Unofficial translation Paris, April 1999 Original : French

Paris, UNESCO Headquarters, 19-24 April 1999

made by member States and associate member States of UNESCO and

by member States of the United Nations

1. Since the Meeting of governmental experts to examine the draft Convention on the protection of underwater cultural heritage, held in Paris from 29 June to 2 July 1998, a number of member States have made further comments on this text. The Secretariat of UNESCO in its letter of 26 November 1998 had invited any member State wishing to propose other amendments to submit these to the Secretariat before 1 February 1999.

2. By 3 March 1999, the Secretariat had received twenty-seven replies from Member States (Argentina, Barbados, Canada, China, Colombia, Cuba, Dominican Republic, Haiti, Honduras, Iran, Israel, Italy, Jamaica, Japan, Mexico, Norway, Panama, Poland, Russian Federation, Spain, Syria, Trinidad and Tobago, Turkey, Ukraine, United Kingdom, Uruguay) and one from an Observer State (United States of America).

3. The comments and amendments proposed may be summarised as follows :

Paragraph 1 : Turkey suggests that "Acknowledging"  be substituted for "Conscious of" and that "shared heritage" in the last sentence of the English version be changed to "common heritage".

Paragraph 5 : Italy proposes the removal of this paragraph altogether. The United States of America proposes a revision of the paragraph as follows: "Conscious also of the potential threats to underwater cultural heritage from various other activities, namely exploitation of natural resources of maritime zones; Understanding that the sites of underwater cultural heritage may be someone’s grave and contain human remains that should be respected; Knowing that the harm or destruction of the natural resources surrounding the underwater cultural heritage should be avoided in managing the underwater cultural heritage .".

Paragraph 6 : The Latin American and Caribbean group of member States (Argentina, Barbados, Colombia, Cuba, Dominican Republic, Haiti, Honduras, Jamaica, Mexico, Panama, Trinidad and Tobago and Uruguay), which signed a series of Recommendations and Final Conclusions following the meeting in Santo Domingo, June 1998, proposed that "salvors" be struck from this paragraph.

Paragraph 10 : Turkey proposes the deletion of the words "including … 1982". The United States of America suggests adding a new paragraph after the existing paragraph 10, namely, "Recognising that underwater cultural heritage should be preserved for the benefit of humankind , and that therefore responsibility for its protection rests not only with the State or States most directly concerned with a particular activity affecting the heritage or having an historical or cultural link with it, but with all States and other subjects of international law."; and add at the end of the final paragraph, the words "found at sea".

Paragraph 1 : Ukraine suggests adding to paragraph 1(a) that where archaeological objects are underwater and subject to irreversible natural processes, they are also to be considered underwater cultural heritage. China suggests that sub-paragraph (b), should provide that, notwithstanding the provision of paragraph 1 (a), a State Party may decide by its national legislation that certain traces of human existence constitute underwater cultural heritage although they have been underwater for less than 100 years. Iran proposes that sub-paragraph (b) be changed to the following:

"States Parties to this Convention accept that the underwater cultural heritage relating to the following species constitutes part of the cultural heritage of a State:

1. Underwater cultural heritage created by personal or collective initiative of the national and underwater heritage that is important for that State and is created by foreign or stateless persons resident in territory of related State.

2. Underwater cultural heritage found in areas under their sovereignty area (Internal Water, Territorial Water and Contiguous Zone).

3. Underwater cultural heritage that is donated or in agreement with internal authorities are legally acquired."

Japan considers that the drafting of sub-paragraph 1(b) is in contradiction to sub-paragraph 1(a) and that international customary law recognises the coastal States rights to exercise jurisdiction over underwater cultural heritage in its territorial waters by sovereignty, and in its contiguous zone by using Article 302(2) of UNCLOS in respect of archaeological and historical objects. It considers that seaward from the contiguous zone, no State has general jurisdiction over underwater cultural heritage. Therefore, it would treat in different ways, these two groups of maritime zones, for example in specifying that in the internal waters, territorial sea and contiguous zone. Syria proposes that cultural heritage which has been under water for 50 years should be protected by the Convention.

Paragraph 2 : Canada proposes that paragraph 2 be deleted. The Latin American and Caribbean group suggest adding a sub-paragraph (c) to paragraph 2 in the following terms: "The concept of abandonment shall not be applied to the underwater cultural heritage found in waters over which the State party has jurisdiction.". The United States of America proposes that paragraphs 2 and 4 should be deleted and suggests a new definition of the underwater cultural heritage which has been underwater for at least 50 years. A new definition of the Charter is also proposed.

