The absence of an effective regime of universal application meeting the need of regulation of activities affecting archaeological and/or historical shipwrecks, has driven the search for a way in which such a system could be developed. In the absence of developing from an existing framework, the main alternative is to provide a new framework focused purely on the protection of archaeological and/or historic shipwrecks. This is the course being followed by UNESCO in the preparation of a Convention on the Protection of the Underwater Cultural Heritage. Whether and to what extend the current draft offers any possibilities, either as currently drafted or as may be developed, to provide effective regulation for activities affecting archaeological and/or historical shipwrecks will be explored in the following paragraphs.

In order for a State to make a calculated decision on the question whether a Convention will provide a system of rules they would like to support, three issues need to be addressed. First of all, the substantive meaning of the current draft needs to be analysed. Secondly, the coherence of the results of such analysis within a broader context of existing law both in relation to direct subject matter of the Convention and to those other areas which will be affected by it must be explored. Thirdly, an assessment must be made as to whether sufficient consensus both to the objectives and the means by which they are sought provides sufficient consensus for a critical mass of supporting States to be mobilised into becoming participants.

Accordingly, this article will analyse the relevant provisions of the proposed Draft in order to identify its key-elements. Each article will be supplemented by an assessment of its ability to gain consensus support with reference to the commentary provided by State-representatives during the negotiation meetings. After an introduction, which will summarise the history of the Draft Convention, a short and separate paragraph will outline its relationship with other international documents. This will be followed by an article by article analysis and a concluding paragraph outlining the potential of the Draft provisions and the principles contained within it.

Introduction

It has been claimed that, "The underwater cultural heritage is an essential source of non-documentary evidence of social and economic history". Shipwrecks, in this respect, are subject to archaeological and/or historical, cultural, educational and economic value. Since there is literally no object which cannot be located and explored on the seabed, and since the recovery would mean the destruction of a non-renewable source of value, the protection of underwater cultural heritage as including archaeological and/or historic shipwrecks became a topic of intense interest. Based on the presumption that this heritage belongs to the common heritage of mankind, initiatives were taken to establish a framework of protection.

The protection of the underwater cultural heritage has three separate elements attached to it. Firstly, the element of protection necessarily presupposes a mechanism is needed to take account of the unique fragility of the items concerned and moreover promotes the necessity of their conservation. Secondly, the reality that the objects are "underwater" means that there are innate differences to which existing mechanisms, covering land-based objects, cannot adequately respond. This is particularly so given the legal status of the High Seas and related Area which requires a political strategy sensitive to wider concerns of potential State parties as to creeping jurisdiction. Thirdly, to constrain abuse the notion of "cultural heritage" requires careful definition. Finally, given a consensus on such a definition, the temptation to over regulate must be avoided while at the same time regulation must be clear enough for States to apply with consistency.

Aware of the legal lacuna with regard to underwater cultural heritage, the International Law Association established a Committee on Cultural Heritage Law in 1988. In 1989, a Chair, rapporteur and the first members were appointed and the committee started to prepare a Draft Convention on the underwater Cultural Heritage. In the course of drafting, the Committee presented the Draft to European parliamentarians and archaeologists, representatives of the Comite Maritime International, United Nations Division of Ocean Affairs and Law of the Sea (hereafter: DOALAS) and the International Maritime Organisation. In 1994 a final Draft was presented to UNESCO upon which the Secretariat of UNESCO prepared a feasibility study, which was considered by its Executive Board at a meeting in May 1995. The board decided that a further examination of the issues, by States, was needed especially with regard to the implications of the jurisdictional problems, which became soon apparent.

In May 1996 an expert meeting was held at UNESCO‘s headquarter in co-ordination DOALAS in Paris. The participants, invited by UNESCO, consisted of government-representatives, the IMO, the Salvage Union, the International Council for Monuments and Sites (hereafter: ICOMOS), and archaeologist representatives together with a few observers. The meeting of experts, unanimously, accepted the need for a Convention. This was endorsed by the 29^th session of the General Conference (1997) which invited the Director General to prepare a first draft of such a Convention and to convene a group of governmental experts in order to consider this draft with a view to its submission to the General Conference at its 30^th session in 1999.

The new draft was presented to the second expert meeting which was held in 1998 and consisted again governmental delegations, governmental experts, archaeologists, NGO’s and observers. During this meeting it became clear that the document was still far away from achieving consensus. Jurisdictional incompatibilities with LOSC 82, definitions, the annexed ICOMOS Charter and the complete ban on the commercial trade of artefacts caused massive debate. The multiple use of artefacts was introduced but met heavy opposition from archaeologists. As it became clear that States needed more time, it was decided to convene another expert meeting in the beginning of 1999.

In April 1999 a new expert meeting convened in Paris. As there was no result in the form of a new Draft document from the 1998 meeting, the same Draft served as the basis for negotiations. From the start it was clear that many States were well prepared and appeared with specific prepared statements on the lack of consistency with LOSC 82, jurisdictional concerns as well as an over broad definition of underwater cultural heritage.

Although much progress had been made during the past two expert meetings it became apparent that the protection of the underwater cultural heritage was far from being finalised into a Convention capable of adoption and implementation. More meetings and discussion were needed and the 1999 meeting of experts concluded with a Draft resolution to be presented to the General Assembly later in the year. At the time of writing, a further expert meeting is planned for the first half of 2000.

The UNESCO Draft Convention is the only multilateral instrument aiming at protecting the heritage comprised within sunken vessels on the seabed beneath the High Seas. Currently, the only binding multilateral instrument which refers to the underwater cultural heritage is LOSC 82. Article 303(4) of this Convention states that the article "is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature." Accordingly, the adoption of a more specific Convention need not be incompatible and moreover would contribute to the general duty of States Parties expressed elsewhere in the article to "protect archaeological and historical objects found at sea and to co-operate for that purpose". It is obvious however, that the provisions of an additional Convention which uses LOSC 82 as the legitimacy for its existence needs to be consistent with the rights and obligations specified in the LOSC 82.

In addition to the above, there are three regional texts which need to be taken into account as influencing the positions of various States: the Protocol concerning Mediterranean Specifically Protected Areas (1982), Recommendation 848 of the Parliamentary Assembly of the Council of Europe on the underwater cultural heritage (1978) and the Draft European Convention on the protection of the Underwater Cultural Heritage (1985). In addition, reference also needs to be made to a fourth document the ICOMOS Charter on the protection and management of underwater cultural heritage. This guideline to States was prepared by ICOMOS and presented to UNESCO to be annexed to the Draft Convention.

The Preamble

The preamble of the Draft Convention defines its object and purpose of the protection of the underwater cultural heritage, acknowledges its importance and states that such heritage belongs to humanity. It addresses several threats to underwater cultural heritage as well as their origin, various remedies which are incorporated in the Draft and specified as being in conformity with current existing international law.

The acknowledgement in paragraph 1 needs to be read in conjunction with paragraph 8 where it is stated that underwater cultural heritage should be preserved for the benefit of humankind and that therefore the responsibility for protection lies with all States and other subjects of international law. The latter category being an addition to the "general duty to protect" as stated in Article 303, LOSC 82 which addresses States.

Paragraph 3 stresses the threat of activities not respecting fundamental principles of underwater archaeology as well as the need for conservation and research. From paragraph 4 it can be read that this threat is due to increasing commercialisation of efforts to recover underwater cultural heritage and the availability of advanced techniques which makes it accessible, as well as the exploitation of natural resources, construction of artificial islands, installation and structures and the laying of cables and pipelines as addressed by paragraph 5. The threat to the environment surrounding underwater cultural heritage by clandestine or unsupervised excavation, a result of the other threats, is addressed by paragraph 9.

