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Amendments to the Convention for the Suppression of Unlawful Acts (SUA) Against the Safety of Maritime Navigation, 1988 and its related Protocol, which provide the legal basis for action to be taken against persons committing unlawful acts against the safety of navigation (and against fixed platforms located on the continental shelf), have been adopted by the Diplomatic Conference on the Revision of the SUA Treaties. The Conference, which met from 10 to 14 October 2005 at the London Headquarters of the International Maritime Organization (IMO), the United Nations specialised agency responsible for safety and security of shipping and the prevention of marine pollution by ships, adopted the amendments in the form of Protocols to the SUA treaties (the 2005 Protocols).
The principal purpose of the SUA treaties is to ensure that anyone committing unlawful acts against the safety of navigation will not be given shelter in any country but will either be prosecuted or extradited to a State where they will stand trial. The 2005 Protocols broaden the list of offences made unlawful under the treaties, such as to include the offence of using a ship itself in a manner that causes death or serious injury or damage and the transport of weapons or equipment that could be used for weapons of mass destruction. The 2005 SUA Protocol introduces provisions for the boarding of ships where there are reasonable grounds to suspect that the ship or a person on board the ship is, has been, or is about to be involved in, the commission of an offence under the Convention.
Speaking at the close of the Conference, IMO Secretary-General Efthimios E. Mitropoulos said, ‘The adoption of these Protocols marks the completion of the tasks set by the IMO Assembly in resolution A.924(22), aimed at ensuring that the international maritime community is properly equipped to counteract the gravest menace it has ever faced.’
He added, ‘The usual request for States to become Parties to any new IMO treaty is, in the case of the two Protocols adopted today, an urgent plea, the importance of which, beyond any doubt, is clearly understood by all. We are running a race against time in our efforts to prevent and suppress unlawful acts against the safety of maritime navigation and to bring to justice the perpetrators of the unlawful acts covered by the 2005 SUA Protocols. Early entry into force of the Protocols is therefore of the essence. And, while early deposits of instruments of ratification will send a strong message that the maritime community is eager and willing to protect the industry against acts of terrorism, on the other hand, any delays in so doing will send a wrong signal to all those who, at this time, are profiting from the present legal vacuum which the Protocols aim to fill.’
The SUA treaties complement the practical maritime security measures adopted by IMO – including SOLAS[1] chapter XI-2 (Special measures to enhance maritime security) and the International Ship and Port Facility Security (ISPS) Code, which entered into force in July 2004 – in that they regulate the legal situation in the unfortunate event that a terrorist attack should occur.
The two protocols were developed by IMO’s Legal Committee and are aimed at ensuring that the legal framework put in place by IMO continues to provide an adequate basis for the arrest, detention, extradition and punishment of terrorists acting against shipping or fixed platforms or when using ships to perpetrate acts of terrorism.
The amended Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation will enter into force 90 days after the date on which 12 States have either signed it without reservation as to ratification, acceptance or approval, or have deposited an instrument of ratification, acceptance, approval or accession with the Secretary-General. The amended Protocol requires ratification from three States which are also party to the SUA Convention but it cannot come into force unless the 2005 SUA Convention is already in force.
The 1988 SUA Convention has 126 Contracting States, representing 82.12 per cent of world merchant shipping tonnage. The 1988 SUA Protocol has 115 Contracting States, 76.71 per cent of world merchant shipping tonnage.
Work on the revision of the SUA treaties followed on from the adoption, in 2001, of IMO Assembly resolution A.924(22), which called for a review of the then existing measures and procedures to prevent acts of terrorism which threaten the security of passengers and crews and the safety of ships.
The Diplomatic Conference on the Revision of the SUA Treaties was attended by representatives of 74 States Parties to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 70 States Parties to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, one Associate Member of IMO; and observers from four intergovernmental organisations and nine non-governmental international organisations.
Among the unlawful acts covered by the SUA Convention in Article 3 are the seizure of ships by force; acts of violence against persons on board ships; and the placing of devices on board a ship which are likely to destroy or damage it.
