Legal Committee, 86th session: 28 April - 2 May 2003
IMO's Legal Committee
made substantial progress in developing a draft wreck removal convention and in
its revision of the Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation, 1988, and its Protocol of 1988 relating to Fixed
Platforms Located on the Continental Shelf (SUA Convention and Protocol) during
its 86th session in April 2003.
The Committee reviewed the current draft text of the proposed draft Wreck Removal
Convention (WRC), as developed by a Correspondence Group, focusing in particular
on jurisdiction and financial security issues.
on the mandate of IMO to regulate coastal State intervention powers in the EEZ,
prepared by the IMO Secretariat, in consultation with the Division of Ocean Affairs
and the Law of the Sea, Office of Legal Affairs, UN (DOALOS), notes that:
competence to consider and adopt a treaty regulating coastal State intervention
in the EEZ for the purposes of wreck removal coincides with IMO's universal
mandate to adopt global regulations for the safety of navigation and the
prevention of marine pollution;
United Nations Convention on the Law of the Sea (UNCLOS) does not inhibit
the development of new treaty instruments, which IMO may develop even if
the UNCLOS is silent on this matter, provided only that any such instruments
are not inconsistent with the provisions of UNCLOS.
The Working Group
on Wreck Removal looked in detail at the draft text and its report will be circulated
ahead of the next session (LEG 87) scheduled for October 2003. In the meantime,
the Correspondence Group was instructed to further develop the draft text.
The WRC is
intended to provide international rules on the rights and obligations of States
and shipowners in dealing with wrecks and drifting or sunken cargo which may
pose a hazard to navigation and/or pose a threat to the marine environment.
The draft Convention currently being considered by the Legal Committee is intended
to clarify rights and obligations regarding the identification, reporting, locating
and removal of hazardous wrecks, in particular those found beyond territorial
waters, and the possible need for financial security arrangements to cover liability
for costs of removal of such wrecks.
Review of SUA
Convention and Protocol
Following detailed discussion of the proposed text of draft amendments to the
SUA Convention and Protocol, based on the work of a Correspondence Group, the
Committee asked the Correspondence Group to continue the work, with the objective
of having draft texts ready for consideration by a diplomatic conference in
2004 or 2005.
of the SUA Convention and its related Protocol followed the unanimous adoption
in November 2001 by the IMO Assembly of resolution A.924(22) calling for a review
of measures and procedures to prevent acts of terrorism which threaten the security
of passengers and crews and the safety of ships.
purpose of the SUA Convention and its related Protocol is to ensure that appropriate
action is taken against persons committing unlawful acts against ships. In the
present Convention, these acts include the seizure of ships by force; acts of
violence against persons on board ships; and the placing of devices on board
a ship which are likely to destroy or damage it. The proposed amendments would
significantly broaden the range of offences and make it more relevant to modern
Convention obliges Contracting Governments either to extradite or prosecute
alleged offenders thereby ensuring that those responsible for perpetrating acts
of violence against or on board ships, will be brought to justice, wherever
in the world they seek to hide.
It was agreed
by the Committee that there was a need to amend the SUA treaties in the light
of the new situation arising from the increase in international terrorism. It
was acknowledged that in this new situation, maritime interests are widely exposed
to risks such as the use of ships as weapons and the transportation of material
that might lead to the proliferation of weapons of mass destruction. The need
to develop new SUA instruments seemed overdue on account of the dramatic change
of circumstances since the adoption of the original treaties in 1988.
on specific issues in the proposed draft amendments, the Committee agreed to
insert a reference to the protection of rights and freedoms of seafarers in
the proposed texts.
extensive discussion on the implications of how the inclusion of new offences
in article 5 of the draft protocol would impact on the original scope of the
SUA treaties, while the Committee recognized that there was a need to include
offences against security of navigation alongside with the existing offences
against the safety of navigation.
of other issues, including possible inclusion of a provision for boarding of
vessels, were discussed on a preliminary basis.
Correspondence Group has been charged with continuing the work, including taking
into consideration other conventions and protocols relating to terrorism; continuing
the review of the offences in article 3 of the 1988 SUA Convention and article
2 of the 1988 SUA Protocol to ensure that a wide range of unlawful acts, including
terrorist acts, are sufficiently covered by these two instruments in light of
the experience of 11 September, 2001; and addressing the revision of the offence
provisions and the further development of the provisions relating to boarding.
