Oliver Daum is a Ph.D. candidate and research associate at the Chair of Public International Law at the University of Trier, Germany.
On 11 June this year a consortium of mostly British partners and stakeholders successfully lifted a seventy year old German military aircraft – a ‘Dornier Do 17’ (photo left, credit)- from the bottom of the English Channel. It is estimated that about two thousand military aircrafts of the type Do 17 were employed by the Luftwaffe during World War II. According to the Royal Air Force (RAF) museum, the recovered aircraft is supposedly the ‘world’s last surviving Dornier Do 17’ and will be exhibited after conservation at the museum in Cosford, England.
Neither media reports covering the salvage operation of the Do 17, nor the RAF museum have provided any details concerning ownership of the ‘Flying Pencil’ (which is how the Do 17 was called due to its slim silhouette). As Anastasia Strati stated in her 1999 commentary to the Draft Convention on the Protection of Underwater Cultural Heritage, the issue of the legal status of shot and sunken military aircrafts and sunken warships is ‘subject to great uncertainty’.
This comment aims to briefly summarize the major legal issues concerning ownership, State immunity and the appropriate international jurisdictional basis for salvage of the Do 17. I conclude that the Do 17, after the deliberate and successful salvage, is still and was at all times subject to German State ownership. The United Kingdom may not provide a jurisdictional basis to refuse delivery of the Do 17, should it be claimed by the German authorities. However, as the Flying Pencil’s discovery first took place back in 2008, it appears that German governmental authorities, due to the time and possibilities elapsed ever since, were and are not willing to interfere.
Who owns the Do 17?
In legal literature there are two different approaches, which have been taken with regard to the loss or transfer of ownership of sunken warships and military aircrafts. One is the so-called implied abandonment rule. The other is the express abandonment rule. According to David J. Bederman, sunken warships (at least those that sunk before the 20th century) are subject to an implied abandonment rule signifying that loss of ownership of a warship ‘can be implied from the passage of time’. This argument may equally apply to sunken military aircrafts, which is why for the sake of reference, both sunken warships and shot and sunken military aircrafts are referred to in the following as sunken ‘military crafts’.
In contrast, Mariano J. Aznar-Gómez opines that under customary international law a State retains its position as owner of sunken military crafts unless ownership is transferred or lost by, on the one hand, an express abandonment act, either unilaterally or conventionally, or ownership rights having ceased to exist during wartime by way of capture (before sinking) or surrender on the other. According to J. Ashley Roach, title to an enemy military craft during wartime is immediately transferred to the taking State in the moment that State effectively holds physical possession of the military craft, if such transfer is accompanied by a corresponding intention.
It appears to be the better view to apply the express abandonment rule to the cession of State ownership due to the challenges involved in the implied abandonment rule, in particular as far as the required time to have the alleged effect of de jure-abandonment is concerned. This conclusion is arguably supported by the CSS Alabama case, where France initially challenged United States’ title to the sunken warship Alabama, which had been discovered in the territorial sea of France. However, in 1989 France notified the US that title to the Alabama and its artefacts remained with the US.
Since Germany is identical as a legal person with the Third Reich, and in the absence of any relevant statement released by German governmental authorities, the Do 17 still has to be considered German State property by the time it was lifted.
That said, German State ownership involves the requirement to rely on an adequate jurisdictional basis according to which Great Britain is entitled to subject the Do 17 to the measures concerned. In this regard the Permanent Court of International Justice (PCIJ) in the remarkable 1927 Lotus Case stated: ‘[T]he first and foremost restriction […] upon a State is that [...] it may not exercise its power in any form in the territory of another State. [J]urisdiction cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.’ It has to be noted that the principle stated by the PCIJ refers to enforcement measures performed by State authorities only.
Is the salvage operation a matter of international law?
Since any reliable information concerning British State participation in the salvage team is not available, this raises concerns as to the applicability of the aforementioned principle to the case at hand. The question is virulent, because there is no international obligation imposed upon a State to protect another State’s property, which is not protected by State immunity, from interferences by non-State actors subject to its jurisdiction. However, this leaves unaffected subjugation of foreign State property under national law of the forum State.
