First Previous (SCHEDULE 1 Convention for the suppression of unlawful acts against the safety of maritime navigation, done at Rome on 10 March 1988)

29 2004

Maritime Security Act 2004

SCHEDULE 2

Protocol for the suppression of unlawful acts against the safety of fixed platforms located on the continental shelf, done at rome on 10 march 1988

Section 1 .

The States Parties to this Protocol,

BEING PARTIES to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation,

RECOGNIZING that the reasons for which the Convention was elaborated also apply to fixed platforms located on the continental shelf,

TAKING ACCOUNT of the provisions of the Convention,

AFFIRMING that matters not regulated by this Protocol continue to be governed by the rules and principles of general international law,

HAVE AGREED as follows:

ARTICLE 1

1. The provisions of articles 5 and 7 and of articles 10 to 16 of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (hereinafter referred to as “the Convention”) shall also apply mutatis mutandis to the offences set forth in article 2 of this Protocol where such offences are committed on board or against fixed platforms located on the continental shelf.

2. In cases where this Protocol does not apply pursuant to paragraph 1, it nevertheless applies when the offender or the alleged offender is found in the territory of a State Party other than the State in whose internal waters or territorial sea the fixed platform is located.

3. For the purposes of this Protocol, “fixed platform” means an artificial island, installation or structure permanently attached to the sea-bed for the purpose of exploration or exploitation of resources or for other economic purposes.

ARTICLE 2

1. Any person commits an offence if that person unlawfully and intentionally:

(a) seizes or exercises control over a fixed platform by force or threat thereof or any other form of intimidation; or

(b) performs an act of violence against a person on board a fixed platform if that act is likely to endanger its safety; or

(c) destroys a fixed platform or causes damage to it which is likely to endanger its safety; or

(d) places or causes to be placed on a fixed platform, by any means whatsoever, a device or substance which is likely to destroy that fixed platform or likely to endanger its safety; or

(e) injures or kills any person in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (d).

2. Any person also commits an offence if that person:

(a) attempts to commit any of the offences set forth in paragraph 1; or

(b) abets the commission of any such offences perpetrated by any person or is otherwise an accomplice of a person who commits such an offence; or

(c) threatens, with or without a condition, as is provided for under national law, aimed at compelling a physical or juridical person to do or refrain from doing any act, to commit any of the offences set forth in paragraph 1, subparagraphs (b) and (c), if that threat is likely to endanger the safety of the fixed platform.

ARTICLE 3

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 when the offence is committed:

(a) against or on board a fixed platform while it is lcoated on the continental shelf of that State; or

(b) by a national of that State.

2. A State Party may also establish its jurisdiction over any such offence when:

(a) it is committed by a stateless person whose habitual residence is in that State;

(b) during its commission a national of that State is seized, threatened, injured or killed; or

(c) it is committed in an attempt to compel that State to do or abstain from doing any act.

3. Any State Party which has established jurisdiction mentioned in paragraph 2 shall notify the Secretary-General of the International Maritime Organization (hereinafter referred to as “the Secretary-General”). If such State Party subsequently rescinds that jurisdiction, it shall notify the Secretary-General.

4. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender is present in its territory and it does not extradite him to any of the States Parties which have established their jurisdiction in accordance with paragraph 1 and 2 of this article.

5. This Protocol does not exclude any criminal jurisdiction exercised in accordance with national law.

ARTICLE 4

Nothing in this Protocol shall affect in any way the rules of international law pertaining to fixed platforms located on the continental shelf.

ARTICLE 5

1. This Protocol shall be open for signature at Rome on 10 March 1988 and at the Headquarters of the International Maritime Organization (hereinafter referred to as “the Organization”) from 14 March 1988 to 9 March 1989 by any State which has signed the Convention. It shall thereafter remain open for accession.

2. States may express their consent to be bound by this Protocol by:

(a) signature without reservation as to ratification, acceptance or approval; or

(b) signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval; or

(c) accession.

3. Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Secretary-General.

4. Only a State which has signed the Convention without reservation as to ratification, acceptance or approval, or has ratified, accepted, approved or acceded to the Convention may become a Party to this Protocol.

ARTICLE 6

1. This Protocol shall enter into force ninety days following the date on which three States have either signed it without reservation as to ratification, acceptance or approval, or have deposited an instrument of ratification, acceptance, approval or accession in respect thereof. However, this Protocol shall not enter into force before the Convention has entered into force.

