volume 14
september 2011

The legal battle against offshore radio and television

Some reflections on the REM Island Project

by Hans Knot

In the early 1960's a consortium of publishers and captains of industry build an artificial island just outside the territorial waters of the Netherlands to provide the country with its first batch of commercial television. Breaking both with the non-commercial character as well as the lack of popular entertainment of public television, the station, aptly called 'TV-Noordzee", was an instant success. The first programmes aired on August 15th 1964. The station was shortlived, however, as is was closed-down only four months later, on December 17th of the same year, by the the Dutch government. Hans Knot looks back at this watery episode in the history of Dutch television.

Right: Station ident of TV Noordzee

The advent of commercial radio and televison in the Netherlands. In the first years of the 1960's the NTS, Nederlandse Televisie Stichting (Foundation for Dutch Television) in full, which was the umbrella organisation for the long series of mostly denominational public broadcasting societies in the Netherlands, had to inform its partners within Eurovision about the developments happening on the High Seas with the offshore radio stations, often wrongly called "the pirates." I want to highlight two of those to show how the members of the board thought about the "REM Island Project." Let's first go back to 1963.

Since 1960 the offshore radio station Radio Veronica had been operating from a ship moored off the Dutch coast. With its partly light music programmes and commercials, it had proved a great commercial success. So far the Dutch government had not taken any action whatsoever against this activity, which in the Netherlands was partly regarded as illicit. Many times in the Dutch newspapers articles were published and mentioned that soon action would be taken against Veronica. Several reasons were given, mainly regarding the station's interference on several distress frequencies. In 1963 a group of six people formed the REM Company, the Reclame en Explotatie Maatschappij, with as main backer Mr. Verolme from Rotterdam who had made a big name for himself in the shipping industry. Their aim was to set up an offshore radio and television station from an artificial island, purposely built for that end. Construction took place at a shipyard in Cork, Ireland, but it would take up to May 16th 1964 before there was any assembly activity on the Northsea, off the coast of Noordwijk.

When the people behind the REM Island project had announced their plan to put an artificial platform in the Northsea, off the Noordwijk coast, with the aim putting a radio and television station on the air, Dutch NTS had to inform Eurovision. "The success of Veronica most probably gave encouragement to the forming, at the end of last year, of a limited liability company, for the purpose of putting on commercial television programmes, in this case also via a transmitter located outside Dutch territory. This time however, its location will not be on a ship, but on an artificial island. It will be a construction similar to those used in oil-drilling operations out at sea. This initiative has been given enormous publicity, also because of the fact that for a number of years past there has been much action in the Netherlands in favour of commercial radio and television."

Left: Building plan for the Rem Island Project (click on the image for a larger view)

Of course, when you get the historical facts right, the Dutch government had actually and intentionally forbidden the existing broadcasting organizations to air commercial publicity, in any form whatsoever. The above information, as an aside, was not complete too, as nothing was said about the planned radio station Radio Noordzee, which was to be broadcasting from the same island. With the plans for the Radio and TV Island nearing completion, an interesting discussion was being carried on in the Dutch press with regards to the legal aspects of the case. No other offshore project had so endless publicity in a limited period than the REM island project. So the NTS had to report once again to their partners within Eurovision and did so in a report titled Coastal States and ex-territorial Sovereignty:

"The question of artificial islands outside the territorial waters raises some involved points of international law. The pens of leading jurists and experts on international law have been kept very busy, and the main point at issue seems to be: "has the Dutch government the power to take action?""

It was the Dutch Minister of Justice in those days, Mr. Scholten, who announced in the press that he soon hoped to submit a draft Bill, which would make it possible to legally regard artificial islands, located in that part of the continental plateau, over which the Netherlands possesses sovereign power, as belonging to Dutch territory. And so the Press manager of the NTS provided the other organisations within Public Radio, working together within Eurovision with the next information: "A case point, the Minister told Dutch Parliament, is that the march of technical progress opens the possibility — if we take things to the extreme — of an artificial archipelago arising in the extra-territorial waters where no body of law of any kind would be applicable, and where, so to speak, murder and theft could be committed without anybody being able to do anything about it."

Right: Artist Impression of the REM Island Project (click on the image for a larger view)

Sovereign rights outside territorial waters. The principle of a coastal state being empowered to exercise sovereign rights outside its territorial waters was laid down in the Treaty of April 29, 1958, relating to the continental plateau. This Treaty also covered the division of the plateau. Two of its provisions concerned artificial islands. Article 5 of the Treaty gave the coastal state the right to establish artificial islands on the continental plateau for the purpose of exploring and exploiting the natural wealth of the plateau and to institute a security zone around such islands. Article 2 of the Treaty ruled that only the coastal state concerned could lay claim to the seabed and subsoil of the continental plateau, to the exclusion of all others. The same article also specified these rights as aimed at the exploration and exploitation of natural resources.

