96
H. Banzai
per se do not hamper the freedom of the sea that others enjoy. Their activities are
targeted if they abuse these freedoms and become a threat to international peace and
security, but they cannot be punished because they are not hostis humani generis in
the context of the freedom of the sea.
3
Among the forms of uses of the sea, ship navigation is very important. Subsequently, maritime counter-proliferation and the freedom of navigation must contain a
common interest of the non-proliferation of WMD. Both must coexist, and one way to
do this is through the ‘criminalisation’ of activities for the proliferation of WMD and
its related material through ocean activities. Non-proliferation efforts now exist in
various forms, such as the Proliferation Security Initiative (PSI), the revised Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation
(SUA), bilateral agreements between the United States and flag of convenience states,
and UN Security Council resolutions. In this chapter, these efforts will be examined
as part of the criminalisation processes for WMD proliferation activities.
4
6.2 Criminal Jurisdiction in the Law of the Sea
The main concerns about WMD proliferation have now shifted from the horizontal
spread of WMD among states to the links between WMD and terrorism. To prevent
terrorists from acquiring the capacity or materials to develop WMD, an effective
trade control system must be established. However, private trade activities are legally
protected by the concept of the liberalisation of trade. To regulate private trade,
specific export or import activities for dual-use commodities by private individuals are to be criminalised through multilateral treaties, such as conventions against
terrorism.
However, as terrorist groups are not legally defined in current international law,
irrespective of the non-negligible level of threat to national security, the criminalisation of their activities is implemented through domestic legal orders. As domestic
laws and regulations on terrorism among states are not based on uniform criteria
for crimes and punishments, they have to be unified by multilateral treaties if states
need to cooperate legally. A convention against terrorism constructs a framework
of international cooperation to punish criminal terrorist activities by overlapping
the jurisdiction of states and imposing the obligation of punishment or extradition
from the country where a suspect is located. This creates a system where criminals
will inevitably be punished by every contracting party of the convention through the
principle of ‘aut dedere aut judicare’. Contrary to these overlapping forms of state
jurisdictions in conventions against terrorism, the distribution of jurisdiction in the
law of the sea differs if the focus is one sole state, the flag state.
5
3 N. Klein, Maritime Security and the Law of the Sea (2011), pp. 147–151.
4 D. Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), pp. 232–233.
5 S. Yamamoto, International Criminal Law (Kokusai Keiji Ho) (1991), pp. 28–31 (in Japanese).
H. Banzai
per se do not hamper the freedom of the sea that others enjoy. Their activities are
targeted if they abuse these freedoms and become a threat to international peace and
security, but they cannot be punished because they are not hostis humani generis in
the context of the freedom of the sea.
3
Among the forms of uses of the sea, ship navigation is very important. Subsequently, maritime counter-proliferation and the freedom of navigation must contain a
common interest of the non-proliferation of WMD. Both must coexist, and one way to
do this is through the ‘criminalisation’ of activities for the proliferation of WMD and
its related material through ocean activities. Non-proliferation efforts now exist in
various forms, such as the Proliferation Security Initiative (PSI), the revised Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation
(SUA), bilateral agreements between the United States and flag of convenience states,
and UN Security Council resolutions. In this chapter, these efforts will be examined
as part of the criminalisation processes for WMD proliferation activities.
4
6.2 Criminal Jurisdiction in the Law of the Sea
The main concerns about WMD proliferation have now shifted from the horizontal
spread of WMD among states to the links between WMD and terrorism. To prevent
terrorists from acquiring the capacity or materials to develop WMD, an effective
trade control system must be established. However, private trade activities are legally
protected by the concept of the liberalisation of trade. To regulate private trade,
specific export or import activities for dual-use commodities by private individuals are to be criminalised through multilateral treaties, such as conventions against
terrorism.
However, as terrorist groups are not legally defined in current international law,
irrespective of the non-negligible level of threat to national security, the criminalisation of their activities is implemented through domestic legal orders. As domestic
laws and regulations on terrorism among states are not based on uniform criteria
for crimes and punishments, they have to be unified by multilateral treaties if states
need to cooperate legally. A convention against terrorism constructs a framework
of international cooperation to punish criminal terrorist activities by overlapping
the jurisdiction of states and imposing the obligation of punishment or extradition
from the country where a suspect is located. This creates a system where criminals
will inevitably be punished by every contracting party of the convention through the
principle of ‘aut dedere aut judicare’. Contrary to these overlapping forms of state
jurisdictions in conventions against terrorism, the distribution of jurisdiction in the
law of the sea differs if the focus is one sole state, the flag state.
5
3 N. Klein, Maritime Security and the Law of the Sea (2011), pp. 147–151.
4 D. Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), pp. 232–233.
5 S. Yamamoto, International Criminal Law (Kokusai Keiji Ho) (1991), pp. 28–31 (in Japanese).