[Senate Executive Report 110-25]
[From the U.S. Government Publishing Office]



110th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      110-25

======================================================================



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

                                _______
                                

               September 16, 2008.--Ordered to be printed

                                _______
                                

          Mr. Biden, from the Committee on Foreign Relations,
                        submitted the following

                                 REPORT

                    [To accompany Treaty Doc. 110-8]

    The Committee on Foreign Relations, to which was referred 
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''), both adopted at London on October 
14, 2005, and signed by the United States of America on 
February 17, 2006 (Treaty Doc. 110-8), having considered the 
same, reports favorably thereon with reservations, 
understandings, and declarations, as indicated in the 
resolutions of advice and consent for each treaty, and 
recommends that the Senate give its advice and consent to 
ratification thereof, as set forth in this report and the 
accompanying resolutions of advice and consent.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Major Provisions.................................................3
 IV. Entry Into Force.................................................7
  V. Implementing Legislation.........................................8
 VI. Committee Action.................................................8
VII. Committee Recommendation and Comments............................8
VIII.Resolutions of Advice and Consent to Ratification...............14


                               I. Purpose

    The purpose of the 2005 SUA Protocol and the 2005 Fixed 
Platforms Protocol is to strengthen and update the Convention 
for the Suppression of Unlawful Acts against the Safety of 
Maritime Navigation (the ``1988 SUA Convention'') and the 
Protocol for the Suppression of Unlawful Acts against the 
Safety of Fixed Platforms Located on the Continental Shelf (the 
``1988 Fixed Platforms Agreement'') (Treaty Doc. 101-1), in 
order to create a more effective international regime to 
prevent and punish maritime terrorism and the proliferation of 
weapons of mass destruction (``WMD'').

                             II. Background

    The 2005 SUA Protocol and the 2005 Fixed Platforms Protocol 
were negotiated under the auspices of the International 
Maritime Organization (``IMO'') and would amend two agreements 
adopted by the IMO in 1988 to which the United States is 
already a party: the 1988 SUA Convention and the 1988 Fixed 
Platforms Agreement. The 1988 SUA Convention and the 1988 Fixed 
Platforms Agreement were originally negotiated in response to 
the 1985 hijacking of the Italian-flag cruise ship the Achille 
Lauro and the murder of American passenger Leon Klinghoffer. 
These two 1988 agreements established an international legal 
framework requiring that States Parties either extradite or 
submit for prosecution persons who have committed certain 
offenses identified in each treaty in an effort to ensure that 
individuals who commit acts of terrorism that endanger the safe 
navigation of a ship or the safety of a fixed platform are 
either prosecuted in the state in which they are found or 
extradited to another state for prosecution.
    While the 1988 SUA Convention and the 1988 Fixed Platforms 
Agreement focus respectively on vessels and fixed platforms at 
sea as the potential target of a terrorist attack or other 
terrorist activity, the 2005 SUA Protocol and the 2005 Fixed 
Platforms Protocol expand this international framework to 
include scenarios in which vessels or platforms are used as a 
potential means for carrying out or enabling terrorist 
activity. Specifically, they establish a framework for 
investigating, prosecuting, and extraditing persons who commit 
certain offenses, including using a ship or fixed platform as a 
weapon or as a means to carry out a terrorist attack; the 
unlawful transport of biological, chemical, and nuclear weapons 
and other nuclear explosive devices and related delivery 
systems on the high seas; the transport of terrorist fugitives 
by sea; and various accessory offenses. In addition, the 2005 
SUA Protocol creates a shipboarding regime on the high seas 
based on flag state consent if a State Party has ``reasonable 
grounds to suspect'' that an offense covered by the treaty has 
been, is being, or is about to be committed. In response to 
questions from the committee, administration officials noted 
that the shipboarding regime and the offenses established by 
both Protocols are expected to strengthen the international 
legal basis for conducting maritime interdictions and 
facilitate the enforcement of UN sanctions against countries 
such as Iran and North Korea. In particular, Deputy Assistant 
Secretary of Defense Richard Douglas stated as follows:


          The [2005 SUA Protocol and the 2005 Fixed Platforms 
        Protocol] require participating States Parties to enact 
        legislation to criminalize the unlawful maritime 
        transport of WMD, a key requirement in stopping the 
        spread of WMD, and an important step in helping to 
        enforce the sanctions in current UN Security Council 
        resolutions. [Both Protocols] establish a legal basis 
        for international cooperation in the investigation, 
        prosecution, and extradition of those who commit or aid 
        terrorist acts or trafficking in WMD aboard ships at 
        sea or on fixed platforms. The ability of States 
        Parties to prosecute the perpetrators of these acts 
        under the domestic legislation that States Parties must 
        adopt will be a means to impose ``consequences'' on the 
        perpetrators of these acts. The 2005 SUA Protocol's 
        shipboarding regime will provide a multilateral basis 
        for the interdiction at sea of WMD, their delivery 
        systems, and related materials, as well as terrorist 
        fugitives.


