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This Thesis Has Been Submitted in Fulfilment of the Requirements for a Postgraduate Degree (E.G This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. Addressing Maritime Violence through a Changing Dynamic of International Law-Making: Supplementation within Evolution Winston Yu-Tsang Wu PhD in Law The University of Edinburgh 2017 Abstract Violence at sea has long been a problem for the international community, although the nature and preponderance of incidents has evolved over time. This issue was dealt with in a cursory manner in the 1982 United Nations Convention on the Law of the Sea and therefore states have had to develop the legal framework through other instruments in order to address growing problems of maritime violence. This thesis examines mechanisms of change in the development of international law concerning maritime violence. It considers how international law has responded to this threat, and analyses a variety of different law-making techniques. This study observes that major international law-making activities concerning maritime violence in the recent decades have been in response to international incidents and crises, such as the Achille Lauro, the September 11 attacks, and the Somali piracy crisis. Counterfactually speaking, such law-making acts would not have taken place if these crises had not happened. The study also notes another shift of focus in making international rules aiming to tackle maritime violence away from customary international law and multilateral treaties towards an incremental dependence on United Nations Security Council resolutions, International Maritime Organization’s initiatives, regional cooperative measures, and treaty interpretation techniques for filling the gaps left in the United Nations Convention on the Law of the Sea. With this shift in law-making in mind, the thesis first explores gaps in law regarding piracy and terrorism at sea and reviews the negotiation of two major maritime terrorism treaties, i.e. the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its 2005 Protocol. Secondly, it then inspects the United Nations Security Council’s law-making activities in combating terrorism and piracy. Thirdly, it surveys the creation and evolution of the Proliferation Security Initiative and also scrutinises the United States-led bilateral ship-boarding agreements for combating transportation of weapons of mass destruction. Finally, it compares and contrasts the regional approaches across Asia, Africa and Europe in the fight against piracy and armed robbery at sea. The thesis contends that each of the law-making technique employed in fighting maritime violence is not alternative or optional to one another, but rather used in a supplementary fashion to the overarching framework of the law of the sea. Declaration of Original Work I certify that this thesis I have presented for examination for the PhD degree of the University of Edinburgh is solely my own work. It has not been submitted for any other degree or professional qualification. Winston Yu-Tsang Wu 4 December 2017 Table of contents Abbreviations ............................................................................................................... I Acknowledgments ................................................................................................... III Chapter 1 ..................................................................................................................... 1 Maritime Violence and the Coherent Development of International Law-Making ............................................................................................................... 1 I. Introduction ................................................................................................................. 1 II. Theoretical Framework ............................................................................................... 3 A. Incident and Crisis as Law-Making Trigger ........................................................... 4 B. Relevant Incidents and Crises ................................................................................. 8 C. Gaps in Law .......................................................................................................... 12 III. Changing Mechanisms for International Law-Making ......................................... 16 A. Law-Making through Multilateral Treaties and Custom ...................................... 16 B. The Role of Judicial Decisions ............................................................................. 19 C. The Incentive to Amend and Modify Treaties ...................................................... 22 D. The Impetus of US Hegemonic Law-Making ...................................................... 23 E. Regionalism as an International Law-Making Forum .......................................... 26 F. Soft Law as Ingredient in International Law-Making .......................................... 30 IV. Overview .............................................................................................................. 37 Chapter 2 ................................................................................................................... 40 Identifying Legal Gaps over Maritime Violence: Judicial Decisions, Textual Considerations and Amendment of UNCLOS ....................................................... 40 I. Introduction ............................................................................................................... 40 II. Maritime Piracy and Gaps in UNCLOS: Implications of International and National Case Law ............................................................................................................................ 41 A. The Problem: Piracy at Sea .................................................................................. 42 B. International Case Law ......................................................................................... 45 C. National Case Law ............................................................................................... 52 I D. Expecting Future Judicial Dialogue ..................................................................... 58 III. Identifying Legal Gaps over Maritime Terrorism ................................................ 60 A. Considerations in the Territorial Sea .................................................................... 62 B. Considerations beyond Territorial Sea .................................................................. 74 IV. Amendment and Modification of UNCLOS......................................................... 79 A. Risks by Using the UNCLOS Amendment Procedures ........................................ 79 B. Other Means to Modification ............................................................................... 81 V. Conclusion ................................................................................................................ 84 Chapter 3 ................................................................................................................... 85 Multilateral and Diplomatic Processes over Maritime Terrorism: Treaties as Law-Making Instruments ........................................................................................ 85 I. Introduction ............................................................................................................... 85 II. The Making of the 1988 SUA Convention ............................................................... 87 A. The Achille Lauro Incident ................................................................................... 87 B. The Initial and the Final Stage .............................................................................. 89 C. Ad Hoc Committee and Consensus Law-Making ................................................. 92 D. Transplanting the Sectoral Approach of Terrorism Offences to the Maritime Sphere ............................................................................................................................ 95 E. National Liberation Movement and State-Sponsored Terrorism ........................ 100 F. Achievements and Deficiencies .......................................................................... 102 G. Conclusion .......................................................................................................... 107 III. The Making of the 2005 SUA Protocol .............................................................. 108 A. Initial Considerations and the Role of the US .................................................... 109 B. By-product: the ISPS Code.................................................................................. 111 C. Consensus, Voting Procedure and Objections .....................................................114
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