[Senate Executive Report 110-25]
[From the U.S. Government Publishing Office]
110th Congress Exec. Rept.
SENATE
2d Session 110-25
======================================================================
PROTOCOLS OF 2005 TO THE CONVENTION CONCERNING THE SAFETY OF MARITIME
NAVIGATION AND TO THE PROTOCOL CONCERNING THE SAFETY OF FIXED PLATFORMS
ON THE CONTINENTAL SHELF
_______
September 16, 2008.--Ordered to be printed
_______
Mr. Biden, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 110-8]
The Committee on Foreign Relations, to which was referred
the Protocol of 2005 to the Convention for the Suppression of
Unlawful Acts against the Safety of Maritime Navigation (the
``2005 SUA Protocol'') 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 (the ``2005
Fixed Platforms Protocol''), both adopted at London on October
14, 2005, and signed by the United States of America on
February 17, 2006 (Treaty Doc. 110-8), having considered the
same, reports favorably thereon with reservations,
understandings, and declarations, as indicated in the
resolutions of advice and consent for each treaty, and
recommends that the Senate give its advice and consent to
ratification thereof, as set forth in this report and the
accompanying resolutions of advice and consent.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Major Provisions.................................................3
IV. Entry Into Force.................................................7
V. Implementing Legislation.........................................8
VI. Committee Action.................................................8
VII. Committee Recommendation and Comments............................8
VIII.Resolutions of Advice and Consent to Ratification...............14
I. Purpose
The purpose of the 2005 SUA Protocol and the 2005 Fixed
Platforms Protocol is to strengthen and update the Convention
for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation (the ``1988 SUA Convention'') and the
Protocol for the Suppression of Unlawful Acts against the
Safety of Fixed Platforms Located on the Continental Shelf (the
``1988 Fixed Platforms Agreement'') (Treaty Doc. 101-1), in
order to create a more effective international regime to
prevent and punish maritime terrorism and the proliferation of
weapons of mass destruction (``WMD'').
II. Background
The 2005 SUA Protocol and the 2005 Fixed Platforms Protocol
were negotiated under the auspices of the International
Maritime Organization (``IMO'') and would amend two agreements
adopted by the IMO in 1988 to which the United States is
already a party: the 1988 SUA Convention and the 1988 Fixed
Platforms Agreement. The 1988 SUA Convention and the 1988 Fixed
Platforms Agreement were originally negotiated in response to
the 1985 hijacking of the Italian-flag cruise ship the Achille
Lauro and the murder of American passenger Leon Klinghoffer.
These two 1988 agreements established an international legal
framework requiring that States Parties either extradite or
submit for prosecution persons who have committed certain
offenses identified in each treaty in an effort to ensure that
individuals who commit acts of terrorism that endanger the safe
navigation of a ship or the safety of a fixed platform are
either prosecuted in the state in which they are found or
extradited to another state for prosecution.
While the 1988 SUA Convention and the 1988 Fixed Platforms
Agreement focus respectively on vessels and fixed platforms at
sea as the potential target of a terrorist attack or other
terrorist activity, the 2005 SUA Protocol and the 2005 Fixed
Platforms Protocol expand this international framework to
include scenarios in which vessels or platforms are used as a
potential means for carrying out or enabling terrorist
activity. Specifically, they establish a framework for
investigating, prosecuting, and extraditing persons who commit
certain offenses, including using a ship or fixed platform as a
weapon or as a means to carry out a terrorist attack; the
unlawful transport of biological, chemical, and nuclear weapons
and other nuclear explosive devices and related delivery
systems on the high seas; the transport of terrorist fugitives
by sea; and various accessory offenses. In addition, the 2005
SUA Protocol creates a shipboarding regime on the high seas
based on flag state consent if a State Party has ``reasonable
grounds to suspect'' that an offense covered by the treaty has
been, is being, or is about to be committed. In response to
questions from the committee, administration officials noted
that the shipboarding regime and the offenses established by
both Protocols are expected to strengthen the international
legal basis for conducting maritime interdictions and
facilitate the enforcement of UN sanctions against countries
such as Iran and North Korea. In particular, Deputy Assistant
Secretary of Defense Richard Douglas stated as follows:
The [2005 SUA Protocol and the 2005 Fixed Platforms
Protocol] require participating States Parties to enact
legislation to criminalize the unlawful maritime
transport of WMD, a key requirement in stopping the
spread of WMD, and an important step in helping to
enforce the sanctions in current UN Security Council
resolutions. [Both Protocols] establish a legal basis
for international cooperation in the investigation,
prosecution, and extradition of those who commit or aid
terrorist acts or trafficking in WMD aboard ships at
sea or on fixed platforms. The ability of States
Parties to prosecute the perpetrators of these acts
under the domestic legislation that States Parties must
adopt will be a means to impose ``consequences'' on the
perpetrators of these acts. The 2005 SUA Protocol's
shipboarding regime will provide a multilateral basis
for the interdiction at sea of WMD, their delivery
systems, and related materials, as well as terrorist
fugitives.
The 2005 SUA Protocol and the 2005 Fixed Platforms Protocol
were adopted by the IMO on October 14, 2005, and signed on
behalf of the United States on February 17, 2006. The
President's submittal indicates that the Departments of State,
Justice, Homeland Security, and Defense all join in
recommending early action on these treaties.
III. Major Provisions
A detailed analysis of these two Protocols may be found in
the Letter of Submittal from the Secretary of State to the
President, which is reprinted in full in Treaty Document 110-8.