    The 2005 SUA Protocol and the 2005 Fixed Platforms Protocol 
were adopted by the IMO on October 14, 2005, and signed on 
behalf of the United States on February 17, 2006. The 
President's submittal indicates that the Departments of State, 
Justice, Homeland Security, and Defense all join in 
recommending early action on these treaties.

                         III. Major Provisions

    A detailed analysis of these two Protocols may be found in 
the Letter of Submittal from the Secretary of State to the 
President, which is reprinted in full in Treaty Document 110-8. 
A summary of several key provisions is set forth below.

                          A. 2005 SUA PROTOCOL

New Offenses

    Paragraphs 5-7 of Article 4 of the 2005 SUA Protocol add 
new offenses to the Convention that fit into four categories:


          1. Terrorism Offenses

          2. Proliferation Offenses

          3. Transportation of Terrorist Fugitives Offense

          4. Accessory Offenses

            1. Terrorism Offenses (Article 3bis(1)(a)):
    Any person commits an offense if that person unlawfully and 
intentionally, when the purpose of the act, by its nature or 
context, is to intimidate a population, or to compel a 
government or an international organization to do or to abstain 
from doing any act--


          i. Uses against or on a ship or discharges from a 
        ship any explosive, radioactive material or BCN weapon 
        (Article 2 of the 2005 SUA Protocol defines ``BCN 
        weapons'' as biological, chemical, and nuclear weapons 
        and other nuclear explosive devices) in a manner that 
        causes or is likely to cause death or serious injury or 
        damage;

          ii. Discharges, from a ship, oil, liquefied natural 
        gas, or other hazardous or noxious substance (not 
        already covered by (i) above) in such quantity or 
        concentration that causes or is likely to cause death 
        or serious injury or damage;

          iii. Uses a ship in a manner that causes death or 
        serious injury or damage; or

          iv. Threatens, with or without a condition, as is 
        provided for under national law, to commit an offense 
        set forth above in (i), (ii), or (iii).

            2. Proliferation Offenses (Article 3bis(1)(b) & (2)):
    Any person also commits an offense if that person 
unlawfully and intentionally transports 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, with or without a condition, as is provided 
        for under national law, death or serious injury or 
        damage for the purpose of intimidating a population, or 
        compelling a government or an international 
        organization to do or to abstain from doing any act;

          ii. Any BCN weapon, knowing it to be a BCN weapon;

          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 International Atomic Energy Agency 
        (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 will be used for such purpose.


    Article 4(5) of the 2005 SUA Protocol adds to the 
Convention, inter alia, a new Article 3bis(2), which provides 
that certain nuclear transport that would otherwise be an 
offense under Article 3bis(1)(b) remains permissible, in order 
to preserve the right of a State Party to the Treaty on Non-
Proliferation of Nuclear Weapons (the ``NPT'') to engage in 
legitimate nuclear transport. This provision, in combination 
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). Specifically, Article 3bis(2) provides that 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 (for 
instance, India) is on the ``other end'' of the transport to or 
from (or under the control of) the NPT State Party.
            3. Transportation of Terrorist Fugitives Offense (Article 
                    3ter):
    Article 4(6) of the 2005 SUA Protocol adds Article 3ter to 
the Convention, which makes it an offense for a person to 
unlawfully and intentionally transport another person on board 
a ship, with the intent to assist that person in evading 
criminal prosecution and knowing that the person has committed 
an act that constitutes an offense set forth in Articles 3, 
3bis, or 3quater of the amended SUA Convention or an offense 
set forth in one of the treaties listed in the Annex to the 
Convention. Currently, there are nine treaties listed in the 
Annex and the United States is a party to all nine.
            4. Accessory Offenses (Article 3quater):
    Paragraph 7 of Article 4 of the 2005 SUA Protocol adds 
Article 3quater to the Convention, which makes it an offense 
for a person to--

          a. Unlawfully and intentionally injure or kill any 
        person in connection with the commission of any of the 
        offenses set forth in Articles 3(1), 3bis, or 3ter of 
        the amended SUA Convention;

          b. Attempt to commit an offense set forth in Articles 
        3(1), 3bis(1)(a)(i), (ii), (iii), or 3quater(a) of the 
        amended SUA Convention;

          c. Participate as an accomplice in an offense set 
        forth in Articles 3, 3bis, 3ter, 3quater(a), or 
        3quater(b) of the amended SUA Convention;

          d. Organize or direct others to commit an offense set 
        forth in Articles 3, 3bis, 3ter, 3quater(a), or 
        3quater(b) of the amended SUA Convention; or

          e. Contribute to the commission of one or more 
        offenses set forth in Articles 3, 3bis, 3ter, 
        3quater(a) or 3quater(b) of the amended SUA Convention 
        by a group of persons acting with a common purpose, 
        intentionally and either:

                  i. With the aim of furthering the criminal 
                activity or criminal purpose of the group, 
                where such activity or purpose involves the 
                commission of an offense set forth in Articles 
                3, 3bis, or 3ter of the amended SUA Convention; 
                or

                  ii. In the knowledge of the intention of the 
                group to commit an offense set forth in 
                Articles 3, 3bis, or 3ter of the amended SUA 
                Convention.