Moreover, co-operation among States, marine archaeologists, museums and other scientific institutions, salvors, divers and their organisations, apparently the main protagonists as they are singled out by paragraph 6, is believed to be essential for the protection of underwater cultural heritage. The shared responsibility and co-operation should result in more stringent measures to prevent clandestine and unsupervised activities (paragraph 9), respect for fundamental principles of underwater archaeology, conservation and research (paragraph 3) as well as information and multidisciplinary education, the latter which will enable the public to appreciate the importance of underwater cultural heritage to humanity and the need for preservation (paragraph11). In addition, it should improve the effectiveness of measures at international and national levels for the preservation in place or, when necessary, the careful removal of underwater cultural heritage beyond the territories of States. These measures should be incorporated in rules directed at the protection and preservation of underwater cultural heritage in conformity with international law and practice including LOSC 82.

It is clear that the Draft regards the commercial industry, both directly and indirectly as responsible for causing the threats. This discounts the opportunity of ensuring high standards with regard to any commercial or semi-commercial activities on related sites as well as ignoring the possibility of ill prepared non commercial operations. Professional standards could be said to transcend commercial and non-commercial operations, both of which could be said to have a role in making the heritage accessible to the public. This is surprising given the necessity of shared responsibility, as although their co-operation is counted on, it is obvious that their involvement is not wished for.

Threatening activities not directly aimed at underwater cultural heritage are not the subject of co-operation. This suggests that either such activities are not regarded as significant threats, a presumption which can easily be countered by looking at the practice of fishermen, and the cable and pipeline industry, or relate to factors which the Convention is unable to address.

In principle, the objective of the Convention is to ensure public access to the value of such heritage as voiced through the statement that the underwater cultural heritage belongs to humankind. The main strategy of the Convention in achieving its objectives is to avoid any disturbance of sites except when necessary for scientific or protective purposes. However, there is a contradiction between allowing scientific research, removal, exploration or exploitation of underwater cultural heritage and which would ultimately benefit humankind without acknowledging the potential role played by commerce and other constituencies in releasing specialist resources and capital to meet the requirement for dissemination of the value of underwater cultural heritage to the public at large as symbolised by the term humankind. It can be questioned whether the exclusion of access to the resource by all but scientific researchers contributes to the objective of the Convention or is a contradiction in terminus.

It is unclear from this document, or for that matter from any other document, what exactly is meant by the cultural heritage of humanity. Although there are a few definitions for "underwater cultural heritage", there is no widely agreed upon or recognised definition for either term. Further, there is no common understanding if these terms are concepts or merely notions on which agreement soon dissolves when the manner of application is discussed. In addition, the term raises several questions of context which unless resolved lead to incoherence. For example, is the underwater cultural heritage a subcategory of the cultural heritage of humanity and what is its relation to the common heritage of mankind, i.e. of all and belonging to all? The LOSC 82 speaks about the common heritage of mankind in article 136, but this is applicable to the mineral resources of the Area and as has been seen in Chapter II not intended to extend to the underwater cultural heritage addressed by the Draft.

The specific measures to be taken can be found in the Draft Convention. It is important however to pay some attention to the statement that these should be implemented in conformity with international law and practice including LOSC 82. This issue proved to be one of the most addressed topics during the expert-meetings of 1998 and 1999. Although the preamble to the Draft apparently aims at staying within the boundaries of LOSC 82, the measures specified in the Draft show differently. Jurisdictional expansion of coastal States towards a (hidden) cultural heritage zone up to 200 miles as well as the exclusion of salvage law although specifically reserved in Article 303, LOSC 82 are two examples which indicate that compliance with LOSC 82 is not a primary goal of UNESCO. This statement is supported by the withdrawal of an endorsement of the Draft Convention by DOALOS. Government delegates however, kept stressing the need for consistency or in some cases compatibility with LOSC 82 and it was clear from the 1999 meeting that this issue would keep dominating procedures.

From its text, the achievement of the Convention’s object can be seen to rest on four main principles.

1. The Convention requires that the "underwater cultural heritage should be preserved for the benefit of humankind." If phrased as the beneficiary principle the question is immediately raised as to whom comprise humankind and who is to act as the trustee for such a beneficiary and what discretion is available as to how the obligation to benefit is to be discharged.
2. The Convention expresses the principle of shared responsibility by repeating the general obligation of Article 303 (1) to protect objects of an archaeological and historical nature found at sea and to co-operate for this purpose. However, the Draft extends the class of those sharing responsibility to all subjects of international law and includes sports-divers, commercial salvors and archaeologists. However, it is one thing to extend the compass of application, it is another to provide it with practical meaning. This can only be achieved if those addressed can be sure of what is expected from them.
3. The Convention is emphatic as to the primacy of preservation of underwater cultural heritage in situ. This assumption that in situ preservation is always the best way to protect wrecks, is open to question. For example, natural deterioration is completely disregarded as an element threatening underwater cultural heritage. The fact that natural deterioration is virtually ignored is attributable to the theory of land-archaeology "[…] that buried land sites reach an equilibrium where they are generally stabilised and deterioration has stopped." This theory was developed by experience with on shore excavations and has now been applied to the extremely harsh environment of the offshore seabed. "Here the extensive damage to shipwrecks by nature is well documented, and contradicts the theory that they have stabilised." Moreover a once discovered wreck can not be undiscovered. To guard or police, conserve and preserve a wreck of which the location is known but of which the archaeological value is not yet established, will require a complicated protection and control mechanism.
4. The Convention expressly requires its conformity within the context of existing international law and particularly LOSC 82. This is of great significance as it is from this conformity which the legitimacy of the Draft Convention can be found. Although Article 303 (4) LOSC 82 provides the mandate for the Convention as many States stressed during the expert meetings, this does not escape the necessity to be compatible with the other provisions of the LOSC 82. Any failure to do so leads inevitably to incoherence as the LOSC 82 has express provisions governing its amendment. The LOSC 82 was a sensitively engineered Convention establishing a finely balanced legal regime whose rights and duties, which had taken years to negotiate in an acceptable manner to all. Accordingly, any amendment requires a much higher threshold of consensus than UNESCO can achieve. It is in this connection that jurisdictional issues arise.

In the following paragraphs it will be seen how these principles are meant to be operated and if other specific elements are required.

The current definition is based on a rather absolute time limit of a hundred years with an option to States to include underwater cultural heritage submerged for less than a 100 years. The time limit as incorporated in Article 1 (a) and open to States to amend in Article 1 (b) was preceded by a separate article 2 in former drafts. There the scope of the Convention in terms of time was connected to the principle of abandonment and the time limit was incorporated in the main article on definitions. The principle of abandonment however, has been deleted. The addition of "within its jurisdiction", Art. 1.1 (b) was added by UNESCO working group 1 in 1999 to take away concerns of certain States which were afraid that other States would expand and consolidate jurisdiction over the area currently within the EEZ. As stated in the footnote to the proposal of this formulation, Article 1 (5) would cause definitional problems regarding the general title of the Draft Convention. No decision could be taken and this issue has been left to the next expert meeting. An additional paragraph 6 was inserted in the final report of UNESCO defining "activities directed at underwater cultural heritage" to make a distinction between those, and activities incidentally affecting underwater cultural heritage. During the 1999 expert meeting Canada proposed to focus the protection of underwater cultural heritage on activities "directed at" underwater cultural heritage. This would include activities of "treasure" salvors but excluded the mining, fishing and cable industry, as they do not direct their activities to underwater cultural heritage. Although the proposal received a remarkable amount of support in the sense that it would (again) limit the scope of the Convention which would make application easier, no such limited application made it to Article 2 addressing the scope of the Convention although a definition of "activities directed at" was incorporated in Article 1.6.

