The Convention For The Suppression of Unlawful Acts Against The Safety of Maritime Navigation As A Key Element of International Law's Framework Against Terrorism

IMO
INTERNATIONAL MARITIME LAW INSTITUTE

Established under the auspices of the International Maritime Organization
A specialized agency of the United Nations
The Convention For The Suppression Of Unlawful Acts Against

The Safety Of Maritime Navigation As A Key Element Of
International Law’s Framework Against Terrorism
A Dissertation submitted in partial fulfillment of the requirements for the

award of the Degree of Master of Laws (LL.M.) at the IMO International
Maritime Law Institute
Submitted By:
Lesther Antonio Ortega Lemus
(Guatemala)
Supervisor:
Mr. Ruben Maceda
Academic Year 2007/2008

I dedicate this work to my mother
Mayling Patricia
Table of Contents
Page
Introduction: International Peace and Security Breached ii
Chapter I: International Law as an Answer to Stop Terrorism 1

1.1 First attempts 2
1.2 The “new wave”: aerial hijacking and hostage-taking 2
1.3 Nuclear material, explosives and bombings 5
1.4 Latest Trends 6
1.5 The global approach revisited 7
1.6 The UN Resolutions 8
1.6.1 The UNGA 8
1.6.2 The UNSC 9
Chapter II: The Convention for the Suppression of Unlawful Acts

10
against the Safety of Maritime Navigation
2.1 Historical background of SUA 1988 11
2.2 CSUA.1988 and PSUA.1988 features 15
2.3 Background to SUA 2005 19
2.4 SUA 2005 instruments features 24
Chapter III: International Framework against Terrorism and SUA:

29
working seamlessly?
3.1 Elements to consider 30
3.2 The Offences 31
3.3 Jurisdiction 33
3.4 Cooperation and prosecution measures 34
3.5 Extradition, aut dedere aut iudicare and the prohibition to use
34
the political offence exception
Conclusions 36
Annex 1 39
Bibliography 41
i
Introduction
International Peace and Security Breached
Homo homini lupus… 1 bellum omnium contra omnes… 2 These two famous
phrases described the nature of humankind towards itself, and can be
applied perfectly to describe the horrors of war.
Conscious of the aforesaid, due to many historical and sociological factors, a

movement away from the latter and towards a State of perpetual peace has
always been present. It’s been described as a superior State of humanity by
many celebrated authors like, inter alia, Kant, Saint Simon, and Rousseau.
Thus, history witnessed how humanity struggled in wars, with very limited
periods of relative peace among nations (Pax Romana, etc.). The arrival of
the 20th century brought the most serious efforts until then to limit the recourse
of war and hostilities among civilized nations. Those efforts were channeled
through international law.
An example of this argument can be found in the First and Second Peace
Conferences held at The Hague, Netherlands in 1899 and 1907 and their most
significant contribution: the setting up of the Permanent Court of Arbitration
(PCA). However, the treaties talk about “…obviating, as far as possible,
recourse to force in the relations between States…” 3, not as the Kellogg-
Briand Pact intended for “condemn recourse to war… …renunciation of war
as an instrument of national policy” 4, and certainly not proscription of it, as
the Charter of the United Nations (UNCh) does: “All Members shall refrain in
their international relations from the threat or use of force…” 5 Jus ad Bellum
and Jus in Bellum were also developed as legal concepts and codified by the
Geneva Conventions 6, giving birth to the modern conventional International
Humanitarian Law.
Today, the recourse to force among nations is regulated by the UNCh,

especially by Articles 1,2, 24 and Chapter VII as a whole, giving global-wide
1 Plautus. Asinaria.
2 Hobbes, Thomas. De Cive. Ch.1_Sec.2.
3 http://www.pca-cpa.org/upload/files/1899ENG.pdf Convention for the Pacific Settlement of International Disputes.
Done at The Hague 29 July 1899, entered into force 4 September 1900.
4 http://www.yale.edu/lawweb/avalon/imt/kbpact.htm Done in Paris 27 August 1928, proclaimed into force 24 July
1929.
5 http://www.un.org/aboutun/charter/index.html Charter of the United Nations. Concluded in San Francisco 26 June
1945, entered into force 24 October 1945.

6 Full texts of the 4 original Conventions, and the subsequent protocols available at:
http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions
ii
powers to the United Nations Security Council (UNSC hereon), while
preserving the individual right of self-defense in Article 51.
Considering all the aforesaid, it is clear that violence among States is

forbidden in principle and regulated if happens. Several problems arise
though: what happens if a State is attacked, not by another State, but by
individuals or groups of individuals? To whom might the victim direct its self-
defense reaction? What happens if an International Organization, through its
representatives, is the victim of the attacks? What if it’s only a threat of an
attack? What if the threat or attack is used to compel the above to do or
abstain to do something?
While traditionally International Law recognized as its sole subjects States, and
more recently International Organizations and other groups (only indirectly
regarding individuals), international relations, peace and security have been
affected seriously by other actors, regardless of not being recognized in this
plain.
Being conscious that the scope of the scenarios proposed at supra is wide,
this paper will focus only on one: terrorism. The term still resists an
internationally-accepted definition and has wandered in the political arena
ambiguously qualified: “one man’s terrorist is another man’s freedom-
fighter” 7; therefore the following will be used as mere guidance for the
reader, being “the threat or use of violence with the intent of causing fear in
a target group, in order to achieve political objectives.” 8 UNSC gave itself a
“working definition” 9 which characterizes terrorism as “…criminal acts,
including against civilians, committed with the intent to cause death or
serious bodily injury, or taking of hostages, with the purpose to provoke a state
of terror in the general public or in a group of persons or particular persons,
intimidate a population or compel a government or an international
organization to do or to abstain from doing any act, which constitute
offences within the scope of an as defined in the international conventions
and protocols relating to terrorism…” 10
Even when the UNCh in its Chapter VII does not define what it means with
“threats to the peace”, and at one time was considered to be limited to
threats of military force emanating from a State 11, it is now clear (some still
doubt if it should apply to all acts of terrorism 12) that international terrorism
7 Jenkins, Brian Defense Against Terrorism Political Science Quarterly, Vol.101 No.5 (1986)P.779
8 Burchill, Richard et al International Conflict and Security Law. P.133-134
9 Saul, Ben Defining Terrorism in International Law P.9
10 UN Document S/RES/1566 (2004)
11 Greenwood, Christopher International Law and the ‘War against Terrorism’ International Affairs, Vol.78 No.2 (2002)
P.306
12 Saul. Op.Cit. P.47
iii
acts are equated to threats to the peace, as shown in many of UNSC
resolutions related to terrorism 13.
As a breach of international peace and security with growing effects,
appropriate answers must be available in order to suppress it. In our civilized
time, that answer should only be searched through international law.
Thus, attention will be placed on international community’s fight against

terrorism through international law. Notwithstanding that an international
general regime is until today absent, an atomized one has flourished since
1960, crystallized by the adoption of several international instruments that
address specific facets of international terrorism, including that held at sea or
against navigation.
Although constructed in a sector-approach way, collectively they constitute

the only international framework against terrorism that the international
community can count on14. Acting outside that framework would undermine
the bases of international law and international relations.
Ultimately, the hypothesis that the author will try to demonstrate is that in the
light of that fight against terrorism, the International Maritime Organization
(IMO hereon), by means of the Convention for the Suppression of Unlawful
Acts against the Safety of Maritime Navigation and the Protocol for the
Suppression of Unlawful Acts against the Safety of fixed Platforms Located on
the Continental Shelf, and their 2005 Protocols, namely the Protocol of 2005 to
the Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation and the Protocol of 2005 to the Protocol for the
Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on
the Continental Shelf has collaborated to tighten that framework and expand
it, making the above instruments fundamental pieces of the antiterrorism
network of offences, jurisdictions and prosecution mechanisms.
13 Inter alia, Resolutions 748 (1992), 883 (1993), 1044 (1996), 1189 (1998), 1267, 1269 and 1333(1999), 1368, 1373 and
1377 (2001), 1390 (2002),1455 (2003), 1526 and 1535 (2004), 1611 1617 1618 1624 and 1636 (2005)
14 The full list of international instruments against terrorism available at http://untreaty.un.org/English/Terrorism.asp
iv
1
1. International Law as an answer to stop terrorism
1.1 First attempts
Terrorism is not a new phenomenon. Neglecting references to Sicarrii Zealots, Al-

