The Right of Visit and the 2005 Protocol on the Suppression of Unlawful Acts against the Safety of Maritime Navigation

Article excerpt

I. INTRODUCTION

On October 14, 2005, a second Protocol to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988 Convention) (1) was adopted at the International Maritime Organization (IMO). (2) The 1988 Convention had been developed as a response to the hijacking of the Italian vessel, the Achille Lauro, in Egyptian waters, and the murder onboard of a United States national. Austria, Egypt and Italy proposed the adoption of a treaty under the auspices of the IMO to set forth "comprehensive requirements for the suppression of unlawful acts committed against the safety of maritime navigation which endanger innocent human lives; jeopardise the safety of persons and property; seriously affect the operation of maritime services and, thus, are of grave concern to the international community as a whole." (3) The importance of this treaty at the time of its adoption was that it identified certain unlawful acts against ships and provided bases by which states could establish jurisdiction over the perpetrators of those unlawful acts. (4) What was missing from the 1988 Convention was effectively a means to apprehend offenders. The inclusion of a procedure in the 2005 Protocol to allow states to board ships marks a shift from merely providing lawful bases to establish jurisdiction to creating the means to exercise jurisdiction. (5)

Following the terrorist attacks on the United States on September 11, 2001, the potential for comparable attacks in the maritime industry was increasingly appreciated. The Assembly of the IMO decided in Resolution 924 to review existing legal and technical measures to prevent and suppress terrorist acts against ships both at port and at sea, as well as improve security aboard and ashore. (6) The Secretary-General of the IMO stated that the adoption of the 2005 Protocol "mark[ed] the completion of the tasks set by the IMO Assembly in resolution A.924(22)." (7)

The initial focus on revisions to the 1988 Convention concerned the expansion of offenses under Article 3 over which states parties could establish jurisdiction, rather than the inclusion of ship-boarding provisions to enforce jurisdiction. (8) This suggestion emerged in August 2002 following discussions among a Correspondence Group established by the United States. (9) As the 1988 Convention needed updating to reflect developments from subsequent counter terrorism treaties, (10) the United States similarly proposed that the amendments should take into account ship-boarding provisions that had developed through the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, (11) the Protocol against the Smuggling of Migrants by Land, Sea and Air, (12) as well as agreements relating to cooperation in suppressing illicit maritime trafficking in narcotic drugs and psychotropic substances in the Caribbean. (13) In drawing on these treaties, the amendments to the 1988 Convention thus expanded not only to reflect developments in relation to the suppression of international terrorism, but also to create a new legal basis by which states will be able to exercise the right of visit on the high seas. The United States, a key participant in negotiations, considers that the 2005 Protocol "establish[es] the most well-developed boarding procedures and safeguards in any instrument of its type." (14)

This Article focuses on the ship-boarding aspect of the new agreement, as the 2005 Protocol represents the latest exception to the traditional rules relating to the exclusive jurisdiction of the flag state over its vessels when those vessels are on the high seas. This innovation is important when considered in light of the United States' recent efforts under the Proliferation Security Initiative (PSI) to establish a regime intended to prevent the movement of weapons of mass destruction, their delivery systems and related materials between states and non-state actors of proliferation concern. …