The definition as it stands at the moment does not address the issue of "where is protection needed" but is limited to "what is included in underwater cultural heritage". The context in which objects are found is in itself specified as a part of the underwater cultural heritage by Art. 1. (a) (i).

Many States still regard the definition as too broad for effective implementation as it would include anything lost a hundred years ago. Moreover, time passes and what is not protected today will suddenly qualify as underwater cultural heritage in ten years. The United States proposed a definition, which equates underwater cultural heritage to its historic or archaeological significance. This proposal of course begs the question who is to decide and although discussed was left for the next meeting as Article 2 was not yet fully negotiated and could considerably limit the definition.

Article 2 defines the scope of the Convention and has proven to be highly contentious. Initially it was linked to abandonment and stipulated the non-inclusion of war wrecks. As has been pointed out, the concept of abandonment has itself been abandoned by the Draft Convention and as will be seen, the inclusion or exclusion of war-wrecks is still not fully decided upon. Article 2 (1) is far from reaching a final version and is once again up for negotiation at the next expert meeting in 2000. The current proposals which have been discussed in working group 1 (1999) relate the scope of the Convention to a geographical area instead of a mere reference to Article 1.

The first option of paragraph 1 refers to a general scope in the sense that "sea" is not further defined and follows the general principle of Article 303 LOSC 82 to protect archaeological and historical objects found at sea. The second option extends the scope of the Convention to underwater cultural heritage irrespective of location and the activities, which concern or threaten it. The latter thereby includes underwater cultural heritage located in the territorial and internal waters of a State and generalises the activities which could threaten this heritage.

Article 2 (bis) and added language restates one of the principles of the preamble which stresses conformity with LOSC 82. As the footnote to this article indicates a final decision will be taken after the conclusion of working group 3 on articles 4 to 7. Moreover, the article now refers to the Draft Convention as an agreement to make a distinction between the former and LOSC 82. The reference to "activities" stresses that the Convention will apply to all activities which affect or danger the underwater cultural heritage and thus makes no distinction between "activities directed at" or incidentally affecting the heritage.

Paragraph 2 deals with the exclusion of war-wrecks and was extensively discussed during all the expert meetings. As of now no settlement could be reached nor any decision taken on the issue whether or not these wrecks should be excluded and, if so, on the basis of which criteria, which explains the brackets around the provision. The issue was left for the chairman to make a new proposal to the 2000 expert meeting. Based on the discussions, the chairman proposed that "the Convention would not apply to the remains and contents of any warship, naval auxiliary, other vessel or aircraft owned or operated by a State and used, at the time of sinking, only for non-commercial purposes."

Warships had been addressed and excluded from the scope of the Convention until 1998. The argument used by the ILA rapporteurs in their commentary to the 1994 Draft was that many States took the view that in the absence of an express transfer of abandonment of a warship sunk in the near past, it should be presumed that title to these wrecks remain with the State. At the 1990 ILA working session it was already stressed that warships needed to be addressed. There where concerns that in combination with a time limit, certain recent war-wrecks which where considered to be of historical significance, would fall outside the Convention and thus could not be protected under the proposed regime. Moreover, there where views that submarines and other war-wrecks could still contain military information which had nothing to do with cultural heritage and should thus not fall within the ambit of the Convention.

At the UNESCO expert meeting 1996 an extensive discussion took place on which criteria should serve as the basis for a definition of warships. The definition of LOSC 82 in article 29 was considered as a starting point, but it was doubted if it should be applied to very old warships. Reference was also made to the definition of article 4, Salvage Convention 89, which reads: "... this Convention shall not apply to warships or other non-commercial vessels owned or operated by a State and entitled, at the time of salvage operations, to sovereign immunity under generally recognised principles of international law unless that State decides otherwise". However this provision does not necessarily includes the answer to the question whether sunken warships and public vessels still qualify as ships submitted to the exclusive jurisdiction of their Flag State and enjoy sovereign immunity. Whether all warships should be excluded was only mentioned and not discussed at length in 1996.In the conclusion on this subject the Chairperson noted that the exclusion of warships in international conventions was common but that it was important to see that nothing would fall out of protection.

In conclusion it can be said that two views dominated the issue. Either to exclude war wrecks from the scope of the Convention or to include them and set up the conditions under which they would enjoy sovereign immunity. Both views were taken to the 1999 expert meeting. At that meeting, the decision on the Juno and La Galga by the fourth District in the United States prompted the US and Spain to make lengthy remarks on this issue both stating that war-wrecks felt under sovereign immunity and could not be subject to implied abandonment. The contrary position was expressed by the Caribbean, which stated that any wreck up to 200 miles would fall under their coastal State jurisdiction regardless of their qualification as a war wreck.

Article 3.1 comprises two principles, the duty to take reasonable measures to preserve underwater cultural heritage and that it is humankind who should benefit from the preservation. In this regard the provision not only reflects one of the duties of article 149, LOSC 82, but also extends it from the limited geographical scope of the Area to all underwater areas. However, Article 149 also specifies obligations concerning disposal which are not carried forward to Article 3 or the Convention in general. Article 3.2 reflects Article 303 LOSC 82 in the sense that it repeats the co-operation principle and adds that this should specifically be done in the event of common interest, specifying this interest by naming location and/or origin as reasons for co-operation.

The absence of elaboration on the duty to take reasonable measures leaves States free to determine what can be regarded as reasonable. As the Annex will lay down minimum standards it may follow that the minimum would be the standards as incorporated. Whether the application of those standards is subject to and dependant on what is considered reasonable within a certain country is not clear and may have the potential to encourage disputes.

The 1998 experts meeting discussed a proposal to provide a greater degree of specificity. Although none of these were carried forward to the meeting in 1999 they are worth noting. In addition to proposals to obligations to provide necessary measures to hinder commercial exploitation, proposals were put forward to facilitate the multiple use of underwater cultural heritage. In addition, a Russian proposal provided for a report system to the Flag State, coastal State and States listed in Article 149 of any discoveries in internal waters, territorial sea, contiguous zone, EEZ or continental shelf. The International Seabed Authority as well as UNESCO similarly should be notified when something was discovered in the Area. Although any of these proposals would at least have specified what was meant by Article 3 none of them made it from the 1998 to the 1999 expert meeting although the final report of UNESCO added the co-operation element together with some specifications as to when this would be necessary.

The second element of Article 3 relates to the status of humankind as beneficiary and as such builds on the reference in Article 149 to the benefit of mankind. Neither of course specifies what those benefits might be or how they may be discharged. The Draft Convention framework instead tries to develop a concept of custodian-ship on the part of States and thus neatly avoids getting into questions of ownership.

Although the primary objective of the Draft Convention is focussed on international waters, the Draft intends to establish a minimum set of standards for areas under coastal State jurisdiction and to fill the lacuna under LOSC 82 with regard to the exclusive economic zone and the continental shelf.

The proposition that protection of underwater cultural heritage in zones beyond the contiguous zone, i.e., the exclusive economic zone and the continental shelf, should be devolved to the coastal State is completely new and has not surprisingly raised controversies with regard to compatibility with LOSC 82 during the expert meetings. Connected questions of constraining measures on other States in relation to nationals and flagged ships as well as non-use of areas under the jurisdiction of the coastal State; report systems and the allowance of regional agreements; underwater cultural heritage in the Area and activities incidentally affecting underwater cultural heritage were bound to raise discussion.

