IMO DRAFT CONVENTION ON WRECK REMOVAL

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1 INTERNATIONAL MARITIME ORGANIZATION E IMO LEGAL COMMITTEE 92nd session Agenda item 4 LEG 92/4/1 8 August 2006 Original: ENGLISH DRAFT CONVENTION ON WRECK REMOVAL New article on the settlement of disputes to be included in the draft convention on wreck removal in replacement of article 16 of the draft contained in annex 3 of document LEG 91/3 Submitted by Italy and Germany Executive summary: Action to be taken: Paragraph 15 SUMMARY This document sets out a proposal for a provision on the settlement of disputes relating to the interpretation and application of the draft wreck removal convention, making the provisions of Part XV of the United Nations Convention on the Law of the Sea, 1982, (1982 UNCLOS) applicable whenever agreed means of settlement have not been successful within a reasonable time. The document also gives the reasons for the proposal, introduced orally at the ninety-first session of the Legal Committee, and answers questions and objections raised during the debate. Related documents: LEG 91/3, annex 1, article 16; LEG 91/12, paragraphs Introduction 1 During the ninety-first session of the Legal Committee in April 2006, the delegation of Italy orally proposed that article 16 be amended to include an additional paragraph containing a reference to the compulsory procedures for the settlement of disputes, as contained in Part XV, section 2, of UNCLOS (document LEG 91/12, paragraph 69). A discussion ensued, in which arguments in favour, objections and questions were exchanged. The decision of the Legal Committee was to maintain the current text and to invite interested delegations to submit written proposals in this regard to LEG 92 (document LEG 91/12, paragraph 74). 2 The present document responds to the invitation mentioned above. It introduces, in written form, the proposal previously made orally, setting out the reasons that support it, and responds to the objections raised in the discussion as summarized at the ninety-first session of the Legal Committee. For reasons of economy, this document is printed in a limited number. Delegates are kindly asked to bring their copies to meetings and not to request additional copies.

2 LEG 92/4/1-2 - Reasons for the proposal 3 The main reason for the proposal is that agreed or diplomatic means of settlement, as set out in the current version of article 16, although useful, do not ensure that the disputes concerning the application or interpretation of the draft wreck removal convention will be resolved in all cases, as opposition by one of the parties can make this impossible. Only compulsory means, namely, means according to which a dispute can be submitted at the request of a Party to an international court or tribunal (including arbitration tribunals), can obtain such a result, ensuring that the dispute will be settled by a judgment or an award. 4 Resort to Part XV of the 1982 UNCLOS permits a high degree of flexibility in determining the adjudicating body that exercises compulsory jurisdiction. As is well known, through the mechanism of article 287 of that Convention, the International Tribunal for the Law of the Sea, the International Court of Justice or an Arbitral Tribunal may be called to decide. This has the advantage that no new adjudicating body and no new procedures have to be established. Moreover, this ensures a measure of uniformity of decisions on matters pertaining in general to the law of the sea. 5 The proposed provisions would be consistent with a pattern of agreements and conventions concluded after the adoption of the 1982 UNCLOS, such as the 1995 Straddling Fish Stocks Agreement, and a number of others, most of which are in force 1. Altogether, these agreements and the 1982 UNCLOS establish a network based on the Convention s system for the settlement of disputes, which contributes to the consolidation of the overall international system of rules on the law of the sea. It is submitted that it would be inconsistent with this trend if the draft wreck removal convention remained in isolation from it. 6 In all the conventions and agreements containing a clause similar to the one proposed, the clause applies independently of the fact that a Party to the convention or agreement is a Party to the 1982 UNCLOS. It may be recalled that two very prominent non-parties to the 1982 UNCLOS (one of which still remains outside the Convention), have become Parties to the 1995 Straddling Stocks Agreement and to other treaties containing similar clauses. The flexibility set out in article 287 of the 1982 Convention, and the importance given therein to arbitration, offsets any possible perceived disadvantage. 1 The following conventions and agreements contain in various forms clauses that can be attributed to this trend. They are all in force, with the exception of those marked with an asterisk: - Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (FAO, 24 November 1993); - Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (United Nations, 4 August 1995); Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (IMO, 7 November 1996); - Framework Agreement for the Conservation of the Living Marine Resources on the High Seas of the South-Eastern Pacific ( Galapagos Agreement, 14 August 2000); * - Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Honolulu, 5 September 2000); - Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean (Windhoek, 20 April 2001); - Convention on the Protection of the Underwater Cultural Heritage (UNESCO, 2 November 2001); * - Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries, 18 November 1980 (North East Atlantic Fisheries Commission, as amended in November 2004).