Assasins and Guy Fawkes15, it could be said that it first appeared in the 19th century
with attempted and accomplished acts against heads of state and their families 16
and with anarchists acts which were regarded as “the enemy of all Governments” 17
The attempted assassination of Napoleon III in 1856 gave way for the first exclusion of
an act of its kind as a political offence: the so-called “Belgian clause”. Thus, it was
through the construction of bilateral or multilateral extradition treaties that the first
acts of terrorism were addressed. 18
The assassination of King Alexander of Yugoslavia and Louis Barthou, Minister of the
French Republic at Marseilles on 9 October 1934 provoked the reaction of the
Council of the League of Nations which passes a resolution stating that “the rules of
international law concerning the repression of terrorist activity are not at present
sufficiently precise to guarantee efficiently international co-operation in this matter”
and decided for the preparation of a draft convention on the repression of
conspiracies or crimes committed with a political and terrorist purpose. 19 The latter
became the Convention of 1937 for the Prevention and Punishment of Terrorism,
which was signed by 24 States but received one ratification only (India) and never
came into force 20. It was the first incursion of coordinated international law against
terrorism.
1.2 The “new wave”: aerial hijacking and hostage-taking
Contemporary terrorism21 is a consequence of political conditions and the

technological advance experimented in the late 1960’s: guerrilla wars sponsored by
the superpowers as an indirect confrontation, Mao’s doctrine on maximizing the
perception of violence regardless of the actual physical damage inflicted22, World
War II concept of total war rendering every human aspect a legitimate target, mixed
with modern technology, telecommunications and unlimited transport possibilities.
15 http://www.terrorism-research.com/evolution/
16 McWhinney, Edward The September 11 Terrorist Attacks and the Invasion of Iraq in contemporary International Law
P.19
17 Dugard, John International Terrorism: Problems of Definition International Affairs Vol.50 No.1 (1974) P.68
18 Ibid. P.67
19 Franck, Thomas & Bert Lockwood Jr. Preliminary Thoughts towards an International Convention on Terrorism AJIL
Vol.68 No.1 (1974) P.69

20 Dugard. Loc cit.
21 For a comprehensive chronologic summary of terrorist attacks see http://www.state.gov/r/pa/ho/pubs/fs/5902.htm
22 Jenkins Loc cit P.776
2
The next wave of terrorism appeared in the form of aerial hijacking as means for
hostage-taking to compel for political gain or seek for financial ransoms. Terrorists
took advantage of the lack of adequate security precautions in advance or during
flights, its mobility and of the lapse where the plane is isolated in air.
Statistics show that between 1961 and 1972 there were 343 world-wide reports of
successful and unsuccessful hijackings. The trends gathered also showed that
although it began as “aerial piracy” (with regards of the “private-ends” requirement)
it rapidly turned into an efficient political tool for guerrillas and terrorist groups. 23
Advantageous was the fact that the air industry has been a global and sufficiently
regulated one, with efficient of cooperation among the stakeholders and
organizations (ICAO and IATA); ultimately, these conditions permitted to adopt a
pragmatic, functional solution.
Three international instruments were drafted and entered into force in a decade-
span to tackle the different aspects of aerial terrorism 24. Later on the last one was
supplemented by a Protocol:
With the adoption of the fourth instrument, almost all of the possible scenarios of
aerial terrorism were covered by international law solutions, providing for the three
elements that the author considers essential in the antiterrorist framework: a defined
scope of application, acts classified as offences, bases for exercising jurisdiction and
mechanisms for prosecution.
23 Evans, Alona Aircraft Hijacking: What is being done AJIL Vol.67 No.4 (1973) P.641-671
24 Dugard. Loc cit. P.71
3
But the incursion of terrorism into airspace brought more than one problem: aware of
the world-wide mobility that jet travelling provides terror could be taken to and strike
at any continent25.
Following the above, hostage-taking came to the scene. Directed to high-profiled

persons or to any vulnerable collectivity, hostage-taking had examples as Munich,
Bangkok and Khartoum. Embassies and diplomats were among the preferred
targets for terrorists. This gave way to the adoption of two instruments under the
auspices of the UN:
Of relevance, and predating the above, the OAS also produced an instrument
aimed at the terrorization of diplomats, which was actually taken into account by
the ILC when preparing the draft convention of 1973. Although of a regional origin,
by its Article 9 the Convention grants participation to “any other State that is a
member of the United Nations or any of its specialized agencies, or any State that is
a party to the Statute of the International Court of Justice, or any other State that
may be invited by the General Assembly of the Organization of American States to
sign it” 26 ending up being a global-reach instrument:
25 Jenkins. Loc cit

26 http://www.oas.org/juridico/english/treaties/a-49.html
4
1.3 Nuclear material, explosives and bombings
Meanwhile the instruments listed until know were direct reaction to concrete attacks,
acknowledging the great risk to proceed in the same way with other possible types
of terrorism, the international community decided not to take chances with nuclear-
related acts, and concluded an instrument related to the protection of nuclear
facilities, and materials 27:
Acting again on a reactive manner, after the 1985 Achille Lauro incident, the two
SUA instruments, dealing with maritime terrorism, were concluded under the auspices
of IMO. For being the central point of this paper, the next chapter will discuss their
origin, features and evolution through the 2005 Protocols:
Until this point in time, the international regime against aerial hijacking was working
fine. The incident of the 1988 Pan Am 103 flight brought to light that terrorism had to
be addressed not only regarding the possible targets but also by its means.
27 http://www.iaea.org/Publications/Documents/Conventions/cppnm.html
5
Explosives being the most relevant then and the weapon of choice for executing the
aforesaid attack, two new instruments were devised in order to tackle this issue:
The latter has been used in recent dates when drafting new instruments related to
terrorism 28.
1.4 Latest trends
The international community managed to cover the aforesaid areas in a span of

almost 40 years, since the new wave of terrorism made its entrance to the
international plane.
Although already treated by a tenth of international instruments, terrorism is far from

ending. This was learnt the hard way with the 11 September 2001 events, together
with the recent USS Cole, Limburg, Kenya and Nairobi Embassies attacks.
It has been obvious that from the continuance of the attacks regardless of the
number of conventions available, still some doors have not been closed for terrorists.
Recognizing that terrorists needed substantial economical means in order to deliver

their every-time-more-sophisticated attacks, to buy weapons, pay for travel and life
undercover, training and intelligence, the next convention to be concluded aimed
at the financing of terrorism:
IMO Work Undertaken by the IMO in an Effort to Prevent and Combat Terrorism Fifth Special Meeting on the
28
Counter-terrorism Committee with International, Regional and Subregional Organizations, 29-31 October 2007, Kenya
6
Following a draft document presented by the Russian Federation, after 7 years of
debates, a new convention regarding nuclear terrorism has been agreed. Far from
overlapping with the previous convention related to the protection of nuclear
materials, this new-comer aims to suppress and prosecute terrorist attacks using
nuclear devises or material as means of violence and terror:
If finally ratified by sufficient States (22), the latter will become the 13th anti-terrorism
international instrument of the, until-now, sectoral approach29 framework.
1.5 The global approach revisited
As pointed out in herein, the only concluded international instrument addressing

terrorism globally (at least nominally) has been the 1937 attempt, which as
underscored at supra, failed.
The world has been tempted a few more times to take such approach.
One of those examples lays on the ILC 1954 Draft Code of Offences against Peace
and Security of Mankind (Part I) where terrorism was expressly linked to the concept
of aggression. The great ambiguity over the latter finally provoked the whole project
to be postponed. A new attempt was made between 1982 and 1996 30 which lead
to the establishment of the International Criminal Court (ICC).
Another example of a global-reach attempt is the Draft Convention on the

Prevention and Punishment of International Terrorism31, presented by the USA
delegation in 1972 to the 6th Committee of the UNGA that, although didn’t adopted
it, gave birth to Resolution 3034 (XXVII) 32 of 18 December 1972 which established an
Ad Hoc Committee on International Terrorism of 35 to study the problem and the
views of the different observations that State-delegations produced therein.
Later on, but this time on a regional basis, the USA American Bar Association
produced the so-called “Model American Convention on the Prevention and
Punishment of Serious Forms of Violence” which was modeled after the European
29 http://www.un.org/News/briefings/docs/2005/Legal_Counsel_Briefing_050412.doc.htm
30 http://untreaty.un.org/ilc/guide/7_4.htm
31 UN Document A/C.6/L.850
32 UN Document A/RES/3034(XXVII)
7
Convention on the Suppression of Terrorism 33 of 1977. The OAS would not adopt
another instrument regarding terrorism until the 2002 Inter-American Convention
against Terrorism34.
The latest of those global efforts, the so-called Comprehensive Convention on

