Nairobi International Convention on Removal of Wrecks 18 May 2007
Wrecks of sunken ships and parts thereof may not only be dangerous for navigation, but also to the marine environment. Oil and other hazardous and noxious substances may be released from a sunken ship even years after the casualty. Whilst their removal within the territorial waters of a State belongs to the jurisdiction of such State, if wrecks lie beyond territorial waters their removal is not and its law is not applicable. Nor has that State any specific obligations to care for the marking and removal of such wrecks or right of action against their owners. The Nairobi Convention was adopted with a view to filling this gap in international public maritime law. Although the majority of wrecks lie within territorial waters, there are in fact wrecks beyond them that may constitute a hazard to navigation as well as a threat to the marine environment; this would certainly be the case for sunken tankers and, generally, for the bunker oil of any ship. As of July 2014, the Convention has been ratified by 11 States and, the instrument of ratification of the tenth State having been deposited on 14 April 2014, the Convention has entered into force on 14 April 2015.
The subject matter of the Convention is the removal of wrecks. Art. 2(1) so provides:
A State Party may take measures in accordance with this Convention in relation to the removal of a wreck which poses a hazard in the Convention area.
And art. 3(1) so provides:
- Except as otherwise provided in this Convention, this Convention shall apply to wrecks in the Convention area.
The three basic conditions for the Convention to apply are therefore: (a) that there is a wreck; (b) that such wreck poses a hazard to navigation; and (c) that the hazard is located in the Convention area.
Pursuant to art. 1(4), the definition of ‘wreck’ is linked to the nature of the event from which it has resulted. Art.1(4) in fact provides in its chapeau:
- ‘Wreck’, following upon a maritime casualty, means:
Therefore, a wreck may be so qualified only if it is the consequence of a maritime casualty, so defined in art. 1(3):
- ‘Maritime casualty’ means a collision of ships, stranding or other incident of navigation, or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to a ship or its cargo.
While incidents involving a ship are all covered, doubts may arise in respect of matters carried on board that are voluntarily thrown overboard, with the intention of getting rid of them. That action would probably be covered by the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, as amended by its Protocol of 1996.1
A description of the alternative nature of a wreck is provided in the four sub-paragraphs of paragraph 4 that may be convenient to consider seriatim:
(a) a sunken or stranded ship
Although a stranded ship is unlikely to cause a hazard to navigation, it may instead pose a hazard in respect of the marine environment if there is a danger that oil may be released from her bunker and, if a tanker, from her cargo tanks.
(b) any part of a sunken or stranded ship, including any object that is or has been on board such ship
In so far as ships are concerned, this requires that the ship before sinking or stranding has broken into two or more parts. In so far as objects are concerned, the liaison with the ship reference to which is made appears clearly from the words ‘that is or has been on board’. If such object is still on board, it must obviously be on the part of that ship considered in this sub-paragraph. If it is not on board anymore, in order that it poses a hazard, its characteristics vary according to the type of hazard.
(c) any object that is lost at sea from a ship and that is stranded, sunken or adrift at sea
The conjunction ‘and’ (that is stranded, etc.) indicates that what is stranded, sunken or adrift at sea is the object, and not the ship. The nature of the object varies according to whether the hazard affects navigation or the environment. In the first case, its dimensions must be significant, in the second case, the quantity must be such as to entail major harmful consequences to the marine environment or damage to the coastline or related interests.
There could be a potential conflict in this case between this Convention and the Salvage Convention 1989 and the wording of this sub-paragraph must be compared with that of art. 1(a) of this latter Convention: what prevents the operation of the Nairobi Convention is the prior taking of effective measures to assist the ship or property in danger; what entails the coming into being of salvage operations is any act or activity undertaken to assist a vessel or other property in danger. By accepting a request of assistance, the salvor undertakes to assist the vessel or property, but can it be stated that ‘effective measures’ to assist such ship or property have already been taken? It is suggested that the answer should be affirmative, even if ‘to undertake to assist’ means only to agree to perform.
Although, therefore, the nature of the wreck may vary considerably, the general assumption in most of the provisions of this Convention is that the wreck is a sunken or stranded ship or a part thereof, since reference is frequently made to the master or operator of the ship (art. 5 para. 1), to the ship’s registry and to the registered owner (art. 9 paras. 1, 6, 7, 8 and 9; art.10; art. 11). Of course, the reference to the ship’s registry is inappropriate when the ship has been deregistered because of its having become a wreck2 and the reference to registered owner is equally inappropriate. However, it must be understood that those expressions have been intended to cover all such situations.
Although certain provisions of the Convention apply to wrecks generally, whether or not they pose a hazard, the core of the Convention is the protection against wrecks that pose a hazard. That is stated in art. 2, in which the objectives and general principles are set out. Paragraphs 1, 2 and 3 so provide:
A State Party may take measures in accordance with this Convention in relation to the removal of a wreck which poses a hazard in the Convention area.
