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[Senate Treaty Document 110-8]
[From the U.S. Government Printing Office]



110th Congress 
 1st Session                     SENATE                     Treaty Doc.
                                                                  110-8
_______________________________________________________________________

                                     

 
   PROTOCOLS OF 2005 TO THE CONVENTION CONCERNING SAFETY OF MARITIME 
NAVIGATION AND TO THE PROTOCOL CONCERNING SAFETY OF FIXED PLATFORMS ON 
                         THE CONTINENTAL SHELF

                               __________

                                MESSAGE

                                  from

                     THEPRESIDENTOFTHEUNITEDSTATES

                              transmitting



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'') (TOGETHER, 
``THE PROTOCOLS''), ADOPTED BY THE INTERNATIONAL MARITIME ORGANIZATION 
DIPLOMATIC CONFERENCE IN LONDON ON OCTOBER 14, 2005, AND SIGNED BY THE 
             UNITED STATES OF AMERICA ON FEBRUARY 17, 2006




October 1, 2007.--Treaty was read the first time, and together with the 
accompanying papers, referred to the Committee on Foreign Relations and 
            ordered to be printed for the use of the Senate.
                         LETTER OF TRANSMITTAL

                              ----------                              

                                  The White House, October 1, 2007.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to ratification, I transmit herewith 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'') (together, ``the Protocols''), adopted by 
the International Maritime Organization Diplomatic Conference 
in London on October 14, 2005, and signed by the United States 
of America on February 17, 2006. I also transmit, for the 
information of the Senate, the report of the Department of 
State with respect to the Protocols.
    The Protocols are an important component in the 
international campaign to prevent and punish maritime terrorism 
and the proliferation of weapons of mass destruction and 
promote the aims of the Proliferation Security Initiative. They 
establish a legal basis for international cooperation in the 
investigation, prosecution, and extradition of those who commit 
or aid terrorist acts or trafficking in weapons of mass 
destruction aboard ships at sea or on fixed platforms.
    The Protocols establish the first international treaty 
framework for criminalizing certain terrorist acts, including 
using a ship or fixed platform in a terrorist activity, 
transporting weapons of mass destruction or their delivery 
systems and related materials, and transporting terrorist 
fugitives. The Protocols require Parties to criminalize these 
acts under their domestic laws, to cooperate to prevent and 
investigate suspected crimes under the Protocols, and to 
extradite or submit for prosecution persons accused of 
committing, attempting to commit, or aiding in the commission 
of such offenses. The 2005 SUA Protocol also provides for a 
shipboarding regime based on flag state consent that will 
provide an international legal basis for interdiction at sea of 
weapons of mass destruction, their delivery systems and related 
materials, and terrorist fugitives.
    I recommend that the Senate give early and favorable 
consideration to the Protocols, subject to certain 
understandings that are described in the accompanying report of 
the Department of State.

                                                    George W. Bush.
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                          Washington, May 29, 2007.
The President,
The White House.
    The President: I have the honor to submit to you, with a 
view to its transmission to the Senate for advice and consent 
to ratification, subject to understandings set forth in the 
enclosed overview, 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) (together, ``the Protocols'') 
adopted by the International Maritime Organization (IMO) on 
October 14, 2005, and signed on behalf of the United States on 
February 17, 2006. The Protocols are an important component in 
the international campaign to prevent and punish maritime 
terrorism and the proliferation of weapons of mass destruction. 
They provide a legal basis for international cooperation in the 
investigation, prosecution, and extradition of those who commit 
or aid terrorist acts or trafficking in weapons of mass 
destruction aboard ships at sea or on fixed platforms.
    As of March 29, 2007, 18 States have signed both the 2005 
SUA Protocol and the 2005 Fixed Platforms Protocol, subject to 
ratification. In addition, two States have acceded to the 2005 
SUA Protocol. A detailed overview analysis of the provisions is 
enclosed with this Report. Recommended legislation necessary to 
implement the Protocols is being prepared for separate 
submission to the Congress. The Departments of Justice, 
Homeland Security, and Defense join in recommending that these 
Protocols be transmitted to the Senate at an early date for its 
advice and consent to ratification, subject to the 
understandings to Articles 3 and 4(5) of the 2005 SUA Protocol 
and to Article 2 of the 2005 Fixed Platforms Protocol. I 
recommend that these Protocols be transmitted to the Senate for 
its advice and consent to ratification.
    Respectfully submitted,
                                                  Condoleezza Rice.
    Enclosures: As stated.
Protocol of 2005 to the Convention for the Suppression of Unlawful Acts 
 Against the Safety of Maritime Navigation and Protocol of 2005 to the 
  Protocol for the Suppression of Unlawful Acts Against the Safety of 
            Fixed Platforms Located on the Continental Shelf


                                overview


    The Protocol of 2005 to the Convention for the Suppression 
of Unlawful Acts against the Safety of Maritime Navigation 
(``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 
(``2005 Fixed Platforms Protocol'') (together, ``the 
Protocols'') are an important component in the international 
campaign to prevent and punish maritime terrorism and the 
proliferation of weapons of mass destruction. The Protocols 
amend two International Maritime Organization (IMO) 
counterterrorism agreements to which the United States is 
party: the Convention for the Suppression of Unlawful Acts 
against the Safety of Maritime Navigation (``the Convention''), 
and its accompanying protocol, the Protocol for the Suppression 
of Unlawful Acts against the Safety of Fixed Platforms Located 
on the Continental Shelf (``the 1988 Protocol''), both done at 
Rome, March 10, 1988, S. Treaty Doc. 101-1. The Convention and 
1988 Protocol seek to ensure that all individuals who commit 
acts of terrorism that endanger the safe navigation of a ship 
or the safety of a fixed platform will be prosecuted in the 
State in which they are found, or extradited to another State 
for prosecution. The Convention and 1988 Protocol require 
States Parties to criminalize certain terrorist acts involving 
the safety of maritime navigation and fixed platforms, and they 
create a series of obligations relating to those offenses with 
the object of bringing the perpetrators to justice.
    Following the terrorist attacks of September 11, 2001, the 
international community recognized the urgent need for a more 
effective international regime to combat maritime terrorism and 
to conduct maritime interdictions of weapons of mass 
destruction. To this end, the United States led the effort to 
negotiate the Protocols for over three years in the IMO. The 
resulting Protocols fill several gaps in the existing treaty 
framework for combating global terrorism. The Protocols require 
States Parties to criminalize under their domestic laws certain 
acts, including using a ship or a fixed platform in terrorist 
activity, transporting weapons of mass destruction (``WMD''), 
their means of delivery or related materials, and transporting 
terrorist fugitives. The Protocols also incorporate many of the 
provisions in recent counterterrorism conventions to which the 
United States is already a party, such as the 1999 
International Convention for the Suppression of the Financing 
of Terrorism (``Terrorism Financing Convention''), S. Treaty 
Doc. 106-49, and the 1997 International Convention for the 
Suppression of Terrorist Bombings (``Terrorist Bombings 
Convention''), S. Treaty Doc. 106-6. Like prior conventions, 
the Protocols require Parties to extradite or submit for 
prosecution persons accused of committing, attempting to 
commit, or aiding in the commission of such offenses. The 2005 
SUA Protocol also creates a shipboarding regime based on flag 
state consent similar to agreements that the United States has 
concluded bilaterally as part of the Proliferation Security 
Initiative (``PSI'') (see www.state.gov/t/isn/cl0390.htm). This 
shipboarding regime will provide an international legal 
framework to facilitate interdiction on waters seaward of the 
territorial sea of any State of WMD, their means of delivery 
and related materials, and terrorist fugitives.
    As of March 29, 2007, 18 States have signed both the 2005 
SUA Protocol and the 2005 Fixed Platforms Protocol, subject to 
ratification. In addition, two States have acceded to the 2005 
SUA Protocol. The 2005 SUA Protocol will enter into force 90 
days after the date on which 12 States have expressed their 
consent to be bound. 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. However, the 
2005 Fixed Platforms Protocol may not enter into force before 
the 2005 SUA Protocol enters into force.
    Because the 2005 Fixed Platforms Protocol incorporates all 
of the provisions of the 2005 SUA Protocol, except those 
relating to transport offenses and the shipboarding regime, 
which are not relevant in the context of fixed platforms, this 
report first addresses the provisions of the 2005 SUA Protocol. 
It then details which of the 2005 SUA Protocol provisions are 
incorporated into the 2005 Fixed Platforms Protocol, with the 
intention that the same description of the underlying 
provisions also applies to their operation in the 2005 Fixed 
Platform Protocol. Finally, this analysis will also summarize 
the few additional provisions of the 2005 Fixed Platforms 
Protocol.