2. For a State which deposits an instrument of ratification, acceptance, approval or accession in respect of this protocol after the conditions for entry into force thereof have been met, the ratification, acceptance, approval or accession shall take effect ninety days after the date of such deposit.

ARTICLE 7

1. This Protocol may be denounced by any State Party at any time after the expiry of one year from the date on which this Protocol enters into force for that State.

2. Denunciation shall be effected by the deposit of an instrument of denunciation with the Secretary-General.

3. A denunciation shall take effect one year, or such longer period as may be specified in the instrument of dencunciation, after the receipt of the instrument of denunciation by the Secretary-General.

4. A denunciation of the Convention by a State Party shall be deemed to be a denunciation of this Protocol by that Party.

ARTICLE 8

1. A conference for the purpose of revising or amending this Protocol may be convened by the Organization.

2. The Secretary-General shall convene a conference of the States Parties to this Protocol for revising or amending the Protocol, at the request of one third of the States Parties, or five States Parties, whichever is the higher figure.

3. Any instrument of ratification, acceptance, approval or accession deposited after the date of entry into force of an amendment to this Protocol shall be deemed to apply to the Protocol as amended.

ARTICLE 9

1. This Protocol shall be deposited with the Secretary-General.

2. The Secretary-General shall:

(a) inform all States which have signed this Protocol or acceded thereto, and all Members of the Organization, of:

(i) each new signature or deposit of an instrument of ratification, acceptance, approval or accession, together with the date thereof;

(ii) the date of entry into force of this Protocol;

(iii) the deposit of any instrument of denunciation of this Protocol together with the date on which it is received and the date on which the denunciation takes effect;

(iv) the receipt of any declaration or notification made under this Protocol or under the Convention, concerning this Protocol;

(c) transmit certified true copies of this Protocol to all States which have signed this Protocol or acceded thereto.

3. As soon as this Protocol enters into force, a certified true copy thereof shall be transmitted by the Depositary to the Secretary-General of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.

ARTICLE 10

This Protocol is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic.

IN WITNESS WHEREOF the undersigned, being duly authorized by their respective Governments for that purpose, have signed this Protocol.

DONE AT ROME this tenth day of March one thousand nine hundred and eighty-eight.

[Here follow signatures on behalf of certain States]

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MARITIME SECURITY ACT 2004


EXPLANATORY AND FINANCIAL MEMORANDUM


[This Memorandum is not part of the Act and does not purport to be a legal interpretation.]

The purpose of this Act is to give effect to the United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988) and the Protocol to that Convention for the Suppression of Unlawful Acts against the Safety of Fixed Platforms on the Continental Shelf (1988), the text of which was laid before Dáil Éireann and Seanad Éireann on 11 November 2003 and is set out in Schedules 1 and 2 to the Act.

The Convention and Protocol are among a suite of international instruments against terrorism which Member States of the United Nations are enjoined by Security Council Resolution 1373 of 28 September 2001 to implement as soon as possible. The terms of the Convention and Protocol were approved by Dáil Éireann pursuant to Article 29.5.2° of Bunreacht na hÉireann on 25 May 2004 and the Act was enacted to enable Ireland to be a party to them.

The Act creates specific offences against the safety of Irish ships and other ships which are in Irish territorial waters and against fixed platforms on the Continental Shelf (subject to imprisonment for life on conviction on indictment), and consequentially provides, on standard lines, for extra-territorial jurisdiction to cover offences committed outside the State in breach of the Convention or Protocol, the apprehension and detention of alleged offenders and handing them over to the appropriate authorities, extradition, bail, avoidance of double jeopardy and other necessary matters, on the model of provisions of the Criminal Justice (Terrorist Offences) Bill 2002 which makes necessary provision in relation to 4 other international conventions against terrorism.

Provisions of Act

Section 1 provides, on standard lines, for the definition of certain terms and expressions used in the Act.

Subsection (2) makes its clear that any Defence Forces' involvement under the Act is only to be in aid of the civil power, at the request of a member of the Garda Síochána of at least Inspector rank.

Section 2 gives effect to Article 3.1 of the Convention and Article 2.1 of the Protocol by outlawing specified acts which are mentioned therein (subsection (1)), and also to Article 5 of the Convention (which applies mutatis mutandis to the acts outlawed by the Protocol) by prescribing a penalty of imprisonment for life on conviction on indictment for doing any such acts (subsection (2)).