Shipboarding Regime

    Article 8(2) of the 2005 SUA Protocol adds Article 8bis to 
the Convention, which creates a shipboarding regime by 
establishing a comprehensive set of procedures and protections 
designed to facilitate the boarding of a vessel flying the flag 
of a State Party by another State Party when that Party has 
reasonable grounds to suspect that the vessel or a person on 
board the vessel is, has been, or is about to be involved in 
the commission of an offense covered by the Convention.
    The authorization and co-operation of the flag State Party 
is required before the requesting State Party can board and 
search the vessel. States Parties may, however, provide their 
consent in advance by notifying the IMO Secretary-General that 
any other State Party may board and search one of its vessels 
if that State Party has reasonable grounds to suspect that the 
vessel or a person on board the vessel is, has been, or is 
about to be involved in the commission of an offense covered by 
the Convention. Alternatively, States Parties may declare in 
advance (by notifying the IMO Secretary-General) that any other 
State Party may board and search one of their vessels under 
such circumstances, if they don't respond to a State Party's 
request for authorization within four hours. The United States 
will not file a notification with the IMO Secretary-General 
granting either of these two forms of advance consent. 
Paragraph 10 of Article 8bis establishes a number of safeguard 
provisions to protect seafarers and carriers during the course 
of shipboardings.
    In response to questions from the committee, the Department 
of Defense described how the shipboarding regime would 
strengthen international cooperation in conducting maritime 
interdictions intended to counter terrorism and proliferation 
as follows:
    The ship boarding provisions under [the 2005 SUA Protocol] 
will facilitate timely coordination of boarding requests from 
flag states, some of which are not participating in [the 
Proliferation Security Initiative or ``PSI''] and may not 
choose to enter into bilateral agreements with the United 
States. The [2005 SUA Protocol] will provide the benefits of a 
streamlined process in the context of a multilateral 
convention. The SUA shipboarding regime will serve to 
strengthen the international legal basis for interdictions at 
sea carried out under the PSI. The shipboarding regime in the 
2005 SUA Protocol will provide a multilateral basis for the 
interdiction at sea of WMD, their delivery systems, and related 
materials, as well as terrorist fugitives. It will also provide 
an internationally accepted model for shipboarding that can be 
used with states that are not party to SUA or participants in 
PSI.

                    B. 2005 FIXED PLATFORMS PROTOCOL

Incorporation of Relevant Provisions of the 1988 SUA Convention, as 
        Amended by the 2005 SUA Protocol

    Article 2 of the Fixed Platforms Protocol amends Article 1 
of the 1988 Fixed Platforms Agreement to incorporate all of the 
substantive provisions of the 1988 SUA Convention, as amended 
by the 2005 SUA Protocol, with the exception of those 
provisions that address transport offenses and the shipboarding 
regime, which are not relevant in the context of fixed 
platforms. These provisions include, among other things, (1) 
definitions of terms used in the treaty; (2) the obligation to 
make offenses punishable under domestic law; (3) the 
establishment of liability for legal entities; (4) a guarantee 
of fair treatment to those held in custody; (5) the obligation 
to extradite or prosecute; (6) the framework for transferring 
persons in custody; (7) obligations to assist with criminal 
investigations under the treaty; and (8) obligations to share 
information and to take all ``practicable measures'' to prevent 
preparation for the commission of offenses covered by the 
treaty.

New Offenses

    Article 4 of the Fixed Platforms Protocol adds two new 
Articles (Articles 2bis and 2ter) to the 1988 Fixed Platforms 
Agreement, which define new offenses to be covered by the 
framework. The offense under new Article 2bis is as follows:
    Any person commits an offense if that person unlawfully and 
intentionally, when the purpose of the act, by its nature or 
context, is to intimidate a population, or to compel a 
government or an international organization to do or to abstain 
from doing any act--


          a. Uses against or on a fixed platform or discharges 
        from a fixed platform any explosive, radioactive 
        material or BCN weapon in a manner that causes or is 
        likely to cause death or serious injury or damage;

          b. Discharges, from a fixed platform, oil, liquefied 
        natural gas, or other hazardous or noxious substance 
        (not already covered by (a) above) in such quantity or 
        concentration that causes or is likely to cause death 
        or serious injury or damage; or

          c. Threatens, with or without a condition, as is 
        provided for under national law, to commit an offense 
        set forth above in (a) or (b).


    The new Article 2ter makes it an offense for a person to--


          a. Unlawfully and intentionally injure or kill any 
        person in connection with the commission of any of the 
        offenses set forth in Articles 2(1) or 2bis of the 
        amended Fixed Platforms Agreement;

          b. Attempt to commit an offense set forth in Articles 
        2(1), 2bis(a), 2bis(b), or 2ter(a) of the amended Fixed 
        Platforms Agreement;

          c. Participate as an accomplice in an offense set 
        forth in Articles 2, 2bis, 2ter(a), or 2ter(b) of the 
        amended Fixed Platforms Agreement;

          d. Organize or direct others to commit an offense set 
        forth in Articles 2, 2bis, 2ter(a), or 2ter(b) of the 
        amended Fixed Platforms Agreement; or

          e. Contribute to the commission of one or more 
        offenses set forth in Articles 2, 2bis, 2ter(a), or 
        2ter(b) of the amended Fixed Platforms Agreement by a 
        group of persons acting with a common purpose, 
        intentionally and either:

                  i. With the aim of furthering the criminal 
                activity or criminal purpose of the group, 
                where such activity or purpose involves the 
                commission of an offense set forth in Articles 
                2 or 2bis of the amended Fixed Platforms 
                Agreement; or

                  ii. In the knowledge of the intention of the 
                group to commit an offense set forth in 
                Articles 2 or 2bis of the amended Fixed 
                Platforms Agreement.

