The
Issues, Challenges and Implications of the SUA Convention
Paper
presented by
Dr.
Geeta Madhavan Ph.D
Advocate
and
Visiting Professor
Tamil
Nadu Dr. Ambedkar Law University
In human history the seas have performed the twin roles:of being a
medium of communication and trade and a rich natural resource of the living and
non living. The dual function of the seas has stimulated a legal regime for the
conduct of nations. In the 15th century States were in favour of
appropriation or exercise of exclusive rights over large expanses of sea and
the Papal Bulls of 1493 and 1506 partitioned the oceans of the world between
Spain and Porugal.1The Spanish monopoly of
commerce in the West Indies was challenged by other emerging sea powers and
Elizabeth I affirmed the freedom of the seas in answer to Spanish protest to
Francis’ Drake’s expedition.2 The 17th century nurtured the
principle of mare clausem (closed sea) as claimed by England, Denmark,
Spain, Portugal, the Papacy, Turkey and several other States. This concept
popular during the 17th century, which regarded the seas as
being national territories was swiftly replaced in the 18th century
by the Dutch sponsored principles of freedom of navigation and fishing. Grotius
favoured this principle whereby the oceans as res communis were to
be accessible to all nations but incapable of appropriation.3 This doctrine of the open seas suited
the early exploration and expansion policies of the European States and
irrespective of their motive for adopting the principle, it adhered to States
because it was sensible and pragmatic concept of shared use of the seas. Thus
the two stated principles of Grotius were :
(i) that the sea could not be the object of private or state
appropriation:
(ii) that the use of the high seas by one state would leave the medium
available for use by another.4
Although the concept of territorial waters became firmly established as
a principle under early international law; the developing international law
regarding the high seas did not seek to interpolate the concept. Instead the
development of the law of sea concentrated on the lines dividing the
territorial waters and other recognized zones and the high seas leading to a
rich compendium in international law. In this manner, the laws relating to
seas have been in constant motion for several decades seeking to
converge conflicting concepts.
The four major Conventions on the Law of the Sea of 19585 reiterated accepted principles of
international law as well as set down new rules for state maritime practice.
The subsequent large and complex 1982 Convention on the Law of the Sea6 (UNCLOS) was the result of the
Conference that lasted from 1974 to 1982 and involved numerous political,
economic and strategic factors. It came into force on 16 November 1994 and
provides the template for an effective international maritime security regime. Several significant issues were covered viz. setting
limits, navigation, archipelagic status and transit regimes, exclusive economic
zones (EEZ), continental shelf jurisdiction, deep seabed mining, the
exploitation regime, protection of the marine environment, scientific research,
and settlement of disputes. The basis for State jurisdiction of the seas in the
capacity of costal, port or flag State are set out along with the rights and
duties of a State and state soveregnity and sovereign rights over the seas and
its resources. Principles and norms
essential for the maintaing security and safety of the seas are provided in the
form of navigational rights,
responsiblities of the flag State, right of visit , hot pursuit and counter measure for piracy .
The freedom of
the high seas is to be found in Article 2 of the Convention of the High Seas7 which provides :
The high seas being open to all nations
, no State may validly purport to subject any part of them to its soveregnity.
Freedom of the high seas is exercised under the conditions laid down by these
articles and by the other rules of international law. It comprises , inter
alia, both for costal and non-costal States:
(1) Freedom
of navigation;
(2) )
Freedom of fishing;
(3) )
Freedom to lay submarine cables and pipelines;
(4) )
Freedom to fly over the high seas.
These freedoms and others which are
recognized by the general princilpes of international law shall be recognized
by all states with reasonable regard to all States in their exercise of the
freedom of the high seas.
In international law the freedoms of the high seas
granted to States is subject to the
maintenance of order on the high seas . Therfore, it becomes incumbent on the
States to ensure that all illegal activities committed on the high seas are
subject to the jurisdiction of the States based on international legal
principles of jurisdiction.The basis for
the maintenance of order on the high seas has rested upon the concept of
nationality of the ship and the consequent jurisdiction of the flag state over
the ship. Since early times the freedom of the high seas and the concept of
jurisdiction have both been severely harmed
by the menace of piracy . In the present times the maritme security
regime has severly been threatened by
both the rise in incidents of piracy and
the violent and illegal activities of terroists and other non state actors.
Piracy has been identified as being committed by opportunistic fishermen,
common criminals on the sea and members of sophisticated Asian syndicates.
