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Established under the auspices of the International Maritime Organization A specialized agency of the United Nations
The Convention For The Suppression Of Unlawful Acts Against The Safety Of Maritime Navigation As A Key Element Of International Law’s Framework Against Terrorism
A Dissertation submitted in partial fulfillment of the requirements for the award of the Degree of Master of Laws (LL.M.) at the IMO International Maritime Law Institute
Submitted By: Lesther Antonio Ortega Lemus (Guatemala) Supervisor: Mr. Ruben Maceda
Academic Year 2007/2008
I dedicate this work to my mother Mayling Patricia
Table of Contents Page Introduction: International Peace and Security Breached Chapter I: International Law as an Answer to Stop Terrorism 1.1 First attempts 1.2 The “new wave”: aerial hijacking and hostage-taking 1.3 Nuclear material, explosives and bombings 1.4 Latest Trends 1.5 The global approach revisited 1.6 The UN Resolutions 1.6.1 The UNGA 1.6.2 The UNSC Chapter II: The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 2.1 Historical background of SUA 1988 2.2 CSUA.1988 and PSUA.1988 features 2.3 Background to SUA 2005 2.4 SUA 2005 instruments features Chapter III: International Framework against Terrorism and SUA: working seamlessly? 3.1 Elements to consider 3.2 The Offences 3.3 Jurisdiction 3.4 Cooperation and prosecution measures 3.5 Extradition, aut dedere aut iudicare and the prohibition to use the political offence exception Conclusions Annex 1 Bibliography ii 1 2 2 5 6 7 8 8 9 10 11 15 19 24 29 30 31 33 34 34
36 39 41
Introduction International Peace and Security Breached Homo homini lupus… 1 bellum omnium contra omnes… 2 These two famous phrases described the nature of humankind towards itself, and can be applied perfectly to describe the horrors of war. Conscious of the aforesaid, due to many historical and sociological factors, a movement away from the latter and towards a State of perpetual peace has always been present. It’s been described as a superior State of humanity by many celebrated authors like, inter alia, Kant, Saint Simon, and Rousseau. Thus, history witnessed how humanity struggled in wars, with very limited periods of relative peace among nations (Pax Romana, etc.). The arrival of the 20th century brought the most serious efforts until then to limit the recourse of war and hostilities among civilized nations. Those efforts were channeled through international law. An example of this argument can be found in the First and Second Peace Conferences held at The Hague, Netherlands in 1899 and 1907 and their most significant contribution: the setting up of the Permanent Court of Arbitration (PCA). However, the treaties talk about “…obviating, as far as possible, recourse to force in the relations between States…” 3, not as the KelloggBriand Pact intended for “condemn recourse to war… …renunciation of war as an instrument of national policy” 4, and certainly not proscription of it, as the Charter of the United Nations (UNCh) does: “All Members shall refrain in their international relations from the threat or use of force…” 5 Jus ad Bellum and Jus in Bellum were also developed as legal concepts and codified by the Geneva Conventions 6, giving birth to the modern conventional International Humanitarian Law. Today, the recourse to force among nations is regulated by the UNCh, especially by Articles 1,2, 24 and Chapter VII as a whole, giving global-wide
Plautus. Asinaria. Hobbes, Thomas. De Cive. Ch.1_Sec.2. 3 http://www.pca-cpa.org/upload/files/1899ENG.pdf Convention for the Pacific Settlement of International Disputes. Done at The Hague 29 July 1899, entered into force 4 September 1900. 4 http://www.yale.edu/lawweb/avalon/imt/kbpact.htm Done in Paris 27 August 1928, proclaimed into force 24 July 1929. 5 http://www.un.org/aboutun/charter/index.html Charter of the United Nations. Concluded in San Francisco 26 June 1945, entered into force 24 October 1945. 6 Full texts of the 4 original Conventions, and the subsequent protocols available at: http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions
powers to the United Nations Security Council (UNSC hereon), while preserving the individual right of self-defense in Article 51. Considering all the aforesaid, it is clear that violence among States is forbidden in principle and regulated if happens. Several problems arise though: what happens if a State is attacked, not by another State, but by individuals or groups of individuals? To whom might the victim direct its selfdefense reaction? What happens if an International Organization, through its representatives, is the victim of the attacks? What if it’s only a threat of an attack? What if the threat or attack is used to compel the above to do or abstain to do something? While traditionally International Law recognized as its sole subjects States, and more recently International Organizations and other groups (only indirectly regarding individuals), international relations, peace and security have been affected seriously by other actors, regardless of not being recognized in this plain. Being conscious that the scope of the scenarios proposed at supra is wide, this paper will focus only on one: terrorism. The term still resists an internationally-accepted definition and has wandered in the political arena ambiguously qualified: “one man’s terrorist is another man’s freedomfighter” 7; therefore the following will be used as mere guidance for the reader, being “the threat or use of violence with the intent of causing fear in a target group, in order to achieve political objectives.” 8 UNSC gave itself a “working definition” 9 which characterizes terrorism as “…criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of an as defined in the international conventions and protocols relating to terrorism…” 10 Even when the UNCh in its Chapter VII does not define what it means with “threats to the peace”, and at one time was considered to be limited to threats of military force emanating from a State 11, it is now clear (some still doubt if it should apply to all acts of terrorism 12) that international terrorism
Jenkins, Brian Defense Against Terrorism Political Science Quarterly, Vol.101 No.5 (1986)P.779 Burchill, Richard et al International Conflict and Security Law. P.133-134 9 Saul, Ben Defining Terrorism in International Law P.9 10 UN Document S/RES/1566 (2004) 11 Greenwood, Christopher International Law and the ‘War against Terrorism’ International Affairs, Vol.78 No.2 (2002) P.306 12 Saul. Op.Cit. P.47
acts are equated to threats to the peace, as shown in many of UNSC resolutions related to terrorism 13. As a breach of international peace and security with growing effects, appropriate answers must be available in order to suppress it. In our civilized time, that answer should only be searched through international law. Thus, attention will be placed on international community’s fight against terrorism through international law. Notwithstanding that an international general regime is until today absent, an atomized one has flourished since 1960, crystallized by the adoption of several international instruments that address specific facets of international terrorism, including that held at sea or against navigation. Although constructed in a sector-approach way, collectively they constitute the only international framework against terrorism that the international community can count on14. Acting outside that framework would undermine the bases of international law and international relations. Ultimately, the hypothesis that the author will try to demonstrate is that in the light of that fight against terrorism, the International Maritime Organization (IMO hereon), by means of the 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, and their 2005 Protocols, namely the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf has collaborated to tighten that framework and expand it, making the above instruments fundamental pieces of the antiterrorism network of offences, jurisdictions and prosecution mechanisms.
Inter alia, Resolutions 748 (1992), 883 (1993), 1044 (1996), 1189 (1998), 1267, 1269 and 1333(1999), 1368, 1373 and 1377 (2001), 1390 (2002),1455 (2003), 1526 and 1535 (2004), 1611 1617 1618 1624 and 1636 (2005) 14 The full list of international instruments against terrorism available at http://untreaty.un.org/English/Terrorism.asp
1. International Law as an answer to stop terrorism
1.1 First attempts
Terrorism is not a new phenomenon. Neglecting references to Sicarrii Zealots, AlAssasins and Guy Fawkes15, it could be said that it first appeared in the 19th century with attempted and accomplished acts against heads of state and their families 16 and with anarchists acts which were regarded as “the enemy of all Governments” 17 The attempted assassination of Napoleon III in 1856 gave way for the first exclusion of an act of its kind as a political offence: the so-called “Belgian clause”. Thus, it was through the construction of bilateral or multilateral extradition treaties that the first acts of terrorism were addressed. 18 The assassination of King Alexander of Yugoslavia and Louis Barthou, Minister of the French Republic at Marseilles on 9 October 1934 provoked the reaction of the Council of the League of Nations which passes a resolution stating that “the rules of international law concerning the repression of terrorist activity are not at present sufficiently precise to guarantee efficiently international co-operation in this matter” and decided for the preparation of a draft convention on the repression of conspiracies or crimes committed with a political and terrorist purpose. 19 The latter became the Convention of 1937 for the Prevention and Punishment of Terrorism, which was signed by 24 States but received one ratification only (India) and never came into force 20. It was the first incursion of coordinated international law against terrorism.
