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Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety

Published online by Cambridge University Press:  27 February 2017

Malvina Halberstam
Malvina Halberstam*
Affiliation:
Benjamin N. Cardozo School of Law, Yeshiva University
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Extract

On October 7, 1985, the Achille Lauro, an Italian-flag cruise ship, was seized while sailing from Alexandria to Port Said. The hijackers, members of the Palestine Liberation Front (PLF), a faction of the Palestine Liberation Organization (PLO), had boarded the ship in Genoa, posing as tourists. They held the ship’s crew and passengers hostage, and threatened to kill the passengers unless Israel released 50 Palestinian prisoners. They also threatened to blow up the ship if a rescue mission was attempted. When their demands had not been met by the following afternoon, the hijackers shot Leon Klinghoffer, a Jew of U.S. nationality who was partly paralyzed and in a wheelchair, and threw his body and wheelchair overboard. The United States characterized the seizure as piracy, a position that has been supported by some commentators and opposed by others.

Type
Research Article
Information
American Journal of International Law , Volume 82 , Issue 2 , April 1988 , pp. 269 - 310
Copyright
Copyright © American Society of International Law 1988

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References

1 Editorial Note: The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation was adopted on March 10, 1988 at a Diplomatic Conference in Rome and was signed by 23 states, including the United States, on that date. This article went to press before the Diplomatic Conference began and the discussion is based on the draft Convention agreed upon by the Ad Hoc Preparatory Committee. Although there were no major changes in the draft Convention, some additions and deletions were made, which will be noted in a subsequent issue.

1 It was not clear from the newspaper reports whether the initial seizure was on the high seas or within the territorial waters of Egypt. Compare N.Y. Times, Oct. 8, 1985, at A1, col. 6, with id., Oct. 13, 1985, §1, at 22, col. 6. However, there is no doubt that the ship was on the high seas while being held by the hijackers.

2 For a discussion of the relationship between the PLO and the PLF and a suggestion that the initial raid was endorsed by the PLO, which officially denied involvement, see McGinley, , The Achille Lauro Affair—Implications for International Law, 52 Tenn. L. Rev. 691, 699 (1985)Google Scholar. See also N.Y. Times, Oct. 17, 1985, at A12, col. 2; Time, Oct. 28, 1985, at 32–33.

3 The hijackers segregated the Americans and Jews on board and threatened to kill them if their demands were not met. See N.Y. Times, Oct. 13, 1985, §1, at 24, col. 5.

4 N.Y. Times, Oct. 10, 1985, at A11, col. 1; id., Oct. 8, 1985, at A1, col. 6; Documents Concerning the Achille Lauro Affair, 24 ILM 1509, 1556 (1985). Among those whose release from prison in Israel was demanded was Samar al-Qantari who had murdered a 5-year-old girl in Nahariya by dashing her head against a rock. N.Y. Times, Oct. 9, 1985, at A18, col. 6.

5 N.Y. Times, Oct. 8, 1985, at Al, col. 6.

6 Smith, , The Voyage of the Achille Lauro, Time, Oct. 21, 1985, at 30–31 Google Scholar.

7 The seizure was characterized as piracy by the President, 24 ILM at 1515; N.Y. Times, Oct. 12, 1985, at A6, cols. 1–6; and by the Legal Adviser, id., Dec. 30, 1985, at A1, col. 5; and the Justice Department obtained arrest warrants charging the hijackers with hostage taking, conspiracy and “piracy on the high seas,” 24 ILM at 1554–57.

8 Compare Gooding, Fighting Terrorism in the 1980’s: The Interception of the Achille Lauro Hijackers, 12 Yale J. Int’l L. 158, 159 (1987) (“While it may be contended that the taking of the Achille Lauro is not included within [the 1958 Geneva Convention on the High Seas] definition [of piracy] because there was no second vessel involved or because the hijackers did not act for ‘private ends,’ customary international law and the history of the enforcement of the norm against piracy indicate that such a position is unfounded”), and McGinley, supra note 2, at 700 (“Thus it is evident that the seizure of the Achille Lauro was piracy jure gentium”), with Note, Towards a New Definition of Piracy: The Achille Lauro Incident, 26 Va. J. Int’l L. 723, 748 (1986) (“The Palestinians’ actions, however, do not qualify as piracy under international law . . . “).

9 Although there are several conventions dealing with specific aspects of terrorism, such as hijacking of airplanes (Hague Convention on Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 UST 1641, TIAS No. 7192, 860 UNTS 105), sabotage of airplanes (Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 UST 564, TIAS No. 7570) [hereinafter Montreal Convention], hostage taking (Convention Against the Taking of Hostages, Dec. 17, 1979, reprinted in 18 ILM 1456 (1979)), and assault on internationally protected persons (Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, 28 UST 1975, TIAS No. 8532), there is at present no convention on maritime terrorism.

