International Protection of Underwater Cultural Heritage

Mr. Blumberg is Attorney-Advisor for the United States Department of State, Bureau of Oceans and International Environmental Scientific Affairs, Office of Oceans Affairs, and led the United States delegation to the UNESCO negotiations on the Convention on the Protection of Underwater Cultural Heritage. The views expressed in this article are not necessarily those of the United States Government.

Introduction

The United States strongly supports the protection and preservation of underwater cultural heritage (UCH) for future generations, both domestically and internationally. On the domestic front, the United States has enacted numerous laws at both the state and federal levels to protect UCH.^[1]

Internationally, the United States strongly supported the Convention on the Protection of Underwater Cultural Heritage which would be developed under the auspices of UNESCO (Convention) and would, inter alia: 1) codify, for the first time, international scientific rules and standards for the management and protection of underwater cultural resources, and 2) prevent currently unregulated salvage of UCH, particularly UCH located 24 nautical miles seaward and that, in some cases, has destroyed important artifacts and archaeological and historical information. The Convention contains some important, positive provisions in this regard, in particular, the scientific Rules - the principles set forth in the Preamble and the limitation of the application of salvage law to UCH. However, certain other provisions, included (in my view) primarily for political reasons, are likely to prevent many key countries from becoming parties and thereby severely limit the Convention’s effectiveness. UNESCO itself played a role that contributed to this outcome.

Ultimately, broad and effective protection of UCH will require further development of international law through a competent international organization, presumably UNESCO, and by cooperative state practice.

Background and Context

Prior to the adoption of the UNESCO Convention there was no comprehensive legal regime that dealt specifically with the regulation of activities affecting UCH located 24 nautical miles seaward of the coast. The 1982 UN Convention on the Law of the Sea (UNCLOS)^[2] does address the protection of UCH, but its regime is complex, not entirely clear, and incomplete.

The UNCLOS Articles that deal specifically with UCH are Articles 33, 149 and 303. Other relevant Articles are those dealing with the rights and duties of states in regard to internal waters, territorial seas, the continental shelf and the exclusive economic zone (in particular, Articles 56 and 58), artificial islands and structures (Article 60), drilling (Article 81), high seas rights and freedoms (Articles 86 and 87), the basis for resolving conflicts regarding rights and jurisdiction in the exclusive economic zone (Article 59), sovereign immunity (Article 236), and the relationship to other conventions and agreements (Article 311).

Under UNCLOS, coastal States have jurisdiction to regulate activity that affects UCH in areas where they have sovereignty. This includes the territorial sea (seaward of 12 nautical miles from baselines)^[3], subject only to the property rights of flag States in regard to their identifiable sovereign immune vessels, aircraft, and other state-owned vessels that have not been abandoned. Coastal States may also prevent the removal of "objects of an archaeological and historical nature" from the contiguous zone (seaward of the territorial sea to 24 nautical miles from baselines) without their approval.^[4]

Beyond 24 miles, UNCLOS did not establish or recognize any special role or competence for coastal States in regard to the protection or regulation of UCH. UCH was treated differently from other living and non-living resources in the exclusive economic zone and continental shelf. As made clear by the International Law Commission (ILC) regarding the 1958 Convention on the Continental Shelf, UCH was not to be considered a living or non-living resource of the continental shelf over which coastal States are granted sovereign rights and jurisdiction.^[5] The UNCLOS provision (Article 56) on coastal State sovereign rights over the economic zone and continental shelf simply repeats the wording of the 1958 Convention with respect to the rights of coastal States to explore and exploit natural resources. There is nothing in the negotiating history of UNCLOS that would alter the conclusion of the ILC with regard to any intended additional coastal State jurisdiction over shipwrecks. Indeed, the opposite is true based on both the rejection of a proposal by the Greek delegation to UNCLOS that coastal States should have jurisdiction over UCH out to 200 miles and on the ultimate adoption of Article 303.^[6]

Rather, all states have a general duty "to protect objects of an archaeological nature found at sea and shall cooperate for that purpose."^[7] And with regard to UCH found in the "Area" (beyond the limits of national jurisdiction), UNCLOS provides that such UCH "shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin."^[8] The former obligation is hortatory only. UNCLOS contains many such provisions, some of which cannot be construed to provide specific regulatory competence over UCH located in any geographic zone of a coastal State’s jurisdiction. The latter is also hortatory and, moreover, provides no clarity on what is to be considered UCH, how it is to be preserved or disposed of for the benefit of mankind, or which of the States are entitled to preferential rights or the nature of such rights.

