1. PURPOSE

The purpose of this memorandum is to provide an explanation, of the proposal, for South Africa to accede to the Convention for the Suppression c Unlawful Acts against the Safety of Maritime Navigation and to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platform; located on the Continental Shelf (otherwise known as the SUA Convention and its Protocol).

2. OBJECTIVE OF THE CONVENTION AND PROTOCOL

The main purpose of the Convention is to ensure that appropriate action is taken against persons committing unlawful acts against ships. These include the seizure of ships by force; acts of violence against persons on board ships; and the placing of devices on board a ship which are likely to destroy c damage. The Convention obliges Contracting Governments either to extradite or prosecute alleged offenders. Similar provisions are contained in the SUA Protocol, relating to unlawful acts against fixed platforms located on the continental shelf. This Convention will enable South Africa to address issues related to unlawful acts which threaten the safety of ships and the security of their passengers and crews grew during the 1980s, with reports of crews being kidnapped, ships being hi-jacked, deliberately run aground or blown up by explosives as well as passengers being threatened and sometimes killed.

3. BACKGROUND The Convention and its Protocol

In November 1986 the Governments of Austria, Egypt and Italy proposed that IMO prepare a convention on the subject of unlawful acts against the safety o1 maritime navigation 'to provide for a comprehensive suppression of unlawful acts committed against the safety of maritime navigation which endanger innocent human lives, jeopardize 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.

The proposal was supported and a Diplomatic Conference held in Rome from the 1^st to 10^th of March 1988 adopted two treaty instruments, namely, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on Continental Shelf. The Convention for the Suppression of Unlawful Acts against the Safety o Maritime Navigation and its Protocol were both adopted on 10 March 1988 and entered into force on 1 March 1992.

The Convention obliges Contracting Governments either to extradite o prosecute alleged offenders.

In December 1985, further support came from the United Nations General Assembly, which called upon IMO "to study the problem of terrorism aboard or against ships with a view to making recommendations on appropriate measures.

The Convention applies if the ship I navigating or is scheduled to navigate into, through or from waters beyond the outer limits of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent State.

Article 6 requires a Contracting Government to take such measures as may be necessary to establish jurisdiction over the offences set forth in article 3 when the offence is committed against or on board a ship of its flag at the time the offence is committed; or when the offence is committed in the territory of that State or by a national of that State concerned.

In terms of Article 8, the master of a ship of a flag State may deliver to the authorities of any other Member State any person whom there is reasonable grounds to believe has committed one of the offences set forth in Article 3. Article 10 obliges the Member State in the territory of which the offender or the alleged offender is found, if it cannot extradite the offender, to submit the case without delay to its competent authorities for the purpose of prosecution.

Member States are urged, in terms of Article 13, to co-operate in the prevention of the offences set forth in Article 3, exchange information in accordance with their national law, and coordinate administrative and other measures taken as appropriate to prevent the commission of offences set forth in Article 3.

Amendments

IMO may convene a conference of States parties to the Convention for the purpose of revising or amending the convention, at the request of one third or ten States Parties, whichever is the highest.

Review of the SUA Convention and its Protocol

In line with the latter paragraph, a diplomatic Conference to adopt amendments to the 1988 SUA Convention and Protocol will be held in October 2005.

The proposed amendments to the treaties in the revised draft Protocols include a substantial broadening of the range of offences included in Article 3 of the SUA Convention and the introduction of provisions for boarding vessels suspected of being involved in terrorist activities in Article 8.

4. FINANCIAL IMPLICATIONS

There are no additional financial implications that will arise out of the implementation of these two treaty instruments since most functions that are contained therein are already performed by different government organs and are budgeted for in terms of government budgetary prescriptions.

5. CONCLUSION

It is proposed that South Africa accedes to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and to the Protocol for Suppression of Fixed Platforms Located on Continental Shelf which will enable the country to address issues related unlawful acts which threaten the safety of ships and the security of their passengers and crews grew during the 1980s, with reports of crews being kidnapped, ships being hi- jacked, deliberately run aground or blown up by explosives. Passengers were threatened and sometimes killed.

