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89. Address by J.Ashley Roach to Center for Oceans Law and Policy in Heidelberg, Germany (May 25, 2007)

PSI and SUA: An Update

Captain J. Ashley Roach, JAGC, USN (ret.)[1]

Abstract

This paper describes developments since March 2005 in the Proliferation Security Initiative and in amending the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA). The paper also describes the United States’ approach to maritime law enforcement, and forecasts an opportunity at the UN in 2008 for advancing international maritime security needs and initiatives. Attachments to the paper include the text of the 1988 SUA Convention as amended by the 2005 SUA Protocol.

I begin by thanking the organizers for giving me this opportunity to update the information on the Proliferation Security Initiative (PSI) and the 2005 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) that I and my colleague, Brad Kieserman, provided to the Twenty-Ninth Annual Conference sponsored by the Center for Oceans Law and Policy of the University of Virginia School of Law held on the campus of Xiamen University in Xiamen, China March 9-12, 2005.[2] Much has happened since then, which I now summarize before providing more details.

In the 27 months since our meeting in Xiamen, the PSI has become a more widely (although not universally) accepted tool in the campaign to disrupt the proliferation of weapons of mass destruction, their delivery systems and related material to and from States and non-state actors of proliferation concern. Over 80 States have now endorsed the PSI.

In October 2005, an IMO-sponsored Diplomatic Conference adopted two SUA Protocols; since then, 18 States signed them during the year they were open for signature, subject to ratification, and recently two States acceded to 2005 Protocol to the 1988 SUA Convention. The 2005 Protocol will enter into force 90 days after 12 States party to the 1988 SUA Convention have given their consent to be bound.[3]

Looking forward to June 2008, the United Nations Informal Consultative Process on Oceans and the Law of the Sea will spend a week considering maritime security and safety with a view to developing recommendations for the UN General Assembly to consider later that year in connection with its annual resolution on oceans and law of the sea.

Last but not least, ten days ago President Bush called upon the US Senate “to act favorably on US accession to the United Nations Convention on the Law of the Sea during this session of Congress.”[4]

More on PSI, SUA and UNICPOLOS later.

First, by way of background let me reiterate that the approach of the US to situations requiring law enforcement operations at sea has been consistent, and consistent with the law of the sea.

Maritime Law Enforcement

The American approach to countering crimes at sea has been primarily to treat the phenomena as one engaging the paradigm of civilian maritime law enforcement, rather than as a military effort exercising rights emanating from binding Security Council resolutions or the inherent right of self defense.

Nevertheless, the US military has also been involved both in a support role and as a direct actor.[5]

Most recently, in the latter half of the 20th Century, the US Coast Guard, although an armed force of the United States,[6] acted in its law enforcement capacity[7] to respond to the increasing criminal threats to United States security caused by drug and migrant smuggling by sea to US territory.[8]

US efforts have been exclusively based on the traditional law of the sea, fully respecting the exclusive jurisdiction of the flag State over vessels claiming its protection while in international waters (i.e., on the high seas or in an EEZ).[9]

In the past 20 years, representatives of the Departments of State and Justice, and the US Coast Guard, have successfully negotiated some two dozen bilateral and multilateral agreements that facilitate cooperation between flag States (mostly in the Caribbean) and the US in suppressing illicit traffic in narcotic drugs and psychotropic substances by sea, and migration by sea of persons not eligible to enter the US lawfully, often in unsafe vessels.[10]

These agreements address the central imperative of quickly ascertaining whether a particular suspect vessel is in fact of the claimed nationality, and if verified, quickly obtaining flag State authority to board and search the suspect vessel.

If evidence of crime is found as a result of the boarding, the agreements both confirm the flag State’s right to exercise its criminal enforcement jurisdiction, and also permit the flag State, consistent with its Constitution and laws, to permit the United States to exercise its criminal enforcement jurisdiction,[11] which the US Congress has made extraterritorial in its application.[12]

Based in large part on the experiences of the US, the international community has negotiated three multilateral law enforcement agreements during the early years of the 21st century with significant maritime law enforcement components:[13]

    • Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the 2000 UN Convention Against Transnational Organized Crime;[14]
    • Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area, 2003;[15] and
    • The 2005 protocols to the 1988 IMO Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and its Protocol.[16]
The threat of maritime crimes of these sorts is now apparent both in Europe and in the Central and Western Pacific, engaging the security interests of the member States of the European Union and Africa, the Pacific Island Forum,[17] and the States bordering vital shipping lanes and the users of those sea lanes.[18]

Countering these new threats similarly requires respect for flag State and littoral State rights and responsibilities set out in the law of the sea.

Proliferation Security Initiative

Since May of 2003, the US has actively participated in the Proliferation Security Initiative,[19] a global multilateral effort to facilitate cooperative activities by countries to interdict at sea, in the air, or on land, shipments of weapons of mass destruction, their delivery systems, and related materials flowing to or from States or non-state actors of proliferation concern.

Twenty-six PSI interdiction training exercises have been conducted involving participants and observers from over 50 States, and three more are scheduled in 2007. Four workshops have been held with various components of the shipping industry. The PSI Operational Experts Group has met 14 times since October 2003.[20]

As part of the effort to curb proliferation by sea, the US has successfully negotiated seven bilateral PSI shipboarding agreements,[21] and has active negotiations ongoing with a number of other States with large registries.

These agreements, and the cooperation of over 80 nations that have endorsed the PSI Statement of Interdiction Principles, have effectively protected most of the world’s merchant shipping from would-be proliferators.[22]

In particular, these agreements and the PSI Statement of Interdiction Principles[23] are based entirely on compliance with national and international law and frameworks, including full respect for flag State jurisdiction and coastal State sovereignty.[24] This truth is not understood by those who suggest that its implementation is not, or may not be, consistent with international law.[25] Uncertainty has been expressed about the meaning of what would constitute WMD material, the geographic area of application, identification of “States and non-state actors of proliferation concern”, possible negative impact on regional politics and stability, and lack of scientific technical knowledge with regard to WMD materials and how to deal with them. Let me address each of these concerns in turn.

Definitions

Some claim to be uncertain about the meaning of “WMD materials”. I would refer them to UN Security Council Resolution 1540 (2004), binding under Chapter VII, which contains definitions of the relevant terms: WMD, related materials and delivery systems.[26] The US PSI bilateral shipboarding agreements contain substantially identical definitions.

Geographic scope of application

Some countries have expressed concern that application of the PSI principles in the various maritime zones and in national airspace would not be in conformity with the Law of the Sea Convention and the Chicago Convention, notwithstanding the commitment of all PSI participants to act in accordance with them. Legal experts from the 20 participant countries in the PSI Operational Experts Group continue to examine these very issues to ensure that any PSI activity in the territorial sea, contiguous zone, straits used for international navigation, archipelagic waters including archipelagic sea lanes, the EEZ, the high seas, and national and international airspace are consistent with the governing international law. All participants in PSI are committed to act in that manner and respect the international legal regimes for the maritime zones. It is simply wrong to assert that the PSI Participants, particularly those with major interests in freedoms of navigation and overflight, seek to limit those freedoms through PSI. Rather, PSI Participants fully recognize that responding to the extreme danger to international peace and security posed by the proliferation of weapons of mass destruction must be done in ways that fully respect those freedoms, especially when proliferators seek to take advantage of them.