A summary of several key provisions is set forth below.
A. 2005 SUA PROTOCOL
New Offenses
Paragraphs 5-7 of Article 4 of the 2005 SUA Protocol add
new offenses to the Convention that fit into four categories:
1. Terrorism Offenses
2. Proliferation Offenses
3. Transportation of Terrorist Fugitives Offense
4. Accessory Offenses
1. Terrorism Offenses (Article 3bis(1)(a)):
Any person commits an offense 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 doing any act--
i. Uses against or on a ship or discharges from a
ship any explosive, radioactive material or BCN weapon
(Article 2 of the 2005 SUA Protocol defines ``BCN
weapons'' as biological, chemical, and nuclear weapons
and other nuclear explosive devices) in a manner that
causes or is likely to cause death or serious injury or
damage;
ii. Discharges, from a ship, oil, liquefied natural
gas, or other hazardous or noxious substance (not
already covered by (i) above) in such quantity or
concentration that causes or is likely to cause death
or serious injury or damage;
iii. Uses a ship in a manner that causes death or
serious injury or damage; or
iv. Threatens, with or without a condition, as is
provided for under national law, to commit an offense
set forth above in (i), (ii), or (iii).
2. Proliferation Offenses (Article 3bis(1)(b) & (2)):
Any person also commits an offense if that person
unlawfully and intentionally transports on board a ship--
i. Any explosive or radioactive material, knowing
that it is intended to be used to cause, or in a threat
to cause, with or without a condition, as is provided
for under national law, death or serious injury or
damage for the purpose of intimidating a population, or
compelling a government or an international
organization to do or to abstain from doing any act;
ii. Any BCN weapon, knowing it to be a BCN weapon;
iii. Any source material, special fissionable
material, or equipment or material especially designed
or prepared for the processing, use or production of
special fissionable material, knowing that it is
intended to be used in a nuclear explosive activity or
in any other nuclear activity not under safeguards
pursuant to an International Atomic Energy Agency
(IAEA) comprehensive safeguards agreement; or
iv. Any equipment, materials or software or related
technology that significantly contributes to the
design, manufacture or delivery of a BCN weapon, with
the intention that it will be used for such purpose.
Article 4(5) of the 2005 SUA Protocol adds to the
Convention, inter alia, a new Article 3bis(2), which provides
that certain nuclear transport that would otherwise be an
offense under Article 3bis(1)(b) remains permissible, in order
to preserve the right of a State Party to the Treaty on Non-
Proliferation of Nuclear Weapons (the ``NPT'') to engage in
legitimate nuclear transport. This provision, in combination
with the general provision in Article 2bis(3) declaring that
the Convention shall not affect the rights and obligations of
States Parties under the NPT, ensures that the Convention is
consistent with the rights and obligations of the States
Parties to the NPT (except to the extent that the Convention
goes beyond the NPT with respect to nuclear weapon delivery
systems). Specifically, Article 3bis(2) provides that the
Convention would not require criminalization of the transport
to or from the territory of, or under the control of, an NPT
State Party of source or special fissionable material, or of
equipment or material especially designed or prepared for the
processing, use or production of special fissionable material,
as long as the resulting transfer or receipt of such items or
materials is not contrary to the NPT obligations of the NPT
State Party. This is the case even when a non-NPT party (for
instance, India) is on the ``other end'' of the transport to or
from (or under the control of) the NPT State Party.
3. Transportation of Terrorist Fugitives Offense (Article
3ter):
Article 4(6) of the 2005 SUA Protocol adds Article 3ter to
the Convention, which makes it an offense for a person to
unlawfully and intentionally transport another person on board
a ship, with the intent to assist that person in evading
criminal prosecution and knowing that the person has committed
an act that constitutes an offense set forth in Articles 3,
3bis, or 3quater of the amended SUA Convention or an offense
set forth in one of the treaties listed in the Annex to the
Convention. Currently, there are nine treaties listed in the
Annex and the United States is a party to all nine.
4. Accessory Offenses (Article 3quater):
Paragraph 7 of Article 4 of the 2005 SUA Protocol adds
Article 3quater to the Convention, which makes it an offense
for a person to--
a. Unlawfully and intentionally injure or kill any
person in connection with the commission of any of the
offenses set forth in Articles 3(1), 3bis, or 3ter of
the amended SUA Convention;
b. Attempt to commit an offense set forth in Articles
3(1), 3bis(1)(a)(i), (ii), (iii), or 3quater(a) of the
amended SUA Convention;
c. Participate as an accomplice in an offense set
forth in Articles 3, 3bis, 3ter, 3quater(a), or
3quater(b) of the amended SUA Convention;
d. Organize or direct others to commit an offense set
forth in Articles 3, 3bis, 3ter, 3quater(a), or
3quater(b) of the amended SUA Convention; or
e. Contribute to the commission of one or more
offenses set forth in Articles 3, 3bis, 3ter,
3quater(a) or 3quater(b) of the amended SUA Convention
by a group of persons acting with a common purpose,
intentionally and either:
i. With the aim of furthering the criminal
activity or criminal purpose of the group,
where such activity or purpose involves the
commission of an offense set forth in Articles
3, 3bis, or 3ter of the amended SUA Convention;
or
ii. In the knowledge of the intention of the
group to commit an offense set forth in
Articles 3, 3bis, or 3ter of the amended SUA
Convention.
