Indigenous Fishing Rights, States Rights and Obligations and the Nairobi

Convention on the Removal of Wrecks

Stefan Kirchner

In April of this year, the Nairobi Convention on the Removal of Wrecks (NCRW)
entered into force. This is interesting for coastal communities in particular those
living near major shipping lanes in several regards. Under Article 1 (4), not only
ships but also objects which have been on board, such as containers etc. are
covered by the Convention and Article 1 (5) defines hazards also in the context of
threats to the natural environment and the coastline. Under Article 9, the affected
coastal state can demand the removal of hazardous wrecks at the cost of the
expense of the registered owner of the ship in question. This is important as the
coastal state does not have to bear the burden of the costs of cleanup operations.
The coastal state can set a deadline to have the registered owner to remove the
wreck or do so itself at the registered owners cost. That the registered owner of the
ship does not have to be identical with the operator does not make a difference.
Indeed, the construction found in the Nairobi Convention is similar to other maritime
liability conventions. In any case will the damage be covered because, like other
liability conventions, the Nairobi Convention requires an obligatory insurance under
Article 12 NCRW. This can provide coastal communities with some degree of
protection. It is important, though, that it is the coastal state which has to make such
claims. Indigenous and other coastal communities therefore have to work through the
nation state. This is a normal pre-human rights construction of classical
Westphalian style Public International Law. What will be necessary will be
procedures under domestic law for coastal communities to be able to force the state

to take action. Unlike in the case of the Bunker or the Civil Liability Convention, the
Nairobi Convention allows for a direct claim to removal action and not only to
compensation. This makes the Nairobi Convention interesting for indigenous coastal
communities, which often are dependent on a clean environment. Often there might
be a greater interest in having a clean environment as quickly as possible than
financial compensation years later. This makes a Nairobi Convention an interesting
tool. It has to be noted, that this is of interest also for indigenous coastal communities
in countries which have not ratified the NCRW because the obligation rests on ships
which fly the flag of a state which has ratified the Convention. Therefore coastal
states around the world are well advised to keep the NCRW in mind as do coastal
communities.

Dr. Stefan Kirchner, MJI, is teaching Human Rights at the University of Lapland in
Rovaniemi, Finland, and Law of the Sea at Vytautas Magnus University in Kaunas,
Lithuania. He is admitted to the bar in Germany and specializes in cases before the
European Court of Human Rights and in Marine Environmental Litigation. This text is
a slightly revised version of a blog post written by the author for rladi.com in February
2015.