Can't Touch That? Possible Solutions to the Problems of Sovereign Immunity Attaching to the Sunken Warships of Chuuk Lagoon

• Author: Michael Kirby
• Position: LLB (Hons) (Griff), B Pols & Gov (Griff). This paper is based upon one submitted as an Interdisciplinary Research Project. I would like to thank Professor Mary Keyes, Associate Professor Craig Forrest and the anonymous reviewer for their helpful comments. I would also like to thank Captain Ken Blackband, Dr. Ron Levy, Jan Rossi and Will Barker...
• Pages: 82-94

(2014) 28 ANZ Mar LJ

82

CAN’T TOUCH THAT? POSSIBLE SOLUTIONS TO THE PROBLEMS OF

SOVEREIGN IMMUNITY ATTACHING TO THE SUNKEN WARSHIPS OF

CHUUK LAGOON

Michael Kirby*

The wrecks of 52 World War II era warships are corroding on the floor of a pristine lagoon in the Federated

States of Micronesia (‘the wrecks’). The corrosion is slowly causing the hulls of the wrecks to lose their

structural integrity. The inevitable conclusion is that the wrecks will eventually break up. Inside these wrecks

are millions of litres of heavy bunker oil, meaning that when the oil spills the pristine marine environment and

the local economy will be devastated.

Until now, no action has been taken by the Federated States of Micronesia due both to legal uncertainties as to

whether the Federated States of Micronesia had legal authority to interfere with the wrecks and a lack of

financial resources to undertake the very costly removal process. The process has undoubtedly been complicated

by the fact that Japan claims ownership over the wrecks but has not provided assistance in dealing with the

environmental problems that have stemmed from them. This paper attempts, first, to suggest a solution that is

both legally defensible and financially feasible for the Federated States of Micronesia and, second, to explain

why Japan may have been unwilling to assist the Federated States of M icronesia to solve a certain

environmental problem. I will argue that there are two options available to the Federated States of Micronesia:

first, the oil can be salvaged fro m the wrecks or, second, the rights to the oil can be sold in exchange for its

removal. The Federated States of Micronesia is entitled to deal with the wrecks because preventing an oil spill

that will cause signific ant damage to the coastline and mar ine environment within its territory is con sistent with

territorial sovereignty a nd the rights of the coastal State. I will also show that Japan is unwilling to remove the

oil because it may not be cost efficient for them to do so.

This paper will be developed in three parts. The first part will examine the current context, demonstrating how

the ships were lost and the extent of the environmental problem . By way of background, I will consider why

Japan has not sought to assist the Federated States of Micronesia despite continuing to assert title to the wrecks.

In the second part, I will explain the law that surrounds sunken warships and the role played by sovereign

immunity in preventing interference with warships. This section will also demonstrate th at the salvage of the

cargo to prevent dam age to the marine environment is consistent with rights found in treaty and customary law

and that a state of necessity could be invoked to ensure that salvage operations could be undertaken. The third

part will explain how an operation to remove the oil could be carried out and the obstacles posed by modern

salvage law.

This research has implications for the rights of coastal States to salvage sunken warships, the laws of

environmental salvage, immunity and state responsibility. It should also be noted that whilst I have made every

attempt to accurately represent the legal and factual matrix in the Federated States of Micronesia, the small and

developing nature of the State meant that recent data and primary legal sources were often difficult to obtain.

1 Background

The Federated States of Micronesia is an archipelagic nation made up of four groups of islands spread over

more than two million square kilometres of the Pacific Ocean. It is also one of the world’s poorest nations with

a population of just over 102,000 people.1 The Japanese navy militarily took possession of the islands that now

make up the Federated States of Micronesia and other surrounding island nations in 1914. Japan was granted a

League of Nations mandate over the islands at the end of World War I. After the defeat of Japan in World War

II, the islands that now comprise the Federated States of Micronesia became part of the Trust Territory of the

Pacific Islands under the administration of the United States.2

* LLB (Hons) (Griff), B Pols & Gov (Griff). This paper is based upon one submitted as an Interdisciplinary Research Project. I would like to

thank Professor Mary Keyes, Associate Professor Craig Forrest and the anonymous reviewer for their helpful comments. I would also like to

thank Captain Ken Blackband, Dr Ron Levy, Jan Rossi and Will Barker for their feedback on e arlier drafts. All errors are my own.

1 World Bank, Gross Domestic Product 2012 (1 July 2013) <http://databank.worldbank.org/data/download/GDP.pdf>; Officer of Statistics,

Budget and Economic Management, Government of the Federated States of Micronesia, Census 2010 – Population (14 February 2013)

<http://www.sboc.fm/index.php?id1=Vm0xMFlXRXlVWGhUYmtwT1ZrVTFVbFpyVWtKUFVUMDk>.

2 John Richard Steincipher (ed), Code of the Trust Territory of the Pacific Islands (Book Publishing Company, 1970) preface 11; Trust

Territory of the Pacific Islands 48 USC § 1681.