Consequently, PSI participants are agreed that it is best to act in those locations and as to those ships and aircraft over which a particular participant has clear legal authority: in its ports and internal waters, on its land territory, in its national airspace, and over ships having its nationality wherever located. The participants have come to appreciate that rigorous application of national customs, import and export control, and money laundering laws and regulations, coupled with the willingness of ship owners, port states and shippers to cooperate, are particularly effective tools.[27]

It is also instructive that UNSCRs 1718 (2006) and 1737 (2006) require States to take such actions regarding proscribed material to or from North Korea or Iran respectively, and that paragraph 8(f) of UNSCR 1718 calls upon all States to take cooperative action in that regard, consistent with international law, including the inspection of cargo to and from the DPRK, as necessary.

Identification of “States and non-state actors of proliferation concern”

Since the Statement of Interdiction Principles was adopted in 2003, the UN Security Council, acting under Chapter VII, has brought greater clarity. UNSCR 1540, reaffirmed in UNSCR 1673 (2006), calls upon all States to prevent the proliferation of WMD. UNSCRs 1695 (2006) and 1718 (2006) have identified North Korea, and UNSCRs 1696 (2006), 1737 (2006) and 1747 (2007) have identified Iran, as States of proliferation concern. Identification of the A.Q. Khan network and enhanced enforcement of customs and financing controls has identified many of the non-State actors of proliferation concern. Indeed, UNSCRs 1737 and 1747 identify many of them involved in the Iranian programs.[28]

Possible negative impact on regional politics and stability

Some countries have neighbors who are States of proliferation concern or within whose borders non-state actors of proliferation concern operate. Those countries should have an even greater interest in curbing proliferation and thereby promoting regional stability, rather than view PSI as having a negative impact on stability.

Lack of scientific and technical knowledge with regard to WMD materials and how to deal with them

The PSI OEG recognizes that the so-called “dual use” goods, those that could have legitimate or illegitimate uses, are the most difficult to recognize and that it requires specialized knowledge, training and equipment to deal with these WMD materials. They are working to remedy that situation. In addition, the US Department of Energy also provides Commodity Identification Training to customs and border control officials around the world.

Voluntariness

Some States have sought to justify their unwillingness to endorse the PSI Statement of Interdiction Principles because of their country’s lack of human and material resources to carry out the actions contemplated. Many, indeed most, PSI participant countries have limited capabilities to carry out all of their political commitments. But that is understood by all. Participants acknowledge that participation in PSI itself and in any PSI activity is entirely voluntary.

Shipboarding

Finally, some authorities continue to argue that flag States have no authority to permit other States to board ships having their nationality, arguing that such action would be a surrender of its jurisdiction to third countries, violate its territorial sovereignty or be an affront to their sovereignty. These assertions conflate a flag State’s undeniable international legal authority to permit a third state to board one of its ships on the high seas with national legal limitations on boarding of its ships by third States, and on what may be done if illicit activity is found as a result of that boarding,[29] as well as perpetuate the myth that a merchant ship, yacht or warship is a piece of its national territory. Only the last enjoys sovereign immunity.[30]

SUA

In response to the aerial attacks of 9-11-2001 in New York, Washington, DC, and in the air over Pennsylvania, the IMO undertook, among other things, a review of the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), itself adopted in response to the hijacking of the Italian-flag cruise ship Achille Lauro and murder of a U.S. passenger. As noted above, the Diplomatic Conference that was held in London in October 2005 adopted a protocol to the 1988 SUA Convention and another protocol to the 1988 Fixed Platforms Protocol to the 1988 SUA Convention.

The 2005 SUA Protocol to the main 1988 SUA Convention added:

  • new offenses (article 3bis, 3ter, 3quater);
  • modernized the extradition and MLE provisions, including the political offense and discrimination exceptions (article 11bis and 11ter);
  • prisoner transfer authorities (article 12bis);
  • protections for members of the armed forces (article 2bis); and
  • the most comprehensive shipboarding provisions in any international instrument, including unprecedented safeguards (articles 8bis and 10(2).[31]
    • We expect these provisions to be followed in future bilateral and multilateral maritime law enforcement agreements dealing with, for example, counter-proliferation, and drug and migrant smuggling.
The US Secretary of State has sent the transmittal package to the President recommending that the 2005 SUA Protocols be transmitted to the Senate for its advice and consent to their ratification. The Administration has also prepared legislation to implement the protocol, particularly the new offenses.[32] Also, as noted above, the US Department of Energy also provides Commodity Identification Training to customs and border control officials around the world.

Finally, the US Coast Guard and Department of Justice are assisting the IMO in its efforts to help Member States that have requested advice and training in acceding to the Protocols. They have participated so far in the conduct of three seminars.[33]

UNICPOLOS 2008

In December 2006, the UN General Assembly decided that the 2008 Informal Consultative Process will focus its discussions on “maritime security and safety”.[34] Those interested in this subject should take advantage of the unprecedented opportunity to influence the agenda for that June 2008 meeting and its recommendations to the UNGA.

The output of ICP meetings usually address actions recommended to the General Assembly to take on particular issues in its annual resolution on oceans and the law of the sea. Outcomes could include the following:

· Encouraging States, if they have not already done so, to consent to be bound by the relevant international conventions and protocols on maritime security and safety, including SOLAS, the Salvage Convention, SUA and the 2005 SUA Protocols;

· Encouraging States to take the necessary steps to implement domestically these international treaties, as well as the International Ship and Port Facility Security Code;

· Encouraging States to support the development of maritime information sharing and maritime domain awareness through broader application of Automatic Identification Systems (AIS) and Long Range Identification and Tracking (LRIT), and encouraging interested States to continue assisting other countries, particularly lesser developed countries, including small island and developing States, to develop these capacities;

· Encouraging the IMO and interested States to continue assisting other countries, particularly lesser developed countries, including small island developing States, to develop the maritime security capacity to better ensure security in ports and the maritime domain;

· Requesting coastal States in the regions where incidents of piracy and other criminal acts of violence at sea are prevalent to cooperate with States whose maritime forces are engaged in the suppression of these illegal acts, by facilitating transfer of the persons apprehended during anti-piracy operations ashore in temporary custody, pending determination of the locale for ultimate disposition of their cases;

· Endorsing the UN Security Council President’s Statement of March 15, 2006, calling on Member States whose naval vessels and military aircraft operate in international waters and airspace adjacent to the coast of Somalia to be vigilant to any incident of piracy therein and to take appropriate action to protect merchant shipping, in particular the transportation of humanitarian aid, against any such act, in line with relevant international law, and urging cooperation among all States, particularly regional States, and active prosecution of piracy offences,[35] and encouraging States to give additional consideration to this matter should it return to the agenda of the Security Council;

· Calling upon States and the Security Council to take action to prevent pirates from having sanctuaries ashore and in the territorial sea of coastal States;

· Requesting the IMO and DOALOS to increase their assistance to coastal States in coordinating responses to acts of piracy and other criminal acts of violence at sea, and in facilitating the necessary legal infrastructure in those States to take the appropriate legal action regarding these crimes.