There is no generally accepted definition of terrorism, the meaning of which is, of course, very controversial, and no attempt to define it will be made here. The Restatement (Third) of U.S. Foreign Relations Law notes that though there “has been wide condemnation of terrorism,” international agreements to define and punish it have not yet been widely ratified because of inability to agree on its definition. Restatement (Third) of Foreign Relations Law of the United States §404 comment a (1988) [hereinafter Restatement (Third)]. For a discussion of various attempts to define terrorism, see Levitt, , Is Terrorism Worth Defining?, 13 Ohio N.U.L. Rev. 97 (1986)Google Scholar.

10 The question arises whether the Convention, infra note 11, applies to an offender who is a national of a state that has not ratified the Convention but is found in the jurisdiction of a state party, and, if so, whether such application is consistent with generally recognized principles of international law. Article 3, defining the offenses, states, “any person commits an offence . . .” (see “Defining the Offenses” in pt. II infra). Article 10 provides that a state party “in the territory of which the offender or alleged offender is found shall,. . . if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory,” to submit the case to its authorities. Similar provisions are contained in the conventions dealing with airplane sabotage and hijacking, hostage taking and attacks on internationally protected persons. See infra note 101.

At least one commentator questions the theoretical justification for the application of a convention proscribing terrorism, or a particular aspect of terrorism, to nationals of a state that has not ratified it. See Paust, , Extradition of the Achille Lauro Hostage-Takers: Navigating the Hazards , 20 Vand. J. Transnat’l L. 235, 254 (1987)Google Scholar (“Universal jurisdiction under the Hostages Convention . . . is highly suspect with regard to defendants who are not nationals of a signatory to the Hostages Convention”). Since terrorist acts are often committed by nationals of states that encourage or condone terrorism, limiting the application of antiterrorist treaties to nationals of state parties would significantly undermine their effectiveness. It would mean that the community of states is essentially helpless to take legal measures against terrorists who are nationals of states that do not ratify the conventions.

A fairly strong argument can be made for applying the conventions to a national of a nonparty if the offense occurred in the territory of a state party. Clearly, the state in whose territory the act occurred (and for ships, the flag state) has jurisdiction under international law. There is no question that a state can regulate conduct in its territory, making certain conduct criminal and providing for the apprehension, trial and punishment of those who engage in it. There is no reason why such a state cannot enter into a treaty with other states—just as the state of nationality of the offender can—authorizing those states to apprehend, try and punish the offender. This would, of course, not resolve the problem of a terrorist act committed by a national of a state that is not a party to the convention in the territory of a state that is not a party.

The simplest argument for applying the conventions in the latter situation is that terrorism is subject to universal jurisdiction under existing customary international law. Alternatively, one might argue that once the respective conventions are ratified by a large number of states, as is true of the airplane hijacking and sabotage conventions (see infra text at note 128), they create customary international law. See Restatement (Third), supra note 9, §§404, 423. See also Paust, supra, at 250 (who holds that terrorism involves a violation of fundamental human rights recognized by customary international law). As for the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, if one takes the position that terrorist acts on the high seas constitute piracy, there is no problem, as universal jurisdiction is generally accepted.

Finally, even if one questions whether a customary rule of law subjecting terrorism to universal jurisdiction has emerged, it seems fairly clear that the underlying conduct involved in most acts of terrorism, e.g., hijacking, hostage taking, attacks on diplomats, is generally considered an offense under the laws of most states and by the international community. If so, the state in which the offender is found is not applying its laws to criminalize conduct by a nonnational that was not otherwise criminal, but is only applying its laws on jurisdiction to a non-national found in its territory. It is arguable that by coming into the state, the perpetrator is subjecting himself to that state’s jurisdiction, even if it would not have jurisdiction without his presence. Presence has long been a basis for jurisdiction in civil matters. See, e.g., Pennoyer v. Neff, 95 U.S. 714 (1877). The question has not come up in criminal matters because a state generally will not apply the penal laws of another state, but it would not be unreasonable to make it a basis of jurisdiction in such matters, where holding the offender criminally responsible for the act comports with fundamental fairness, particularly if there is no other forum with a stronger claim to jurisdiction willing and able to try him.

10a For example, the Convention does not address who may free a ship being held by terrorists. Under customary law, any state may seize a pirate ship; under the Geneva Convention, states having an opportunity to do so may have an obligation to act against a pirate ship. See notes 59–60 infra and accompanying text. Therefore, whether a ship under the control of terrorists constitutes a pirate ship may be of great practical significance. For the position that a ship seized by terrorists and converted by them to their own use may constitute a pirate ship under customary law, see note 67 infra and accompanying text.

11 The Preamble states: “Affirming Further that matters not regulated by this Convention continue to be governed by the rules and principles of general international law . . . .” See Draft Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, IMO Doc. PCUA 2/5, Ann. 1, at 2 (June 2, 1987) [hereinafter Convention].