That left UCH located beyond 24 nautical miles subject only to hortatory UNCLOS obligations and general international law (common laws of salvage law and finds). While UNCLOS limits general coastal State regulatory competence regarding UCH to the territorial sea and the contiguous zone, U.S. courts sitting in admiralty have not taken such a limited view of their jurisdiction in granting salvage rights. They have made several awards regarding the salvage of historic wrecks seaward of 24 miles, including the Titanic, which is located 325 miles off the Canadian coast, and the Lusitania, located in Ireland’s territorial sea. Moreover, there are no international scientific standards that bind admiralty courts when making salvage or finds awards regarding UCH.^[9]

Views of the United States and maritime States (most of Western Europe, Russia and Scandinavia)

This jurisdictional gap in international law under UNCLOS regarding UCH located beyond 24 miles, as well as the lack of uniform international management and protection standards, is what led the United States to support the negotiation of the UNESCO Convention. From a U.S. standpoint, the convention needed three critical features to be viable:

1) It had to be consistent with the jurisdictional regime set forth in UNCLOS - specifically that it not create new coastal State direct regulatory competence over UCH;
2) It had to provide appropriate treatment for sunken state vessels - primarily warships as defined in UNCLOS Article 236; and
3) It had to contain strong uniform international standards for the protection and preservation of UCH striking an appropriate balance between archaeologists that proposed no commercial activity related to UCH, and commercial salvors that wanted unfettered recovery and the continued application of salvage law and the law of finds by admiralty courts without any amendment.

With respect to jurisdiction, the United States and the maritime States opposed the original draft Convention originally co-sponsored by UNESCO^[10] and the United Nations Division of Ocean Law and Policy^[11] because, in effect, it would have established a "cultural heritage zone" beyond 24 miles and the outer edge of the continental shelf, in which coastal states would have direct authority to regulate access to UCH. UNESCO, supported primarily by the large group of developing states (G-77), continued throughout the negotiations to assert that the Convention could provide new direct coastal State authority to regulate commercial recovery of UCH in the exclusive economic zone and on the continental shelf consistent with the balance of rights and interests set forth in UNCLOS. This was achieved specifically by not modifying rights, duties, and activities of Party or non-Party States unrelated to UCH.

This approach was opposed for both legal and practical reasons. Legally, the United States and other maritime States believed that such new direct coastal State regulatory authority over UCH would, in fact, alter the carefully constructed balance of rights and interests that was established by UNCLOS.^[12] Practically, most states - primarily because of a lack of resources and regulatory/enforcement infrastructure - had not exercised the jurisdiction they could have exercised, pursuant to UNCLOS, to regulate UCH located in their territorial seas and contiguous zones. Thus, such extended jurisdiction would be of little practical value to most states.

Instead, the United States and the maritime States proposed that the new Convention adopt uniform international scientific management rules and standards that would be enforced through a combination of territorial, flag and port State jurisdiction. States Parties would be obligated to enforce the convention in regard to activities in their territory, vessels entering their ports, and their nationals and flag vessels wherever they operated in the world. A state would prohibit or regulate the import, export, sale, or disposal of UCH unless it was consistent with the Convention and Rules, including the manner in which UCH is initially collected and conserved (this is the approach adopted by the United States, United Kingdom, France and Canada in an agreement negotiated with respect to protecting the RMS Titanic referenced at end note 26). Under this proposal, a coastal State either unilaterally or, more effectively, through agreement with other states in a region, could also require foreign flag vessels to comply with the Convention or with more stringent national standards as a condition of port entry. Such a system would be clearly consistent with international law and would be the most effective way of protecting UCH for the practical reasons mentioned with regard to coastal State management infrastructure and monitoring capabilities. States that have the most advanced underwater recovery technology are also best capable of ensuring compliance by their nationals and flag vessels worldwide, as well as during activities in their ports and territories. Compliance with the Convention and Rules would have been further ensured by a requirement to permit observers from other interested State Parties.