How was one to interpret these legal provisions? In the daily newspaper De Tijd in February 1964, comments could be found from Emeritus Professor F. Duynstee, who worked at the Catholic University of Nijmegen and was an expert on legal philosophy: "In common law it is a standing rule that a vessel refusing to fly or carry a flag lays itself open to arrest. A ship that cannot produce such evidence of nationality by reason of its being unable to carry a flag, automatically falls under the authority of the state which sends the intercepting warship." He concluded his comments on the REM island with: "To my mind it is a serious lack on the part of the Netherlands Government that, as far as is known, no such attempt to ascertain the facts has been undertaken."

Other comments were made in Nederlands Juristenblad (Dutch Jurists' Journal) of March 14th 1964 where Mr. M.A.W. Verstegen took up the cudgels in opposition to Professor Duynstee: "There are only three instances mentioned in Article 22, 1, of the Geneva Convention relating to the High Seas, in which a warship may exercise the right of flag-verification. These being (a) piracy, (b) slave-trading, and (c) in the case of a vessel flying a strange flag, or refusing to show its flag, being suspected of having the same nationality as the intercepting warship."

Left: The REM Island

The press department of the NTS informed their colleagues, within the Eurovision, about a plea for action against the TV Island, as soon as it would become active. The plea has been done by Professor J.M. van Bemmelen who stated: "It is an intolerable thing for a state to have artificial islands rising out of the open sea at only a short distance from its coast. From a military point of view alone, this cannot be tolerated, but — and this holds good in peacetime and quite apart from military considerations — on such an island there is also a complete absence of legal jurisdiction. Admittingly, each and every country applies its criminal laws differently in the international sphere, but Dutch criminal law, for instance, would not apply in the case of punishable offences committed on such an island. If, for instance, a Dutch national were to murder another Dutch national on the island, this fact would not fall under the Dutch Penal Code, and in many cases crimes committed on artificial islands would not be the subject of the criminal legislation of any other country."

Long time before the Geneva Treaty was signed in 1958, a most authoritative writer in the field of maritime law gave an opinion on the subject of artificial islands. For this, we have to go back to 1932, when the French jurist Gilbert Giddel published his Le Droit International Public de la Mer. Here he stated that the principle of the freedom of the sea does not allow for artificial constructions, not serving shipping or aviation and which cannot be regarded as ships or fishing contrivances, being erected in open sea. The statement of Professor Duynstee, mentioned earlier, hinged his arguments of the Giddel statement as well, and in this connection interpreted the Geneva Convention as implying that no private person could, on his own authority, set up or facilitate the building of an artificial island.

Right: Crew waving from the REM Island

An academic debate. Professor Tammes from the Amsterdam University shared in 1964 the opinion of his colleague from Nijmegen, Professor Duynstee, that a television island could not claim the protection offered by international agreements covering the freedom of the sea. He regarded it as an unlawful obstruction of such freedom, against which the Netherlands Government had to take action. And these sentiments, again, were shared by Professor François, who wrote: "Even if the direct aim which formed the motive for setting up the island, does not constitute a danger to the coastal state, there is no guarantee whatsoever that no activities will be undertaken on it which might impair the security of the coastal state, and threaten the maintaining of the regulations, public morals and legal order on the state's territory. If the coastal state is content to let things slide in this respect, then other states could intervene on the grounds that the creating of a legal vacuum in the world order of states constitutes a threat to their interests which cannot be tolerated. The 'freedom of the sea' by no means requires tolerations of such islands, and is not in the least served by them."

He went on to say that no special authorization was needed to employ force against vessels on the High Seas which endangered the interest of the coastal state and which were not carrying the flag of another state: "The same goes for a TV island, and a motive for action could be that the government and the majority of the people's representation regard transmissions emanating from the island as an infringement of the radio or television legislation, as drawn up and approved by democratic parliamentary procedure."

Left: Service area of the REM Island Project (click on the image for a larger view)

Not all experts took this stance. In the Dutch Jurists' Journal, for instance, Mr. M.A.M. Verstegen referred to Article 5 of the Convention: "Professor Duynstee cites the article incompletely and therefore wrongly. It concerns the exploring and exploiting of the natural wealth of the plateau. Article 2 of the same Convention rules that only in relation to these two purposed does the coastal state possess sovereignty over its part of the continental plateau. In respect to a TV Island the regime of the open sea takes effect, and so the rulings of the treaty concerning the continental plateau are irrelevant. As long as those involved refrain from exploring or exploiting the natural resources of the seabed they do not violate a claim exclusive to the State of the Netherlands."