The 2005 Protocol to the SUA Convention adds a new Article 3bis which states that a person commits an offence within the meaning of the Convention if that person unlawfully and intentionally:
• when the purpose of the act, by its nature or context, is to intimidate a population, or to compel a Government or an international organisation to do or to abstain from any act:
- uses against or on a ship or discharging from a ship any explosive, radioactive material or BCN (biological, chemical, nuclear) weapon in a manner that causes or is likely to cause death or serious injury or damage;
- discharges, from a ship, oil, liquefied natural gas, or other hazardous or noxious substance, in such quantity or concentration that causes or is likely to cause death or serious injury or damage;
- uses a ship in a manner that causes death or serious injury or damage;
• transports on board a ship any explosive or radioactive material, knowing that it is intended to be used to cause, or in a threat to cause, death or serious injury or damage for the purpose of intimidating a population, or compelling a Government or an international organisation to do or to abstain from doing any act;
• transports on board a ship any BCN weapon, knowing it to be a BCN weapon;
• any source material, special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material, knowing that it is intended to be used in a nuclear explosive activity or in any other nuclear activity not under safeguards pursuant to an IAEA comprehensive safeguards agreement; and
• transports on board a ship any equipment, materials or software or related technology that significantly contributes to the design, manufacture or delivery of a BCN weapon, with the intention that it will be used for such purpose.
The transportation of nuclear material is not considered an offence if such item or material is transported to or from the territory of, or is otherwise transported under the control of, a State Party to the Treaty on the Non Proliferation of Nuclear Weapons (Subject to conditions).
Under the new instrument, a person commits an offence within the meaning of the Convention if that person unlawfully and intentionally transports another person on board a ship knowing that the person has committed an act that constitutes an offence under the SUA Convention or an offence set forth in any treaty listed in the Annex. The Annex lists nine such treaties.
The new instrument also makes it an offence to unlawfully and intentionally injure or kill any person in connection with the commission of any of the offences in the Convention; to attempt to commit an offence; to participate as an accomplice; to organise or direct others to commit an offence; or to contribute to the commissioning of an offence.
A new Article requires Parties to take necessary measures to enable a legal entity (this could be a company or organisation, for example) to be made liable and to face sanctions when a person responsible for management of control of that legal entity has, that capacity, committed an offence under the Convention.
Article 8 of the SUA Convention covers the responsibilities and roles of the master of the ship, flag State and receiving State in delivering to the authorities of any State Party any person believed to have committed an offence under the Convention, including the furnishing of evidence pertaining to the alleged offence.
A new Article 8bis in the 2005 Protocol covers co-operation and procedures to be followed if a State Party desires to board a ship flying the flag of a State Party when the requesting Party has reasonable grounds to suspect that the ship or a person on board the ship is, has been, or is about to be involved in, the commission of an offence under the Convention.
The authorisation and cooperation of the flag State is required before such a boarding. A State Party may notify the IMO Secretary-General that it would allow authorisation to board and search a ship flying its flag, its cargo and persons on board if there is no response from the flag State within four hours. A State Party can also notify that it authorises a requesting Party to board and search the ship, its cargo and persons on board, and to question the persons on board to determine if an offence has been, or is about to be, committed.
The use of force is to be avoided except when necessary to ensure the safety of officials and persons on board, or where the officials are obstructed to the execution of authorised actions.
Article 8bis includes important safeguards when a State Party takes measures against a ship, including boarding. The safeguards include: not endangering the safety of life at sea; ensuring that all persons on board are treated in a manner which preserves human dignity and in keeping with human rights law; taking due account of safety and security of the ship and its cargo; ensuring that measures taken are environmentally sound; and taking reasonable efforts to avoid a ship being unduly detained or delayed.
Article 11 covers extradition procedures. A new Article 11bis states that none of the offences should be considered for the purposes of extradition as a political offence. New article 11ter states that the obligation to extradite or afford mutual legal assistance need not apply if the request for extradition is believed to have been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, political opinion or gender, or that compliance with the request would cause prejudice to that person’s position for any of these reasons.