International Terrorism (CCIT), which draft was first submitted by India in 1996 35 to the
6th Committee, and was later on circulated as an informal revised draft 36. It has
been under discussion since 2000 at the Ad Hoc Committee created under UNGA
Resolution 51/210 of 17 December 1996 37.
1.6 The UN Resolutions
When referring to the relevance of the UN resolutions, both UNGA and UNSC, the
author must first remind the reader that the majority of the above quoted antiterrorist
international instruments are product of either the UNGA or one of the UN Agencies
or the IAEA, latter which works under the UN system umbrella. Therefore the
importance of the resolutions, declarations, drafts, working papers and other
documents that have been circulated or emanated from any of its organs,
agencies, related organizations, committees, departments, bureaus, etc, cannot be
disregarded at all. Nevertheless, the author has to leave them out of this treatment
due to spatial limits and methodology, therefore only a very superficial remark will be
done in this regard.
1.6.1 UNGA
The UNGA produced some early resolutions regarding terrorism. Those are
Resolutions 3034 (XXVII) (quoted at supra), 31/102 of 15 December 1976 , 32/147 of
38
16 December 1977 39, 34/145 of 17 December 1979 40, 36/109 41 of 10 December 1981,
38/130 of 19 December 1983 42. One of great relevance for this paper is Resolution
40/61 of 9 December 1985, which was produced in the wake of the Achille Lauro
incident.
33 Signed 27 January 1977, entered into force 4 August 1978

34 http://www.oas.org/juridico/english/treaties/a-66.html Adopted 3 June 2002 Bridgetown, Barbados, entered into
force 10 July 2003.
35 UN Document A/C.6/51/6 of 11 November 1996
36 UN Document A/C.6/55/1 of 28 August 2000
37 UN Document A/RES/51/210 available at http://daccessdds.un.org/doc/UNDOC/GEN/N97/761/65/PDF/
N9776165.pdf?OpenElement
38 UN Document A/RES/31/102 http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/302/85/IMG/NR030285.pdf?
OpenElement
39 UN Document A/RES/32/147
8
Notwithstanding, the most important resolution with regards of terrorism, for being a
landmark in the matter is UNGA Resolution 49/60 of 9 December 1994 43, especially for
the Annex therein: Declaration on Measures to Eliminate International Terrorism.
Later on another declaration was made in order to supplement the aforesaid, by

means of annexing it to UNGA Resolution 51/210 of 17 December 1996 44. An Ad Hoc
Committee was established under the latter and its work has extended until today.
To it the drafting of the latest antiterrorist conventions is owed. The discussion of the
CCIT is currently being held by it as well.
By means of such declarations, some basic principles of general acceptance have

been laid to build upon them. As it has been argued above, the ideological
problem of terrorism casts a shadow over the inhuman atrocities that are committed,
regardless of any possible justification given.
1.6.2 UNSC
Of historical importance is Resolution 579(1985) for its relationship with SUA’s birth,
and 1269 (1999) since the latter established the basic items that the UNSC resolutions
would set forth in future resolutions.
The two crucial resolutions that the UNSC has issued regarding terrorism have been
Resolutions 1368 (2001) and 1373 (2001), both in the wake of the 9/11 terrorist attacks.
Through them, the UNSC changed its language towards terrorism as a threat to
international peace and security and imposed serious and extensive obligations on
States regarding terrorism, its financing, movement of terrorists, etc., as well as the
reiteration of becoming part of the universal instruments against terrorism.
9
10
2. The Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation
2.1. Historical Background of SUA 1988
It is well established that the Convention for the Suppression of Unlawful Acts against
the Safety of Maritime Navigation 45 (CSUA.1988 hereon) and the Protocol for the
Suppression of Unlawful Acts against the Safety of fixed Platforms Located on the
Continental Shelf 46 (PSUA.1988 hereon), both adopted by the diplomatic conference
held in Rome 10 March 1988, were born as the aftermath of the Achille Lauro
incident, which took place on 7 October 1985, when the Italian-flagged cruise ship
was taken over by members of Palestine Liberation Front (PLF), that boarded at the
port of Genoa, posing as tourists, and held as hostages both crewmembers and
passengers, threatening to kill them unless Israel liberated 50 Palestinian prisoners; if a
rescue mission was attempted, they said, the ship would’ve been exploded. The
seizers later on killed Leon Klinghoffer, a handicapped-Jew citizen of the USA 47.
Different authors and politicians debated on whether the event could be legally
classified as a piracy or not48. Those in favor of such qualification held that any act
of unauthorized violence at the high seas was piracy 49, regardless of the absence of
the animus furandi 50. Those against argued that for an act to be legally labeled as
piracy it must comply with the elements established either in international customary
or conventional law, and as far as those two stood in those days, it was required that
the attack came from a second vessel or aircraft (the so-called ‘two-vessels’
requirement), that the attack was held in the high seas (the high seas requirement),
and that private ends were the fuel of the attack (the ‘private-ends’ requirement).
The Achille Lauro incident neither held the ‘two-vessels’ requirement nor the ‘private-
ends’ one. Even the high seas requirement could be contested to some extent 51.
By that time, the world was facing a revival of piracy, which not so long before, was
considered as an old-fashioned and eradicated criminal activity. Nevertheless, it
was still held as the clearest example in customary international law of a crime over
which universal jurisdiction was generally accepted, being the pirate hostis humani
generis.
45 United Nations Treaty Series Vol.1678 P.222

46 Ibid. P.304
47 Halberstam, Malvina. Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime
Safety. AJIL Vol.82 Apr.1988 P.269

48 Ibid. P.270
49 Jesus, José Luis. Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects. IJMCL Vol.18
Sept.2003 P.378
50 Ibid. P.377
51 It seems that it was never clear enough if the events started in Egyptian territorial waters or not, but certainly, the
ship was later on held in the high seas. Cfr. Halberstam. Op.Cit. P.269 footnote 1
11
International law regarding piracy was contained both in conventional law: in the
Geneva 1958 Convention on the High Seas 52 (GCHS.1958 hereon) and the adopted-
but-not-yet-in-force United Nations Convention on the Law of the Sea of 1982 53
(UNCLOS hereon) as well as in customary law 54. Since the latter was described as
not unequivocal and UNCLOS was not yet in force, the main tools to tackle events of
piracy were the provisions of the former, contained in Articles 14-22. Article 15
envisaged piratical acts as:
(1) Any illegal acts of violence, detention or any act of depredation, committed for
private ends by the crew or the passengers of a private ship or a private aircraft,
and directed:
(a) On the high seas, against another ship or aircraft, or against persons or
property on board such ship or aircraft;
(b) Against a ship, aircraft, persons or property in a place outside the

jurisdiction of any State;
(2) Any act of voluntary participation in the operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or aircraft;
(3) Any act of inciting or of intentionally facilitating an act described in

subparagraph 1 or subparagraph 2 of this article.
It must be stated that UNCLOS regime against piracy was absorbed in toto from the
GCHS.1958 articles and therefore under its provisions nothing at all would’ve been
different. The image at infra explains the way that Article 15.1 of GCHS.1958 and
Article 101 of UNCLOS characterize piracy:
52 United Nations Treaty Series Vol.450 P.11 Done at Geneva 29 April 1958. Entered into force on 30 September 1962.
53 United Nations document A/Conf.62/122. Concluded in Jamaica 10 December 1982. Entered into force on 16
November 1994.
54 See Harvard Research in International Law, Comment to the Draft Convention on Piracy, 26 AJIL Supp. 750 (1932)
12
There were no more generally-accepted conventional rules at international level
that could be used, and although the events of the Achille Lauro were typified by
some states as piracy 55, the insufficiency of the norms was self-evident.
In this respect, the UN Security Council President made a statement on the 2628th
meeting on 9 October 1985 in which, welcoming the news of the release of the
hostages of the Achille Lauro “…resolutely condemn this unjustifiable and criminal
hijacking as well as other acts of terrorism, including hostage-taking”. The text that
has been highlighted shows that the act was qualified by the UN Security Council
(UNSC hereon) as an act of terrorism, as a criminal hijacking but not as piracy.
At IMO’s 14th General Assembly, the issue of putting together measures to prevent
and suppress unlawful acts against the safety of ships, their crews and passengers
was raised by the USA delegation and it was included as item 10 (b) in the agenda.
Resolution A.584 (14) was adopted under the title “Measures to prevent unlawful acts
which threaten the safety of ships and the security of their passengers and crew” 56,
which called upon Governments, port authorities and administrations, ship owners,
operators, masters and crews to review and strengthen port and onboard security.
The issue was directed to the Maritime Safety Committee (MSC hereon) which was
mandated to develop detailed and practical technical measures to be employed
to ensure the security of all onboard ships, taking into account the work of the
International Civil Aviation Organization (ICAO hereon). Finally, the resolution
mandated the issuance of a circular that contained “information on the measures
developed by the Committee to Governments, organizations concerned and
interested parties for their consideration and adoption” 57.
By 9 December 1985, in its 108th plenary meeting, UN General Assembly (UNGA

hereon)issued Resolution 40/61 Measures to prevent international terrorism which
endangers or takes innocent human lives or jeopardizes fundamental freedoms and
study of the underlying causes of those forms of terrorism and acts of violence which
lie in misery, frustration, grievance and despair and which cause some people to
sacrifice human lives, including their own, in an attempt to effect radical changes, in
55 The USA characterized the event as piracy. The Justice Department obtained arrest warrants with charges of
hostage-taking, conspiracy and ‘piracy on the high seas’. See Halberstam, Op. Cit. P.270
56 Resolution A.584 (14) November 20 1985. International Maritime Organization, Assembly Resolutions and Other
Decisions; Fourteenth Session 11-22 November 1985. P. 152

