Legal Committee, 97th session: 15 - 19 November 2010

Opening speech

(15 to19 November 2010)

Good morning, distinguished delegates and observers,
It is also a pleasure for me to welcome you to the ninety-seventh session of the Legal Committee, and I particularly welcome those delegates who are attending this Committee for the first time.
Before addressing specific items on the Committee’s agenda, I wish to say a few words about the explosion on, and eventual sinking of, the oil rig Deepwater Horizon and the subsequent pollution the accident caused to the Gulf of Mexico over the period between April and August. Although it was not shipping-related, the devastating impact the oil spill had on the marine environment and on the ecosystem and wildlife of the Gulf has saddened us all immensely. 
 More than that, we were distressed by the loss of 11 human lives.  In conveying our deep condolences and solidarity to the United States Government and while sharing in the anguish of those whose livelihoods had been seriously affected, I asked that the report of the investigation into the accident be submitted to IMO as soon as possible after it has been concluded, so that we may move swiftly to introduce, into the regulatory regime of the Organization, whatever lessons may be learned from the incident in order to enhance safety and environmental protection in the offshore industry and strengthen, should that prove necessary, the provisions of any relevant IMO instrument.
While in Dubai and discussing offshore activities last month, I was introduced to the four Ds, which, from now on, are destined to characterize the offshore oil industry in its search for black gold: Deep, Distant, Dangerous and Difficult.  For IMO to be able to respond to its attendant duties and responsibilities, we must act prudently and sensibly and use the Deepwater Horizon incident and the, possibly, less well known incident involving the Montara offshore oil platform off the north west coast of Australia, as wake-up calls to strengthen our regulatory system that addresses issues such as those the two incidents have brought to light.  I will revert to this issue in a moment.
Before doing so, however, I am sure we can all agree that, as the year draws to a close, the World Maritime Day theme chosen, namely “2010: Year of the Seafarer”, has been successful in rallying behind it the maritime community and generating wide interest all over the world, as is evident from the number of events and other initiatives conducted around the globe by Governments, international organizations and a great variety of industry stakeholders  – a recent example being the launch of Seafarers’ Rights International, which we were pleased to host here at our Headquarters on World Maritime Day.  Let us hope that the momentum spurred by the theme will not end with the close of the year but will continue beyond and, in particular, inspire a new generation, by alerting ambitious and capable young men and women to the unique attractions of a seafaring career.
Of all the regulatory objectives included in IMO’s action plan to celebrate the Year of the Seafarer, the International Conference to adopt amendments to the STCW Convention and Code, which was successfully concluded in Manila in June, stands out.  The Manila Amendments aim to ensure that, once in force (hopefully on 1 January 2012), seafarers will, for the foreseeable future, be educated and trained to standards enabling them to operate today’s technologically advanced ships with the required degree of safety and security and with due regard to their responsibilities vis-à-vis the environment.
Another milestone of the Conference was its decision to declare the day on which it adopted the amendments, the 25th of June, as the “Day of the Seafarer”, for celebration each year from now on – a decision, which led to it being added to the list of annual UN observances.  Member Governments, shipping organizations, companies, owners, operators and managers and all other parties concerned, together with seafarer representative organizations, are encouraged to promote and celebrate the Day as from next year.  We will certainly do so at IMO, as the Council decided two weeks ago.  And this will be the least we can do for those on whom we all depend and to whom we owe so much.
Distinguished delegates,
It was also with seafarers in mind that the Council decided that next year’s World Maritime Day theme should be “Piracy: orchestrating the response”, with the aim of encouraging us all to redouble our efforts to mount, on a worldwide basis, a decisive and effective response to this modern-day menace.