During the 1999 expert meeting a separate working group (3) was installed to discuss jurisdictional issues and when possible propose new provisions. This resulted in a new Article 4 added with an Article 4a in order to separate the contiguous zone from zones under full sovereign jurisdiction. This article was negotiated in a form ready to be presented to the next plenary in 2000. No decision however, could be taken on a final proposal for underwater cultural heritage in the exclusive economic zone and on the continental shelf (Article 5), the non-use of areas under the jurisdiction of the coastal State (Article 6), and prohibition of certain activities by nationals and ships (Article 7). During the sessions it became clear that the debate was dominated by severe difference of opinion and approaches. Accordingly it was decided that three options would be offered for consideration by the plenary in 2000 although the positions of all States participating in the working group, were reserved. With this in mind, the topics encompassed in Articles 5, 6 and 7 will be explored by a thematic approach.

Articles 4 and 4 (a) address underwater cultural heritage in the territorial waters and the contiguous zone of a coastal State. Both articles state that activities in these zones should, as a minimum, be guarded by the rules of the Annex. The right to regulate activities concerning underwater cultural heritage in the areas mentioned in Articles 4 and 4 (a) is already well established. However, although coastal States have a wide variety of laws to apply, minimum standards on which other States having an interest can rely are imposed and extended to those States who may as yet have no interest. It is noteworthy to mention the difference between article 4 (2) and Article 4a with the former including the wording "should take all measures" and thus requiring active participation of the coastal State while Article 4 a merely puts a duty on coastal States to require from those involved in the preservation or protection of underwater cultural heritage that they comply with the rules of the Annex.

The 1998 and 1999 experts meeting focussed on the question whether the contiguous zone should, or should not be addressed in the same article. Whilst some States stated that the inclusion of the contiguous zone was not only necessary but also allowed as Article 303 (2) LOSC 82 specifically addressed the contiguous zone others preferred a separate article as the rights and duties over the contiguous zone under LOSC 82 differed from the rights and duties in the internal waters of a State, and should accordingly be separately addressed. Adding article 4 (a) addressing the contiguous zone with a special reference to Article 303 (2) solved the issue. The latter already limits the rights and duties of States in that particular area and Article 4 a puts an extra duty on States to require compliance, at a minimum, with the rules of the Annex when they invoke the rights they have under Article 33 LOSC 82. France stressed that the aim was effective protection which without qualifications would render Article 4 meaningless. By adding "compliance with the Annex" the qualifications were given.

The word "activities" was similarly extensively discussed. Canadian proposals to use the phrasing "activities directed at" aimed to avoid a too broad scope to the Convention can be contrasted with concerns of Italy and Nigeria that "activities which indirectly affect" (such as fishing, cable laying and mining) underwater cultural heritage were a similar threat. As others considered this a lawful use of the sea no final wording could be decided upon and the proposal to the plenary contained the bracketed wording "activities directed at."

The internal waters of a State received some attention with regard to wrecks located in occupied territories. The question who would ultimately decide upon the preservation of those wrecks raised an extensive discussion between Libya and Israel. No decision was taken with regard to this question. This initiated the debate whether there should be an obligation on States to notify the State of origin of a wreck located within their internal waters. The interests of the State of origin had already been mentioned in a 1998 proposal by the Russians who felt that these States should at least be notified. As these issues were linked to general issues of co-operation and information sharing it was, again, left to the next meeting.

The lack of discussions on one issue needs to be mentioned. Article 303 (2) speaks about "removal" and grants coastal States certain powers in the contiguous zone over the "removal" of archaeological and historical objects. Article 4a refers back to Article 303 (2) LOSC 82 and adds that States may regulate and authorise, in accordance with Article 303 (2), (read removal),"activities directed at…." This leaves any issues with regard to "looking at"; photographing, filming or even organise underwater trips to a wreck in the contiguous zone unregulated or even addressed. It is obvious that coastal States have full authority to regulate these activities within their territorial waters, internal or archipelagic waters. Within the contiguous zone however, these activities fall outside the scope of Article 303 (2), Article 33 or Article 4 a for that matter. This could point in the direction of a High Seas freedom under the heading of marine archaeology.

LOSC 82 does not grant coastal States jurisdiction over activities affecting underwater cultural heritage in the EEZ or on the continental shelf. The only provision which could be interpreted as relevant in these zones is Article 303, LOSC 82 which imposes on all States the general obligation to protect archaeological and historical objects and to co-operate for that purpose which if anything supports the responsible exercise of a freedom of the High Seas.

The proposition contained in the Draft Convention that coastal State jurisdiction be extended aims at solving jurisdictional questions, specifically to address activities concerning underwater cultural heritage. This is in obvious conflict with one of the dominating principles of the preamble that the Draft should be in conformity with LOSC 82. The 1994 ILA Draft contained a provision establishing a cultural heritage zone up to 200 miles coextensive with the continental shelf as it was agreed upon that the convention would serve little purpose if it were only limited to the territorial sea. The creation of a new zone however, met considerable opposition during the expert meeting 1996. States used the argument that an extension of jurisdiction was not desirable as these extra jurisdictional powers could be used for creeping claims of sovereignty over other issues. However if restricted to cultural heritage the proposed zone although coextensive with the continental shelf, need not be considered subject to its legal regime. This would also remove the possibility of conflict, which might otherwise arise as a consequence of one State seeking to gain jurisdiction over underwater cultural property on another State’s continental shelf.

The 1998 UNESCO Draft Convention tried to avoid these controversies by replacing the cultural heritage zone with the grant of a (permissive) power to coastal States to regulate and authorise all activities affecting underwater cultural heritage in its EEZ and continental shelf. However, although some thought this proposal more practical than any other option, others preferred a combination of port State control and national and flag State jurisdiction. The 1998 meeting of experts failed to resolve these positions but although the 1999 meeting again left the issue open it was stressed that regardless of outcome the general principle of "due regard to the interests of other States" would be added to the text to reflect the requirements of LOSC 82. The fact that the report of the working group drafted three options as to how the jurisdictional issue could be resolved demonstrates how far apart State’s are on the issue.

Throughout the jurisdictional discussions it was clear that the rules comprised within the Annex would only be obligatory in respect of regulation by the Coastal State of relevant activities within their EEZ or continental shelf. Neither of the proposals provided a "duty" to regulate or authorise. LOSC 82 provides a general duty to protect archaeological and historical objects found at sea (regardless of where found) and to co-operate for this purpose. Ergo, an obligation already exists to protect and co-operate although it is not specified how this should be done. Thus although the Draft Convention links such a duty to the standards of the Annex, it fails to build upon the LOSC 82 by making the assumption of the duty permissive and connected to the choice to regulate.

The emphasis given to the incorporation of the due regard principle by which a State must refrain from interference with the legitimate uses of other States has already been noted. It was additionally felt that this should be given additional meaning by the institution of a report system. A Russian proposal whereby removal of underwater cultural heritage from locations outside a contiguous zone should be conditional upon prior consultations and agreement with those States whose interests are specified under Article 149 LOSC 82 failed to be taken up and was regarded as both as being impractical as well as in error, Article 149 dealing with the Area and not the EEZ and Continental shelf.

This failure left open the question of who should report and to whom. A "duty to notify by all sea-users" would at least be expected to require a clear addressee if it was to have any meaning at all. In practical terms such a system would require the coastal State to maintain the capacity to analyse information received, to disseminate its findings to interested States, to manage the co-ordination of their responses, and then to manage the co-ordination of protective measures on the part of the States concerned, including the compatibility of the measures to be taken with others users to whom due regard is required. Such a system could either work on the intergovernmental basis described or use the dedicated resources of an international institution.