Article 12 of the Convention requires States Parties to afford one another assistance in connection with criminal proceedings brought in respect of the offences. A new Article 12bis cover the conditions under which a person who is being detained or is serving a sentence in the territory of one State Party may be transferred to another State Party for purposes of identification, testimony or otherwise providing assistance in obtaining evidence for the investigation or prosecution of offences.
Amendments to the Articles in the Convention require acceptance by a requisite number of States. However, the Annex, which lists the treaties under which offences can be considered for the purpose of the SUA Convention, has a special amendment procedure.
The treaties listed are:
1. Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on 16 December 1970
2. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971
3. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973
4. International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979
5. Convention on the Physical Protection of Nuclear Material, done at Vienna on 26 October 1979
6. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988
7. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on 10 March 1988
8. International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997
9. International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999
The amendments to the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf reflect those in the 2005 Protocol to the SUA Convention.
New article 2bis broadens the range of offences included in the Protocol. A person commits an offence if that person unlawfully and intentionally, when the purpose of the Act, by its nature or context, is to intimidate a population, or to compel a Government or an international organisation to do or to abstain from doing any act, uses against or on a fixed platform or discharges from a fixed platform any explosive, radioactive material or BCN weapon in a manner that causes or is likely to cause death or serious injury or damage; or discharges from a fixed platform, oil, liquefied natural gas, or other hazardous or noxious substance, in such quantity or concentration, that it causes or is likely to cause death or serious injury or damage; or threatens, with or without a condition, as is provided for under national law, to commit an offence.
New article 2ter includes the offences of unlawfully and intentionally injuring or killing any person in connection with the commission of any of the offences; attempting to commit an offence; participating as an accomplice; organising or directing others to commit an offence.
Australia is committed to developing a network of Marine Protected Areas (MPAs) in Australian waters as part of Australia’s conservation effort, the Minister for the Environment and Heritage, Senator Ian Campbell, told a recent conference in Geelong, Victoria. Addressing more than 700 delegates at the first International Marine Protected Areas Congress, Senator Campbell said a network of MPAs representing ocean ecosystems across the nation’s 14 million square kilometres of ocean was a crucial part of Australia’s commitment to a healthy and sustainable marine environment for future generations.
The Australian Government is consulting marine stakeholders and working with the states and the Northern Territory, to put in place a National Representative System of MPAs by 2012, reinforcing Australia’s world-leading reputation in marine conservation. These Marine Protected Areas will protect areas within Australia’s ocean jurisdiction that represent important marine habitats, from tropical to temperate waters, from deep ocean floor to the continental shelf.
‘It’s fitting that the first ever international conference on Marine Protected Areas is to be held in Australia, because we are leading the world in marine management,’ Senator Campbell said. ‘I’m proud that we have some of the best experts and scientists working with the Australian Government, doing a terrific job in protecting and conserving our oceans.’
Senator Campbell said he was delighted to accept a ‘Gift to the Earth’ award from the Worldwide Fund for Nature (WWF) on behalf of the Australian Government, in recognition of the Government’s efforts in designing and implementing the Great Barrier Reef Marine Park zoning plan at the conference.
The Minister said the Government’s recent decision to bring Australia’s marine planning program under federal environment law would bring benefits to MPA development by providing a more comprehensive information base for this important conservation work. It would also provide certainty for industry and other marine resource users about their statutory obligations.
In his address to the conference, Senator Campbell called for international support for improvement to marine conservation in international waters – the so-called high seas. ‘MPAs are the best way to ensure high seas biodiversity conservation and we will continue to pursue this goal internationally,’ Senator Campbell said. He added that another boost to MPA development would come from the completion of a major marine science data gathering exercise – the National Marine Bioregionalisation – released today, which would provide better information upon which to make management decisions.
Australia first committed to the establishment of a system of protected areas at the Convention on Biological Diversity in Rio de Janeiro in 1992. Australia’s definition of a marine protected area is ‘an area of land and/or sea especially dedicated to the protection and maintenance of biological diversity and of natural and associated cultural resources, and managed through legal or other effective means.’
