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.

Wreck removal
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.

A submission 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:

· IMO's 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;
· the 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.

The review 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.

The main 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 conditions.

The current 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.

During discussion 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.

There was 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.

A number of other issues, including possible inclusion of a provision for boarding of vessels, were discussed on a preliminary basis.

The re-established 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

Regional Economic 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.

This follows 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 the Protocol.

The Committee agreed to request the Secretariat to determine what provisions on regional economic integration organizations have been introduced into other conventions.

Implementation 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.

An overview 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.

Seafarer claims
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.

The Committee 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.

There was 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.

The Committee 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 legal perspective.

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.

Measures to 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.

The submission 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.

Several delegations 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.