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Droits de l'Etat du pavillon sur les épaves des navires de guerre et des autres navires d'Etat utilisés à des fins non commerciales

Abstract : The main thesis of this paper is that respect for perpetual title and rights of the flag State to wrecks of its vessels is deeply embedded and broadly respected in international law. The Law of the Sea Convention (1982) and the High Seas Convention (1958) provide that warships, naval auxiliaries and other vessels owned and operated by a State and used only on governmental non-commercial service are defined as States vessels entitled to sovereign immunity. In accordance with international law which does not recognize extinctive prescription there are only three ways through which ownerships of a warship or state vessel can be transferred: a) if a warship is – prior to sinking – captured or surrounded during battle; b) by international agreement; or c) by an express act of abandonment, gift or sale in accordance with principles of international law and the law of flag State. Sunken warships are frequently war graves, are likely to be dangerous because of oil, unexploded ordnance or hazardous or noxious material on board. Sometimes they carried valuable cargo. They were government property when they sank. Are they subject to salvage without the permission of the flag State? Without the permission of the coastal State? A coastal State does not acquire any right of ownership to a sunken State vessel or aircraft by reason of its being located on or embedded in land or the seabed over which it exercises sovereignty or jurisdiction. Access to such warships and vessels and their associated artifacts located on or embedded in the seabed of foreign archipelagic waters, territorial seas or contiguous zones, is subject to coastal State control in accordance with international law. It is the policy of most governments to honor requests from sovereign States to respect, or to authorize visits to, such sunken vessels and aircraft. Access to sunken State vessels and aircraft and their associated artifacts located or embedded in the continental shelf seaward of 24 miles from the baseline is subject to flag State control in cooperation with coastal State. Such a position was taken in 2003 by many maritime States: Germany, Japan, Russian Federation, Spain, the United Kingdom in diplomatic notes addressed to the US Department of State. Title XIV of the Act adopted by the United States in 2004 (Public Law Number 108-375), preserves the sovereign status of sunken US military vessels by codifying both their protected sovereign status and permanent US ownership regardless of the passage of time. The purpose of this title is to protect sunken military vessels and aircraft and the remains of their crews from any disturbance. It provides for archeological research permits and civil enforcement measures, including substantial fines, to prevent unauthorized actions.
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Janusz Symonides, Michal Symonides. Droits de l'Etat du pavillon sur les épaves des navires de guerre et des autres navires d'Etat utilisés à des fins non commerciales. Revista Europea de Derecho de la Navegación Marítima y Aeronáutica, 2012, pp.1-17. ⟨halshs-01906675⟩

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