An additional way to protect underwater cultural heritage was found in the possibility to conclude regional agreements. Countries within the same region, sharing the same problems should be able to deal with these problems in close co-operation within conformity with LOSC 82. In the view of certain States, the Draft Convention did not provide strict enough rules to ensure a consistent regional approach and it was felt that regional initiatives should as a minimum comply with the rules of the Draft Convention and the principles laid down in the Annex. Proposals to this end were incorporated in the report of working group 3 and did not meet any opposition. However, the conclusion of an international Convention does not preclude States from entering into a regional agreement, and some may already exist, and as such a separate article on regional agreements could be viewed as unnecessary.

The possibility of a combination between flag State and port State jurisdiction to regulate, access to and the activities concerned with, wreck sites located outside territorial waters was looked into and formed part of two of the three options of working group3. Such a combination would avoid the creeping jurisdiction problem of additional Coastal States power, whilst still ensuring protection.

At some point in every underwater cultural heritage operation ports are called upon, either to storage artefacts or for supplies. Accordingly, port State jurisdiction, as suggested, could deny support to activities taking place in the EEZ, on the continental shelf or in the Area, which adversely affect underwater cultural heritage and/or inconsistent with the provisions of the Annex.

Under LOSC 82, ports are presumed to be open subject to specific restricted or prohibited activities. The protection of the underwater cultural heritage however, is not one of these restricted or prohibited activities. Port State control would thus be a new duty on States comprising the denial of any support to vessels engaged in activities affecting underwater cultural heritage and contrary to the Annex. Such a duty however, would have far reaching implications for the coastal State. Not only would a well working internal system be necessary to form a view as to whether the related activities are indeed contrary to the provisions of the Annex but finding out what exactly is happening and where as well as the risk of detaining ships in ports while a final decision takes place. Whilst LOSC 82 does provide for port State control with regard to marine scientific research activities and environmental pollution, this regulation is based on the assumption that the port State has the discretionary authority to permit or deny entry of foreign vessels into its maritime ports and thus seems to be suitable for extension to the Convention on a case by case basis.

The combination of Flag State and nationality-jurisdiction was proposed as a way of controlling activities concerning underwater cultural heritage by their nationals and ships in areas beyond national jurisdiction. One of the options contained in the report of working group 3, supplemented this proposal with a duty to report of such activities when taking place in the EEZ or on the continental shelf of another State to the competent authorities of that State, or the State of origin, or the State of cultural origin or the State of historical and archaeological origin.

The protection of the underwater cultural heritage in the Area is provided for in LOSC 82 through Article 149 which stands on its own and provides a general statement without specifying any implementation mechanism. The International Seabed Authority which administers the natural resources of the Area and includes a permit system and a distribution mechanism, was not given any rights or duties in this regard. Hence a gap with regard to implementation exists which the negotiating States felt should be addressed by the UNESCO Draft Convention in order to give Article 149 practical meaning.

Article 14 of the Draft Convention is intended to elaborate the regulation of underwater cultural heritage found in the Area by requiring notification of the finding of such items to the International Seabed Authority, which would in turn notify UNESCO. However, although developing Article 149 LOSC 82 in one way, Article 14 makes no reference to the principles provided for in Article 149.

At the 1998 expert meeting it was noted that the International Seabed Authority had no structure or jurisdictional powers to either accept or respond to notification and it was questioned whether the International Seabed Authority was suitable at all. Although a notification system was needed, it was felt that this should be under the co-ordination of UNESCO and supplemented by a duty on States to be responsible for the management of these sites for the benefit of humanity. It was also felt that in order to secure compliance with the Annex and to exercise effective supervision over deep seabed remains, something more than institutional co-ordination was required and that in the absence of any other suitable body, UNESCO should be provided with such a mandate.

At the 1999 expert meeting this issue was taken by working group 3 within its jurisdictional discussion but due to constraints of time was not extensively addressed. Two of the three options offered in the report of working group 3 link the prohibition of applicable activities in the Area to nationality and flag State jurisdiction. The third option reformulated Article 14 by moving the burden of notification from the finder, to States who will therefore be expected to have legislation in place ensuring, inter alia, appropriate reporting of finds by their nationals and from their flag vessels. Having been notified, UNESCO would in turn either notify the International Seabed Authority or under an optional paragraph, itself carry the responsibility to notify the States enjoying preferential rights under Article 149.

An effective protection mechanism for underwater cultural heritage in the Area will largely depend on shared responsibility, shared financial contributions and shared management programs of all States. Port States, States who’s nationals are actively involved in underwater projects, and those States with clear interest in the sites will be those most likely to carry the burden of protection. A key element is a reporting system to ensure effective notification. However, although UNESCO is seen to have a role to play as a conduit for dissemination of information, whether it should also bear the responsibility for distribution of this information or whether States concerned should inform themselves through collection of information from the international institution, is an issue which has yet to be resolved.

It has already been noted that by using the phrasing " activities directed at", the incidental destruction of underwater cultural heritage by other uses of the sea, will be completely ignored. The report of working group 3 therefore includes a proposal to address this omission within a new Article 10. In addition, it proposes that UNESCO be given the power to designate a site in the Area as requiring special protection with flag States than having the duty to take necessary measures to avoid activities which would threaten these sites. In combination with States duty to report to UNESCO sites located in the Area, the Convention attributes a significant role to UNESCO in the Area. As already noted, it is at least doubtful if UNESCO is able to handle this new role in the absence of a new bureau specifically instituted to deal with the designation of sites which would require research and an efficient report system as well as extra financial support of all States.

The proposal will necessitate a complicated search for economic balance of interests as the oil, gas, mining, cable and fishing industry represent a major economic interest to States. Weighting the protection of the underwater cultural heritage, i.e. management projects absorbing financial resources, against huge projects involving "making money and providing jobs" will not be easy. In addition these industries possess clear pressure groups while newly discovered underwater cultural heritage is without a lobby group. If the ultimate goal is to protect the underwater cultural heritage it is logical to address all activities which threaten to disturb the site and thus involve commercial explorers, researchers and the interests without having to make a distinction between "activities directed at" and "activities incidentally affecting" underwater cultural heritage. Whatever the risk, "necessary" and "reasonable" measures will require a balance to be found to fit the circumstances. In this connection the distinction between direct and indirect threats becomes academic.

Articles 8 to 18 were discussed in the plenary of the 1999 expert meeting. As time limited the discussions considerably, the Chairman of the plenary proposed amendments based on the discussions in the plenary, to be considered by State delegates for the next meeting in 2000. Former article 14 concerning underwater cultural heritage in the Area was excluded as being dealt by working group 3 in their proposed Article 7.

Article 8 gives State Parties the optional power to issue permits or to provide for the issuance of permits to those who want to bring underwater cultural heritage retrieved in a manner consistent with the provisions of the Annex, into its territory. The permit can be issued before and after the work begins.

A former draft article 8.2 enabled permits to be issued after an operation. This met much opposition during the 1998 expert meeting on the basis that although permits could only recognise operations conducted in conformity with the Annex, the possibility of postponing an operation to scruting would itself stimulate the illicit retrieval of underwater cultural heritage. The current draft article tries to achieve consensus by omitting the former sub paragraph 2 whilst imposing no time constraint on when permits may be issued as long as the activities have taken place in compliance with the Annex. The final report of UNESCO however reintroduced a paragraph 2 providing for the issuance of permits to allow entry into the country of such underwater cultural heritage after an operation has started as long as the activities had been conducted in accordance with the rules of the Charter (read Annex).The re-introduction however was subsequently ruled through as an indication that this paragraph was proposed to be deleted at the next expert meeting.

