106
H. Banzai
suicide attack against a United States Navy destroyer, the USS Cole, in 2000 while
it was harboured in the Yemeni port of Aden.
35
The SUA Convention of 1988 only covers a crime that seizes and exercises control
over a ship by force (Art. 3 (a)), and it does not include any crime with the purpose of
terrorism. In the Revised SUA Convention of 2005
36 , crimes using ships or starting
from ships are covered as new offences that endanger the safe navigation of ships
in Article 3bis, paragraph 1 (a). This succeeds in inserting the purpose of terrorism
by providing that ‘the purpose of the act, by its nature or context, is to intimidate
a population, or to compel a government or an international organisation to do or
to abstain from doing any act’. This provision provides for the criminalisation of
terrorism in the SUA convention, and is a significant development, as it introduces
the regulation of terrorism explicitly in the field of the law of the sea. In addition,
the offence of transporting on board a ship is stipulated in Article 3bis, paragraph 1
(b), which is especially relevant for the prevention of the proliferation of WMD to
or from states or non-state actors of proliferation concern. It covers not only WMD
but also its related material and dual-use commodities.
Additionally, maritime transport is criminalised as an offence under the Revised
SUA Convention. However, most of the transport offences have no terrorism characteristics, except the transport of ‘any explosive or radioactive material’, which
particularly includes the formulation of terrorism ‘for the purpose of intimidating a
population, or compelling a government or an international organisation to do or to
abstain from doing any act’ in Article 3bis, paragraph 1 (b) (i).
37
In some conventions, the offence of transport for slave trading or narcotic drug
trafficking are also included, as they prohibit the possession of slaves or drugs,
and so criminalise their transport. However, WMD related material and dual-use
commodities can be legally owned by both exporting and importing countries. Under
these circumstances, it is doubtful if only the transport of these items at sea shall be
reasonably inhibited.
38
Although there is a problem in the Revised SUA Convention, a transport offence is
linked to Resolution 1540, as referred to in the preamble. Resolution 1540 provides
in paragraph 2 that ‘all states, in accordance with their national procedures, shall
adopt and enforce appropriate, effective laws which prohibit any non-state actor to
… transport … nuclear, chemical or biological weapons and their means of delivery,
in particular for terrorist purposes’. In this way, at least the transport of WMD and its
related material by non-state actor shall be prohibited among the member States of
35 Banzai, supra note 18, p. 23.
36 Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation, at https://www.refworld.org/docid/49f58c8a2.html (as of 31 October, 2019).
37 Klein, supra note 3, pp. 172–173.
38 Y. Tanaka, “The Role and Function of the Sea in International Regulation on Terrorism – Change
of Counter-Terrorism through 9/11and Maritime Regulation (Terrorism No Kokusai Kisei Niokeru
Kaiyo No Yakuwari To Kino – 9.11Jiken Niyoru Taiteroseisaku No Henka To Kaijokisei),” in M.
Akiyama and T. Kuribayashi (eds.), International Order of the Sea and Ocean Policy (Umi No
Kokusai Chitsujo To Kaiyo Seisaku) (2006), p. 134 (in Japanese).
H. Banzai
suicide attack against a United States Navy destroyer, the USS Cole, in 2000 while
it was harboured in the Yemeni port of Aden.
35
The SUA Convention of 1988 only covers a crime that seizes and exercises control
over a ship by force (Art. 3 (a)), and it does not include any crime with the purpose of
terrorism. In the Revised SUA Convention of 2005
36 , crimes using ships or starting
from ships are covered as new offences that endanger the safe navigation of ships
in Article 3bis, paragraph 1 (a). This succeeds in inserting the purpose of terrorism
by providing that ‘the purpose of the act, by its nature or context, is to intimidate
a population, or to compel a government or an international organisation to do or
to abstain from doing any act’. This provision provides for the criminalisation of
terrorism in the SUA convention, and is a significant development, as it introduces
the regulation of terrorism explicitly in the field of the law of the sea. In addition,
the offence of transporting on board a ship is stipulated in Article 3bis, paragraph 1
(b), which is especially relevant for the prevention of the proliferation of WMD to
or from states or non-state actors of proliferation concern. It covers not only WMD
but also its related material and dual-use commodities.
Additionally, maritime transport is criminalised as an offence under the Revised
SUA Convention. However, most of the transport offences have no terrorism characteristics, except the transport of ‘any explosive or radioactive material’, which
particularly includes the formulation of terrorism ‘for the purpose of intimidating a
population, or compelling a government or an international organisation to do or to
abstain from doing any act’ in Article 3bis, paragraph 1 (b) (i).
37
In some conventions, the offence of transport for slave trading or narcotic drug
trafficking are also included, as they prohibit the possession of slaves or drugs,
and so criminalise their transport. However, WMD related material and dual-use
commodities can be legally owned by both exporting and importing countries. Under
these circumstances, it is doubtful if only the transport of these items at sea shall be
reasonably inhibited.
38
Although there is a problem in the Revised SUA Convention, a transport offence is
linked to Resolution 1540, as referred to in the preamble. Resolution 1540 provides
in paragraph 2 that ‘all states, in accordance with their national procedures, shall
adopt and enforce appropriate, effective laws which prohibit any non-state actor to
… transport … nuclear, chemical or biological weapons and their means of delivery,
in particular for terrorist purposes’. In this way, at least the transport of WMD and its
related material by non-state actor shall be prohibited among the member States of
35 Banzai, supra note 18, p. 23.
36 Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation, at https://www.refworld.org/docid/49f58c8a2.html (as of 31 October, 2019).
37 Klein, supra note 3, pp. 172–173.
38 Y. Tanaka, “The Role and Function of the Sea in International Regulation on Terrorism – Change
of Counter-Terrorism through 9/11and Maritime Regulation (Terrorism No Kokusai Kisei Niokeru
Kaiyo No Yakuwari To Kino – 9.11Jiken Niyoru Taiteroseisaku No Henka To Kaijokisei),” in M.
Akiyama and T. Kuribayashi (eds.), International Order of the Sea and Ocean Policy (Umi No
Kokusai Chitsujo To Kaiyo Seisaku) (2006), p. 134 (in Japanese).