Verstegen also added that in case an artificial island should obstruct the free movement of shipping on the high seas, one could speak of a violation of the freedom of the sea, and in that case the erection of such an island could be regarded as illegal. However, the international law in 1964 gave no directives for its removal. The Geneva Agreements did not provide for such a contingency, and the law in those days did not cover such innovations. Although at that stage no assembly of the island had yet taken place, the people within the NTS and also the inhabitants interested in the then forthcoming project were greatly interested to know what steps the Dutch Government would take and how these would be motivated. One thing was sure: the men of law were not in agreement which each other and the verbal controversy went on. However, the general opinion was that, should the Radio and TV station be realised from an artificial platform, action instead of words were expected of the Dutch government and also most of them thought this would not take too long to materialize.

Right: Sometimes it was rather cold in the technical room on the REM Island

Test transmissions. During the month of May 1964 work in Cork ended and so the platform and the other necessary parts were brought to the Dutch coast to be assembled. The island strongly ressembled the oil rigs of those days. The legs of the structure were sunk into the seabed and subsequently filled with concrete. Off the coast of Noordwijk, the sea was some sixty feet deep and the platform, including the building, rose some 350 feet above the sea-level. The building incorporated studios and technical rooms and also accommodation for the crew. The roof was also used as a helipad. Tendering was not only done by air, but also with supply vessels.

Test transmissions from Radio Noordzee were first aired on July 19th 1964, using 1071 kHz (280 metres) but restarted a few days later at 1485 kHz (202 metres). Another change in frequency was done on July 23rd when 1400 kHz (214 metres) was chosen. Six days later official radio programming started in the Dutch language. A television test transmission was aired for the first time on August 15th 1964 on channel E 11 with an ERP of proximally 7,5 kW. Regular television programmes started on September 1st. The new station got enormous press coverage and thousands of people in the western parts of the Netherlands went out to buy special receiving antennas. Mostly American and English series were aired.

The British Press also paid attention to the new stations. In an article, published on August 24th 1964, the Television Mail for instance wrote: "From Holland, where the grandfather (grandmother?) of all ship radio stations, Radio Veronica, first started, now comes world's first off-shore TV station, TV Noordzee. TV-Noordzee started 2-hour daily test transmissions this weekend — and current figures already show that 250.000 homes are regularly viewing these transmissions. The public interest in this 1-Million Pounds enterprise has been overwhelming. And already viewers have reported acceptable pictures up to 100 miles away from the man-made island, 6 miles of the Dutch coast in the North Sea. What is behind this outstanding example of Dutch commercial enterprise? It seems from wholesale public dissatisfaction with the non-commercial State-run Dutch NTS TV service. A group of powerful Dutch businessmen, in cooperation with the owners of the Verolme shipyard in Cork, where Radio Caroline were fitted out, formed themselves into the REM, Reclame Exploitatie Maatschappij, with the object of establishing an entertaining alternative to NTS."

Left: Programmes in the making in the Amsterdam studio

Reading this article now, one wonders if the journalist knew what he wrote. Just a few testtransmissions, for only some hours, on a unusual frequency for most aerial owners, and coming from a new television station sure couldn't bring in 250.000 homes watching these tests. Remember, in 1964 television was still in its infancy. Moreover, to view the programmes a special antenna had to be bought, which were not available yet in such amounts. Next to that, the author was wrongly informed about what did or didn't happen in the Irish Cork, as the Radio Caroline vessels MV Mi Amigo as well as MV Fredericia were all rebuilt into floating radio stations in the harbour of Greenore. Of course the owners of the REM project could have used a ship for television transmissions but knowing the immense technical difficulties in transmitting TV from a ship; they decided that a seabed-based island in international waters would be the most simple and perfect answer.

Television Mail went on to write: "Despite constructional setbacks, the island was towed to its position in June and now transmissions are under way. Despite the popular support for the project, there is enormous official opposition to the idea. The Dutch government, presently in recess, intends to legislate against this and any similar scheme on its reassembly; but it seems that its job will be very hard."

The island only hosted a small presentation studio and most of the programmes were made up on film in Amsterdam, including continuity inserts. During the test programmes no commercials were included. For programming London's Lloyd Williams Associates were involved on advising and buying programmes for the REM project. During the third week of August 1964 it was announced that a lot of English language series from the United States and England were bought. Series included, amongst others: The Invisable Man, Danger Man, Robin Hood, The Saint, Super Car, Mr. Ed, The Bob Cummings Show, My Three Sons, Victory at Sea, Ben Casey and Rin Tin Tin. The television studio on the REM island was equipped completely by RCA from the USA.