Although there is not sufficent evidence there is enough reason to believe that these non state
actors are being used by terrorist organizations for their purposes of smuggling arms and for
narcoterroist activites. The time has
therefore come to critically examine
these issues and study the relevance of
exiting international legal norms to curb and counter the illegal
maritime activities.
Piracy is
strictly defined in international law and declared in the 1982 UNCLOS 8as
(a) Any
illegal acts of violence,detention or any act of depredation , committed for
private ends by the crew or passengers of a private ship or private aircraft
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;
(b) Any
act of voluntary participation in the operation of a ship or of an aircraft
with knowledge of facts making it a pirate ship or aircraft;
(c) Any
act of inciting or of intentionally facilitating an act described in
subparagraph (a)or (b).9
The opinion of
Judge Moore in the Lotus case10
explains piracy further :
“………….Piracy by law of nations ,in its jurisdictional aspects, is su generis.
Though statutes may provide for its punishment, it is an offence against the
law of nations, and as the scene of a pirate’s operation is the high seas ,
which is not the right or duty of any nation to police , he is denied the
protection of the flag which he may carry , and is treated as an outlaw, as an
enemy of all mankind- hosti humani generis - whom any nation may in the
interest of all capture and punish.”
The conclusion
that can be reasonably reached regarding piracy is that the two components of
the crime of piracy are:
(a)
the violent act must be committed by
passengers or the crew of a ship against another ship:
(b)
the violent act must be committed for
private ends.
This leads to
the understanding that while criminal
acts motivated by greed , hatred or vengance are acts of piracy , similar
violent acts committed only for political ends will not be conidered
piracy.This opinion prevailed till the gruesome incident of the Italian cruiser Achille Lauro
in 1985. The crew and passengers of Achille Lauro were held hostage on
the high seas against the release of 50 Palestinians detained by Israel.
Consequent to this incident the U.N.
General Assembly by Resaoluton 40/6111
included a paragraph requesting the International Maritime Organisation (IMO)
to recommend appropriate action. Italy put forward a proposal to negotiate a
convention against maritime terroism which was later co sponsored by Austira
and Egypt.. The IMO on its own initiative, in November established a working
group to study possible international measures to ensure passenger and crew
safety especially in ports..This led to the adoption of a set of “Measures to
Prevent UnlawfulActs Which Threaten the Safety of Ships and the Security of
Their passengers and Crews”.12 A
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation (hereinafter refered to as the SUA Convention) was concluded in Rome
and opened for signature on March 1988
together with an accompanying option protocol, the Protocol for the
Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on
the Continental Shelf, called the Rome Protocol.
In October
2000, a suicide attack took place on U.S. Navy guided missile destroyer USS Cole at the
Yemeni port of Aden killing 17 sailors. In 2002 there was an attack
on Limburg , a double hull tanker
carrying 397,00 barrels of crude oil from Iran to Malaysia in the Gulf of Aden
off Yemen . Both the incidents underlined the need for the intenational
community to adress urgently various
issues of maritime terroirsm.
Before we
delve deeper into challenges of the maritime security regime it is necessary
to examine the reasons for the
possibilty of a violent catastrophic maritme act ; albeit not causing
high human casualty it will still have
grave economic effects on global trade . Post 9/11 the hardening of air
and land targets in the form of increased secutiy of vulnerable targets on land
and the heightened security at airports will lead to the possibility of
terrorist organiations seeking newer and
softer targets . The high seas may be explotied by these organisations
and other non state actors for various illegal activities as it is imposiible
to provide constant and consistent security on the high seas. The maritime
domain lies open to those who seek to cripple economies and cause severe global
repurcussions.This is specially true of the growing Asia Pacific economies. For
instance China, Japan and South Korea constiutte nearly 78% of ther global
order book in
terms of
tonnage. This increased trade flow and the growth of regional navies would not
have gone unnoticed by the actors of maritime terorism. The continued rising
demand for energy has made the sea routes of transpotration extremely
vulnerable as has been seen by the attack on Limburg. With the growing
energy demands the sea routes will see not only an increase in traffic that
will make it more difficult to provide security for but also the bigger ships
which will offer larger targets .Sufficent intelligence is available about
planned attacks on the American naval
vessels at Changi Naval Base in Singaopre and about the Hizbollah reconnaisance
of the Straits of Singapore for possible acts of terrorism. Suicide attacks on commercial and military vessels
also cannot be ruled out . The LTTE by its consitent and successful suicide
attacks on the Sri lankan Naval vessels
has exposed the vulnerability of bigger