57 Ibid.
13
which requested “…the International Maritime Organization to study the problem of
terrorism aboard or against ships with a view to make recommendations on
appropriate measures”.
The UNSC took a step further and issued its Resolution 579 (1985) on 18 December
1985, which urged “…the further development of international cooperation among
States in devising and adopting effective measures which are in accordance with
the rules of international law to facilitate the prevention, prosecution and
punishment of all acts of hostage-taking and abduction as manifestations of
international terrorism”.
Italy, the flag-state of the Achille Lauro called the attention of the international
community on what it considered a lacuna in the legal framework against terrorism,
and pointed to the necessity of adopting an international instrument on maritime
terrorism 58.
Under the initiative of its legal advisor, Professor Ferrari Bravo, and joined by Austria
and Egypt, proposed a draft convention on maritime terrorism to IMO, modeled on
existing conventions developed for the security of civil aviation: the Hague
Convention for the Suppression of Unlawful Seizure of Aircraft and the Montreal
Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,
as well as the more general United Nations International Convention Against the
Taking of Hostages.
The issue was addressed by IMO’s Council on November 1986 and agreed
unanimously that it required urgent attention by IMO, and for the purpose of
acceleration, it referred the latter to an Ad Hoc Preparatory Committee open to all
States, instead of sending it to the Legal Committee, with the “…mandate to
prepare, on a priority basis, a Draft Convention for the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation” using as basis the draft presented by Italy,
Austria and Egypt59.
The aforesaid Preparatory Committee met twice, first in London, in March 1987, and
later in Rome in May of the same year. After the latter, the Committee agreed on a
58 Jesus. Op. Cit. P.388

59 Halberstam. Op. Cit. P.292
14
final draft, leaving some issues of importance for a diplomatic conference to agree
upon them. The referred diplomatic conference was decided by IMO’s Council at its
58th session in June 1987 and endorsed by the Assembly at its 15th regular session by
Resolution A.633 (15) of 20 November 1987 60.
The Government of Italy forwarded an invitation to host the said conference and
once approved by the Council and endorsed by the Assembly, the Conference was
held at the Headquarters of the Food and Agriculture Organization of the UN (FAO),
in Rome, from 1 March to 10 March 1988.
The conference was attended by delegates of 76 States, observers of six more States
and observers of different States, Organizations and NGO’s. The conference elected
as its president Professor Ferrari Bravo, head of Italy’s delegation 61.
The conference adopted the text of both CSUA.1988 and PSUA.1988 at 10 March
1988. Both instruments came into force by 1 March 1992.
2.2. CSUA.1988 and PSUA.1988 features
It must be stated that both instruments are not constructed to be preventive in their
nature 62, in the sense that their provisions aim to ensure the prosecution and
punishment of the perpetrators of any of the offences listed in Article 3, by applying
the principle of aut dedere aut iudicare 63.
Scope of application:
According to Article 4.1 of CSUA.1988, the Convention is applicable, when one (or
more) of the offences listed in Article 3 takes place, if the ship (ship being defined as
any type of vessel, including hovering crafts and submersibles, as long as it’s not
permanently attached to the sea-bed, it’s not a warship, a State-operated vessel in
non-commercial uses, or it’s been withdrawn from navigation or laid up) is navigating
or scheduled to navigate into, through or from waters beyond the outer limits (or
lateral limits) of the territorial sea of a single State. Thus, it applies to all ships that
60 International Maritime Organization. SUA Convention 2006 Edition: Final Act of the International Conference on the
Suppression of Unlawful Acts against the Safety of Maritime Navigation. P.1-5
61 Ibid.
62 Inter alia Halberstam. Op.Cit. P.292
63 Jesus. Op.Cit. P.391
15
navigate or scheduled to navigate into, through or from the territorial sea of a State,
but not to cabotage operations taking place within the waters of a single State,
making “the territorial scope of the SUA as broad as possible.” 64
Jurisdictional Bases:
According to Article 6.1, jurisdiction to prosecute (and previously claim extradition)

an alleged offender may be established by State-parties when the offence is
committed:
a) Against or on board a ship flying its flag;

b) In its territory; or
c) By one of its nationals.
By means of Article 4.2 if the alleged offender is found in the territory of any State-
party, jurisdiction may also be established.
Article 6.2 provides for three other bases on which States can assert jurisdiction,
notifying the Secretary-General of IMO 65, being those when the offence is
committed:
a) By a stateless person habitually residing in its territory;

b) A national of that State is seized, threatened, injured or killed; and
c) As an attempt to compel it to do or abstain from doing any act.
Thus, the Convention takes into account the five accepted bases for establishing
jurisdiction in international criminal law: territorial, national, universal, passive
personality and protective jurisdiction.
Offences:
CSUA.1988 establishes in its Article 3 the list of acts considered as offences by it. The
obligation of State-parties is, according to Article 5, to make those offences
appropriately punishable, taking into account the gravity of their nature. This has
been held as one of the main differences between its regime and that one of piracy,
“[w]hereas piracy is considered a truly international crime” 66, CSUA.1988 regime is a
municipal-law-based one. The following graphic attempts to show the reader all the
possible configurations of offences as considered by the aforesaid instrument:
64 Burchill, Richard et al. International Conflict and Security Law. P.279

65 According to para.11 LEG84/6, only Canada made that notification, and Egypt made a reservation on whole
Article 6.2
66 Wolfrum, Rüdiger. Fighting Terrorism at Sea: Options and Limitations under International Law. P.10
16
1 Any person commits an offence if that person:
Seizes by force
a) a ship threat thereof
exercises control over
other form of intimidation
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
destroys a ship
Unlawfully and intentionally
c)
causes damage to its cargo which is likely to endanger the safe navigation of that ship
Places a device which is destroy that ship endangers the safe navigation of that
d) on a ship by any means whatsoever which
causes to be placed a substance likely to cause damage to its cargo likely to endanger ship
destroys
If any such act is likely to
seriously damage navigational
e) endanger the safe navigation
seriously interfere with the facilities
of a ship
operation of
f) Communicates information which he knows to be false thereby endangering the safe navigation of a ship
Injuries the commission the offences set forth in

g) any person in connection with of
Kills attempted commission subparagraphs a) to f)
2 Any person also commits an offence if that person:
Attepts to commit any of the offences set forth in paragraph 1
abets the commission of any of the offences set forth in paragraph 1 perpetrated by any person
is otherwise an accomplice of a person who commits such an offence
any act if that threat is likely to

with physical to do
threa as is provided for under b) endanger the safe
a condition aimed at compelling a person to commit any of the offeces set forth in
tens national law c) navigation of the ship in
without juridical refrain from doing paragraph I, subparagraphs
e) question
17
Another salient feature, as stated already, is that the Convention rests on the
principle of aut dedere aut iudicare. For that purpose, once adopted, it affects all
prior accepted extradition treaties making the list of offences extraditable under their
provisions, obliges parties to include them in future extradition treaties and even
works as an extradition treaty among State parties when there is none 67. This feature
was not unknown to the international community with regards to terrorism acts,
being sometimes even qualified as “a general principle of international criminal
law”68 and found in all other instruments akin.
In terms of cooperation, Article 12 states that the parties must afford each other the
greatest measure of assistance in connection with criminal proceedings brought in
respect of the list of offences of Article 3, while Article 13 provides for the prevention
of the use of the territories of the parties to prepare or commit offences either in their
own territory or outside them, as well as the exchange of information between them.
PSUA.1988 works on the basis of CSUA.1988 provisions making them applicable,

mutatis mutandis, to fixed platforms, which it defines in Article 1.3 as “…an artificial
island, installation or structure permanently attached to the sea-bed for the purpose
of exploration or exploitation of resources or for other economic purposes.” The list of
offences is set forth in Article 2, and the jurisdictional bases are in Article 3.
Seizes by force
a fixed
a) threat thereof
exercises control over platform
b) performs an act of violence against a person on board a fixed platform if that act is likely to endanger its safety
destroys a fixed
c)
causes damage to platform which is likely to endanger its safety
Places on a fixed a device which is destroy it

d) by any means whatsoever
causes to be placed platform a substance likely to endanger its safety
Injuries the commission the offences set forth in

e) any person in connection with of
Kills attempted commission subparagraphs a) to d)
2 Any person also commits an offence if that person:
a) Attempts to commit any of the offences set forth in paragraph 1
abets the commission of any such offences perpetrated by any person

b)
is otherwise an accomplice of a person who commits such an offence
with as is provided physical to do any act if that threat is likely to

threatens
a aimed at
c) for under person endanger the safety of
condition compelling a to commit any of the offeces set b)
without national law juridical refrain from doing the fixed platform
forth in paragraph I, c)
67 Article 11.3 CSUA.1988