The “new wave”: aerial hijacking and hostage-taking
Contemporary terrorism21 is a consequence of political conditions and the technological advance experimented in the late 1960’s: guerrilla wars sponsored by the superpowers as an indirect confrontation, Mao’s doctrine on maximizing the perception of violence regardless of the actual physical damage inflicted22, World War II concept of total war rendering every human aspect a legitimate target, mixed with modern technology, telecommunications and unlimited transport possibilities.
http://www.terrorism-research.com/evolution/ McWhinney, Edward The September 11 Terrorist Attacks and the Invasion of Iraq in contemporary International Law P.19 17 Dugard, John International Terrorism: Problems of Definition International Affairs Vol.50 No.1 (1974) P.68 18 Ibid. P.67 19 Franck, Thomas & Bert Lockwood Jr. Preliminary Thoughts towards an International Convention on Terrorism AJIL Vol.68 No.1 (1974) P.69 20 Dugard. Loc cit. 21 For a comprehensive chronologic summary of terrorist attacks see http://www.state.gov/r/pa/ho/pubs/fs/5902.htm 22 Jenkins Loc cit P.776
The next wave of terrorism appeared in the form of aerial hijacking as means for hostage-taking to compel for political gain or seek for financial ransoms. Terrorists took advantage of the lack of adequate security precautions in advance or during flights, its mobility and of the lapse where the plane is isolated in air. Statistics show that between 1961 and 1972 there were 343 world-wide reports of successful and unsuccessful hijackings. The trends gathered also showed that although it began as “aerial piracy” (with regards of the “private-ends” requirement) it rapidly turned into an efficient political tool for guerrillas and terrorist groups. 23 Advantageous was the fact that the air industry has been a global and sufficiently regulated one, with efficient of cooperation among the stakeholders and organizations (ICAO and IATA); ultimately, these conditions permitted to adopt a pragmatic, functional solution. Three international instruments were drafted and entered into force in a decadespan to tackle the different aspects of aerial terrorism 24. Later on the last one was supplemented by a Protocol:
With the adoption of the fourth instrument, almost all of the possible scenarios of aerial terrorism were covered by international law solutions, providing for the three elements that the author considers essential in the antiterrorist framework: a defined scope of application, acts classified as offences, bases for exercising jurisdiction and mechanisms for prosecution.
Evans, Alona Aircraft Hijacking: What is being done AJIL Vol.67 No.4 (1973) P.641-671 Dugard. Loc cit. P.71
But the incursion of terrorism into airspace brought more than one problem: aware of the world-wide mobility that jet travelling provides terror could be taken to and strike at any continent25. Following the above, hostage-taking came to the scene. Directed to high-profiled persons or to any vulnerable collectivity, hostage-taking had examples as Munich, Bangkok and Khartoum. Embassies and diplomats were among the preferred targets for terrorists. This gave way to the adoption of two instruments under the auspices of the UN:
Of relevance, and predating the above, the OAS also produced an instrument aimed at the terrorization of diplomats, which was actually taken into account by the ILC when preparing the draft convention of 1973. Although of a regional origin, by its Article 9 the Convention grants participation to “any other State that is a member of the United Nations or any of its specialized agencies, or any State that is a party to the Statute of the International Court of Justice, or any other State that may be invited by the General Assembly of the Organization of American States to sign it” 26 ending up being a global-reach instrument:
Jenkins. Loc cit http://www.oas.org/juridico/english/treaties/a-49.html
Nuclear material, explosives and bombings
Meanwhile the instruments listed until know were direct reaction to concrete attacks, acknowledging the great risk to proceed in the same way with other possible types of terrorism, the international community decided not to take chances with nuclearrelated acts, and concluded an instrument related to the protection of nuclear facilities, and materials 27:
Acting again on a reactive manner, after the 1985 Achille Lauro incident, the two SUA instruments, dealing with maritime terrorism, were concluded under the auspices of IMO. For being the central point of this paper, the next chapter will discuss their origin, features and evolution through the 2005 Protocols:
Until this point in time, the international regime against aerial hijacking was working fine. The incident of the 1988 Pan Am 103 flight brought to light that terrorism had to be addressed not only regarding the possible targets but also by its means.
Explosives being the most relevant then and the weapon of choice for executing the aforesaid attack, two new instruments were devised in order to tackle this issue:
The latter has been used in recent dates when drafting new instruments related to terrorism 28.
The international community managed to cover the aforesaid areas in a span of almost 40 years, since the new wave of terrorism made its entrance to the international plane. Although already treated by a tenth of international instruments, terrorism is far from ending. This was learnt the hard way with the 11 September 2001 events, together with the recent USS Cole, Limburg, Kenya and Nairobi Embassies attacks. It has been obvious that from the continuance of the attacks regardless of the number of conventions available, still some doors have not been closed for terrorists. Recognizing that terrorists needed substantial economical means in order to deliver their every-time-more-sophisticated attacks, to buy weapons, pay for travel and life undercover, training and intelligence, the next convention to be concluded aimed at the financing of terrorism:
IMO Work Undertaken by the IMO in an Effort to Prevent and Combat Terrorism Fifth Special Meeting on the Counter-terrorism Committee with International, Regional and Subregional Organizations, 29-31 October 2007, Kenya
Following a draft document presented by the Russian Federation, after 7 years of debates, a new convention regarding nuclear terrorism has been agreed. Far from overlapping with the previous convention related to the protection of nuclear materials, this new-comer aims to suppress and prosecute terrorist attacks using nuclear devises or material as means of violence and terror:
If finally ratified by sufficient States (22), the latter will become the 13th anti-terrorism international instrument of the, until-now, sectoral approach29 framework.
The global approach revisited
As pointed out in herein, the only concluded international instrument addressing terrorism globally (at least nominally) has been the 1937 attempt, which as underscored at supra, failed. The world has been tempted a few more times to take such approach. One of those examples lays on the ILC 1954 Draft Code of Offences against Peace and Security of Mankind (Part I) where terrorism was expressly linked to the concept of aggression. The great ambiguity over the latter finally provoked the whole project to be postponed. A new attempt was made between 1982 and 1996 30 which lead to the establishment of the International Criminal Court (ICC). Another example of a global-reach attempt is the Draft Convention on the Prevention and Punishment of International Terrorism31, presented by the USA delegation in 1972 to the 6th Committee of the UNGA that, although didn’t adopted it, gave birth to Resolution 3034 (XXVII) 32 of 18 December 1972 which established an Ad Hoc Committee on International Terrorism of 35 to study the problem and the views of the different observations that State-delegations produced therein. Later on, but this time on a regional basis, the USA American Bar Association produced the so-called “Model American Convention on the Prevention and Punishment of Serious Forms of Violence” which was modeled after the European
http://www.un.org/News/briefings/docs/2005/Legal_Counsel_Briefing_050412.doc.htm http://untreaty.un.org/ilc/guide/7_4.htm 31 UN Document A/C.6/L.850 32 UN Document A/RES/3034(XXVII)
Convention on the Suppression of Terrorism 33 of 1977. The OAS would not adopt another instrument regarding terrorism until the 2002 Inter-American Convention against Terrorism34. The latest of those global efforts, the so-called Comprehensive Convention on International Terrorism (CCIT), which draft was first submitted by India in 1996 35 to the 6th Committee, and was later on circulated as an informal revised draft 36. It has been under discussion since 2000 at the Ad Hoc Committee created under UNGA Resolution 51/210 of 17 December 1996 37.
The UN Resolutions
When referring to the relevance of the UN resolutions, both UNGA and UNSC, the author must first remind the reader that the majority of the above quoted antiterrorist international instruments are product of either the UNGA or one of the UN Agencies or the IAEA, latter which works under the UN system umbrella. Therefore the importance of the resolutions, declarations, drafts, working papers and other documents that have been circulated or emanated from any of its organs, agencies, related organizations, committees, departments, bureaus, etc, cannot be disregarded at all. Nevertheless, the author has to leave them out of this treatment due to spatial limits and methodology, therefore only a very superficial remark will be done in this regard.
1.6.1 UNGA The UNGA produced some early resolutions regarding terrorism. Those are 38, 32/147 of Resolutions 3034 (XXVII) (quoted at supra), 31/102 of 15 December 1976 16 December 1977 39, 34/145 of 17 December 1979 40, 36/109 41 of 10 December 1981, 38/130 of 19 December 1983 42. One of great relevance for this paper is Resolution 40/61 of 9 December 1985, which was produced in the wake of the Achille Lauro incident.