crafts when attacked by small swift converted crafts . There also arises the
possibility of hijacking of commercial vessels, pasenger ships and oil
tankers in the high seas for the
purposes of suicide missions, for
hostage taking , for ransom or for
smuggling wepons, WMDs and other
illegal activities. Ships carrying flammable materials or chemicals could also
be hijacked and used to destroy other vessels. In March 2003, the Dewi Madrim, a chemical tanker off the coast of
Sumatra, was boarded by pirates from a speedboat. They were armed with machine
guns and they disabled the ship's radio,
took the helm and steered the vessel, altering speed, for about an hour. It is
evident that the terrorist organisations are well aware of the vulnerabilites
of the vessls on the high seas and have not precluded the possibility of
future attacks
on them. Therefore , two main challenges are placed before the maritime
security regime
(a)
the safe passage of goods and passengers
(b)
to ensure that the sea lanes remain open
for the free flow of goods and resources
The SUA
Convention was the result of the initative of Professor Ferrari Bravo following
the Achille Lauro incident which was joined by Austria and Egypt. A
draft modeled on the Hague and Montreal Conventions13was submitted at the International
Maritime Organization (IMO). The SUA Convnetion does not deal so much with the suppression of such
acts as with apprehension, conviction and punishment of those commiting them.
The Preamble stating the purpose of the Convention reads
….urgent need to develop international
co-operation between States in devisingand adopting effective and practical
measures for the prevention of unlawful acts against the safety of maritime
navigation, and the prosecution and punishment of the perpetrators,
Article 3 in
great detail enumerates the various offences that committed unlawfully and
intentionally come under the purveiw of the Convention. Article 13 of the SUA
Convention requires States to cooperate in the prevention of the offences
against the safety of maritime navigation.
The SUA
Convention in the same manner as the other anti terrorism Conventions has at
its core the principle under
international law the application of the maxim aut punire aut dedere
(extradite or prosecute) i.e. the offender must be punished by the State
of refuge or surrendered to the State which can and will punish .
The SUA
Convnetion Article 11 (4) provides that
the offence set forth [in the
Convention] shall be treated, for the purpose of extradition between State
Parties ,as if they had committed not only in the place in which they occurred
but also in a place within the jurisdictoin of the State Party requesting
extradition.
The Convention
therefore clearly defines the offences constituing piracy and obligates certain
States and authorizes other to establish jurisdiction, and places an
obligation on the State in which the offenders are found either to
extradite them or submit them to its authorities for prosecution.
The SUA
Convnetion also has a vast geographic application and its provisons permit
effective legal action against those commtiing maritime terrorism.14 If limitations were placed on its
geographical scope: if acts such as muder had been omitted from the definiton
of the offences or the jurisdictional
provision to extradite or prosecute had been narrowed- the Convention would
have been seriously hampered . Limiting the jurisdiction to the flag State and
the State of nationality of the offender or obliging the
State in which
the offender is found to extradite or prosecute would have reduced the impact
of the Convnetoin. If the State of nationality of the offender and the flag
State were to show disinterest or unwillingness in prosecuting and if they
would be the only ones to have jurisdiciton or a right to extradition the offender may go unpunished
. This would defeat the very purpose for which th eConvention was crafted.
Even thogh exisitng rules of international law
set a different basis for jurisdiction unless jurisdiction is extended as the
SUA Convention effectively does,
international terrorism cannot be countered. In this sense the
Convention goes beyond the principles of customary international law. In this
contexrt the Proliferation Security Initiative (PSI), a an initative of the United States in May
2003 for maritime security 15 can be
seen as a mere duplication of certain principles of the SUA Convention ; those
provisions that go beyond the Convnetion are a direct contravention of well
established rules of international law that severly erode the princilpes of
territorial sovereignity and territorial jurisdiction of the seas.The school of
thought that support the PSI therfore, require
to converge the principles as laid downin the SUA Convention with well established principles
of international law to apprecite the ambit of the Convnetion : and if the
intention be to plug any perceived
lacuna then the thrust should be towards extending the principles
not directly contravening them. The multilateral Convnetion ( as contrasted
with the unilateral “intiative” ) has as its aim the intention to deter and
punish acts of maritime terorism and provide jurisdictional basis that is
required for a State whose fundamental interest are threatened by terrorists as
also to invest in the States the right
to
prosecute the
perpetrators of the acts. Thus Article 6 of the SUA Convention confers widest
jurisdiction on the States over terrorist actions.
