Arms Control Today December 2005

Wade Boese

These new prohibitions are part of two protocols concluded Oct. 14 to amend the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, also known as the SUA Convention. The protocols will be opened for signature Feb. 14, 2006, after official texts are completed in Arabic, Chinese, English, French, Russian, and Spanish.

The protocol pertaining to ships will enter into force 90 days after 12 countries sign it without reservations. The fixed-platform protocol only requires the signature of three countries without reservations to trigger its 90-day countdown to entry into force. As with all treaties, only those countries signing the protocols will be legally bound by them.

An Oct. 21 Department of State fact sheet hailed the protocols as providing “the first international treaty framework for combating and prosecuting individuals who use a ship as a weapon or means of committing a terrorist attack, or transport by ship terrorists or cargo intended for use in connection with weapons of mass destruction programs.”

In addition to prohibiting shipments of unconventional weapons, the first protocol outlaws the transport of “any equipment, materials or software or related technology that significantly contributes to the design, manufacture or delivery of a [biological, chemical, or nuclear weapon], with the intention that it will be used for such purpose.” Many items used in producing unconventional weapons are dual-use, meaning they have both civilian and military applications, so proving intent could be challenging.

In a Nov. 17 e-mail to Arms Control Today, a State Department official downplayed the issue, asserting, “The intent provisions of [the] SUA [Convention] do not complicate prosecution any more than the intent provisions of most other criminal activity.” The official added that the protocol’s dual-use provisions are a valuable supplement to UN Security Council Resolution 1540’s legal obligations that all states adopt measures to deny nonstate actors unconventional weapons. (See ACT, May 2004.)

Although Russia said it supports the protocol, it argued Oct. 14 that the dual-use provision “is excessively wide and may open possibilities for subjective interpretation.” Moscow also added that the protocol could not be used to justify interdiction of ships carrying cargo to and from Russia.

Under international law, a vessel cannot be stopped and boarded in international waters without the consent of the government whose flag the ship is flying, except if the ship is suspected of piracy, slavery, or illegal broadcasting. The new protocol does not change this rule, but it does outline a voluntary expedited interdiction procedure. Through the International Maritime Organization (IMO), a government may grant prior authority for its flagged ships to be stopped and searched if a boarding request by another state goes unanswered for four hours. The IMO is a 166-member specialized UN agency responsible for international shipping matters.

The United States has negotiated similar bilateral shipboarding agreements as part of the May 2003 Proliferation Security Initiative (PSI) to interdict unconventional weapons transfers in transit. (See ACT, July/August 2003.) PSI is voluntary and does not provide any legal authority for participating states to carry out interdictions at sea. The State Department official stated the new protocol’s provisions facilitating shipboarding and criminalizing the transport of unconventional weapons at sea “lend additional legal strength to the objectives of PSI.”

India and Pakistan criticized as discriminatory the new protocol’s provisions that only states-parties to the 1968 nuclear Nonproliferation Treaty (NPT) can legally transport nuclear material. The protocol also holds that it is illegal to transfer equipment or material that can be used to produce fissile material—plutonium or highly enriched uranium—to destinations without comprehensive international safeguards for deterring or detecting the use of such material to build nuclear weapons. Neither India nor Pakistan is an NPT member, and neither has a comprehensive safeguards agreement in place.

New Delhi said Oct. 14 that it could not accept what it said was the protocol’s implication that India does not have a right to pursue peaceful uses of nuclear energy and expressed its “disappointment about the review process” leading to the adoption of the protocols. Similarly, Islamabad declared the same day that it “cannot accept NPT-related obligations which are reflected in the amendments to the Convention.” It further alleged the review process “was conducted in an arbitrary manner.”

Negotiation of the protocols stemmed from a November 2001 IMO Assembly decision to launch a review of the SUA Convention in the wake of the Sept. 11, 2001 terrorist attacks. Actual talks got underway in April 2002 and were wrapped up at a five-day October conference involving 74 SUA Convention states-parties, including India and Pakistan.