Shipboarding Regime
Article 8(2) of the 2005 SUA Protocol adds Article 8bis to
the Convention, which creates a shipboarding regime by
establishing a comprehensive set of procedures and protections
designed to facilitate the boarding of a vessel flying the flag
of a State Party by another State Party when that Party has
reasonable grounds to suspect that the vessel or a person on
board the vessel is, has been, or is about to be involved in
the commission of an offense covered by the Convention.
The authorization and co-operation of the flag State Party
is required before the requesting State Party can board and
search the vessel. States Parties may, however, provide their
consent in advance by notifying the IMO Secretary-General that
any other State Party may board and search one of its vessels
if that State Party has reasonable grounds to suspect that the
vessel or a person on board the vessel is, has been, or is
about to be involved in the commission of an offense covered by
the Convention. Alternatively, States Parties may declare in
advance (by notifying the IMO Secretary-General) that any other
State Party may board and search one of their vessels under
such circumstances, if they don't respond to a State Party's
request for authorization within four hours. The United States
will not file a notification with the IMO Secretary-General
granting either of these two forms of advance consent.
Paragraph 10 of Article 8bis establishes a number of safeguard
provisions to protect seafarers and carriers during the course
of shipboardings.
In response to questions from the committee, the Department
of Defense described how the shipboarding regime would
strengthen international cooperation in conducting maritime
interdictions intended to counter terrorism and proliferation
as follows:
The ship boarding provisions under [the 2005 SUA Protocol]
will facilitate timely coordination of boarding requests from
flag states, some of which are not participating in [the
Proliferation Security Initiative or ``PSI''] and may not
choose to enter into bilateral agreements with the United
States. The [2005 SUA Protocol] will provide the benefits of a
streamlined process in the context of a multilateral
convention. The SUA shipboarding regime will serve to
strengthen the international legal basis for interdictions at
sea carried out under the PSI. The shipboarding regime in the
2005 SUA Protocol will provide a multilateral basis for the
interdiction at sea of WMD, their delivery systems, and related
materials, as well as terrorist fugitives. It will also provide
an internationally accepted model for shipboarding that can be
used with states that are not party to SUA or participants in
PSI.
B. 2005 FIXED PLATFORMS PROTOCOL
Incorporation of Relevant Provisions of the 1988 SUA Convention, as
Amended by the 2005 SUA Protocol
Article 2 of the Fixed Platforms Protocol amends Article 1
of the 1988 Fixed Platforms Agreement to incorporate all of the
substantive provisions of the 1988 SUA Convention, as amended
by the 2005 SUA Protocol, with the exception of those
provisions that address transport offenses and the shipboarding
regime, which are not relevant in the context of fixed
platforms. These provisions include, among other things, (1)
definitions of terms used in the treaty; (2) the obligation to
make offenses punishable under domestic law; (3) the
establishment of liability for legal entities; (4) a guarantee
of fair treatment to those held in custody; (5) the obligation
to extradite or prosecute; (6) the framework for transferring
persons in custody; (7) obligations to assist with criminal
investigations under the treaty; and (8) obligations to share
information and to take all ``practicable measures'' to prevent
preparation for the commission of offenses covered by the
treaty.
New Offenses
Article 4 of the Fixed Platforms Protocol adds two new
Articles (Articles 2bis and 2ter) to the 1988 Fixed Platforms
Agreement, which define new offenses to be covered by the
framework. The offense under new Article 2bis is as follows:
Any person commits an offense 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 doing any act--
a. Uses against or on a fixed platform or discharges
from a fixed platform any explosive, radioactive
material or BCN weapon in a manner that causes or is
likely to cause death or serious injury or damage;
b. Discharges, from a fixed platform, oil, liquefied
natural gas, or other hazardous or noxious substance
(not already covered by (a) above) in such quantity or
concentration that causes or is likely to cause death
or serious injury or damage; or
c. Threatens, with or without a condition, as is
provided for under national law, to commit an offense
set forth above in (a) or (b).
The new Article 2ter makes it an offense for a person to--
a. Unlawfully and intentionally injure or kill any
person in connection with the commission of any of the
offenses set forth in Articles 2(1) or 2bis of the
amended Fixed Platforms Agreement;
b. Attempt to commit an offense set forth in Articles
2(1), 2bis(a), 2bis(b), or 2ter(a) of the amended Fixed
Platforms Agreement;
c. Participate as an accomplice in an offense set
forth in Articles 2, 2bis, 2ter(a), or 2ter(b) of the
amended Fixed Platforms Agreement;
d. Organize or direct others to commit an offense set
forth in Articles 2, 2bis, 2ter(a), or 2ter(b) of the
amended Fixed Platforms Agreement; or
e. Contribute to the commission of one or more
offenses set forth in Articles 2, 2bis, 2ter(a), or
2ter(b) of the amended Fixed Platforms Agreement by a
group of persons acting with a common purpose,
intentionally and either:
i. With the aim of furthering the criminal
activity or criminal purpose of the group,
where such activity or purpose involves the
commission of an offense set forth in Articles
2 or 2bis of the amended Fixed Platforms
Agreement; or
ii. In the knowledge of the intention of the
group to commit an offense set forth in
Articles 2 or 2bis of the amended Fixed
Platforms Agreement.
IV. Entry Into Force
In accordance with Article 18, the 2005 SUA Protocol will
enter into force 90 days following the date on which 12 States
have expressed their consent to be bound by the Protocol. If
the United States deposits an instrument of ratification after
12 States have expressed their consent to be bound by the 2005
SUA Protocol, the Protocol will enter into force for the United
States 90 days after the deposit of the U.S. instrument. To
date, 6 States have joined the 2005 SUA Protocol.