Conclusion

This paper has summarized the developments since March 2005 regarding two international maritime security initiatives: the Proliferation Security Initiative and the strengthening of the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation. The paper has also reviewed the American approach to maritime law enforcement, emphasizing its consistency and compliance with the international law of the sea reflected in the Law of the Sea Convention. Finally the paper identifies a forum for advancing international maritime security needs and initiatives.

Should the US finally accede to the Law of the Sea Convention, as urged by President Bush, its commitment to the rule of law reflected in the Convention will be cemented and, perhaps, the skeptics will be muted. We shall see.


APPENDIX 1

Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, done at Rome on 10 March 1988, as amended by the 2005 Protocol,

IMO document LEG/CONF.15/21

(deletions are ; additions are bold and underlined)

ARTICLE 1

1 For purposes of this Convention, the term –

(a) “ship” means a vessel of any type whatsoever not permanently attached to the sea-bed, including dynamically supported craft, submersibles, or any other floating craft.

(b) “transport” means to initiate, arrange or exercise effective control, including decision-making authority, over the movement of a person or item.

(c) “serious injury or damage” means:

(i) serious bodily injury; or

(ii) extensive destruction of a place of public use, State or government facility, infrastructure facility, or public transportation system, resulting in major economic loss; or

(iii) substantial damage to the environment, including the air, soil, water, fauna or flora.

(d) “BCN weapon” means:

(i) “biological weapons”, which are:

(1) microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; or

(2) weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

(ii) “chemical weapons”, which are, together or separately:

(1) toxic chemicals and their precursors, except where intended for:

(A) industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes; or

(B) protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons; or

(C) military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare; or

(D) law enforcement including domestic riot control purposes,

as long as the types and quantities are consistent with such purposes;

(2) munitions and devices specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (ii)(1), which would be released as a result of the employment of such munitions and devices;

(3) any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (ii)(2).

(iii) nuclear weapons and other nuclear explosive devices.

(e) “toxic chemical” means any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.

(f) “precursor” means any chemical reactant which takes part at any stage in the production by whatever method of a toxic chemical. This includes any key component of a binary or multicomponent chemical system.

(g) “Organization” means the International Maritime Organization (IMO).

(h) “Secretary-General” means the Secretary-General of the Organization.

2 For the purposes of this Convention,

(a) the terms “place of public use,” “State or government facility,” “infrastructure facility,” and “public transportation system” have the same meaning as given to those terms in the International Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997, and

(b) the terms “source material” and “special fissionable material” have the meaning as given to those terms in the Statute of the International Atomic Energy Agency, done at New York on 26 October 1956.

ARTICLE 2

1 This Convention does not apply to:

(a) a warship; or

(b) a ship owned or operated by a State when being used as a naval auxiliary or for customs or police purposes;or

(c) A ship which has been withdrawn from navigation or laid up.

2 Nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes.

ARTICLE 2bis

1 Nothing in this Convention shall affect other rights, obligations and responsibilities of States and individuals under international law, in particular the purposes and principles of the Charter of the United Nations and international human rights, refugee and humanitarian law.

2 This Convention does not apply to the activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law.

3 Nothing in this Convention shall affect the rights, obligations and responsibilities under the Treaty on the Non-Proliferation of Nuclear Weapons, done at Washington, London and Moscow on 1 July 1968, the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, done at Washington, London and Moscow on 10 April 1972 or the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, done at Paris on 13 January 1993, of States Parties to such treaties.

ARTICLE 3

1 Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally:

(a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or

(b) 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; or

(c) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or

(d) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or

(e) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or

(f) communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or

(g) injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).

2 Any person also commits an offence if that person:

(a) attempts to commit any of the offences set forth in paragraph 1;

(b) abets the commission of any of the offences set forth in paragraph 1 perpetrated by any person or is otherwise an accomplice of a person who commits such an offence; or

(c) threatens, with or without a condition, as is provided for under national law, aimed at compelling a physical or juridical person to do or refrain from doing any act, to commit any of the offences set forth in paragraphs 1 (b), (c), and (e), if that threat is likely to endanger the safe navigation of the ship in question.

ARTICLE 3bis

1 Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally:

(a) 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:

(i) uses against or on a ship or discharges from a ship any explosive, radioactive material or BCN weapon in a manner that causes or is likely to cause death or serious injury or damage; or

(ii) discharges, from a ship, oil, liquefied natural gas, or otherhazardous or noxious substance, which is not covered by subparagraph (a)(i), in such quantity or concentration that causes or is likely to cause death or serious injury or damage; or

(iii) uses a ship in a manner that causesdeath or serious injury or damage; or

(iv) threatens, with or without a condition, as is provided for under national law, to commit an offence set forth in subparagraph (a)(i), (ii) or (iii); or

(b) transports on board a ship:

(i) any explosive or radioactive material, knowing that it is intended to be used to cause, or in a threat to cause, with or without a condition, as is provided for under national law, death or serious injury or damage for the purpose of intimidating a population, or compelling a Government or an international organization to do or to abstain from doing any act; or

(ii) any BCN weapon, knowing it to be a BCN weapon as defined in article 1; or

(iii) any source material, special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material, knowing that it is intended to be used in a nuclear explosive activity or any other nuclear activity not under safeguards pursuant to an IAEA comprehensive safeguards agreement; or

(iv) 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.

2 It shall not be an offence within the meaning of this Convention to transport an item or material covered by paragraph 1(b)(iii) or, insofar as it relates to a nuclear weapon or other nuclear explosive device, paragraph 1(b)(iv), if such item or material is transported to or from the territory of, or is otherwise transported under the control of, a State Party to the Treaty on the Non-Proliferation of Nuclear Weapons where:

(a) the resulting transfer or receipt, including internal to a State, of the item or material is not contrary to such State Party’s obligations under the Treaty on the Non-Proliferation of Nuclear Weapons and,

(b) if the item or material is intended for the delivery system of a nuclear weapon or other nuclear explosive device of a State Party to the Treaty on the Non-Proliferation of Nuclear Weapons, the holding of such weapon or device is not contrary to that State Party’s obligations under that Treaty.

ARTICLE 3ter

Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally transports another person on board a ship knowing that the person has committed an act that constitutes an offence under article 3, 3bis or 3quater or an offence set forth in any treaty listed in the Annex, and intending to assist that person to evade criminal prosecution.

ARTICLE 3quater

Any person also commits an offence within the meaning of this Convention if that person:

(a) unlawfully and intentionally injures or kills any person in connection with the commission of any of the offences set forth in article 3, paragraph 1, article 3bis, or article 3ter; or

(b) attempts to commit an offence set forth in article 3, paragraph 1, article 3bis, paragraph 1(a)(i), (ii) or (iii), or paragraph (a) of this article; or

(c) participates as an accomplice in an offence set forth in article 3, article 3bis, article 3ter, or subparagraph (a) or (b) of this article; or

(d) organizes or directs others to commit an offence as set forth in article 3, article 3 bis, article 3ter, or subparagraph (a) or (b) of this article; or

(e) contributes to the commission of one or more offences as set forth in article 3, article 3bis, article 3ter or subparagraph (a) or (b) of this article, by a group of persons acting with a common purpose, intentionally and either:

(i) with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in article 3, 3bis or 3ter; or

(ii) in the knowledge of the intention of the group to commit an offence as set forth in article 3, 3bis or 3ter.