                          IV. Entry Into Force

    In accordance with Article 18, the 2005 SUA Protocol will 
enter into force 90 days following the date on which 12 States 
have expressed their consent to be bound by the Protocol. If 
the United States deposits an instrument of ratification after 
12 States have expressed their consent to be bound by the 2005 
SUA Protocol, the Protocol will enter into force for the United 
States 90 days after the deposit of the U.S. instrument. To 
date, 6 States have joined the 2005 SUA Protocol.
    In accordance with Article 9, 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 by 
the Protocol, but will not enter into force before the 2005 SUA 
Protocol. If the United States deposits an instrument of 
ratification after the 2005 SUA Protocol has entered into force 
and after three States have expressed their consent to be bound 
by the 2005 Fixed Platforms Protocol, the 2005 Fixed Platforms 
Protocol will enter into force for the United States 90 days 
after the deposit of the U.S. instrument. To date, 4 States 
have joined the 2005 Fixed Platforms Protocol.

                      V. Implementing Legislation

    With the exception of the provisions in the 2005 SUA 
Protocol and the 2005 Fixed Platforms Protocol that obligate 
the United States to criminalize certain offenses, to make 
those offenses punishable by appropriate penalties, and to 
authorize the assertion of jurisdiction over such offenses, 
these Protocols are self-executing. The provisions that are not 
self-executing require implementing legislation. In light of 
this, the Department of Justice submitted on May 8, 2007, a 
draft bill to Congress that would amend Sections 2280 and 2281 
of Title 18, United States Code, in order to fully implement 
both Protocols. Another draft of that legislation was 
subsequently submitted by the Department of Justice on July 28, 
2008. According to the Department of Justice, this second draft 
has been adjusted ``to ensure consistency in legislation 
implementing various counterterrorism conventions.'' The draft 
legislation submitted in July is currently under consideration 
by the Committees on the Judiciary of the House and Senate. The 
committee understands that the executive branch will not 
deposit instruments of ratification for either of these 
Protocols until the necessary legislation has been enacted to 
allow the United States to fully implement the Protocols.

                          VI. Committee Action

    The committee held a public hearing on these two Protocols 
on May 7, 2008. Testimony was received from Ms. Patricia 
McNerney, Principal Deputy Assistant Secretary of State for 
International Security and Nonproliferation at the Department 
of State; Mr. John Demers, Deputy Assistant Attorney General 
for the National Security Division at the Department of 
Justice; and Mr. Richard Douglas, Deputy Assistant Secretary of 
Defense for Counternarcotics, Counter-proliferation and Global 
Threats at the Department of Defense. A transcript of this 
hearing can be found in the Annex to Executive Report 110-23.
    On July 29, 2008, the committee considered the 2005 SUA 
Protocol and the 2005 Fixed Platforms Protocol and ordered them 
favorably reported by voice vote, with a quorum present and 
without objection.

               VII. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that these two 
Protocols will enhance U.S. national security by modernizing 
and strengthening the international counterproliferation and 
counterterrorism legal framework. As noted by the Department of 
Defense, these agreements will ``close international legal gaps 
by criminalizing the use of a ship to transport terrorists or 
as a weapon and by criminalizing maritime transport of WMD, 
their delivery systems, and related materials.'' The 
shipboarding regime established by the 2005 SUA Protocol will 
also provide a stronger international legal basis for 
conducting maritime interdictions and, when combined with the 
offenses established in both Protocols, the new regime will 
complement and improve existing international cooperation in 
the investigation, prosecution, and extradition of those who 
commit or aid terrorist acts or trafficking in WMD aboard ships 
at sea or on fixed platforms. Moreover, these Protocols 
facilitate the enforcement of United Nations Security Council 
sanctions against countries such as Iran and North Korea, and 
complement and further the objectives of the nonproliferation 
obligations set forth in United Nations Security Council 
Resolutions 1540 (2004).\1\ Resolution 1540, which is generally 
reaffirmed by Resolutions 1673 (2006) and 1810 (2008),\2\ among 
other things, requires all States to enact laws to prohibit 
``any non-State actor to manufacture, acquire, possess, 
develop, transport, transfer or use nuclear, chemical or 
biological weapons and their means of delivery, in particular 
for terrorist purposes.'' Accordingly, the committee urges the 
Senate to act promptly to give advice and consent to 
ratification of these Protocols, as set forth in this report 
and the accompanying resolution of advice and consent.
---------------------------------------------------------------------------
    \1\S/RES/1540, April 29, 2004, available at http://www.un.org/Docs/
sc/unsc_resolutions04.html
    \2\S/RES/1673, April 27, 2006, available at http://www.un.org/Docs/
sc/unsc_resolutions06.htm; S/RES/1810, April 25, 2008, available at 
http://www.un.org/Docs/sc/unsc_resolutions08.htm. Resolutions 1673 and 
1810 generally reiterate and reaffirm the decisions and requirements 
included in Resolution 1540 and they each extend the mandate of a 
Committee that was established under Resolution 1540.
---------------------------------------------------------------------------