12 “[P]iracy by the law of nations, in its jurisdictional aspects, is sui generis.” S.S. Lotus, 1927 PCIJ (ser. A) No. 10 (Sept. 7), 2 Hudson, M., World Court Reports 20, 70 Google Scholar (Moore, J., dissenting). The Draft Convention on Jurisdiction with Respect to Crime, prepared by the Harvard Research in International Law, 29 AJIL Supp. 435 (1935), provided for two categories of universal jurisdiction. However, only jurisdiction over piracy was absolute, or unconditional. Universal jurisdiction for other offenses depended on specified conditions, e.g., that the crime was “committed in a place not subject to the authority of any State.” Id. at 440–41.

13 The discussion in this section deals with the customary law of piracy as it had developed prior to the adoption of the Geneva Convention on the High Seas. Although the customary law of piracy was not superseded by the Convention since not all states ratified it and it may not cover all aspects of piracy, with respect to those issues addressed by the Geneva Convention, its adoption focused attention on its provisions and substantially stopped the further development of customary law. See, e.g., the discussion of the Santa María seizure infra. Although the seizure occurred before the Geneva Convention came into effect (but after it was adopted), several of the commentators discussed it with respect to the provisions of the Convention.

14 Brierly, J., The Law of Nations 154 (1928)Google Scholar, quoted in Harvard Research in International Caw, Comment to the Draft Convention on Piracy, 26 AJIL Supp. 749, 750 (1932) [hereinafter Harvard Research, Piracy]. For the text of the draft Convention, see id. at 743. The Comment includes a comprehensive review of, and extensive quotations from, various authorities.

15 1 Oppenheim, L., International Law 608–09 (Lauterpacht, 8th ed. 1955)Google Scholar (footnotes omitted) (emphasis in original). For a review and discussion of the definitions suggested by various publicists, see Harvard Research, Piracy, supra note 14, at 749–51, 769–80.

16 In re Piracy Jure Gentium, 1934 App. Cas. 586, 598, reprinted in 3 Brit. Int’l L. Cases 836, 842 (1965) (emphasis added).

17 See infra text accompanying note 28.

18 United States v. Brig Malek Adhel, 43 U.S. (2 How.) 210, 232 (1844) (emphasis added).

19 In re Piracy Jure Gentium, 3 Brit. Int’l L. Cases at 840.

20 United States v. The Ambrose Light, 25 Fed. 408, 412–13 (S.D.N.Y. 1885) (citations omitted). Compare the following language in The Magellan Pirates, 164 Eng. Rep. 47, 48 (1853):

It is true that where the subjects of one country may rebel against the ruling power, and commit divers acts of violence with regard to that ruling power, that other nations may not think fit to consider them as acts of piracy . . . . I think it does not follow that, because persons who are rebels or insurgents may commit against the ruling power of their own country acts of violence, they may not be, as well as insurgents and rebels, pirates also; pirates for other acts committed towards other persons. It does not follow that rebels or insurgents may not commit piratical acts against the subjects of other states, especially if such acts were in no degree connected with the insurrection or rebellion.

For a discussion of these and other cases on point, see Johnson, , Piracy in Modem International Law, 43 Grotius Soc’y Transactions 63, 76–81 (1957)Google Scholar.

21 3 Wharton, F., International Law Digest 471–72 (2d ed. 1887)Google Scholar (quoting Hall, W., International Law 233–34 (1st ed. 1884)Google Scholar (emphasis added)).

22 Hyde, C., International Law Chiefly as Interpreted and Applied by the United States 774 (2d ed. 1945)Google Scholar (emphasis added).

23 Id. at 775. The full opinion is reprinted in 2 Hackworth, G., Digest of International Law 697 (1941)Google Scholar. The memorandum specifically rejected the position of The Ambrose Light, that the laws of piracy apply to acts by all insurgents who have not achieved the status of recognized belligerents. Wharton’s position was similar to that of Hyde and the State Department: “Armed cruisers, which, though claiming to be commissioned by insurgents, prey on merchant vessels of all nationalities, indiscriminately, are to be regarded as pirates.” See 3 F. Wharton, supra note 21, at 457. In The Magellan Pirates, 164 Eng. Rep. 47 (1853), Lushington took the position that the same persons may be considered both insurgents and pirates, depending on whom they attack. See supra note 20.

24 Apr. 29, 1958, 13 UST 2312, TIAS No. 5200, 450 UNTS 82. The Convention did not enter into force until Sept. 30, 1962.

25 UN Doc. A/CONF.62/122, opened for signature Dec. 10, 1982, reprinted in United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea, UN Sales No. E.83.V.5 (1983). The Convention has not yet been ratified by a sufficient number of states to bring it into force. President Reagan announced on July 9, 1982, that the United States would not sign this Convention because of major problems in its seabed-mining provisions. 1982 Pub. Papers: Ronald Reagan 911–12. President Reagan’s Ocean Policy Statement of Mar. 10, 1983 recognized that “the convention also contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice and fairly balance the interests of all states,” and declared that “the United States is prepared to accept and act in accordance with the balance of interests relating to traditional uses of the oceans—such as navigation.” 1983 id. at 378–79.