Measures taken by the Affected State in accordance with paragraph 1 shall be proportionate to the hazard.
Such measures shall not go beyond what is reasonably necessary to remove a wreck which poses a hazard and shall cease as soon as the wreck has been removed; they shall not unnecessarily interfere with the rights and interests of other States including the State of the ship’s registry, and of any person, physical or corporate, concerned.
The following definition of hazard is given in art. 1(5):
5 ‘Hazard’ means any condition or threat that:
(a) poses a danger or impediment to navigation; or
(b) may reasonably be expected to result in major harmful consequences to the marine environment, or damage to the coastline or related interests of one or more States.
The danger in the navigation is a physical danger due to the risk of ships sailing above the wreck or colliding with it. The impediment consists of the obligation of a ship sailing in the area in which there is a sunken wreck, to deviate from its course in order to avoid the risk of collision.
Major harmful consequences to the marine environment and damage to the coastline or related interests appear to be considered in this provision as alternative consequences of a hazard. In art. I(1) of the Intervention Convention 1969 they appear instead to be strictly related, the grave and imminent danger to the coastline and related interests from pollution or threat of pollution being expected to result in major harmful consequences.3 This is also the case for the Salvage Convention 1989, in art. 1(d) of which damage to the environment is defined as:
(e) Damage to the environment means substantial physical damage to human health or to marine life or resources in coastal or inland waters or areas adjacent thereto, caused by pollution, contamination, fire, explosion or similar major incidents.
A distinction appears instead to have been made in art. 1(1)(d) of the Arrest Convention 1999:
(d) damage or threat of damage caused by a ship to the environment, coastline or related interests; measures taken to prevent, minimize, or remove such damage, compensation for such damage; costs of reasonable measures of reinstatement of the environment actually undertaken or to be undertaken; loss incurred or likely to be incurred by third parties in connection with such damage; and damage, costs, or loss of a similar nature to those identified in this subparagraph (d).
Finally a clearer distinction is made in the OPRC Convention 1990, art. 2(3) of which defines oil pollution incident as:
’ Oil pollution incident’ means an occurrence or series of occurrences having the same origin, which results or may result in a discharge of oil and which poses or may pose a threat to the marine environment, or to the coastline or related interest of one or more States, and which requires emergency action or other immediate response.
Since the coastline covers an area definitely different from and more inland than that covered by the ‘marine environment’, the distinction appears appropriate and this is confirmed by the reference to the ‘related interests’, that are thus defined in art. 1(6):
6 ‘Related interests’ means the interests of a coastal State directly affected or threatened by a wreck, such as:
(a) maritime, coastal, port and estuaries activities, including fisheries activities, constituting an essential means of livelihood of the persons concerned;
(c) the health of the coastal population and the well-being of the area concerned, including conservation of marine living resources and of wildlife; and
(d) offshore and underwater infrastructure.
It appears, therefore, that the coastline is an area near the coast, the depth of which depends on the connection between the life in that area and the sea: this is precisely what is meant in France when reference is made to the Côte d’Azur.
‘Convention area’ is defined in art. 1(1) as:
‘Convention area’ means the exclusive economic zone of a State Party, established in accordance with international law or, if a State Party has not established such a zone, an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baseline from which the breadth of its territorial sea is measured.
The area referred to in this provision is the same as that defined in art. II(a)(ii) of the CLC 1992, in art. 3(a)(ii) of the Fund Convention 1992, in art. 3(b) of the HNS Convention and in art. 2(a)(ii) of the Bunker Oil Convention.4
Where a State Party has extended, pursuant to art. 3(2), the application of the Convention to wrecks located within its territory, including its territorial sea,5 pursuant to art. 3(3), the notion of ‘Convention area’ includes the territory, including the territorial sea, of that State.
From several provisions of the Convention it appears that that party is the Affected State and that its determination cannot be challenged.
Art. 6, an analysis of which will be made below, so provides in its chapeau:
When determining whether a wreck poses a hazard, the following criteria should be taken into account by the Affected State:
Art. 8(1) so provides:
If the Affected State determines that a wreck constitutes a hazard, that State shall ensure that all reasonable steps are taken to mark the wreck.
Art. 9(1) so provides:
If the Affected State determines that a wreck constitutes a hazard, that State shall immediately:
(a) inform the State of the ship’s registry and the registered owner; and
(b) proceed to consult the State of the ship’s registry and other States affected by the wreck regarding measures to be taken in relation to the wreck.
Such criteria are enumerated in art. 6 and from the last paragraph worded:
(o) any other circumstances that might necessitate the removal of the wreck
it appears that the list is open-ended.