                         the 2005 sua protocol


Definitions
    Article 1 of the 2005 SUA Protocol defines, for the 
purposes of the Protocol, the terms ``Convention,'' 
``Organization,'' and ``Secretary-General'' as the Convention 
for the Suppression of Unlawful Acts against the Safety of 
Maritime Navigation, the IMO, and the IMO Secretary-General, 
respectively.
    Article 2 of the 2005 SUA Protocol amends Article 1 of the 
Convention to include and define additional terms used in the 
Convention. ``Transport'' means to initiate, arrange, or 
exercise effective control, including decision-making 
authority, over the movement of a person or item. ``Serious 
injury or damage'' means serious bodily injury; 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. Article 2 defines ``BCN weapons'' as biological weapons, 
chemical weapons, and nuclear weapons and other nuclear 
explosive devices. The definitions of biological and chemical 
weapons are drawn from the Convention on the Prohibition of the 
Development, Production, and Stockpiling of Bacteriological 
(Biological) and Toxin Weapons and on Their Destruction 
(``BWC''), S. Treaty Doc. 92-29, and the Convention on the 
Prohibition of the Development, Production, Stockpiling, and 
Use of Chemical Weapons and on Their Destruction (``CWC'') S. 
Treaty Doc. 103-21. Article 1 also defines ``toxic chemical'' 
and ``precursor'' in the same manner as the CWC. The United 
States is a party to the BWC and the CWC.
    Article 1 also provides that the terms ``place of public 
use,'' ``State or government facility,'' ``infrastructure 
facility,'' and ``public transportation system'' have the same 
meaning as is given to those terms in the Terrorist Bombings 
Convention, and that the terms ``source material'' and 
``special fissionable material'' have the same meaning as is 
given to those terms in the Statute of the International Atomic 
Energy Agency (``IAEA''), TIAS 3873. Those definitions are as 
follows:
     ``place of public use'' means those parts of any 
building, land, street, waterway or other location that are 
accessible or open to members of the public, whether 
continuously, periodically or occasionally, and encompasses any 
commercial, business, cultural, historical, educational, 
religious, governmental, entertainment, recreational or similar 
place that is so accessible or open to the public. (Terrorist 
Bombings Convention, Article 1(5)).
     ``State or government facility'' includes any 
permanent or temporary facility or conveyance that is used or 
occupied by representatives of a State, members of Government, 
the legislature or the judiciary or by officials or employees 
of a State or any other public authority or entity or by 
employees or officials of an intergovernmental organization in 
connection with their official duties. (Terrorist Bombings 
Convention, Article 1(1)).
     ``infrastructure facility'' means any publicly or 
privately owned facility providing or distributing services for 
the benefit of the public, such as water, sewage, energy, fuel, 
or communications. (Terrorist Bombings Convention, Article 
1(2)).
     ``public transportation system'' means all 
facilities, conveyances and instrumentalities, whether publicly 
or privately owned, that are used in or for publicly available 
services for the transportation of persons or cargo. (Terrorist 
Bombings Convention, Article 1(6)).
     ``source material'' means uranium containing the 
mixture of isotopes occurring in nature; uranium depleted in 
the isotope 235; thorium; any of the foregoing in the form of 
metal, alloy, chemical compound, or concentrate; any other 
material containing one or more of the foregoing in such 
concentration as the Board of Governors shall from time to time 
determine; and such other material as the Board of Governors 
shall from time to time determine. (IAEA Statute, Article 
XX(3)).
     ``special fissionable material'' means plutonium-
239; uranium-233; uranium enriched in the isotopes 235 or 233; 
any material containing one or more of the foregoing; and such 
other fissionable material as the Board of Governors shall from 
time to time determine; but the term ``special fissionable 
material'' does not include source material. (IAEA Statute, 
Article XX (1)).
Exclusions and exceptions
    Article 3 of the 2005 SUA Protocol adds Article 2bis to the 
Convention to address the interaction of the Convention with 
other rights, obligations, and responsibilities of States and 
individuals. Paragraph 1 provides that nothing in the 
Convention shall affect other rights, obligations and 
responsibilities of States and individuals under international 
law, in particular the purposes and principles of the Charter 
of the United Nations and international human rights, refugee, 
and humanitarian law. Paragraph 1 is based on the similar 
provisions contained in Article 19(1) of the Terrorist Bombings 
Convention and Article 21 of the Terrorism Financing 
Convention, but adds specific reference to international human 
rights and refugee law to take into account the interests of 
seafarers.
    Paragraph 2 of Article 2bis contains two important 
exceptions to the applicability of the Convention with respect 
to activities of armed forces and other military forces of a 
State. It states that the Convention does not apply to: (i) 
``the activities of armed forces during an armed conflict, as 
those terms are understood under international humanitarian 
law, which are governed by that law''; and (ii) ``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.'' This exception 
restates similar language in Article 19(2) of the Terrorist 
Bombings Convention.
    The first exception is meant to exclude from the 
Convention's scope the activities of national and sub-national 
armed forces, so long as those activities are in the course of 
an ``armed conflict.'' To ensure that suspected offenders 
cannot claim the benefit of the ``armed conflict'' exception in 
Article 2bis(2) to avoid extradition or prosecution under the 
Convention, it would be useful for the United States to 
articulate an understanding clarifying the scope of this 
exception, consistent with the understandings it included in 
its instrument of ratification for the Terrorist Bombings 
Convention with respect to the similar provision in Article 
19(2) of that Convention and in its instrument of ratification 
for the Terrorism Financing Convention with respect to the 
reference to the undefined term ``armed conflict'' in Article 
2(1)(b) of that Convention. Both of those understandings were 
based upon the widely accepted provision in paragraph 2 of 
Article 1 of Protocol II Additional to the Geneva Conventions 
of August 12, 1949, and Relating to the Protections of Victims 
of Non-International Armed Conflicts (``Additional Protocol 
II''), S. Treaty Doc. 100-2, which states that ``armed 
conflict'' does not include ``internal disturbances and 
tensions, such as riots, isolated and sporadic acts of violence 
and other acts of a similar nature.'' Including an 
understanding that specifies the scope of ``armed conflict'' in 
a manner consistent with Additional Protocol II would help to 
counter attempts by terrorists to claim protection from this 
exception in circumstances for which it is not intended. As in 
Article 19 of the Terrorist Bombings Convention, Article 
2bis(1) and (2) use the term ``international humanitarian 
law,'' which is not used by the United States and could be 
subject to varied interpretations. Accordingly, it would be 
appropriate for the United States to include an understanding 
that, for the purposes of this Convention, this phrase has the 
same substantive meaning as the phrase ``law of war.'' I 
therefore recommend that the following understandings to 
Article 3 of the 2005 SUA Protocol be included in the United 
States instrument of ratification:

    The United States of America understands that the term 
``armed conflict'' in Article 3 of the Protocol of 2005 to the 
Convention for the Suppression of Unlawful Acts against the 
Safety of Maritime Navigation (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.
    The United States further understands that the term 
``international humanitarian law'' in Article 3 of the Protocol 
of 2005 to the Convention for the Suppression of Unlawful Acts 
against the Safety of Maritime Navigation (which adds, inter 
alia, paragraphs 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.''

    The United States included substantially identical 
understandings in its instrument of ratification for the 
Terrorist Bombings Convention and, with respect to the meaning 
of ``armed conflict,'' in its instrument of ratification for 
the Terrorism Financing Convention.
    Given the importance of protecting the flexibility of the 
United States to conduct legitimate activities against all 
lawful targets, the second exception in paragraph 2 of Article 
2bis was also an important objective of the United States when 
negotiating the Protocols. This provision exempts from the 
Convention's application ``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.'' This language is consistent with Article 
19(2) of the Terrorist Bombings Convention. Although this 
exclusion might be thought to be implicit in the context of the 
Protocols, the negotiators thought it best to articulate the 
exclusion explicitly. It is intended to exclude all official 
acts undertaken by U.S. and other State military forces from 
the scope of criminal offenses. Because the Convention does not 
impose criminal liability for the official activities of State 
military forces, it similarly does not impose criminal 
liability for persons, including non-military, policy-making 
officials of States, who direct, organize, or otherwise act in 
support of the activities of State military forces. Recognizing 
the importance of this provision, I recommend that the 
following understanding to Article 3 of the 2005 SUA Protocol 
be included in the United States instrument of ratification:

    The United States of America understands that, pursuant to 
Article 3 of the Protocol of 2005 to the Convention for the 
Suppression of Unlawful Acts against the Safety of Maritime 
Navigation (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.