26 Summary Records of the Seventh Session, [1955] 1 Y.B. Int’l L. Comm’n 19, 25, UN Doc. A/CN.4/SER.A/1955; Report of the International Law Commission to the General Assembly, 2 UN GAOR Supp. (No. 9), UN Doc. A/3159 (1956), reprinted in [1956] 2 Y.B. Int’l L. Comm’n 253, 282, UN Doc. A/CN.4/SER.A/1956/Add.1. For citation to the Harvard Draft Convention on Piracy and Comment, see supra note 14.

27 Harvard Research, Piracy, supra note 14, at 768–69.

28 Id. at 786. See also id. at 790, quoted in [1955] 1 V.B. Int’l L. Comm’n at 70; McDougal, M. S. & Burke, W., The Public Order of the Oceans 810 (1962)Google Scholar.

29 [1955] 1 Y.B. Int’l L. Comm’n at 41.

30 “The intention to rob (animus furandi) is not required. Acts of piracy may be prompted by feelings of hatred or revenge, and not merely by the desire for gain.” [1956] 2 Y.B. Int’l L. Comm’n at 282. See also M. S. Mcdougal & W. Burke, supra note 28, at 811.

31 Harvard Research, Piracy, supra note 14, at 786 (emphasis added).

32 Id. at 798.

33 Article 16 provides: “The provisions of this convention do not diminish a state’s right under international law to take measures for the protection of its nationals, its ships and its commerce against interference on or over the high sea, when such measures are not based upon jurisdiction over piracy.” Id. at 857.

34 Id. (emphasis added),

35 Id.

36 See id. at 857–61 (quoting the Report of the Sub-Committee of the League of Nations Committee of Experts for the Progressive Codification of International Law; C. Hyde, supra note 22, §233 (1st ed. 1922); W. Hall, supra note 21, at 314–15 (8th ed. 1924); and others).

37 Id. at 857 (emphasis added).

38 Otherwise, the category of cases excluded from universal jurisdiction by the “for private ends” language of Article 3 would be greater than the category of cases for which jurisdiction by the injured state was recognized under Article 16, a result that could clearly not have been intended.

39 See supra text accompanying note 32.

40 [1955] 1 Y.B. Int’l L. Comm’n at 40.

41 Id. at 41.

42 Id.

43 Id. (emphasis added).

44 Id. at 43.

45 Great Britain, Bulgaria, Egypt, France, Greece, Romania, Turkey, the Union of Soviet Socialist Republics and Yugoslavia.

46 See 2 G. Hackworth, supra note 23, at 693.

47 [1955] 1 Y.B. Int’l L. Comm’n at 43–44.

48 Id. at 56 (emphasis added).

49 Id. These statements are all the more noteworthy since Francois, in rejecting the Polish complaint, and Fitzmaurice, in rejecting the suggestion that the Nyon Arrangement indicated an extension of the laws of piracy to state vessels, could have relied on the private vessel requirement rather than on the “private ends” proviso, as they did. See supra text accompanying notes 43 and 47–48. In a paper discussing the Commission’s draft, D. H. N. Johnson stated, “It is arguable that it would be better to emphasize the lack of due authority as the essence of piracy, rather than, as does the International Law Commission, the fact that piracy is a crime committed for ‘private ends.’ “ Johnson, supra note 20, at 77 n.21. He does not, however, consider the two tests coextensive. Id.

50 [1955] 1 Y.B. Int’l L. Comm’n at 57.

51 Id.

52 Zourek even stated that “the Commission had accepted the thesis that an insurgent vessel committing acts of piracy against a third State was a pirate,” though Yuen-li Liang, Secretary to the Commission, said “he had no recollection of such a decision.” Id. at 56.

53 Harvard Research, Piracy, supra note 14, at 806.

54 Though one might take the position that the deliberate, indiscriminate murder of civilians regardless of the identity, status or nationality of the victim is always “gratuitous malice,” as no political purpose can be served thereby; certainly not the destruction of the government the insurgents seek to overthrow, or recognition as belligerents, the justification urged by Hall for exempting insurgents from the laws of piracy. See quote in text accompanying note 21 supra.

55 Significantly, the rapporteur for the International Law Commission quoted these passages concerning insurgents but did not quote the Hyde passage, text accompanying note 53 supra. See supra text accompanying notes 39–41.

56 See W. Hall, quoted in text accompanying note 21 supra.

57 Id. at 234.

58 Crockett, , Toward a Revision of the International Law of Piracy, 26 De Paul L. Rev. 78, 97 (1976)Google Scholar.

59 [1956] 2 Y.B. Int’l L. Comm’n at 282. The Harvard draft, supra note 14, similarly provided, “The parties to this Convention agree to make every expedient use of their powers to prevent piracy, separately and in co-operation.” Art. 18. However, the Comment specifically rejected any implication that this might impose a duty on states to act. The introduction states, “the draft convention does not assert a definite duty of signatories to seize or prosecute all pirates. It imposes on them by Article 18 only a general discretionary obligation to discourage piracy by exercising their rights of prevention and punishment as far as is expedient.” Harvard Research, Piracy, supra note 14, at 760.

