6 Maritime Counter-Proliferation of Weapons …
105
the legal basis to constitute the universal trade control regime, including the obligation
of ‘enforcement’ under the Security Council Resolution.
31
While Resolution 1540 does not provide severe penalties in the same way as
conventions against terrorism, it imposes obligations on member States to prevent
and inhibit the transport or transfer of WMD and its related material by non-state
actors, and demands to establish and enforce civil or criminal rules and penalties
over trade control issues. Therefore, this means that it has failed to criminalise the
proliferation of WMD.
32
Additionally, the right of visit under Resolution 1540 is confined to cooperative
action within the rules of the general international law of the sea, and as provided
in paragraph 10, it ‘calls upon all states, in accordance with their national legal
authorities and legislation and consistent with international law, to take cooperative
action to prevent illicit trafficking in nuclear, chemical or biological weapons, their
means of delivery, and related materials’. Resolution 1540, therefore, is not the basis
of the right of visit on the high seas with general applicability, because it does not
overcome the principle of the flag state.
33
In Resolution 1540, the proliferation of WMD is considered as part of Chapter
VII by determining it as a threat to international peace and security, but as a result,
the criminalisation of the proliferation of WMD and the right of visit on the high
seas cannot be established in its framework. This is irrespective of the intentions of
the United States and its coalition members of the PSI to overcome general international law of the sea.
34 Additionally, the institution to implement the PSI came
to rely on bilateral or multilateral treaties to fill the gaps in the law of the sea. This
demonstrates that the freedom of the sea and the principle of the flag state, which
have been developed through the long-term accumulation of state practice, are firmly
established in the international community.
6.4.2 Revised SUA Convention
When the International Maritime Organization (IMO) adopted a resolution to review
the steps for the security of passengers and crew and the prevention of terrorist
activities against the safe navigation of ships, the United States aimed to effectively
implement the PSI through the revision of the SUA Convention on the forum of the
IMO. The motives to revise the Convention arose from the failure to criminalise the
proliferation of WMD in Resolution 1540 as mentioned above, and the incident of a
31 D. Guilfoyle, “Counter Proliferation Activities and Freedom of Navigation,” in M. H. Nordquist,
J. N. Moore, R. C. Beckman and R. Long (eds.), Freedom of Navigation and Globalization (2015),
p. 79.
32 Banzai, supra note 18, p. 19.
33 S. Aoki, “Disarmament and Non-proliferation against Non-State Actors—Resilience of International Law (Hikkoka Shutai Nitaisuru Gunshuku Fukakusan,” Yearbook of World Law (Sekaiho
Nenpo), No. 26, p. 146 (in Japanese).
34 Ibid., pp. 139, 145–146.
105
the legal basis to constitute the universal trade control regime, including the obligation
of ‘enforcement’ under the Security Council Resolution.
31
While Resolution 1540 does not provide severe penalties in the same way as
conventions against terrorism, it imposes obligations on member States to prevent
and inhibit the transport or transfer of WMD and its related material by non-state
actors, and demands to establish and enforce civil or criminal rules and penalties
over trade control issues. Therefore, this means that it has failed to criminalise the
proliferation of WMD.
32
Additionally, the right of visit under Resolution 1540 is confined to cooperative
action within the rules of the general international law of the sea, and as provided
in paragraph 10, it ‘calls upon all states, in accordance with their national legal
authorities and legislation and consistent with international law, to take cooperative
action to prevent illicit trafficking in nuclear, chemical or biological weapons, their
means of delivery, and related materials’. Resolution 1540, therefore, is not the basis
of the right of visit on the high seas with general applicability, because it does not
overcome the principle of the flag state.
33
In Resolution 1540, the proliferation of WMD is considered as part of Chapter
VII by determining it as a threat to international peace and security, but as a result,
the criminalisation of the proliferation of WMD and the right of visit on the high
seas cannot be established in its framework. This is irrespective of the intentions of
the United States and its coalition members of the PSI to overcome general international law of the sea.
34 Additionally, the institution to implement the PSI came
to rely on bilateral or multilateral treaties to fill the gaps in the law of the sea. This
demonstrates that the freedom of the sea and the principle of the flag state, which
have been developed through the long-term accumulation of state practice, are firmly
established in the international community.
6.4.2 Revised SUA Convention
When the International Maritime Organization (IMO) adopted a resolution to review
the steps for the security of passengers and crew and the prevention of terrorist
activities against the safe navigation of ships, the United States aimed to effectively
implement the PSI through the revision of the SUA Convention on the forum of the
IMO. The motives to revise the Convention arose from the failure to criminalise the
proliferation of WMD in Resolution 1540 as mentioned above, and the incident of a
31 D. Guilfoyle, “Counter Proliferation Activities and Freedom of Navigation,” in M. H. Nordquist,
J. N. Moore, R. C. Beckman and R. Long (eds.), Freedom of Navigation and Globalization (2015),
p. 79.
32 Banzai, supra note 18, p. 19.
33 S. Aoki, “Disarmament and Non-proliferation against Non-State Actors—Resilience of International Law (Hikkoka Shutai Nitaisuru Gunshuku Fukakusan,” Yearbook of World Law (Sekaiho
Nenpo), No. 26, p. 146 (in Japanese).
34 Ibid., pp. 139, 145–146.