In accordance with Article 9, the 2005 Fixed Platforms
Protocol will enter into force 90 days following the date on
which three States have expressed their consent to be bound by
the Protocol, but will not enter into force before the 2005 SUA
Protocol. If the United States deposits an instrument of
ratification after the 2005 SUA Protocol has entered into force
and after three States have expressed their consent to be bound
by the 2005 Fixed Platforms Protocol, the 2005 Fixed Platforms
Protocol will enter into force for the United States 90 days
after the deposit of the U.S. instrument. To date, 4 States
have joined the 2005 Fixed Platforms Protocol.
V. Implementing Legislation
With the exception of the provisions in the 2005 SUA
Protocol and the 2005 Fixed Platforms Protocol that obligate
the United States to criminalize certain offenses, to make
those offenses punishable by appropriate penalties, and to
authorize the assertion of jurisdiction over such offenses,
these Protocols are self-executing. The provisions that are not
self-executing require implementing legislation. In light of
this, the Department of Justice submitted on May 8, 2007, a
draft bill to Congress that would amend Sections 2280 and 2281
of Title 18, United States Code, in order to fully implement
both Protocols. Another draft of that legislation was
subsequently submitted by the Department of Justice on July 28,
2008. According to the Department of Justice, this second draft
has been adjusted ``to ensure consistency in legislation
implementing various counterterrorism conventions.'' The draft
legislation submitted in July is currently under consideration
by the Committees on the Judiciary of the House and Senate. The
committee understands that the executive branch will not
deposit instruments of ratification for either of these
Protocols until the necessary legislation has been enacted to
allow the United States to fully implement the Protocols.
VI. Committee Action
The committee held a public hearing on these two Protocols
on May 7, 2008. Testimony was received from Ms. Patricia
McNerney, Principal Deputy Assistant Secretary of State for
International Security and Nonproliferation at the Department
of State; Mr. John Demers, Deputy Assistant Attorney General
for the National Security Division at the Department of
Justice; and Mr. Richard Douglas, Deputy Assistant Secretary of
Defense for Counternarcotics, Counter-proliferation and Global
Threats at the Department of Defense. A transcript of this
hearing can be found in the Annex to Executive Report 110-23.
On July 29, 2008, the committee considered the 2005 SUA
Protocol and the 2005 Fixed Platforms Protocol and ordered them
favorably reported by voice vote, with a quorum present and
without objection.
VII. Committee Recommendation and Comments
The Committee on Foreign Relations believes that these two
Protocols will enhance U.S. national security by modernizing
and strengthening the international counterproliferation and
counterterrorism legal framework. As noted by the Department of
Defense, these agreements will ``close international legal gaps
by criminalizing the use of a ship to transport terrorists or
as a weapon and by criminalizing maritime transport of WMD,
their delivery systems, and related materials.'' The
shipboarding regime established by the 2005 SUA Protocol will
also provide a stronger international legal basis for
conducting maritime interdictions and, when combined with the
offenses established in both Protocols, the new regime will
complement and improve existing international cooperation in
the investigation, prosecution, and extradition of those who
commit or aid terrorist acts or trafficking in WMD aboard ships
at sea or on fixed platforms. Moreover, these Protocols
facilitate the enforcement of United Nations Security Council
sanctions against countries such as Iran and North Korea, and
complement and further the objectives of the nonproliferation
obligations set forth in United Nations Security Council
Resolutions 1540 (2004).\1\ Resolution 1540, which is generally
reaffirmed by Resolutions 1673 (2006) and 1810 (2008),\2\ among
other things, requires all States to enact laws to prohibit
``any non-State actor to manufacture, acquire, possess,
develop, transport, transfer or use nuclear, chemical or
biological weapons and their means of delivery, in particular
for terrorist purposes.'' Accordingly, the committee urges the
Senate to act promptly to give advice and consent to
ratification of these Protocols, as set forth in this report
and the accompanying resolution of advice and consent.
---------------------------------------------------------------------------
\1\S/RES/1540, April 29, 2004, available at http://www.un.org/Docs/
sc/unsc_resolutions04.html
\2\S/RES/1673, April 27, 2006, available at http://www.un.org/Docs/
sc/unsc_resolutions06.htm; S/RES/1810, April 25, 2008, available at
http://www.un.org/Docs/sc/unsc_resolutions08.htm. Resolutions 1673 and
1810 generally reiterate and reaffirm the decisions and requirements
included in Resolution 1540 and they each extend the mandate of a
Committee that was established under Resolution 1540.
---------------------------------------------------------------------------
A. AMENDMENTS TO THE ANNEX
Article 7 of the 2005 SUA Protocol adds an Annex to the
1988 SUA Convention, which relates to a new offense established
by Article 4(6) of the 2005 SUA Protocol. Article 4(6) makes it
an offense for a person to unlawfully and intentionally
transport another person on board a ship, with the intent to
assist that person in evading criminal prosecution and knowing
that the person has committed an act that constitutes an
offense covered by the amended SUA Convention or an offense set
forth in one of the treaties listed in the Annex added by
Article 7 of the 2005 SUA Protocol. Currently, there are nine
treaties listed in the Annex and the United States is a party
to all nine.\3\
---------------------------------------------------------------------------
\3\(1) Convention for the Suppression of Unlawful Seizure of
Aircraft, Treaty Doc. 92-1; (2) Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, Treaty Doc. 92-32;
(3) Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, Treaty Doc. 93-36; (4) International
Convention against the Taking of Hostages, Treaty Doc. 96-49; (5)
Convention on the Physical Protection of Nuclear Material, Treaty Doc.