Moreover, while the United States and the maritime States believed that the Convention should not provide new direct regulatory authority over UCH, their position was that the Convention could restate and clarify existing coastal State authority set forth in UNCLOS to authorize and regulate specified activities on continental shelves and in exclusive economic zones. The exercise of that authority could apply to certain activities related to the recovery of UCH. For example, much UCH lies on or is embedded in the seabed in close proximity to sensitive living resources such as coral reefs and fish spawning grounds over which coastal States have sovereign rights provided by UNCLOS. Activities to be directed at UCH in such areas could be regulated to the extent that they would demonstrably adversely impact surrounding resources.

In addition, UNCLOS Article 60 gives coastal States the exclusive right to authorize and regulate the construction, operation, and use of installations and structures for certain specified purposes. Additionally, they are given authority over such installations and structures that may interfere with the exercise of the rights of coastal States in exclusive economic zones. The conduct of activities directed at UCH may require the use of installations or structures within the meaning of Article 60, especially in light of equipment necessary to conduct proper recording and collection of artifacts as required by the Convention’s Rules. Further, UNCLOS Article 81 gives coastal States "the exclusive right to authorize and regulate drilling on the continental shelf for all purposes." Drilling is an undefined term and the extent to which it might encompass activities directed at the recovery of UCH embedded in or located below the surface is not clear. UNCLOS experts have suggested that these articles and others related to the authority of coastal States to prevent or regulate activities that would demonstrably adversely impact resources over which states have sovereign rights, were appropriate for consideration as part of the UNESCO negotiations.^[13]

The United States and other maritime States were prepared to further define, clarify and codify at the Convention existing UNCLOS authority such as related to activities directed at UCH, but this was never considered seriously by the UNESCO Secretariat and the states that favored new direct coastal State regulatory competence over UCH.

Another critical issue for the United States and many maritime States related to the treatment of warships and other state owned vessels. The view was that the Convention should codify the international law principle that title to identifiable vessels and aircraft, wherever located, that are entitled to sovereign immunity at the time of sinking,^[14] remains vested in the original flag State unless expressly abandoned, and is not lost through the passage of time. Further, no state would be permitted to salvage, recover or permit the salvage or recovery of such vessels or aircraft without the express consent of the flag State, and any recovery that is permitted would have to be consistent with the Convention’s Rules. In accordance with existing international law reflected in UNCLOS, the coastal State would, of course, have to be involved in determining the manner of any recovery of such vessels and aircraft located in its territorial sea or contiguous zone.

Finally, the United States strongly believed that the Convention needed to contain uniform international scientific and professional standards for the protection and management of UCH similar to those in the International Council on Monuments and Sites (known as the ICOMOS Charter)^[15] - standards that are generally consistent with those in several U.S. historic preservation statutes. UNESCO had proposed that the ICOMOS Charter be adopted without amendment as part of the Convention.

Adoption of legally binding standards based on the ICOMOS Charter would necessarily mean limitations on the application of the common law of salvage and finds regarding historic wrecks. For example, salvage law presumes that shipwrecks are in "marine peril" and creates financial incentives to encourage salvors to return them and their cargoes back into the "stream of commerce." This approach, when applied to historic shipwrecks, can conflict with the basic principles of marine archaeology reflected in the ICOMOS Charter, namely that decisions regarding the management, protection and recovery of UCH should be based, not on commercial value, but on the preservation of archaeological and contextual information.^[16] In this regard, the preferred management tool is in situ preservation. Recovery should take place only when a wreck is, in fact, in peril or recovery is otherwise determined to be in the public interest. If recovery does take place, the collection should be kept together and remain available to the public for research, education and other public purposes.

The Convention

After several rounds of negotiations, government experts voted to submit the draft Convention as it stood in July of 2001 to the 31^st UNESCO General Conference over the objection of the United States and most maritime States,^[17] and after a contentious debate it was adopted without further amendment by a divided vote of 87-4-15.^[18]