ARTICLE 4

1 This Convention applies if the ship is navigating or is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States.

2 In cases where the Convention does not apply pursuant to paragraph 1, it nevertheless applies when the offender or the alleged offender is found in the territory of a State Party other than the State referred to in paragraph 1.

ARTICLE 5

Each State Party shall make the offences set forth in articles 3, 3bis, 3ter and 3quater punishable by appropriate penalties which take into account the grave nature of those offences.

ARTICLE 5bis

1 Each State Party, in accordance with its domestic legal principles, shall take the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for management or control of that legal entity has, in that capacity, committed an offence set forth in this Convention. Such liability may be criminal, civil or administrative.

2 Such liability is incurred without prejudice to the criminal liability of individuals having committed the offences.

3 Each State Party shall ensure, in particular, that legal entities liable in accordance with paragraph 1 are subject to effective, proportionate and dissuasive criminal, civil or administrative sanctions. Such sanctions may include monetary sanctions.

ARTICLE 6

1 Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in articles 3, 3bis, 3ter and 3quater when the offence is committed:

(a) against or on board a ship flying the flag of the State at the time the offence is committed; or

(b) in the territory of that State, including its territorial sea; or

(c) by a national of that State.

2 A State Party may also establish its jurisdiction over any such offence when:

(a) it is committed by a stateless person whose habitual residence is in that State; or

(b) during its commission a national of that State is seized, threatened, injured or killed; or

(c) it is committed in an attempt to compel that State to do or abstain from doing any act.

3 Any State Party which has established jurisdiction mentioned in paragraph 2 shall notify the Secretary-General . If such State Party subsequently rescinds that jurisdiction, it shall notify the Secretary-General.

4 Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in articles 3, 3bis, 3ter and 3quater in cases where the alleged offender is present in its territory and it does not extradite him to any of the States Parties which have established their jurisdiction in accordance with paragraphs 1 and 2 of this article.

5 This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.

ARTICLE 7

1 Upon being satisfied that the circumstances so warrant, any State Party in the territory of which the offender or the alleged offender is present shall, in accordance with its law, take him into custody or take other measures to ensure his presence for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2 Such State shall immediately make a preliminary inquiry into the facts, in accordance with its own legislation.

3 Any person regarding whom the measures referred to in paragraph 1 are being taken shall be entitled to:

(a) communicate without delay with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to establish such communication or, if he is a stateless person, the State in the territory of which he has his habitual residence;

(b) be visited by a representative of that State.

4 The rights referred to in paragraph 3 shall be exercised in conformity with the laws and regulations of the State in the territory of which the offender or the alleged offender is present, subject to the proviso that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under paragraph 3 are intended.

5 When a State Party, pursuant to this article, has taken a person into custody, it shall immediately notify the States which have established jurisdiction in accordance with article 6, paragraph 1 and, if it considers it advisable, any other interested States, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.

ARTICLE 8

1 The master of a ship of a State Party (the “flag State”) may deliver to the authorities of any other State Party (the “receiving State”) any person who the master has reasonable grounds to believe has committed an offence set forth in article 3, 3bis, 3ter, or 3quater.

2 The flag State shall ensure that the master of its ship is obliged, whenever practicable, and if possible before entering the territorial sea of the receiving State carrying on board any person whom the master intends to deliver in accordance with paragraph 1, to give notification to the authorities of the receiving State of his intention to deliver such person and the reasons therefor.

3 The receiving State shall accept the delivery, except where it has grounds to consider that the Convention is not applicable to the acts giving rise to the delivery, and shall proceed in accordance with the provisions of article 1. Any refusal to accept a delivery shall be accompanied by a statement of the reasons for refusal.

4 The flag State shall ensure that the master of its ship is obliged to furnish the authorities of the receiving State with the evidence in the master’s possession which pertains to the alleged offence.

5 A receiving State which has accepted the delivery of a person in accordance with paragraph 3 may, in turn, request the flag State to accept delivery of that person. The flag State shall consider any such request, and if it accedes to the request it shall proceed in accordance with article 7. If the flag State declines a request, it shall furnish the receiving State with a statement of the reasons therefor.

ARTICLE 8bis

1 States Parties shall co-operate to the fullest extent possible to prevent and suppress unlawful acts covered by this Convention, in conformity with international law, and shall respond to requests pursuant to this article as expeditiously as possible.

2 Each request pursuant to this article should, if possible, contain the name of the suspect ship, the IMO ship identification number, the port of registry, the ports of origin and destination, and any other relevant information. If a request is conveyed orally, the requesting Party shall confirm the request in writing as soon as possible. The requested Party shall acknowledge its receipt of any written or oral request immediately.

3 States Parties shall take into account the dangers and difficulties involved in boarding a ship at sea and searching its cargo, and give consideration to whether other appropriate measures agreed between the States concerned could be more safely taken in the next port of call or elsewhere.

4 A State Party that has reasonable grounds to suspect that an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committedinvolving a ship flying its flag, may request the assistance of other States Parties in preventing or suppressing that offence. The States Parties so requested shall use their best endeavors to render such assistance within the means available to them.

5 Whenever law enforcement or other authorized officials of a State Party (“the requesting Party”) encounter a ship flying the flag or displaying marks of registry of another State Party (“the first Party”) located seaward of any State’s territorial sea, and the requesting Party has reasonable grounds to suspect that the ship or a person on board the shiphas been, is or is about to be involved in the commission of an offence set forth in article 3, 3bis, 3ter or 3quater, and the requesting Party desires to board,

(a) it shall request, in accordance with paragraphs 1 and 2, that the first Party confirm the claim of nationality, and

(b) if nationality is confirmed, the requesting Party shall ask the first Party (hereinafter referred to as the flag State) for authorization to board and to take appropriate measures with regard to that ship which may include stopping, boarding and searching the ship, its cargo and persons on board, and questioning the persons on board in order to determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be, committed, and

(c) the flag State shall either:

(i) authorize the requesting Party to board and to take appropriate measures set out in subparagraph (b), subject to any conditions it may impose in accordance with paragraph 7; or

(ii) conduct the boarding and search with its own law enforcement or other officials; or

(iii) conduct the boarding and search together with the requesting Party, subject to any conditions it may impose in accordance with paragraph 7; or

(iv) decline to authorize a boarding and search.

The requesting Party shall not board the ship or take measures set out in subparagraph (b) without the express authorization of the flag State.

(d) Upon or after depositing its instrument of ratification, acceptance, approval or accession, a State Party may notify the Secretary-General that, with respect to ships flying its flag or displaying its mark of registry, the requesting Party is granted authorization to board and search the ship, its cargo and persons on board, and to question the persons on board in order to locate and examine documentation of its nationality and determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed, if there is no response from the first Party within four hours of acknowledgement of receipt of a request to confirm nationality.