96-43; (6) Protocol for the Suppression of Unlawful Acts of Violence at
Airports Serving International Civil Aviation, supplementary to the
Convention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation, Treaty Doc. 100-19; (7) Protocol for the Suppression of
Unlawful Acts against the Safety of Fixed Platforms Located on the
Continental Shelf, Treaty Doc. 101-1; (8) International Convention for
the Suppression of Terrorist Bombings, Treaty Doc. 106-6; (9)
International Convention for Suppression of the Financing of Terrorism,
Treaty Doc. 106-49.
---------------------------------------------------------------------------
Article 22 of the 2005 SUA Protocol provides a procedure
for amending the Annex to add new treaties, but only if they
(1) are open to the participation of all States; (2) have
entered into force; and (3) have been ratified, accepted,
approved, or acceded to by at least 12 States Parties to the
2005 SUA Protocol. Article 22(3) provides that a proposal to
amend the Annex in accordance with Article 22 will be deemed
adopted after more than 12 of the States Parties to the 2005
SUA Protocol consent to it by written notification to the IMO
Secretary-General, but in no case will a State Party be bound
by the amendment to the Annex unless it deposits an instrument
of ratification, acceptance, or approval for that amendment.\4\
---------------------------------------------------------------------------
\4\See Article 22(4) of the 2005 SUA Protocol.
---------------------------------------------------------------------------
In the Letter of Submittal from the Secretary of State to
the President, which is reprinted in full in Treaty Document
110-8, it is noted that if the Senate has already provided
advice and consent to the treaty that is the subject of an
amendment to the Annex, the executive branch would expect to
proceed to deposit an instrument of acceptance for the
amendment without separately seeking the advice and consent of
the Senate for that amendment.\5\ On the other hand, if the
amendment provides for the addition of a treaty that has not
received the advice and consent of the Senate, the executive
branch would expect to seek the advice and consent of the
Senate prior to consenting to the amendment.\6\
---------------------------------------------------------------------------
\5\See the Secretary of State's Letter of Submittal, Treaty Doc.
110-8 at XXIX.
\6\Ibid.
---------------------------------------------------------------------------
The committee recognizes the reasoning behind this
suggested approach by the executive branch to amendments to the
Annex, and agrees that any amendment that provides for the
addition of a treaty to the Annex that has not received the
advice and consent of the Senate, would require the advice and
consent of the Senate. The committee, however, believes that it
is also possible that an amendment to the Annex adding a treaty
to which the Senate has already provided its advice and
consent, could require the advice and consent of the Senate.
The committee, therefore, expects the executive branch to
consult with the committee in a timely manner regarding such
amendments, which would in any case be likely to require
implementing legislation, in order to determine whether advice
and consent is necessary before the United States consents to
be bound by the amendment.
B. RESOLUTION
I. 2005 SUA Protocol
The committee has included in the resolution of advice and
consent for the 2005 SUA Protocol one reservation, five
understandings, and one declaration.
Reservation
With this reservation the United States would opt out of
the binding dispute resolution mechanism provided for in the
1988 SUA Convention with respect to disputes concerning the
interpretation or application of the 2005 SUA Protocol. This
reservation is similar to those made by the United States with
respect to the dispute settlement mechanisms in the Terrorist
Bombings and Terrorism Financing Conventions.
First Understanding
Article 3 of the 2005 SUA Protocol, which adds Article 2bis
to the 1988 SUA Convention, excludes from the scope of the
amended Convention the activities of armed forces during an
armed conflict, which are instead governed by ``international
humanitarian law'' (also known as the ``law of war''). This
carve-out is identical to the one found in Article 19(2) of the
Terrorist Bombings Convention, as well as Article 4 of the
Nuclear Terrorism Convention. The proposed understanding would
make it clear that this carve-out does not include certain
situations such as ``internal disturbances and tensions, such
as riots, isolated and sporadic acts of violence, and other
acts of a similar nature,'' in an effort to prevent attempts by
suspected offenders to claim the benefit of this ``armed
conflict'' exception in order to improperly avoid extradition
or prosecution under the Convention. This understanding is the
same as the understanding included in the Senate's resolution
regarding the Terrorist Bombings Convention with respect to
Article 19(2).
Second Understanding
Article 3 of the 2005 SUA Protocol, which adds Article 2bis
to the 1988 SUA Convention, uses the term ``international
humanitarian law.'' This term is not generally used by the
United States armed forces and therefore the committee has
included, on the basis of the State Department's
recommendation, this proposed understanding to make clear that
the term ``international humanitarian law'' has the same
substantive meaning as ``law of war.''
Third Understanding
Article 3 of the 2005 SUA Protocol, which adds Article 2bis
to the 1988 SUA Convention, excludes from the scope of the
amended Convention ``activities undertaken by military forces
of a State in the exercise of their official duties, inasmuch
as they are governed by other rules of international law.'' The
committee, on the basis of the State Department's
recommendation, has included this proposed understanding in
order to clarify that the conduct of certain civilians who
direct or organize or act with the military are also exempted
from the Convention's scope of application.