    Paragraph 3 of Article 2bis states that nothing in the 
Convention shall affect the rights, obligations, and 
responsibilities of States Parties under the Treaty on the Non-
Proliferation of Nuclear Weapons (``NPT''), TIAS 6839, the CWC, 
or the BWC. Article 2bis(3) is discussed below in the ``New 
Offenses'' section under the heading ``Non-proliferation 
provisions.''
    Paragraphs 1-4 of Article 4 of the 2005 SUA Protocol make 
several minor technical amendments to Article 3 of the 
Convention. Paragraph 1 amends the chapeau of paragraph 1 of 
Article 3 of the Convention to insert the clarifying words 
``within the meaning of this Convention.'' Paragraph 2 corrects 
the grammatical construction of subparagraph 1(f) of Article 3 
of the Convention. Paragraphs 3 and 4 together delete the 
accomplice liability provisions from Article 3(1)(g) and 
3(2)(a) and (b) of the Convention, because Article 3quater, a 
new provision added by the 2005 SUA Protocol, includes attempt 
and accomplice liability within a more comprehensive framework 
for accessory offense liability. Paragraph 4 retains 
subparagraph 2(c) of Article 3 of the Convention as paragraph 2 
of that article.
New offenses
    Paragraphs 5-7 of Article 4 of the 2005 SUA Protocol also 
create four new categories of offenses under the Convention: 
using a ship in a terrorist offense; transportation of WMD, 
delivery systems, and related items; transportation of a 
terrorist fugitive; and accessory offenses. It does so 
principally by adding three new articles to the Convention: 
Article 3bis, 3ter, and 3quater.
    Article 4(5) of the 2005 SUA Protocol adds Article 3bis to 
the Convention.
            Counterterrorism offenses
    Article 3bis(1)(a) makes it an offense for a person to 
unlawfully and intentionally, with the purpose of intimidating 
a population, or compelling a government or an international 
organization to do or abstain from doing any act: (i) use 
against or on a ship or discharge 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; (ii) 
discharge, from a ship, oil, liquefied natural gas, or other 
hazardous or noxious substance in such quantity or 
concentration that causes or is likely to cause death or 
serious injury or damage; (iii) use a ship in a manner that 
causes death or serious injury or damage; or (iv) threaten to 
commit any offense set forth in (i)-(iii).
            Non-proliferation provisions
    Article 3bis(1)(b) makes it an offense to transport 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, death or serious injury or damage for the 
        purpose of intimidating a population, or compelling a 
        government or an international organization to do or 
        abstain from doing any act; or
          (ii) any BCN weapon, knowing it to be a BCN weapon as 
        defined in Article 1; or
          (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 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 be used for such purpose.
    These nonproliferation offenses make significant advances 
to counterterrorism efforts by filling a gap in the existing 
international treaty framework. The Convention requires 
criminalization of certain transports of nuclear-related items 
associated with nuclear weapons or nuclear explosive devices 
and thus provides a complementary law enforcement element to 
the nuclear nonproliferation regime. Article 3bis(1)(b)(iv) of 
the Convention goes beyond the NPT in requiring criminalization 
of the transport of equipment, materials or software or related 
technology that significantly contributes to the design or 
manufacture of delivery systems for nuclear weapons (other than 
those of NPT nuclear-weapon States Parties). The 
nonproliferation offenses further the objectives of, and are 
complementary with, the nonproliferation obligations set forth 
in United Nations Security Council Resolutions 1540 (2004) and 
1673 (2006).
    Article 3bis(2) constitutes an important nonproliferation 
``savings clause'' by specifying that nuclear transport 
activities remain permissible under the Convention in certain 
circumstances, notwithstanding the wording of the offenses in 
Article 3bis(1)(b). Article 3bis(2) states that it shall not be 
an offense within the meaning of the Convention to transport an 
item or material covered by Article 3bis(1)(b)(iii) or, insofar 
as it relates to a nuclear weapon or other nuclear explosive 
device, Article 3bis(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 NPT 
where: ``(a) 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 NPT, and ``(b) 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 NPT, ``the holding of such weapon or device is 
not contrary to that State Party's obligations under that 
Treaty.''
    This nonproliferation savings clause in Article 3bis(2), 
coupled 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). As provided in Article 3bis(2), 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 is on the ``other 
end'' of the transport to or from (or under the control of) the 
NPT State Party.
    I recommend that the following understanding to Article 3 
and Article 4(5) of the 2005 SUA Protocol be included in the 
United States instrument of ratification to clarify the 
applicability of new Article 2bis(3) and Article 3bis(2) of the 
Convention to the offense in new Article 3bis(1)(b)(iii) of the 
Convention:

    The United States of America understands that:
    (a) Article 3 and Article 4(5) of the Protocol of 2005 to 
the Convention for the Suppression of Unlawful Acts against the 
Safety of Maritime Navigation (``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 
criminality under the Convention for the Suppression of 
Unlawful Acts against the Safety of Maritime Navigation, 2005, 
the transport of source or 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 or special fissionable materials (hereinafter referred 
to collectively as ``nuclear material'') and especially 
designed or prepared equipment or 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:
           Transport of nuclear material (from either 
        an NPT State Party or a non-NPT party) to an NPT 
        nuclear-weapon State Party, regardless of whether the 
        nuclear material will be under safeguards in the NPT 
        nuclear-weapon State Party, because the resulting 
        receipt of the item or material is not contrary to the 
        NPT obligations of the nuclear-weapon State Party;
           Transport of nuclear material to a non-
        nuclear weapon State Party to the NPT for non-nuclear 
        use without safeguards, in accordance with the 
        provisions of the recipient country's IAEA 
        comprehensive safeguards agreement (INFCIRC 153) 
        allowing for exemption of the nuclear material from 
        safeguards or the non-application or termination of 
        safeguards (e.g., for specified de minimis amounts, or 
        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);
           Transport of nuclear 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 non-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 nuclear material transferred 
        for peaceful purposes is subject to an INFCIRC/66 
        safeguards agreement or other IAEA safeguards 
        arrangement but is not required by that agreement 
        actually to be under safeguards (e.g., under an 
        exemption for de minimis amounts or 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.
            Transport of terrorist fugitives
    Article 4(6) of the 2005 SUA Protocol adds Article 3ter to 
the Convention. Article 3ter makes it an offense for a person 
to unlawfully and intentionally transport another person on 
board a ship knowing that the person has committed an act that 
constitutes an offense under Article 3, 3bis or 3quater or an 
offense set forth in one of the treaties listed in the Annex to 
the Convention, and intending to assist that person to evade 
criminal prosecution. The Annex is added to the Convention by 
Article 7 of the 2005 SUA Protocol. The inclusion of such an 
Annex mirrors the approach to the Terrorist Financing 
Convention. The United States is party to all nine of the 
instruments currently listed in the Annex, and the provisions 
for amending the instruments listed in the Annex are provided 
by Article 22 of the 2005 SUA Protocol, outlined more fully 
below. Although accessory provisions in the existing 
counterterrorism conventions and protocols may criminalize 
aiding and abetting a fugitive to flee during the course of a 
crime, this provision would criminalize assisting a fugitive to 
avoid apprehension after the crime has been completed.
            Accessory offenses
    A comprehensive framework creating criminal liability for 
accessory offenses is provided in Article 3quater, which is 
added to the Convention by Article 4(7) of the 2005 SUA 
Protocol. Subparagraph (a) of Article 3quater makes it an 
offense to kill or injure any person in connection with any 
offense under Articles 3(1), 3bis, or 3ter of the Convention. 
Subparagraph (b) of Article 3quater makes it an offense to 
attempt to commit an offense under Articles 3(1), 
3bis(1)(a)(i)-(iii), or 3quater(a) of the Convention. 
Subparagraphs (c) and (d) of Article 3quater make it an offense 
to participate as an accomplice or organize or direct others in 
connection with any offense under Articles 3, 3bis, 3ter, or 
3quater(a) or (b). Finally, subparagraph (e) of Article 3quater 
makes it an offense to contribute to the commission of one or 
more offenses under Articles 3, 3bis, 3ter, or 3quater(a) or 
(b) by a group of persons acting with a common purpose. These 
accessory offenses are substantially the same as those provided 
for by the Terrorist Bombings Convention and the Terrorist 
Financing Convention. They will strengthen the ability of the 
international community to investigate, prosecute, and 
extradite those who conspire or otherwise contribute to the 
commission of offenses under the Convention.
Criminalization and jurisdiction under domestic law
    Article 5(1) of the 2005 SUA Protocol modifies Article 5 of 
the Convention to add the offenses enumerated in Articles 3, 
3bis, 3ter, and 3quater to the list of criminal offenses that 
States Parties must make punishable by appropriate penalties 
that take into account their grave nature.
    Article 5(2) of the 2005 SUA Protocol adds to the 
Convention a new provision, Article 5bis, to ensure liability 
for legal entities as well as persons. Article 5bis requires 
States Parties, in accordance with their domestic legal 
principles, to take the necessary measures to enable a legal 
entity located in their territory or organized under their laws 
to be held liable when a person responsible for the management 
or control of that legal entity has, in that capacity, 
committed an offense under the Convention. Such liability may 
be criminal, civil, or administrative and is without prejudice 
to the criminal liability of individuals having committed the 
offenses. Further, States Parties must ensure that legal 
entities held liable for offenses under Article 5bis are 
subject to effective, proportionate and dissuasive criminal, 
civil, or administrative sanctions, which may include monetary 
sanctions. This provision is identical to Article 5 of the 
Terrorism Financing Convention.
    Article 6 of the 2005 SUA Protocol makes conforming 
amendments to Article 6 of the Convention, which requires 
States Parties to establish jurisdiction over the offenses set 
forth under the Convention. Each State Party is now required to 
establish jurisdiction over offenses under Articles 3, 3bis, 
3ter, and 3quater. Article 8(1) of the 2005 SUA Protocol makes 
a similar conforming amendment to Article 8, paragraph 1, of 
the Convention to permit the master of a ship to deliver to the 
authorities of any other State Party any person who the master 
has reasonable grounds to believe has committed an offense 
under Article 3, 3bis, 3ter, or 3quater. Both provisions simply 
update the Convention provisions to include the full range of 
offenses under the Convention as revised by the 2005 SUA 
Protocol.
Innocent parties
    The 2005 SUA Protocol was drafted to ensure that innocent 
seafarers will not be subject to criminal prosecution under the 
Convention simply for being on board a vessel that was engaged 
in or used for illegal purposes. This is the case even where 
the seafarer had mere knowledge of the criminal activity.
    The offenses enumerated in Article 3bis(1)(b) (the 
transport provisions described above) apply by virtue of the 
definition of ``transport'' in Article 2 of the 2005 SUA 
Protocol (amending Article 1 of the Convention) to those 
persons who initiate, arrange, or exercise effective control, 
including decision-making authority, over the movement of a 
person or item. This definition would exclude from criminal 
liability seafarers and employees on shore, except in those 
rare cases where they are actively engaged in the criminal 
activity.
    The individual offenses added by the 2005 SUA Protocol 
contain subjective elements that would exclude innocent 
carriers and seafarers from their reach. For example, under the 
provision that covers certain dual use items (Article 
3bis(1)(b)(iv)), the transporter must have the intention that 
the dual use item will be used in the design, manufacture, or 
delivery of a BCN weapon. In most situations, a seafarer, for 
example, would not have the requisite general knowledge and 
intent, let alone the additional specific intent required under 
this provision. When containers are ordinarily sealed and 
loaded at port, a seafarer would not know what is in the 
containers. In order for a seafarer to be held criminally 
liable, a prosecuting State must prove, for example, that the 
seafarer (1) knew what the item was, (2) intentionally 
initiated, arranged, or exercised effective control, including 
decision-making authority, over the movement of the item by, 
for example, smuggling the item on board or placing the item in 
a container to be loaded on the ship, and (3) intended that the 
item would be used in the design, manufacture, or delivery of a 
BCN weapon.
Shipboarding
    Article 8(2) of the 2005 SUA Protocol adds Article 8bis to 
the Convention. Article 8bis creates a shipboarding regime by 
establishing a comprehensive set of procedures and protections 
designed to facilitate the boarding of a vessel suspected of 
being involved in an offense under the Convention. The boarding 
procedures do not change existing international maritime law or 
infringe upon the traditional principle of freedom of 
navigation. Instead, the procedures eliminate the need to 
negotiate time-consuming ad hoc boarding arrangements when 
facing the immediacy of ongoing criminal activity. 
Additionally, the boarding regime builds upon existing regimes 
under bilateral and multilateral agreements to which the United 
States is a party, including agreements with respect to 
fisheries, narcotics, illegal migrants, and WMD interdiction.
    The first three paragraphs of Article 8bis set forth 
general parameters for the shipboarding regime. States Parties 
must cooperate to the fullest extent possible to prevent and 
suppress offenses under the Convention, in conformity with 
international law, and to respond to requests under the 
boarding regime as expeditiously as possible (paragraph 1). 
This provision is derived from Article 17(1) of the 1988 UN 
Convention against Illicit Traffic in Narcotic Drugs and 
Psychotropic Substances (1988 Vienna Narcotic Drug Convention), 
S. Treaty Doc. 101-4, and Article 7 of the Protocol against the 
Smuggling of Migrants by Land, Sea and Air, supplementing the 
United Nations Convention against Transnational Organized Crime 
(Migrant Smuggling Protocol), S. Treaty Doc. 108-16. The United 
States is a party to both Conventions.
    Each request should, if possible, contain the name of the 
suspect ship, the IMO identification number, the port of 
registry, the ports of origin and destination, and any other 
relevant information (paragraph 2). In addition, each State 
Party must 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 (paragraph 3).
    The United States will implement its obligations to 
``cooperate to the fullest extent possible'' under Article 
8bis(1) by designating a competent authority at the national 
level for making, receiving, processing, and responding to 
boarding. requests under the Convention, as we have done for 
counternarcotics, migrant, fisheries, WMD interdictions, and 
other similar law enforcement agreements. The competent 
authority, who will most likely be the Commandant of the U.S. 
Coast Guard, will execute its obligations through a national 
level command or operations center, which will have immediate 
access to all national vessel registry data, as well as 
procedures established for real-time U.S. Government 
coordination, including the Maritime Operational Threat 
Response Plan. See further the discussion of Article 8bis(15) 
below.
    Pursuant to paragraph 4 of Article 8bis, if a State Party 
has reasonable grounds to suspect that an offense under 
Articles 3, 3bis, 3ter, or 3quater of the Convention has been, 
is being, or is about to be committed involving a ship flying 
its flag, it may request the assistance of other States Parties 
in preventing or suppressing that offense. The States Parties 
so requested shall use their best endeavors to render such 
assistance within the means available to them. This provision 
is derived from Article 17(2) of the 1988 Vienna Narcotic Drug 
Convention and Article 8(1) of the Migrant Smuggling Protocol. 
This provision does not obligate the United States to board or 
take law enforcement actions on foreign flagged ships, except 
to the extent it is required to use best endeavors to render 
assistance within the means available to it upon request of a 
flag State to assist in prevention or suppression of an offense 
specified under the Convention. The absence of a reference in 
paragraph 4 to ``marks of registry'' (both ``flying its flag'' 
and ``displaying marks of registry'' are used in paragraph 5) 
is of no consequence because each refers to indicia of the 
nationality of the vessel permissible, as reflected in Articles 
5 and 6 of the 1958 Convention on the High Seas (``High Seas 
Convention''), TIAS 5200, and Articles 91 and 92 of the United 
Nations Convention on the Law of the Sea, (``Law of the Sea 
Convention''), S. Treaty Doc. 103-39. See Article 8bis(5)(a), 
(b) and (d).
    Paragraph 5 of Article 8bis sets forth the procedures for 
shipboarding. Whenever law enforcement or other authorized 
officials of a State Party (``the requesting Party'') encounter 
a ship flying the flag or displaying the 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 offense under Articles 3, 3bis, 3ter, or 
3quater of the Convention, and the requesting Party desires to 
board, it shall take the following steps. It shall request, in 
accordance with paragraphs 1 and 2, that the first Party 
confirm the claim of nationality (subparagraph (a)). If 
nationality is confirmed, the requesting Party shall ask the 
first Party (hereinafter ``the flag State'') for authorization 
to take appropriate measures, which may include stopping, 
boarding, and searching the ship, its cargo and persons on 
board, and questioning the persons on board (subparagraph (b)).
    The flag State may, pursuant to subparagraph (c) of Article 
8bis(5), authorize the requesting Party to board and to take 
appropriate measures described in subparagraph (b), conduct the 
boarding and search with its own law enforcement or other 
officials, conduct the boarding and search together with the 