                       A. AMENDMENTS TO THE ANNEX

    Article 7 of the 2005 SUA Protocol adds an Annex to the 
1988 SUA Convention, which relates to a new offense established 
by Article 4(6) of the 2005 SUA Protocol. Article 4(6) makes it 
an offense for a person to unlawfully and intentionally 
transport another person on board a ship, with the intent to 
assist that person in evading criminal prosecution and knowing 
that the person has committed an act that constitutes an 
offense covered by the amended SUA Convention or an offense set 
forth in one of the treaties listed in the Annex added by 
Article 7 of the 2005 SUA Protocol. Currently, there are nine 
treaties listed in the Annex and the United States is a party 
to all nine.\3\
---------------------------------------------------------------------------
    \3\(1) Convention for the Suppression of Unlawful Seizure of 
Aircraft, Treaty Doc. 92-1; (2) Convention for the Suppression of 
Unlawful Acts against the Safety of Civil Aviation, Treaty Doc. 92-32; 
(3) Convention on the Prevention and Punishment of Crimes against 
Internationally Protected Persons, Treaty Doc. 93-36; (4) International 
Convention against the Taking of Hostages, Treaty Doc. 96-49; (5) 
Convention on the Physical Protection of Nuclear Material, Treaty Doc. 
96-43; (6) Protocol for the Suppression of Unlawful Acts of Violence at 
Airports Serving International Civil Aviation, supplementary to the 
Convention for the Suppression of Unlawful Acts against the Safety of 
Civil Aviation, Treaty Doc. 100-19; (7) Protocol for the Suppression of 
Unlawful Acts against the Safety of Fixed Platforms Located on the 
Continental Shelf, Treaty Doc. 101-1; (8) International Convention for 
the Suppression of Terrorist Bombings, Treaty Doc. 106-6; (9) 
International Convention for Suppression of the Financing of Terrorism, 
Treaty Doc. 106-49.
---------------------------------------------------------------------------
    Article 22 of the 2005 SUA Protocol provides a procedure 
for amending the Annex to add new treaties, but only if they 
(1) are open to the participation of all States; (2) have 
entered into force; and (3) have been ratified, accepted, 
approved, or acceded to by at least 12 States Parties to the 
2005 SUA Protocol. Article 22(3) provides that a proposal to 
amend the Annex in accordance with Article 22 will 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, but in no case will a State Party be bound 
by the amendment to the Annex unless it deposits an instrument 
of ratification, acceptance, or approval for that amendment.\4\
---------------------------------------------------------------------------
    \4\See Article 22(4) of the 2005 SUA Protocol.
---------------------------------------------------------------------------
    In the Letter of Submittal from the Secretary of State to 
the President, which is reprinted in full in Treaty Document 
110-8, it is noted that if the Senate has already provided 
advice and consent to the treaty that is the subject of an 
amendment to the Annex, the executive branch would expect to 
proceed to deposit an instrument of acceptance for the 
amendment without separately seeking the advice and consent of 
the Senate for that amendment.\5\ On the other hand, if the 
amendment provides for the addition of a treaty that has not 
received the advice and consent of the Senate, the executive 
branch would expect to seek the advice and consent of the 
Senate prior to consenting to the amendment.\6\
---------------------------------------------------------------------------
    \5\See the Secretary of State's Letter of Submittal, Treaty Doc. 
110-8 at XXIX.
    \6\Ibid.
---------------------------------------------------------------------------
    The committee recognizes the reasoning behind this 
suggested approach by the executive branch to amendments to the 
Annex, and agrees that any amendment that provides for the 
addition of a treaty to the Annex that has not received the 
advice and consent of the Senate, would require the advice and 
consent of the Senate. The committee, however, believes that it 
is also possible that an amendment to the Annex adding a treaty 
to which the Senate has already provided its advice and 
consent, could require the advice and consent of the Senate. 
The committee, therefore, expects the executive branch to 
consult with the committee in a timely manner regarding such 
amendments, which would in any case be likely to require 
implementing legislation, in order to determine whether advice 
and consent is necessary before the United States consents to 
be bound by the amendment.

                             B. RESOLUTION

I. 2005 SUA Protocol

    The committee has included in the resolution of advice and 
consent for the 2005 SUA Protocol one reservation, five 
understandings, and one declaration.

Reservation

    With this reservation the United States would opt out of 
the binding dispute resolution mechanism provided for in the 
1988 SUA Convention with respect to disputes concerning the 
interpretation or application of the 2005 SUA Protocol. This 
reservation is similar to those made by the United States with 
respect to the dispute settlement mechanisms in the Terrorist 
Bombings and Terrorism Financing Conventions.

