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Piracy and Armed Robbery at SeaThe Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden$

Anna Petrig and Robin Geiß

Print publication date: 2011

Print ISBN-13: 9780199609529

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199609529.001.0001

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(p.243) SUA Protocol 20055 (excerpts)

(p.243) SUA Protocol 20055 (excerpts)

Source:
Piracy and Armed Robbery at Sea
Publisher:
Oxford University Press

Art. 8(2)

The following text is added as article 8bis of the Convention:

Article 8bis

  1. 1. States Parties shall co-operate to the fullest extent possible to prevent and suppress unlawful acts covered by this Convention, in conformity with international law, and shall respond to requests pursuant to this article as expeditiously as possible.

  2. 2. Each request pursuant to this article should, if possible, contain the name of the suspect ship, the IMO ship identification number, the port of registry, the ports of origin and destination, and any other relevant information. If a request is conveyed orally, the requesting Party shall confirm the request in writing as soon as possible. The requested Party shall acknowledge its receipt of any written or oral request immediately.

  3. 3. States Parties shall take into account the dangers and difficulties involved in boarding a ship at sea and searching its cargo, and give consideration to whether other appropriate measures agreed between the States concerned could be more safely taken in the next port of call or elsewhere.

  4. 4. A State Party that has reasonable grounds to suspect that an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed involving a ship flying its flag, may request the assistance of other States Parties in preventing or suppressing that offence. The States Parties so requested shall use their best endeavours to render such assistance within the means available to them.

  5. 5. Whenever law enforcement or other authorized officials of a State Party (“the requesting Party”) encounter a ship flying the flag or displaying marks of registry of another State Party (“the first Party”) located seaward of any State's territorial sea, and the requesting Party has reasonable grounds to suspect that the ship or a person on board the ship has been, is or is about to be involved in the commission of an offence set forth in article 3, 3bis, 3ter or 3quater, and the requesting Party desires to board,

    1. (a) it shall request, in accordance with paragraphs 1 and 2 that the first Party confirm the claim of nationality, and

    2. (b) if nationality is confirmed, the requesting Party shall ask the first Party (hereinafter referred to as “the flag State”) for authorization to board and to take appropriate measures with regard to that ship which may include stopping, boarding and searching the ship, its cargo and persons on board, and questioning the persons on board in order to determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed, and

    3. (p.244) (c) the flag State shall either:

      1. (i) authorize the requesting Party to board and to take appropriate measures set out in subparagraph (b), subject to any conditions it may impose in accordance with paragraph 7; or

      2. (ii) conduct the boarding and search with its own law enforcement or other officials; or

      3. (iii) conduct the boarding and search together with the requesting Party, subject to any conditions it may impose in accordance with paragraph 7; or

      4. (iv) decline to authorize a boarding and search.

      The requesting Party shall not board the ship or take measures set out in subparagraph (b) without the express authorization of the flag State.

    4. (d) Upon or after depositing its instrument of ratification, acceptance, approval or accession, a State Party may notify the Secretary-General that, with respect to ships flying its flag or displaying its mark of registry, the requesting Party is granted authorization to board and search the ship, its cargo and persons on board, and to question the persons on board in order to locate and examine documentation of its nationality and determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed, if there is no response from the first Party within four hours of acknowledgement of receipt of a request to confirm nationality.

    5. (e) Upon or after depositing its instrument of ratification, acceptance, approval or accession, a State Party may notify the Secretary-General that, with respect to ships flying its flag or displaying its mark of registry, the requesting Party is authorized to board and search a ship, its cargo and persons on board, and to question the persons on board in order to determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed.

    The notifications made pursuant to this paragraph can be withdrawn at any time.

  6. 6. When evidence of conduct described in article 3, 3bis, 3ter or 3quater is found as the result of any boarding conducted pursuant to this article, the flag State may authorize the requesting Party to detain the ship, cargo and persons on board pending receipt of disposition instructions from the flag State. The requesting Party shall promptly inform the flag State of the results of a boarding, search, and detention conducted pursuant to this article. The requesting Party shall also promptly inform the flag State of the discovery of evidence of illegal conduct that is not subject to this Convention.

  7. 7. The flag State, consistent with the other provisions of this Convention, may subject its authorization under paragraph 5 or 6 to conditions, including obtaining additional information from the requesting Party, and conditions relating to responsibility for and the extent of measures to be taken. No additional measures may be taken without the express authorization of the flag State, except when necessary to relieve imminent danger to the lives of persons or where those measures derive from relevant bilateral or multilateral agreements.