I was both honoured and impressed to receive, on World Maritime Day, here at our Headquarters, almost one million signatures of a petition calling for an immediate end to piracy.  As I remarked on that occasion, I sincerely hope that the strength of feeling expressed by so many people from so many countries will help to sensitize both Governments and the wider public to the harm being caused by piracy, as well as to exert pressure on those who can act to do so, in the interest of achieving a satisfactory resolution of this unacceptable situation. And, of course, we were delighted with the release yesterday of the Chandlers couple – as we are, and should be, every time seafarers, caught up in this despicable trade that uses them as pawns, are released after endless months in captivity.  
As you are aware, IMO has been instrumental, and continues playing a pivotal role, in addressing the problem energetically at all levels, at the same time engaging as many stakeholders as possible – by developing guidance to Administrations and seafarers; promoting the Djibouti Code of Conduct; promulgating the industry-developed best management practices; and encouraging the deployment of, and working closely with, naval forces in a co-operative effort without precedent in naval history. 
You will be pleased to know that, through our dedicated Djibouti Code Project Implementation Unit, we are making headway in establishing information sharing centres; delivering capacity-building training; and developing, in partnership with the United Nations Office on Drugs and Crime, the legal framework that is needed to prosecute pirates.  We will continue to give this project the highest priority so that States in the region can build and develop their own, effective counter-piracy infrastructure and operations.
However, these successes do not alter the fact that piracy and armed robbery against ships remain a real and ever-present danger to shipping – in the Gulf of Aden, off the coast of Somalia and in the western Indian Ocean, and also in other parts of the world, such as the Gulf of Guinea and the South China Sea.  Still more remains to be done if the ultimate goal of consigning piracy to the realms of history is to be achieved.  I, therefore, call on all Governments to be proactive and provide naval cum coast guard and aerial surveillance assets, as well as financial and other resources, necessary to prevent acts of piracy and armed robbery against ships; and promote the successful prosecution and detention of those accused of such acts.
The five submissions on piracy before the Committee indicate not only the concern but also the willingness and preparedness of Governments and international organizations to work together to find a robust and lasting solution to this scourge of modern life.  They also indicate that, without adequate national laws and the necessary judicial and penal infrastructure, both in the regions most affected and elsewhere, little real headway can be made in the process of arrest, prosecution and detention of suspected pirates and imprisonment of those found guilty of piracy – all of which are vitally important to solve the piracy problem.  Therefore, I would encourage your Committee to make full use of the opportunity presented by this session to provide views and comments on the report of the UN Secretary-General, which identifies seven options concerning possible judicial and penal arrangements for the Security Council to consider, so that these may be presented to Working Group 2 of the Contact Group on Piracy off the Coast of Somalia, when it meets next.
I trust that the reports on the latest activities of the Contact Group, which held its fifth and sixth meetings in Copenhagen in May and earlier this month, will comprehensively inform your Committee’s discussions at this session, as will the assessment of national legislation on piracy prepared by the Secretariat on the basis of responses received to Circular letter No.2933.  A total of 42 countries have, so far, sent samples of existing national legislation in response to that Circular letter, and our analysis is that there exists a lack of harmonization in implementing legislation on piracy, which may well lead to complications and set-backs in the prosecution process.  Ultimately, it would be gratifying if States were to undertake a review of their legislation with the aim of bringing it into a clearer alignment with the UNCLOS provisions on piracy and the complementary SUA Convention provisions.  Technical assistance to support such efforts is available through our Integrated Technical Co-operation Programme.
Distinguished delegates,
This year has marked another milestone in IMO’s regulatory work, with the adoption, in April, of a Protocol to the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea.  The Protocol, the preparation of which is credited to your Committee, opened for signature two weeks ago, on 1 November, and will remain open until 31 October 2011; thereafter, it will remain open indefinitely for accession.   Once in force, the parent HNS Convention, as amended by the Protocol, will ensure that victims of incidents at sea involving hazardous and noxious substances, including seafarers suffering injury or their families in the event of their death as a result of such incidents, can have certainty of redress, wherever in the world such incidents may occur.