This definition was originally developed by the 1994 World Conservation Union’s (IUCN) and has been adopted by Australian governments. The key points of this definition are that firstly, the primary objective is conservation of biological diversity; and secondly, that the protection is effective. In the case of public land, effective management means that the area is protected by an Act of Parliament, whereas in the case of privately owned or indigenous land, protection is ensured by a covenant or conservation agreement.
Depending on where they are located, marine protected areas in Australian waters may be managed by State, Territory or Commonwealth government agencies, or a combination of government agencies. In general, the Commonwealth Government manages our oceans from the State or Territory limit to the edge of our marine jurisdiction at the limit of the Australian Exclusive Economic Zone (EEZ) some 200 nautical miles out to sea. One exception is the Great Barrier Reef Marine Park, which extends seaward from the low water mark.
The United Nations Convention on the Law of the Sea establishes Australia’s rights and responsibilities over a vast area of the ocean — some 16 million square kilometres. Most of this area is the sole responsibility of the Commonwealth Government. Unless otherwise determined by legislation the State and Northern Territory governments have primary responsibility for marine environments up to three nautical miles out from the territorial sea baseline. Along most of our coastline, the territorial sea baseline is the low water mark, but in some areas is up to 60 nautical miles offshore.
As a result, the Commonwealth, States and Northern Territory governments exercise separate jurisdictions over the marine environment. Marine protected areas can be declared under Commonwealth, State or Northern Territory legislation in seas within each government’s jurisdiction. Each government uses its own policies and laws to establish and manage marine protected areas. In addition, marine protected areas may be managed through a combination of fisheries and parks management laws administered by separate government agencies.
All governments coordinate their efforts on national and cross-jurisdictional issues relevant to marine protected areas. For example, through cooperative arrangements, a single marine protected area can combine adjacent State or Territory waters and Commonwealth waters. The Great Australian Bight Marine Park, Ningaloo Marine Park and the Solitary Islands Marine Reserve, which all include State and Commonwealth waters, are examples of successful cross-jurisdictional management.
As a developed nation with a maritime area larger than the continent itself, Australia has a special responsibility for the conservation and management of its marine and coastal environments and their resources. Society expects that natural areas will be protected.
Our vast ocean area contains one of the greatest arrays of marine biodiversity on earth. Australia’s marine environments contain more than 4,000 fish varieties and tens of thousands of species of invertebrates, plants and micro-organisms. From the spectacular coral reefs of Australia’s tropical north to the majestic kelp forests of the temperate south, the number of newly discovered species tends to increase with each survey. Currently scientists estimate about 80% of our southern marine species occur nowhere else in the world.
Australia’s unique marine environments contain
• the world’s largest areas and highest species diversity of tropical and temperate seagrasses
• some of the largest areas of coral reefs
• the highest diversity of mangrove species
• exceptional levels of biodiversity for a wide range of marine invertebrates
• high levels of endemism in our temperate and sub-Antarctic waters.
However these environments are under increasing pressure from threats such as
• unsustainable fishing
• introduced marine pests and diseases
• unsustainable tourism and recreation
• climate change
• pollution and sedimentation
• some forms of mining.
These events contribute to impacts such as decreased abundance of target organisms, habitat loss, ecosystem degradation and a sense of aesthetic and spiritual loss of wilderness value.
Marine protected areas are not the solution for every threat to the marine environment. Individually, they cannot reduce the impact of threats like climate change. Often when a specific, manageable threat can be identified there is an alternative, more focused way to respond.
However most marine protected areas are not established in order to respond to a specific threat, but to protect and preserve representative samples of marine biodiversity for the benefit of future generations. Individual marine protected areas are highly effective where there is a need to manage multiple, ongoing pressures on the ecology of a defined area. In addition, the establishment of representative systems of protected areas is widely regarded, both nationally and internationally, as one of the most efficient mechanisms for protecting biodiversity and ensuring the use of natural resources is sustainable.
More information on Australia’s MPA development program can be found at: http://www.deh.gov. au/coasts/mpa/index.html
[1] International Convention for the Safety of Life at Sea (SOLAS), IMO Briefing 42, 17 October 2005.
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