60 Johnson, supra note 20, at 65.

61 Harvard Research, Piracy, supra note 14, at 768.

62 [1956] 2 Y.B. Int’l L. Comm’n at 282.

63 See Dubner, , The Law of International Sea Piracy 50–51, 54–55, 59 (1980)Google Scholar; Crockett, supra note 58.

64 See generally authorities quoted in Harvard Research, Piracy, supra note 14, at 809–20.

65 W. Hall, supra note 36, at 310–11, quoted in id. at 817–18. See also id. at 819 (quoting Wheaton: “But, if such a vessel passes into the control of the robbers or murderers on board, and the lawful authority is in fact displaced, and she becomes an outlaw, any nation may seize the vessel and try the criminals”; Wheaton, H., Elements of International Law, note by Dana to § 124 (8th ed. Dana 1866)Google Scholar).

66 [1965] 1 Y.B. Int’l L. Comm’n at 42–43 (quoting Harvard Research, Piracy, supra note 14, at 809–10 (emphasis added)).

67 Id. at 42 (emphasis added). The Commentary to Article 39 states: “(vi) Acts committed on board a ship by the crew or passengers and directed against the ship itself, or against persons or property on the ship, cannot be regarded as acts of piracy.” It goes on to state, however: “The view adopted by the Commission in regard to point (vi) tallies with the opinion of most writers. Even where the purpose of the mutineers is to seize the ship, their acts do not constitute acts of piracy.” [1956] 2 Y.B. Int’l L. Comm’n at 282 (emphasis added). As the passages quoted in the text indicate, the rapporteur made clear that in his view the consensus was best summed up by Oppenheim, i.e., that the seizure does constitute piracy where it is directed not only against the master but also against the vessel for the purpose of converting her and her goods to the perpetrators’ use. This, of course, was exactly the case of those who seized the Achille Lauro. After taking the ship, the hijackers killed one of the passengers, held the others hostage and apparently planned to use the ship to attack Israel.

68 The facts are summarized in B. Dubner, supra note 63, at 148–49; and Joyner, N., Aerial Hijacking as an International Crime 109–11 (1974)Google Scholar.

69 Green, , The Santa Maria: Rebels or Pirates , 37 Brit. Y.B. Int’l L. 496 (1961)Google Scholar.

70 N. Joyner, supra note 68, at 109.

71 Id. at 110 (quoting Keesing’s Contemporary Archives, Feb. 24–Mar. 4, 1961, at 17,951).

72 Id. at 111.

73 Id. Galvão was given political asylum by Brazil. Id. Joyner states that “had Great Britain and the United States not been sympathetic towards the revolution which Galvao and his followers proposed, [they] would have delivered [the Santa María] directly to the Portuguese government in Lisbon.” Id. n.119.

74 Fenwick, , “Piracy” in the Caribbean, 55 AJIL 426, 426–27 (1961)CrossRefGoogle Scholar (emphasis added).

75 4 Whiteman, M., Digest of International Law 666 (1965)Google Scholar.

76 Green, supra note 69, at 503.

77 Franck, , “To Define and Punish Piracies”—The Lesson of the Santa Maria: A Comment, 36 N.Y.U. L. Rev. 839, 840 (1961)Google Scholar.

78 See supra notes 20–22 and accompanying text.

79 See Hall’s arguments, supra at text accompanying notes 21 and 65, and Sir Gerald Fitzmaurice’s explanation of the Nyon Agreement, supra at text accompanying notes 47–49.

80 See supra text accompanying note 21.

81 See supra text accompanying notes 22–23.

82 Organized insurgents have been recognized as having belligerent rights and limited governmental rights in other contexts as well. See Henkin, L., Pugh, R., Schachter, O. & Smit, H., International Law: Cases and Materials 190–91 (2d ed. 1987)Google Scholar.

85 See supra note 23.

84 Harvard Research, Piracy, supra note 14, at 807–08 (emphasis added).

85 1 L. Oppenheim, supra note 15, at 613–14 (emphasis added); see also supra note 15 and accompanying text.

86 In re Piracy Jure, Gentium, 3 Brit. Int’l L. Cases at 839 Google Scholar.

87 See supra notes 18–19 and accompanying text.

88 The suggestion was made by Sir Hersch Lauterpacht some time ago. He said:

As the notion of piracy jure gentium has never been rigidly confined to one type of unlawful action and as the kind of lawlessness with which it was in the beginning predominantly connected is now becoming a historical survival, it would not seem improper to describe and treat as piratical such acts of violence on the high seas which by their ruthlessness and disregard of the sanctity of human life invite exemplary punishment and suppression.

Lauterpacht, H., Recognition in International Law 307–08 (1948)Google Scholar.

