tations
In the previous section, it has been explained that the UNCLOS as the main anti- piracy agreement fails to adequately address the particular piracy and potential maritime terrorism problems of the Malacca Straits. I will begin this section by examining the second anti-piracy agreement, the SUA Convention, and its defini- tional and practical limitations.
The SUA Convention was the result of a diplomatic initiative taken by the Gov- ernment of Italy and supported by Austria and Egypt following the Achile Lauro incident which had involved Egypt, Italy and the United States.632 After the
Achille Lauro attack, the international community, through the United Nations
and its Maritime International Organization (IMO), promulgated the SUA Con- again between the two countries over the 15,000-square-kilometer Ambalat territory, located off the coast of East Kalimantan. The two countries are still trying to resolve the dispute by diplomatic negoti- ations.
631 See Erik Barrios, 'Casting a Wider Net: Addressing the Maritime Piracy Problem in Southeast Asia '
(2005) 28 Boston College International and Comparative Law Review 149, 160.
632 Tullio Treves, 'The Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation ' (1998) 2 Singapore Journal International and Comparative Law 541, 543. For interesting comments and documents see generally Ronzitti, above n 467. This book is a collection of essays on the various aspects of the Achille Lauro attack as well as on maritime terrorism.
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vention, which established a legal basis for prosecuting maritime violence that did not fall under the UNCLOS definition of piracy.633 The SUA Convention was negotiated as part of the international effort to fight terrorist acts on the seas and all ‘unlawful acts against the safety of maritime navigation’.634
i. Definitional Limitation
Article 3 SUA Convention states that:
An offence occurs under the convention if a person unlawfully and intentionally: 1. seizes or exercises control over a ship by force or threat there-
of or any other form of intimidation; or
2. performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or 3. destroys a ship or causes damage to a ship or to its cargo which is
likely to endanger the safe navigation of that ship; or
4. places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endan- gers or is likely to endanger the safe navigation of that ship; or 5. destroys or seriously damages maritime navigational facilities
or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or
6. communicates information which he knows to be false, there- by endangering the safe navigation of a ship; or
7. injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in sub- paragraphs (a) to (f). 635
A person attempting any such illegal acts also commits an offence, as does any- one assisting in the commission of one of the offences, or threatening to commit an offence.636
Even though the list of offences set out in article 3 comprises various unlawful acts which are likely to endanger to the safety of maritime navigation, the SUA Convention does not address modern threats of terrorism to the safety of shipping and persons on board, and does not identify potentially appropriate measures, such as boarding and searching a ship to interrupt the commission of an offence
633 Halberstam, above n 510, 291.
634 See generally Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navi-
gation, opened for signature 10 March 1998, 1678 U.N.T.S. 221 (entered into forced 1 March 1992).
635
SUA Convention art 3 (1).
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under the convention.637 Such terrorist threats not addressed by the original SUA Convention, include importation of Weapon of Mass Destruction (WMD) and us- ing ships and cargoes as weapons. 638 Therefore, between 2002 and 2005, the le- gal committee of the International Maritime Organization (IMO) drafted amend- ments to meet those modern threats.639 Amendments to the 1998 SUA Conven- tion and its related Protocol were adopted by the Diplomatic Conference on the Revision of the SUA Treaties, held from 10 to 14 October 2005. These amend- ments were adopted in the form of Protocols to the SUA treaties (the 2005 Proto- cols).640
The 2005 Protocol to the SUA Convention adds a new article 3 bis 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 organization to do or to abstain from any act:
- uses against or on a ship or discharging from a ship any explosive, ra- dioactive material or BCN (biological, chemical, nuclear) weapon in a manner that causes or is likely to cause death or serious injury or dam- age;
- 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 seri- ous injury or damage for the purpose of intimidating a population, or com- pelling a Government or an international organization 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
• transports on board a ship any equipment, materials or software or related technology that significantly contributes to the design, manufacture or de-
637 J. Ashley Roach, 'Enhancing Maritime Security in the Straits of Malacca and Singapore' (2005)
59(1) (Fall/Winter) Journal of International Affairs 97, 105.
638 Ibid. 639 Ibid.
640 The International Maritime Organization, Convention for the Suppression of Unlawful Acts Against
the Safety of Maritime Navigation, 1988
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livery of a BCN weapon, with the intention that it will be used for such purpose.641
The SUA Convention thus remedies some of the UNCLOS’s definitional short- comings. It does not differentiate between public and private motives, therefore in situations where terrorism and piracy overlap, the perpetrators can still be prosecuted. It also does not contain a ‘two-ship’ requirement. Moreover, the SUA Convention has a far wider geographical application than UNCLOS, thus piracy can occur not only on the high seas but also in ports, territorial seas, or in maritime zones outside the jurisdiction of coastal states.
