We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
18 February 2015
On April 14 2015 the Nairobi International Convention on the Removal of Wrecks will enter into force. The countries which have thus far ratified the convention are Bulgaria, Denmark, Germany, the United Kingdom, India, Iran, Malaysia, Morocco, Nigeria, Congo, Palau, Liberia, the Marshall Islands and the Cook Islands. The Netherlands, which was very active in the drafting of the convention, recently tabled a bill to facilitate its accession.
The convention allows a coastal state to intervene in its exclusive economic zone (EEZ) - that is, outside its territory - whenever a ship, a part thereof or an object therefrom is sunk, stranded, adrift or expected to sink or strand and poses a danger or may reasonably be expected to result in harmful consequences to navigation, the environment or the interests of coastal states. Examples of such interests are:
The interests of the state are thus broadly defined.
A state may intervene whenever a wreck in its EEZ is considered a danger by that state. The state can then require the owner of the ship to remove the wreck within a certain timeframe. If the owner fails to do so, the state may remove the wreck itself and claim all costs thereof, including the costs of marking and guarding the location of the wreck for navigational safety.
The United Nations Convention on the Law of the Sea (UNCLOS) clearly prescribes the limits of the rights of states outside their territory and in the EEZ. Article 56 of UNCLOS provides that states have jurisdiction with regard to natural resources and the environment. For all other purposes, such as tourism or navigation, states have no jurisdiction in their EEZ. However, the economic interests which a state can invoke to determine a wreck as a hazard, thereby triggering its right under the Nairobi Convention to intervene and order the removal of a wreck, go beyond this clearly prescribed jurisdiction under the law of the sea. Article 92 of UNCLOS explicitly provides that ships are subject to the exclusive jurisdiction of their flag states.
In cases where natural resource exploitation, related installations or the environment is not at issue, the waters in the EEZ are deemed to be high seas, which no state may purport to subject to its jurisdiction. Naturally, some states may agree among themselves to extend their jurisdiction and authority with regard to ships that fly the flag of one of these states. This possibility is also explicitly provided for in Article 92 of UNCLOS. However, such jurisdiction or authority to intervene cannot be exercised over ships flying the flag of a state that is not a party to the Nairobi Convention.
Navigational safety or threats to economic activities in the EEZ other than for the purpose of exploitation of natural resources do not fall under the jurisdiction of a coastal state under the law of the sea. Where no threat exists to natural resource exploitation or the environment, a state thus cannot order the owner of a ship which is not flying the flag of a contracting state to remove the wreck or reimburse the state's costs of doing so.
In 1978 the Dutch Supreme Court held in ZUIDPOOL that the state could nevertheless claim wreck removal costs as the approach route to Dutch ports was hindered. This reasoning is reflected in the expanded list of threats in connection with which states can derive jurisdiction under the Nairobi Convention. However, it seems to be ultra vires under the law of the sea.
In its explanatory memorandum to the bill ratifying and implementing the Nairobi Convention, the Dutch legislature laconically stated that it is in conformity with the law of the sea. However, the Council of State, which gives authoritative yet non-binding advice on legislative bills to the legislature, called out the legislature on this point. It advised that the bill be revised to clarify that the state may intervene only against wrecks of ships that fly the flag of a contracting state to the Nairobi Convention.
However conscious of public international law the Council of State may be, the Nairobi Convention itself does not contain this limitation and therefore seems to be at odds with the law of the sea in some cases. A clash of public international legal norms is thus foreseeable in cases where a ship which is not flying the flag of a contracting state is deemed a wreck that threatens the economic maritime, coastal, port or estuarine activities of a coastal state. Where the state is a party to the Nairobi Convention and perceives a danger to its economic interests, it may well want to avail of the possibility to intervene and recover the costs of such intervention. In such case the shipowner could rely on the freedom of the high seas as laid down in UNCLOS, because its flag state has not consented to the expanded jurisdiction of the coastal state.
Interesting legal discussions on this point may be expected to come before the International Tribunal for the Law of the Sea.
For further information on this topic please contact Jonathan van Blaaderen at AKD by telephone (+31 88 253 50 00), fax (+31 88 253 54 00) or email (firstname.lastname@example.org). The AKD website can be accessed at www.akd.nl.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.
Jonathan van Blaaderen