89 See supra text accompanying note 34.

90 See supra text accompanying notes 31–41.

91 See supra text accompanying notes 42–49.

92 See supra text accompanying note 67.

93 There is no reference to terrorist acts in the Harvard Draft Convention on Piracy or in the voluminous Comment to it. The Comment to the Draft Convention on Jurisdiction with Respect to Crime, supra note 12, which was published three years later, in 1935, following the Marseilles assassinations in 1934, cites a resolution by the Council of the League of Nations that referred to “terrorist activity with a political purpose” and to “crimes committed with a political and terrorist purpose.” 29 AJIL Supp. at 554. See also infra text accompanying note 163.

94 Whether resort to the travaux préparatoires is appropriate is also debatable. Under Article 31 of the Vienna Convention, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” The article permits a “special meaning” to be given to a term “if it is established that the parties so intended.” Article 32, “Supplementary means of interpretation,” provides:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, UNTS Regis. No. 18,232, UN Doc. A/CONF.39/27 (1969). While it is arguable that the meaning of “for private ends” is “ambiguous or obscure,” it would be difficult to make that argument with respect to the two-ship requirement (though it may perhaps be argued that it leads to a result that is manifestly absurd or unreasonable). See Franck, supra note 77.

95 See supra text accompanying notes 40–41.

96 See supra text accompanying notes 8, 68–78.

97 For these three Conventions, see supra note 9.

98 See IMO Doc. C 57/25 (Oct. 1, 1986).

99 See IMO Doc. C 57/WP. 1, para. 25(a)(2) (Nov. 12, 1986). The explanatory note by the cosponsors stated that while there are three conventions dealing with the safety of air navigation, “the safety of maritime navigation is not covered by any similar instrument.” IMO Doc. C 57/25, Annex, at 2 (Oct. 1, 1986).

100 Convention, supra note 11, Art. 13(1)(a) and (b).

101 Id., Art. 10(1), which reads:

The State Party in the territory of which the offender or the alleged offender is found shall, in cases to which article 7 applies, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a grave nature under the law of that State.

There are identical or substantially similar provisions in the Hague Convention (Art. 7), the Montreal Convention (Art. 7), the Hostage Convention (Art. 8) and the Internationally Protected Persons Convention (Art. 7), all supra note 9.

102 Convention, supra note 11, Art. 11(4).

103 See Ad Hoc Preparatory Committee on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Report of the First Session, IMO Doc. PCUA 1/4, para. 30 (Mar. 16, 1987).

104 See, e.g., 1 Moore, J. B., Treatise on Extradition and Interstate Rendition 217 (1891)Google Scholar (“Among writers on international law there is almost uniform concurrence in the opinion that a person surrendered for one offence should not be tried for another until he shall have been replaced within the jurisdiction of the surrendering state or had an opportunity to return thereto”); 6 Whiteman, M., Digest of International Law 728 (1968)Google Scholar.

105 The seizure of the Achille Lauro and murder of Klinghoffer were reported extensively, including front–page stories in the New York Times for seven consecutive days and cover stories in both Newsweek and Time magazines.

106 GA Res. 40/61 (Dec. 9, 1985); SC Res. 579 (XXXX) (Dec. 18, 1985); reprinted in 80 AJIL 435 and 437, respectively (1986).

107 GA Res. 40/61 , supra note 106, para. 13.

108 Convention, supra note 11, Art. 7(1) and (2). The brackets are in the draft Convention. The precise scope of this provision was left open by the Preparatory Committee. See infra note 160.

109 See IMO Doc. PCUA 2/5, at 18, para. 89 (June 2, 1987).

110 Id., para. 94.

111 The Comment to the Draft Convention on Jurisdiction with Respect to Crime, supra note 12, states:

An analysis of modern national codes of penal law and penal procedure, checked against the conclusions of reliable writers and the resolutions of international conferences or learned societies, and supplemented by some exploration of the jurisprudence of national courts, discloses five general principles on which a more or less extensive penal jurisdiction is claimed by States at the present time. These five general principles are: first, the territorial principle, determining jurisdiction by reference to the place where the offence is committed; second, the nationality principle, determining jurisdiction by reference to the nationality or national character of the person committing the offence; third, the protective principle, determining jurisdiction by reference to the national interest injured by the offence; fourth, the universality principle, determining jurisdiction by reference to the custody of the person committing the offence; and fifth, the passive personality principle, determining jurisdiction by reference to the nationality or national character of the person injured by the offence.

29 AJIL Supp. at 445.

112 See UN Convention on the Law of the Sea, supra note 25, Arts. 91 and 92; Geneva Convention on the High Seas, supra note 24, Arts. 5 and 6. Flag state jurisdiction has been viewed as an application of the territoriality principle, as an application of the nationality principle and as sui generis. See Restatement (Third), supra note 9, §402 Reporters’ Note 4.