Signed 27 January 1977, entered into force 4 August 1978 http://www.oas.org/juridico/english/treaties/a-66.html Adopted 3 June 2002 Bridgetown, Barbados, entered into force 10 July 2003. 35 UN Document A/C.6/51/6 of 11 November 1996 36 UN Document A/C.6/55/1 of 28 August 2000 37 UN Document A/RES/51/210 available at http://daccessdds.un.org/doc/UNDOC/GEN/N97/761/65/PDF/ N9776165.pdf?OpenElement 38 UN Document A/RES/31/102 http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/302/85/IMG/NR030285.pdf? OpenElement 39 UN Document A/RES/32/147 40 UN Document A/RES/34/145 41 UN Document A/RES/36/109 42 UN Document A/RES/38/130
Notwithstanding, the most important resolution with regards of terrorism, for being a landmark in the matter is UNGA Resolution 49/60 of 9 December 1994 43, especially for the Annex therein: Declaration on Measures to Eliminate International Terrorism. Later on another declaration was made in order to supplement the aforesaid, by means of annexing it to UNGA Resolution 51/210 of 17 December 1996 44. An Ad Hoc Committee was established under the latter and its work has extended until today. To it the drafting of the latest antiterrorist conventions is owed. The discussion of the CCIT is currently being held by it as well. By means of such declarations, some basic principles of general acceptance have been laid to build upon them. As it has been argued above, the ideological problem of terrorism casts a shadow over the inhuman atrocities that are committed, regardless of any possible justification given.
Of historical importance is Resolution 579(1985) for its relationship with SUA’s birth, and 1269 (1999) since the latter established the basic items that the UNSC resolutions would set forth in future resolutions. The two crucial resolutions that the UNSC has issued regarding terrorism have been Resolutions 1368 (2001) and 1373 (2001), both in the wake of the 9/11 terrorist attacks. Through them, the UNSC changed its language towards terrorism as a threat to international peace and security and imposed serious and extensive obligations on States regarding terrorism, its financing, movement of terrorists, etc., as well as the reiteration of becoming part of the universal instruments against terrorism.
UN Document A/RES/49/60 UN Document A/RES/51/210
2. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 2.1. Historical Background of SUA 1988
It is well established that the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 45 (CSUA.1988 hereon) and the Protocol for the Suppression of Unlawful Acts against the Safety of fixed Platforms Located on the Continental Shelf 46 (PSUA.1988 hereon), both adopted by the diplomatic conference held in Rome 10 March 1988, were born as the aftermath of the Achille Lauro incident, which took place on 7 October 1985, when the Italian-flagged cruise ship was taken over by members of Palestine Liberation Front (PLF), that boarded at the port of Genoa, posing as tourists, and held as hostages both crewmembers and passengers, threatening to kill them unless Israel liberated 50 Palestinian prisoners; if a rescue mission was attempted, they said, the ship would’ve been exploded. The seizers later on killed Leon Klinghoffer, a handicapped-Jew citizen of the USA 47. Different authors and politicians debated on whether the event could be legally classified as a piracy or not48. Those in favor of such qualification held that any act of unauthorized violence at the high seas was piracy 49, regardless of the absence of the animus furandi 50. Those against argued that for an act to be legally labeled as piracy it must comply with the elements established either in international customary or conventional law, and as far as those two stood in those days, it was required that the attack came from a second vessel or aircraft (the so-called ‘two-vessels’ requirement), that the attack was held in the high seas (the high seas requirement), and that private ends were the fuel of the attack (the ‘private-ends’ requirement). The Achille Lauro incident neither held the ‘two-vessels’ requirement nor the ‘privateends’ one. Even the high seas requirement could be contested to some extent 51. By that time, the world was facing a revival of piracy, which not so long before, was considered as an old-fashioned and eradicated criminal activity. Nevertheless, it was still held as the clearest example in customary international law of a crime over which universal jurisdiction was generally accepted, being the pirate hostis humani generis.
United Nations Treaty Series Vol.1678 P.222 Ibid. P.304 47 Halberstam, Malvina. Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety. AJIL Vol.82 Apr.1988 P.269 48 Ibid. P.270 49 Jesus, José Luis. Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects. IJMCL Vol.18 Sept.2003 P.378 50 Ibid. P.377 51 It seems that it was never clear enough if the events started in Egyptian territorial waters or not, but certainly, the ship was later on held in the high seas. Cfr. Halberstam. Op.Cit. P.269 footnote 1
International law regarding piracy was contained both in conventional law: in the Geneva 1958 Convention on the High Seas 52 (GCHS.1958 hereon) and the adoptedbut-not-yet-in-force United Nations Convention on the Law of the Sea of 1982 53 (UNCLOS hereon) as well as in customary law 54. Since the latter was described as not unequivocal and UNCLOS was not yet in force, the main tools to tackle events of piracy were the provisions of the former, contained in Articles 14-22. Article 15 envisaged piratical acts as:
(1) Any illegal acts of violence, 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: (a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (2) 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; (3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article.
It must be stated that UNCLOS regime against piracy was absorbed in toto from the GCHS.1958 articles and therefore under its provisions nothing at all would’ve been different. The image at infra explains the way that Article 15.1 of GCHS.1958 and Article 101 of UNCLOS characterize piracy:
United Nations Treaty Series Vol.450 P.11 Done at Geneva 29 April 1958. Entered into force on 30 September 1962. United Nations document A/Conf.62/122. Concluded in Jamaica 10 December 1982. Entered into force on 16 November 1994. 54 See Harvard Research in International Law, Comment to the Draft Convention on Piracy, 26 AJIL Supp. 750 (1932)
There were no more generally-accepted conventional rules at international level that could be used, and although the events of the Achille Lauro were typified by some states as piracy 55, the insufficiency of the norms was self-evident.
In this respect, the UN Security Council President made a statement on the 2628th meeting on 9 October 1985 in which, welcoming the news of the release of the hostages of the Achille Lauro “…resolutely condemn this unjustifiable and criminal hijacking as well as other acts of terrorism, including hostage-taking”. The text that has been highlighted shows that the act was qualified by the UN Security Council (UNSC hereon) as an act of terrorism, as a criminal hijacking but not as piracy.
At IMO’s 14th General Assembly, the issue of putting together measures to prevent and suppress unlawful acts against the safety of ships, their crews and passengers was raised by the USA delegation and it was included as item 10 (b) in the agenda. Resolution A.584 (14) was adopted under the title “Measures to prevent unlawful acts which threaten the safety of ships and the security of their passengers and crew” 56, which called upon Governments, port authorities and administrations, ship owners, operators, masters and crews to review and strengthen port and onboard security.
The issue was directed to the Maritime Safety Committee (MSC hereon) which was mandated to develop detailed and practical technical measures to be employed to ensure the security of all onboard ships, taking into account the work of the International Civil Aviation Organization (ICAO hereon). Finally, the resolution mandated the issuance of a circular that contained “information on the measures developed by the Committee to Governments, organizations concerned and interested parties for their consideration and adoption” 57.
By 9 December 1985, in its 108th plenary meeting, UN General Assembly (UNGA hereon)issued Resolution 40/61 Measures to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes, in
55 The USA characterized the event as piracy. The Justice Department obtained arrest warrants with charges of hostage-taking, conspiracy and ‘piracy on the high seas’. See Halberstam, Op. Cit. P.270 56 Resolution A.584 (14) November 20 1985. International Maritime Organization, Assembly Resolutions and Other Decisions; Fourteenth Session 11-22 November 1985. P. 152 57 Ibid.
which requested “…the International Maritime Organization to study the problem of terrorism aboard or against ships with a view to make recommendations on appropriate measures”.
The UNSC took a step further and issued its Resolution 579 (1985) on 18 December 1985, which urged “…the further development of international cooperation 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 terrorism”.
Italy, the flag-state of the Achille Lauro called the attention of the international community on what it considered a lacuna in the legal framework against terrorism, and pointed to the necessity of adopting an international instrument on maritime terrorism 58.
Under the initiative of its legal advisor, Professor Ferrari Bravo, and joined by Austria and Egypt, proposed a draft convention on maritime terrorism to IMO, modeled on existing conventions developed for the security of civil aviation: the Hague Convention for the Suppression of Unlawful Seizure of Aircraft and the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, as well as the more general United Nations International Convention Against the Taking of Hostages.
The issue was addressed by IMO’s Council on November 1986 and agreed unanimously that it required urgent attention by IMO, and for the purpose of acceleration, it referred the latter to an Ad Hoc Preparatory Committee open to all States, instead of sending it to the Legal Committee, with the “…mandate to prepare, on a priority basis, a Draft Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation” using as basis the draft presented by Italy, Austria and Egypt59.
The aforesaid Preparatory Committee met twice, first in London, in March 1987, and later in Rome in May of the same year. After the latter, the Committee agreed on a
Jesus. Op. Cit. P.388 Halberstam. Op. Cit. P.292
final draft, leaving some issues of importance for a diplomatic conference to agree upon them. The referred diplomatic conference was decided by IMO’s Council at its 58th session in June 1987 and endorsed by the Assembly at its 15th regular session by Resolution A.633 (15) of 20 November 1987 60.