The various criteria enumerated clearly apply in different circumstances. They will be briefly considered hereafter.
- the type, size and construction of the wreck
This criterion appears to be of general application, irrespective of the wreck being a ship, a part of a ship or an object lost from a ship, such as a container.
- depth of the water in the area
The ‘area’, reference to which is made in several criteria, is not the ‘Convention area’ as defined in art.1(1), but the area in which the wreck is located. The depth of the water is always important, because the greater it is, the less danger there is of a ship hitting the wreck.
- tidal range and currents in the area
The tidal range is similarly important, as the currents may cause a shifting of the wreck away from its original position.
- particularly sensitive sea areas identified and, as appropriate, designated in accordance with guidelines adopted by the Organization, or a clearly defined area of the exclusive economic zone where special mandatory measures have been adopted pursuant to article 211, paragraph 6, of the United Nations Convention on the Law of the Sea, 1982.
It is not clear why the plural is used, because the wreck is not located in various areas, but the sense of this criterion is the fact that the wreck is located in one of the particularly sensitive areas identified by the IMO or in a ‘clearly defined area’ where special mandatory measures have been adopted pursuant to art. 211(6) of UNCLOS. This article sets out in (a) the procedure the coastal State must follow in order to obtain from the competent organisation (in our case the IMO) confirmation that the special mandatory rules suggested are required.6
- proximity of shipping routes or established traffic lanes
The proximity of the wreck to shipping routes or lanes increases the probability of an accident.
- traffic density and frequency
This is also the case where the density of the traffic is considerable.
- type of traffic
The basic distinction of type of traffic is between liner trade and bulk trade, a distinction that has been adopted recently in the Rotterdam Rules in which reference is made to ‘liner transportation’7 and ‘non-liner transportation’.
- nature and quantity of the wreck’s cargo, the amount and types of oil (such as bunker oil and lubricating oil) on board the wreck and, in particular, the damage likely to result should the cargo or oil be released into the marine environment
This criterion is relevant for the risk of damage to the environment.
- vulnerability of port facilities
This criterion is relevant for the assessment of the risk of damage to the environment and, specifically, to port facilities the oil might reach.
- prevailing meteorological and hydrographical conditions
The meteorological and hydrographical conditions may affect the possible shifting of the wreck as well as the direction the oil may take and the speed with which it may reach the coastline.
- submarine topography of the area
The topography of the area may be relevant for the assessment of a risk of the wreck shifting away from its original position.
- height of the wreck above or below the surface of the water at lowest astronomical tide
The qualification of the tide as ‘astronomical’ is due to the gravitational force between the earth and the moon and, to a lesser extent, the sun, which creates a rise and fall of sea levels. There are also geological variations in sea level, but their effects are very insignificant compared to those caused by the moon and the sun.8 The height of the wreck below the surface of the sea is the vertical distance between the highest part of the wreck and the surface of the sea: the greater the distance, the lesser the danger of a collision between the ships passing by and the wreck. If the wreck emerges from the sea level, then the larger the part that emerges, the smaller the danger of not being noticed by passing ships.
- acoustic and magnetic profiles of the wreck
Information in this respect might facilitate detecting the wreck with sonar and similar devices.
- proximity of offshore installations, pipelines, telecommunications cables and similar structures
Probably such proximity would increase the danger of the wreck causing damage to such structures if the wreck were to shift due to currents, tides or a storm.
- any other circumstances that might necessitate the removal of the wreck
As previously stated, this last criterion makes the list open to any specific situation that might affect the prospects of an occurrence.
2.5 The voluntary extension of the geographical scope and the provisions excluded from the extension
Art. 3(2) so provides:
A State Party may extend the application of this Convention to wrecks located within its territory, including the territorial sea, subject to article 4, paragraph 4. In that case, it shall notify the Secretary General accordingly, at the time of expressing its consent to be bound by this Convention or at any time thereafter. When a State Party has made a notification to apply this Convention to wrecks located within its territory, including the territorial sea, this is without prejudice to the rights and obligations of that State to take measures in relation to wrecks located in its territory, including the territorial sea, other than locating, marking and removing in accordance with this Convention. The provisions of articles 10, 11 and 12 of this Convention shall not apply to any measures so taken other than those referred to in articles 7, 8 and 9 of this Convention.
Art. 4(4), reference to which is made in art. 3(2), indicates in sub-paragraph (a) the provisions that do not apply in the territory, including the territorial sea, of a State that has given notice of its decision to extend the application of the Convention to wrecks located in in its territory, including the territorial sea. They will be considered seriatim:
(i) Article 2, paragraph 4
- The application of this Convention within the Convention area shall not entitle a State Party to claim or exercise sovereignty or sovereign rights over any part of the high sea.
The exclusion is obvious, since a State does exercise sovereign rights over its territorial sea.