(e) Upon or after depositing its instrument of ratification, acceptance, approval or accession, a State Party may notify the Secretary-General that, with respect to ships flying its flag or displaying its mark of registry, the requesting Party is authorized to board and search a ship, its cargo and persons on board, and to question the persons on board in order to determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed.

The notifications made pursuant to this paragraph can be withdrawn at any time.

6 When evidence of conduct described in article 3, 3bis, 3ter or 3quater is found as the result of any boarding conducted pursuant to this article, the flag State may authorize the requesting Party to detain the ship, cargo and persons on board pending receipt of disposition instructions from the flag State. The requesting Party shall inform promptly the flag State of the results of a boarding, search, and detention conducted pursuant to this article. The requesting Party shall also inform promptly the flag State of the discovery of evidence of illegal conduct that is not subject to this Convention.

7 The flag State, consistent with the other provisions of this Convention, may subject its authorization under paragraph 5 or 6 to conditions, including obtaining additional information from the requesting Party, and conditions relating to responsibility for and the extent of measures to be taken. No additional measures may be taken without the express authorization of the flag State, except when necessary to relieve imminent danger to the lives of persons or those that derive from relevant bilateral or multilateral agreements.

8 For all boardings pursuant to this article, the flag State has the right to exercise jurisdiction over a detained ship, cargo or other items and persons on board, including seizure, forfeiture, arrest and prosecution. However, the flag State may, subject to its constitution and laws, consent to the exercise of jurisdiction by another State having jurisdiction under article 6.

9 When carrying out the authorized actions under this article, the use of force shall be avoided except when necessary to ensure the safety of its officials and persons on board, or where the officials are obstructed in the execution of the authorized actions. Any use of force pursuant to this article shall not exceed the minimum degree of force which is necessary and reasonable in the circumstances.

10 Safeguards:

(a) Where a State Party takes measures against a ship in accordance with this article, it shall:

(i) take due account of the need not to endanger the safety of life at sea;

(ii) ensure that all persons on board are treated in a manner which preserves their basic human dignity, and in compliance with the applicable provisions of international law, including international human rights law;

(iii) ensure that a boarding and search pursuant to this article shall be conducted in accordance with applicable international law;

(iv) take due account of the safety and security of the ship and its cargo;

(v) take due account of the need not to prejudice the commercial or legal interests of the flag State;

(vi) ensure, within available means, that any measure taken with regard to the ship or its cargo is environmentally sound under the circumstances;

(vii) ensure that persons on board against whom proceedings may be commenced in connection with any of the offences set forth in article 3, 3bis, 3ter or 3quater are afforded the protections of paragraph 2 of article 10, regardless of location;

(viii) ensure that the master of a ship is advised of its intention to board, and is, or has been, afforded the opportunity to contact the ship’s owner and the flag State at the earliest opportunity; and

(ix) take reasonable efforts to avoid a ship being unduly detained or delayed.

(b) Provided that authorization to board by a flag State shall not per se give rise to its liability,States Parties shall be liable for any damage, harm or loss attributable to them arising from measures taken pursuant to this article when:

(i) the grounds for such measures prove to be unfounded, provided that the ship has not committed any act justifying the measures taken; or

(ii) such measures are unlawful or exceed that reasonably required in light of available information to implement the provisions of this article.

State Parties shall provide effective recourse in respect of such damage, harm or loss.

(c) Where a State Party takes measures against a ship in accordance with this Convention, it shall take due account of the need not to interfere with or to affect:

(i) the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea; or

(ii) the authority of the flag State to exercise jurisdiction and control in administrative, technical and social matters involving the ship.

(d) Any measure taken pursuant to this article shall be carried out by law enforcement or other authorized officials from warships or military aircraft, or from other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect and, notwithstanding articles 2 and 2bis, the provisions of this article shall apply.

(e) For the purposes of this article “law enforcement or other authorized officials” means uniformed or otherwise clearly identifiable members of law enforcement or other government authorities duly authorized by their government. For the specific purpose of law enforcement under this Convention, law enforcement or other authorized officials shall provide appropriate government-issued identification documents for examination by the master of the ship upon boarding.

11 This article does not apply to or limit boarding of ships conducted by any State Party in accordance with international law, seaward of any State’s territorial sea, including boardings based upon the right of visit, the rendering of assistance to persons, ships and property in distress or peril, or an authorization from the flag State to take law enforcement or other action.

12 States Parties are encouraged to develop standard operating procedures for joint operations pursuant to this article and consult, as appropriate, with other States Parties with a view to harmonizing such standard operating procedures for the conduct of operations.

13 States Parties may conclude agreements or arrangements between them to facilitate law enforcement operations carried out in accordance with this article.

14 Each State Party shall take appropriate measures to ensure that its law enforcement or other authorized officials, and law enforcement or other authorized officials of other States Parties acting on its behalf, are empowered to act pursuant to this article.

15 Upon or after depositing its instrument of ratification, acceptance, approval or accession, each State Party shall designate the authority, or, where necessary, authorities to receive and respond to requests for assistance, for confirmation of nationality, and for authorization to take appropriate measures. Such designation, including contact information, shall be notified to the Secretary-General within one month of becoming a Party, who shall inform all other States Parties within one month of the designation. Each State Party is responsible for providing prompt notice through the Secretary-General of any changes in the designation or contact information.

ARTICLE 9

Nothing in this Convention shall affect in any way the rules of international law pertaining to the competence of States to exercise investigative or enforcement jurisdiction on board ships not flying their flag.

ARTICLE 10

1 The State Party in the territory of which the offender or the alleged offender is found shall, in cases to which article 6 applies, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

2 Any person who is taken into custody or regarding whom any other measures are taken or proceedings are being carried out pursuant to this Convention shall be guaranteed fair treatment , including enjoyment of all rights and guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of international law, including international human rights law.

ARTICLE 11

1 The offences set forth in articles 3, 3bis, 3ter and 3quater shall be deemed to be included as extraditable offences in any extradition treaty existing between any of the States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

2 If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, the requested State Party may, at its option, consider this Convention as a legal basis for extradition in respect of the offences set forth in articles 3, 3bis, 3ter and 3quater. Extradition shall be subject to the other conditions provided by the law of the requested State Party.

3 States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offences set forth in articles 3, 3bis, 3ter and 3quarter as extraditable offences between themselves, subject to the conditions provided by the law of the requested State.

4 If necessary, the offences set forth in articles 3, 3bis, 3ter and 3quater shall be treated, for the purposes of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in a place within the jurisdiction of the State Party requesting extradition.

5 A State Party which receives more than one request for extradition from States which have established jurisdiction in accordance with article 7 and which decides not to prosecute shall, in selecting the State to which the offender or alleged offender is to be extradited, pay due regard to the interests and responsibilities of the State Party whose flag the ship was flying at the time of the commission of the offence.

6 In considering a request for the extradition of an alleged offender pursuant to this Convention, the requested State shall pay due regard to whether his rights as set forth in article 7, paragraph 3, can be effected in the requesting State.

7 With respect to the offences as defined in this Convention, the provisions of all extradition treaties and arrangements applicable between States Parties are modified as between States Parties to the extent that they are incompatible with this Convention.