The Government of Italy forwarded an invitation to host the said conference and once approved by the Council and endorsed by the Assembly, the Conference was held at the Headquarters of the Food and Agriculture Organization of the UN (FAO), in Rome, from 1 March to 10 March 1988.
The conference was attended by delegates of 76 States, observers of six more States and observers of different States, Organizations and NGO’s. The conference elected as its president Professor Ferrari Bravo, head of Italy’s delegation 61. The conference adopted the text of both CSUA.1988 and PSUA.1988 at 10 March 1988. Both instruments came into force by 1 March 1992.
2.2. CSUA.1988 and PSUA.1988 features
It must be stated that both instruments are not constructed to be preventive in their nature 62, in the sense that their provisions aim to ensure the prosecution and punishment of the perpetrators of any of the offences listed in Article 3, by applying the principle of aut dedere aut iudicare 63.
Scope of application: According to Article 4.1 of CSUA.1988, the Convention is applicable, when one (or more) of the offences listed in Article 3 takes place, if the ship (ship being defined as any type of vessel, including hovering crafts and submersibles, as long as it’s not permanently attached to the sea-bed, it’s not a warship, a State-operated vessel in non-commercial uses, or it’s been withdrawn from navigation or laid up) is navigating or scheduled to navigate into, through or from waters beyond the outer limits (or lateral limits) of the territorial sea of a single State. Thus, it applies to all ships that
International Maritime Organization. SUA Convention 2006 Edition: Final Act of the International Conference on the Suppression of Unlawful Acts against the Safety of Maritime Navigation. P.1-5 61 Ibid. 62 Inter alia Halberstam. Op.Cit. P.292 63 Jesus. Op.Cit. P.391
navigate or scheduled to navigate into, through or from the territorial sea of a State, but not to cabotage operations taking place within the waters of a single State, making “the territorial scope of the SUA as broad as possible.” 64
Jurisdictional Bases: According to Article 6.1, jurisdiction to prosecute (and previously claim extradition) an alleged offender may be established by State-parties when the offence is committed: a) Against or on board a ship flying its flag; b) In its territory; or c) By one of its nationals. By means of Article 4.2 if the alleged offender is found in the territory of any Stateparty, jurisdiction may also be established.
Article 6.2 provides for three other bases on which States can assert jurisdiction, notifying the Secretary-General of IMO 65, being those when the offence is committed: a) By a stateless person habitually residing in its territory; b) A national of that State is seized, threatened, injured or killed; and c) As an attempt to compel it to do or abstain from doing any act. Thus, the Convention takes into account the five accepted bases for establishing jurisdiction in international criminal law: territorial, national, universal, passive personality and protective jurisdiction.
Offences: CSUA.1988 establishes in its Article 3 the list of acts considered as offences by it. The obligation of State-parties is, according to Article 5, to make those offences appropriately punishable, taking into account the gravity of their nature. This has been held as one of the main differences between its regime and that one of piracy, “[w]hereas piracy is considered a truly international crime” 66, CSUA.1988 regime is a municipal-law-based one. The following graphic attempts to show the reader all the possible configurations of offences as considered by the aforesaid instrument:
Burchill, Richard et al. International Conflict and Security Law. P.279 According to para.11 LEG84/6, only Canada made that notification, and Egypt made a reservation on whole Article 6.2 66 Wolfrum, Rüdiger. Fighting Terrorism at Sea: Options and Limitations under International Law. P.10
Any person commits an offence if that person: Seizes a) exercises control over a ship by force threat thereof other form of intimidation
performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship destroys causes damage to Places causes to be placed a ship its cargo on a ship
Unlawfully and intentionally
which is likely to endanger the safe navigation of that ship by any means whatsoever a device a substance which is likely to destroy cause damage to that ship its cargo which endangers likely to endanger the safe navigation of that ship
destroys If any such act is likely to seriously damage navigational endanger the safe navigation facilities seriously interfere with the of a ship operation of Communicates information which he knows to be false thereby endangering the safe navigation of a ship Injuries Kills any person in connection with the commission attempted commission of the offences set forth in subparagraphs a) to f)
Any person also commits an offence if that person: Attepts to commit any of the offences set forth in paragraph 1
abets the commission of any of the offences set forth in paragraph 1 perpetrated by any person is otherwise an accomplice of a person who commits such an offence with a condition without physical aimed at compelling a juridical person refrain from doing to do any act to commit any of the offeces set forth in paragraph I, subparagraphs b) c) e) if that threat is likely to endanger the safe navigation of the ship in question
as is provided for under national law
Another salient feature, as stated already, is that the Convention rests on the principle of aut dedere aut iudicare. For that purpose, once adopted, it affects all prior accepted extradition treaties making the list of offences extraditable under their provisions, obliges parties to include them in future extradition treaties and even works as an extradition treaty among State parties when there is none 67. This feature was not unknown to the international community with regards to terrorism acts, being sometimes even qualified as “a general principle of international criminal law”68 and found in all other instruments akin. In terms of cooperation, Article 12 states that the parties must afford each other the greatest measure of assistance in connection with criminal proceedings brought in respect of the list of offences of Article 3, while Article 13 provides for the prevention of the use of the territories of the parties to prepare or commit offences either in their own territory or outside them, as well as the exchange of information between them. PSUA.1988 works on the basis of CSUA.1988 provisions making them applicable, mutatis mutandis, to fixed platforms, which it defines in Article 1.3 as “…an artificial island, installation or structure permanently attached to the sea-bed for the purpose of exploration or exploitation of resources or for other economic purposes.” The list of offences is set forth in Article 2, and the jurisdictional bases are in Article 3.
1 Any person commits an offence if that person: Seizes a)
Unlawfully and intentionally
exercises control over
a fixed platform
by force threat thereof other form of intimidation
performs an act of violence against a person on board a fixed platform if that act is likely to endanger its safety destroys causes damage to Places causes to be placed Injuries Kills any person a fixed platform on a fixed platform
which is likely to endanger its safety by any means whatsoever a device a substance which is likely to of destroy it endanger its safety the offences set forth in subparagraphs a) to d)
in connection with
the commission attempted commission
2 a) b)
Any person also commits an offence if that person: Attempts to commit any of the offences set forth in paragraph 1 abets the commission of any such offences perpetrated by any person is otherwise an accomplice of a person who commits such an offence
as is provided aimed at for under compelling a national law
physical person juridical
to do refrain from doing
any act to commit any of the offeces set forth in paragraph I, b) c)
if that threat is likely to endanger the safety of the fixed platform
Article 11.3 CSUA.1988 Jesus. Op. Cit. P.392
2.3. Background to SUA 2005:
11 September 2001 changed the way that the world envisaged the threat of terrorism. In the wake of those terrorist attacks against the USA, both the UNGA (Resolution 56/1 of 12 September 2001 69) and the UNSC (Resolution 1368 (2001) of 12 September 2001 70) addressed the issue, condemning the attacks and calling for global cooperation for the suppression of terrorism.
Of special interest is UNSC Resolution 1368 (2001) due to the qualification that it makes of those acts as international terrorism, and states that all acts of that kind are “a threat to international peace and security.” 71 In paragraph 4 it calls on the international community for “full implementation of the relevant international antiterrorist conventions…” 72 Those resolutions were followed up by UNSC Resolution 1373 (2001) of 28 September 2001 73 and UNGA Resolution 56/88 of 12 December 2001 74. The former is of utmost importance because it represents the first example of legislation by UNSC 75. With regards to terrorism, the Resolution imposed as obligations on all State-members of the UN to, inter alia, “take the necessary steps to prevent the commission of terrorist acts”, ensure that anyone involved in terrorist acts is brought to justice, prevent the movement of terrorists, etc. It also calls upon all States to become parties and implement the relevant antiterrorist instruments being those defined in para.6 of UNGA Resolution 51/210 of 17 December 1996, which includes both CSUA.1988 and PSUA.1988. By then CSUA.1988 had been in force for almost a decade. Although since the time before its adoption many shortcomings were pointed out, a movement for its revision was not attempted. The events referred gave a new impetus on the purpose of expanding and strengthening the SUA instruments. Having in mind the scenes of hijacked commercial aircrafts being used as weapons of mass destruction, it was only natural for the maritime sector to foresee a future event where the weapons to use could be ships.