In essence, Article 8 enhances the concept of port State control. States should use port State control to prohibit the entry into its territory of material retrieved contrary to the provisions of the Annex, but if the operation has been conducted in full compliance with the Annex, a permit may be given. As the later is optional it merely states the domestic discretion already inherent in a States sovereignty and as such unnecessary.

Whilst a port State has the discretion to control operations by adopting a permit scheme, Article 9 does impose a duty to refrain from giving any support to activities concerning underwater cultural heritage which do not comply with the Annex and imposes a further duty to seize items recovered from such activities when brought within its territory. Paragraph 2 met some opposition of State delegates on the grounds of undue interference with coastal State precedence in setting standards applicable to its own heritage. Accordingly, paragraph 2 provides a bracketed option for the possibility of seizure to apply to applicable items recovered not just from locations within international waters but also from locations within the jurisdiction of other States subject only to their consent or request. This reservation neatly avoids disputes when a port State has in place more stringent measures than the applicable coastal State to whom it must now defer. As this argument is closely connected to jurisdictional questions with regard to the EEZ and the continental shelf, the chairman put the paragraph between brackets to stress the importance of further negotiations depended on the outcome of the final results of working group 3.

Article 9 does not stand on its own and needs to be read in conjunction with Articles 11 and 12 on the notification to other States and the treatment of seized heritage and on the disposition of underwater cultural heritage after seizure.

Article 10 is supplementary to Article 9 and likewise obligatory. The State, which has seized material, has to impose sanctions on the importation of the underwater cultural heritage concerned. Paragraph 2 obliges States to co-operate with regard to the sanctions imposed. The specific obligation on a receiving State to impose sanctions is thus supported by a general duty of co-operation on the part of other States.

The sanctions are limited to importation although a proposal to extend the application of sanctions to all violations of the Convention was received. The option to impose civil sanctions was added after suggestions of States who regarded criminal and administrative sanctions too limited of an option. In general it was felt that some caution with regard to obligations to impose sanctions was in place and that this article needed more careful thought.

Problems with regard to extradition were mentioned during the 1998 and 1999 expert meetings and in general it was felt that this issue needed more careful study before it was drafted in this way. Paragraph 2 had formerly read " States Parties agree to cooperate with each other in the enforcement of these sanctions. Such co-operation shall include but not be limited to, production and transmission of documents, making witnesses available, services of process and extradition." The paragraph thereby specified some of the means of co-operation. At the 1999 expert meeting the comment of States was that it was up to the internal system of a State to decide on means of co-operation and the extradition problems were still not solved. The chairman therefore simplified the obligation to general co-operation without an enumeration of means.

Under Article 11.1, a State has to record and protect the seized material as well as take reasonable measures to ensure the conservation. As such it should be read in conjunction with Article 9 and 12. The duty to conserve will obviously impose a burden as specialised knowledge and technology will be required to be available. Although no standards of conservation are specified it may be assumed that this should be done in accordance with the contents of the provisions of the Annex. Under Article 11.2 there is an obligation to bring the material seized to the attention of UNESCO and those States which may have an interest. Whilst this is consistent with the aim of establishing a coherent notification system, in practice the burden of deciding which States to notify and dealing with related enquiries is likely to be significant.

Although, lack of time prevented much discussion on Article 11 two issues were addressed. Whether UNESCO should be notified as the central authority dealing with the collection of information on underwater cultural heritage, and how to assess the cultural heritage interest of a State, i.e., whom to notify and how to decide on the validity of the interest shown. Additional questions exist on the degree of discretion in balancing expenditure against the needs of protection and conservation when deciding on the reasonable measures required under Article 11.1 and secondly what continuing administrative and technical support is needed once the notifications under Article 11.2 have been made and to what extent can contributions be expected from States responding with interest.

As will be seen, Article 12, empowers the seizing State to decide on the ultimate disposition of the material seized as well as how the interest of other States are to be taken into account. However, although Article 13, provides for collaboration and information sharing, the obligation on States which wish to assert an interest is merely an obligation to consider collaborating. Accordingly, the question of denying interests of other States on the basis that they are unwilling to underwrite the costs of collaborative co-operation is likely to be fraught with uncertain consequences.

Article 12.1 provides that following protection, conservation and notification under the preceding articles, the receiving State is empowered to decide on the ultimate disposition of material so as to give expression to the obligation of Article 149 LOSC 82 that items are to be preserved for the benefit of mankind and that in such regard preferential rights exist on the part of States of origin, of cultural origin, or of historical and archaeological origin. In addition, Article 12.2 hides the exclusion of the application of salvage law. As the in or exclusion of salvage law has a long history, Article 12.2 will be dealt with separate from Article 12.1.

Although limited to seized goods, Article 12.1 elaborates what should be taken into account to ensure that the public benefits and thus the benefit of mankind achieved. However, realistic criteria as to how the listed States who may claim preferential rights may be identified are absent as well as how to deal with competing claims. Although, the requirements of Article 149 are addressed, it must be noted that Article 149 deals only with underwater cultural heritage found in the Area whilst Article 12 (1) applies to relevant material found within a much broader area including the continental shelf and in the EEZ. In regard to the ultimate disposition, Article 12.1 also provides that the needs of conservation and research, including the need for re-assembly of a dispersed collection, as well as public access, exhibition and education must also be taken into account. Although echoing the general duty to conserve noted in Article 11 and anticipating the concern for education within Article 15, the concern for re-assembly of a dispersed collection is new and reflects the concern of archaeologists that for optimum research value it is important a collection be kept together. No comments were made on the list of considerations to take into account. As the list is not formulated as a duty, it is up to States to decide on ways and means and thus leaves a wide field to balance the interests as long as the ultimate disposition will benefit the public. Concern was expressed regarding the ambiguous wording of the last sentence of Article 12.1 which although omitted in the prior Draft had been reintroduced by the Chairman after requests by States without concern for the inherent difficulties posed by the original wording in Article 149 LOSC 82. It was suggested that prime consideration be given to the State of origin or return to the State from whose territorial waters the material had been recovered, removed and illegally exported. Although, the Draft Convention does not provide for the return of seized material, this might be an agenda issue for the next meeting. Several States commented on article 12.1 with a concern as to scope of the article. Did it apply to heritage found in waters beyond national jurisdiction or also those found within? In the commentary to Article 12 it was stressed that articles 9 to 12 deal primarily with seized material "found beyond the territorial and jurisdictional limits of State parties, i.e. either on the High Seas or in another States offshore zone of control provided that the latter consents to the seizure".

The current UNESCO Draft, unlike the preceding ILA Drafts no longer includes a specific exclusion of salvage law in relation to underwater cultural heritage. To understand the removal of such a significant provision it is necessary to recall the meaning of the term salvage. The significant points worth noting are that those who voluntarily rescue a ship or any part of her cargo from the imminence of a marine peril are entitled to claim a reward from the owner and until discharged retain a lien over that which has been recovered. The law of salvage is premised upon the notion that the shipwreck has an owner whose losses are remitted to the extent of the residual value of what has been recovered. Three elements are necessary to a valid salvage claim: a marine peril, service voluntary, as opposed to contractually, rendered, and the recovery of in good faith for the benefit of the owner of the items in respect of which salvage is claimed.

As Article 303 (3) LOSC 82, expressly reserved the applicability of the law of salvage, the decision to omit the reservation in the current Draft renders a further incoherence in relation to LOSC 82. ^The situation is further complicated by the Salvage Convention of 1989 in which an exercise to codify and develop the law of salvage within a multilateral framework allows the possibility for parties to enter a reservation excluding the Conventions applicability to underwater cultural heritage. This carries the implication that salvage otherwise does apply to such material and with regard to items outside territorial waters salvors merely have to present their claim to an admiralty court of a State who has not entered a reservation. The Draft would abolish salvage law while LOSC 82 read together with the Salvage Convention contains a choice.