I sincerely hope that the pragmatic, realistic and workable solutions embedded in the Protocol, will encourage many Governments to proceed swiftly with the ratification process, to facilitate the earliest possible entry into force.   HNS incidents, unfortunately, continue to occur – a most recent example being the collision, last month, of the chemical tanker YM Uranus and the bulk carrier Hanjin Rizhao off the Brittany coast.  It was fortunate that the YM Uranus eventually arrived safely in Brest under tow; that its crew was safe and well after having being rescued from their lifeboat; and that there was no pollution damage arising from this incident. 
However, if there had been pollution from the vessel’s hazardous and noxious cargo of pygas, the need for an international compensation regime – and, indeed, the relevance of the 2010 HNS Protocol – would have quickly become evident – which points to the successful outcome of the April Conference. 
Distinguished delegates,
I began my address by referring to the Deepwater Horizon and Montara incidents, suggesting that it would be prudent to see them both as wake-up calls to strengthen our regulatory regime to be able to respond adequately to any similar events in the future.  In this context, you are invited to consider a proposal by the Government of Indonesia, prompted by the Montara incident, to add a new item to the Committee’s work programme to develop appropriate legislation to address civil liability and compensation issues in case of transboundary oil pollution damage caused by offshore exploration and exploitation activities. 
In view, also, of the much publicized Deepwater Horizon incident and taking into account that new and emerging technologies are capable of enabling offshore drilling activities to be undertaken in ever deeper waters and more challenging marine environments under adverse weather conditions, it would certainly be timely for the Committee to consider how best to address the issues raised in the Indonesian submission.
In undertaking this work, the Committee may consider whether principles, such as those that guided it in the consideration of other liability and compensation issues debated at IMO, might be applied – in particular, whether it perceives a need to ensure the availability of prompt, adequate and effective compensation in respect of damage caused by pollution of the marine environment, wherever it may occur.  In considering how to go about the new challenge Indonesia is presenting IMO with, the Committee should also consider whether there is an international forum, other than IMO, that could claim to have competence in dealing with the matter brought to our attention, and whether the specific issue Indonesia has requested the Committee to consider is addressed otherwise.  I believe that, by elimination, you will draw the conclusion that the matter is IMO’s to deal with and we should, therefore, consider it as the Committee sees fit.  
I turn now to the 2001 Bunkers Convention, another treaty instrument dealing with liability and compensation matters.  The Convention, which entered into force on 21 November 2008, now boasts fifty-six States Parties, representing 85.51 per cent of the gross tonnage of the world’s merchant fleet.  There can be no doubt that these encouraging statistics owe much to the continual focus of your Committee, ever since the Convention was adopted, on how to promote and enhance its uniform and effective implementation and, in so doing, to encourage and facilitate further ratifications.  The implementation of the Bunkers Convention will, once again, command your attention this week and, this time, you will be invited to consider a number of legal and interpretative issues contained in the report of the Correspondence Group you have established to promote the Convention’s harmonized implementation.  These issues raise important questions, for which clear answers are required to enable national administrations, shipowners and their insurers to comply with the Convention’s provisions.  I, therefore, look forward to a meaningful outcome of your deliberations.
Also this week, your attention is invited, once again, to the continued adequacy, or otherwise, of the liability limits under the Limitation of Liability for Maritime Claims Protocol of 1996.  This is a complicated issue demanding careful consideration, as the LLMC Protocol limits affect a variety of other conventions, including, but not limited to, the Bunkers Convention.  I note that there are several documents on the table for consideration at this session, which will doubtless assist the Committee in its deliberations and, hopefully, clarify the way forward.  A proposal to amend the limits of liability, utilizing the tacit amendment procedure, was formally submitted to IMO last week, for consideration by the Committee at a future session.

