Legal Committee, 101st session, 28 April to 2 May 2014 (opening address)

 

Good morning, distinguished delegates and observers. 

Welcome to the 101st session of the Legal Committee. 

I was really saddened to learn of the loss of lives caused by the tragic accident of the ferry Sewol on 16 April 2014. 

 

Nearly 2 weeks later, today, I understand that serious efforts for searching for the bodies of all victims are still continuing and investigations into this tragic accident are underway and I hope that IMO will be informed of the outcome of the casualty investigation to find the causes of the accident and, in particular, any findings to suggest any need for improvements of safety standards and recommendations already established by this Organization, if the casualty investigation were to reveal the need for such action at the international level.

Recently, we have encountered a number of serious accidents involving domestic ferries in developing countries and, under the Integrated Technical Cooperation Programme, we have a specific project on domestic ferry safety.  I am of the opinion that the time has now come for IMO to step forward to take further action to improve the safety of passenger ships carrying hundreds of the general public regardless of the nature of their voyage, either domestic or international.  Only IMO can take such action to improve safety at sea.

That same day of the tragic accident, I wrote to His Excellency the Ambassador and Permanent Representative of the Republic of Korea, to convey profound sympathy and compassion on behalf of the entire membership of IMO, the Secretariat and myself, to the families, friends and colleagues of the victims.  On the occasion of the first Committee meeting after the accident, today, I suggest the Committee observes a minute of silence to show our grief and compassion and our determination to further enhance the safety of life at sea.

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Distinguished Delegates,

During this session of the Legal Committee, we will celebrate the 25th anniversary of the establishment of the International Maritime Law Institute (IMLI).

It is my pleasure, therefore, to cordially invite you all to attend the special event I will be hosting this afternoon to mark this important occasion.  This will begin at 4.45 p.m. in this meeting room, followed by a reception in the Delegates’ Lounge.

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Distinguished Delegates,

I am pleased to note that the Committee at this session will be discussing the effective implementation of IMO conventions, which is of course this year’s World Maritime Day theme.

We may ask ourselves what is the point of spending so much time and effort on developing and adopting an international convention if that convention does not receive the required ratifications to enter into force in a reasonable period of time.  There is indeed very little point at all.  Our work does not stop with the adoption of a new instrument.  What is additionally required is their full and effective implementation.

 

I believe that this year’s theme offers a strong incentive for the Organization, Member States and the shipping industry to make every effort to achieve better results in ensuring effective implementation of IMO conventions.

This is of course also why the Organization dedicates so much effort to the Integrated Technical Cooperation Programme in order to facilitate the systematic and consistent implementation, worldwide, of existing instruments, through the provision of assistance and support to individual Member States who have requested help.  The ITCP’s resources are limited, however, and much more work needs to be done.  I feel very encouraged by the development of country maritime profiles, which are to provide the basis for the development of the ITCP in future biennia.  Close to one third of Member States (59) have already decided to input their data.  Later this week, under agenda item 7, you will be briefed about the latest developments by the new TCD Director, Mr. Nicolaos Charalambous.

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Distinguished delegates,

I wish to draw attention to treaty instruments which have been awaiting fulfilment of their entry into force requirements for a long time, in order to once again emphasize the responsibility that rests upon governments to work actively for ratification or accession.

I am very glad to start by reporting that on 14 April 2014 one of these instruments, namely the Nairobi International Convention on the Removal of Wrecks, 2007, was ratified by Denmark. Accordingly, the Convention will enter into force on 14 April next year. This Convention provides a sound legal basis for coastal States to remove from their coastlines, wrecks which pose a hazard to the safety of navigation or to the marine and coastal environments, or both. It will make shipowners financially liable and require them to take out insurance or provide other financial security to cover the costs of wreck removal. It will also provide States with a right of direct action against insurers.

I am also glad to report that the Protocol of 2002 to the 1974 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea has now, at last, entered into force.  This was only last week, on 23 April, 12 years after adoption.  As you know, the Protocol provides an improved legal regime of civil liability designed to ensure prompt and adequate compensation to passengers for loss of life or personal injury and for loss of luggage.  I am sure you will agree that the implementation of a mandatory insurance provision with respect to loss of life or personal injury of members of the general public traveling by sea has been much overdue!

I now wish to comment briefly on the urgency of increased ratification of a number of important conventions, in no particular order of priority.