http://daccessdds.un.org/doc/UNDOC/GEN/N01/475/00/PDF/N0147500.pdf?OpenElement UN Document A/RES/56/1 70 http://daccessdds.un.org/doc/UNDOC/GEN/N01/533/82/PDF/N0153382.pdf?OpenElement UN Document S/RES/1368 (2001) 71 Ibid. 72 Ibid. 73 http://daccessdds.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdf?OpenElement UN Document S/RES/1373 (2001) 74 http://daccessdds.un.org/doc/UNDOC/GEN/N01/478/87/PDF/N0147887.pdf?OpenElement UN Document A/RES/56/88 75 See Talmon, Stefan The Security Council as World Legislature. AJIL Vol.99 Jan.2005 P.175-193
The utilization of a vessel as a weapon was not included in CSUA.1988, and only on a limited extent could deal with such a scenario, by way of the offence stated in Article 3.1 (c), as a willful and unlawful destruction of a ship, or by way of subparagraph (e), as destruction or damage maritime navigational facilities (e.g. thinking of a ship being rammed into a harbor facility). Nevertheless, those solutions would not cover the gravity of the crime adequately 76. Taking the above into consideration, the Secretary-General of the IMO (SGIMO hereon) submitted a draft resolution to the 21st extraordinary session of the Council 77, which was approved unanimously for submission to the 22nd Assembly for adoption. The paper was introduced as item 8 of the Agenda and was presented on 20 November 2001. In the view of the SGIMO the draft “addressed issues that had required a prompt response from IMO… IMO was determined to work with others to ensure that shipping did not become a target of terrorism” 78 The “maritime community had a contribution to make o the world’s efforts to eradicate terrorism.”79 After receiving unanimous support by the Assembly, the document was referred to the Technical Committee and its result was Assembly Resolution A.924 (22) Review of Measures and Procedures to Prevent Acts of Terrorism which Threaten the Security of Passengers and Crews and the Safety of Ships 80. The Resolution makes it clear that it is founded on resolutions 56/1 of UNGA and resolutions 1368 and 1373 of UNSC. It also recalls Resolution A.584 and the circular adopted as its corollary (MSC/Circ.443). Finally it states the call that UNGA Resolution 55/7 of 30 October 2000 81 made upon all States to become parties to the SUA.1988 instruments. The operative paragraphs requested the MSC, the Legal Committee (LC hereon) and the Facilitation Committee (FAL hereon) to review on a high priority basis the security-related instruments of IMO 82 with the view to consider new measures to prevent and suppress terrorism against ships and thus, ascertain whether there was a need to update those instruments or to adopt new measures, taking into account the work of other transport-related international organizations. Finally, it calls upon governments to accede to the SUA.1988 instruments.
Wolfrum. Op.Cit. P.6 IMO Document LEG 83/14 23 October 2001 78 IMO Assembly – 22nd Session: Summary Record of the 4th Plenary Meeting. Doc A22/SR.4 79 Ibid 80 Resolution A.924 (22) November 20 2001. International Maritime Organization, Assembly Resolutions and Other Decisions; Twenty-second Session 19-30 November 2001. P. 198-199 81 http://daccessdds.un.org/doc/UNDOC/GEN/N00/559/81/PDF/N0055981.pdf?OpenElement UN Document A/RES/55/7 82 All the maritime-security-related instruments are listed in Annex 2 of the IMO Document C 88/10 5 March 2002
Leaving aside the other consequences that that resolution had (i.e. SOLAS amendments, ISPS Code, etc), It triggered the revision of SUA.1988 instruments, which was placed by the LC on its agenda for the 2002 as item 6 83. Some examples of desired changes to CSUA.1988 were stated by SGIMO, being those 84:
Revision and expansion of the offences in the light of 9/11 events
Enlarging the scope of application to cover domestic cabotage
Making obligatory not to usethe political offence exception in order to deny extradition requests
The USA delegation made its own review on what it identified as possible inclusions or changes (IMO Doc. LEG 84/6/1) having in mind what is shown below:
Review of SUA keeping in mind the objective set forth in Resolution A.924
•Prevent and suppress terrorism against ships •Improve security aboard and ashore •Reduce the risk to crews, passengers and port personnel
Noting UN's recongnition that terrorism now operates globally
•Antiterrorism efforts should expand from fragmented domestic or regional approaches into a global approach
Using the most recently adopted multilateral antiterrorism conventions as models
•UN Convention for the Suppression of Terrorist Bombings •UN Convention for the Suppression of the Financing of Terrorism
IMO Document LEG 84/6/1 Para.3 22 March 2002 IMO Document LEG 84/6 para.13 of 13 March 2002
It used the UN International Convention for the Suppression of Terrorist Bombings 85 (UNCSTB hereon) and the UN International Convention for the Suppression of the Financing of Terrorism (UNCSFT hereon) to draw a methodology for the review 86. Some of the amendments to be considered are reflected in the graphics below:
Release of harmful substances (chemical, biological & radiological) Act of an organizer or director of any of the offences Transportation of supplies and other cargo that supports SUA Offences
Using a Ship or its cargo as a weapon against another vessel, structure, facility or object
New SUA offences as Proposed by USA
Transportation of suspected offenders under SUA or other Terrorism Conventions
Transportation of items related to WMD and means of delivery
Accordiiing tto LEG Accord n g to LEG Accord ng o LEG 84/6/1
It also proposed updating the SUA.1988 instruments to tackle other security-related issues:
The list of offences will not be regarded as political offences with regards of extradition requests
Temporary transfer of persons in custody for purpose of assistance under SUA
Updates to reflect evolving multilateral anti-terrorist treaty concepts
UN Treaty Series Vol.2149 UN Document A/RES/52/164. Adopted in New York 15 December 1997 Entered into force 23 May 2001 86 LEG 84/6/1 Para.4-5
By its 84th session the LC considered the possible amendments to SUA.1988 instruments, and agreed to task a formal Correspondence Group (SUACG hereon), under the USA leadership, to review those and report to the LC by the next session 87. Annexed to LEG 84/14 88 the LC gave the SUACG terms of reference for the procedure of revising SUA.1988 instruments. In the LC 85th session, USA submitted document LEG 85/4 which reported to the former the intersessional work of the SUACG. Inter alia, new provisions regarding boarding procedures were incorporated using articles 7-9 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime and the Agreement Concerning Cooperation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area, the political offence exception prohibition (derived from Article 14 of UNCSFT) and the “transference” provisions (ibid. Article 16). The broad list of new offences already included the nonproliferation and WMD provisions; the accomplice liability was clarified, etc. The work of revision continued, and further progress of such discussions can be found in the relevant documents of LC sessions 86 89, 87 90, 88 91, 89 92 and 90 93. The last two sessions were reported by the LC Intersessional Working Group on the Revision of the SUA Convention and Protocol, which held two sessions, the first one on 12-16 July 2004 and, the second on 31 January to 4 February 2005. In the second, the work of reviewing was done and required, as planned, to call a diplomatic conference to be held in October 2005 to consider for adoption the draft SUA 2005 protocols94. The Conference was convened at IMO Headquarters on 10-14 October 2005. 74 State Parties to CSUA.1988 participated and 70 from PSUA.1988, plus 24 Stateobservers, representatives and observers from different international organizations and non-governmental organizations 95. It elected as President Ambassador Giancarlo Aragona, head of Italy’s delegation. Both instruments were adopted by the International Conference on the Revision of the SUA Treaties on 14 October 2005 and still have not entered into force.
IMO Document LEG85/4 17 August 2002 IMO Document LEG84/14 Annex 2 “Terms of Reference for the Correspondence Group Regarding the 1988 SUA Convention and the 1988 SUA Protocol” 7 May 2002 89 Inter alia LEG86/5 & LEG86/5/1 90 Inter alia LEG87/5 & LEG87/5/1 91 Inter alia LEG88/3 92 Inter alia LEG89/4 93 Inter alia LEG90/4 94 Supra Annex Para.2 95 Full list of participants at LEG/CONF.15/23 14 October 2005
2.4. SUA 2005 instruments features:
The Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 96 (PCSUA.05 hereon) and the Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf 97 (PPSUA.05 hereon) amend and widen their predecessors’ provisions. The consolidated versions of the instruments are referred as 2005 SUA Convention (CSUA.05 hereon) and 2005 SUA Fixed Platforms Protocol (PSUA.05 hereon). Trying not to repeat that what was not modified, the main features of PCSUA.05 are described below. The most relevant elements to take into consideration are the broadening of the offences, by introduction of new categories and lists (Articles 3, 3bis, ter and quater), criminal liability of corporate entities (Article 5bis), the boarding procedure (Article 8bis), the prohibition of using the political motive exception regarding prosecution and extradition of the offences, and the Annex.
Scope of application and Jurisdictional Bases: Although when the review of SUA began, some showed interest to modify the scope of application (which was not the case with the jurisdictional criteria), these two items were not changed.