Both the 1988 Convention and Protocol thereto outlaw “aiding or abetting” the commission of unlawful acts specified therein. Section 7 of the Criminal Law Act 1997 (No 14) provides that any person who aids, abets, counsels or procures the commission of an indictable offence (such as those provided for in this section) is liable to be indicted, tried and punished as a principal offender. There is therefore no need to make separate provision for those acts in this section.

Section 3 is designed to prevent offenders escaping jurisdiction by giving section 2 of the Act extra-territorial application.

Subsection (1) extends section 2 of the Bill to cover unlawful acts done outside the State by any person on board or against an Irish ship, or by a citizen of Ireland on or against any non-Irish ship or fixed platform, or by a person who is not a citizen of Ireland but is found in the State.

Subsection (2) restricts the Director of Public Prosecutions in consenting to or taking court proceedings in relation to unlawful acts done outside the State — on or against non-Irish ships or fixed platforms — by a person who is not a citizen of Ireland but is found in the State.

Subsection (3) defines “outside the State” for the purposes of this section as meaning outside the territorial seas of the State (as defined by the Maritime Jurisdiction Acts 1959 to 1988) or outside an area designated under section 2 of the Continental Shelf Act 1968 (No. 18).

Section 4 makes provision for the arrest of alleged offenders and their detention until they can be duly brought before a court in the State or handed over to the appropriate authorities of another Convention state.

Subsection (1) empowers a member of the Garda Síochána (or a member of the Defence Forces acting in aid of the civil power) to arrest an alleged offender without warrant.

Subsection (2) supplements subsection (1) by empowering a member of the Garda Síochána (or a member of the Defence Forces acting in aid of the civil power) to prevent a suspected intending offender from boarding a ship or fixed platform or remove that person from the ship or fixed platform or arrest that person without warrant.

Subsection (3) mirrors subsection (1) by empowering the master of the ship concerned or person in charge of the fixed platform concerned to arrest and detain an alleged offender until such time (as required by subsection (4)) as the alleged offender can be delivered to a member of the Garda Síochána or Defence Forces, or to the appropriate authorities of another Convention state.

Subsection (5) requires the delivery to a member of the Garda Síochána of any alleged offender delivered to a member of the Defence Forces under subsection (4) or arrested by a member of the Defence Forces under this section.

Subsections (6), (7) and (8) give effect to particular requirements of the Convention (Articles 7.1, 7.3 and 11.6) and Protocol (Article 1.1 which applies the said Articles of the Convention mutatis mutandis to the Protocol).

Subsection (6) ensures that the court before which an alleged offender is brought shall, when considering an application for bail, take into account the need to ensure the person's presence in the State for such time as is necessary to enable any extradition or other proceedings to be brought.

Subsection (7) obliges the court to pay due regard to whether the rights of the person in question can be given effect to in the state requesting the extradition of that person, namely, the right to

(a) communicate without delay with the nearest appropriate representative of the state of which that person is a national or which is otherwise entitled to establish such communication or, if that person is a stateless person, the state in the territory of which that person has his or her habitual residence, and

(b) be visited by a representative of that state.

Subsection (8) makes it clear that subsections (6) and (7) apply mutatis mutandis to the Protocol as they apply to the Convention.

Subsection (9) is a necessary exemption from any liability for any master of a ship or person in charge of a fixed platform who acts in a reasonable way under this Act.

Section 5 makes provision in relation to the handing over by the master of a ship to the appropriate authorities of another Convention state of persons detained under section 4 of the Act.

Subsection (1) is the main provision. It authorises the master of the ship in question to deliver to the appropriate authorities of another Convention state an alleged offender detained under section 4 of the Act. The remainder of the section elaborates on requirements to be observed by such a master in such cases.

Subsection (2) requires the master of the ship concerned to notify the appropriate authorities of the Convention state in question of the intended handing-over of the alleged offender and the reasons for so doing while

Subsection (3) requires that notification to be given as soon as it is practicable to do so and, if possible, before the ship in question enters the territorial seas of the Convention state in question.

Subsection (4) requires the master of the ship in question to provide the appropriate authorities of the Convention state in question with any relevant statements they may reasonably require and such other evidence as the master of the ship in question may possess in relation to the alleged offence.

