Global conventions on maritime crimes involving piratical acts.

AuthorRoach, J. Ashley
PositionEnd Game: An International Conference on Combating Maritime Piracy

This article examines how the 1979 International Convention Against the Taking of Hostages and the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) collectively fill many of the limitations in the provisions of the international treaties on piracy. Further, the 2005 SU A Protocol makes significant improvements to its predecessor. Used together, these instruments complement each other in the context of piracy and armed robbery at sea. However, implementation through domestic legislation is essential to enabling nations to suppress acts of piracy and armed robbery at sea.

CONTENTS I. INTRODUCTION A. Status of Conventions B. Criminal Jurisdiction at Sea Generally C. Obligations of State Parties II. OFFENSES UNDER ALL THREE CONVENTIONS UNDER ANALYSIS A. Offenses Under the Hostage-Taking Convention B. Offenses Under the 1988 SUA Convention C. Offenses Under the 2005 SUA Protocol 1. Counterterrorism offenses 2. Non-proliferation provisions 3. Transport of terrorist fugitives 4. Accessory offenses III. REQUIREMENT FOR TRANSNATIONAL ELEMENT IV. PERSONS WHO CAN COMMIT HOSTAGE-TAKING OR SUA OFFENSES V. INNOCENT PERSONS VI. SHIP BOARDING UNDER THE 2005 SUA PROTOCOL VII. ARREST AND PROSECUTION VIII. EXTRADITION IX. MUTUAL LEGAL ASSISTANCE X. HOW THESE CONVENTIONS DEAL WITH PIRACY XI. CONCLUSION I. INTRODUCTION

This article analyzes three U.N. counter-terrorism conventions as potential tools to combat piracy and other serious international maritime crimes. Rather than create new legal instruments to address maritime piracy, these three conventions provide mechanisms to deal with ship-hijacking, the taking of crew members hostage for ransom, and unlawful acts against the safety of maritime navigation. Considered in the context of the twenty participants of the Djibouti Code of Conduct ("DCOC"), (1) the three treaties are the 1979 International Convention Against the Taking of Hostages ("Hostage-Taking Convention"), (2) the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation ("1988 SUA Convention"), (3) and the Protocol of 2005 to the 1988 SUA Convention ("2005 SUA Protocol"). (4) In addition to these three conventions, several other treaties may provide support in combating piracy and other serious international maritime crimes. These treaties are referenced throughout the article, and they are included in Table 2. The DCOC was formulated in response to the escalating incidents of piracy off the coast of Somalia. It calls for, inter alia, the promotion of greater regional cooperation among the participants as a means more effectively to prevent, prosecute, and punish those who commit piratical acts at sea. (5) Given the commitments enshrined in the DCOC, the Djibouti participants should recognize the utility of these three conventions in achieving the goals set out therein. Therefore, after detailing the relevant provisions of the three treaties, this article proposes that the DCOC members should ratify these conventions and pass domestic legislation incorporating the substance of the treaties.

  1. Status of Conventions (6)

    The Hostage-Taking Convention currently has 173 parties, including nearly all of the participants in the DCOC except Eritrea, the Maldives, and Somalia. (7) Of the participants in the DCOC, Ethiopia, Jordan, Kenya, Maldives, Mauritius, Mozambique, Oman, South Africa, Sudan, UAE, and Tanzania have either existing domestic legislation dealing with the crime of hostage-taking, or they have enacted legislation implementing the Convention. (8)

    Similar in size, the 1988 SUA Convention currently has 163 parties, including all of the participants in the DCOC except Eritrea and Somalia. (9) Of the participants in the Djibouti Code of Conduct, Ethiopia, Jordan, Kenya, Maldives, Oman, South Africa, Sudan, UAE, Tanzania, and Yemen have either existing domestic legislation addressing maritime security, or they enacted legislation implementing the Convention. (10)

    The 2005 SUA Protocol is the smallest of the three conventions, with a current membership of 29 parties. None of the participants in the DCOC are party to the 2005 SUA Protocol except Saudi Arabia. (11)

    As discussed in the following sections, these three conventions can adequately provide a framework for combating piracy, which is the central goal of the DCOC. This brief status report suggests that there are several holes in the legal framework to diffuse the piracy situation off the coast of Somalia. The remainder of this article propounds that until all DCOC participants ratify and implement these important conventions, the DCOC objectives--namely, providing lasting solutions to maritime piracy--cannot be obtained. By building a complete foundation for legal accountability of pirates through these treaties, the DCOC countries would serve both their individual and collective self-interests.

  2. Criminal Jurisdiction at Sea Generally

    The existence and scope of criminal jurisdiction at sea is governed by the U.N. Convention on the Law of the Sea (UNCLOS). In UNCLOS, who may exercise criminal jurisdiction at sea depends on the maritime location. Seaward of the territorial sea, the flag state has exclusive jurisdiction over vessels flying its flag. (12) Except in cases of piracy or suspected statelessness, (13) no foreign state may board another nation's vessels or arrest persons on board without the vessel's permission, granted ad hoc or in advance by international agreement. This rule was not changed by the 2005 SUA Protocol.

    In the territorial sea, generally speaking, no foreign vessel may be boarded without the coastal state's permission. This is not always the case, as some coastal states also require the flag state's permission to board. (14) UNCLOS seeks to restrain the exercise of criminal jurisdiction by the coastal state on board a foreign ship in the territorial sea. Article 27 of UNCLOS allows such jurisdiction in only a few enumerated circumstances:

    1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:

      (a) if the consequences of the crime extend to the coastal State;

      (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;

      (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or

      (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

    2. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters.

    3. In the cases provided for in paragraphs 1 and 2, the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall facilitate contact between such agent or officer and the ship's crew. In cases of emergency this notification may be communicated while the measures are being taken.

    4. In considering whether or in what manner an arrest should be made, the local authorities shall have due regard to the interests of navigation.

    5. Except as provided in Part XII or with respect to violations of laws and regulations adopted in accordance with Part V, the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters. (15)

  3. Obligations of State Parties

    The Hostage-Taking Convention and the two SU A Conventions each obligate state parties to take a number of actions to carry out the international obligations the parties undertook by ratifying or acceding to those treaties.

    First, state parties are required to make the offenses enumerated in the convention crimes under their national law punishable by "appropriate penalties which take into account the grave nature of those offenses." (16) These offenses are described in greater detail in the following section of this article. Next, state parties are required to establish jurisdiction over the offender: (a) if the offense occurred within its territory, including its territorial sea; (b) if it is the flag state; (c) if the offender is the state party's national; or (d) if the offender is present in the state party's territory. (17)

    Additionally, state parties are required, if the alleged offender is present in the state party's territory, to take the individual into custody, and either seek to prosecute or extradite the individual. (18) Finally, state parties are required to provide the greatest measure of assistance in connection with the criminal proceedings. This may include supplying evidence in the case of the Hostage-Taking Convention or assistance in obtaining such evidence in the case of the SUA Convention, when the state parties have the information at their disposal. (19)

    1. OFFENSES UNDER ALL THREE CONVENTIONS UNDER ANALYSIS

  4. Offenses Under the Hostage-Taking Convention

    Article 1 of the Hostage-Taking Convention defines the offense of hostage-taking as follows:

    1. Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the "hostage") in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act...

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