Offences: The central debate and efforts to review SUA.1988 instruments were always focused on strengthening the list of offences. It was decided to take advantage of this opportunity and to tackle through it other security-related issues such as the nonproliferation of WMD, the usage of harmful substances, the transport of persons and devices in connection of any of the offences. The offences set forth in article 3 basically remained unchanged and because of their nature are regarded as “terrorist offences”. Article 3bis incorporates, in Para.1 (a) more “terrorist offences”, whilst Para.1 (b) incorporates the so-called “transport offences” together with Article 3ter (which is complemented by the Annex). The socalled “inchoate offences” although present in CSUA.1988, were strengthen at Article 3quater. The three graphics at infra show the categories of offences.
IMO Document LEG/CONF. 15/21 IMO Document, LEG/CONF. 15/22
Any person commits an offence within the meaning of this convention if that person: Seizes a) exercises control over a ship by force threat thereof other form of intimidation
Unlawfully and intentionally
performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship destroys causes damage to Places causes to be placed a ship its cargo on a ship
which is likely to endanger the safe navigation of that ship by any means a device a substance which is likely to destroy cause damage to that ship its cargo which endangers likely to endanger the safe navigation of that ship
destroys seriously damage navigational facilities seriously interfere with the operation of
If any such act is likely to endanger the safe navigation of a ship
Communicates information which that person knows to be false thereby endangering the safe navigation of a ship
Any person commits an offence if that person: with without as is provided for under national law aimed at compelling a physical juridical to do refrain from doing any act to commit any of the offeces set forth in paragraph 1, subparagraphs if that threat is likely to endanger the safe navigation of the ship in question
b) c) e)
when the purpose of the act
Any person unlawfully and intentionally: intimidate a population by its nature to do government compel a international abstain from context organization doing
uses against on explosive a ship
death serious injury damage
discharges from oil LNG other hazardous
in a manner radioactive material that BCN weapon Causes likely to cause death serious injury damage
causes likely to cause
discharges from a ship
in such a
uses a ship in a manner that causes
serious injury damage
with iv) threatens without
as provided under to commit an offence set forth in national law subparagraph a)
i) ii) iii)
Any person commits an offence within the meaning of this Convention if that person: explosive i) radioactive material cause with knowing that it is intended in a threat to to be used t without cause as provided under national law death serious injury damage intimidating a population government to do compel any international abstain a act organization from doing
a condition for the purpose of
unlawfully and intentionally transports on board a ship:
Any BCN weapon, knowing it to be a BCN weapon as defined in Article 1 source material special fissionale material especially the designed processing or prepared use for production a nuclear explosive activity knowing that or in any other it is intended nuclear activity not to be used in under safeguards of IAEA
equipment material equipment materials software related technology
of special fissionable material
design that with the intention significantly of a BCN that it will be used contributes manufacture weapon for such purpose to the delivery
Any person commits an offence within the meaning of this Convention if that person: knowing that Article3, 3bis or 3 quater person committed under any treaty listed in an offence the annex
unlawfully and intentionally
on board a ship
intending to to evade assist that criminal person prosecution
Any person commits an offence within the meaning of this Convention if that person: unlawfully and intentionally attempts to commit Participates as an accomplice organizes directs others Contributes injures kills any person in connection with the commission any of the offences set forth in Article 3.1, 3bis, or 3ter
any of the offences set forth in Article 3.1, 3bis.1 i), ii) or iii), or subparagraph a) of this article in an of the offences set forth in Article 3, 3bis, 3ter or subparagraphs a) or b) of this article to commit an of the offences set forth in Article 3, 3bis, 3ter or subparagraphs a) or b) of this article group of persons acting with a common purpose intentionally and either
to the commission of one or more offences set forth in Article 3, 3bis, 3ter or subparagraphs a) or b) of this article by a
with the aim of
the criminal activity the criminal purpose
of the group
where such activity or purpose involves the commission of an offence set forth in article 3, 3bis or 3 ter
in the knowledge of the intention of the group to commit an offence set forth in article 3, 3 bis or 3ter
Trying to change the reactive nature of SUA, PCSUA.05 included in its provisions a boarding procedure that, as it was stated before, is modeled on recently concluded international instruments. It also gives the States the possibility to make a declaration granting authorization beforehand to board and search ships flying its flag or showing its marks if it doesn’t respond within four hours of acknowledgement of receipt of a request to confirm nationality. Certain safeguards have been added in order to protect the stakeholders.
CSUA.05 counts with a stronger extradition and cooperation provisions, especially with the introduction of the prohibition to use the political offence exception. Such a provision was devised and subsequently used in all anti-terrorism instruments concluded in-between both generations of SUA, and since CSUA.05 is modeled on some of those, it was only natural to include it. The “transfer” of a detained person might be done under the provisions of Article 12bis. Cooperation is strengthened by means of the modified Article 13 and the new Article 14.
Definitions were introduced in order to clarify the meanings of the new offences related to hazardous substances and WMD. Exceptions and safeguards were also inserted to leave out military activities and authorized acts under the nonproliferation regime.
An annex was added, which works together with Article 3ter, in compliance with UNSC Resolution 1373 in its operative paragraph 2 g) Prevent the movement of terrorists, making it an offence to transport a fugitive that committed an offence under any of the annex-listed instruments.
PPSUA.05 and therefore PSUA.05 works as its predecessor, mutatis mutandis, on the basis of CSUA.05
3. International Framework against Terrorism and SUA: working seamlessly? 3.1. Elements to Consider In the lines herein, the author tries to explain how the international framework against terrorism works together, tightly and seamlessly with SUA instruments, by way of: a) The sharing and complementation of their respective list of offences, b) The complementation and identity of jurisdictional bases, c) The sharing and interconnection of measures of cooperation and prosecution mechanisms, d) Through a network of extradition clauses, and finally e) On the homogenization of a concept of terrorism that finally will crystallize on international law unequivocal. The task will be handed by addressing each of the relevant and common elements between the sectoral framework and the SUA instruments. The instruments to take into consideration among this section as the international framework against terrorism should be those multilateral and universal conventions and protocols enlisted as such by the UN. In present day those are 13, including SUA and its Fixed Platforms Protocol. That list is maintained and updated in the website: http://untreaty.un.org/English/Terrorism.asp The logic to follow is that the framework, to be triggered needs first an offense to be identified, to establish jurisdiction under a treaty, to trigger the cooperation and prosecution mechanisms, to apply the aut dedere aut iudicare principle, to finally convict and punish any act of terrorism.
Offense detected among the list
Jurisdiction is established under the treaty Application of the extradite or prosecute rule to convict
3.2. The Offences: The main discussion in the history of international community regarding terrorism is precisely what is terrorism? The ideological positions regarding what constitutes terrorism cast a shadow over the increasingly inhuman forms of terrorist attacks. Behind the argument of wars of “self-determination” and other justifications, State-sponsored terrorism shelters and play as a wolf disguised as a lamb. These discussions were more frontal and irreconciliable in the 1970’s and 1980’s due mainly to the movement of decolonization that the UNGA was fostering and endorsing through its policies and resolutions. Terrorism-related declarations, instruments and resolutions were looked at with suspicion as possible “legal but not legitimate” weapons against colonies and dependencies. Many reservations, declarations, warranties and safeguards beset terrorismrelated instruments agreed upon back then. The magnitude of the latest atrocities has made the task of opposing firm and unequivocal declarations against terrorism in all its forms a very difficult one from a moral point of view. Nevertheless, a clear, single-interpretation and generally-agreed definition of terrorism has not come up yet. Books 98 and articles99 have been written to describe the problem of defining terrorism, the utility of doing so and the more recent legal need. The UNSC has come up with what is called a “working definition”, through a late 2004 resolution already quoted herein. Its insufficiency and little technicality need not to be discussed here but simply annotated. Therefore, what the world can rely on as a definition of a terrorist act is what the legal international framework against terrorism has enlisted and qualified as offences therein. Although the wide scope of the framework and the variety of possible targets protected make it very complicated to talk about model offenses repeated in every treaty (and also because of the evolution of the drafting , expertise and ideology), there are certain trends that can be rescued from the bulk of treaties. Using again the chronological and subject order displayed in Chapter I when enumerating the evolution of the instruments, the “gender” of offences by conventions is enlisted at infra, using a short name to refer to the instruments.
Saul. Op Cit. Dugard. Loc. Cit.
