6 Maritime Counter-Proliferation of Weapons …
107
the UN under Resolution 1540. The offence of the transport of WMD in the Revised
SUA Convention can be considered to have a legal grounding in Resolution 1540.
39
Article 8 is a provision concerning the right of visit on the high seas that mitigates
the principle of the flag state to a certain degree. In Article 8bis, paragraph 1, the
contracting States are obliged to ‘cooperate to the fullest extent possible to prevent
and suppress unlawful acts covered by this Convention, in conformity with international law, and shall respond to requests pursuant to this article as expeditiously
as possible’. It narrows the discretionary range of the flag state to deny the demand
to board a ship from a requesting state. Additionally, it may be interpreted that the
implementation of the PSI may be within the scope of Article 8bis, as the development of a procedure on joint operations for enforcement measures is encouraged in
paragraph 12.
40
The original purpose of the SUA Convention was to maintain the maritime order
through the control of activities impeding the safe navigation of ships. There might
be no significant barrier to include offences of the use of a ship for the purpose of
terrorism, as it hampers the safe navigation of a ship similar to the offence of seizing
the ship. However, the offence of transport is not an act to hamper the navigation
as such, but a threat to international peace and security. It must be deliberately
determined if the role of the maintenance of international peace and security can be
successfully added to the SUA Convention, which has contributed to maintaining
the ocean order, although such a new role is expected to heighten the effectiveness
of the measures of the PSI.
41
6.5 Domestic Implementation of Maritime
Counter-Proliferation: The Case of Japan
6.5.1 Revised SUA Convention
To examine the domestic implementation of the offence of the transport of WMD and
its related material, the jurisdiction to prescribe laws and regulations to criminalise
this type of transport is distinguishable from the jurisdiction of enforcement to punish
those who commit these crimes.
Internal transport of WMD in Japan is regulated by the implementation of Acts for
conventions against BC weapons. Both laws do not include explicit provisions on the
prohibition of their transport but prohibit retaining, transferring, and receiving those
weapons. Consequently, there is room for prohibiting the transport of WMD through
39 M. Hayashi, The Emerging Process and Issues of Contemporary Law of the Sea (Gendai Kaiyoho
No Seisei To Kadai) (2009), p. 353 (in Japanese).
40 F. Spadi, “Bolstering the Proliferation Security Initiative at Sea: A Comparative Analysis of
Ship-boarding as a Bilateral and Multilateral Implementing Mechanism,” in Nordic Journal of
International Law, Vol. 75 (2006), p. 272.
41 Banzai, supra note 18, p. 27.
107
the UN under Resolution 1540. The offence of the transport of WMD in the Revised
SUA Convention can be considered to have a legal grounding in Resolution 1540.
39
Article 8 is a provision concerning the right of visit on the high seas that mitigates
the principle of the flag state to a certain degree. In Article 8bis, paragraph 1, the
contracting States are obliged to ‘cooperate to the fullest extent possible to prevent
and suppress unlawful acts covered by this Convention, in conformity with international law, and shall respond to requests pursuant to this article as expeditiously
as possible’. It narrows the discretionary range of the flag state to deny the demand
to board a ship from a requesting state. Additionally, it may be interpreted that the
implementation of the PSI may be within the scope of Article 8bis, as the development of a procedure on joint operations for enforcement measures is encouraged in
paragraph 12.
40
The original purpose of the SUA Convention was to maintain the maritime order
through the control of activities impeding the safe navigation of ships. There might
be no significant barrier to include offences of the use of a ship for the purpose of
terrorism, as it hampers the safe navigation of a ship similar to the offence of seizing
the ship. However, the offence of transport is not an act to hamper the navigation
as such, but a threat to international peace and security. It must be deliberately
determined if the role of the maintenance of international peace and security can be
successfully added to the SUA Convention, which has contributed to maintaining
the ocean order, although such a new role is expected to heighten the effectiveness
of the measures of the PSI.
41
6.5 Domestic Implementation of Maritime
Counter-Proliferation: The Case of Japan
6.5.1 Revised SUA Convention
To examine the domestic implementation of the offence of the transport of WMD and
its related material, the jurisdiction to prescribe laws and regulations to criminalise
this type of transport is distinguishable from the jurisdiction of enforcement to punish
those who commit these crimes.
Internal transport of WMD in Japan is regulated by the implementation of Acts for
conventions against BC weapons. Both laws do not include explicit provisions on the
prohibition of their transport but prohibit retaining, transferring, and receiving those
weapons. Consequently, there is room for prohibiting the transport of WMD through
39 M. Hayashi, The Emerging Process and Issues of Contemporary Law of the Sea (Gendai Kaiyoho
No Seisei To Kadai) (2009), p. 353 (in Japanese).
40 F. Spadi, “Bolstering the Proliferation Security Initiative at Sea: A Comparative Analysis of
Ship-boarding as a Bilateral and Multilateral Implementing Mechanism,” in Nordic Journal of
International Law, Vol. 75 (2006), p. 272.
41 Banzai, supra note 18, p. 27.