68 Jesus. Op. Cit. P.392
18
2.3. Background to SUA 2005:
11 September 2001 changed the way that the world envisaged the threat of
terrorism. In the wake of those terrorist attacks against the USA, both the UNGA
(Resolution 56/1 of 12 September 2001 69) and the UNSC (Resolution 1368 (2001) of 12
September 2001 70) addressed the issue, condemning the attacks and calling for
global cooperation for the suppression of terrorism.
Of special interest is UNSC Resolution 1368 (2001) due to the qualification that it
makes of those acts as international terrorism, and states that all acts of that kind are
“a threat to international peace and security.” 71 In paragraph 4 it calls on the
international community for “full implementation of the relevant international anti-
terrorist conventions…” 72
Those resolutions were followed up by UNSC Resolution 1373 (2001) of 28 September

2001 73 and UNGA Resolution 56/88 of 12 December 2001 74. The former is of utmost
importance because it represents the first example of legislation by UNSC 75. With
regards to terrorism, the Resolution imposed as obligations on all State-members of
the UN to, inter alia, “take the necessary steps to prevent the commission of terrorist
acts”, ensure that anyone involved in terrorist acts is brought to justice, prevent the
movement of terrorists, etc. It also calls upon all States to become parties and
implement the relevant antiterrorist instruments being those defined in para.6 of
UNGA Resolution 51/210 of 17 December 1996, which includes both CSUA.1988 and
PSUA.1988.
By then CSUA.1988 had been in force for almost a decade. Although since the time
before its adoption many shortcomings were pointed out, a movement for its revision
was not attempted. The events referred gave a new impetus on the purpose of
expanding and strengthening the SUA instruments.
Having in mind the scenes of hijacked commercial aircrafts being used as weapons
of mass destruction, it was only natural for the maritime sector to foresee a future
event where the weapons to use could be ships.
69 http://daccessdds.un.org/doc/UNDOC/GEN/N01/475/00/PDF/N0147500.pdf?OpenElement UN Document
A/RES/56/1
S/RES/1368 (2001)
71 Ibid.
72 Ibid.
S/RES/1373 (2001)
A/RES/56/88
75 See Talmon, Stefan The Security Council as World Legislature. AJIL Vol.99 Jan.2005 P.175-193
19
The utilization of a vessel as a weapon was not included in CSUA.1988, and only on a
limited extent could deal with such a scenario, by way of the offence stated in
Article 3.1 (c), as a willful and unlawful destruction of a ship, or by way of
subparagraph (e), as destruction or damage maritime navigational facilities (e.g.
thinking of a ship being rammed into a harbor facility). Nevertheless, those solutions
would not cover the gravity of the crime adequately 76.
Taking the above into consideration, the Secretary-General of the IMO (SGIMO
hereon) submitted a draft resolution to the 21st extraordinary session of the Council 77,
which was approved unanimously for submission to the 22nd Assembly for adoption.
The paper was introduced as item 8 of the Agenda and was presented on 20
November 2001.
In the view of the SGIMO the draft “addressed issues that had required a prompt
response from IMO… IMO was determined to work with others to ensure that
shipping did not become a target of terrorism” 78 The “maritime community had a
contribution to make o the world’s efforts to eradicate terrorism.”79
After receiving unanimous support by the Assembly, the document was referred to
the Technical Committee and its result was Assembly Resolution A.924 (22) Review of
Measures and Procedures to Prevent Acts of Terrorism which Threaten the Security of
Passengers and Crews and the Safety of Ships 80.
The Resolution makes it clear that it is founded on resolutions 56/1 of UNGA and
resolutions 1368 and 1373 of UNSC. It also recalls Resolution A.584 and the circular
adopted as its corollary (MSC/Circ.443). Finally it states the call that UNGA Resolution
55/7 of 30 October 2000 81 made upon all States to become parties to the SUA.1988
instruments.
The operative paragraphs requested the MSC, the Legal Committee (LC hereon)
and the Facilitation Committee (FAL hereon) to review on a high priority basis the
security-related instruments of IMO 82 with the view to consider new measures to
prevent and suppress terrorism against ships and thus, ascertain whether there was a
need to update those instruments or to adopt new measures, taking into account
the work of other transport-related international organizations. Finally, it calls upon
governments to accede to the SUA.1988 instruments.
76 Wolfrum. Op.Cit. P.6

77 IMO Document LEG 83/14 23 October 2001
78 IMO Assembly – 22nd Session: Summary Record of the 4th Plenary Meeting. Doc A22/SR.4
79 Ibid
80 Resolution A.924 (22) November 20 2001. International Maritime Organization, Assembly Resolutions and Other
Decisions; Twenty-second Session 19-30 November 2001. P. 198-199

A/RES/55/7
82 All the maritime-security-related instruments are listed in Annex 2 of the IMO Document C 88/10 5 March 2002
20
Leaving aside the other consequences that that resolution had (i.e. SOLAS
amendments, ISPS Code, etc), It triggered the revision of SUA.1988 instruments, which
was placed by the LC on its agenda for the 2002 as item 6 83.
Some examples of desired changes to CSUA.1988 were stated by SGIMO, being

those 84:
Revision and Enlarging the

expansion of the scope of
offences in the application to
light of 9/11 cover domestic
events cabotage
Making obligatory not to

usethe political offence
exception in order to
deny extradition requests
The USA delegation made its own review on what it identified as possible inclusions or
changes (IMO Doc. LEG 84/6/1) having in mind what is shown below:
Review of SUA keeping Noting UN's Using the most

in mind the objective recongnition that recently adopted
set forth in Resolution terrorism now multilateral
A.924 operates globally antiterrorism
•Prevent and suppress •Antiterrorism efforts should conventions as models
terrorism against ships expand from fragmented •UN Convention for the
•Improve security aboard and domestic or regional Suppression of Terrorist
ashore approaches into a global Bombings
•Reduce the risk to crews, approach •UN Convention for the
passengers and port Suppression of the Financing
personnel of Terrorism
83 IMO Document LEG 84/6/1 Para.3 22 March 2002

84 IMO Document LEG 84/6 para.13 of 13 March 2002
21
It used the UN International Convention for the Suppression of Terrorist Bombings 85
(UNCSTB hereon) and the UN International Convention for the Suppression of the
Financing of Terrorism (UNCSFT hereon) to draw a methodology for the review 86.
Some of the amendments to be considered are reflected in the graphics below:
Release of
harmful
substances
(chemical,
biological &
radiological)
Transportation
Act of an
of supplies and
organizer or
other cargo that
New SUA
director of any
supports SUA
of the offences
Offences
offences as
Proposed
by USA
Using a Ship or
Transportation
its cargo as a
of items related
weapon against
to WMD and
another vessel,
means of
structure,
delivery
facility or object
Transportation
of suspected
offenders under
SUA or other
Terrorism
Conventions
A
Accccccooorrrdddiiinnnggg tttooo L
A LE
L EG
EGG
84/6/1
It also proposed updating the SUA.1988 instruments to tackle other security-related

issues:
The list of
offences will not
be regarded as
political offences
with regards of
extradition Temporary
requests transfer of
persons in
custody for
purpose of
assistance under
SUA
Updates to reflect evolving multilateral

anti-terrorist treaty concepts
85 UN Treaty Series Vol.2149 UN Document A/RES/52/164. Adopted in New York 15 December 1997 Entered into force
23 May 2001
86 LEG 84/6/1 Para.4-5
22
By its 84th session the LC considered the possible amendments to SUA.1988
instruments, and agreed to task a formal Correspondence Group (SUACG hereon),
under the USA leadership, to review those and report to the LC by the next session 87.
Annexed to LEG 84/14 88 the LC gave the SUACG terms of reference for the
procedure of revising SUA.1988 instruments.
In the LC 85th session, USA submitted document LEG 85/4 which reported to the
former the intersessional work of the SUACG. Inter alia, new provisions regarding
boarding procedures were incorporated using articles 7-9 of the Protocol against the
Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention
against Transnational Organized Crime and the Agreement Concerning Co-
operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and
Psychotropic Substances in the Caribbean Area, the political offence exception
prohibition (derived from Article 14 of UNCSFT) and the “transference” provisions
(ibid. Article 16). The broad list of new offences already included the non-
proliferation and WMD provisions; the accomplice liability was clarified, etc.
The work of revision continued, and further progress of such discussions can be found
in the relevant documents of LC sessions 86 89, 87 90, 88 91, 89 92 and 90 93. The last two
sessions were reported by the LC Intersessional Working Group on the Revision of the
SUA Convention and Protocol, which held two sessions, the first one on 12-16 July
2004 and, the second on 31 January to 4 February 2005. In the second, the work of
reviewing was done and required, as planned, to call a diplomatic conference to
be held in October 2005 to consider for adoption the draft SUA 2005 protocols94.
The Conference was convened at IMO Headquarters on 10-14 October 2005. 74