Spain wishes to add a fifth paragraph containing dispositions for the benefit of those States lacking the financial or technical resources to effect the extraction of the submerged cultural property.

Paragraph 1 : Canada proposes that this paragraph be deleted. Iran proposes that this paragraph read as follows: "This Convention shall apply in relation to all underwater cultural heritage found and explored in each of the sea zones.".

Paragraph 2 : Canada proposes that paragraph 2 be replaced by an article seeking an express renunciation in writing of any rights of the flag State, to the remains and contents of any vessel or aircraft underwater. The Latin American and Caribbean group and Iran proposes that this paragraph be deleted. Spain proposes the addition of the following : " ...and with the exception of the provisions of paragraph 5". Italy proposes an additional paragraph 3 specifying that the rights relating to submarine cables and pipelines as set forth in Articles 79, 87, paragraph 1(a), and Articles 112 to 115 UNCLOS should be protected. The United States of America proposes a new version of this Article to avoid the Convention applying to underwater cultural property recovered before the date of entry into force; and to make sure that the underwater cultural heritage shall not be considered "national resources". They suggest that nothing in this Convention affects freedom of the high seas or the rights and responsibilities of States in regard to the different zones, including UNCLOS. Finally, it wishes to delete the existing paragraph 2.

Paragraph 1 : China proposes to modify this paragraph so that the obligation on States to preserve underwater cultural heritage for the benefit of humankind is achieved through international co-operation.

China also proposes the addition of a second paragraph specifying that all measures should be taken to prevent the commercial exploitation of underwater cultural heritage. Israel proposes that the preservation of underwater cultural heritage be for the benefit of humankind. Turkey proposes to enlarge this Article in the same manner. The United States of America proposes that the underwater cultural heritage found beyond the limits of national jurisdiction should be preserved or disposed of for the benefit of humankind as a whole, particular regard being paid to the preferential rights of the State or country of origin. Wrecks and their contents, used at the time of sinking for government non-commercial purposes, only remain vested in the flag State until title is expressly abandoned or relinquished.

The United States of America also proposes to add another Article - ‘Article 3 bis : Applicability of the Law of Salvage and Finds’ - which deals with the jurisdiction of the admiralty courts.

Paragraph 1 : Israel proposes that the paragraph be amended to allow States to give permission to alter underwater cultural heritage sites, following appropriate investigation. Iran proposes that the paragraph be amended so that it provides that disputes over proprietary rights are to be settled in accordance with Article 19. The United States of America proposes that the words "Subject to Article 3, paragraph 4" be inserted at the beginning of this paragraph. Canada proposes replacing in this Article and in Articles 5, 6 and 7, the words "affecting underwater cultural heritage" with "directed at underwater cultural heritage", and "operative provisions of the Charter" and "principles of the Charter" with "Annex X" which would contain legal provisions. Canada also wishes to add another Article - ‘Activities Incidentally Affecting Underwater Cultural Heritage’ - which deals with measures to ensure the preservation of underwater cultural heritage. Canada further proposes that the reference to "internal waters" should be deleted and that "Each State party shall take reasonable measures to protect underwater cultural heritage in its internal waters" should be added to this paragraph. Spain proposes that the words "Contiguous Zone" be added to both the title of this Article and to this paragraph, having regard to Article 303, paragraph 2 of UNCLOS and the different treatment of territorial sea (exclusive rights of Coastal State to regulate and authorise) and the Exclusive Economic Zone in the Convention.

Paragraph 2 : The United States of America proposes that the word "operative" should be deleted.

Paragraph 1 : Turkey proposes amending this paragraph to emphasis sovereign rights and the ability to consent to exploration and exploitation. Japan expressed a concern that this paragraph implies a violation of the limitation of Coastal State jurisdiction.

Paragraph 2 :  Turkey proposes that this paragraph should enforce the role played by the State in the zone. Japan expressed a reservation about paragraphs 2 to 5 as it believes they infringe, upon the rights of States other than the coastal States in the EEZ. It proposes that paragraphs 2 to 5 should be redrafted having regard to Article 149 of UNCLOS and the need to regulate activities affecting the underwater cultural heritage through a combination of flag State jurisdiction, national jurisdiction and port State control.