• The number of ratifications of the 2004 Ballast Water Management Convention currently stands at 38, which is well above the required number of 30.  However, the fulfilment of the stipulated threshold tonnage value still falls short of the 35% required, though only by just under 5%.  I am still hopeful that the Convention will attract the required additional ratifications within the current biennium, considering that a realistic implementation schedule, in particular for existing ships, was adopted by the Assembly at its twenty-eighth session.  We all know the serious concerns raised by the shipping industry on the process of sampling and control by port State authorities.  I understand that the industry intends to submit their proposals to MEPC 67 and I hope Member Governments could seriously consider the industry’s concern and decide on how we can proceed to the implementation of the BWM Convention as soon as possible.

• Since its adoption five years ago, the 2009 Hong Kong Convention on ship recycling has gained one ratification only, deposited by Norway.   I was therefore particularly pleased that France announced, at the recent MEPC, that it expects to deposit its instrument of ratification within the next two months.  However, I would urge the leading ship recycling countries, such as Bangladesh, China, India, Pakistan and Turkey, to now also come forward and accelerate the process of ratification.  Such action would provide much needed protection against hazardous or toxic materials to the workers employed in their ship recycling facilities, as well as help to protect the environment.  The Hong Kong Convention is the best international instrument currently available and I encourage Governments to ratify it as soon as possible.

• As regards the 2010 HNS Protocol, I am disappointed that the number of signatories has continued to stay the same, with eight countries having signed it, subject to ratification or acceptance, and that still not a single ratification has been secured.

Due to this impasse, we are still a long way off from being able to provide an assurance that a viable international legal regime will be in place – and operational – to compensate victims for loss or damage suffered, should a maritime incident involving hazardous and noxious substances affect third parties.  I would request especially those countries importing major volumes of HNS substances to weigh uncertainties over the political backlash and the cost of an HNS incident in the absence of a compensation regime, against the known benefits that will arise from action to ratify or accede to the Protocol and deposit the instrument of ratification with the Organization. I would urge all Member States to reconsider their position and to take a firm decision, once and for all, to promptly prepare for ratification and national implementation of the Protocol.

Further in this regard, I note that there are two submissions from Member States (Canada and Germany) reporting on how their respective governments have coped with national implementation.  The insights these provide should encourage others to learn from such individual experiences and I, therefore, welcome this kind of open information exchange and would strongly encourage it.  Likewise, I welcome the proposal (by Canada, Denmark, France, Germany, the Netherlands and Norway) to relaunch the HNS Correspondence Group, as this may bring the required catalyst for this exchange and cooperation.

• I am pleased to report that the 2012 Cape Town Agreement on the safety of fishermen and fishing vessels now has two Contracting States.  The signature by Norway, on 15 July 2013, and the signature by Iceland, on 26 November 2013, signify their consent, as Contracting Parties to the 1993 Torremolinos Protocol, to be bound by the Agreement under the simplified procedure set out in article 3(4).  In addition, South Africa has signed the Agreement, on 28 November 2013, subject to ratification.  I strongly encourage Member Governments, in particular those with large numbers of fishing vessels, to sign the Agreement as soon as possible. Once it enters into force, it will noticeably enhance safety standards for fishermen and fishing vessels, which should significantly reduce the number of fatalities.

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Distinguished delegates,

Focusing on the wider and more complete implementation of measures already in place is also of significance.  A case in point is the IMO guidance on places of refuge for ships in distress at sea, an issue which you are invited to consider under agenda item 11 concerning “Any other business”.

There is no shortage of reports on the recurrence of incidents in which ships were denied the immediate access they needed to a suitable place of refuge, such as a port or sheltered waters closer to shore, where salvage operations could be carried out more safely and with reduced risk of marine pollution.

There has also been no shortage of discussion at IMO, usually following reported incidents.  My principal concern is that the existing measures adopted by IMO are the best measures we could agree on but, in reality, those measures alone might not be effective to resolve actual cases where incidents require places of refuge urgently.  In other words, the question appears to be not so much whether the IMO measures are adequate, but rather what more could be done at the operational level including communication and consultation between ship operator and shore authorities and the availability of adequate insurance for compensation for potential damage to the environment and local shore community.

The IMO measures are, first, the Assembly resolutions A.949 and A.950.  They both were adopted in 2003 and pertain to, respectively, guidelines on the provision of places of refuge for ships needing assistance and recommendations on the establishment of maritime assistance services by coastal States.  In addition, Guidelines on the control of ships in an emergency were approved by the MSC in 2007 by way of a circular (MSC.1/Circ.1251), while the 1989 Salvage Convention requires State Parties to “take into account the need for cooperation between salvors, other interested parties and public authorities”.