requesting Party, or decline to authorize a boarding and 
search. Paragraph 8bis(5)(c) expands on the provisions of 
Article 17(4) of the 1988 Vienna Narcotic Drug Convention and 
Article 8(2) of the Migrant Smuggling Protocol. Nothing in 
Article 8bis(5) requires the flag State to provide any such 
authorization. Moreover, subparagraph (c) makes clear that the 
requesting Party may not take any measures set forth above 
without the express authorization of the flag State. A flag 
State may also impose certain restrictions on the requesting 
Party's board and search measures, in accordance with Article 
8bis(7), discussed more fully below.
    A State Party may provide advance consent to board ships 
flying its flag or displaying its mark of registry pursuant to 
subparagraphs (d) or (e) of Article 8bis(5) by notification to 
the IMO Secretary-General. A notification pursuant to Article 
8bis(5)(d) would grant the requesting Party authorization to 
board and search a 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 offense 
under Articles 3, 3bis, 3ter, or 3quater of the Convention has 
been, is being, or is about to be committed, if there is no 
response from that State Party, within four hours of 
acknowledgement of its receipt of a request to confirm 
nationality. Notification pursuant to Article 8bis(5)(e) would 
provide general advance consent for other States Parties to 
board and search such ships, their cargo and persons on board, 
and to question the persons on board in order to determine if 
an offense under Articles 3, 3bis, 3ter, or 3quater of the 
Convention has been, is being, or is about to be committed. 
These optional notifications may be withdrawn at any time. 
Advance consent pursuant to either subparagraph (d) or (e) is 
not authorization for detention of the vessel, cargo, or 
persons on board or any other enforcement action. The United 
States will not file a notification with the IMO Secretary-
General granting either such form of advance consent.
    Under paragraph 6 of Article 8bis, when the requesting 
Party boards and finds evidence of the conduct described in 
Articles 3, 3bis, 3ter or 3quater, 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 must in all cases promptly inform 
the flag State of the results of a boarding, search, and 
detention conducted pursuant to Article 8bis, including 
discovery of evidence of illegal conduct that is not subject to 
the Convention.
    Paragraph 7 of Article 8bis permits a flag State to subject 
its authorization under paragraphs 5 or 6 to conditions, 
including obtaining additional information from the requesting 
Party and relating to responsibility for and the extent of 
measures to be taken. This provision builds on the text of 
Article 17(6) of the 1988 Vienna Narcotic Drug Convention and 
Article 8(5) of the Migrant Smuggling Protocol. Paragraph 7 
also prohibits the requesting State from taking any measures 
without the express authorization of the flag State, except 
when necessary to relieve imminent danger to the lives of 
persons or when otherwise derived from bilateral or 
multilateral agreements.
    Paragraph 8 of Article 8bis reaffirms explicitly that, for 
all boardings under Article 8bis, the flag State retains 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 Party that has 
jurisdiction under Article 6 of the Convention.
    Paragraph 9 of Article 8bis sets forth overarching 
principles for the use of force by officials acting under the 
shipboarding regime. It directs States Parties to avoid the use 
of force ``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.'' It 
also specifies that any such use of force ``shall not exceed 
the minimum degree of force which is necessary and reasonable 
in the circumstances.'' The language of Article 8bis(9) is 
drawn from Article 22(1)(f) of the Agreement for the 
Implementation of the Provisions of the United Nations 
Convention on the Law of the Sea of 10 December 1982 Relating 
to the Conservation and Management of Straddling Fish Stocks 
and Highly Migratory Fish Stocks, S. Treaty Doc. 104-24, to 
which the United States is a party. Article 8bis(9) is also 
similar to use of force provisions in other maritime law 
enforcement agreements to which the United States is a party. 
As such, this use of force provision reflects and is consistent 
with current practice on the use of force in international law 
and U.S. maritime law enforcement.
    Paragraph 10 of Article 8bis establishes a number of 
safeguard provisions to protect seafarers and carriers during 
the conduct of shipboardings. First, subparagraph (a) sets 
forth a series of safeguards that a State Party taking measures 
against a ship must respect. These include taking due account 
of the need not to endanger the safety of life at sea; treating 
all persons in a manner that preserves their human dignity and 
complies with applicable provisions of international law; 
ensuring that a boarding and search is conducted in accordance 
with applicable international law; taking due account of the 
safety and security of the ship and cargo; taking due account 
of the need not to prejudice the commercial or legal interests 
of the flag State; ensuring, within available means, that any 
measure taken with regard to the ship or its cargo is 
environmentally sound; ensuring that any person on board 
against whom proceedings may be commenced in connection with 
offenses under the Convention is guaranteed fair treatment, 
regardless of location; ensuring 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 taking reasonable 
efforts to avoid undue detention or delay of the ship. These 
safeguards build on those contained in Article 17(5) of the 
1988 Vienna Narcotic Drug Convention and Article 9 of the 
Migrant Smuggling Protocol.
    Subparagraph (b) of Article 8bis(10) establishes a 
framework for liability and recourse arising from any damage, 
harm, or loss attributable to States Parties taking measures 
under Article 8bis. It clarifies that authorization to board by 
a flag State shall not per se give rise to its liability. 
Liability for damage, harm, or loss as a result of shipboarding 
activities arises under two circumstances: first, when the 
grounds for shipboarding measures prove to be unfounded, 
provided that the ship has not committed any act justifying the 
measures taken; and second, when such measures are unlawful or 
unreasonable in light of the available information to implement 
the provisions of Article 8bis. States Parties are obligated to 
``provide effective recourse in respect of any such damage, 
harm or loss.'' This provision does not require a State Party 
to provide a specific remedy, forum, or venue, and it does not 
require any form of binding dispute resolution. Accordingly, 
the manner of ``effective recourse'' remains at the discretion 
of each State Party. Article 8bis(10)(b) of the Convention is 
consistent with the claims provisions of existing relevant 
international treaties, including Article 22(3) of the High 
Seas Convention, and Article 9(2) of the Migrant Smuggling 
Protocol. As a matter of policy the United States compensates 
innocent people whose property is damaged by Federal officers 
during maritime law enforcement operations. Congress has 
established mechanisms that permit the United States Navy (10 
U.S. Code 2734, 7622; 32 CFR Part 752) and the United States 
Coast Guard (10 U.S. Code Sec. Sec. 2733, 2734; 14 U.S. Code 
646; 33 CFR Part 25) to consider and pay meritorious claims for 
damaged property arising from maritime law enforcement 
operations. These mechanisms are administrative procedures, 
rather than judicial remedies, which permit the consideration 
and payment of meritorious claims by Executive Branch agencies. 
Accordingly, no new legislation is needed to comply with 
Article 8bis(10)(b).
    Subparagraph (c) of Article 8bis(10) requires any State 
Party that takes measures against a ship in accordance with the 
Convention to take due account of the need not to interfere 
with the rights and obligations and exercise of jurisdiction of 
coastal States in accordance with the international law of the 
sea, and the authority of flag States to exercise jurisdiction 
and control in administrative, technical and social matters 
involving the ship. This provision builds upon Article 17(11) 
of the 1988 Vienna Drug Convention, Article 94(1) of the Law of 
the Sea Convention, and Article 9(3) of the Migrant Smuggling 
Protocol.
    Subparagraphs (d) and (e) of Article 8bis(10) designate who 
may conduct shipboardings consistent with the Convention. 
Article 8bis(10)(d) requires that any shipboarding measure must 
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 of the Convention, the provisions of 
Article 8bis will apply. This provision reflects the accepted 
international law rule as set out in Article 17(10) of the 1988 
Vienna Narcotic Drug Convention, Article 9(4) of the Migrant 
Smuggling Protocol, Articles 21 and 23(4) of the High Seas 
Convention, and Articles 107 and 111(5) of the Law of the Sea 
Convention and is consistent with U.S. practice. Article 
8bis(10)(e) defines ``law enforcement or other authorized 
officials'' as ``uniformed or otherwise clearly identifiable 
members of law enforcement or other government authorities duly 
authorized by their government.'' For the purposes of 
shipboarding under the Convention, these officials must provide 
appropriate government-issued identification documents for 
examination by the master of the ship upon boarding.
    The shipboarding provisions under the Convention do 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. Paragraph 11 of Article 8bis confirms 
this understanding of the Convention's applicability. Other 
lawful shipboarding measures include, but are not limited to, 
the right of approach and visit, belligerent rights under the 
law of war, self-defense, the enforcement of United Nations 
Security Council Resolutions, actions taken pursuant to 
specific bilateral or multilateral instruments such as counter-
narcotics agreements, the rendering of assistance to persons, 
ships, and property in peril, authorization from the flag State 
to take action, or the historic role of the armed forces in law 
enforcement activities on the high seas. In addition, the 
United States has often employed its military forces abroad to 
protect U.S. citizens and to enforce provisions of U.S. law. 
Article 8bis would not affect these rights.
    Paragraph 12 of Article 8bis encourages States Parties to 
develop standard operating procedures for joint operations and 
consult, as appropriate, with other States Parties with a view 
to harmonizing such standard operating procedures. Paragraph 13 
allows States Parties to conclude agreements or arrangements 
between themselves to facilitate law enforcement operations 
carried out pursuant to Article 8bis. This provision is adapted 
from Article 17(9) of the 1988 Vienna Narcotic Drug Convention 
and Article 17 of the Migrant Smuggling Protocol. Paragraph 14 
requires each State Party to take appropriate measures to 
ensure that law enforcement or other authorized officials 
acting on its behalf are empowered to conduct shipboarding 
activities and take other appropriate measures pursuant to 
Article 8bis.
    Finally, paragraph 15 of Article 8bis directs each State 
Party to designate the appropriate authority or authorities to 
receive and respond to requests for assistance, confirmation of 
nationality and authorization to take appropriate measures. 
This designation, including contact information of the 
authority or authorities, must be notified to the IMO 
Secretary-General within one month of becoming a Party. The IMO 
Secretary-General will inform all other States Parties within 
one month of such designation. Each State Party is responsible 
for providing prompt notice through the IMO Secretary-General 
of any changes in the designation or contact information. This 
provision is adapted from Article 17(7) of the 1988 Vienna 
Narcotic Drug Convention and Article 8(6) of the Migrant 
Smuggling Protocol. As previously mentioned during the 
discussion of Article 8bis(1), the United States will implement 
its obligations by designating a competent authority at the 
national level, most likely the Commandant of the U.S. Coast 
Guard, which will execute our obligations through a national 
level command or operations center in accordance with 
established procedures, including the Maritime Operational 
Threat Response Plan, as we have done for other similar law 
enforcement agreements.
    Article 9 of the 2005 SUA Protocol amends Article 10, 
paragraph 2, of the Convention by adding specific reference to 
international law including international human rights law. 
This amendment is intended to enhance further the safeguards 
for seafarers. As revised, Article 10(2) of the Convention 
would provide that any person who is taken into custody or 
otherwise subject to proceedings under the Convention shall be 
guaranteed fair treatment, including all rights and guarantees 
under the law of the State in which that person is present, 
``as well as applicable provisions of international law, 
including international human rights law.'' This additional 
text already appears in Article 17 of the Terrorism Financing 
Convention and in Article 14 of the Terrorist Bombings 
Convention.
Extradition
    Article 10 of the 2005 SUA Protocol makes several revisions 
to the extradition scheme established under the Convention.
    Article 10(1) of the 2005 SUA Protocol revises the first 
four paragraphs of Article 11 of the Convention to incorporate 
the offenses set forth in Articles 3, 3bis, 3ter, and 3quater 
of the Convention into the extradition regime. These 
provisions, designating the offenses under the Convention as 
extraditable offenses between States Parties, simply update the 
extradition obligations to include the new offense articles.
    Article (10)(2) of the 2005 SUA Protocol adds a new 
provision to the Convention, Article 11bis, which states that 
none of the offenses under the Convention shall be regarded, 
for the purposes of extradition or mutual legal assistance, as 
a political offense. Accordingly, a request for extradition or 
mutual legal assistance may not be refused on the sole ground 
that it is a political offense or an offense connected with a 