However, the SUA Convention is still inadequate to address piracy and maritime terrorism in the Malacca Straits since of the three littoral states, only Singapore has ratified it.642 Neither Indonesia nor Malaysia is a state party to this conven- tion as yet. Even if these two states do become parties, the SUA Convention pro- vides inadequate measures to suppress both piracy and maritime terrorism since the primary function of this convention is only to combat unlawful acts against the safety of maritime navigation. The main purpose of the SUA Convention is not the prevention of maritime terrorism but the apprehension, conviction, and punishment of those who commit such offences. 643 In other words, the conven- tion is not preventative but reactive in nature.644
The SUA Convention also does not try to categorize unlawful acts against the safety of maritime navigation as acts of piracy.645 Instead, it follows the ‘sectori- al’ approach to the fight against international terrorism adopted in a number of multilateral conventions.646 Moreover, although the Achille Lauro attack was de- scribed in the press and by the United States Government as ‘piracy on the high seas’, it was clearly emphasized during the Rome Conference that the attack did
641 SUA Convention art 3bis. 642
IMO, Status of Convention by Country
<http://www.imo.org/includes/blastDataOnly.asp/data_id%3D28082/status-x.xls > at 20 April 2010.
643 Sittnick, above n 64, 761.
644 Justin S.C. Mellor, 'Missing the Boat: The Legal and Practical Problems of the Prevention of
Maritime Terrorism ' (2002) 18 American University International Law Review 341, 384.
645 Treves, above n 632, 70.
646 Ibid. Examples of such conventions are the 1970 Hague Convention for the Suppression of Unlaw-
ful Seizure of Aircraft and the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. The SUA Convention follows the two conventions in establishing a list of offences.
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not correspond to the description of piracy contained in the 1958 Geneva Con- vention and the 1982 UNCLOS.647
ii. Practical Limitation
The jurisdiction for prosecution under the SUA Convention is narrower than un- der the UNCLOS provisions. The SUA Convention only allows states that have a ‘connection’ with the offence to establish their jurisdiction.648 This ‘connection’ includes, for example, when the offence is committed against a ship flying its flag; when the offence is committed in its territory; when the offence is commit- ted by one of its nationals or when one of the victims is a national of the state; and when the offence is committed by a person who is present in its territory.649 Furthermore, if such a connection does not exist, the arresting state must extradite the offender to a state with sufficient jurisdiction.650 If an extradition treaty does not exist between the two states, the offenders may avoid punishment even though the convention has provisions that make it easier to extradite a person who committed an offence under the convention from one state party to anoth- er.651
It can, therefore, be concluded that although the SUA Convention remedies some definitional limitations of the UNCLOS, it still has major limitations in terms of powers and obligations given to states. In addition, even if a state has jurisdic- tion, the prosecution and penalization of offenders is not mandatory under the SUA Convention. Therefore, despite the fact that the convention contains a pro-
647 Ibid 70-1. See the remarks of the Italian Prime Minister of Justice, Professor Vassali, and of the
U.N. Secretary General’s Special Representative for the Law of the Sea, Mr. Satya Nandan.
648
SUA Convention art 6.
649 SUA Convention art 6. According to this article, there are three grounds for mandatory jurisdiction
and three permissive jurisdictions over an offender. Article 6 reads:
Each State Party shall take measures as may be necessary to establish its jurisdiction over the offences set forth in Article 3 when the offences is committed:
(a) against or on board a ship flying the flag of the State at the time the offence is committed; or (b) in the territory of that State, including its territorial state; or
(c) by a national of that state.
A State Party may also establish its jurisdiction over any such offence when: (1) it is committed by a stateless person whose habitual residence is in that State; or (2) during its commission a national of that State is seized, threatened, injured, or killed; or (3) it is committed in an attempt to compel that State to do or abstain from doing any act.
650
SUA Convention art 7 (1).
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vision for extradition, if the state that receives the offender does not have the po- litical will to prosecute the offender, it certainly does not need to.652
Another limitation relates to trial procedures and penalties imposed on pirates. Like the UNCLOS, the conduct of trials and penalties applied to pirates are de- termined by domestic law of a state. 653 There is, therefore, no uniformity among states in terms of trial processes and penalties applied to pirates.
Despite the limitations discussed above, the SUA Convention has placed various obligations on signatory states to cooperate in the prevention of offences under the convention. Such obligations include taking all practicable measures to pre- vent preparations in their respective territories for the commission of those of- fences within or outside their territories and exchanging information and other appropriate measures taken, as appropriate, to prevent the commission of such of- fences.654
3.2.6 The limitation of Regional Cooperation Agreement on Combating Piracy