Protocols to the
United Nations Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation (SUA
Protocol) is a definite move to address the issue of maritime terrorism. On
October 14 2005, the International Maritime Organization (IMO) Diplomatic
Conference in London adopted two treaties with significant nonproliferation,
counter terrorism and ship-boarding provisions. These treaties are
Protocols to the UN Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation (SUA) and its related Protocol on Fixed
Platforms. The SUA and the Fixed Platforms Protocol are two of the twelve
UN Conventions16 that deal with different
forms of terrorism. The new Protocols are intended overcome the lacuna in
exiting international law regime in the worldwide fight against terrorism.
The SUA Protocol17 provides the first international treaty
framework for combating and prosecuting anyone who uses a ship as a weapon or
as a means to carry out a terrorist attack, or who transports terrorists or
cargo destined to support weapons of mass destruction (WMD) programs by ship.
This pact also
establishes a mechanism to facilitate boarding of ships suspected of engaging
in these activities in international waters. The new nonproliferation language
strengthens the international legal basis to impede and prosecute the
trafficking of WMD and associated delivery systems and related materials on the
high seas in commercial vessels by requiring state parties to criminalize such
transport. These offenses are consistent with existing international
nonproliferation treaties.
The SUA Protocol explicitly provides that the rights,
obligations and responsibilities of States under international law --
including the Nuclear Non-Proliferation Treaty (NPT), the Chemical Weapons
Convention (CWC), and the Biological Weapons Convention (BWC) -- are not
affected. This new counter terrorism language specifies how a ship or fixed
platform could be used criminally. The SUA Protocol also criminalizes the
transport of fugitives who have committed an offense as defined by the existing
twelve U.N. Terrorism Conventions and Protocols. Further, the ship boarding provisions
create a full set of procedures and protections to facilitate access to any
vessel suspected of being involved in a SUA offense.
The Protocols resulted from more than three years of
intensive negotiations. They were opened for signature on February 14,
2006; the SUA Protocol entered into force 90 days after the twelfth country
(three countries in the case of the Fixed Platforms Protocol) signed it without
reservation as to ratification, acceptance or approval (or deposits an
instrument to that effect).
The new nonproliferation offenses strengthen the
international legal basis to impede and prosecute the trafficking of WMD, their
delivery systems and related materials on the high seas in commercial ships by
requiring States parties to the Protocol to criminalize such transport.
These transport offenses are subject to specific knowledge and intent
requirements that ensure the protection of legitimate trade and innocent
seafarers. The nonproliferation offenses are consistent with existing
international nonproliferation treaties, and the SUA Protocol explicitly
provides that the rights, obligations and responsibilities of States under
international law -- including the Nuclear Nonproliferation Treaty (NPT), the
Chemical Weapons Convention (CWC), and the Biological Weapons Convention (BWC)
are not affected.
The new counter terrorism offenses criminalize the use of a
ship or a fixed platform to threaten or intimidate persons, States or
international organizations, including when:
(1)
explosive, radioactive material or a biological, chemical or
nuclear weapon is used against, on or discharged from a ship or fixed platform;
(2)
certain hazardous or
noxious substances are discharged from a ship or fixed platform; or
(3)
any other use is made
of a ship in a manner that may lead to or causes death, serious injury or
damage.
The SUA Protocol
also criminalizes transport of fugitives who have committed an offense under
the other twelve UN terrorism Conventions and Protocols.
The ship boarding provisions establish a comprehensive set of
procedures and protections designed to facilitate the boarding of a vessel that
is suspected of being involved in a SUA offense. Consistent with existing
international law and practice, SUA boardings can only be conducted with the
express consent of the flag state. In addition to eliminating the need to
create time-consuming ad hoc boarding arrangements when facing the immediacy of
ongoing criminal activity, under the Protocol the ship boarding provisions
provide robust safeguards that ensure the protection of innocent seafarers.
These issue
have to be minutely examined in the light of the fact some of the major waterpassages
although supporting international passage are territoial waters and are
therfore subject to territorial jurisdiction. This under international law raises questions of soverignity that cannot
be so easily circumvented. It is for this very reasons that several states have
not been forthcoming with support for the United States Proliferation Security Initiative (PSI) . The
significant fact that the United States is not a signatory to the SUA
Convention and has sought an initiative outside the international legal regime
cannot be ignored either.