political offense or an offense inspired by political motives. 
Article 11bis thus provides a useful narrowing of the ability 
to invoke the political offense exception in response to 
requests for extradition for offenses under the Convention. 
Many modem U.S. bilateral extradition treaties already contain 
provisions that bar application of the political offense 
exception to extradition under multilateral conventions to 
which similar ``prosecute or extradite'' obligations apply. 
Like similar provisions in Article 14 of the Terrorism 
Financing Convention and Article 11 of the Terrorist Bombings 
Convention, Article 11bis builds on this trend by making the 
restriction on the invocation of the political offense 
exception for requests based on offenses under Articles 3, 
3bis, 3ter, and 3quater a matter of general application, rather 
than dependent on the terms of individual bilateral law 
enforcement treaties between the States Parties.
    Article 10(3) of the 2005 SUA Protocol adds Article 11ter 
to the Convention, which provides that the Convention does not 
impose an obligation to extradite or afford mutual legal 
assistance if the requested State Party has substantial grounds 
for believing that such request for extradition or mutual legal 
assistance has 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. This article is 
similar to provisions already included in a number of existing 
UN counterterrorism treaties, including Article 12 of the 
Terrorist Bombings Convention and Article 15 of the Terrorism 
Financing Convention.
Mutual legal assistance
    Article 11(1) of the 2005 SUA Protocol makes conforming 
changes to Article 12(1) of the Convention, which maintains 
States Parties' obligations to afford one another assistance in 
connection with criminal proceedings brought for offenses under 
the Convention. The amended provision updates the terms of 
assistance to encompass the new categories of offenses under 
the Convention as amended by the 2005 SUA Protocol, but it does 
not change the substantive language describing the degree of 
assistance required.
    Article 11(2) of the 2005 SUA Protocol does, however, 
establish a system to enhance the assistance that States 
Parties may provide to each other in connection with offenses 
under the Convention. It provides for a new article, Article 
12bis, to govern the transfer of individuals in the custody of 
one State Party to provide assistance to another State Party in 
connection with an investigation or prosecution for offenses 
under the Convention.
    Paragraph 1 of Article 12bis provides that a person who is 
being detained or is serving a sentence in the territory of one 
State Party whose presence in another State Party is requested 
for identification, testimony or otherwise providing assistance 
in obtaining evidence for the investigation or prosecution of 
offenses set forth in Articles 3, 3bis, 3ter, and 3quater may 
be transferred, if two conditions are met. First, the person in 
custody must freely give informed consent to be transferred 
(subparagraph (a)). Second, the competent authorities of both 
States must agree upon the transfer, subject to such conditions 
as those States may deem appropriate (subparagraph (b)). 
Similar provisions for the temporary transfer of persons in 
custody of one State Party to another State Party are included 
in Article 16 of the Terrorism Financing Convention, Article 13 
of the Terrorist Bombings Convention, and numerous bilateral 
mutual legal assistance treaties to which the United States is 
a party.
    Paragraph 2 of Article 12bis details certain rights and 
obligations of a State to which a person is transferred 
pursuant to Article 12bis. Under subparagraph (a), the State to 
which the person is transferred shall have the authority and 
obligation to keep the transferred person in custody, unless 
otherwise requested or authorized by the State from which the 
person was transferred. Subparagraph (b) requires the State to 
which the person is transferred to implement without delay its 
obligation to return the person to the custody of the State 
from which the person was transferred as agreed in advance, or 
as otherwise agreed, by the competent authorities of both 
States. Subparagraph (c) states that return of a person 
transferred under Article 12bis shall not require initiation of 
extradition proceedings. Finally, subparagraph (d) requires 
that the person transferred receive credit for service of the 
sentence being served in the State from which the person was 
transferred for time spent in the custody of the State to which 
the person was transferred.
    Paragraph 3 of Article 12bis establishes a default rule 
that a person transferred pursuant to Article 12bis, whatever 
that person's nationality, shall not be prosecuted, detained, 
or subjected to any other restriction of personal liberty in 
the territory of the State to which that person is transferred 
for acts or convictions prior to that person's departure from 
the territory of the transferring State. However, the State 
Party from which the person was transferred pursuant to Article 
12bis may agree otherwise, in which case this default rule will 
not impair the agreement between the State from which the 
person is transferred and the State to which the person is 
transferred.
    Article 12 of the 2005 SUA Protocol makes conforming 
changes to Article 13 of the Convention to incorporate 
references to the new offenses. As amended, Article 13 would 
provide that States Parties shall cooperate in the prevention 
of offenses set forth in Articles 3, 3bis, 3ter, and 3quater by 
taking all practicable measures to prevent preparation in their 
respective territories for the commission of such offenses and 
by exchanging information and coordinating measures to prevent 
the commission of such offenses. Article 13 also would provide 
that any State Party shall be bound to exercise all possible 
efforts to avoid undue delay or detention of a ship, its 
passengers, crew or cargo when the passage of that ship has 
been delayed or interrupted due to the commission of an offense 
under Articles 3, 3bis, 3ter or 3quater.
    Articles 13 and 14 of the 2005 SUA Protocol make conforming 
amendments to Article 14 and Article 15, paragraph 3, of the 
Convention to make those provisions consistent with the new 
articles and terminology added to the Convention by the 2005 
SUA Protocol. These provisions govern information sharing under 
the Convention with respect to any offense or suspected 
offenses under the Convention.
Interpretation and application
    Article 15 of the 2005 SUA Protocol provides that the 
Convention and the 2005 SUA Protocol shall be read and 
interpreted together as one single instrument. It further 
provides that Articles 1 to 16 of the Convention, as amended by 
the 2005 SUA Protocol, together with Articles 17 to 24 of the 
2005 SUA Protocol and the Annex, ``shall constitute and be 
called together the Convention for the Suppression of Unlawful 
Acts against the Safety of Maritime Navigation, 2005, (2005 SUA 
Convention).''
Final clauses
    Article 16 of the 2005 SUA Protocol adds a new provision to 
the Convention, Article 16bis, which states that the final 
clauses of the 2005 SUA Convention shall be Articles 17-24 of 
the 2005 SUA Protocol, and that references in the 2005 SUA 
Convention to States Parties shall mean States Parties to the 
2005 SUA Protocol. Articles 17 and 18 of the 2005 SUA Protocol 
detail the requirements for signature, ratification, 
acceptance, approval, accession, and entry into force. Article 
17 provides that the 2005 SUA Protocol shall be open for 
signature from February 14, 2006 to February 13, 2007 and shall 
thereafter remain open for accession. (The United States signed 
the Protocol on February 17, 2006.) Paragraph 2 of this article 
provides that States may express their consent to be bound by: 
signature without reservation as to ratification, acceptance or 
approval; signature subject to ratification, acceptance, or 
approval followed by ratification, acceptance or approval; or 
accession. Under paragraph 3, ratification, acceptance, 
approval or accession are to be effected by the deposit of an 
instrument to that effect with the IMO Secretary-General. 
Paragraph 4 provides that only States that are parties to the 
Convention may become parties to the Protocol. Article 18 
provides that the 2005 SUA Protocol will enter into force 90 
days after the date on which 12 States have expressed their 
consent to be bound. For each State that ratifies, accepts, 
approves, or accedes to the treaty after the deposit of the 
twelfth instrument, the 2005 SUA Protocol will enter into force 
on the ninetieth day after the date of deposit of that State's 
instrument.
    Article 19 of the 2005 SUA Protocol allows any State Party 
to denounce the 2005 SUA Protocol at any time after the date on 
which it enters into force for that State. Denunciation shall 
be effected by the deposit of an instrument of denunciation 
with the IMO Secretary-General and shall take effect one year, 
or such longer period as the State Party may specify in the 
instrument of denunciation, after the deposit of the instrument 
with the IMO Secretary-General.
Amendments
    Article 20 of the 2005 SUA Protocol establishes the 
procedures for revising and amending the Protocol. The IMO 
Secretary-General will convene a conference to revise or amend 
the Protocol at the request of one third of the States Parties 
or 10 States Parties, whichever figure is higher. Any 
instrument of ratification, acceptance, approval, or accession 
deposited after entry into force of an amendment to the 2005 
SUA Protocol is to be deemed to apply to the Protocol as 
amended. Pursuant to Article 16, these procedures would also 
apply to amendments to the 2005 SUA Convention. (Amendments to 
the Annex are dealt with in Article 22, discussed below.)
Declarations
    Article 21 of the 2005 SUA Protocol outlines several 
permissible declarations with respect to the Annex 
incorporating other counterterrorism treaties into the 
Convention under Article 3ter. Article 21 allows any State 
Party that is not a party to a treaty listed in the Annex to 
declare that, in the application of the 2005 SUA Protocol to 
the State Party, that treaty shall be deemed not to be included 
in Article 3ter. As discussed above, Article 3ter of the 
Convention criminalizes the transport of a terrorist fugitive 
suspected of committing an offense under the Convention or any 
of the treaties listed in the Annex. However, this declaration 
shall cease to have effect as soon as such treaty enters into 
force for that State Party, which shall notify the IMO 
Secretary-General of such entry into force. In addition, if a 
State Party ceases to be a party to any of the treaties listed 
in the Annex, it may make a declaration as provided for in 
Article 21 with respect to that treaty. Finally, Article 21(3) 
allows a State Party to declare that it will apply the 
provisions of Article 3ter ``in accordance with the principles 
of its criminal law concerning family exemptions of 
liability.'' This provision makes allowance for some Sates that 
provide defenses under domestic law from prosecution for family 
members who otherwise could be charged with harboring 
fugitives. The Administration does not propose any declarations 
under Article 21 to accompany its instrument of ratification.
Annexed List of Treaties
    Article 22 of the 2005 SUA Protocol relates to the category 
of offenses covered under Article 3ter to the Convention, 
criminalizing the transport of terrorist fugitives. It 
establishes a mechanism for expanding the scope of the 
Convention by adding new treaties to the Annex. Paragraph 1 of 
Article 22 states that the Annex may be amended by the addition 
of relevant treaties that: are open to the participation of all 
States; have entered into force; and have been ratified, 
accepted, approved or acceded to by at least 12 States Parties 
to the 2005 SUA Protocol. After the 2005 SUA Protocol enters 
into force, any State Party may propose such an amendment to 
the Annex by communicating it to the IMO Secretary-General in 
written form. The IMO Secretary-General will circulate any 
proposed amendment that meets the requirements of Article 22(1) 
to all members of the IMO and seek from States Parties to the 
2005 SUA Protocol their consent to adoption of the proposed 
amendment. Article 22(3) declares that the proposed amendment 
shall 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. However, under 
Article 22(4), a State Party will not be bound with respect to 
such additional treaty unless it deposits an instrument of 
ratification, acceptance or approval for that amendment with 
the IMO Secretary-General. An adopted amendment shall enter 
into force, for those States Parties that have consented to be 
bound, 30 days after the deposit with the IMO Secretary-General 
of the twelfth instrument of ratification, acceptance or 
approval of the amendment. Thereafter, the amendment shall 
enter into force for any other State Party on the thirtieth day 
after the deposit of its own instrument of ratification, 
acceptance or approval. The amendment mechanism under Article 
22 of the 2005 SUA Protocol ensures both that the scope of the 
Convention can evolve to encompass additional terrorist 
activity, as may be agreed by the international community, and 
that the scope of the Convention is not expanded with respect 
to a particular State Party without that State Party's explicit 
agreement.
    Under this provision, the United States expects to deposit 
an instrument of acceptance of such an amendment if the treaty 
that is the subject of the amendment has entered into force for 
the United States with the advice and consent of the Senate. 
Otherwise, any amendment to the Annex that the United States 
proposes to accept would be submitted to the Senate for its 
advice and consent.
Depositary
    Article 23 of the 2005 SUA Protocol designates the IMO 
Secretary-General as the Depositary of the 2005 SUA Protocol 
and any amendments adopted under Articles 20 and 22 of the 2005 
SUA Protocol, and sets forth the duties of the Depositary.
Official languages
    Article 24 of the 2005 SUA Protocol provides the six 
languages for the official texts of the 2005 SUA Protocol.