The SUA Convention
has been ratified at end March 2003 by 87 States, representing 75.74 per cent
of world merchant shipping tonnage and the SUA Protocol has been ratified by
79 States, representing 75.41 per cent of world merchant shipping tonnage
Integration Organizations becoming Parties to Treaties
The Committee discussed a resolution adopted by the 2002 Conference (which adopted
the 2002 Protocol to the Athens Convention) which called for the Organization
to carry out a study of regional economic integration organizations becoming
parties to treaties and, if found necessary, to develop appropriate provisions
which may be considered for inclusion in new treaties.
the inclusion in the 2002 Protocol to the Athens Convention Relating to the
Carriage of Passengers and their Luggage by Sea, 1974 of an article which states
that a Regional Economic Integration Organization, which is constituted by sovereign
States that have transferred competence over certain matters governed by this
Protocol to that Organization, may sign, ratify, accept, approve or accede to
agreed to request the Secretariat to determine what provisions on regional economic
integration organizations have been introduced into other conventions.
of the HNS Convention
The Correspondence Group on Implementation of the HNS Convention (International
Convention on Liability and Compensation for Damage in Connection with the Carriage
of Hazardous and Noxious Substances (HNS) by Sea, 1996) informed the Committee
of a meeting of interested States to take place in Ottawa, 3-5 June 2003. The
meeting will mark an important step in the work of the Legal Committee to promote
implementation of the HNS Convention and will provide the opportunity to finalize
the core work on the arrangements and options for implementation of this key
IMO Convention prior to the report of the Correspondence Group to the eighty-seventh
session of the Legal Committee in October 2003.
of the HNS Convention, including a link to the Correspondence Group's website,
is included on the IMO website at http://www.imo.org/home.asp?topic_id=673.
The HNS Convention
is intended to add a vital link in the international compensatory regime for
pollution damage at sea.
At end March 2003, the HNS Convention has been ratified by three States, representing
1.87 per cent of world merchant shipping tonnage. A further eight States have
reported they are in the process of taking steps to implement the Convention.
For entry into force, the HNS Convention requires ratification by 12 States,
four of which have not less than two million units of gross tonnage, provided
that persons in these States who would be responsible to pay contributions to
the general account have received a total quantity of at least 40 million tonnes
of contributing cargo in the preceding calendar year.
The work of the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation
regarding Claims for Death, Personal Injury and Abandonment of Seafarers, which
held its fourth session from 30 September to 4 October 2002 was reviewed. The
Committee agreed on the importance of the implementation of resolutions A.930(22)
Guidelines on Provision of Financial Security in Cases of Abandonment of Seafarers
and A.931(22) Guidelines on Shipowners' Responsibilities in respect of Contractual
Claims for Personal Injury to or Death of Seafarers.
agreed in principle to the establishment of a database on incidents of abandonment
reported to the IMO/ILO, subject to funding considerations by the IMO Council
and ILO Governing Body. It welcomed the offer of the International Ship Suppliers
Association (ISSA) to help with funding.
Places of refuge
The Committee reviewed the draft Assembly resolution on Guidelines on places
of refuge for ships in need of assistance and draft Assembly Resolution on Guidelines
on a Maritime Assistance Service (MAS), prepared by the Sub-Committee on Safety
of Navigation (NAV). The Committee agreed on the need for urgent guidelines
on places of refuge.
wide agreement in the Committee that ships in distress situations are covered
by the current liability and compensation regime, i.e., those conventions which
are in force such as the 1992 CLC and the 1992 IOPC Fund Convention, along with
those which have been adopted but have not yet entered into force (HNS, Bunkers,
and the 1996 LLMC Protocol), as well as those under development such as Wreck
Removal and the Supplementary Fund to the IOPC Fund Convention, scheduled to
be adopted at a conference in mid-May. It was recognized there might be gaps
since not all ships were subject to compulsory insurance requirements and not
all States were party to the relevant instruments. The Committee agreed that
a comprehensive examination of this matter would be conducted once the results
of the CMI study were available.
agreed to suggest the draft resolution on Guidelines on places of refuge include
a paragraph requesting the Legal Committee to consider the Guidelines from a
A list of
potential legal issues arising from the draft guidelines will be forwarded to
the NAV Sub-Committee for its review. The Legal Committee offered to review
the finalized draft resolutions emanating from the MSC in May-June and the NAV
Sub-Committee in July, if so requested by the MSC, and it could make its final
comments on the draft resolutions at its next session in October and submit
them directly to the Assembly in November-December 2003.
The Committee noted
that it was awaiting the results of a study on places of refuge being conducted
by the IMO Secretariat, in co?operation with the International Maritime Committee
(CMI). The Committee urged Member States, which had not already done so, to
respond to the questionnaire on places of refuge that had been issued. The responses
to the questionnaire will allow for a comprehensive review of the provisions
of existing international instruments and of national law dealing with the liability
and compensation and their application to places of refuge.
protect crews and passengers against crimes on vessels
The Committee agreed to include an agenda item on Measures to protect crews
and passengers against crimes on vessels for future sessions, following a submission
from Japan which highlighted the problems arising from the lack of a current
maritime regime to deal with offences committed on board a vessel travelling
far away from its flag State.
noted two possible solutions to the problem: firstly, the establishment of a
legal scheme to enable the captain of the vessel to act at his discretion in
the same way as the captain of an aircraft under the Convention on Offences
and Certain Other Acts Committed on Board Aircraft, 1963 (Tokyo Convention);
and secondly, the adoption of a resolution regarding co-operation between relevant
States to facilitate a prompt solution.
noted that the problem of how to oblige coastal States to accept alleged criminals
into custody was both serious and complex. Administrations were urged to complete
a questionnaire issued by the CMI on criminal offences committed on board foreign
flagged vessels in order to enable a more detailed discussion to take place
at the next session of the Committee.