State Parties to CSUA.1988 participated and 70 from PSUA.1988, plus 24 State-
observers, representatives and observers from different international organizations
and non-governmental organizations 95. It elected as President Ambassador
Giancarlo Aragona, head of Italy’s delegation.
Both instruments were adopted by the International Conference on the Revision of

the SUA Treaties on 14 October 2005 and still have not entered into force.
87 IMO Document LEG85/4 17 August 2002

88 IMO Document LEG84/14 Annex 2 “Terms of Reference for the Correspondence Group Regarding the 1988 SUA
Convention and the 1988 SUA Protocol” 7 May 2002
89 Inter alia LEG86/5 & LEG86/5/1
90 Inter alia LEG87/5 & LEG87/5/1
91 Inter alia LEG88/3
94 Supra Annex Para.2
95 Full list of participants at LEG/CONF.15/23 14 October 2005
23
2.4. SUA 2005 instruments features:
The Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against
the Safety of Maritime Navigation 96 (PCSUA.05 hereon) and the Protocol of 2005 to
the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms
Located on the Continental Shelf 97 (PPSUA.05 hereon) amend and widen their
predecessors’ provisions. The consolidated versions of the instruments are referred as
2005 SUA Convention (CSUA.05 hereon) and 2005 SUA Fixed Platforms Protocol
(PSUA.05 hereon).
Trying not to repeat that what was not modified, the main features of PCSUA.05 are
described below. The most relevant elements to take into consideration are the
broadening of the offences, by introduction of new categories and lists (Articles 3,
3bis, ter and quater), criminal liability of corporate entities (Article 5bis), the boarding
procedure (Article 8bis), the prohibition of using the political motive exception
regarding prosecution and extradition of the offences, and the Annex.
Scope of application and Jurisdictional Bases:
Although when the review of SUA began, some showed interest to modify the scope
of application (which was not the case with the jurisdictional criteria), these two
items were not changed.
Offences:
The central debate and efforts to review SUA.1988 instruments were always focused
on strengthening the list of offences. It was decided to take advantage of this
opportunity and to tackle through it other security-related issues such as the non-
proliferation of WMD, the usage of harmful substances, the transport of persons and
devices in connection of any of the offences.
The offences set forth in article 3 basically remained unchanged and because of
their nature are regarded as “terrorist offences”. Article 3bis incorporates, in Para.1
(a) more “terrorist offences”, whilst Para.1 (b) incorporates the so-called “transport
offences” together with Article 3ter (which is complemented by the Annex). The so-
called “inchoate offences” although present in CSUA.1988, were strengthen at
Article 3quater.
The three graphics at infra show the categories of offences.
96 IMO Document LEG/CONF. 15/21

97 IMO Document, LEG/CONF. 15/22
24
1 Any person commits an offence within the meaning of this convention if that person:
Seizes by force
a) a ship threat thereof
exercises control over
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
destroys a ship
c)
causes damage to its cargo which is likely to endanger the safe navigation of that ship
Places by any a device which is destroy that ship endangers the safe navigation
d) on a ship which
causes to be placed means a substance likely to cause damage to its cargo likely to endanger of that ship
destroys
If any such act is likely
seriously damage navigational
e) to endanger the safe
seriously interfere with facilities
navigation of a ship
the operation of
f) Communicates information which that person knows to be false thereby endangering the safe navigation of a ship
any act if that threat is likely to

with as is provided aimed at physical to do
threatens
person
a to commit any of the offeces b) endanger the safe

for under compelling
condition refrain from set forth in paragraph 1, c) navigation of the ship
without national law a juridical
doing subparagraphs e) in question
Any person unlawfully and intentionally:

intimidate a population
when the by its nature
government to do
is to
a) purpose of any
compel a international abstain from
the act context act
organization doing
against explosive death

uses causes
on in a manner serious
any
i) a ship radioactive material

that likely to injury
discharges from
BCN weapon cause damage
oil death
from a ship
discharges
quantity Causes
in such a
LNG serious
that
ii)
other injury
concentration likely to cause
hazardous damage
death
uses a ship in a
iii) serious injury
manner that causes
damage
a condition
with
as provided under to commit an offence set forth in i)
iv) threatens
national law subparagraph a) ii)
without
iii)
25
b) Any person commits an offence within the meaning of this Convention if that person:
death intimidating a population
a condition
purpose of
explosive knowing that cause with as provided
for the
serious government to do
unlawfully and intentionally transports on board a ship:
i) it is intended under national compel any

radioactive in a threat to injury international abstain
to be used t without law a act
material cause damage organization from doing
ii) Any BCN weapon, knowing it to be a BCN weapon as defined in Article 1
source material a nuclear explosive

special fissionale material activity
knowing that
especially the or in any other
any
iii) equipment of special it is intended

designed processing nuclear activity not
fissionable to be used in
or prepared use under safeguards of
material material
for production IAEA
equipment
that design
materials with the intention
significantly of a BCN
any
iv) software that it will be used

contributes manufacture weapon
related for such purpose
to the
technology delivery
3ter Any person commits an offence within the meaning of this Convention if that person:
knowing that
Transports
Article3, 3bis or 3 quater intending to to evade

unlawfully and another on board a person
assist that criminal
intentionally person ship committed under any treaty listed in
person prosecution
an offence the annex
3quater Any person commits an offence within the meaning of this Convention if that person:
unlawfully and injures in connection the any of the offences set forth in
a) any person
intentionally kills with commission Article 3.1, 3bis, or 3ter
attempts to any of the offences set forth in Article 3.1, 3bis.1 i), ii)
b)
commit or iii), or subparagraph a) of this article
Participates as an in an of the offences set forth in Article 3, 3bis, 3ter or

c)
accomplice subparagraphs a) or b) of this article
organizes to commit an of the offences set forth in Article 3, 3bis,

d)
directs others 3ter or subparagraphs a) or b) of this article
to the commission of one or more offences set forth in Article 3, group of acting with a
e) Contributes
3bis, 3ter or subparagraphs a) or b) of this article by a persons common purpose
intentionally and
either
where such activity or purpose

with the the criminal activity involves the commission of an
i) of the group
aim of the criminal purpose offence set forth in article 3,
3bis or 3 ter
in the knowledge of the intention of the group to commit an

ii)
offence set forth in article 3, 3 bis or 3ter
26
Boarding Procedure:
Trying to change the reactive nature of SUA, PCSUA.05 included in its provisions a
boarding procedure that, as it was stated before, is modeled on recently concluded
international instruments. It also gives the States the possibility to make a declaration
granting authorization beforehand to board and search ships flying its flag or
showing its marks if it doesn’t respond within four hours of acknowledgement of
receipt of a request to confirm nationality. Certain safeguards have been added in
order to protect the stakeholders.
Other novelties:
CSUA.05 counts with a stronger extradition and cooperation provisions, especially