ARTICLE 11bis

None of the offences set forth in articles 3, 3bis, 3ter and 3quater shall be regarded for the purposes of extradition or mutual legal assistance as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives.

ARTICLE 11ter

Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in articles 3, 3bis, 3ter and 3quater for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, political opinion or gender or that compliance with the request would cause prejudice to that person’s position for any of these reasons.

ARTICLE 12

1 State Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offences set forth in articles 3, 3bis, 3ter or 3quater, including assistance in obtaining evidence at their disposal necessary for the proceedings.

2 States Parties shall carry out their obligations under paragraph 1 in conformity with any treaties on mutual assistance that may exist between them. In the absence of such treaties, States Parties shall afford each other assistance in accordance with their national law.

ARTICLE 12bis

1 A person who is being detained or is serving a sentence in the territory of one State Party whose presence in another State Party is requested for purposes of identification, testimony or otherwise providing assistance in obtaining evidence for the investigation or prosecution of offences set forth in articles 3, 3bis, 3ter or 3quater may be transferred if the following conditions are met:

(a) the person freely gives his informed consent; and

(b) the competent authorities of both States agree, subject to such conditions as those States may deem appropriate.

2 For the purposes of the present article:

(a) the State to which the person is transferred shall have the authority and obligation to keep the person transferred in custody, unless otherwise requested or authorized by the State from which the person was transferred;

(b) the State to which the person is transferred shall without delay implement its obligation to return the person to the custody of the State from which the person was transferred as agreed beforehand, or as otherwise agreed, by the competent authorities of both States;

(c) the State to which the person is transferred shall not require the State from which the person was transferred to initiate extradition proceedings for the return of the person;

(d) the person transferred shall receive credit for service of the sentence being served in the State from which he was transferred for time spent in the custody of the State to which he was transferred.

3 Unless the State Party from which a person is to be transferred in accordance with the present article so agrees, that person, whatever that person’s nationality, shall not be prosecuted or detained or subjected to any other restriction of personal liberty in the territory of the State to which that person is transferred in respect of acts or convictions anterior to that person’s departure from the territory of the State from which such person was transferred.

ARTICLE 13

1 States Parties shall co-operate in the prevention of the offences set forth in articles 3, 3bis, 3ter and 3quater particularly by:

(a) taking all practicable measures to prevent preparations in their respective territories for the commission of those offences within or outside their territories;

(b) exchanging information in accordance with their national law, and coordinating administrative and other measures taken as appropriate to prevent the commission of offences set forth in articles 3, 3bis, 3ter and 3quater.

2. When, due to the commission of an offence set forth in articles 3, 3bis, 3ter and 3quater, the passage of a ship has been delayed or interrupted, any State Party in whose territory the ship or passengers or crew are present shall be bound to exercise all possible efforts to avoid a ship, its passengers, crew or cargo being unduly detained or delayed.

ARTICLE 14

Any State Party having reason to believe that an offence set forth in articles 3, 3bis, 3ter or 3quater will be committed shall, in accordance with its national law, furnish as promptly as possible any relevant information in its possession to those States which it believes would be the States having established jurisdiction in accordance with article 6.

ARTICLE 15

1. Each State Party shall, in accordance with its national law, provide to the Secretary-General, as promptly as possible, any relevant information in its possession concerning:

(a) the circumstances of the offence;

(b) the action taken pursuant to article 13, paragraph 2;

(c) the measures taken in relation to the offender or the alleged offender and, in particular, the results of any extradition proceedings or other legal proceedings.

2. The State Party where the alleged offender is prosecuted shall, in accordance with its national law, communicate the final outcome of the proceedings to the Secretary-General.

3. The information transmitted in accordance with paragraphs 1 and 2 shall be communicated by the Secretary-General to all States Parties, to Members of the Organization , to the other States concerned, and to the appropriate international intergovernmental organizations.

ARTICLE 16

1 Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

2 Each State may at the time of signature or ratification, acceptance or approval of this Convention or accession thereto, declare that it does not consider itself bound by any or all of the provisions of paragraph 1. The other States Parties shall not be bound by those provisions with respect to any State Party which has made such a reservation.

3 Any State which has made a reservation in accordance with paragraph 2 may, at any time, withdraw that reservation by notification to the Secretary-General.

ARTICLE 16bis

Final clauses of the Convention for the Suppression of Unlawful Acts against

the Safety of Maritime Navigation, 2005

The final clauses of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 2005 shall be articles 17 to 24 of the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. References in this Convention to States Parties shall be taken to mean references to that Protocol.

FINAL CLAUSES

ARTICLE 17

Signature, ratification, acceptance, approval and accession

1 This Protocol shall be open for signature at the Headquarters of the Organization from 14 February 2006 to 13 February 2007 and shall thereafter remain open for accession.

2 States may express their consent to be bound by this Protocol by:

(a) signature without reservation as to ratification, acceptance or approval; or

(b) signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval; or

(c) accession.

3 Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Secretary-General.

4 Only a State which has signed the Convention without reservation as to ratification, acceptance or approval, or has ratified, accepted, approved or acceded to the Convention may become a Party to this Protocol.

ARTICLE 18

Entry into force

1 This Protocol shall enter into force ninety days following the date on which twelve States have either signed it without reservation as to ratification, acceptance or approval, or have deposited an instrument of ratification, acceptance, approval or accession with the Secretary-General.

2 For a State which deposits an instrument of ratification, acceptance, approval or accession in respect of this Protocol after the conditions in paragraph 1 for entry into force thereof have been met, the ratification, acceptance, approval or accession shall take effect ninety days after the date of such deposit.

ARTICLE 19

Denunciation

1 This Protocol may be denounced by any State Party at any time after the date on which this Protocol enters into force for that State.

2 Denunciation shall be effected by the deposit of an instrument of denunciation with the Secretary-General.

3 A denunciation shall take effect one year, or such longer period as may be specified in the instrument of denunciation, after the deposit of the instrument with the Secretary-General.

ARTICLE 20

Revision and amendment

1 A conference for the purpose of revising or amending this Protocol may be convened by the Organization.

2 The Secretary-General shall convene a conference of States Parties to this Protocol for revising or amending the Protocol, at the request of one third of the States Parties, or ten States Parties, whichever is the higher figure.

3 Any instrument of ratification, acceptance, approval or accession deposited after the date of entry into force of an amendment to this Protocol shall be deemed to apply to the Protocol as amended.

ARTICLE 21

Declarations

1 Upon depositing its instrument of ratification, acceptance, approval or accession, a State Party which is not a party to a treaty listed in the Annex may declare that, in the application of this Protocol to the State Party, the treaty shall be deemed not to be included in article 3ter. The declaration shall cease to have effect as soon as the treaty enters into force for the State Party, which shall notify the Secretariat of this fact.

2 When a State Party ceases to be a party to a treaty listed in the Annex, it may make a declaration as provided for in this article, with respect to that treaty.

3 Upon depositing its instrument of ratification, acceptance, approval or accession, a State Party may declare that it will apply the provisions of article 3ter in accordance with the principles of its criminal law concerning family exemptions of liability.