Distinguished delegates,
The review of the status of conventions and other treaty instruments emanating from your Committee involves an important monitoring task that you carry out routinely, providing a welcome opportunity to reflect more deeply on the reasons behind any delays in the fulfilment of the entry into force conditions of certain of those instruments.  I would highlight, in particular, as deserving of continued urgent attention to further progress the ratification process, the Protocol of 2002 to the 1974 Athens Convention and the 2007 Nairobi International Convention on the Removal of Wrecks.  The former, once in force, will provide much needed reassurance to those travelling by sea that, in the event of an incident aboard ship, leading to death, personal injury or damage to luggage, prompt, adequate and effective compensation will be available.  The latter, once in force, will similarly serve to reassure coastal State administrations that, in the event of a wreck posing a safety, navigational or environmental hazard in their waters, prompt action can be taken to avert the hazard from turning into a reality.
The recent entry into force, on 28 July this year, of the two Suppression of Unlawful Acts (SUA) Protocols that were adopted in 2005, following extensive, elaborate and in-depth preparatory work by your Committee, marks another important milestone in the fight against international terrorism and other criminal acts committed against ships at sea.  While this is a very welcome development, more needs to be done to increase the number of States Parties to both instruments with the objective of ensuring that as many administrations as possible are able to utilize the powers granted by the Protocols to achieve their objectives aiming at keeping terrorism and piracy-related threats at bay.  I would urge you all, therefore, to join the campaign to promote the two Protocols widely with the aim of further increasing the number of ratifications.
In a similar manner, I would wish to emphasize, once again, the importance of the 2006 ILO Maritime Labour Convention coming into force without further delay. Despite earlier optimistic predictions that the required 30 ratifications would be achieved during the course of 2010, the Year of the Seafarer, this now looks unlikely.  I, therefore, can only repeat my plea to Governments to promptly ratify the ILO treaty, bearing in mind its most worthy aim: to improve the living and working conditions of seafarers without whom there would be no shipping industry and on whom we all depend so much to ensure the uninterrupted flow of international trade and to serve the world economy at large. Together with SOLAS, MARPOL and the STCW Conventions, the ILO treaty constitutes the fourth pillar of the international regulatory regime for quality shipping and its entry into force would also make it possible to incorporate into it mandatory provisions on financial security for claims relating to seafarer abandonment and death or personal injury, which were agreed at the ninth session of the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers, and subsequently endorsed by both the Legal Committe and the ILO Governing Body.
Distinguished delegates,
Before concluding, I invite your attention, as I usually do, to two matters of a more general nature.
The first concerns the Voluntary IMO Member State Audit Scheme.  As approved by the last Assembly, its institutionalization process has now started in earnest in accordance with the time frame and schedule set out in resolution A.1018.  Next week, the Maritime Safety Committee is expected to consider a series of recommendations (prepared by the Sub Committee on Flag State Implementation) associated with the consideration of possible ways in which the Code for the implementation of mandatory IMO instruments (which is used as the audit standard for the Scheme) and auditing could be made mandatory – in particular, the issue of how to introduce the Code and auditing into the annexes to some or all of the 10 instruments covered by the Code.  While we progress with the set objective, it is equally important that Member States continue to volunteer for audit so that the institutionalization process can benefit from the results of conducted audits.  Your support and contribution to the success of both endeavours will be greatly appreciated.
The second issue of a general nature concerns security during meetings – on which your continued co operation at any given instance would be appreciated.  These are not easy times and we should not, for lack of vigilance and alertness or the demonstration of any complacent attitude, make it easier for those who contemplate acts of violence to succeed in their evil aims. 

Distinguished delegates,
Having highlighted some of the most important items on your agenda this week, I am left in no doubt that this will be an unusually busy session, demanding your close attention to several complex issues.  I am confident that, ably guided by your Chairman, Professor Lee Sik Chai of the Republic of Korea, you will accomplish the tasks assigned to you with efficiency and that, with your usual commitment to the IMO spirit of co-operation, you will succeed in making this another productive and fruitful session.  Such an outcome will provide welcome direction and guidance to all those who are concerned with furthering the goals and objectives of this Organization not only from the technical but also from the legal viewpoint of its mandate.  The   Secretariat will, as always, support the meeting to the best of its abilities.  I wish you every success in your deliberations and the best of luck.
Thank you.