Perhaps the time has come to take the proverbial deep breath and look carefully into cases of recent incidents and discuss whether there are perhaps gaps that need addressing or misunderstandings of how the established measures should best be applied.  We should also bear in mind that these questions are not only relevant to the success of salvage operations but also, and not least importantly, to the availability of insurance for compensation for pollution damage in the case of hazardous and noxious substances, in particular.

Without the assurance of a rigorous compensation scheme for potential pollution damage, serious concerns of the authorities on potential pollution and danger to the public seem not to be alleviated.

In the very recent case of Maritime Maisie, I personally contacted the flag State, the State of the operating company and the coastal States seeking information on changing situations and also contacted the P&I Club representative seeking any potential improvement in the field of insurance for compensation for potential damage.  I am looking forward to any further progress in my informal consultation with the industry and insurance community.

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Distinguished delegates,

The Organization should pursue a number of other important activities as a matter of priority.  I wish to see top priority accorded to enhanced accident prevention with the aim of reducing the current level of approximately 1,000 lives lost at sea every year by half.

In this context, I also would wish to explore ways, in cooperation with relevant UN organizations such as the UN High Commission for Refugees, to help prevent the unsafe as well as inhumane maritime activity of transferring large numbers of helpless people in unsuitably small, ill-equipped and unseaworthy craft, which cannot possibly be in compliance with recognized international safety regulations established by this Organization.

 

Equally urgent is the redoubling of efforts for the eradication of piracy and the release of all seafarer hostages. Recent incidents off the coasts of west and central Africa have demonstrated the need for all countries in the region to cooperate and to communicate effectively.  The Assembly, at its twenty-eighth session, adopted resolution A.1069 endorsing the Code of conduct on the prevention and suppression of piracy, armed robbery against ships and illicit maritime activity in the Gulf of Guinea.  Meanwhile, the first – and generous – donations have been received into the West and Central Africa Maritime Security Trust Fund to help the Member States in the region to improve maritime governance.

 

Piracy has of course been on the Legal Committee's agenda for a number of years, including with reference to the pursuit of statistics and other relevant data on the investigation, apprehension and prosecution of alleged pirates and armed robbers, and the consideration of the reports on the outcome of the meetings of Working Group 2 of the United Nations Contact Group on Piracy off the Coast of Somalia.

In the context of maritime crimes and maritime terrorism, although the 2005 SUA treaties are in force, we should continue to make every effort to secure their widest possible ratification and effective implementation. This is why I welcome the UNODC initiative reflected in the draft Counter-Terrorism Legal Training Curriculum which aims at assisting governments as well as practitioners in identifying, understanding and effectively implementing the 2005 SUA treaties.

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Distinguished delegates,

Without seafarers, there could be no shipping and the world economy would suffer.  It is therefore only right and fair that the Organization, and your Committee in particular, has worked hard to secure basic rights for seafarers and their families, such as adequate compensation for loss of life or personal injury and adequate protection in cases of abandonment.  Thanks to the excellent cooperation in the joint IMO-ILO Ad Hoc Expert Working Group, amendments to the 2006 ILO Maritime Labour Convention have been prepared giving a binding solution on these two issues.  I am very pleased to report, therefore, that the proposed amendments were adopted by the ILO’s Special Tripartite Committee earlier this month and that they have now been submitted to the International Labour Conference in May for approval.  Once again, this clearly demonstrates commitment to ensuring that appropriate and adequate social provisions are in place – and enforceable – to protect seafarers.

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Before I conclude, I would like to make one announcement.  Since the retirement of Rosalie Balkin, former Director of the Legal Affairs and External Relations Division, the selection process for the new Director has now been completed.  I will appoint Mr. Frederick Kenney, Rear Admiral in the United States Coast Guard and its former Judge Advocate General to the post of Director, Legal Affairs and External Relations Division with effect from 27 May this year.

At the beginning of this year, I appointed Mr. Gaetano Librando, Acting Director, and I appreciate you, Gaetano, for your service in this transitional period.  Handing over will commence at the end of May and Mr. Librando will continue to serve the Organization till his retirement over this summer.

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Distinguished delegates,

It remains for me to wish you every success in your deliberations this week.  The Secretariat will, as always, support the meeting and your Chairman, Dr. Kofi Mbiah of Ghana, to the best of its abilities.

Thank you.
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