Therefore, it remains to be examined whether the conduct of the salvage operation may be attributed to the United Kingdom. In this respect, the 2001 Articles on State Responsibility (ASR) provide guidance with respect to the questions of attribution. According to Art. 8 ASR, an act conducted by non-State actors will be attributed, if it is ‘directed or controlled by a State’. As was pointed out in the relevant commentary on Art. 8 ASR by the International Law Commission: ‘[T]he attribution to the State of conduct in fact authorized by [the State] is widely accepted in international jurisprudence.’ Thus, if the salvage operation required prior authorization by British State authorities, and if such authorization has been granted, there is room to argue that the conduct concerned is attributable to the United Kingdom.
But even if this argument may not be followed or is inapplicable, there seems to be a good case to argue in favour of applying Art. 11 ASR. In the commentaries thereto, the provision’s function in relation to Art. 8 may be considered as a catch-all-clause with the effect to encompass situations that fall outside the ambit of Art. 8 ASR. Furthermore, the commentary on Art. 11 ASR states ‘that what is required [under the term “acknowledges and adopts”] is something more than a general acknowledgement of a factual situation, but rather that the State identifies the conduct in question and makes it its own.’ Leaving now aside the question of British State participation in the salvage team, the core issue is whether the provision’s preconditions are fulfilled by the United Kingdom’s institutions simply not intervening officially in the affair of the Do 17. First, it seems to be certain that State authorities were and are aware of the current affair, as a press release of the British Ministry of Defence suggests, thus acknowledging its existence. Second, to adopt the factual situation as its own, a State is not required to express a corresponding political will in this regard. Rather, it is sufficient that ensuing official acts vel non implicitly demonstrate the political will to keep possession of the Do 17. Although this argument may overstretch the legal reasoning given in the 1980 Tehran Hostage Case in relation to subsequent acknowledgment and adoption of acts conducted by non-State actors, to fall silent, if the acknowledgement-test is fulfilled, may not be an option to avoid attribution. Thus, as the preconditions are met, the salvage operation eventually may be attributed to the United Kingdom under Art. 11 as well.
Since the salvage operation is attributable to the United Kingdom, and thus rendering it a matter of international law, the United Kingdom, under the terms of the PCIJ must rely on an adequate jurisdiction basis in order to salvage the Do 17.
Is there an adequate jurisdictional basis for the salvage operation?
In reference to the British Ministry of Defence, the sunken military aircraft has been raised from the Goodwin Sands in the English Channel, which is presumptively located within the British territorial sea. As Roach clarifies, the ‘coastal State does not acquire any right of ownership to a sunken military craft by reason of its being located on or embedded in land, waters or the seabed over which it exercises sovereignty or jurisdiction’. While he concedes that some coastal States take a different view on that point, it is not known that the United Kingdom is among them.
That said, the location of the Do 17 within the British territorial sea was not legally irrelevant. For instance, if a wreck forms an obstacle to the exercise of the right of innocent passage guaranteed by Art. 17 et seq. of the UNCLOS and corresponding customary international law, the coastal State may engage in legitimate operations to remove the navigational obstruction or to prevent any damage to the marine environment. In the case at hand, there are no indications that the Do 17 constituted a hazard for shipping or the protection of the marine environment for which reasons the military aircraft had to be salvaged. But even if that was the case, it would not allow drawing any conclusion on the issue to keep possession – following the salvage operation – of the Do 17 with the intention to exhibit it in the RAF museum.
As every coastal State, and prior to the salvage operation, the United Kingdom was in the position to regulate access to sunken military crafts and their associated artefacts located on the seabed of the internal waters or territorial seas (and if existent, archipelagic waters). In this regard, it is open for discussion whether Germany merely would have had to give notice about intended activities directed to the Do 17, or whether it had to enquire permission to access to – leaving salvaging aside – the Do 17 with the British governmental authorities.
Last resort: the 2001 UNESCO Convention?