On the positive side, the Convention does establish strong legally binding international scientific rules and standards similar to the ICOMOS Charter that would govern all activities directed at underwater cultural heritage. The Rules, supported by the United States and ultimately adopted by consensus, reflect a number of hard fought compromises between the archaeological community and those with commercial interests in underwater cultural heritage, both of whom were represented on the United States delegation. The Rules would not ban all activities directed at underwater cultural heritage that have a commercial aspect^[19] as many in the archaeological community would have preferred, but they would require that such activities be conducted in accordance with current underwater archaeological standards set forth in the Rules. For example, the Rules include a strong preference in favor of in situ preservation, which would effectively ban the sale of individual artifacts, and would require that collections be kept in tact and sold only if recovered, recorded and curated in accordance with the Rules. In addition, the Convention itself bans the application of the laws of salvage and finds to underwater cultural heritage, with limited exceptions.^[20]

On the other hand, while the original draft Convention changed substantially and was in many respects improved during the negotiations, the Convention as adopted contained several key provisions that are unacceptable to the United States and the maritime States that voted against adoption or abstained. In particular:

1) In regard to jurisdiction, primarily at the insistence of the Group of 77, the Convention created new direct or indirect coastal State rights and general regulatory competence over UCH located in the exclusive economic zone and on the continental shelf.^[21]
2) The Convention does not adequately protect sunken warships and aircraft and other state vessels and would alter the previously described international law and the practice of many maritime States regarding title to such vessels. Moreover, it would permit coastal State recovery of such vessels located in internal waters and the territorial sea without the consent of flag States or even an obligation to notify them. It also places objectionable new restrictions on existing rights of flag States and creates new coastal State rights regarding such vessels located seaward of 24 miles in the exclusive economic zone and on the continental shelf.^[22]

The Convention contains other problematic provisions^[23] that could have been considered for ratification as part of an otherwise broadly acceptable package. But these provisions are overshadowed by jurisdictional and warship provisions.

As the Convention’s jurisdictional reach and obligations fully extend to a state’s territorial sea, contiguous zone, 200 mile economic zone and continental shelf, as well as to controlling the activities of its nationals and flag vessels world wide, it is likely to be some time before many countries will be capable of implementing it in full. Indeed, as previously noted, most countries have not been willing or able to exert jurisdiction over UCH within the 24 miles they already have under UNCLOS. Parenthetically, it is noteworthy that the leaders of the Group of 77 that insisted on such impractical 200 - mile jurisdiction were primarily the same Latin American countries that had advocated, but failed to achieve, general regulatory authority over all activities within 200 miles during the UNCLOS negotiations. This led many countries at UNESCO to question whether such extended jurisdiction over underwater cultural heritage was more important politically - as another bite at the "jurisdictional apple" - rather than a practical tool necessary to protect UCH.

The Convention will enter into force after 20 countries have indicated their consent to be bound by depositing instruments of accession, adherence, acceptance or ratification. Thus far, only three - Panama, Bulgaria, and recently Croatia - have done so. It is ironic that none of the States that insisted on new coastal State regulatory authority over UCH beyond 24 nautical miles have ratified thus far. At least for some, it appears that the Convention did not provide ENOUGH coastal State authority over such UCH. The attached newspaper article^[24] appears to indicate that UNESCO officials recently attempted to convince Colombia to ratify on the basis that several of the Convention’s key obligations and restrictions were not, in fact, legally binding - creating what we understand is a storm of anger and confusion in Latin America, thus further clouding the prospects for entry into force. It is possible that the Convention created the "perfect storm" of competing legal and policy interests that may ultimately be acceptable to few states.

However, even when the Convention does enter into force, it remains to be seen whether it will result in a significant improvement in the protection of underwater cultural heritage. Ultimately, the Convention will not be effective unless it is broadly ratified and implemented throughout the international community, including by countries in which the most advanced undersea technology resides and whose nationals are most active in regard to underwater cultural heritage. In that respect, it is important to note that several countries with such technology including France, Germany, the Netherlands, Norway, Russia, Sweden and the United Kingdom either voted against adoption or abstained from voting. The United States was not a member of UNESCO at the time, and therefore had no vote in the proceedings. However, the U.S. delegation made a clear statement opposing adoption. The main points of objection were on jurisdictional framework and treatment of warships and State vessels.^[25]

If these and other key countries remain outside the UNESCO regime because of the expansive jurisdictional and warship provisions, the Rules and other positive provisions of the Convention are likely to have a substantially limited impact on the protection of underwater cultural heritage. As Ambassador Sichan Siv, United States Representative on the UN Economic and Social Council told the UN General Assembly on November 27, 2001, "…as a matter of international law, the UNESCO Convention, if it enters into force, will apply only among Parties to it and cannot be considered in resolving any conflicts involving non-Parties or their vessels."