113 This interpretation appears to be inconsistent with the legislative history. Proposals so to provide were made and rejected in the course of the negotiations both on the Hostage Convention and on the Internationally Protected Persons Convention. A commentator states, “[T]his legislative history leaves no doubt that the obligation to submit to competent authorities is in no way dependent on a request for extradition.” Rosenstock, , International Convention Against the Taking of Hostages: Another Community Step Against Terrorism, 9 Den. J. Int’l L. & Pol’y 169, 181 (1980)Google Scholar.

114 Law No. 75–624, July 11, 1975, J.O. July 13, 1975, cited in 102 Journal du Droit International 962 (1975), quoted in Henkin, L., Pugh, R., Schachter, O. & Smit, H., International Law: Cases and Materials 53 (1980)Google Scholar. The Comment to the Draft Convention on Jurisdiction with Respect to Crime, supra note 12, lists some 28 states that provide for penal jurisdiction based on nationality of the victim. 29 AJIL Supp. at 578–79.

115 See Omnibus Diplomatic Security and Antiterrorism Act of 1986, §1202, Pub. L. No. 99–399, 100 Stat. 895, 896 (1986) (18 U.S.C.A. §2331 (Supp. 1987)).

116 See Hostage Convention, supra note 9, Art. 5(d); Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, Art. 5(1)(c) (Dec. 17, 1984). See also Convention for the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, supra note 9, Art. 3(1 )(c) (“when the crime is committed against an internationally protected person . . . who enjoys his status as such by virtue of functions which he exercises on behalf of that State”); Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1969, 20 UST 2941, TIAS No. 6768, 704 UNTS 219, Art. 4(b).

117 Restatement (Third), supra note 9, §402 comment g.

118 The Comment to the Draft Convention on Jurisdiction with Respect to Crime, supra note 12, states that “[i]n addition to the evidence of almost universal approval of the protective principle” in municipal legislation, it “has also been supported by various resolutions of international organizations, by conferences on penal law, and to a limited extent in treaties.” 29 AJILSupp. at 551.

119 Id. at 552 (emphasis added).

120 Id. (emphasis added).

121 Restatement (Third), supra note 9, §402(3).

122 Id. §402 comment f.

123 In discussing the universality principle, the Restatement (Third) states that, under this principle, a state “has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern,” id. §404, even though it has “no links of territory . . . or of nationality with the offender (or even the victim),” id. comment a. In this category, the Restatement includes “piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism,” id. §404.

124 Art. 10(c), 29 AJIL Supp. at 440–41. The provisions for jurisdiction based on universality under the draft Convention are:

Article 9. Universality—Piracy

A State has jurisdiction with respect to any crime committed outside its territory by an alien which constitutes piracy by international law.

Article 10. Universality—Other Crimes

A State has jurisdiction with respect to any crime committed outside its territory by an alien, other than the crimes mentioned in Articles 6, 7, 8 and 9, as follows:

(a) When committed in a place not subject to its authority but subject to the authority of another State, if the act or omission which constitutes the crime is also an offence by the law of the place where it was committed, if surrender of the alien for prosecution has been offered to such other State or States and the offer remains unaccepted, and if prosecution is not barred by lapse of time under the law of the place where the crime was committed. The penalty imposed shall in no case be more severe than the penalty prescribed for the same act or omission by the law of the place where the crime was committed.

(b) When committed in a place not subject to the authority of any State, if the act or omission which constitutes the crime is also an offence by the law of a State of which the alien is a national, if surrender of the alien for prosecution has been offered to the State or States of which he is a national and the offer remains unaccepted, and if prosecution is not barred by lapse of time under the law of a State of which the alien is a national. The penalty imposed shall in no case be more severe than the penalty prescribed for the same act or omission by the law of a State of which the alien is a national.

(c) When committed in a place not subject to the authority of any State, if the crime was committed to the injury of the State assuming jurisdiction, or of one of its nationals, or of a corporation or juristic person having its national character.

(d) When committed in a place not subject to the authority of any State and the alien is not a national of any State.

Id.

125 29 AJIL Supp. at 590 (emphasis added).

126 Id. at 573–74.

127 Convention, supra note 11, Art. 7(4).

128 U.S. Dep’t of State, 1987 Treaties in Force.

129 See supra note 4 and accompanying text.

130 See Jacobsen, , A Comment, 8 Whittier L. Rev. 763, 764 (1986)Google Scholar (“The demand for my father’s release, along with that of the other American Hostages, was simple: Release of seventeen prisoners held . . . in Kuwait, in exchange for the Americans”).

131 IMO Doc. PCUA 2/5, at 18, para. 93 (June 2, 1987).

132 See N.Y. Times, Nov. 26, 1985, at A1, col. 5 (“U.S. persons and interests abroad have been the foremost target for terrorists”); Levitt, , Combatting Terrorism Under International Law, 18 Toledo L. Rev. 133, 134 (1986)Google Scholar.