Though the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage has been ratified by 37 States and entered into force on 1 February 2009, both the United Kingdom and Germany are not among the States parties. In addition, the 2001 Convention does not enjoy great popularity among other traditional major seafaring States. It is because of this reluctance to ratify the Convention that one should even refrain from drawing general considerations from the rules and principles contained therein.
To conclude, and in the absence of any known bilateral or other conventional agreement between the United Kingdom and Germany governing the case, the United Kingdom may not rely on an adequate jurisdictional basis in order to salvage the Do 17 under international law.
Is the Do 17 entitled to State immunity?
As mentioned above, the conduct of the salvage operation is attributable to the United Kingdom, thus making the salvage operation an international act conducted by that State. Apart from that circumstance, the legal issue as to whether a State within its territory has an obligation to protect another State’s property entitled to State immunity – not necessarily being simultaneously under the protection of the law of diplomatic and consular relations, as it was in the 1980 Tehran Hostage Case – from interferences by private persons or entities is far from being settled. However, in this comment it may be argued that such an obligation to bar private persons or entities from interferences with a State’s property accorded State immunity may be drawn from the foreign State’s sovereignty, since State immunity, in general terms, shall maintain and preserve a State’s capacity to act on the international plane. This capacity to act internationally would be at stake, if non-State actors were allowed to act in contravention thereof. Hence, is there ground to assume that the United Kingdom violated its (alleged) obligation to protect the Do 17 against private interference, if attribution was not possible in the case at hand?
To this effect, since military crafts are usually owned by the State and operated for governmental non-commercial purposes, it is a well-established rule in international law that military crafts are allotted State immunity. Therefore, the Do 17, by the time it was shot down and sunk, enjoyed State immunity.
That said, it is crucial to differentiate between military crafts still in service and those being sunken, i.e., crafts being out of service. With respect to sunken warships, Bederman suggests a functional approach according to which a sunken warship would not be a ship in the strict sense anymore, and thus sunken warships would not be under the special protection of State immunity as for instance embodied in Art. 32 in conjunction with Art. 29 of the UNCLOS. Bederman’s approach would imply that the sunken Do 17 did not enjoy immunity anymore. In contrast thereto, Roach asserts that ‘[i]nternational law recognizes that State vessels, aircraft and spacecraft, and their associated artefacts, whether or not sunken, are entitled to sovereign immunity.’ The sunken Do 17 would thus be entitled to State immunity.
In order to figure out whether the Do 17 was still subject to State immunity by the time it was lifted, the following remarks shall be made. First, Bederman’s functional approach is convincing. After a military craft has sunk it ceases to exist as a military craft as such and thus instantly loses its entitlement to State immunity. That said, notwithstanding the absence of relevant State practice the argument could be made that sunken military crafts may still contain objects of military character such as documents, charts, instruments, weapons, etc., with regard to which the owning State has an interest to keep these objects classified or protected from other States. In this respect, it is submitted that the sunken military craft constitutes a ʻmilitary security containerʼ of the owning State. If this line of argument is followed, the sunken military craft would not enjoy continued State immunity accorded to military crafts still in service, but a different, altered standard of protection deriving from State immunity. The State immunity accorded to a sunken military craft would now serve a new governmental non-commercial purpose and apply immediately after the State immunity accorded to military crafts still in service has expired. How long the period of altered State immunity would last, would be open for discussion.
To conclude, the sunken Do 17, for a period of time, was accorded altered State immunity due to its service as a security container for military purposes. However, seventy years after it was shot down and sunk, it can be questioned, whether the objects on board the Do 17, if any were still existent, were still considered classified because of their military use. This does not seem to be the case and thus, the Do 17, by the time of its lifting, was not accorded State immunity as Germany no longer conducted acta iure imperii by using the Do 17 before the salvage operation.
Finally, it is worth mentioning that the Do 17 was not entitled special treatment due to its character as war grave, for there were no crew members buried in the military aircraft, as the British Ministry of Defence clarified.
The author is grateful to Professor Alexander Proelss for his exchange of views on this topic.