It becomes imperative for the
international community to formulate and implement robust
intenrnational laws that deter all criminal and violent activities by
pirates and
terrorists.
Counter terorism measures have to be constructed around the concepts of detection and deterrence of attacks as well
as aimed at mimnizing the damage from actual attacks. For example any attack
at the choke points of sea trafic
viz.the Panama Canal, Straits of Hormuz and Straits of Malacca could lead to
the shutting down of sea traffic which could throw the entire sea transport
system for a lentgh of time that would severely affect the global trade system.
The 2005
Protocol to the SUA Convention added 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.}
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.
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.
All
international Conventions from the perspective of the rule of law while being
comprehensive are also subject to application by a State in accordance with its
diplomatic and political priority. However international conventions, like
international institutions, are not be evaluated for successes. They reflect
the desire of the majority of the global community to deal with issues of great
concern to them .The tendency to minimize their importance by constant
reference to the lack of precise definition of terrorism takes away from the
fact that the twelve international conventions that deal with various forms and
facets of terrorism actually provide perfect working definitions of terrorism.
The States have to show greater responsibility in enforcing the law in
pursuance of these conventions but that in no manner mitigates the principles
of international law as laid down in these Conventions. Therefore, to use the
ruse of weakness of the Conventions (where in reality the weakness is the
consequence of certain States of the international community to pledge
themselves to implement them) to initiate principles that violate the basic
tents of international law would be a dangerous precedent. Furthermore,
adherence
to international
law has as envisaged by the UN Charter advanced global security and peace;
therefore to create parallel systems on issues already addressed by the global
community by multilateral conventions within the international legal regime and
approved and accepted by majority of States should not be encouraged.
1 Ian Brownlie, Principles of Public International Law, Oxford
University Press 1979 p. 238.
2 Ibid.
3 Mare Liberum, 1609. See also Malcolm Shaw, International
Law, Cambridge University Press, 1997 p. 390
4 Mare Liberum, cap.v.
5 The 1958 Convention on the High Seas came into force in 1962; the
1958 Convention on the Territorial Sea and the Contiguous Zone came into force
in 1964; the 1958 Convention on the Continental Shelf came into force in 1964;
the 1958 Convention on Fishing and Conservation of Living Resources came into
force in 1966.
6 The 1982 Convention contains 320 Articles and 9 Annexes.
7 The 1958 Convention on the High Seas
8 Article 101 of 1982
Convention on the Law of the Sea6
(UNCLOS)
9 See also Article 15 of the High Seas Convention 1958.
10 P.C.I.J., Ser.A,no.10
(1927),p.70
11 U.N.General Assembly Resolution 40/61 (1985)
12 Meaasures to
Prevent UnlawfulActs Which Threaten the Safety of Ships and the Securityof
Their Passengers and Crews, A.584 (14)
of 20 November 1985.A Convention for the Suppressionof UnlawfulActsagainst the
Safety of MaritimeNavigation was concluded in Rome and opened for signature in
march
13Hague Convention for the Suppression of Unlawful Seizure of Aircraft
1970; Montreal Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation 1971.
14 Malvina Halberstam, Terrorism on the High Seas: the Achille Lauro,
Piracy and the IMO Convention on Maritime Safety, Am.J.Int’l L. Vol. 82, 1988
15 the PSI consists of 15 core countries and 60 other countries that
have agreed to participate on an ad hoc basis.
16 (1) Convention on Offences and Certain Other Acts Committed On
Board Aircraft (Tokyo Convention) 1963;(2) Convention for the Suppression of
Unlawful Seizure of Aircraft (Hague Convention 1970); (3) Convention for the
Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal
Convention) 1971; (4) Conventon on the Prevention and Punishment of Crimes Against
Internationally Protected Persons 1973; (5) International Convention Against
the Taking of Hostages 1979; (6) Convention on the Physical Protection of
Nuclear Material 1980; (7)Protocol for the Suppression of Unlawful Acts of
Violence at Airports Serving International Civil Aviation- 1988; (8) Convention
for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation1988; (9) Protocol for Suppression of Unlawful Acts Against the
Safety of Fixed Platforms Located on the Continental Shelf 1988; (10)
Convention on the Marking of Plastic Explosives for the Purpose of
Detection1991;International Convention for the Suppression of Terrorist Bombing
1997; International Convention for the Suppression of the Financing of
Terrorism 1999.
17 Protocols to the United
Nations Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation
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