                   the 2005 fixed platforms protocol


    Article 1 of the 2005 Fixed Platforms Protocol defines the 
terms ``1988 Protocol,'' ``Organization,'' and ``Secretary-
General'' as the 1988 Protocol for the Suppression of Unlawful 
Acts against the Safety of Fixed Platforms Located on the 
Continental Shelf, the IMO, and the IMO Secretary-General, 
respectively.
    Article 2 of the 2005 Fixed Platforms Protocol amends 
Article 1, paragraph 1 of the 1988 Protocol, to incorporate all 
of the substantive provisions of the 2005 SUA Convention, 
except those that address transport offenses and the 
shipboarding regime, which are not relevant in the context of 
fixed platforms. Specifically, Article 1, paragraphs 1(c), (d), 
(e), (f), (g), (h) and 2(a), Articles 2bis, 5, 5bis, and 7, and 
Articles 10 to 16, including Articles 11bis, 11ter, and 12bis, 
of the 2005 SUA Convention shall apply mutatis mutandis to the 
offenses set forth in Articles 2, 2bis, and 2ter of the 1988 
Protocol, as amended by the 2005 Fixed Platforms Protocol 
(hereinafter referred to as the ``2005 SUA Fixed Platforms 
Protocol'') where such offenses are committed on board or 
against fixed platforms located on the continental shelf. These 
provisions include, inter alia: the definition of new terms; 
the savings clauses regarding the effect of the Protocols on 
other rights, obligations and responsibilities of States 
Parties; the obligation to make offenses punishable under 
domestic law; the establishment of liability for legal 
entities; the guarantee of fair treatment; revisions to the 
extradition regime, including the provision circumscribing use 
of the political offense exception for offenses under the 
Convention; the framework for transfer of persons in custody; 
and the obligations to assist with criminal investigations, 
share information, and prevent preparation for the commission 
of offenses under the Convention.
    Because Article 2 of the 2005 Fixed Platforms Protocol 
incorporates provisions of the 2005 SUA Convention that were 
amended and added by the 2005 SUA Protocol, I propose that 
similar understandings be included in the U.S. instrument of 
ratification for the 2005 Fixed Platforms Protocol as are 
recommended above for the corresponding provisions of the 2005 
SUA Protocol. These understandings read as follows:

    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 Protocol of 2005 to the Protocol for the 
Suppression of Unlawful Acts against the Safety of Fixed 
Platforms Located on the Continental Shelf, does not include 
internal disturbances and tensions, such as riots, isolated and 
sporadic acts of violence and other acts of a similar nature.
    The United States further 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 Protocol of 2005 to the 
Protocol for the Suppression of Unlawful Acts against the 
Safety of Fixed Platforms Located on the Continental Shelf, has 
the same substantive meaning as the ``law of war.''
    The United States of America further 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, as incorporated by Article 2 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, 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.

    For a more detailed discussion of these proposed 
understandings, please refer to the corresponding discussion in 
the 2005 SUA Protocol section of this Overview.
    Article 3 of the 2005 Fixed Platforms Protocol makes 
several conforming amendments to Article 2 of the 1988 
Protocol. Article 3(1) restates subparagraph 1(d) of Article 2 
of the 1988 Protocol as the final subparagraph of that article, 
while Article 3(2) deletes subparagraph 1(e) of the 1988 
Protocol. Together with Article 3(2) of the 2005 Fixed 
Platforms Protocol, Article 3(3) removes the attempt and 
accomplice liability provisions from Article 2 (subparagraph 
1(e) and subparagraphs 2(a) and (b)) of the 1988 Protocol, 
because Article 2ter, a new provision added by the 2005 Fixed 
Platforms Protocol (discussed below), includes attempt and 
accomplice liability within a more comprehensive framework for 
accessory offense liability. Article 3(3) of the 2005 Fixed 
Platforms Protocol retains subparagraph 2(c) of Article 2 of 
the 1988 Protocol as paragraph 2 of that article.
    Article 4 of the 2005 Fixed Platforms Protocol adds two new 
provisions, Articles 2bis and 2ter, to the 1988 Protocol to 
provide the same regime of liability for offenses under the 
1988 Protocol, including accessory offenses, as those contained 
in Article 3bis and 3quater of the 2005 SUA Convention. These 
provisions provide that it shall be an offense to conduct such 
acts against or on a fixed platform, rather than on or against 
a ship as in the 2005 SUA Convention.
    Article 5 of the 2005 Fixed Platforms Protocol makes 
conforming amendments to Article 3 of the 1988 Protocol to 
incorporate the new offenses. Article 5(1) of the 2005 Fixed 
Platforms Protocol amends Article 3(1) of the 1988 Protocol to 
require each State Party to take such measures as necessary to 
establish jurisdiction over the offenses set forth in Articles 
2, 2bis, and 2ter when the offense is committed either against 
or on board a fixed platform while it is located on the 
continental shelf of that State or by a national of that State. 
Article 5(2) of the 2005 Fixed Platforms Protocol makes 
conforming amendments to Article 3, paragraph 3 of the 1988 
Protocol in accordance with new terminology under the 2005 
Fixed Platforms Protocol. Finally, Article 5(3) of the 2005 
Fixed Platforms Protocol makes conforming amendments to Article 
3, paragraph 4 of the 1988 Protocol to require each State Party 
to take such measures as may be necessary to establish its 
jurisdiction over the offenses set forth in Articles 2, 2bis, 
and 2ter, when the alleged offender is in its territory and it 
does not extradite the alleged offender to any of the States 
Parties that have established jurisdiction in accordance with 
the 2005 Fixed Platforms Protocol. Each of these amendments to 
Article 3 simply updates the provisions to incorporate the new 
articles provided by the 2005 Fixed Platforms Protocol.
Interpretation and application
    Article 6 of the 2005 Fixed Platforms Protocol states that 
the 1988 Protocol and the 2005 Fixed Platforms Protocol shall 
``be read and interpreted together as one single instrument.'' 
It further states that Articles 1 to 4 of the 1988 Protocol, as 
revised by the 2005 Fixed Platforms Protocol, together with 
Articles 8 to 13 of the 2005 Fixed Platforms Protocol, ``shall 
constitute and be called together the Protocol for the 
Suppression of Unlawful Acts against the Safety of Fixed 
Platforms Located on the Continental Shelf, 2005, (2005 SUA 
Fixed Platforms Protocol).''
Final clauses
    Article 7 of the 2005 Fixed Platforms Protocol adds a new 
provision, Article 4bis, which makes Articles 8 to 13 of the 
2005 Fixed Platform Protocol the final clauses of the 2005 SUA 
Fixed Platforms Protocol. It further states that references in 
the 2005 SUA Fixed Platforms Protocol to States Parties shall 
mean States Parties to the 2005 Fixed Platforms Protocol. 
Articles 8 and 9 of the 2005 Fixed Platforms Protocol describe 
the requirements for signature, ratification, acceptance, 
approval, accession and entry into force. Article 8 provides 
that the 2005 Fixed Platforms Protocol is open for signature 
from February 14, 2006 to February 13, 2007 and will thereafter 
remain open for accession. Paragraph 2 of this article provides 
that States may express their consent to be bound by: signature 
without reservation as to ratification, acceptance or approval; 
signature subject to ratification, acceptance or approval 
followed by ratification, acceptance or approval; or accession. 
Under paragraph 3, ratification, acceptance, approval or 
accession is to be effected by the deposit of an instrument to 
that effect with the IMO Secretary-General. Paragraph 4 
provides that only States that are parties to the 1988 Protocol 
may become parties to the 2005 Fixed Platforms Protocol. 
Article 9 provides that 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. However, the 
2005 Fixed Platforms Protocol may not enter into force before 
the 2005 SUA Protocol enters into force. For each State that 
ratifies, accepts, approves, or accedes after the deposit of 
the third instrument and after the 2005 SUA Protocol enters 
into force, the 2005 Fixed Platforms Protocol will enter into 
force on the ninetieth day after the date of deposit of that 
State's instrument. Article 10 allows any State Party to 
denounce the 2005 Fixed Platforms Protocol at any time after 
the date on which it enters into force for that State. 
Denunciation shall be effected by the deposit of an instrument 
of denunciation with the IMO Secretary-General and shall take 
effect one year, or such longer period as the State Party may 
specify in the instrument of denunciation, after the deposit of 
the instrument with the IMO Secretary-General.
    Article 11 of the 2005 Fixed Platforms Protocol establishes 
the procedures for revising and amending the 2005 Fixed 
Platforms Protocol. The IMO Secretary General will convene a 
conference of States Parties to revise or amend the Protocol at 
the request of one third of the States Parties or five States 
Parties, whichever figure is higher. Any instrument of 
ratification, acceptance, approval or accession deposited after 
entry into force of an amendment to the 2005 Fixed Platforms 
Protocol is to be deemed to apply to the Protocol as amended. 
Pursuant to Article 7, these procedures would also apply to 
amendments to the 2005 SUA Fixed Platforms Protocol.
    Article 12 of the 2005 Fixed Platforms Protocol designates 
the IMO Secretary-General as the Depositary of the 2005 Fixed 
Platforms Protocol and any amendments adopted under Article 11 
of the 2005 Fixed Platforms Protocol, and sets forth the duties 
of the Depositary. Article 13 of the 2005 Fixed Platforms 
Protocol provides the six languages for the official texts of 
the 2005 Fixed Platforms Protocol.
Implementing legislation
    Title 18, U.S. Code sections 2280 and 2281 implement the 
Convention and the 1988 Protocol. Legislation necessary to 
implement the 2005 Protocols is being prepared for separate 
submission to the Congress.
    The Departments of Justice, Homeland Security and Defense 
join in recommending that the 2005 Protocols be transmitted to 
the Senate at an early date for its advice and consent to their 
ratification, subject to the understandings previously 
described.