Outlook

Looking to the future, the United States will continue to protect underwater cultural heritage through small multilateral agreements regarding important wrecks such as the RMS Titanic,^[26] through bilateral agreements such as the one completed last year with France regarding the explorer La Salle’s ship La Belle,^[27] and through domestic legislation. In regard to the Titanic agreement, which requires two signers to become effective, the United Kingdom signed in 2003 and the United States signed last year, subject to the enactment of implementing legislation. That legislation is well along. France and Canada are also considering implementing legislation. The Titanic agreement incorporates strong management rules similar to those in the UNESCO Convention, and La Belle is also being conserved and curated in accordance with current archaeological standards. Hopefully, other countries also will build such rules into their contracts and management programs.

In that regard, we should note that a United States company is currently working with the United Kingdom to recover an important historic naval vessel, the HMS Sussex, which sank in the Mediterranean in 1694. This is a unique public/private enterprise in which the company has agreed to adhere to current archaeological standards similar to those in the UNESCO Convention, which will be overseen by HMG authorities.

The United States enacted another important piece of UCH legislation last year. Called the Sunken Military Craft Act (SMCA)^[28], it clarifies that sunken military vessels and aircraft - both U.S. and foreign - located in U.S. waters that were entitled to sovereign immunity remain property of their flag States unless expressly abandoned; title is not lost through the passage of time. It eliminates the possibility that the law of finds can apply to such vessels unless expressly abandoned, and makes clear that no salvage of such vessels can take place unless authorized by flag States.^[29] The SMCA also encourages the U.S. to negotiate bilateral and multilateral agreements with foreign countries to provide reciprocal protection of such vessels, which is planned.

Conclusion

Ultimately much UCH will be discovered beyond the regulatory authority of any state regarding shipwrecks under international law.^[30] Hopefully, if the political will exists, the provisions of the UNESCO Convention that were adopted without consensus can be renegotiated so that its Rules can be applied to a significantly broader range of underwater cultural heritage than is possible under unilaterally applied domestic laws and state practice.

Notes

^[1] Although many have criticized the United States for not signing the UNESCO Convention, and for its purported permissiveness regarding commercial salvage of UCH, the U.S. has probably enacted more legislation to protect UCH than any other nation. See <www.cr.nps.gov/aad>. This link contains a chart that summarizes relevant U.S. historic preservation statutes and their geographic scope of application, and applicable international law (common laws of salvage and finds) as applied by U.S. Courts to historic wrecks.

^[2] U.N. Convention on the Law of the Sea, 1982 (21 ILM 1263 (1982)); http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm

^[3] Arts. 2 and 7, ibid.

^[4] Arts. 303(2) and 33(1), ibid.

^[5] The International Law Commission, referring to the article of the 1958 Convention on the Continental Shelf providing that the "the coastal state exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources," stated "It is clearly understood that the rights in question do not cover objects such as wrecked ships and their cargoes (including bullion) lying on the seabed or covered by the sand of the subsoil." Report of the International Law Commission, ii U.N. GAOR Supp. (No. 9) at 42, U.N. Doc. A/3159 (1956).

^[6] See the United Nations Convention on the Law of the Sea 1982: A Commentary, Volume 5, at 161 (Nordquist, ed.).

^[7] Art. 303(1), ibid.

^[8] Art. 149, ibid.

^[9] It should be noted that in the Central America case (974 F.2d at 468) the Judge asserted jurisdiction over a shipwreck in the exclusive economic zone and did add a criteria to the Blackwall list so as to give an additional reward to the salvor that recovered the wreck in a manner that preserved archaeological and historical information and value.

^[10] CLT- 96/CONF.202/5.

^[11] DOALOS assisted UNESCO with the first draft and was listed originally as a co-sponsor. However, after the first negotiating session, DOALOS withdrew as a co-sponsor upon recognition that the jurisdictional provisions of the draft differed substantially from the regime set forth in UNCLOS, that they were not necessarily consistent with UNCLOS, and that drafting such provisions had not been authorized by UNCLOS States Parties. At the second UNESCO negotiating session, DOALOS made a statement noting that it did not endorse the original draft Convention and that its drafting assistance should not be construed as meaning that it was, indeed, consistent with UNCLOS.