  8. 8. For all boardings pursuant to this article, the flag State has the right to exercise jurisdiction over a detained ship, cargo or other items and persons on board, including seizure, forfeiture, arrest and prosecution. However, the flag State may, subject to its constitution and laws, consent to the exercise of jurisdiction by another State having jurisdiction under article 6.

  9. 9. When carrying out the authorized actions under this article, the use of force shall be avoided except when necessary to ensure the safety of its officials and persons on board, or where the officials are obstructed in the execution of the authorized actions. Any use of force pursuant to this article shall not exceed the minimum degree of force which is necessary and reasonable in the circumstances.

  10. (p.245) 10. Safeguards:

    1. (a) Where a State Party takes measures against a ship in accordance with this article, it shall:

      1. (i) take due account of the need not to endanger the safety of life at sea;

      2. (ii) ensure that all persons on board are treated in a manner which preserves their basic human dignity, and in compliance with the applicable provisions of international law, including international human rights law;

      3. (iii) ensure that a boarding and search pursuant to this article shall be conducted in accordance with applicable international law;

      4. (iv) take due account of the safety and security of the ship and its cargo;

      5. (v) take due account of the need not to prejudice the commercial or legal interests of the flag State;

      6. (vi) ensure, within available means, that any measure taken with regard to the ship or its cargo is environmentally sound under the circumstances;

      7. (vii) ensure that persons on board against whom proceedings may be commenced in connection with any of the offences set forth in article 3, 3bis, 3ter or 3quater are afforded the protections of paragraph 2 of article 10, regardless of location;

      8. (viii) ensure that the master of a ship is advised of its intention to board, and is, or has been, afforded the opportunity to contact the ship's owner and the flag State at the earliest opportunity; and

      9. (ix) take reasonable efforts to avoid a ship being unduly detained or delayed.

    2. (b) Provided that authorization to board by a flag State shall not per se give rise to its liability, States Parties shall be liable for any damage, harm or loss attributable to them arising from measures taken pursuant to this article when:

      1. (i) the grounds for such measures prove to be unfounded, provided that the ship has not committed any act justifying the measures taken; or

      2. (ii) such measures are unlawful or exceed those reasonably required in light of available information to implement the provisions of this article.

      States Parties shall provide effective recourse in respect of such damage, harm or loss.

    3. (c) Where a State Party takes measures against a ship in accordance with this Convention, it shall take due account of the need not to interfere with or to affect:

      1. (i) the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea; or

      2. (ii) the authority of the flag State to exercise jurisdiction and control in administrative, technical and social matters involving the ship.

    4. (d) Any measure taken pursuant to this article shall be carried out by law enforcement or other authorized officials from warships or military aircraft, or from other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect and, notwithstanding articles 2 and 2bis, the provisions of this article shall apply.

    5. (e) For the purposes of this article “law enforcement or other authorized officials” means uniformed or otherwise clearly identifiable members of law enforcement or other government authorities duly authorized by their government. For the specific purpose of law enforcement under this Convention, law enforcement or other authorized officials shall provide appropriate government-issued identification documents for examination by the master of the ship upon boarding.

  11. 11. This article does not apply to or limit boarding of ships conducted by any State Party in accordance with international law, seaward of any State's territorial sea, including (p.246) boardings based upon the right of visit, the rendering of assistance to persons, ships and property in distress or peril, or an authorization from the flag State to take law enforcement or other action.

  12. 12. States Parties are encouraged to develop standard operating procedures for joint operations pursuant to this article and consult, as appropriate, with other States Parties with a view to harmonizing such standard operating procedures for the conduct of operations.

  13. 13. States Parties may conclude agreements or arrangements between them to facilitate law enforcement operations carried out in accordance with this article.

  14. 14. Each State Party shall take appropriate measures to ensure that its law enforcement or other authorized officials, and law enforcement or other authorized officials of other States Parties acting on its behalf, are empowered to act pursuant to this article.

  15. 15. Upon or after depositing its instrument of ratification, acceptance, approval or accession, each State Party shall designate the authority, or, where necessary, authorities to receive and respond to requests for assistance, for confirmation of nationality, and for authorization to take appropriate measures. Such designation, including contact information, shall be notified to the Secretary-General within one month of becoming a Party, who shall inform all other States Parties within one month of the designation. Each State Party is responsible for providing prompt notice through the Secretary-General of any changes in the designation or contact information.

Notes:

(5) International Maritime Organization (IMO), Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, Text Adopted by the International Conference on the Revision of the SUA Treaties, IMO Doc. LEG/CONF.15/21 (Nov. 1, 2005).