the United Nations specialized agency responsible
for safety and security of shipping and the prevention of marine pollution by
ships, adopted the amendments in the form of Protocols to the SUA treaties (the
2005 Protocols).
The principal
purpose of the SUA treaties is to ensure that anyone committing unlawful acts
against the safety of navigation will not be given shelter in any country but
will either be prosecuted or extradited to a State where they will stand trial.
The 2005 Protocols broaden the list of offences made unlawful under the treaties,
such as to include the offence of using a ship itself in a manner that causes
death or serious injury or damage and the transport of weapons or equipment
that could be used for weapons of mass destruction. The 2005 SUA Protocol introduces
provisions for the boarding of ships where there are reasonable grounds to suspect
that the ship or a person on board the ship is, has been, or is about to be
involved in, the commission of an offence under the Convention.
Speaking
at the close of the Conference, IMO Secretary-General Efthimios E. Mitropoulos
said, "The adoption of these Protocols marks the completion of the tasks
set by the IMO Assembly in resolution A.924(22), aimed at ensuring that the
international maritime community is properly equipped to counteract the gravest
menace it has ever faced."
He added,
"The usual request for States to become Parties to any new IMO treaty is,
in the case of the two Protocols adopted today, an urgent plea, the importance
of which, beyond any doubt, is clearly understood by all. We are running a race
against time in our efforts to prevent and suppress unlawful acts against the
safety of maritime navigation and to bring to justice the perpetrators of the
unlawful acts covered by the 2005 SUA Protocols. Early entry into force of the
Protocols is therefore of the essence. And, while early deposits of instruments
of ratification will send a strong message that the maritime community is eager
and willing to protect the industry against acts of terrorism, on the other
hand, any delays in so doing will send a wrong signal to all those who, at this
time, are profiting from the present legal vacuum which the Protocols aim to
fill."
The SUA treaties
complement the practical maritime security measures adopted by IMO - including
SOLAS1 chapter XI-2 (Special measures to enhance maritime
security) and the International Ship and Port Facility Security (ISPS) Code,
which entered into force in July 2004 - in that they regulate the legal situation
in the unfortunate event that a terrorist attack should occur.
The two protocols
were developed by IMO's Legal Committee and are aimed at ensuring that the legal
framework put in place by IMO continues to provide an adequate basis for the
arrest, detention, extradition and punishment of terrorists acting against shipping
or fixed platforms or when using ships to perpetrate acts of terrorism.
The amended
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation will enter into force ninety days after the date on which twelve
States have either signed it without reservation as to ratification, acceptance
or approval, or have deposited an instrument of ratification, acceptance, approval
or accession with the Secretary-General. The amended Protocol requires ratification
from three States which are also party to the SUA Convention but it cannot come
into force unless the 2005 SUA Convention is already in force.
The 1988
SUA Convention has 126 Contracting States, representing 82.12 per cent of world
merchant shipping tonnage. The 1988 SUA Protocol has 115 Contracting States,
76.71 per cent of world merchant shipping tonnage.
Work on the
revision of the SUA treaties followed on from the adoption, in 2001, of IMO
Assembly resolution A.924(22), which called for a review of the then existing
measures and procedures to prevent acts of terrorism which threaten the security
of passengers and crews an the safety of ships.
The Diplomatic
Conference on the Revision of the SUA Treaties was attended by representatives
of 74 States Parties to the Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation, 70 States Parties to the Protocol
for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located
on the Continental Shelf, one Associate Member of IMO; and observers from four
intergovernmental organizations and nine non-governmental international organizations.
Background information on the 2005 Protocols to the SUA treaties
2005 Protocol
to the SUA Convention
Among the unlawful acts covered by the SUA Convention in Article 3 are the seizure
of ships by force; acts of violence against persons on board ships; and the
placing of devices on board a ship which are likely to destroy or damage it.
The 2005
Protocol to the SUA Convention adds a new Article 3bis which states that a person
commits an offence within the meaning of the Convention if that person unlawfully
and intentionally:
| · |
when
the purpose of the 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 any act: |
| |
- |
uses
against or on a ship or discharging from a ship any explosive, radioactive
material or BCN (biological, chemical, nuclear) weapon in a manner that
causes or is likely to cause death or serious injury or damage; |
| |
- |
discharges,
from a ship, oil, liquefied natural gas, or other hazardous or noxious substance,
in such quantity or concentration that causes or is likely to cause death
or serious injury or damage; |
| |
- |
uses a ship
in a manner that causes death or serious injury or damage; |
| · |
transports
on board a ship any explosive or radioactive material, knowing that it is
intended to be used to cause, or in a threat to cause, 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; |
| · |
transports
on board a ship any BCN weapon, knowing it to be a BCN weapon; |
| · |
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 |
| · |
transports on board a ship any equipment, materials or software or 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. |
The transportation
of nuclear material is not considered an offence 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 (Subject to conditions).