The law of salvage provides a commercial incentive to salvors to undertake the often speculative nature of a recovery operation. Although it was suggested in the working session in 1990, that a reward system could be beneficial when used for the disclosure of the location of a wreck the records do not demonstrate that this option was considered in-depth. Another option, that of using a salvage rewards as an incentive to excavate properly, was put down by the chairman of the UNESCO expert meeting who stated that he doubted "whether such excavations would then be commercially viable. At that same meeting an expert stated that "the concept of being financially rewarded was fundamentally anti-ethical to archaeological and scientific research"a remark which raises the question as to how such speculative research is in fact budgeted and funded.

Practitioners in the field of excavation and retrieval of underwater cultural heritage have used the regime of salvage to ensure their reward and courts all over the world applied salvage law although interpreted in such a way as to cover the specific characteristics of archaeological and/or historic shipwrecks. Moreover, salvage law is aimed to encourage recovery of a particular wreck an aim at odds with the primary aim of the UNESCO Draft of preservation in situ unless recovery is necessary for scientific or protective purposes. This is very close to the concept of imminent maritime peril, which was considered inapplicable to underwater cultural heritage as there was no longer any peril involved, save possibly from salvors. The commentary to the 1994 ILA Draft attempts to reconcile the matter as follows " Indeed, the heritage may be in greater danger from salvage operations than from being allowed to remain where it is. Even if it lies in an area of turbulence, the remedy is to use the provisions of the Convention and Charter rather than rely on criteria drawn from salvage practices."

Whilst the 1998 Draft presented by UNESCO no longer contained Article 4, Article 12 (2) provided for the non-applicability of internal laws providing commercial incentives for the excavation or retrieval of underwater cultural heritage. Thus the term salvage was avoided whilst the essence of salvage law was excluded. The underlying view that commercial exploitation is fundamentally incompatible with the preservation and protection of underwater cultural heritage was derived from the ICOMOS Charter and both replaces and strengthens former Article 4. By banning commercial incentives the application of certain concepts incorporated in the regime of salvage law, such as the reward system which is based on commercial incentives, would be forbidden.

The voiding of "any internal law or regulation having the effect of providing commercial incentives or any other reward" in Article 12.2 raises the question as to the status of international law and whether this leaves international law particularly, customary salvage rules and the Salvage Convention 1989 unaffected. Although often taking effect through domestic legislation and courts, their existence derives directly from an international system in respect of which specific rules apply as to how and in what circumstances rights and duties may be changed or otherwise modified. The expert meetings however did not address this issue.

With regard to article 12.2 a lively discussion took place in the plenary of both expert meetings and in the corridors of the UNESCO building. At the 1998 expert-meeting discussion of salvage was renewed with some seeming to favour a return of the original Article 4 of the ILA Draft. The United States presented a proposal introducing the concept of "multiple use" which stressed the multiple functions and possibilities of underwater cultural heritage including the possible need to sell artefacts on the commercial market to get a project financed. The introduction of this concept created confusion and was not discussed in depth although it was re-introduced at the 1999 expert meeting. The 1999 expert meeting remained inconclusive on the in or exclusion of salvage law with even the United States reserving their position by proposing exclusion of salvage law but with the option of making a reservation although States would be bound by the Annex. Due to time constraints the issues were not fully negotiated but it was clear that the issue was not closed.

Article 13 addresses collaboration and information-sharing both crucial elements to the concept of co-operation between States introduced by Article 303 LOSC 82 in regard to the management of the underwater cultural heritage. Article 13, unlike Articles 9 to 12 applies to all underwater cultural heritage not just to sized items. However, the obligation in paragraph 1 is formulated weakly in terms of "a State party […] shall consider collaborating in […]", instead of a direct obligation to collaborate. The rights of States having an interest are given in Article 11 with regard to notification of seized material and Article 12 when it comes to the disposition of such items. In providing guidance on how the co-operation with such States is intended to proceed, Article 13 suggests a structure by which these may be met, but does not apply a strict obligation so as to remain sensitive to the problems of attributing rights to uncertain counterparts with regard to material located within the coastal jurisdiction of a State. Paragraph 2 puts an obligation on States to share information with all State Parties, not just those having an interest arising out of, "discovery of heritage, location of heritage, heritage excavated or retrieved contrary to [the operative provisions of the Charter] or otherwise in violation of international law, pertinent scientific methodology and technology, and legal developments relating to heritage." Paragraph 3 adds a duty, "whenever feasible" to use "appropriate databases to disseminate information about underwater cultural heritage excavated or retrieved contrary to the operative provisions of the Charter or otherwise in violation of international law".

The discussion among State experts and delegates focussed on four points. First of all what exactly would be the rights of those other States, and who should have a primary say; secondly, questions were raised with regard to information sharing on the level of technology and the location of the underwater cultural heritage both of which a State might wish to remain confidential. Thirdly, the use of international databases was welcomed although it is clear that not all States would be able to implement such a high-level technology system. The last issue was whether UNESCO (or any other appropriate international organisation) should be the conduit for dissemination of information among applicable States. As with a number of other articles, Article 13 was not conclusively discussed in the 1999 expert meeting and it may be assumed that the issues will re-emerge at the next meeting.

Article 15 incorporates several statements of the preamble where education, co-operation between interest groups and the public as such, are noted as important elements in the protection of the underwater cultural heritage particularly in bringing awareness of the value of such heritage and the threat to it. How this is best achieved is left to the discretion of State Parties but it may be assumed that a wide variety of educational tools are envisaged. Whilst the expert meetings did not find much cause to debate this issue it was stressed that education should take place at a variety of levels to truly cover the public at large.

Article 16 addresses the duty on State parties to provide training in underwater archaeological research, either through the State or through competent organisations or bodies. This duty is supplemented by a duty to co-operate with regard to the promotion of training and the transfer of technology. Training is of course closely linked to education as well as capacity building and thus supplements Article 15.

Although the underwater cultural heritage may seem to be an important topic, the lack of marine archaeologists shows that the interest in this heritage is very new. Worldwide there are only a few universities offering specialised courses and often the techniques for land archaeology are used in the absence of any alternative. Training therefore seems to be a tool to ensure awareness and capable persons to deal with the heritage. The training of marine archaeologists has been proven effective by the training courses of the Nautical Archaeology Society in the United Kingdom which train sports divers to be responsible marine archaeologists as well as training under the auspices of the Commission of Science and Technology of the Council of Europe.

Article 17 defines the role of UNESCO in terms of assistance to State parties and the role it may play on its own initiative. Paragraph 1 specifies what assistance State parties may ask from UNESCO in terms of technical assistance. Although this is clearly limited to a specified list the scope of questions to which useful responses can be given is quite varied and extends by virtue of paragraph 1 to technical problems with regard to the application of the Convention.

Paragraph 2 provides UNESCO with the power to conduct its own research and public studies on matters relevant to the protection of the underwater cultural heritage. The final report of UNESCO added a new paragraph 2 which would limit assistance of UNESCO to its fixed programme and its resources but subsequently ruled this paragraph through. In the light of the duties now attributed to UNESCO this paragraph would take away much of the meaning of the former paragraph and the reason for proposed deletion can be understood. Paragraph 3 puts a heavy duty on UNESCO to take care of the dissemination of information with regard to activities directed at underwater cultural heritage to State parties. As the term " activities directed at" was firstly incorporated at the 1999 expert meeting, it may be assumed that paragraph 3 refers to activities directed at as defined in Article 1. This requires substantive knowledge on those activities by UNESCO.

