Protocols to the United Nations Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA)

On October 14, 2005, an International Maritime Organization (IMO) Diplomatic Conference in London adopted two treaties with significant nonproliferation, counterterrorism and ship-boarding provisions. These treaties are Protocols to the UN Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) and its related protocol on Fixed Platforms. The SUA and the Fixed Platforms Protocol – originally adopted in response to the 1985 hijacking of the Italian-flag cruise ship Achille Lauro and the murder of an American passenger – are two of the 12 UN counterterrorism conventions. The new Protocols, when they enter into force, will add to this list and will fill important gaps in the worldwide fight against terrorism.

The Protocols resulted from more than three years of intensive negotiations. They will open for signature on February 14, 2006; the SUA Protocol enters into force 90 days after the twelfth country (three countries in the case of the Fixed Platforms Protocol) signs it without reservation as to ratification, acceptance or approval (or deposits an instrument to that effect).

The SUA Protocol provides the first international treaty framework for combating and prosecuting individuals who use a ship as a weapon or means of committing a terrorist attack, or transport by ship terrorists or cargo intended for use in connection with weapons of mass destruction programs.

The SUA Protocol also establishes a mechanism to facilitate the boarding in international waters of vessels suspected of engaging in these activities.

•  The new nonproliferation offenses strengthen the international legal basis to impede and prosecute the trafficking of WMD, their delivery systems and related materials on the high seas in commercial ships by requiring state parties to criminalize such transport. These transport offenses are subject to specific knowledge and intent requirements that ensure the protection of legitimate trade and innocent seafarers. The nonproliferation offenses are consistent with existing international nonproliferation treaties, and the SUA Protocol explicitly provides that the rights, obligations and responsibilities of States under international law – including the Nuclear Nonproliferation Treaty (NPT), the Chemical Weapons Convention (CWC), and the Biological Weapons Convention (BWC) – are not affected. 
  
  
• The new counterterrorism offenses criminalize the use of a ship or a fixed platform to intimidate a population or compel a Government or international organization, including when: (1) explosive, radioactive material or a biological, chemical or nuclear weapon is used against, on or discharged from a ship or fixed platform; (2) certain hazardous or noxious substances are discharged from a ship or fixed platform; or (3) any other use is made of a ship in a manner that may lead to or causes death, serious injury or damage. The SUA Protocol also criminalizes transport of fugitives who have committed an offense under the 12 UN terrorism conventions and protocols. 
  
  
• The ship boarding provisions establish a comprehensive set of procedures and protections designed to facilitate the boarding of a vessel that is suspected of being involved in a SUA offense. Consistent with existing international law and practice, SUA boardings can only be conducted with the express consent of the flag state. In addition to eliminating the need to create time-consuming ad hoc boarding arrangements when facing the immediacy of ongoing criminal activity, the ship boarding provisions provide robust safeguards that ensure the protection of innocent seafarers.