Targets or offences
Aerial hijacking and related threats Offences committed on board aircraft Tokio.1963 Unlawful seizure of aircraft Acts against safety of civil aviation Acts against safety of civil airports Threat to internationally persons Taking of hostages Hostage-taking protected Hague.1970 Montreal.1971 Montreal.1988
Diplomatic Agents.1973 Hostage.1979
Protection to nuclear material Nuclear attacks Non-proliferation offences
CPPNM.1979 UNCSNT.2005 CSUA.05 PSUA.05 CSUA.05 PSUA.05 CMPEPD.1991 UNCSTB.1997 Montreal.1971 Montreal.1988 CSUA.1988 PSUA.1988 CSUA.05 PSUA.05 CSUA.1988 CSUA.05 PSUA.1988 PSUA.05
Detection of plastic explosives
Offences by means of bombing
Acts against safety of navigation Acts against safety of platforms in the Continental Shelf
Maritime threats maritime
Finance Provision or collection of funds to commit terrorist offences
The table above is broad it is qualification, therefore the next one 100, that points out each specific type of criminal action characterized as terrorist offence, makes a precise comparison in terms of the most commonly regulated offences.
From both tables is possible for the reader to detect the coincidence and identity of a series of criminal acts that nowadays are part of the concept of terrorism, which still resists a formal definition. Most of the treaties enumerated work on the basis of domestic law, by means of making obligatory the regulation of such offences as municipal crimes, duly penalized, creating a network of legislative consequences for the perpetrators of those offences. In most of the cases, the instruments provide the possibility to deem the commission of the offences not only on the place where they actually happened but also where jurisdiction may be established in order to extradite or prosecute the perpetrators. The SUA instruments in this respect, work in close connection with all the antiterrorist international instruments, by means of the death/injury/damage offence, the threats offence, the blackmailing offences, the seizure and hostage-taking offences, the damages to infrastructure and transport facilities, and obviously those connected with attacks to transport, destruction of transport means, facilities, property (cargo). By way of its Annex, it extends to cover all cases of fugitives of the other antiterrorist international instruments pretending to escape by means of maritime transportation. 3.3. Jurisdiction With regards to jurisdictional bases, the conventions have evolved from a restrictive way of purporting those, to a universal one. The most recently drafted instruments talk about universal jurisdiction invariably. The common bases to establish jurisdiction authorized by the international antiterrorist legal framework are: a) b) c) d) e) f) Territorial; Nationality; Passive Nationality; Protective; Universal; and Target State.
In special matters, like aviation and navigation, the conventions talks about the country of registry or nationality of the vessel or aircraft.
All the conventions rest on the principle of the international transcendence of the acts regulated in them as offences, so domestic offences remain a domestic matter to deal with. In this respect, the SUA instruments work perfectly well, since the four of them recognizes all of the aforesaid criteria to establish jurisdiction by any Stateparty to them. With regards of jurisdictional bases and offences, the SUA instruments, especially on their 2005 versions, tend to overlap slightly with the UNCSTB.1997, due to the fact that the latter covers attacks on transport. Nevertheless, since both can apply and hold the same criteria to establish jurisdiction, it only makes a wider cover for this types of acts and might apply in this way to more countries, in cases of ambivalence or membership to only one of them. 3.4. Cooperation and prosecution measures Without exception, all of the above listed instruments give way to cooperational mechanisms, either in fact-finding, transfer of information, sharing of intelligence resources, prevention of planning and executing offences from its territory to a third-State’s territory or nationals, reception of suspects turned in by Masters and Commanders, boarding procedures, aids in suppressing attacks, etc. In this sense, SUA brings up a new set of possibilities, especially with the procedures of boarding and collaboration among States. The transfer of detained people that collaborate with the catering of information or data is another salient feature, as was underlined on the previous chapter. Thus, the whole network of mechanisms of collaboration and cooperation among States is strengthen by SUA instruments, especially the 2005’s. 3.5. Extradition, aut dedere aut iudicare and the prohibition to use the political offence exception. In the historical background herein provided, it was stated that extradition treaties were the first type of international instruments covering acts of terrorism. The extradition clause is indirectly or directly, expressly or tacitly included in all of the above mentioned treaties with substantial differences, mainly due to the evolution of drafting and perception of terrorism by the international community.
Nowadays, only the oldest instruments do not have an extradition clause expressly stated and recognizing the extradite or prosecute principle. The case of the prohibition to use the political offence exception is different, since this inclusion has been rather recent. In the case concerning this paper, it was only introduced to SUA by its 2005 updates, which are not yet in force. This is a clear example that by 1988 the international community was still reluctant to let go the political offense exception, greatly on defense of the ancient asylum faculty granted towards them by many other international legal regimes, like humanitarian, human rights and refugee law. Nevertheless, after the impact that the post-2000 incidents have made in the collective mind, this has been displaced and now all of the newly drafted instruments reject the possiblitity to use such an exception. It has been included, in order to give a counter balance to that restriction, a safeguard to protect human rights and other discriminatory concerns such as gender, ethnic or religious persecution. SUA 2005 instruments have all of the above, making its regime comprehensive and all-encompassing. While it provides a strong extradition or prosecution regime, it also balances the formula by protecting human rights and avoiding harmful results by legal means against humankind. As a conclusion, it is evident the way how SUA instruments, especially the 2005 generation, work seamlessly with the rest of the international framework against terrorism. This has been the result of the maturity of the international community in accepting the threat that terrorism in all its possible expressions pose to humankind as a whole, and that only a globalized strategy will allow the world to take proper countermeasures that will grant the suppression and punishment of terrorist acts.
1. Terrorism is an ancient act of violence that has accompanied humankind and acted against or in favor of it, depending on which side of the coin the observer is on. 2. Ideology and politics have made terrorism in contemporary times a very difficult to tackle problem, which nowadays is not only commonly treated violence, but it has international consequences. 3. Due to the last point made, terrorism is held as a threat to the peace and as a disruption of peace and security, thus triggering the international collective defense mechanisms. 4. However, until now, due to many factors, it has not been possible to define terrorism in an unequivocal single way. Most of the definitions given are questioned by at least one group of stakeholders. 5. The last problem has also been evident in the case of reaching a global regime against terrorism. All the attempts to come up with a convention that tackles the issue of terrorism globally have failed. It is still to be seen what will be the fate of the CCIT currently under discussion at the UN. 6. The latter gives the reasons on why today the world has to rely on a network of sectoral conventions that address one or more facets of international terrorism. Most of them have been created as a reaction or aftermath of terrorist events, and therefore have restrictive narrow views towards terrorism. 7. Only the latest instruments have a different approach, much broader and preventive. This new generation of instruments and modification to old regimes have brought the whole new agreements that the international community has reached only after the undeniable heinous nature of the latest terrorist attacks. 8. Among those instruments, the SUA Convention and Protocol of 1988 showed a good initiative to follow. This was done after the 9/11 events and its result was the SUA 2005 generation. Both new instruments have revitalized, strengthen and widen SUA reach and helpfulness.
9. The whole set of antiterrorist instruments, although fragmented in nature and in principle, have been devised to not hamper each other, and actually work side to side, as bricks of a wall where terrorism will crash against, creating a network of provisions that criminalize terrorist conducts and acts, provide for establishment of jurisdiction by at least one State, puts at the States’ disposition a range of cooperational mechanisms and prosecution means, secures the final penalization of the individuals that committed the offences by the utilization of the aut dedere aut iudicare principle, and therefore creating a second level network of extradition clauses. 10. The latest events have strengthen even more the whole regime by nullifying the use of the political offence exception, commonly claimed in the past and frustrating the bringing of justice to terrorist. This is one of the major achievements of the community as a whole and demonstrates the maturity reached (by force though). 11. All of the above shows that the International Maritime Organization has made a formidable contribution to the fight against terrorism and to all mankind, by way of fostering and finally providing for the adoption of the SUA instruments and their latest updates at 2005 which, although still await for entering into force, promise to do so in a short lapse.
