104
H. Banzai
(d) a ship without nationality, and (e) abuse of the flag. These five elements are
extended from the three elements of (a), (b), and (e) from the Convention on the
High Seas of 1958. Irrespective of this expansion of the enumeration of unlawful
acts, the suspicion of transporting WMD and its related materials was not included
in the list of the targets of the right of visit on the high seas in the UNCLOS.
6.4 Criminalisation of the Proliferation of WMD
6.4.1 UNSCR1540
The purpose of Security Council Resolution 1540
29 is to introduce additional effective measures to the framework of the existing treaties to prevent the proliferation of
WMD, affirming in its preamble that ‘proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international
peace and security’. Paragraphs 1–3 of Resolution 1540 impose on the member
States the obligations to adopt and enforce laws and regulations on export control.
Among them, specific measures are provided in Paragraph 3 (c) and (d). Paragraph
3 (c) provides the obligation to develop and maintain appropriate effective border
controls and law enforcement efforts to detect, deter, prevent, and combat the illicit
trafficking and brokering of WMD, its means of delivery, and its related material.
Additionally, paragraph 3 (d) has a wide range of obligations to:
[e]stablish, develop, review and maintain appropriate, effective national export and transshipment controls over such items, including appropriate laws and regulations to control
export, transit, trans-shipment and re-export and controls on providing funds and services
related to such export and trans-shipment such as financing, and transporting that would
contribute to proliferation, as well as establishing end-user controls; and establishing and
enforcing appropriate criminal or civil penalties for violations of such export control laws
and regulations.
These obligations go beyond the scope of existing frameworks for export control,
such as the Nuclear Suppliers Group (NSG), which has been implemented by its
limited members in the form of cooperation based on their domestic laws.
30 However,
the new system based on Resolution 1540 shall be interpreted as ‘trade control’, of
which the scope extends to the whole process of trade. Many states were not familiar
with the measures of trade control, but their laws and regulations have gradually
been developed and strengthened through cooperation with the 1540 Committee
established under Resolution 1540. Consequently, this system can be evaluated as
29 Resolution 1540 (2004), S/RES/1540 (2004), at http://unscr.com/en/resolutions/doc/1540 (as of
31 October, 2019).
30 Banzai, supra note 18, p. 18.
H. Banzai
(d) a ship without nationality, and (e) abuse of the flag. These five elements are
extended from the three elements of (a), (b), and (e) from the Convention on the
High Seas of 1958. Irrespective of this expansion of the enumeration of unlawful
acts, the suspicion of transporting WMD and its related materials was not included
in the list of the targets of the right of visit on the high seas in the UNCLOS.
6.4 Criminalisation of the Proliferation of WMD
6.4.1 UNSCR1540
The purpose of Security Council Resolution 1540
29 is to introduce additional effective measures to the framework of the existing treaties to prevent the proliferation of
WMD, affirming in its preamble that ‘proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international
peace and security’. Paragraphs 1–3 of Resolution 1540 impose on the member
States the obligations to adopt and enforce laws and regulations on export control.
Among them, specific measures are provided in Paragraph 3 (c) and (d). Paragraph
3 (c) provides the obligation to develop and maintain appropriate effective border
controls and law enforcement efforts to detect, deter, prevent, and combat the illicit
trafficking and brokering of WMD, its means of delivery, and its related material.
Additionally, paragraph 3 (d) has a wide range of obligations to:
[e]stablish, develop, review and maintain appropriate, effective national export and transshipment controls over such items, including appropriate laws and regulations to control
export, transit, trans-shipment and re-export and controls on providing funds and services
related to such export and trans-shipment such as financing, and transporting that would
contribute to proliferation, as well as establishing end-user controls; and establishing and
enforcing appropriate criminal or civil penalties for violations of such export control laws
and regulations.
These obligations go beyond the scope of existing frameworks for export control,
such as the Nuclear Suppliers Group (NSG), which has been implemented by its
limited members in the form of cooperation based on their domestic laws.
30 However,
the new system based on Resolution 1540 shall be interpreted as ‘trade control’, of
which the scope extends to the whole process of trade. Many states were not familiar
with the measures of trade control, but their laws and regulations have gradually
been developed and strengthened through cooperation with the 1540 Committee
established under Resolution 1540. Consequently, this system can be evaluated as
29 Resolution 1540 (2004), S/RES/1540 (2004), at http://unscr.com/en/resolutions/doc/1540 (as of
31 October, 2019).
30 Banzai, supra note 18, p. 18.