First Understanding

    Article 3 of the 2005 SUA Protocol, which adds Article 2bis 
to the 1988 SUA Convention, excludes from the scope of the 
amended Convention the activities of armed forces during an 
armed conflict, which are instead governed by ``international 
humanitarian law'' (also known as the ``law of war''). This 
carve-out is identical to the one found in Article 19(2) of the 
Terrorist Bombings Convention, as well as Article 4 of the 
Nuclear Terrorism Convention. The proposed understanding would 
make it clear that this carve-out does not include certain 
situations such as ``internal disturbances and tensions, such 
as riots, isolated and sporadic acts of violence, and other 
acts of a similar nature,'' in an effort to prevent attempts by 
suspected offenders to claim the benefit of this ``armed 
conflict'' exception in order to improperly avoid extradition 
or prosecution under the Convention. This understanding is the 
same as the understanding included in the Senate's resolution 
regarding the Terrorist Bombings Convention with respect to 
Article 19(2).

Second Understanding

    Article 3 of the 2005 SUA Protocol, which adds Article 2bis 
to the 1988 SUA Convention, uses the term ``international 
humanitarian law.'' This term is not generally used by the 
United States armed forces and therefore the committee has 
included, on the basis of the State Department's 
recommendation, this proposed understanding to make clear that 
the term ``international humanitarian law'' has the same 
substantive meaning as ``law of war.''

Third Understanding

    Article 3 of the 2005 SUA Protocol, which adds Article 2bis 
to the 1988 SUA Convention, excludes from the scope of the 
amended Convention ``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.'' The 
committee, on the basis of the State Department's 
recommendation, has included this proposed understanding in 
order to clarify that the conduct of certain civilians who 
direct or organize or act with the military are also exempted 
from the Convention's scope of application.

Fourth Understanding

    Article 3 and 4(5) of the 2005 SUA Protocol add two new 
articles to the 1988 SUA Convention: Article 2bis and Article 
3bis. Article 2bis(3) of the amended Convention provides that 
nothing in the amended Convention shall affect the rights, 
obligations, and responsibilities of States Parties under 
various associated non-proliferation treaties,\7\ and Article 
3bis(2) of the amended Convention, which constitutes a 
nonproliferation ``savings clause'' by specifying that nuclear 
transport activities remain permissible under the amended 
Convention in certain circumstances, notwithstanding the 
wording of the offenses in Article 3bis(1)(b). Article 
3bis(1)(b) of the amended Convention makes it an offense to 
transport certain items as described in subparagraphs (i), 
(ii), (iii), and (iv) on board a ship. In particular, Article 
3bis(1)(b)(iii) provides that it is an offense to transport on 
board a ship 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. The committee, on the basis of the State 
Department's recommendation, has included the proposed 
understanding in order to clarify the applicability of Article 
2bis(3) and Article 3bis(2) of the amended Convention to the 
offense established in the new Article 3bis(1)(b)(iii) of the 
amended Convention.
---------------------------------------------------------------------------
    \7\The Treaty on the Non-Proliferation of Nuclear Weapons, the 
Convention on the Prohibition of the Development, Production and 
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on 
their Destruction, and the Convention on the Prohibition of the 
Development, Production, Stockpiling and Use of Chemical Weapons and on 
their Destruction.
---------------------------------------------------------------------------

Fifth Understanding

    This proposed understanding would make it clear that 
existing U.S. law implements the obligations contained in 
Article 9 of the 2005 SUA Protocol.

Declaration

    The committee has included a proposed declaration, which 
states that the 2005 SUA Protocol is self-executing, with the 
exception of those provisions that obligate the United States 
to criminalize certain offenses, make those offenses punishable 
by appropriate penalties, and authorize the assertion of 
jurisdiction over such offenses. In addition, the proposed 
declaration clarifies that none of the provisions in the 2005 
SUA Protocol confer private rights enforceable in U.S. courts. 
This declaration is consistent with testimony provided by the 
Department of State. The Senate has rarely included statements 
regarding the self-executing nature of treaties in resolutions 
of advice and consent, but in light of the recent Supreme Court 
decision, Medellin v. Texas, 128 S.Ct. 1346 (2008), the 
committee has determined that a clear statement in the 
resolution is warranted. A further discussion of the 
committee's views on this matter can be found in Section VIII 
of Executive Report 110-12.

II. 2005 Fixed Platforms Protocol

    The committee has included in the resolution of advice and 
consent one reservation, four understandings, and one 
declaration.

Reservation

    With this reservation the United States would opt out of 
the binding dispute resolution mechanism provided for in the 
1988 SUA Convention and incorporated by reference into the 2005 
Fixed Platforms Protocol with respect to disputes concerning 
the interpretation or application of the 2005 Fixed Platforms 
Protocol. This reservation is similar to those made by the 
United States with respect to the dispute settlement mechanisms 
in the Terrorist Bombings and Terrorism Financing Conventions.