Intimidate a population
Compel a government
Compel an Organization
Damage to property
Attack against premises
Attack against infrastructures
Good order onboard transport
Seizure of transport means
Attack against transport means
Destruction of transport means
Attack against transport facilities
Explosion / detonations
Lethal or harmful substances
Unlawful demand nuclear related
Unlawful possession of radioactive material
Use of radioactive material or device
Funding of terrorism
Damage to environment
Accomplices, organizers, directors
Convention on Offences and Certain Other Acts Committed On Board Aircraft
Yes (by penal law)
Yes (by penal law)
Yes (by penal law)
Yes (by penal law)
YES YES YES
YES YES YES YES
Convention for the Suppression of Hague.1970 Unlawful Seizure of Aircraft Convention for the Suppression of Unlawful Acts Against the Safety of Montreal.1971 Civil Aviation Convention on the Prevention and Punishment of Crimes against Diplomatic Internationally Protected Persons, Agents.1973 including Diplomatic Agents Convention on the Physical CPPNM.1979 Protection of Nuclear Material International Convention Against Hostages.1979 the Taking of Hostages Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Montreal.1988 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf YES YES YES YES YES YES YES YES YES YES YES YES
Convention on the Marking of Plastic Explosives for the Purpose of CMPEPD.1991 Detection International Convention for the UNCSTB.1997 Suppression of Terrorist Bombings International Convention for the Suppression of the Financing of UNCSFT.1999 Terrorism International Convention for the Suppression of Acts of Nuclear UNCSNT.2005 Terrorism Protocol of 2005 to the Convention for the suppression of unlawful acts against the safety of maritime navigation Protocol of 2005 to the Convention for the suppression of unlawful acts against the safety of fixed platforms located on the continental shelf PCSUA.05 YES YES YES YES YES YES YES YES YES YES YES YES YES
Brownlie, Ian Principles of Public International Law 6th edition, Oxford University Press, Oxford, U.K. 2003 Burchill Richard, White Nigel D., and Morris Justin International Conflict and Security Law Cambridge University Press, The Edinburgh Building, U.K. 2005 De Wet, Erika The Chapter VII Powers of the United Nations Security Council Hart Publishing, Oregon, USA 2004 McNicholas, Michael Maritime Security Elsevier Inc., Oxford, U.K. 2008 McWhinney, Edward Q.C. The September 11 Terrorist Attacks and The Invasion of Iraq In Contemporary International Law Martinus Nijhoff Publishers, Leiden, Netherlands 2004 Saul, Ben Defining Terrorism In International Law Oxford University Press, U.K. 2006 Schweigman, David The Authority of the Security Council under Chapter VII of the UN Charter Legal Limits and the Role of the International Court of Justice Kluwer Law International, The Hague, Netherlands 2001
Beckman, Robert C. Combating Piracy and Armed Robbery Against Ships in Southeast Asia: The Way Forward Ocean Development & International Law, (2002), pp.317-341 Berg, Dieter; Artmann, Thomas; Kratz, Tillmann; Luhrmann, Katja; Mast, Edwin; Milberg, Anja; Piracy – Threat at Sea. A risk analysis. Munich Re-Group, Knowledge series (2006)
Bingham W., Joseph Part IV – Piracy. Text of Draft Convention The American Journal of International Law, Vol.26, Supplement: Research in International Law (1932), pp.739-885 CRS Report for Congress Maritime security: Potential Terrorist Attacks and Protection Priorities (Jan.,2007) Dugard, John International Terrorism: Problems of Definition International Affairs, Vol.50, No.1 (Jan.1974), pp.67-81 Evans, Alona E. Reflections upon the Political Offence in International Practice The American Journal of International Law, Vol.57, No.1. (Jan.,1963), pp.1-24 Franck, Thomas M.; Lockwood, Bert B. Jr. Preliminary Thoughts Towards in International Convention on Terrorism The American Journal of International Law, Vol.68, No.1. (Jan.,1974), pp.69-90 Greenwood, Christopher International Law and the War Against Terrorism International Affairs, Vol.78, No.2, (Apr.2002), pp.301-317 Halberstam, Malvina Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime safety The American Journal of International Law, Vol.82, No.2. (Apr.,1988), pp.269-310 IMO 5 th Special Meeting of the Counter-Terrorism Committee with International, Regional and Sub-Regional Organizations. Work undertaken by IMO in an effort to prevent and combat terrorism (29-31 October 2007), Nairobi, Kenya Jenkins, Brian M. Defense Against Terrorism Political Science Quarterly, Vol.101, No.5 (1986), pp.773-786 Jesus, Jose Luis Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects The International Journal of Marine and Coastal Law, Vol.18, No.3 (Sept.,2003) pp.363-400 Kuribayashi, Tadao International Cooperation for the Safety and Security of the Ocean and the Sustainable Peace in Asia
Murphy, Sean D. Terrorist Attack on World Trade Center and Pentagon The American Journal of International Law, Vol.96, No.1. (Jan.,2002), pp.237-255 National Counterterrorism Center of USA National Strategy to Combat Terrorist Travel (May,2006) NATO Active Endeavour Combating Terrorism at Sea (July 2006) Ong, Graham Gerard Ships can be dangerous too’: Coupling Piracy and Maritime Terrorism in Southeast Asia’s Maritime Security Framework International Politics & Security issues series No.1 (2004) Rather, Steven R. Jus ad Bellum and Jus in Bello after September 11 The American Journal of International Law, Vol.96, No.4. (Oct.,2002), pp.905-921 Rohart, Jean-Serge Questionnaire on Implementation of the Model National Law on Acts of Piracy and maritime Violence (May 2005) Verwey, Wil D. The International Hostages Convention and National Liberation Move The American Journal of International Law, Vol.75, No.1. (Jan.,1981), pp.69-92 Witten, Samuel M. The International Convention for the Suppression of Terrorist Bombings The American Journal of International Law, Vol.92, No.4. (Oct.,1998), pp.774-781 Wolfrum, Rudiger Fighting Terrorism At Sea: Options and Limitations under International Law
Instrument Charter of the United nations and the Statute of the International Court of Justice Convention on the High Seas Adoption San Francisco, on 26 June 1945. Geneva, on 29April 1959 Enter into force 24 October 1945. 13 December 1962
Convention on Offences and Certain Other Acts Committed On Board Aircraft Convention for the Suppression of Unlawful Seizure of Aircraft Convention to prevent and punish the Acts of terrorism taking the form of crimes against persons and related extortions that are of international significance Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents European Convention on the suppression of terrorism
Tokyo, on 14 September 1963. The Hague, on 16 December 1970. Washington D C, on 2 February 1971 Montreal, on 23 September 1971. New York, on 14 December 1973. Strasbourg, on 27January 1977
4 December 1969. 14 October 1971. For each State at the date of deposit of its instrument of ratification 26 January 1973. 20 February 1977. 4 August 1978 8 February 1987. 3 June 1983. 16 November 1994.
Convention on the Physical Protection of Vienna, on October Nuclear Material 26, 1979. International Convention Against the Taking of Hostages United Nations Convention on the Law of the Sea 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 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf Convention on the Marking of Plastic Explosives for the Purpose of Detection International Convention for the Suppression of Terrorist Bombings International Convention for the Suppression of the Financing of Terrorism Inter-American Convention Against Terrorism New York, on 17 December 1979. Montego-Bay, on December 1982. Montreal, on 24 February 1988.
6 August 1989.
Rome, on 10 March 1988. Rome, on 10 March 1988. Montreal, on 1 March 1991. New York, on December 15, 1997. New York on 9 December 1999. Bridgetown, on 3 June 2002
1 March 1992.
1 March 1992. 21June 1998. 23 May 2001. 10 April 2002. 10 July 2003
International Convention for the Suppression of Acts of Nuclear Terrorism Protocol of 2005 to the Convention for the suppression of unlawful acts against the safety of maritime navigation Protocol of 2005 to the Convention for the suppression of unlawful acts against the safety of fixed platforms located on the continental shelf
New York, on 13 April 2005. London, on 14 October 2005 London, on 14 October 2005
Websites: http://documents.un.org/default.asp http://ec.europa.eu/justice_home/fsj/terrorism/international/fsj_terrorism_inter national_en.htm http://infocusmagazine.org/4.3/seaport_defense.html http://semitism.net/2005/07/28/OLD162/ http://untreaty.un.org http://untreaty.un.org/English/Terrorism.asp http://www.9-11commission.gov/hearings/hearing7/witness_verga.htm http://www.cdi.org/terrorism/chronology-pr.cfm http://www.coe.int/t/e/legal_affairs/legal_cooperation/Fight_against_terrorism/ http://www.fpri.org/enotes/20050321.americawar.husickgale.seaborneterroris tattack.html http://www.heritage.org/Research/HomelandDefense/bg2041.cfm http://www.iaea.org/ http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions http://www.ict.org.il/apage/5218.php http://www.iihl.org/ http://www.imo.org http://www.imodocs.imo.org
http://www.itlos.org http://www.jstor.com http://www.nato.int/docu/briefing/terrorism_at_sea2006/html_en/terrorism_se a01.html http://www.oas.org http://www.oceansatlas.org/servlet/CDSServlet?status=ND0xODc0Ni4zNjc4NiY 2PWVuJjMzPWRvY3VtZW50cyYzNz1pbmZv http://www.palestinefacts.org/pf_1967to1991_achille_lauro.php http://www.politicsol.com/editorials/editorial-2001-07-29.html http://www.reformtheun.org/ http://www.specialoperations.com/Images_Folder/library2/achille.html http://www.state.gov http://www.teachingterror.net/index.htm http://www.terrorism-research.com/evolution/ http://www.un.org http://www.un.org/Pubs/chronicle/2002/issue1/0102p64.html http://www.un.org/terrorism/ http://www.un.org/unitingagainstterrorism/ http://www.unodc.org/
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