Fourth Understanding
Article 3 and 4(5) of the 2005 SUA Protocol add two new
articles to the 1988 SUA Convention: Article 2bis and Article
3bis. Article 2bis(3) of the amended Convention provides that
nothing in the amended Convention shall affect the rights,
obligations, and responsibilities of States Parties under
various associated non-proliferation treaties,\7\ and Article
3bis(2) of the amended Convention, which constitutes a
nonproliferation ``savings clause'' by specifying that nuclear
transport activities remain permissible under the amended
Convention in certain circumstances, notwithstanding the
wording of the offenses in Article 3bis(1)(b). Article
3bis(1)(b) of the amended Convention makes it an offense to
transport certain items as described in subparagraphs (i),
(ii), (iii), and (iv) on board a ship. In particular, Article
3bis(1)(b)(iii) provides that it is an offense to transport on
board a ship any source material, special fissionable material,
or equipment or material especially designed or prepared for
the processing, use, or production of special fissionable
material, knowing that it is intended to be used in a nuclear
explosive activity or in any other nuclear activity not under
safeguards pursuant to an IAEA comprehensive safeguards
agreement. The committee, on the basis of the State
Department's recommendation, has included the proposed
understanding in order to clarify the applicability of Article
2bis(3) and Article 3bis(2) of the amended Convention to the
offense established in the new Article 3bis(1)(b)(iii) of the
amended Convention.
---------------------------------------------------------------------------
\7\The Treaty on the Non-Proliferation of Nuclear Weapons, the
Convention on the Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on
their Destruction, and the Convention on the Prohibition of the
Development, Production, Stockpiling and Use of Chemical Weapons and on
their Destruction.
---------------------------------------------------------------------------
Fifth Understanding
This proposed understanding would make it clear that
existing U.S. law implements the obligations contained in
Article 9 of the 2005 SUA Protocol.
Declaration
The committee has included a proposed declaration, which
states that the 2005 SUA Protocol is self-executing, with the
exception of those provisions that obligate the United States
to criminalize certain offenses, make those offenses punishable
by appropriate penalties, and authorize the assertion of
jurisdiction over such offenses. In addition, the proposed
declaration clarifies that none of the provisions in the 2005
SUA Protocol confer private rights enforceable in U.S. courts.
This declaration is consistent with testimony provided by the
Department of State. The Senate has rarely included statements
regarding the self-executing nature of treaties in resolutions
of advice and consent, but in light of the recent Supreme Court
decision, Medellin v. Texas, 128 S.Ct. 1346 (2008), the
committee has determined that a clear statement in the
resolution is warranted. A further discussion of the
committee's views on this matter can be found in Section VIII
of Executive Report 110-12.
II. 2005 Fixed Platforms Protocol
The committee has included in the resolution of advice and
consent one reservation, four understandings, and one
declaration.
Reservation
With this reservation the United States would opt out of
the binding dispute resolution mechanism provided for in the
1988 SUA Convention and incorporated by reference into the 2005
Fixed Platforms Protocol with respect to disputes concerning
the interpretation or application of the 2005 Fixed Platforms
Protocol. This reservation is similar to those made by the
United States with respect to the dispute settlement mechanisms
in the Terrorist Bombings and Terrorism Financing Conventions.
First Understanding
Article 2 of the 2005 Fixed Platforms Protocol incorporates
by reference Article 2bis(2) of the amended SUA Convention,
which excludes from the scope of the Fixed Platforms Agreement,
as amended by the Fixed Platforms Protocol, the activities of
armed forces during an armed conflict, which are instead
governed by ``international humanitarian law'' (also known as
the ``law of war''). This carve-out is identical to the one
found in Article 19(2) of the Terrorist Bombings Convention, as
well as Article 4 of the Nuclear Terrorism Convention. The
proposed understanding would make it clear that this carve-out
does not include certain situations such as ``internal
disturbances and tensions, such as riots, isolated and sporadic
acts of violence, and other acts of a similar nature,'' in an
effort to prevent attempts by suspected offenders to claim the
benefit of this ``armed conflict'' exception in order to
improperly avoid extradition or prosecution under the
Convention. This understanding is the same as the understanding
included in the Senate's resolution regarding the Terrorist
Bombings Convention with respect to Article 19(2).
Second Understanding
Article 2 of the 2005 Fixed Platforms Protocol incorporates
by reference Article 2bis of the amended SUA Convention, which
uses the term ``international humanitarian law.'' The term
``international humanitarian law'' is not generally used by the
United States armed forces and therefore the committee has
included, on the basis of the State Department's
recommendation, this proposed understanding to make clear that
the term ``international humanitarian law'' has the same
substantive meaning as ``law of war.''
Third Understanding
Article 2 of the 2005 Fixed Platforms Protocol incorporates
by reference Article 2bis(2) of the amended SUA Convention,
which excludes from the scope of the Fixed Platforms Agreement,
as amended by the Fixed Platforms Protocol, the ``activities
undertaken by military forces of a State in the exercise of
their official duties, inasmuch as they are governed by other
rules of international law.'' The committee, on the basis of
the State Department's recommendation, has included this
proposed understanding in order to clarify that the conduct of
certain civilians who direct or organize or act with the
military are also exempted from the Convention's scope of
application.
Fourth Understanding
This proposed understanding would make it clear that
existing U.S. law implements the obligations contained in
Article 10(2) of the amended SUA Convention, which is
incorporated into the 2005 Fixed Platforms Protocol through
Article 2.
