The status in international law of operational warships has been long established. In contrast, the status of such vessels after they have sunk has been, and remains, a matter of considerable uncertainty. The 1982 UN Convention on the Law of the Sea (UNCLOS) provides no rules whatsoever relating to sunken warships nor to wrecks more generally. However, over the last decades, technological advances have led to the discovery of many new wreck sites, fuelling commercial interest in these wrecks. As we have seen in our previous blog, illegal scavenging of war wrecks has caused significant upset among governments, war veterans and historians who want to preserve the final resting place of sailors who went down with their ships.
Articles 95 and 96 of UNCLOS 1982 enshrine the international rule that warships and other State-owned or operated ships have complete immunity from the jurisdiction of any State other than the flag State when sailing on the High Seas. This principle also extends to such vessels sailing in the Exclusive Economic Zone (EEZ) and territorial sea of another State. A notable omission, however, is any specific rule relating to the status of sunken State vessels, and of wrecks more generally. As a result, there has been ongoing legal debate about whether or not the principle of sovereign immunity applies to sunken State vessels that no longer retain their essential function. A separate, but closely related issue is the extent to which ownership rights over these ships are retained over the passage of time.
Over the years, the increasing accessibility of the seabed, and of wrecks lying on the seabed, has led to burgeoning interest in cultural and environmental aspects of wrecks. In the light of the omissions of UNCLOS 1982, UNESCO promulgated its Convention on the Protection of the Underwater Cultural Heritage, the International Maritime Organization its Nairobi International Convention on the Removal of Wrecks. These, and a number of other treaties, have had some relevance with regard to sunken warships. Also, a growing body of State practice has been designed to reinforce the notice that interference with such wrecks, wherever they lie, is impermissible under international law without the consent of the flag State. However, the legal regime appertaining to the wrecks of warships and State-owned ships remained complex, fractured, and in serious need of clarification.
The 2015 Resolution
At its Santiago Session in 2007, the Institut de droit international (IDI) decided to look into the matter. A Preliminary Report, by its 9th Scientific Commission, was discussed ath the Rhodes Session in 2011. On 29 August 2015, at its 77th Session held in Tallinn, Estonia, the IDI adopted a resolution entitled The Legal Regime of Wrecks of Warships and Other State-owned Ships in International Law. This resolution comprises fifteen substantive articles covering most issues to which sunken State vessels give rise. The Resolution, and the Report that preceded it, contribute significantly to the clarification of international law in this field.
While some consideration was given to the possibility that the Resolution could call for an international treaty, in the end it holds back. Given the surfeit of treaties in the field and the complexities of their interaction, this is probably wise. Perhaps another international body will take up and build upon the work of the Institut de droit international. In the Addendum to his Preliminary Report, Natalino Ronzitti, pointed out that the topic of wrecks has been on the long-term work programme of the International Law Commission since 2001. The time may now be ripe for this item to be activated.
Some highlights of the Resolution
1.1. “Wreck” means a sunken State ship which is no longer operational, or any part thereof,
including any sunken object that is or has been on board such ship.
1.2. “A sunken State ship” means a warship, naval auxiliary or other ship owned by a State
and used at the time of sinking solely for governmental non-commercial purposes.
2.5. States shall take the measures necessary to prevent or control commercial exploitation or
pillage of sunken State ships, which are part of cultural heritage, that are incompatible with
the duties set out in this Article as well as in applicable treaties.
3. Without prejudice to other provisions of this Resolution, sunken State ships are immune from
the jurisdiction of any State other than the flag State.
4. Sunken State ships remain the property of the flag State, unless the flag State has clearly
stated that it has abandoned the wreck or relinquished or transferred title to it.
12. Due respect shall be shown for the remains of any person in a sunken State ship. This
obligation may be implemented through the establishment of the wreck as a war cemetery or
other proper treatment of the remains of deceased persons and their burial when the wreck is
recovered. States concerned should provide for the establishment of war cemeteries for
wrecks.
15.1. All States should co-operate to protect and preserve wrecks which are part of cultural
heritage, to remove wrecks which are a hazard to navigation, and to ensure that wrecks do not
cause or threaten pollution of the marine environment.
- 9ème Commission, Le régime juridique des épaves des navires de guerre et des navires d’Etat en droit international = The Legal Regime of Wrecks of Warships and Other State-owned Ships in International Law, Rapporteur : Natalino RONZITTI (Preliminary Report, Rhodes Session, 2011)
- 9th Commission, The Legal Regime of Wrecks of Warships and Other State-owned Ships in International Law, Rapporteur : M. Natalino onzitti (Resolution, Tallinn, Estonia Session, 29 Augustus 2015)