ARTICLE 22

Amendments to the Annex

1 The Annex may be amended by the addition of relevant treaties that:

(a) are open to the participation of all States;

(b) have entered into force; and

(c) have been ratified, accepted, approved or acceded to by at least twelve States Parties to this Protocol.

2 After the entry into force of this Protocol, any State Party thereto may propose such an amendment to the Annex. Any proposal for an amendment shall be communicated to the Secretary-General in written form. The Secretary-General shall circulate any proposed amendment that meets the requirements of paragraph 1 to all members of the Organization and seek from the State Parties to this Protocol their consent to the adoption of the proposed amendment.

3 The proposed amendment to the Annex shall be deemed adopted after more than twelve of the States Parties to this Protocol consent to it by written notification to the Secretary-General.

4 The adopted amendment to the Annex shall enter into force thirty days after the deposit with the Secretary-General of the twelfth instrument of ratification, acceptance or approval of such amendment for those States Parties to this Protocol that have deposited such an instrument. For each State Party to to this Protocol ratifying, accepting or approving the amendment after the deposit of the twelfth instrument with the Secretary-General, the amendment shall enter into force on the thirtieth day after deposit by such State Party of its instrument of ratification, acceptance or approval.

ARTICLE 23

Depositary

1 This Protocol and any amendments adopted under articles 20 and 22 shall be deposited with the Secretary-General.

2 The Secretary-General shall:

(a) inform all States which have signed this Protocol or acceded to this Protocol of:

(i) each new signature or deposit of an instrument of ratification, acceptance, approval or accession together with the date thereof;

(ii) the date of the entry into force of this Protocol;

(iii) the deposit of any instrument of denunciation of this Protocol together with the date on which it is received and the date on which the denunciation takes effect;

(iv) any communication called for by any article of this Protocol;

(v) any proposal to amend the Annex which has been made in accordance with article 22, paragraph 2;

(vi) any amendment deemed to have been adopted in accordance with article 22, paragraph 3;

(vii) any amendment ratified, accepted or approved in accordance with article 22, paragraph 4, together with the date on which that amendment shall enter into force; and

(b) transmit certified true copies of this Protocol to all States which have signed or acceded to this Protocol.

3 As soon as this Protocol enters into force, a certified true copy of the text shall be transmitted by the Secretary-General to the Secretary-General of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.

ARTICLE 24

Languages

This Protocol is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic.

ANNEX

1 Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on 16 December 1970.

2 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971.

3 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973.

4 International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979.

5 Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 26 October 1979.

6 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988.

7 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on 10 March 1988.

8 International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997.

9 International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999.


APPENDIX 2

February 27, 2008

UNITED STATES PSI SHIPBOARDING AGREEMENTS

(in force or signed awaiting entry into force)

1. Agreement between the Government of the United States of America and the Government of Belize Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, and note, signed at Washington, August 4, 2005, entered into force October 19, 2005. TIAS. Text at http://www.state.gov/t/isn/trty/50809.htm

2. Agreement between the Government of the United States of America and the Government of Croatia Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, signed at Washington, June 1, 2005, entered into force March 6, 2007. TIAS. Text at http://www.state.gov/t/isn/trty/47086.htm

3. Agreement between the Government of the United States of America and the Government of Cyprus Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, signed at Washington, July 25, 2005, entered into force January 12, 2006. TIAS. Text at http://www.state.gov/t/isnp/trty/50274.htm

4. Agreement between the Government of the United States of America and the Government of the Republic of Liberia Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, signed at Washington February 11, 2004, applied provisionally from February 11, 2004; entered into force December 8, 2004. TIAS. Text at http://www.state.gov/t/isn/trty/32403.htm

5. Agreement between the Government of the United States of America and the Government of the Republic of the Malta Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, signed at Washington March 15, 2007; entered into force December 17, 2007. Text at http://www.state.gov/t/isn/trty/81883.htm

6. Agreement between the Government of the United States of America and the Government of the Republic of the Marshall Islands Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, signed at Honolulu August 13, 2004, applied provisionally from August 13, 2004; entered into force November 24, 2004. TIAS. Text at http://www.state.gov/t/isn/trty/35237.htm

7. Agreement between the Government of the United States of America and the Government of the Republic of the Mongolia Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, signed at Washington October 23, 2007; entered into force February 20, 2008. Text at http://www.state.gov/t/isn/trty/94626.htm

8. Amendment to the Supplementary Arrangement between the Government of the United States of America and the Government of the Republic of Panama to the Arrangement between the Government of the United States of America and the Government of Panama for Support and Assistance from the United States Coast Guard for the National Maritime Service of the Ministry of Government and Justice, signed at Washington, May 12, 2004, applied provisionally from May 12, 2004; entered into force December 1, 2004. TIAS. Text at http://www.state.gov/t/isn/trty/32858.htm

MARITIME TERRORISM AGREEMENTS

1. Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, London, October 14, 2005, IMO document LEG/CONF.15/21, Senate Treaty Doc. 110-8. Signed by 18 States including the United States, subject to ratification. Acceded to by Cook Islands and St. Kitts and Nevis. Not in force. Text at http://www.state.gov/documents/organization/58426.pdf

2. Protocol of 2005 to the Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, London, October 14, 2005, IMO document LEG/CONF.15/22, Senate Treaty Doc. 110-8. Signed by 18 States including the United States, subject to ratification. Not in force. Text at http://www.state.gov/documents/organization/58425.pdf



[1] Office of the Legal Adviser (L/OES), US Department of State.

[2] See J.A. Roach, ‘Proliferation Security Initiative (PSI): Countering Proliferation by Sea,’ and B. Kieserman, ‘Preventing & Defeating Terrorism at Sea: Practical Considerations for Implementation of the Draft Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA),’ in: M.H. Nordquist, J.N. Moore, K-c. Fu (eds.) Center for Oceans Law and Policy, Recent Developments in the Law of the Sea and China, (Leiden/Boston, Martinus Nijhoff Publishers, 2006), pp. 351-424 and 425-464. Portions of this paper have been adapted from the author’s presentation on April 27, 2007, ‘An American Perspective On Crimes At Sea And Trafficking Of Weapons Of Mass Destruction,’ at a program on the exercise of jurisdiction over vessels: new developments in the fields of pollution, fisheries, crimes at sea, and trafficking of weapons of mass destruction, given at Egmont Palace, Brussels Belgium, sponsored by the Free University of Brussels (the proceedings of which are to be published). The author expresses his appreciation for the assistance in the preparation of both papers by Mr. Brad Kieserman, Chief, Operations Law Group, Office of the Judge Advocate General, U.S. Coast Guard.

[3] The 2005 SUA Protocol to the 1988 SUA Platforms Protocol will enter into force after three States party to the 1988 SUA Protocol have consented to be bound, but not before the 2005 SUA Protocol enters into force. For the text of the 1988 SUA Convention as amended by the 2005 SUA Protocol (prepared by the author), see Appendix 1. For the texts of the two 2005 SUA protocols, see

http://www.state.gov/documents/organization/58426.pdf

and http://www.state.gov/documents/organization/58425.pdf

[4] ‘President’s Statement on Advancing U.S. Interests in the World’s Oceans,’ May 15, 2007, on line at http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html

[5] The role of the US military in military law enforcement at sea is discussed in J.A. Roach, ‘An American Perspective on Crimes at Sea and Trafficking of Weapons of Mass Destruction,’ supra note 2.

