Reinforcing SUA Convention: Towards A Safer Maritime Navigation

Dr. Vijay Sakhuja

The Legal Committee of the International Maritime Organisation (IMO), a UN body on maritime issues, had called upon contracting states to work on two Protocols and introduce substantial amendments aimed at strengthening the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation also known as the SUA Convention. The SUA convention has been adopted by 126 countries representing 82 percent of the world's merchant fleet and provides for an appropriate response to the risks posed to maritime navigation by international terrorism.

After intense negotiations for more than three years, new provisions have been added and this should fill ‘significant gaps in counter-terrorism, nonproliferation and ship boarding procedures’. The Protocols will open for signature on February 14, 2006 and enter into force 90 days after the twelfth country (three countries in the case of the Fixed Platforms Protocol) signs it or deposits an instrument to that effect.

The genesis of the SUA convention can be traced back to 1988. On October 8, 1988, a group of Palestine Guerillas hijacked the Italian cruise vessel Achille Lauro, threatened to kill American and British citizens and demanded release of a group of Palestine prisoners detained in Israeli prisons. After two days of negotiations, the hijackers surrendered for a guarantee of safe passage out of Egypt. Meanwhile, it was learnt that the guerillas had killed an American citizen on board the cruise vessel. The aircraft was intercepted by American fighter aircraft and escorted to US airbase in Sicily. The Achille Lauro incident caught the attention of the international community with regard to the menace of terrorism at sea and led to the formulation of an international convention under the United Nations. A later Protocol of the SUA convention against the Safety of Fixed Platforms Located on the Continental Shelf, 1988, extended the provisions of the convention to unlawful acts against fixed platforms too. The two instruments entered into force on March 1, 1992.

Since the 9/11 attacks on the United States in 2001, maritime community has become increasingly concerned about the need for a legal framework making international shipping and maritime traffic less vulnerable to misuse by the terrorists. In particular, they are concerned that ships may be used to transport weapons of mass destruction. In the absence of an internationally accepted framework, it is legally incorrect to order a ship flying another nation's flag to stop and be searched in international waters without running the risk of a major diplomatic incident as was the case of So San, a North Korean freighter, intercepted by a Spanish frigate, carrying a legitimate cargo of missiles for Yemen.

The revised SUA convention would allow signatory states the power to visit, board, and search and seize a ship suspected of trafficking of WMDs, delivery systems and related materials on the high seas. However, the power is not carte blanche and states will have to seek approval from the flag state to ensure the protection of legitimate trade and seafarers, to prevent the act being interpreted as an act of war. Signatory nations can also agree to allow their ships to be searched by other states if the flag state has not replied within four hours.

If the revised SUA convention is ratified, it is bound to give the United States the flexibility it has been looking for thereby reinforcing the Proliferation security Initiative (PSI). In June 2005, Condoleezza Rice, the US Secretary of State, while speaking at the second anniversary function of the PSI, noted that over 60 countries were supportive of the PSI and in the last nine months there had been several successful efforts by the United States and its PSI partners. However the question remains whether the PSI partners had obtained prior permission of the flag state before serching the vessel. For instance, in April 2005, the PSI partners had not obtained permission to intercept and serach the vessel Hual Africa which was carrying a mobile crane from a German firm for Mizan Machine, an Iranian company linked to the Iranian missile program. The vessel could not be intercepted and docked inan Iranian port.

Since June 2003, India has debated the issue of joining the US led PSI but stayed away from any active participation. Among other issues i.e. legality of the Initiative, legitimacy of international weapons trade and freedom of the seas have shaped India’s concerns. The India-US naval cooperation has made great strides in all facets of bilateral relations, but this has to be juxtaposed with the respect and adherence to international law and practices. While there are no conflicting perceptions between New Delhi and Washington with regard to the menace of terrorism, proliferation of weapons of mass destruction and sea piracy, different views on best practices of international law have to be adhered to. Interestingly, the US has not ratified the 1982 United Nation Law of the Sea III.

Author Note
Dr Vijay Sakhuja is Senior Fellow, Observer Research Foundation, New Delhi