Subsection (5) is designed to ensure that the master of the ship concerned meets the requirements of subsections (3) and (4), except where it is not reasonable to do so, by making unreasonable failure by the master of the ship concerned an offence subject to the potentially severe penalties set out in subsection (5).

Section 6 clearly provides for the search by a member of the Garda Síochána (or member of the Defence Forces in aid of the civil power) of any ship or fixed platform on which it is alleged that an offence under this Act has been committed, or on which there is a person who is alleged to have committed such an offence.

Subsection (1) is the main provision. It provides for search by a member of the Garda Síochána (or member of the Defence Forces in aid of the civil power) of such a ship or fixed platform and for the removal of any object or records related to the alleged offence.

Subsection (2) outlaws obstruction of a search authorised by subsection (1) by making such obstruction an offence subject to a fine not exceeding €3,000 and/or imprisonment for a term not exceeding 12 months.

Subsection (3) empowers the arrest without warrant of any person who obstructs a search under subsection (1).

Subsection (4) ensures that electronically-held information capable of being converted into legible form can be obtained by search under this section.

Section 7 makes provision for court proceedings in the State under this Act for alleged offences committed outside the State.

Subsection (1) provides that court proceedings for such offences may be brought anywhere in the State.

Subsection (2) appoints the Central Criminal Court as the court to try any offences under section 2 of the Act (as extended by section 3 of the Act), because of the gravity of such offences.

Subsection (3) makes it clear that it is for the Director of Public Prosecutions to determine what if any further proceedings (that is in addition to remand in custody or on bail) are to be brought in the State against persons alleged to have committed an offence outside the State, subject to subsection (4).

Subsection (4) allows the Director of Public Prosecutions to take, or consent to the taking of, further proceedings in the State against a person for an offence in respect of an act done outside the State where, for example, extradition of the alleged offender to another Convention state was refused or is likely to be refused, or because of special circumstances it is considered expedient to bring court proceedings in the State against the alleged offender.

Subsection (5) defines “European Arrest Warrant” for the purposes of this section.

Section 8 ensures the admissibility of certain official certificates in court proceedings in the State for offences under section 2 of the Act (as extended by section 3 of the Act). A certificate issued by an officer of the Department of Foreign Affairs could state if an Irish passport issued to a specified person on a specified date and that that person was believed to continue to be an Irish citizen. A certificate signed by or on behalf of the Director of Public Prosecutions would relate to any act committed outside the State in respect of which court proceedings in the State are brought by or with the consent of the Director of Public Prosecutions, because extradition of the alleged offender to another Convention state was refused or is likely to be refused, or because it is considered expedient to bring court proceedings in the State against the alleged offender in respect of an act committed outside the State.

Section 9 is designed to ensure that, in so far as the State is concerned, where a person has been acquitted or convicted outside the State of an offence for doing any act specified in section 2 of the Act (as extended by section 3 of the Act), that person cannot be proceeded against for the corresponding offence in the State also.

Section 10 provides that a person charged with the offence of murder or attempted murder contrary to section 2 of the Act (as extended by section 3 of the Act) may not, on a plea of guilty, be dealt with summarily in the District Court or sent forward for sentence, and that in such cases applications for bail must go to the High Court.

Section 11 ensures that, for extradition purposes, offences under section 2 of the Act (as extended by section 3 of the Act) will not be regarded as political offences.

Section 12 ensures that offences under section 2 of the Act (as extended by section 3 of the Act) will be considered to be serious offences for bail purposes. The Bail Act 1997 (No. 16) provides that bail may be refused to a person charged with a serious offence where it is considered necessary to prevent the commission of a serious offence. Serious offences are defined by reference to the Schedule to that Act which section 12 of this Act amends to include offences under section 2 of this Act (as extended by section 3 of this Act).

Section 13 is a standard provision for Exchequer funding of any expenses incurred in administering the Act.

Section 14 is a standard provision giving the short title of the Act, for ease of reference.

Financial Implications

Exchequer expenditure could arise from mutual assistance, extradition of alleged offenders and other requirements of the 1988 Convention and Protocol. While such expenditure is unlikely to be significant, Dáil approval of the terms of the 1988 Convention and Protocol was specifically required by Article 29.5.2° of Bunreacht na hÉireann (approval given on 25 May 2004), as well as enactment of this Act.

An Roinn Cumarsáide, Mara agus Acmhainní Nádúrtha, Iúil, 2004.