Capt.S.S.Chaudhari

Q. What SUA Convention stands for? What was the relevant protocol?
It means Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, It was Adopted in March 1988, entered into force in March 1992.
The Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (SUA PROT) is a multilateral treaty by which states agree to prohibit and punish behavior which may threaten the safety of offshore fixed platforms, including oil platforms. The Protocol was adopted by the International Conference on the Suppression of Unlawful Acts against the Safety of Maritime Navigation at Rome on 10^th March 1988. Though, the Protocol is supplementary to the SUA Convention, it came into force on 1^st March 1992 on the same date that the SUA Convention came into force.

Q. What were the 2005 Protocols for?
In London in October 2005, the following protocols were concluded:

1. A supplementary Protocol to SUA was concluded. The full name of the Protocol is the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and is often abbreviated as “SUA 2005”. The 2005 Protocol adds a provision which criminalises the use of ships to transfer or discharge biological, chemical, or nuclear weapons. (However, the Protocol specifies that transporting nuclear materials is not an offence if it is transported to or from the territory or under the control of a state party to the Treaty on the Non-Proliferation of Nuclear Weapons.) It also prohibits ships from discharging oil, liquefied natural gas, radioactive materials, or other hazardous or noxious substances in quantities or concentrations that are likely to cause death or serious injury or damage. Finally, it prohibits the use of such weapons or substances against ships involved in maritime navigation.
   The 2005 Protocol came into force in July 2010.
2. A supplementary Protocol to SUA PROT was concluded. The full name of the 2005 Protocol is the Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf and is often abbreviated as “SUA PROT 2005”. The 2005 Protocol adds provisions which criminalise the use of fixed platforms to discharge biological, chemical, or nuclear weapons. It also prohibits ships from discharging oil, liquefied natural gas, radioactive materials, or other hazardous or noxious substances in quantities or concentrations that are likely to cause death or serious injury or damage. It also prohibits the use of such weapons or substances against fixed platforms.
   The Protocol came into force in July 2010.

Q. How does SUA Convention follow the principle of ‘aut dedere aut judicare’?
The Convention sets out the principle of ‘aut dedere aut judicare’. It means a state party to the treaty must either (1) prosecute a person who commits one of the offences or (2) send the individual to another state that requests his or her extradition for prosecution of the same crime.

Q. How is piracy defined in UNCLOS 82?
Article 101 of UNCLOS sets out the definition of piracy under international law, as follows:
Piracy consists of any of the following acts:    
(a) any illegal acts of violence or 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:   

1. on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;    
2. against a ship, aircraft, persons or property in a place outside the jurisdiction  of any State;

(b) 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;  
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Q. What is piracy according to the International Maritime Bureau?
Piracy is the act of boarding any vessel with an intent to commit theft or any other crime, and with an intent or capacity to use force in furtherance of that act.

Q. What is theft as defined in IPC?
The crime of theft has been defined under section 378. It defines the crime of theft as: Intending to take dishonestly, any movable property out of the possession of any person, without the (express or implied) consent of that person and moving that property in order of such taking, is committing the theft.

Q. What is extortion as defined in IPC?
Extortion has been defined under section 383.
Whosoever intentionally puts any person in the fear of any injury to that person, or to any other, thereby dishonestly inducing that person so put in fear, to deliver to any person;

• Any property or valuable security; or
• Anything signed or sealed that may be converted into a valuable security.

Q. When does the theft become robbery?
Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.

Q. When does the extortion become robbery?
Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. 

Q. What is burglary?
Burglary is breaking illegally and entering a building or other areas to commit a crime.

Q. What is dacoity as per IPC?
When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”.

Q. What were the practical instances of unlawful acts in 1980s?
Concern about unlawful acts which threaten the safety of ships and the security of their passengers and crews increased in frequency during the 1980s. These involved:  crews being abducted; ships being hi-jacked and deliberately run aground or blown up by explosives. Passengers were threatened and sometimes killed.

Q. What are the provisions about boarding by a State Party?
A new Article 8bis in the 2005 Protocol covers co-operation and procedures to be followed if a State Party desires to board a ship flying the flag of a State Party when the requesting Party has reasonable grounds to suspect that the ship or a person on board the ship is, has been, or is about to be involved in, the commission of an offence under the Convention.

Q. What is the provision about extradition?
Article 11 covers extradition procedures. A new Article 11bis states that none of the offences should be considered for the purposes of extradition as a political offence. New article 11ter states that the obligation to extradite or afford mutual legal assistance need not apply if the request for extradition is believed to have been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, political opinion or gender, or that compliance with the request would cause prejudice to that person’s position for any of these reasons.

Q. What is the provision for inter State cooperation?
Article 12 of the Convention requires States Parties to afford one another assistance in connection with criminal proceedings brought in respect of the offences. A new Article 12bis cover the conditions under which a person who is being detained or is serving a sentence in the territory of one State Party may be transferred to another State Party for purposes of identification, testimony or otherwise providing assistance in obtaining evidence for the investigation or prosecution of offences.

Q. What created the back ground for SUA Convention?
The following instruments created the groundwork.

• Resolution 40/61 of the General Assembly of the United Nations of December 1985, inter alia, “urges all States unilaterally and in co-operation with other States, as well as relevant United Nations organs, to contribute to the progressive elimination of causes underlying international terrorism and to pay special attention to all situations, including colonialism, racism and situations. Also the situations which may give rise to international terrorism and may endanger international peace and security”,
• Resolution A.584 (14) of November 1985, of the Assembly of the IMO, called for development of measures to prevent unlawful acts which threaten the safety of ships and the security of their passengers and crews.
• In 1986 the Maritime Safety Committee (MSC) issued a Circular (MSC/Circ.443) on Measures to prevent unlawful acts against passengers and crews on board ships.
• Relevant sections of UNCLOS, 82.