^[12] See Oxman, supra, (note XIII). Where the issue of coastal State rights versus high seas freedoms was thought to require additional future development, this was specifically stated (e.g. see article 64 regarding highly migratory species). This was not the case regarding UCH. Thus, new direct coastal State jurisdiction over UCH beyond 24 miles, was seen as "creeping jurisdiction" clearly contrary to overall conceptual jurisdictional balance, either as established or anticipated by UNCLOS, whether or not it affected other rights, duties or activities. Such new jurisdiction, would, in that view, create an adverse precedent that might lead to further assertions of coastal State competence in regard to other maritime activities.
While it is true that UNCLOS article 311 permits states to conclude agreements modifying or suspending UNCLOS provisions, such provisions must be applicable solely between those states, cannot contain provisions that would be inconsistent with the object and purpose of UNCLOS, and cannot affect the rights and duties of other States under UNCLOS. The U.S. and other maritime States’ view was that new coastal State jurisdiction over UCH beyond 24 miles would be inconsistent with the UNCLOS jurisdictional scheme and its previously described conceptual underpinnings - the most basic object and purpose of UNCLOS. Moreover, during the negotiations, certain States made clear that they did intend to apply the Convention to non-parties.

^[13] See B. Oxman, Marine Archaeology and International Law, Volume 12, Columbia-VLA Journal of Law and the Arts, at 369-370.

^[14] Article 236, ibid.

^[15] http://www.international.icomos.org/charters/underwater_e.htm

^[16] It should be noted that while some commercial salvors acting pursuant to Admiralty awards have not acted to preserve important archaeological and historical information, others have done so, and others have expressed a willingness to abide by binding obligations set forth in the Convention’s Rules. For example, during the negotiations the U.S. delegation pointed to the methods of collection, recording and curation methods that RMS Titanic Inc. had utilized regarding thousands of artifacts recovered prior to a hostile company takeover (information about the company’s activities and methods after the take over was not available), which were lauded by many professional archaeologists. The company President at the time, the late George Tullock, strongly supported such obligations in the UNESCO Convention as well as in the Titanic Agreement the United States was negotiated with the United Kingdom, France and Canada, in 2000 (see note xxvi).

^[17] The United States presented an ambassadorial demarche to the UNESCO Director General informing him that the draft was not ready for adoption and that it likely would not command broad support, especially from the states where the most advanced maritime recovery technology resides, the states most necessary for the convention to provide meaningful protection for UCH. The United States was not a member of UNESCO at that time, but several maritime States that were also influential members of UNESCO presented a similar high-level demarche to the DG urging more time for negotiations and his personal involvement. Those pleas were rejected.

^[18] Convention on the Protection of Underwater Cultural Heritage as presented to and adopted by the 31st General Conference of UNESCO (Document 31 C/24) in six language versions:
Arabic: http://unesdoc.unesco.org/images/0012/001232/123278a.pdf
Chinese: http://unesdoc.unesco.org/images/0012/001232/123278c.pdf
English: http://unesdoc.unesco.org/images/0012/001232/123278e.pdf
French: http://unesdoc.unesco.org/images/0012/001232/123278f.pdf
Russian: http://unesdoc.unesco.org/images/0012/001232/123278r.pdf
Spanish: http://unesdoc.unesco.org/images/0012/001232/123278s.pdf

^[19] Rules 1, 2, and 34 provide that certain activities related to UCH that may have commercial aspects may be authorized provided that they are otherwise consistent with protection and management of the UCH as set forth in the Rules.
Rule 2 states a general rule that UCH shall not be traded, sold, bought or bartered as commercial goods. However, two important clarifications were added: one ensures that this general rule does not prevent the provision of professional archaeological services or necessary services incidental thereto (e.g., commercial salvage services), subject to the authorization of the competent authorities. The other ensures that this general rule does not prevent the disposition of UCH recovered in the course of research projects in accordance with the Convention, so long as disposition does not prejudice scientific integrity or result in irretrievable dispersal. Disposition must also be in accordance with Rule 34 (which deals with curation), again subject to authorization of competent authorities.
Rules 34 and 35 in particular provide that the project archive (which includes all artifacts and supporting documentation) must be kept together and intact as a collection to the extent possible, and managed according to international professional standards, subject to the authorization of the competent authorities. These rules also provide for the disposition of recovered underwater cultural heritage in accordance with professional standards, thereby ensuring that existing museum practices such as the acquisition or purchase of entire collections and the deaccession of items under certain conditions are not prevented.