with the introduction of the prohibition to use the political offence exception. Such a
provision was devised and subsequently used in all anti-terrorism instruments
concluded in-between both generations of SUA, and since CSUA.05 is modeled on
some of those, it was only natural to include it. The “transfer” of a detained person
might be done under the provisions of Article 12bis. Cooperation is strengthened by
means of the modified Article 13 and the new Article 14.
Definitions were introduced in order to clarify the meanings of the new offences
related to hazardous substances and WMD. Exceptions and safeguards were also
inserted to leave out military activities and authorized acts under the non-
proliferation regime.
An annex was added, which works together with Article 3ter, in compliance with
UNSC Resolution 1373 in its operative paragraph 2 g) Prevent the movement of
terrorists, making it an offence to transport a fugitive that committed an offence
under any of the annex-listed instruments.
27
PPSUA.05 and therefore PSUA.05 works as its predecessor, mutatis mutandis, on the
basis of CSUA.05
28
29
3. International Framework against Terrorism and SUA: working seamlessly?
3.1. Elements to Consider
In the lines herein, the author tries to explain how the international framework
against terrorism works together, tightly and seamlessly with SUA instruments,
by way of:
a) The sharing and complementation of their respective list of offences,
b) The complementation and identity of jurisdictional bases,
c) The sharing and interconnection of measures of cooperation and
prosecution mechanisms,
d) Through a network of extradition clauses, and finally
e) On the homogenization of a concept of terrorism that finally will
crystallize on international law unequivocal.
The task will be handed by addressing each of the relevant and common
elements between the sectoral framework and the SUA instruments. The
instruments to take into consideration among this section as the international
framework against terrorism should be those multilateral and universal
conventions and protocols enlisted as such by the UN. In present day those
are 13, including SUA and its Fixed Platforms Protocol. That list is maintained
and updated in the website: http://untreaty.un.org/English/Terrorism.asp
The logic to follow is that the framework, to be triggered needs first an offense
to be identified, to establish jurisdiction under a treaty, to trigger the
cooperation and prosecution mechanisms, to apply the aut dedere aut
iudicare principle, to finally convict and punish any act of terrorism.
Offense
detected
among the list
Jurisdiction is
established
under the
treaty
Application of the
extradite or prosecute
rule to convict
30
3.2. The Offences:
The main discussion in the history of international community regarding

terrorism is precisely what is terrorism? The ideological positions regarding
what constitutes terrorism cast a shadow over the increasingly inhuman forms
of terrorist attacks. Behind the argument of wars of “self-determination” and
other justifications, State-sponsored terrorism shelters and play as a wolf
disguised as a lamb.
These discussions were more frontal and irreconciliable in the 1970’s and
1980’s due mainly to the movement of decolonization that the UNGA was
fostering and endorsing through its policies and resolutions. Terrorism-related
declarations, instruments and resolutions were looked at with suspicion as
possible “legal but not legitimate” weapons against colonies and
dependencies.
Many reservations, declarations, warranties and safeguards beset terrorism-

related instruments agreed upon back then.
The magnitude of the latest atrocities has made the task of opposing firm and
unequivocal declarations against terrorism in all its forms a very difficult one
from a moral point of view.
Nevertheless, a clear, single-interpretation and generally-agreed definition of

terrorism has not come up yet. Books 98 and articles99 have been written to
describe the problem of defining terrorism, the utility of doing so and the more
recent legal need.
The UNSC has come up with what is called a “working definition”, through a
late 2004 resolution already quoted herein. Its insufficiency and little
technicality need not to be discussed here but simply annotated.
Therefore, what the world can rely on as a definition of a terrorist act is what
the legal international framework against terrorism has enlisted and qualified
as offences therein. Although the wide scope of the framework and the
variety of possible targets protected make it very complicated to talk about
model offenses repeated in every treaty (and also because of the evolution
of the drafting , expertise and ideology), there are certain trends that can be
rescued from the bulk of treaties.
Using again the chronological and subject order displayed in Chapter I when
enumerating the evolution of the instruments, the “gender” of offences by
conventions is enlisted at infra, using a short name to refer to the instruments.
98 Saul. Op Cit.
99 Dugard. Loc. Cit.
31
Targets or offences Relevant Instruments
Aerial hijacking and related threats

Offences committed on board aircraft
Tokio.1963
Unlawful seizure of aircraft Hague.1970
Acts against safety of civil aviation Montreal.1971
Acts against safety of civil airports Montreal.1988
Hostage-taking
Threat to internationally protected
Diplomatic Agents.1973
persons
Taking of hostages Hostage.1979
Nuclear-related
Protection to nuclear material CPPNM.1979
UNCSNT.2005
Nuclear attacks CSUA.05
PSUA.05
CSUA.05
Non-proliferation offences
PSUA.05
Explosives
Detection of plastic explosives CMPEPD.1991
UNCSTB.1997
Montreal.1971
Montreal.1988
Offences by means of bombing CSUA.1988
PSUA.1988
CSUA.05
PSUA.05
Maritime threats
Acts against safety of maritime CSUA.1988
navigation CSUA.05
Acts against safety of platforms in the PSUA.1988
Continental Shelf PSUA.05
Finance
Provision or collection of funds to
UNCSFT.1999
commit terrorist offences
The table above is broad it is qualification, therefore the next one 100, that
points out each specific type of criminal action characterized as terrorist
offence, makes a precise comparison in terms of the most commonly
regulated offences.
100 Annex 1
32
From both tables is possible for the reader to detect the coincidence and
identity of a series of criminal acts that nowadays are part of the concept of
terrorism, which still resists a formal definition.
Most of the treaties enumerated work on the basis of domestic law, by means
of making obligatory the regulation of such offences as municipal crimes, duly
penalized, creating a network of legislative consequences for the
perpetrators of those offences.
In most of the cases, the instruments provide the possibility to deem the
commission of the offences not only on the place where they actually
happened but also where jurisdiction may be established in order to extradite
or prosecute the perpetrators.
The SUA instruments in this respect, work in close connection with all the
antiterrorist international instruments, by means of the death/injury/damage
offence, the threats offence, the blackmailing offences, the seizure and
hostage-taking offences, the damages to infrastructure and transport
facilities, and obviously those connected with attacks to transport, destruction
of transport means, facilities, property (cargo). By way of its Annex, it extends
to cover all cases of fugitives of the other antiterrorist international instruments
pretending to escape by means of maritime transportation.
3.3. Jurisdiction
With regards to jurisdictional bases, the conventions have evolved from a

restrictive way of purporting those, to a universal one. The most recently
drafted instruments talk about universal jurisdiction invariably.
The common bases to establish jurisdiction authorized by the international

antiterrorist legal framework are:
a) Territorial;
b) Nationality;
c) Passive Nationality;
d) Protective;
e) Universal; and
f) Target State.
In special matters, like aviation and navigation, the conventions talks about
the country of registry or nationality of the vessel or aircraft.
33
All the conventions rest on the principle of the international transcendence of
the acts regulated in them as offences, so domestic offences remain a
domestic matter to deal with.
In this respect, the SUA instruments work perfectly well, since the four of them
recognizes all of the aforesaid criteria to establish jurisdiction by any State-
party to them.
With regards of jurisdictional bases and offences, the SUA instruments,

especially on their 2005 versions, tend to overlap slightly with the UNCSTB.1997,
due to the fact that the latter covers attacks on transport. Nevertheless, since
both can apply and hold the same criteria to establish jurisdiction, it only
makes a wider cover for this types of acts and might apply in this way to more
countries, in cases of ambivalence or membership to only one of them.
3.4. Cooperation and prosecution measures
Without exception, all of the above listed instruments give way to

cooperational mechanisms, either in fact-finding, transfer of information,
sharing of intelligence resources, prevention of planning and executing
offences from its territory to a third-State’s territory or nationals, reception of
suspects turned in by Masters and Commanders, boarding procedures, aids in
suppressing attacks, etc.
In this sense, SUA brings up a new set of possibilities, especially with the
procedures of boarding and collaboration among States. The transfer of
detained people that collaborate with the catering of information or data is
another salient feature, as was underlined on the previous chapter.
Thus, the whole network of mechanisms of collaboration and cooperation

among States is strengthen by SUA instruments, especially the 2005’s.
3.5. Extradition, aut dedere aut iudicare and the prohibition to use the
political offence exception.
In the historical background herein provided, it was stated that extradition

treaties were the first type of international instruments covering acts of
terrorism. The extradition clause is indirectly or directly, expressly or tacitly
included in all of the above mentioned treaties with substantial differences,
mainly due to the evolution of drafting and perception of terrorism by the
international community.
34
Nowadays, only the oldest instruments do not have an extradition clause
expressly stated and recognizing the extradite or prosecute principle.
The case of the prohibition to use the political offence exception is different,
since this inclusion has been rather recent. In the case concerning this paper,
it was only introduced to SUA by its 2005 updates, which are not yet in force.
This is a clear example that by 1988 the international community was still
reluctant to let go the political offense exception, greatly on defense of the
ancient asylum faculty granted towards them by many other international
legal regimes, like humanitarian, human rights and refugee law. Nevertheless,
after the impact that the post-2000 incidents have made in the collective
mind, this has been displaced and now all of the newly drafted instruments
reject the possiblitity to use such an exception.
It has been included, in order to give a counter balance to that restriction, a