Q. What is serious injury?
Serious injury or damage” means: serious bodily injury; or extensive destruction of a place of public use, State or government facility, infrastructure facility, or public transportation system, resulting in major economic loss; or substantial damage to the environment, including air, soil, water, fauna, or flora.

Q. What is meant by BCN weapons?
They mean biological weapons, chemical weapons and nuclear weapons.

Q. What are biological weapons?
Biological weapons”, which are:

1. microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; or
2. weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

Q. What are chemical weapons?
Chemical weapons”, which are, together or separately:

1. Toxic chemicals and their precursors, except where intended for:
(a) industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes; or
(b) protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons; or
(c) military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare; or
(d) law enforcement including domestic riot control purposes, as long as the types and quantities are consistent with such purposes;

2. munitions and devices specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (ii)(1), which would be released as a result of the employment of such munitions and devices;
3. any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (ii)(2).

Q. What are nuclear weapons?
Nuclear weapons means nuclear weapons and other nuclear explosive devices.

Q. To which ships this Convention does not apply?
This Convention does not apply to:

• a warship; or
• a ship owned or operated by a State when being used as a naval auxiliary or for customs or police purposes; or
• a ship which has been withdrawn from navigation or laid up.

Q. When is a person said to commit an offence within the meaning of this Convention?
Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally:

• seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or
• 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
• 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
• 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 endangers or is likely to endanger the safe navigation of that ship; or
• 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
• communicates information which that person knows to be false, thereby endangering the safe navigation of a ship.

Any person also commits an offence if that person threatens, with or without a condition, as is provided for under national law, aimed at compelling a physical or juridical person to do or refrain from doing any act, to commit any of the relevant offences, if that threat is likely to endanger the safe navigation of the ship in question.

Q. What is added by article 3bis?
1.  Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally:
a. 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:

1. uses against or on a ship or discharges from a ship any explosive, radioactive material or BCN weapon in a manner that causes or is likely to cause death or serious injury or damage; or
2. discharges, from a ship, oil, liquefied natural gas, or other hazardous or noxious substance, which is not covered by subparagraph (a)(i), in such quantity or concentration that causes or is likely to cause death or serious injury or damage; or
3. uses a ship in a manner that causes death or serious injury or damage; or
4. threatens, with or without a condition, as is provided for under national law, to commit an offence set forth in subparagraph (a)(i), (ii) or (iii); or

b.    transports on board a ship:

1. 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; or
2. any BCN weapon, knowing it to be a BCN weapon as defined in article 1; or
3. 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; or
4. 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.

Q. Under 3bis, what has been clarified as not the offence?
It shall not be an offence within the meaning of this Convention to transport an item or material covered by paragraph 1(b) (iii) or, insofar as it relates to a nuclear weapon or other nuclear explosive device, paragraph 1(b) (iv), if such item or material is transported to or from the territory of, or is otherwise transported under the control of, a State Party to the Treaty on the Non-Proliferation of Nuclear Weapons where:

1. the resulting transfer or receipt, including internal to a State, of the item or material is not contrary to such State Party’s obligations under the Treaty on the Non-Proliferation of Nuclear Weapons and,
2. if the item or material is intended for the delivery system of a nuclear weapon or other nuclear explosive device of a State Party to the Treaty on the Non-Proliferation of Nuclear Weapons, the holding of such weapon or device is not contrary to that State Party’s obligations under that Treaty.

Q. Is it offence to transport a person unlawfully and intentionally on board a ship knowing that the person has committed an offence under this Convention?
Yes. Under 3ter,any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally transports another person on board a ship knowing that the person has committed an act that constitutes an offence set forth in article 3, 3bis or 3quater or an offence set forth in any treaty listed in the Annex, and intending to assist that person to evade criminal prosecution.

Q. Under article 3 quater, what is the provision in respect of preventing furtherance of criminal activity and the criminal act by a group?
Any person commits an offence within the meaning of this Convention if that person contributes to the commission of one or more offences set forth by a group of persons acting with a common purpose, intentionally and either: with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence; or in the knowledge of the intention of the group to commit an offence.

Q. When does this convention apply in case of an offender?
This Convention applies if the ship is navigating of is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States. If the Convention does not apply this way, it nevertheless applies when the offender or the alleged offender is found in the territory of a State Party.

Q. What must a State Party to punish the offenders?
Each State Party shall make the offences set forth, punishable by appropriate penalties which take into account the grave nature of those offences.
Article 5bis states, ‘each State Party, in accordance with its domestic legal principles, shall take the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for management or control of that legal entity has, in that capacity, committed an offence set forth in this Convention. Such liability may be criminal, civil or administrative.

Q. When and what must a State Party do to establish jurisdiction over an offence under the Convention?
Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth when the offence is committed: against or on board a ship flying the flag of the State at the time the offence is committed; or in the territory of own State, including its territorial sea; or by a national of own State.

Q. What if offence is committed by a Stateless person?
The State Party may also establish its jurisdiction when it is committed by a stateless person whose habitual residence is in that State; or during its commission a national of that State is seized, threatened, injured or killed; or it is committed in an attempt to compel the State to do or abstain from doing any act.

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