Declaration
The committee has included a proposed declaration, which
states that the 2005 Fixed Platforms Protocol is self-
executing, with the exception of those provisions that obligate
the United States to criminalize certain offenses, make those
offenses punishable by appropriate penalties, and authorize the
assertion of jurisdiction over such offenses. In addition, the
proposed declaration clarifies that none of the provisions in
the 2005 Fixed Platforms Protocol confer private rights
enforceable in U.S. courts. This declaration is consistent with
testimony provided by the Department of State. The Senate has
rarely included statements regarding the self-executing nature
of treaties in resolutions of advice and consent, but in light
of the recent Supreme Court decision, Medellin v. Texas, 128
S.Ct. 1346 (2008), the committee has determined that a clear
statement in the resolution is warranted. A further discussion
of the committee's views on this matter can be found in Section
VIII of Executive Report 110-12.
VIII. Resolutions of Advice and Consent to Ratification
2005 SUA PROTOCOL
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A RESERVATION,
UNDERSTANDINGS, AND A DECLARATION.
The Senate advises and consents to the ratification of the
Protocol of 2005 to the Convention for the Suppression of
Unlawful Acts against the Safety of Maritime Navigation,
adopted on October 14, 2005, and signed on behalf of the United
States of America on February 17, 2006 (the ``2005 SUA
Protocol'') (Treaty Doc. 110-8), subject to the reservation of
section 2, the understandings of section 3, and the declaration
of section 4.
SECTION 2. RESERVATION
The advice and consent of the Senate under section 1 is
subject to the following reservation, which shall be included
in the instrument of ratification:
Consistent with Article 16(2) of the Convention for
the Suppression of Unlawful Acts against the Safety of
Maritime Navigation, 2005, the United States of America
declares that it does not consider itself bound by
Article 16(1) of the Convention with respect to
disputes concerning the interpretation or application
of the 2005 SUA Protocol.
SECTION 3. UNDERSTANDINGS
The advice and consent of the Senate under section 1 is
subject to the following understandings, which shall be
included in the instrument of ratification:
(1) The United States of America understands that the
term ``armed conflict'' in Article 3 of the 2005 SUA
Protocol (which adds, inter alia, paragraph 2 of
Article 2bis to the Convention for the Suppression of
Unlawful Acts against the Safety of Maritime
Navigation) does not include internal disturbances and
tensions, such as riots, isolated and sporadic acts of
violence, and other acts of a similar nature.
(2) The United States of America understands that the
term ``international humanitarian law,'' in Article 3
of the 2005 SUA Protocol (which adds, inter alia,
paragraph 1 and 2 of Article 2bis to the Convention for
the Suppression of Unlawful Acts against the Safety of
Maritime Navigation) has the same substantive meaning
as the ``law of war.''
(3) The United States of America understands that,
pursuant to Article 3 of the 2005 SUA Protocol (which
adds, inter alia, paragraph 2 of Article 2bis to the
Convention for the Suppression of Unlawful Acts against
the Safety of Maritime Navigation), the Convention for
the Suppression of Unlawful Acts against the Safety of
Maritime Navigation 2005, does not apply to: (a) the
military forces of a State, which are the armed forces
of a State organized, trained, and equipped under its
internal law for the primary purpose of national
defense or security, in the exercise of their official
duties; (b) civilians who direct or organize the
official activities of military forces of a State; or
(c) civilians acting in support of the official
activities of the military forces of a State, if the
civilians are under the formal command, control, and
responsibility of those forces.
(4) The United States of America understands that:
A. Article 3 and Article 4(5) of the 2005 SUA
Protocol (which add, inter alia, Article
2bis(3) and Article 3bis(2), respectively, to
the Convention for the Suppression of Unlawful
Acts against the Safety of Maritime Navigation
(together referred to as ``the NPT savings
clauses'')) protect from criminal sanction
under the Convention for the Suppression of
Unlawful Acts against the Safety of Maritime
Navigation, 2005, the transport of source
material, special fissionable material, or
equipment or material especially designed or
prepared for the processing, use, or production
of special fissionable material:
i. from the territory of, or
otherwise under the control of, a State
Party to the Treaty on the Non-
Proliferation of Nuclear Weapons
(``NPT'') to the territory of, or
otherwise under the control of, another
NPT State Party or a state that is not
an NPT party; and
ii. from the territory of, or
otherwise under the control of, a state
that is not an NPT party to the
territory of, or otherwise under the
control of, an NPT State Party,
where the resulting transfer or receipt of such
items or materials is not contrary to the NPT
obligations of the NPT State Party.
B. The following are illustrative examples of
transport of source material, special
fissionable material, and equipment or material
especially designed or prepared for the
processing, use, or production of special
fissionable material that would not constitute
offenses under the Convention for the
Suppression of Unlawful Acts against the Safety
of Maritime Navigation, 2005, by virtue of the
savings clauses:
i. Transport of source material or
special fissionable material (from
either an NPT State Party or a State
that is not an NPT party) to an NPT
nuclear-weapon State Party, as that
term is defined in the NPT, regardless
of whether the source material or
special fissionable material will be
under safeguards in the NPT nuclear-
weapon State Party, because the
resulting receipt of the material is
not contrary to the NPT obligations of
the nuclear-weapon State Party;
ii. Transport of source material or
special fissionable material to a non-
nuclear-weapon State Party, as such
term is used in the NPT, for non-
nuclear use without safeguards, in
accordance with the provisions of the
recipient country's IAEA comprehensive
safeguards agreement allowing for
exemption of the source material or
special fissionable material from
safeguards or the non-application or
termination of safeguards (e.g., for
specified de minimis amounts, or for
use in a non-proscribed military
activity which does not require the
application of IAEA safeguards or in a
non-nuclear use such as the production
of alloys or ceramics);
iii. Transport of source material or
special fissionable material or
especially designed or prepared
equipment, as described in Article 4(5)
of the 2005 SUA Protocol (which adds
Article 3bis(1)(b)(iii) to the
Convention for the Suppression of
Unlawful Acts against the Safety of
Maritime Navigation), from an NPT State
Party to a State that is not an NPT
party, so long as the relevant material
is for peaceful purposes and placed
under IAEA safeguards, consistent with
the NPT State Party's obligations under
Article III.2 of the NPT. If the source
or special fissionable material
transferred for peaceful purposes is
subject to an IAEA safeguards agreement
but is not required by that agreement
actually to be under safeguards (e.g.,
under an exemption for de minimis
amounts or a provision permitting
safeguards termination for non-nuclear
use), the transport would not
constitute an offense under Article
3bis(1)(b)(iii) of the Convention for
the Suppression of Unlawful Acts
against the Safety of Maritime
Navigation, 2005.