133 Kuwait. See supra note 130 and accompanying text.

134 Convention, supra note 11, Art. 11(5).

135 Id., Art. 1. A Protocol to the Convention incorporates or parallels its provisions with respect to offenses committed “on board or against fixed platforms located on the continental shelf.” IMO Doc. PCUA 2/5, Ann. 2, Art. 1 (June 2, 1987).

136 Convention, supra note 11, Art. 4(1).

137 Id., Art. 4(2).

138 See IMO Doc. C 57/25, Annex, Art. 2 (Oct. 1, 1986). Paragraph 1 states:

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

a) by force or threat thereof, or by any other form of intimidation, seizes a ship in service or exercises control of it; or

b) performs or threatens an act of violence against a person on board a ship in service if that act or threat is likely to endanger the safety of navigation; or

c) destroys a ship in service or causes damage to such ship or to its cargo which renders the ship incapable of operation or which is likely to endanger its safe operation; or

d) places or causes to be placed on a ship in service by any means whatsoever, a device or substance which is likely to destroy that ship, to cause damage to the ship or its cargo which renders the ship incapable of operation or which is likely to endanger its safe operation; or

e) injures or kills any person during the commission of any of the offences defined in this article.

Id. (emphasis added).

139 See Hague Convention, supra note 9, Arts. 1, 3; Montreal Convention, supra note 9, Arts. 1, 2.

140 The draft initially submitted to the IMO Council by the cosponsors stated that a “ship is considered ‘in service’ from the beginning of the prepassage preparation of the ship by port personnel or by the crew for a specific passage until the completion of disembarkation or unloading.” IMO Doc. C 57/25, Annex, Art. 1 (Oct. 1, 1986). The English (but apparently not the French) provided that a ship is also considered in service when temporarily in port for repairs.

141 Convention, supra note 11, Art. 2(1)(b).

142 See supra text accompanying note 136.

143 Convention, supra note 11, Art. 5(2).

144 Id., Art. 5(1). This provision was intended to permit states to exempt foreign flag ships navigating exclusively in the internal waters of another state.

145 Id., Art. 8(3).

146 Id., Art. 10(2).

147 Id., Art. 2(1)(a).

148 Id., Art. 2(2).

149 Id., Art. 6.

150 Id., Art. 7(4).

151 Id., Art. 9.

152 IMO Doc. PCUA 2/4 (May 8, 1987).

153 See IMO Doc. PCUA 2/5, at 12, para. 65 (June 2, 1987).

154 Id. at 13, para. 68.

155 See IMO Doc. PCUA 1/3/3 (Feb. 26, 1987).

156 Id., Art. 12.

157 This is based on the author’s recollection of the proceedings.

158 IMO Doc. PCUA 2/5, at 26, para. 137 (June 2, 1987).

159 For example, in the United States, proposed legislation that would require closing the PLO office in Washington, D.C., S. 1203, the Anti–Terrorism Act of 1987, 100th Cong., 1st Sess., was challenged as unconstitutional by the American Civil Liberties Union and the Arab Anti-Defamation Committee. But see Baum, P. & Stern, M., The Anti-Terrorist Act of 1987: A Response to its Critics 2–4 (American Jewish Congress 1987)Google Scholar.

160 IMO Doc. PCUA 2/5, at 27, para. 142 (June 2, 1987). Other questions left open for the Diplomatic Conference involved jurisdiction regarding offenses committed with respect to ships chartered on a demise or bareboat charter basis, id., paras. 96–101, and the obligation of states to accept alleged offenders from the master of the ship, id., paras. 124–29.

161 As stated in the introduction, the Convention will not eliminate the need to interpret and apply existing law altogether. Existing law, of course, will continue to apply with respect to states that do not ratify the Convention. Further, as is made clear in the Preamble, matters not regulated by the Convention continue to be governed by the rules and principles of general international law. For example, the Convention does not address directly who may act to free a ship being held by terrorists. Presumably, international law, including the customary law on piracy, would govern. Other rules of international law that would be relevant include the customary and treaty law on the rights of the flag state and on the rights of the territorial state (if the ship is in territorial waters), and the law on humanitarian intervention.

162 The piracy provisions of the Geneva Convention on the High Seas and of the UN Convention on the Law of the Sea recognize universal jurisdiction but do not obligate any state to try the offenders or to extradite them to another state—though, as indicated earlier (supra notes 58–59 and accompanying text), the Geneva Convention imposes a duty on states to cooperate in the repression of piracy.

163 See 29 AJIL Supp. 435, 554 (1935).

164 Convention for the Prevention and Punishment of Terrorism, 7 International Legislation 862 (M. Hudson ed. 1941).

165 India. Id.

166 GA Res. 3034 (XXVII) (Dec. 18, 1972).

167 34 UN GAOR Supp. (No. 37), UN Doc. A/34/37 (1979).

168 See, e.g., GA Res. 32/147 (Dec. 16, 1977); GA Res. 40/61 (Dec. 9, 1985). But see SC Res. 579 (Dec. 18, 1985) (“Condemn[ing] unequivocally all acts of hostage-taking and abduction”).

169 See supra note 9.