6 Maritime Counter-Proliferation of Weapons …
109
specialis to enforce the offence of the transport of WMD. As a premise to exercise
enforcement jurisdiction to a ship passing through territorial seas with cargoes of
WMD and its related material, the coastal state must have a domestic rule to regulate
this passage. In Japan, it is hard to enforce a particular regulation and enforcement
for ships under the existing rules, because the navigation of ships is not considered as
exports or imports in the Foreign Exchange and Foreign Trade Act and customs laws
if the passage of the ship is confined to a transit traversing that sea without entering
internal waters. Additionally, there is no comprehensive laws and regulations on
innocent passage in Japan, so there remains a problem to be solved for how Japan
regulates the passage of foreign ships through its territorial seas in accordance with
the enumerated elements in the UNCLOS as well as other than those elements.
However, Professor Tsuruta indicates that the exercise of enforcement jurisdiction
under Article 9, paragraph 1 shall, at last, fall under Article 27, paragraph 1 of
UNCLOS (a) if the consequences of the crime extend to the coastal state, (b) if
the crime is of a kind to disturb the peace of the country or the good order of the
territorial sea, (c) if the assistance of the local authorities has been requested by the
master of the ship or by a diplomatic agent or consular officer of the flag state, or (d)
if such measures are necessary for the suppression of illicit traffic in narcotic drugs
or psychotropic substances.
48
In the Revised SUA Convention, the procedure of ship inspection on the high seas
is newly established. It is provided in Article 8bis, paragraph 5 that:
law enforcement or other authorised officials of a State Party (“the requesting Party”)…is
granted authorisation to board and search the ship, its cargo and persons on board, and to
question the persons on board to locate and examine documentation of its nationality and
determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is
about to be committed.
The consent of the flag state is required if another state would exercise jurisdiction
over a detained ship, cargo, or other items and persons on board, including seizure,
forfeiture, arrest, and prosecution (para. 8). On the condition that domestic laws
and regulations, which might be adopted to criminalise the covered offences of the
Revised SUA Convention, could be applied to activities on the high seas beyond the
territorial scope, the authorised power of police measures can be exercised according
to the current Japan Coast Guard Act. Subsequently, judicial measures of arrest or
seizure could be taken based on criminal procedure law if Japan can obtain the
consent from the flag state when it discovers the WMD and its related material as a
result of the investigation of a foreign ship.
49
48 Tsuruta, supra note 11, pp. 146–150.
49 Ibid., pp. 143–145.
109
specialis to enforce the offence of the transport of WMD. As a premise to exercise
enforcement jurisdiction to a ship passing through territorial seas with cargoes of
WMD and its related material, the coastal state must have a domestic rule to regulate
this passage. In Japan, it is hard to enforce a particular regulation and enforcement
for ships under the existing rules, because the navigation of ships is not considered as
exports or imports in the Foreign Exchange and Foreign Trade Act and customs laws
if the passage of the ship is confined to a transit traversing that sea without entering
internal waters. Additionally, there is no comprehensive laws and regulations on
innocent passage in Japan, so there remains a problem to be solved for how Japan
regulates the passage of foreign ships through its territorial seas in accordance with
the enumerated elements in the UNCLOS as well as other than those elements.
However, Professor Tsuruta indicates that the exercise of enforcement jurisdiction
under Article 9, paragraph 1 shall, at last, fall under Article 27, paragraph 1 of
UNCLOS (a) if the consequences of the crime extend to the coastal state, (b) if
the crime is of a kind to disturb the peace of the country or the good order of the
territorial sea, (c) if the assistance of the local authorities has been requested by the
master of the ship or by a diplomatic agent or consular officer of the flag state, or (d)
if such measures are necessary for the suppression of illicit traffic in narcotic drugs
or psychotropic substances.
48
In the Revised SUA Convention, the procedure of ship inspection on the high seas
is newly established. It is provided in Article 8bis, paragraph 5 that:
law enforcement or other authorised officials of a State Party (“the requesting Party”)…is
granted authorisation to board and search the ship, its cargo and persons on board, and to
question the persons on board to locate and examine documentation of its nationality and
determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is
about to be committed.
The consent of the flag state is required if another state would exercise jurisdiction
over a detained ship, cargo, or other items and persons on board, including seizure,
forfeiture, arrest, and prosecution (para. 8). On the condition that domestic laws
and regulations, which might be adopted to criminalise the covered offences of the
Revised SUA Convention, could be applied to activities on the high seas beyond the
territorial scope, the authorised power of police measures can be exercised according
to the current Japan Coast Guard Act. Subsequently, judicial measures of arrest or
seizure could be taken based on criminal procedure law if Japan can obtain the
consent from the flag state when it discovers the WMD and its related material as a
result of the investigation of a foreign ship.
49
48 Tsuruta, supra note 11, pp. 146–150.
49 Ibid., pp. 143–145.