^[20] Article 4 of the Convention bars the application of the laws of salvage or the law of finds to activities relating to UCH except where such application is fully consistent with the Convention and ensures that recovery of UCH achieves its maximum protection. Thus, the laws of salvage and finds as administered by U.S. courts sitting in Admiralty would effectively be amended to ensure that commercial incentives no longer predominate and must be balanced against the provisions of the Convention and Rules.

^[21] The following provisions in the Convention create new jurisdictional competence over UCH that is not provided in UNCLOS:

- Prior notification. Article 9(1)(b)(i) requires a flag State to give direct prior notification to a coastal State of any activity to be directed at UCH in its exclusive economic zone or on its continental shelf. Such a requirement, without regard to whether a coastal State's sovereign rights in these maritime zones are implicated, creates a new coastal State right. (The United States had been prepared to consider a limited notification requirement for the purpose of determining whether such activities adversely impacted a coastal States rights as set forth in UNCLOS, but this was rejected)..)

- Coastal State role as "Coordinating State". Article 10 creates a regime that in effect requires the consent of the coastal State (acting as a ‘‘coordinating State") before any activity directed at UCH takes place in its exclusive economic zone or on its continental shelf. Such a consent requirement, again without regard to whether the coastal State's sovereign rights in these maritime zones are implicated, is a new coastal State right. The right of the coastal State, acting as the "coordinating State," to take unspecified and apparently unlimited protection measures ("all practical measures") to prevent immediate danger (including danger of looting) to UCH located in its exclusive economic zone or on its continental shelf, is also a new right. Of particular concern is the fact that the coastal State may take such protection prior to consultations with the other States on whose behalf it is intended to be coordinating. Moreover, the allowed protection measures are expressly not limited to dangers caused by "activities directed at UCH" but rather are extended to any danger "whether arising from human activities or any other cause." As a result, this emergency protection scheme could be applied to restrict even activities incidentally affecting UCH, including activities such as the laying of cables and pipelines that are specifically protected under UNCLOS.

- Relationship of the Convention to UNCLOS. Article 3 includes language on the relationship of the UCH Convention to UNCLOS that is different than that contained in the United Nations Straddling Stocks Agreement. Additional language (insisted on by the G-77) blurs the argument that the UCH agreement must be applied subject to the provisions of UNCLOS, and as a result, is inadequate to resolve the concerns over jurisdiction and other ambiguities.

 • The following provisions are ambiguous as to their meaning or as to their possible application to non-Parties:

- Reporting. Article 9(1)(b)(ii) contains an ambiguous reporting provision that could be read to allow a coastal State to require foreign flag ships to report directly to it before undertaking any activities directed at underwater cultural heritage in its EEZ and on its continental shelf. Read as a right to require such reporting would create a new coastal State competency not provided for in UNCLOS. While this provision could also be read as an obligation on flag States in regard to its own nationals and flag vessels, other delegations rejected a United States proposal that would have made this interpretation clear, arguing that ambiguity on this issue was "constructive". Moreover, some in the G-77 (Argentina and Egypt) stated that they intended to interpret and implement this provision as a new coastal State right.

- Reference to "sovereign rights or jurisdiction." Article 10(2) purports to restate the rights that states already have over the protection of natural resources. The provision is problematic to the extent the ambiguities inherent in the text can be read to expand (or contract) pre-existing rights under UNCLOS. During the discussion of this issue, delegations claimed to agree that the intention of this language was to avoid prejudicing the existing sovereign rights and jurisdiction set out in UNCLOS regarding, e.g., the sovereign rights set out in Parts V and VI. However, they rejected U.S. suggestions that this provision reflect that intention precisely (i.e., provide that articles 10 and 11 were without prejudice to existing sovereign rights and jurisdiction provided in international law as set forth in UNCLOS, in order to avoid the difficulties and ambiguities that result from any effort to restate pre-existing rights without changing them).