Under the new instrument, a person commits an offence within the meaning of
the Convention if that person unlawfully and intentionally transports another
person on board a ship knowing that the person has committed an act that constitutes
an offence under the SUA Convention or an offence set forth in any treaty listed
in the Annex. The Annex lists nine such treaties.
The new instrument
also makes it an offence to unlawfully and intentionally injure or kill any
person in connection with the commission of any of the offences in the Convention;
to attempt to commit an offence; to participate as an accomplice; to organize
or direct others to commit an offence; or to contribute to the commissioning
of an offence.
A new Article
requires Parties to take necessary measures to enable a legal entity (this could
be a company or organization, for example) to be made liable and to face sanctions
when a person responsible for management of control of that legal entity has,
that capacity, committed an offence under the Convention.
Boarding provisions
Article 8 of the SUA Convention covers the responsibilities and roles of the
master of the ship, flag State and receiving State in delivering to the authorities
of any State Party any person believed to have committed an offence under the
Convention, including the furnishing of evidence pertaining to the alleged offence.
A new Article
8bis in the 2005 Protocol covers co-operation and procedures to be followed
if a State Party desires to board a ship flying the flag of a State Party when
the requesting Party has reasonable grounds to suspect that the ship or a person
on board the ship is, has been, or is about to be involved in, the commission
of an offence under the Convention.
The authorization
and co-operation of the flag State is required before such a boarding. A State
Party may notify the IMO Secretary-General that it would allow authorization
to board and search a ship flying its flag, its cargo and persons on board if
there is no response from the flag State within four hours. A State Party can
also notify that it authorizes a requesting Party to board and search the ship,
its cargo and persons on board, and to question the persons on board to determine
if an offence has been, or is about to be, committed.
The use of
force is to be avoided except when necessary to ensure the safety of officials
and persons on board, or where the officials are obstructed to the execution
of authorized actions.
Article 8bis
includes important safeguards when a State Party takes measures against a ship,
including boarding. The safeguards include: not endangering the safety of life
at sea; ensuring that all persons on board are treated in a manner which preserves
human dignity and in keeping with human rights law; taking due account of safety
and security of the ship and its cargo; ensuring that measures taken are environmentally
sound; and taking reasonable efforts to avoid a ship being unduly detained or
delayed.
Extradition
Article 11 covers extradition procedures. A new Article 11bis states that none
of the offences should be considered for the purposes of extradition as a political
offence. New article 11ter states that the obligation to extradite or afford
mutual legal assistance need not apply if the request for extradition is believed
to have been made for the purpose of prosecuting or punishing a person on account
of that person's race, religion, nationality, ethnic origin, political opinion
or gender, or that compliance with the request would cause prejudice to that
person's position for any of these reasons.
Article 12 of the
Convention requires States Parties to afford one another assistance in connection
with criminal proceedings brought in respect of the offences. A new Article
12bis cover the conditions under which a person who is being detained or is
serving a sentence in the territory of one State Party may be transferred to
another State Party for purposes of identification, testimony or otherwise providing
assistance in obtaining evidence for the investigation or prosecution of offences.
Amendment procedure
Amendments to the Articles in the Convention require acceptance by a requisite
number of States. However, the Annex, which lists the treaties under which offences
can be considered for the purpose of the SUA Convention, has a special amendment
procedure.
The treaties listed 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 |
2005 Protocol
to the 1988 SUA Protocol
The amendments to the 1988 Protocol for the Suppression of Unlawful Acts against
the Safety of Fixed Platforms Located on the Continental Shelf reflect those
in the 2005 Protocol to the SUA Convention.
New article 2bis broadens the range of offences included in the Protocol. A
person commits an offence if that person unlawfully and intentionally, when
the purpose of the 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, uses against or on a fixed platform or discharges from a
fixed platform any explosive, radioactive material or BCN weapon in a manner
that causes or is likely to cause death or serious injury or damage; or discharges
from a fixed platform, oil, liquefied natural gas, or other hazardous or noxious
substance, in such quantity or concentration, that it causes or is likely to
cause death or serious injury or damage; or threatens, with or without a condition,
as is provided for under national law, to commit an offence.
New article 2ter includes the offences of unlawfully and intentionally injuring
or killing any person in connection with the commission of any of the offences;
attempting to commit an offence; participating as an accomplice; organizing
or directing others to commit an offence.
______________
1 International Convention for the Safety of Life at Sea (SOLAS)
Briefing
42, 17 October 2005
For further
information please contact:
Lee Adamson, Head, Public Information Services on 020 7587 3153 (media@imo.org)
or
Natasha Brown, External Relations Officer on 020 7587 3274 (media@imo.org).
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