1. We have scrutinized the "Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation" and "Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms on the Continental Shelf' with a view to possible conflict with the domestic law of the Republic of South Africa only and we are of the opinion that no provision thereof is in conflict with the domestic law of the Republic of South Africa since the provisions of the Convention are made subject to the domestic law of each State Party.

2. We assume that the relevant authorities have been consulted with regard to the provisions with financial implications and that such expenses have been authorised.

3. We would also like to draw your attention to section 231 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) which must be adhered to.

OFFICE OF THE CHIEF STATE LAW ADVISER (INTERNATIONAL LAW): DEPARTMENT OF FOREIGN AFFAIRS

1. Your request for legal advice dated 3 September 2003, refers.

2. The State Law Advisers (IL) have been requested to scrutinise the above mentioned treaties with a view to commenting on their consistency with international law and South. Africa’s international obligations. We have also been requested to advise on the category that these treaties fall under in terms of section 231 of the Constitution.

3. We have examined both the Convention and the Protocol and confirms that both are acceptable e from an international law point of view. In fact, in terms of the legally binding UN Security Council Resolution 1373 (2001) South Africa is required to become a Party to both these Conventions as both form part of the compendium o: anti-terrorism Conventions. From an international relations point of view therefore the earliest ratiJ5cation/ accession of these Conventions has been, and continues to be supported.

4. Once South Africa is a Party to these treaties it has a legally binding obligation to ensure that domestic effect can be given to their provisions. We are aware that the Counter Terrorism Bill currently before Parliament makes provision for the offence; of endangering the safety of maritime navigation and offences related to fixed platforms, as set out in Article 3 of the Convention and Article 2 of the Protocol respectively.

5. The Department of Transport should, however, ensure that it is in a position to implement the other obligations of the treaties that are not covered by the Counter Terrorism Bill. In this regard special consideration should be given to Article 8 of the Convention. If necessary new or amending legislation should be drafted to give effect to the other provisions of the Convention and Protocol.

6. It should also be borne in mind that States must notify the Secretary General of the International Maritime Organisation of the jurisdiction they have established over the offences in terms of Article 6(3) of the Convention and Article 3(3) of the Protocol. The Counter Terrorism Bill may also provide assistance in this regard as jurisdictional provisions for all offences, including those found in the Convention and Protocol, are included in that Bill.

7. It is also important that the accession to both treaties is handled simultaneously as they are linked and a State can only accede to the Protocol if it has also acceded to the Convention (Article 5 of the Protocol).

8. Section 231 (2) of the Constitution, read with the Manual on Executive Acts, provides that any international agreement requiring ratification or accession should be approved by both the National Assembly and the National Council of Provinces. As the Convention and Protocol are multilateral treaties requiring accession or ratification, they fall within the ambit of section 231(2) of the Constitution and consequently Parliamentary approval is required to accede to them. The Department of Transport, as line function Department, is responsible for obtaining Parliamentary approval to accede to both the Convention and the Protocol in terms of section 231(2) of the Constitution.

9. Please note that as South Africa has not signed the treaties, and as both have already entered into force. South Africa will be acceding to the Convention and Protocol in terms of Article 17 and Article 5 respectively. Parliament should therefore be requested to accede to the Convention and Protocol and not to ratify them. The difference in terminology between ratification and accession is technical only and does not effect the legal status of the process or the procedure that must be followed.

10. Ones Parliamentary approval has been obtained then instruments of Accession can be drafted and signed either by the Minister of Foreign Affairs or the President. The State Law Advisers (IL) can assist in preparing the Instruments of Accession if so requested. The Instruments of Accession should then be deposited with the designated depository. For both the Convention and the Protocol this is the Secretary General of the International Maritime Organisation.

11. If you have any further queries in this regard please do not hesitate to contact me

JB SCHKEEBSRGER PRETORIA