(5) The United States of America understands that current
United States law with respect to the rights of persons in
custody and persons charged with crimes fulfills the
requirement in Article 9 of the 2005 SUA Protocol and,
accordingly, the United States does not intend to enact new
legislation to fulfill its obligations under this Article.
SECTION 4. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
With the exception of the provisions that obligate
the United States to criminalize certain offenses, make
those offenses punishable by appropriate penalties, and
authorize the assertion of jurisdiction over such
offenses, the 2005 SUA Protocol is self-executing.
Included among the self-executing provisions are those
provisions obligating the United States to treat
certain offenses as extraditable offenses for purposes
of bilateral extradition treaties. None of the
provisions of the 2005 SUA Protocol, including Article
9, confer private rights enforceable in United States
courts.
2005 FIXED PLATFORMS PROTOCOL
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A RESERVATION,
UNDERSTANDINGS, AND A DECLARATION.
The Senate advises and consents to the ratification of the
Protocol of 2005 to the Protocol for the Suppression of
Unlawful Acts against the Safety of Fixed Platforms Located on
the Continental Shelf, adopted on October 14, 2005, and signed
on behalf of the United States of America on February 17, 2006
(the ``2005 Fixed Platforms Protocol'') (Treaty Doc. 110-8),
subject to the reservation of section 2, the understandings of
section 3, and the declaration of section 4.
SECTION 2. RESERVATION
The advice and consent of the Senate under section 1 is
subject to the following reservation, which shall be included
in the instrument of ratification:
Consistent with Article 16(2) of the Convention for
the Suppression of Unlawful Acts against the Safety of
Maritime Navigation, 2005, and incorporated by Article
2 of the 2005 Fixed Platforms Protocol, the United
States of America declares that it does not consider
itself bound by Article 16(1) of the Convention and
incorporated by Article 2 of the 2005 Fixed Platforms
Protocol, with respect to disputes concerning the
interpretation or application of the Protocol of 2005
to the Protocol for the Suppression of Unlawful Acts
against the Safety of Fixed Platforms Located on the
Continental Shelf.
SECTION 3. UNDERSTANDINGS
The advice and consent of the Senate under section 1 is
subject to the following understandings, which shall be
included in the instrument of ratification:
(1) The United States of America understands that the
term ``armed conflict'' as used in paragraph 2 of
Article 2bis of the Convention for the Suppression of
Unlawful Acts against the Safety of Maritime
Navigation, 2005, and incorporated by Article 2 of the
2005 Fixed Platforms Protocol, does not include
internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence, and other acts
of a similar nature.
(2) The United States of America understands that the
term ``international humanitarian law,'' as used in
paragraphs 1 and 2 of Article 2bis of the Convention
for the Suppression of Unlawful Acts against the Safety
of Maritime Navigation, 2005, and incorporated by
Article 2 of the 2005 Fixed Platforms Protocol, has the
same substantive meaning as the ``law of war.''
(3) The United States of America understands that,
pursuant to paragraph 2 of Article 2bis of the
Convention for the Suppression of Unlawful Acts against
the Safety of Maritime Navigation, 2005, and
incorporated by Article 2 of the 2005 Fixed Platforms
Protocol, the Protocol for the Suppression of Unlawful
Acts against the Safety of Fixed Platforms Located on
the Continental Shelf, 2005, does not apply to: (a) the
military forces of a State, which are the armed forces
of a State organized, trained, and equipped under its
internal law for the primary purpose of national
defense or security, in the exercise of their official
duties; (b) civilians who direct or organize the
official activities of military forces of a State; or
(c) civilians acting in support of the official
activities of the military forces of a State, if the
civilians are under the formal command, control, and
responsibility of those forces.
(4) The United States of America understands that
current United States law with respect to the rights of
persons in custody and persons charged with crimes
fulfills the requirement in paragraph 2 of Article 10
of the Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation, 2005, and
incorporated by Article 2 of the 2005 Fixed Platforms
Protocol, and, accordingly, the United States does not
intend to enact new legislation to fulfill its
obligations under this Article.
SECTION 4. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
With the exception of the provisions that obligate
the United States to criminalize certain offenses, make
those offenses punishable by appropriate penalties, and
authorize the assertion of jurisdiction over such
offenses, the 2005 Fixed Platforms Protocol is self-
executing. Included among the self-executing provisions
are those provisions obligating the United States to
treat certain offenses as extraditable offenses for
purposes of bilateral extradition treaties. None of the
provisions of the 2005 Fixed Platforms Protocol,
including those incorporating by reference Articles 7
and 10 of the Convention for the Suppression of
Unlawful Acts against the Safety of Maritime
Navigation, 2005, confer private rights enforceable in
United States courts.