Throughout the expert-meetings it became clear that States were of the opinion that the role of UNESCO needed to be increased. One central authority was thought to be necessary and in the absence of an alternative UNESCO was thought to be the best option to fulfil this function. Paragraph 2 raised the formal issue that UNESCO neither is nor can be a party to the Convention and thus whether it could receive rights or powers by it. Both the United States and the United Kingdom stressed this point and proposed to delete this paragraph which was therefore bracketed by the Chairman.

The effectiveness of almost all of the aspects of the Draft Convention depends on the provision by State parties of a competent level of support services. The provision of such services is mandatory under Article 18 to the extent needed to be able to implement the Draft provisions, and the use of the term "competent" indicates that specialised services are envisaged

Participation of interested persons in the preservation and study of the underwater cultural heritage and in support of archaeological research was seen as implementing the statement from the preamble that co-operation with these parties is necessary. A provision to such effect was first deleted and later reintroduced by the Chairman but ruled through in the new draft convention as an indication that the State experts had proposed to delete this paragraph after all. Moreover, a duty upon State parties to establish internal mechanisms to deal with disputes on the question whether or not an activity was conducted in accordance with the provisions of the Annex was formerly provided for but appeared ruled through in the chairman’s proposal within the new draft Convention. As the Draft Convention provides for seizure of underwater cultural heritage, cases on the legitimacy of those actions can also be expected and Article 18.3 would have provided for these to be incorporated within such mechanisms.

Article 19 addresses dispute settlement with regard to the interpretation or application of the present Convention or the operative provisions of the Charter, but only between State Parties. The current provision refers to negotiation as a preliminary phase to arbitration, which again is a preliminary phase to the International Court of Justice.

Comments of States focussed on the possible availability of the Law of the Sea Tribunal as an extra forum. LOSC 82 contains four options to States under Article 287; The International Tribunal for the Law of the Sea, the International Court of Justice, arbitration and special arbitration. The argument against the Law of the Sea Tribunal was that they had no expertise in cultural heritage matters and would therefore not be suitable. The same argument however, would be valid for the International Court of Justice, in respect of which no objection was made.

A proposal to the 1998 expert meeting stated that negotiation or any other peaceful means as referred to in Article 33 of the UN Charter should settle disputes. Yet another proposal suggested settling disputes through "consultations, negotiations, conciliation, mediation or any other peaceful means. The 1999 expert meeting did not actively address dispute settlement procedures due to lack of time. Hence, the current Draft article on dispute settlement derives from the 1998 UNESCO Draft Convention and does not incorporate any of the former suggestions. It is clear from the submitted proposals that the issue will need more consideration.

Taking into account the nature of the subject and the parties involved it can be predicted that most of the disputes arising out of the Convention will be between States and individuals. The seizure of material, the permit system, the application of the Annex, the question as what exactly constitutes "commercial" and the questions with regard to warships are likely to give rise to conflicts between others than just State Parties.

The current dispute settlement provision does not provide for access of individuals involved in these conflicts and with the omission of Article 18 paragraph 3, the danger of scattered jurisprudence when left to the internal procedures of States and the application of unclear rules in the absence of specified knowledge can be foreseen.

Article 20 to 24 are the final clauses of the Convention and deal with the formal treaty procedures of ratification, acceptance, approval or accession (Article 20), reservations and exceptions (Article 21), amendments (article 22), denunciation (Article 23), the Charter, now Annex (Article 24) and authoritative texts (Article 25). It would be unusual to expect much discussion of these formalities during the substantive phase, but although this proved to be the case some interesting issues will have to be dealt with before final agreement can be reached.

The issue whether or not UNESCO could conduct its own research (Article 17) prompted the question whether or not UNESCO could be a party to the Convention. Article 20 confirms that only member States of UNESCO as well as non-member States invited by the general-director of UNESCO can become parties and nothing provides for entities other than States to become a party to the Convention. The United States proposed the Convention to be open to all States regardless of their membership of UNESCO or the approval of the director-general.

Reservations and exceptions (Article 21) was discussed in relation to the exclusion of salvage law and commercial sale of artefacts. Here, the position of the United States was that without the availability of reservations, they could not adhere to the Convention. Two other states; Israel and Turkey proposed less restrictive and more flexibility with regard to reservations. Turkey added that reservations and exceptions should be possible when not incompatible with the object of the Convention. In general, the view was that reservations would undermine the effect of the Convention and should therefore not be allowed. However, the only way this can be achieved is through consensus which is a long way from being achieved.

Article 24 concerns the Charter annexed by reference to the Convention which is intended to set the standards applicable in establishing what should be protected and in which way. The idea to use standards supplementary to the Draft Convention originated in 1990 when the report to the 1990 ILA Draft Convention concluded that the best alternative to a global regulatory body (to govern underwater cultural heritage) was to allocate control of the underwater cultural heritage to States, subject to clear international standards. The ICOMOS Charter for the Protection and Management of the Archaeological Heritage was mentioned in this respect since it was in the process of being revised to cover the underwater cultural heritage.

During the working session it was proposed that an Appendix to the Convention would lay down a set of standards to be implemented by State Parties. The 1992 Draft (ILA) referred to an Appendix with criteria in several articles and during the working session the (revised) ICOMOS Charter was proposed to set the standards. In the words of the rapporteurs to the 1994 Draft (ILA), "The Charter is intended to provide a set of criteria whereby States may judge whether activity in respect of the underwater cultural heritage has been, or will be, acceptable. In other words, if material has been excavated or retrieved, States will have a basis for determining whether it has been done in accordance with archaeologically acceptable standards." ICOMOS drafted a Charter on the protection and management of underwater cultural heritage as a supplement to the ICOMOS Charter for the protection and management of archaeological Heritage 1990. The document was adopted by the ICOMOS General Assembly in 1996 and presented to the UNESCO to be annexed to the Draft Convention.

When it became clear that the non-binding character of the Charter and its fate of becoming binding upon attachment to the Draft Convention raised serious objection from States, it was decided to look for an alternative. During the 1999 expert meeting a separate working group 2 dealing with the contents of the Charter decided to prepare "rules concerning activities directed at underwater cultural heritage." The working group did not discuss the possible legal consequences of these rules but focussed purely on the contents of the Annex to be based on the principles from the ICOMOS Charter. No decision has been taken on the results of working group 2 nor has it been presented to the plenary of the 1999 expert meeting. Extensive discussion on the legal status of the proposed Annex as well as with regard to the contents can be expected at the 2000 meeting.

Article 24.2 foresees that applicable standards will change over time to reflect future developments in methodology and techniques available to archaeology discipline. Under the current Draft ICOMOS is specified as the appropriate organisation to recommend revisions to UNESCO which then has the responsibility of circulation of these among States. At the end of six months from receiving such notification a State will be deemed to accept it unless it has previous noted its rejection. Although the reference to ICOMOS will probably change, it is likely that it will continue to be archaeological professionals who will update the principles according to the developments taking place.

This idea of a private body proposing amendments to treaties was thought by the United States as contrary to Article 40 of the Vienna Convention on the Law of Treaties under which it is for States alone to propose and amend treaties. There are however several other treaties which use a similar revision procedure to avoid having to resort to domestic ratification procedures being involved in the technical revision or amendments of treaties. As the provision provides for the option of rejection the danger might be that over time States would come to apply different standards for permits and seizure. It was felt however that the technical nature of the amendments would probably not raise many objections and the need for easy amendments without complicated procedures would balance against this danger.