3 - 3 - LEG 92/4/1 Observations concerning objections raised at the ninety-first session of the Legal Committee 7 Document LEG 91/12, paragraph 71, states that certain delegations objected to the present proposal (as orally submitted) arguing that several delegations from States Parties to UNCLOS had made reservations regarding the settlement of disputes provisions contained in Part XV and that the reinstatement of the reference to Part XV in the draft Convention would lead to similar reservations being made in respect to the draft Wreck Removal Convention, thus diluting the compulsory effect aimed at by the proposal under consideration. 8 This objection seems to be based on an erroneous knowledge, or reading, of the relevant provisions. It must be recalled that article 309 of the 1982 UNCLOS provides that: No reservations or exceptions may be made to the Convention. Article 298 permits that, through a declaration, States Parties exclude from compulsory settlement a limited number of categories of disputes. While some States have made such declarations, none of the categories of disputes mentioned in article 298 namely, those concerning the delimitation of marine areas, military activities and enforcement activities in matters of fisheries and scientific research, matters under consideration by the UN Security Council - has any relationship with the subject matter of the draft wreck removal convention. If the concern of the States making this objection is to avoid dilution of compulsory jurisdiction, they may rest assured that no such dilution is possible by way of reservations or declarations. 9 Coming to another concern reported in document LEG 91/12, paragraph 71 in fine, it is true that judicial settlement is included in article 16 of the text, which it is proposed to replace with the present proposal, as it is included under the expression other peaceful means in the present proposal s paragraph 1. This is, however, far from making the present proposal superfluous. Under the provisions just quoted, judicial settlement is available only if both Parties agree to it, so that in fact, the possibility of judicial settlement is no more available that it would be if the clause had not been included in the draft wreck removal convention. The present proposal, to the contrary, provides that, if agreed means of settlement have failed, judicial or arbitral settlement can be resorted to at the request of one Party, thus ensuring that the dispute will be settled. 10 Finally, document LEG 91/12 reports, in paragraph 72, that a representative observed that the draft wreck removal convention was a private law convention and that judicial claims arising under it would be considered by domestic courts and not by the international bodies referred to in Part XV of the 1982 UNCLOS. It can be agreed that domestic courts may be called to apply the provisions of the draft wreck removal convention, or of the domestic legislation implementing it, in disputes arising between private Parties. This does not exclude, however, that disputes may arise between States Parties to the Convention and that settlement by international judicial or arbitral bodies may become necessary. The obligations set out in Part II and in Part V of the draft wreck removal convention seem to be appropriate examples of provisions whose alleged violation may give rise to a dispute between States parties.

4 LEG 92/4/1-4 - The proposed text for article In light of the above considerations, we would suggest the following draft text to replace the current article 16: Article 16 Settlement of disputes (1) Any disputes regarding the interpretation or application of this Convention shall be resolved in the first instance through negotiation, mediation or conciliation, or other peaceful means chosen by the Parties to the dispute. (2) If no settlement is possible within a reasonable period of time after one Contracting Party has notified another that a dispute exists between them, the provisions relating to the settlement of disputes set out in Part XV of the 1982 United Nations Convention on the Law of the Sea shall apply mutatis mutandis whether or not the parties to the dispute are also Parties to the 1982 United Nations Convention on the Law of the Sea. 12 Paragraph 1 of the proposed text repeats paragraph 1 of article 16 of the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping and Other Matter, Paragraph 2 follows, in part, paragraph 2 of the above- quoted article of the 1996 Protocol, and (considering that no special arbitration procedure is provided for the draft wreck removal convention) in part, paragraph 1 of article 30 of the 1995 Agreement for the Implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. 13 On the basis of the proposed article, in the settlement of disputes concerning the interpretation or application of the draft wreck removal convention, priority in time is given to settlement by means agreed by the Parties, in line with article 33 of the Charter of the United Nations. If these means cannot be utilized because of disagreement between the Parties, or if they are not successful, it is proposed to apply the provisions of part XV of the 1982 UNCLOS. 14 The present proposal continues the trend followed by the agreements and conventions referred to above in paragraph 5. Italy would be ready, however, if this were to be deemed preferable, to adopt a more precise compulsory settlement dispute clause, in which preference would be given to the sole specialized court existing in the field of the law of the sea, the International Tribunal for the Law of the Sea. An appropriate formulation of such a clause that may be considered, to replace paragraph 2 of the present proposal, is the following: [article 16, paragraph 2] 2 If no settlement is reached within a reasonable period of time after one Contracting Party has notified another that a dispute exists between them, any dispute between the contracting parties relating to the interpretation or application of the provisions of this Convention shall, at the request of any Party to it, be submitted to the International Tribunal for the Law of the Sea.

5 - 5 - LEG 92/4/1 Action requested of the Legal Committee 15 The Legal Committee is invited to adopt the amendment to article 16 of the draft wreck removal convention proposed in paragraph 11 of this document (or, as regards paragraph 2, if it deems it preferable, the proposal set out in paragraph 14 of this document).