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.

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1 International Convention for the Safety of Life at Sea (SOLAS)

Briefing 42, 17 October 2005

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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).