[6] 10 U.S. Code § 101; 14 U.S. Code § 1.

[7] 14 U.S. Code §§ 2, 89. The Coast Guard has undertaken maritime law enforcement activity, particularly focused on counter-smuggling measures, since its founding as the Revenue Cutter Service in 1789. In the early half of the 20th century, the Coast Guard employed its law enforcement authority to interdict vessels smuggling liquor into the United States in violation of prohibition laws.

[8] 8 U.S. Code §§ 1324, 1325, 1326 (aliens); 46 U.S. Code §§ 70501-70507 (Maritime Drug Law Enforcement Act).

[9] Article 6.1, Convention on the High Seas, Geneva, April 29, 1958, 13 UST 2312, TIAS 5200, 450 UNTS 82, text at http://www.oceanlaw.net/texts/genevahs.htm; article 92.1, UN Convention on the Law of the Sea, Montego Bay, December 10, 1982, 1833 UNTS 397, text at

http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf

[10] See the list appended to J.A. Roach, ‘An American Perspective on Crimes at Sea and Trafficking of Weapons of Mass Destruction,’ supra note 2.

[11] Most of these reciprocal bilateral agreements also contain provisions regarding flag State shipriders, pursuit and entry into the flag State’s territorial sea, overflight in the flag State’s territorial airspace, use of force, safeguards and claims.

[12] E.g., 46 U.S. Code § 70503(b) (pertaining to narcotics at sea); United States v. Chen, 2 F.3d 330, 333-34 (9th Cir. 1993) and United States v. Aguilar, 883 F.2d 662, 692 (9th Cir. 1989) (both establishing extraterritorial application and enforcement of criminal statutes governing immigration); 18 U.S. Code § 2280 (violence against maritime navigation); 18 U.S. Code § 2332b (acts of terrorism transcending national boundaries).

[13] Much of the experience leading to these agreements was derived from the implementation of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, available at:

http://www.unodc.org/unodc/en/drug_and_crime_conventions.html

[14] For the text, see http://www.unodc.org/pdf/crime/a_res_55/res5525e.pdf

[15] The full text of the agreement is not available on the web. For the shipboarding provisions, see J.A. Roach, ‘Initiatives to enhance maritime security,’ 28 Marine Policy, 2004, 41, at 64.

[16] For the texts of the 2005 SUA protocols, see note 3 above. See also, B. Kieserman, ‘Preventing and Defeating Terrorism at Sea,’ supra note 2.

[17] See the security component of The Pacific Plan for Strengthening Regional Cooperation and Integration 2006, prepared by the Pacific Islands Forum Secretariat, through the link at http://www.pacificplan.org/tiki-page.php?pageName=HomePage

[18] On the IMO initiative regarding the Straits of Malacca and Singapore, see IMO press briefing 32, ‘States make progress in co-operation to enhance safety of navigation, security and environmental protection in Straits of Malacca and Singapore,’ September 22, 2006, at http://www.imo.org

[19] See http://www.state.gov/t/isn/rls/fs/c10390.htm

[20] See http://www.state.gov/t/isn/c12684.htm for a listing of these exercises, workshops, and OEG meetings.

[21] See Appendix 2 for a list of these PSI shipboarding agreements.

[22] See http://www.state.gov/t/isn/c19310.htm for a list of the States that have endorsed the PSI Statement of Interdiction Principles.

[23] The Statement of Interdiction Principles may be found at

http://www.state.gov/t/isn/rls/fs/23764.htm

[24] See J.A. Roach, ‘Proliferation Security Initiative (PSI): Countering Proliferation by Sea,’ supra note 2. The assertions to the contrary by Joel Doolin in his article, ‘The Proliferation Security Initiative: Cornerstone of a New International Norm,’ that appeared in 59 Naval War College Review, No. 2 (Spring) 2006, 29-57, are mistaken. Accord, M.J. Valencia, ‘Is the PSI Really the Cornerstone of a New International Norm?’, 59 Naval War College Review, No. 4 (Autumn), 2006, 123-130; however, many of his comments about PSI are factually wrong. See also T.C. Perry, ‘Blurring the Ocean Zones: The Effect of the Proliferation Security Initiative on the Customary International Law of the Sea,’ 37 Ocean Dev. & Int’l L., 2006, 33-53.

[25] See, e.g., the numerous articles by Mark J. Valencia: ‘Pressing for Sea Change,’ Washington Times, Aug. 25, 2003, at A15; ‘The Proliferation Security Initiative: Making Waves in Asia,’ International Institute for Strategic Studies, Adelphi Paper 376, Oct. 2005; ‘The Proliferation Security Initiative in Perspective,’ Austral Policy Forum Online 06-41A, May 25, 2006, available at

http://www.nautilus.org/fora/security/0641Valencia.html; ‘Comments on “The Proliferation Security Initiative: Coming in from the Cold”, Austral Policy Forum 06-13D, July 3, 2006, available at http://nautilus.org/~rmit/forum-reports/0613d-huisken-valencia.html

[26] See http://www.state.gov/t/isn/c18943.htm

[27] See ‘Response by Ron Huisken to Mark Valencia’s comments on “The Proliferation Security Initiative: Coming in from the Cold,” Austral Policy Forum 06-13D, July 3, 2006, available at http://nautilus.org/~rmit/forum-reports/0613d-huisken-valencia.html

[28] UNSCR 1737 (2006), Annex, UNSCR 1747 (2007), Annex I.

[29] See Appendix 1, Article 8bis, paragraphs(5)(c), (6), (8) and (14) of the 2005 SUA Protocol.

[30] See articles 32, 42(5), 95, 96, 110(1) and 236 of the Law of the Sea Convention.

[31] See Appendix 1.

[32] U.S. legislation implementing the 1988 SUA Convention and its protocol may be found in title 18 U.S. Code §§ 2280 & 2281.

[33] Three IMO seminars have so far been conducted: in the Philippines (2006) (see IMO document LEG/92/9/2), and in Sri Lanka and Thailand (2007) (see IMO document LEG/93/9/1).

[34] UNGA resolution A/RES/61/222, ¶ 123.

[35] UNSC Presidential Statement S/PRST/2006/11, March 15, 2006, available at www.un.org, which reads in relevant part:

The Security Council takes note of resolution A.979 (24) adopted on 23 November 2005 at the twenty-fourth session of the International Maritime Organization biennial Assembly, concerning the increasing incidents of piracy and armed robbery against ships in waters off the coast of Somalia. The Council encourages Member States whose naval vessels and military aircraft operate in international waters and airspace adjacent to the coast of Somalia to be vigilant to any incident of piracy therein and to take appropriate action to protect merchant shipping, in particular the transportation of humanitarian aid, against any such act, in line with relevant international law. In this regard, the Council welcomes the communiqué of the IGAD Council of Ministers’ meeting in Jawhar on 29 November 2005, which decided to coordinate its strategies and action plans to face this common challenge in close collaboration with the international community. The Council further urges cooperation among all States, particularly regional States, and active prosecution of piracy offences.


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