- Potential Impact on Non-Parties: Two Articles are written in a way that could be read to permit regulation of the activities of non-Parties or their vessels on the high seas. Article 10 (EEZ and continental shelf) and Article 12 (the Area) provide that "no authorization shall be granted" for activities directed at UCH except in accordance with those articles. That language contrasts with other provisions in the text, which clearly only permit the regulation of the activities of Parties (e.g., "No State Party shall ...").

^[22] The provisions of the Convention in regard to state vessels (primarily warships) and aircraft are inconsistent with international law and practice, under which, inter alia, flag States retain title to such vessels unless expressly abandoned and must consent before they can be the subject of recovery. The text places objectionable new restrictions on existing rights of flag States and creates new coastal State rights regarding such vessels.

Specifically:

- Internal Waters. The Convention is completely silent with regard to state vessels found in internal waters, where many state vessels and aircraft are located. Thus, the coastal States have no obligation to notify flag States of discoveries of such vessels and aircraft or to cooperate with them on their protection. The absence of any such provisions, taken together with the provisions for the other maritime zones, creates a negative implication that flag States have no rights at all over their vessels in these areas.

- Territorial Sea and Archipelagic Waters. The Convention contains only hortatory language that coastal States "should inform the flag State" of discoveries of state vessels in the territorial sea and archipelagic waters, "with a view to cooperating on the best methods of …protection." However, no language in the text would obligate coastal States to do either. The text does not even address the role of flag States in the protection or recovery of their vessels.

- Exclusive Economic Zone or Continental Shelf. Flag State agreement is required to conduct activities directed at state vessels located in the EEZ or on the continental shelf. But the requirement of such agreement is subject to the broad discretionary authority of a coastal State, acting as the "coordinating State," to take unilateral measures without consultation with the flag State or its agreement. In addition, recovery or protective measures by the flag State are subject to a new requirement of collaboration with the coastal State (as Coordinating State). This requirement could prevent legitimate activities of a flag State in regard to its identifiable state vessels and aircraft. The requirement to collaborate with the coastal State regarding state vessels in the EEZ is an extension of a coastal State right regarding UCH generally that is limited to the territorial sea and contiguous zone under UNCLOS. These provisions are in contrast to the one governing activities directed at UCH in the Area, which clearly states that no State Party shall authorize activities directed at state vessels or aircraft in the Area without the consent of the flag State.

^[23] Other problematic provisions for the U.S. include an overly broad definition of underwater cultural heritage, which, coupled with the lack of a provision permitting management based on the archaeological or historical significance of the object, could make it make it difficult to comply fully with the management requirements of thousands of archaeologically insignificant objects (old tires, discarded packing crates etc.) that would fall under the Convention’s purview.

^[24] El Tiempo - Colombia, November 30, 2004

^[25] www.state.gov/documents/organization/16676.pdf

^[26] Titanic Agreement; http://www.dft.gov.uk/stellent/groups/dft_shipping/documents/downloadable/dft_shipping_022723.doc

^[27] La Belle Agreement done in Washington, DC, March 31, 2003; 2003 UST. LEXIS 21;

^[28] Public Law Number 108-375

^[29] Several European States have notified the U.S. State Department of their laws and policies in regard to the abandonment and salvage of state vessels. These laws and policies, which are substantively the same as the position these states collectively espoused for inclusion in the UNESCO Convention, are published in the Federal Register (69 FR 5647- 5648 (February 5, 2004)). Published in the same Federal Register Notice is a statement by President William Clinton setting forth U.S. policy regarding state vessels.

^[30] Professor Dromgoole stated in her paper entitled "Legal Protection for Underwater Cultural Heritage beyond Territorial Limits: Interim Measures" published in these proceedings that four states have enacted unilateral legislation that purportedly claim general regulatory competence regarding underwater cultural heritage located seaward of 24 nautical miles. Professor Dromgoole states that these laws, if not formally opposed, could become part of customary international law. This is not the case in our view. Customary international law regarding underwater cultural heritage is set forth in UNCLOS as described above, and any jurisdictional claims exceeding that competence are invalid and will not be recognized. The same applies to laws purporting to implement the UNESCO Convention to the extent the Convention or those laws exceed the jurisdiction set forth in UNCLOS.