Right: Two announces of TV Noordzee: Hetty Bennink and Marian Bierenbroodspot

Acquiring commercials. Most surprising about the REM Island Television programme schedule was to keep the station off the air between the hours of 20.00 and 22.00 hrs to give the NTS and other public broadcasters a reasonable proportion of the evening to itself. It was announced that proposed transmission hours would be from 18.00 till 20.00 and from 22.00 up till 23.00 hrs CET as well as possible an extra hour on Sunday mornings. Around that time also, it was mentioned, the station would not carry any newscast as negotiations with international news film cartels had not been successful and it was doubted they would succeed in getting an official contract with them.

More information was found in Television Mail on September 11th 1964: "The J. Walter Thompson Company of Amsterdam was fortunate enough to place the first spot ad to be transmitted on TV Noordzee (for Johnson's Pledge) so it was to this international agency that I went to find the Dutch agency world's view of TV Noordzee. JWT Amsterdam is situated right on the outskirts of the city in a pleasant new estate on the end of the Number 2 tram line."

The interviewer, whose name wasn't mentioned, spoke to Peter Yeo, who was account executive and one of the six English staff out of the agency's total from hundred and to media director Neils Augustin: "There seemed to be no doubt that both JWT in particular and agencies in general are welcoming the station with open arms. But they too have problems, though theirs are somewhat different to REM's. Theirs are the same problems we had in England in 1955 at the start of the Independent Television. Suddenly they have been plunged into the necessity of producing television spots. For the time being, of course, many agencies are using German and English spots with new soundtracks and pack shots — but JWT has already had many people over from both the UK and the US to talk to their copy and television people about production of television advertising."

Left: The first programmes of Tv-Noordzee (click on the image for a larger view)

Media director Augustin seemed to be very excited during the interview, although he knew that the potential for the future would not be more than 45% of the Dutch households with a television at home. At that stage, September 1964, the coverage of the state transmitter located at Lopik had a coverage of about 66%. He thought that TV Noordzee brought greater entertainment than the public broadcasters. He watched the station regularly and one of the points in its favour, which he considered to be an important media consideration, was that most programmes were in the English language, with Dutch subtitles. Most of the Dutch people speak the English language and partly do use English language programmes to improve their English.

Television Mail went on with: "You can see aerials for TV Noordzee sprouting up all over the place. But it is symptomatic of the Dutch advertising scene's welcome of REM that a consortium of aerial manufactures has been running an extensive campaign for the station in as much as it's good copy for selling aerials — and Max Factor took a quarter page in all of the Dutch national dailies to congratulate REM in its enterprise."

Augustin was convinced that when figures would come out, they would support REM's claim to the hilt: "I'm busy recommending my clients to advertise on TV Noordzee. Most of them, though, tend to be a bit conservative. For 42 of our clients we're preparing to buy airtime, although Pledge is the only one to have been seen yet." The journalist of the Television Mail also asked what the problems in advertising in Holland in general were: "Daily Press is the major national media, though 70% of the 15-million population can be reached via ads in some five magazines. The daily press enjoys great readership and prestige, and most buyers of the newspapers have then on a subscription basis rather than through bookstalls sales. Apart from tiny illiterate section (2% till 3%) every Dutchman reads at least one daily newspaper."

Right: Provisioning by sea

Preparing for the end. But the Dutch government was not happy at all and already on September 16th the House of Commons of Dutch Parliament held a long debate about how to act against the REM. It was proposed to introduce legislation based on the 1958 United Nations Convention that defined the limits of the continental shelf over which coastal states held sovereignty. Many weeks of discussions passed and at one stage Dutch Minister of Justice announced that "The Northsea Installations Bill" would be introduced, which would create the possibility for the authorities to make Dutch law applicable and effective on installations or artificial island set up in the sea opposite the Dutch coastline.

In the meantime it became December 1st 1964 and the Bill was passed by Members of the House of Commons of Dutch Parliament with an overwhelming majority of 114 votes against 19 — the Liberals voting against on what they called "juridical grounds." The bill was in its then present form a framework, which allowed scope for further elaboration when the needs should arise. It also opened the possibility for putting other than criminal law only into effect. Moreover, it enabled the arm of the law to reach further than the REM Island, with its unsanctioned television and radio transmissions. Of course with the passing of the Bill in the House of Commons another period came in which the Senate had to decide if the Bill would become Act. The Dutch Ministry of Justice came with an official press announcement in which was stated: "The government now possesses a reliable instrument for coping with eventualities which, though they cannot at present be foreseen, must be taken into account in view of technical progress. It's now possible to pursue an up-to-date, alert policy, because the means has been provided of declaring every rule of law applicable."