First Understanding

    Article 2 of the 2005 Fixed Platforms Protocol incorporates 
by reference Article 2bis(2) of the amended SUA Convention, 
which excludes from the scope of the Fixed Platforms Agreement, 
as amended by the Fixed Platforms Protocol, the activities of 
armed forces during an armed conflict, which are instead 
governed by ``international humanitarian law'' (also known as 
the ``law of war''). This carve-out is identical to the one 
found in Article 19(2) of the Terrorist Bombings Convention, as 
well as Article 4 of the Nuclear Terrorism Convention. The 
proposed understanding would make it clear that this carve-out 
does not include certain situations such as ``internal 
disturbances and tensions, such as riots, isolated and sporadic 
acts of violence, and other acts of a similar nature,'' in an 
effort to prevent attempts by suspected offenders to claim the 
benefit of this ``armed conflict'' exception in order to 
improperly avoid extradition or prosecution under the 
Convention. This understanding is the same as the understanding 
included in the Senate's resolution regarding the Terrorist 
Bombings Convention with respect to Article 19(2).

Second Understanding

    Article 2 of the 2005 Fixed Platforms Protocol incorporates 
by reference Article 2bis of the amended SUA Convention, which 
uses the term ``international humanitarian law.'' The term 
``international humanitarian law'' is not generally used by the 
United States armed forces and therefore the committee has 
included, on the basis of the State Department's 
recommendation, this proposed understanding to make clear that 
the term ``international humanitarian law'' has the same 
substantive meaning as ``law of war.''

Third Understanding

    Article 2 of the 2005 Fixed Platforms Protocol incorporates 
by reference Article 2bis(2) of the amended SUA Convention, 
which excludes from the scope of the Fixed Platforms Agreement, 
as amended by the Fixed Platforms Protocol, 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.'' The committee, on the basis of 
the State Department's recommendation, has included this 
proposed understanding in order to clarify that the conduct of 
certain civilians who direct or organize or act with the 
military are also exempted from the Convention's scope of 
application.

Fourth Understanding

    This proposed understanding would make it clear that 
existing U.S. law implements the obligations contained in 
Article 10(2) of the amended SUA Convention, which is 
incorporated into the 2005 Fixed Platforms Protocol through 
Article 2.

Declaration

    The committee has included a proposed declaration, which 
states that the 2005 Fixed Platforms Protocol is self-
executing, with the exception of those provisions that obligate 
the United States to criminalize certain offenses, make those 
offenses punishable by appropriate penalties, and authorize the 
assertion of jurisdiction over such offenses. In addition, the 
proposed declaration clarifies that none of the provisions in 
the 2005 Fixed Platforms Protocol confer private rights 
enforceable in U.S. courts. This declaration is consistent with 
testimony provided by the Department of State. The Senate has 
rarely included statements regarding the self-executing nature 
of treaties in resolutions of advice and consent, but in light 
of the recent Supreme Court decision, Medellin v. Texas, 128 
S.Ct. 1346 (2008), the committee has determined that a clear 
statement in the resolution is warranted. A further discussion 
of the committee's views on this matter can be found in Section 
VIII of Executive Report 110-12.

        VIII. Resolutions of Advice and Consent to Ratification


                           2005 SUA PROTOCOL

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A RESERVATION, 
                    UNDERSTANDINGS, AND A DECLARATION.

    The Senate advises and consents to the ratification of the 
Protocol of 2005 to the Convention for the Suppression of 
Unlawful Acts against the Safety of Maritime Navigation, 
adopted on October 14, 2005, and signed on behalf of the United 
States of America on February 17, 2006 (the ``2005 SUA 
Protocol'') (Treaty Doc. 110-8), subject to the reservation of 
section 2, the understandings of section 3, and the declaration 
of section 4.

SECTION 2. RESERVATION

    The advice and consent of the Senate under section 1 is 
subject to the following reservation, which shall be included 
in the instrument of ratification:


          Consistent with Article 16(2) of the Convention for 
        the Suppression of Unlawful Acts against the Safety of 
        Maritime Navigation, 2005, the United States of America 
        declares that it does not consider itself bound by 
        Article 16(1) of the Convention with respect to 
        disputes concerning the interpretation or application 
        of the 2005 SUA Protocol.

SECTION 3. UNDERSTANDINGS

    The advice and consent of the Senate under section 1 is 
subject to the following understandings, which shall be 
included in the instrument of ratification:


          (1) The United States of America understands that the 
        term ``armed conflict'' in Article 3 of the 2005 SUA 
        Protocol (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.

          (2) The United States of America understands that the 
        term ``international humanitarian law,'' in Article 3 
        of the 2005 SUA Protocol (which adds, inter alia, 
        paragraph 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.''

          (3) The United States of America understands that, 
        pursuant to Article 3 of the 2005 SUA Protocol (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.