safeguard to protect human rights and other discriminatory concerns such as
gender, ethnic or religious persecution.
SUA 2005 instruments have all of the above, making its regime comprehensive
and all-encompassing. While it provides a strong extradition or prosecution
regime, it also balances the formula by protecting human rights and avoiding
harmful results by legal means against humankind.
As a conclusion, it is evident the way how SUA instruments, especially the 2005
generation, work seamlessly with the rest of the international framework
against terrorism. This has been the result of the maturity of the international
community in accepting the threat that terrorism in all its possible expressions
pose to humankind as a whole, and that only a globalized strategy will allow
the world to take proper countermeasures that will grant the suppression and
punishment of terrorist acts.
35
36
1. Terrorism is an ancient act of violence that has accompanied
humankind and acted against or in favor of it, depending on which
side of the coin the observer is on.
2. Ideology and politics have made terrorism in contemporary times a

very difficult to tackle problem, which nowadays is not only commonly
treated violence, but it has international consequences.
3. Due to the last point made, terrorism is held as a threat to the peace
and as a disruption of peace and security, thus triggering the
international collective defense mechanisms.
4. However, until now, due to many factors, it has not been possible to
define terrorism in an unequivocal single way. Most of the definitions
given are questioned by at least one group of stakeholders.
5. The last problem has also been evident in the case of reaching a global
regime against terrorism. All the attempts to come up with a
convention that tackles the issue of terrorism globally have failed. It is
still to be seen what will be the fate of the CCIT currently under
discussion at the UN.
6. The latter gives the reasons on why today the world has to rely on a
network of sectoral conventions that address one or more facets of
international terrorism. Most of them have been created as a reaction
or aftermath of terrorist events, and therefore have restrictive narrow
views towards terrorism.
7. Only the latest instruments have a different approach, much broader

and preventive. This new generation of instruments and modification to
old regimes have brought the whole new agreements that the
international community has reached only after the undeniable
heinous nature of the latest terrorist attacks.
8. Among those instruments, the SUA Convention and Protocol of 1988

showed a good initiative to follow. This was done after the 9/11 events
and its result was the SUA 2005 generation. Both new instruments have
revitalized, strengthen and widen SUA reach and helpfulness.
37
9. The whole set of antiterrorist instruments, although fragmented in nature
and in principle, have been devised to not hamper each other, and
actually work side to side, as bricks of a wall where terrorism will crash
against, creating a network of provisions that criminalize terrorist
conducts and acts, provide for establishment of jurisdiction by at least
one State, puts at the States’ disposition a range of cooperational
mechanisms and prosecution means, secures the final penalization of
the individuals that committed the offences by the utilization of the aut
dedere aut iudicare principle, and therefore creating a second level
network of extradition clauses.
10. The latest events have strengthen even more the whole regime by
nullifying the use of the political offence exception, commonly claimed
in the past and frustrating the bringing of justice to terrorist. This is one of
the major achievements of the community as a whole and
demonstrates the maturity reached (by force though).
11. All of the above shows that the International Maritime Organization has
made a formidable contribution to the fight against terrorism and to all
mankind, by way of fostering and finally providing for the adoption of
the SUA instruments and their latest updates at 2005 which, although still
await for entering into force, promise to do so in a short lapse.
38
39
Unlawful Use of
Good order Seizure of Attack against Destruction of Attack against Lethal or Accomplices,
Intimidate a Compel a Compel an Damage to Attack against Attack against Explosion / Unlawful demand possession of radioactive Funding of Damage to
International Instrument Short Name Death Body injure Kidnapping Threats onboard transport transport transport transport harmful Attempts organizers,
population government Organization property premises infrastructures detonations nuclear related radioactive material or terrorism environment
transport means means means facilities substances directors
material device
Convention on Offences and

Yes (by penal Yes (by penal Yes (by penal Yes (by penal
Certain Other Acts Committed On Tokio.1963 YES YES YES YES
law) law) law) law)
Board Aircraft
Convention for the Suppression of
Hague.1970 YES YES YES YES
Unlawful Seizure of Aircraft
Unlawful Acts Against the Safety of Montreal.1971 YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES
Civil Aviation
Convention on the Prevention and

Punishment of Crimes against Diplomatic
YES YES YES YES YES YES YES YES YES YES YES
Internationally Protected Persons, Agents.1973
including Diplomatic Agents
Convention on the Physical

CPPNM.1979 YES YES YES YES YES YES YES YES YES
Protection of Nuclear Material
International Convention Against
Hostages.1979 YES YES YES YES YES YES YES YES YES
the Taking of Hostages
Protocol for the Suppression of

Unlawful Acts of Violence at
Airports Serving International Civil
Aviation, Supplementary to the Montreal.1988 YES YES YES YES YES
Unlawful Acts against the Safety of
Civil Aviation

Unlawful Acts Against the Safety of CSUA.1988 YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES
Maritime Navigation
Protocol for the Suppression of

Unlawful Acts Against the Safety of
PSUA.1988 YES YES YES YES YES YES YES YES YES YES YES YES YES YES
Fixed Platforms Located on the
Continental Shelf
Convention on the Marking of

Plastic Explosives for the Purpose of CMPEPD.1991 YES
Detection
International Convention for the

UNCSTB.1997 YES YES YES YES YES YES YES YES YES YES YES YES YES
Suppression of Terrorist Bombings

Suppression of the Financing of UNCSFT.1999 YES YES YES
Terrorism
Suppression of Acts of Nuclear UNCSNT.2005 YES YES YES YES YES YES YES YES YES YES YES YES
Terrorism
Protocol of 2005 to the Convention
for the suppression of unlawful acts
PCSUA.05 YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES
against the safety of maritime
navigation
Protocol of 2005 to the Convention

for the suppression of unlawful acts
against the safety of fixed PPSUA.05 YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES
platforms located on the
continental shelf
40
41
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47

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IMO

INTERNATIONAL MARITIME LAW INSTITUTE

The Convention For The Suppression Of Unlawful Acts Against

A Dissertation submitted in partial fulfillment of the requirements for the

Academic Year 2007/2008

Introduction: International Peace and Security Breached ii

Chapter I: International Law as an Answer to Stop Terrorism 1

Chapter II: The Convention for the Suppression of Unlawful Acts

Chapter III: International Framework against Terrorism and SUA:

International Peace and Security Breached

Conscious of the aforesaid, due to many historical and sociological factors, a

Today, the recourse to force among nations is regulated by the UNCh,

1945, entered into force 24 October 1945.

Considering all the aforesaid, it is clear that violence among States is

Thus, attention will be placed on international community’s fight against

Although constructed in a sector-approach way, collectively they constitute

1.1 First attempts

Terrorism is not a new phenomenon. Neglecting references to Sicarrii Zealots, Al-

1.2 The “new wave”: aerial hijacking and hostage-taking

Contemporary terrorism21 is a consequence of political conditions and the

Vol.68 No.1 (1974) P.69

Following the above, hostage-taking came to the scene. Directed to high-profiled

25 Jenkins. Loc cit

1.4 Latest trends

The international community managed to cover the aforesaid areas in a span of

Although already treated by a tenth of international instruments, terrorism is far from

Recognizing that terrorists needed substantial economical means in order to deliver

1.5 The global approach revisited

As pointed out in herein, the only concluded international instrument addressing

Another example of a global-reach attempt is the Draft Convention on the

The latest of those global efforts, the so-called Comprehensive Convention on

1.6 The UN Resolutions

33 Signed 27 January 1977, entered into force 4 August 1978

Later on another declaration was made in order to supplement the aforesaid, by

By means of such declarations, some basic principles of general acceptance have

2.1. Historical Background of SUA 1988

45 United Nations Treaty Series Vol.1678 P.222

Safety. AJIL Vol.82 Apr.1988 P.269

(b) Against a ship, aircraft, persons or property in a place outside the

(3) Any act of inciting or of intentionally facilitating an act described in

By 9 December 1985, in its 108th plenary meeting, UN General Assembly (UNGA

Decisions; Fourteenth Session 11-22 November 1985. P. 152

58 Jesus. Op. Cit. P.388

2.2. CSUA.1988 and PSUA.1988 features

According to Article 6.1, jurisdiction to prosecute (and previously claim extradition)

a) Against or on board a ship flying its flag;

a) By a stateless person habitually residing in its territory;

64 Burchill, Richard et al. International Conflict and Security Law. P.279

Injuries the commission the offences set forth in

2 Any person also commits an offence if that person:

Attepts to commit any of the offences set forth in paragraph 1

any act if that threat is likely to

PSUA.1988 works on the basis of CSUA.1988 provisions making them applicable,

1 Any person commits an offence if that person:

Places on a fixed a device which is destroy it

Injuries the commission the offences set forth in

2 Any person also commits an offence if that person:

a) Attempts to commit any of the offences set forth in paragraph 1

abets the commission of any such offences perpetrated by any person

with as is provided physical to do any act if that threat is likely to

67 Article 11.3 CSUA.1988

Those resolutions were followed up by UNSC Resolution 1373 (2001) of 28 September

76 Wolfrum. Op.Cit. P.6