Left: A popular programme on TV-Noordzee: Mr. Ed the Speaking Horse

It was not merely a case of filling a legal vacuum, however. There was also a gap in the authority of the state to be filled. The Minister of Justice could not only make every contravention a punishable offence, but also prosecute any offender. One thing was for sure. As soon the Senate had approved the Bill, it was published in the so-called Status Book. When this happened the REM affair was placed under Dutch Jurisdiction by an Order in Council. The law came into effect on December 12th 1964 and Mr. Verolme, the main investor in the REM project, informed the crew on the platform not to make any attempt to take action against anyone who would try to enter the platform and to close down the station. This as resistance could jeopardize the insurance. Two days later, on December 14th, TV Noordzee closed down.

The same day, very surprisingly, we could read in the newspapers that the organisation REM had sold its project to High Seas Television Ltd in London. It was a company owned by Eric Bent from Weybridge in Surrey. He had only a nominal capital of 100 Pound in the company. Also it became known that the platform itself was sold to a Panamanian company: Construcciones Maritima Exomarsa. Radio Noordzee stayed on the air and everyone waited what would happen next. In the British press Benn was interviewed by several journalists: "55 years old Bent is head of a commercial printing firm with offices in Regent Street. Mr. Benn said last night: "I took over the station last Friday and I intend to fight to keep it going. I have already protested to the Dutch Government." Mr. Bent denied that as the owner of the High Seas Television Ltd. — formed with 100 Pond capital within the last two months — he was merely a nominee head, shielding the real owners from legal action: "I only became director a few days ago, and although — legally — I am running the station, operationally I have not actually had the chance to do this. I felt, as I am an Englishman, the Dutch officials would not be able to take action against me." Transmission rights were leased to Mr. Bent by a Panamanian Company which took control of the station from three Dutch businessmen."

Right: The official seal on the radio transmitter

The end of the affair. A lot of activities were spotted early in the morning of December 17th. For several days inspection flights had taken place by the Dutch navy and that morning the Dutch Navy had rented the 360 ton Delfshaven, which was accompanied by a lot of patrol vessels and three helicopters from Dutch Navy. Scouting men sighted the target, REM Island. By five to eight in the morning the patrol ships were rocking gently around the base of the tower, while the radio transmitter was steadily sending popular music. The navy decided that the platform couldn't be boarded from the sea. So at eight o'clock, the three helicopters dropped out of the low clouds, hovering over the platform. One of them dropped a smoke bomb as a marker and from another helicopter the figure of Marine Captain Eric Gerritsen was winched down onto the platform and more marines followed him. Next, the marines let down big twine and steel baskets so that their battle companions from the boats could be hauled up on the artificial island. Also policemen went aboard the platform.

The baskets were already in use since early August 1964 and were mainly used to ferry up men, food, films and new discs. The Dutch invaders ordered the crew — four people from Belgium and six from Holland - to switch off the transmitter. The crew, however, refused. Further on the crew gave no resistance and stayed indoors during the raid. Next a few of the marine experts went into the transmitter room and switched the radio transmitter off, this in the middle of the song "Paradiso" by 21-year-old Anneke Grönloh, a teener idol born in the Dutch East Indies and living in the Netherlands. Not much later crew members and technicians jeered and took photographs as the helicopter moved away. The operation was well under way when the MV Delfshaven left to Hook of Holland, with Department of Justice officials and post office technicians.

Left: Announcer Hetty Bennink

According to a spokesman from Dutch government, later that day, the switch off would be forever. Dr. Jan Hartsuiker, the public prosecutor, put out a statement that night: "Legal investigation will follow to view to summonses being served on defendants who would not be named at the moment. The raid took several days to plan but we succeeded to close-down both stations." The capture took place exactly after 6 days earlier the then Dutch Queen Juliana signed the law banning artificial technical installations for transmissions just outside Dutch territorial waters.

By coincidence the same day the then 17-Nation Council of Europe's Committee of Ministers proposed a plan to eliminate offshore radio stations operating at sea outside national waters. The plan, calling on Governments to stop people on advertising with those stations or selling them food, equipment and transport, was drafted in Paris. In 1965 more talks followed by legal specialists of the same countries which brought us the Treaty of Strasbourg. Britain and other nations awaited some united action and as the agreement was drafted it also would be ratified by nations, after which legislation was introduced.

Sources

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