          (4) The United States of America understands that:


                  A. Article 3 and Article 4(5) of 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 criminal sanction 
                under the Convention for the Suppression of 
                Unlawful Acts against the Safety of Maritime 
                Navigation, 2005, the transport of source 
                material, 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 material, special 
                fissionable material, and equipment or material 
                especially designed or prepared for the 
                processing, use, or production of special 
                fissionable 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:


                          i. Transport of source material or 
                        special fissionable material (from 
                        either an NPT State Party or a State 
                        that is not an NPT party) to an NPT 
                        nuclear-weapon State Party, as that 
                        term is defined in the NPT, regardless 
                        of whether the source material or 
                        special fissionable material will be 
                        under safeguards in the NPT nuclear-
                        weapon State Party, because the 
                        resulting receipt of the material is 
                        not contrary to the NPT obligations of 
                        the nuclear-weapon State Party;

                          ii. Transport of source material or 
                        special fissionable material to a non-
                        nuclear-weapon State Party, as such 
                        term is used in the NPT, for non-
                        nuclear use without safeguards, in 
                        accordance with the provisions of the 
                        recipient country's IAEA comprehensive 
                        safeguards agreement allowing for 
                        exemption of the source material or 
                        special fissionable material from 
                        safeguards or the non-application or 
                        termination of safeguards (e.g., for 
                        specified de minimis amounts, or for 
                        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);

                          iii. Transport of source material or 
                        special fissionable 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 State that is not an 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 source 
                        or special fissionable material 
                        transferred for peaceful purposes is 
                        subject to an IAEA safeguards agreement 
                        but is not required by that agreement 
                        actually to be under safeguards (e.g., 
                        under an exemption for de minimis 
                        amounts or a 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.

    (5) The United States of America understands that current 
United States law with respect to the rights of persons in 
custody and persons charged with crimes fulfills the 
requirement in Article 9 of the 2005 SUA Protocol and, 
accordingly, the United States does not intend to enact new 
legislation to fulfill its obligations under this Article.

SECTION 4. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:


          With the exception of the provisions that obligate 
        the United States to criminalize certain offenses, make 
        those offenses punishable by appropriate penalties, and 
        authorize the assertion of jurisdiction over such 
        offenses, the 2005 SUA Protocol is self-executing. 
        Included among the self-executing provisions are those 
        provisions obligating the United States to treat 
        certain offenses as extraditable offenses for purposes 
        of bilateral extradition treaties. None of the 
        provisions of the 2005 SUA Protocol, including Article 
        9, confer private rights enforceable in United States 
        courts.

                     2005 FIXED PLATFORMS PROTOCOL

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A RESERVATION, 
                    UNDERSTANDINGS, AND A DECLARATION.

    The Senate advises and consents to the ratification 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, adopted on October 14, 2005, and signed 
on behalf of the United States of America on February 17, 2006 
(the ``2005 Fixed Platforms Protocol'') (Treaty Doc. 110-8), 
subject to the reservation of section 2, the understandings of 
section 3, and the declaration of section 4.

SECTION 2. RESERVATION

    The advice and consent of the Senate under section 1 is 
subject to the following reservation, which shall be included 
in the instrument of ratification:


          Consistent with Article 16(2) of the Convention for 
        the Suppression of Unlawful Acts against the Safety of 
        Maritime Navigation, 2005, and incorporated by Article 
        2 of the 2005 Fixed Platforms Protocol, the United 
        States of America declares that it does not consider 
        itself bound by Article 16(1) of the Convention and 
        incorporated by Article 2 of the 2005 Fixed Platforms 
        Protocol, with respect to disputes concerning the 
        interpretation or application 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.

SECTION 3. UNDERSTANDINGS

    The advice and consent of the Senate under section 1 is 
subject to the following understandings, which shall be 
included in the instrument of ratification:


          (1) 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 
        2005 Fixed Platforms Protocol, does not include 
        internal disturbances and tensions, such as riots, 
        isolated and sporadic acts of violence, and other acts 
        of a similar nature.

          (2) The United States of America 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 2005 Fixed Platforms Protocol, has the 
        same substantive meaning as the ``law of war.''

          (3) The United States of America 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, and 
        incorporated by Article 2 of the 2005 Fixed Platforms 
        Protocol, 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.

          (4) The United States of America understands that 
        current United States law with respect to the rights of 
        persons in custody and persons charged with crimes 
        fulfills the requirement in paragraph 2 of Article 10 
        of the Convention for the Suppression of Unlawful Acts 
        against the Safety of Maritime Navigation, 2005, and 
        incorporated by Article 2 of the 2005 Fixed Platforms 
        Protocol, and, accordingly, the United States does not 
        intend to enact new legislation to fulfill its 
        obligations under this Article.

SECTION 4. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:


          With the exception of the provisions that obligate 
        the United States to criminalize certain offenses, make 
        those offenses punishable by appropriate penalties, and 
        authorize the assertion of jurisdiction over such 
        offenses, the 2005 Fixed Platforms Protocol is self-
        executing. Included among the self-executing provisions 
        are those provisions obligating the United States to 
        treat certain offenses as extraditable offenses for 
        purposes of bilateral extradition treaties. None of the 
        provisions of the 2005 Fixed Platforms Protocol, 
        including those incorporating by reference Articles 7 
        and 10 of the Convention for the Suppression of 
        Unlawful Acts against the Safety of Maritime 
        Navigation, 2005, confer private rights enforceable in 
        United States courts.

                                    

      
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