Paragraph 3 : Iran proposes that this paragraph be amended to read as follows : "In the event of claims on cultural heritage in these areas by other States, the Coastal State could make necessary performance of laws and regulations thereof on its own behalf". Turkey proposes that the word "parties" be deleted.

Paragraph 4 : Iran proposes redrafting this paragraph to take into account the needs of conservation and research including re-assembly of a dispersed collections for public access, exhibition and education. Turkey wishes to add : "States, paying due regard to the recognised rights and freedom of the other States, may deny ...".

The United States of America proposes that Article 5 be redrafted so that it provides for States making a claim pursuant to Article 33 of UNCLOS to adopt legislation necessary to control all activities within the zone relating to underwater cultural heritage, and the limits of the zone. The Russian Federation proposes a procedure for dealing with the discovery of underwater cultural heritage outside the contiguous zone, including notifying UNESCO and ISBA. Turkey proposes that the word « parties » be deleted. Italy wishes to insert an additional paragraph which deals with the rights of bordering States to conclude regional agreements concerning the preservation of their common cultural heritage. 

Japan proposes that the provisions of this Article be revised in accordance with the statements made in respect of Article 5.

Paragraph 1 : The United States of America wishes to replace the words "jurisdiction such as the continental shelf or exclusive economic zone" with "sovereignty".

Paragraph 2 : The United States of America proposes to delete this paragraph.

The United States of America proposes to add "regulation and" to the title of this Article to more fully reflect its contents.

Paragraph 2 : The United States of America would like to replace in sub-paragraph (a) the words "jurisdiction under Article 5" with "sovereignty or control" and in sub-paragraph (b)  the words "exclusive economic zone or continental shelf of a ..." by substituted for "sovereignty or control of another". In addition, a sub-paragraph (c) should be included to ensure that the discovery of underwater cultural heritage beyond the limits of national sovereignty or control are reported to the appropriate authority exercising jurisdiction over the location of the underwater cultural heritage. 

Paragraph 1 : The United States of America proposes that a State Party may issue permits regulating excavation and removal of underwater cultural heritage, and entry into its territory pursuant to Articles 4 and 5.

Paragraph 2 : The Latin American and Caribbean Group believes that this paragraph is confusing in that it provides that the State Party in which underwater cultural heritage has been excavated or retrieved without its authorisation is empowered to take the measures which it regards as necessary for the purpose of protecting the underwater cultural heritage. The United States of America wish to replace the word "retrieval" with "removal" and add a further sub-paragraphs dealing with the conditions for granting permits and their refusal.

Japan proposes that this Article be redrafted taking into account its position as stated under Article 5.

Paragraph 1 : The United States of America believes that this paragraph should be studied further for consistency with the FCN treaties and that the reference to Article 8 should be deleted.

Paragraph 2 : The United States of America proposes that this paragraph should be revised to limit its territorial scope and be made subject to paragraph 1.

Paragraph 1 : The United States of America proposes that this paragraph should be broadened to include all violations of the Convention.

Paragraph 2 : The United States of America believes that this paragraph needs to be consistent with existing mutual legal assistance and extradition law.

Paragraph 2 : The Latin American and Caribbean group proposes that this paragraph specify that each State Party must notify the seizure of underwater cultural heritage to the competent international organisation which in it turn will notify the other member States. The Russian Federation proposes that all finds and discoveries of underwater cultural heritage should be reported to the relevant States, as well as to UNESCO and to the ISBA where they are made within the Area. In addition, a database should be kept of these details and Coastal States should have jurisdiction to regulate exploration and removal of underwater cultural heritage having regard to UNCLOS. The United States of America would like a cross reference to be made to Article 9.

Paragraph 1: Spain wishes to delete the sentence "...and of the interests of the State that have expressed their interest in that object in relation to their national heritage" and to replace it with "Whenever the objects of an archaeological or historical nature are related to the historical or cultural heritage of another State Party, a joint agreement will be reached with this other State Party on the fate of the said objects, particular regard being paid to the preferential rights of the State of cultural , historical or archaeological origin.". It believes that Article 12 of the Draft imposes certain obligations on the State that has an interest in such objects without mentioning its entitlement to any consideration in return. The Latin American and Caribbean group would prefer that a State party which has seized underwater cultural heritage found beyond the limits of jurisdiction of Coastal States should decide on its ultimate disposition for the public benefit taking into account the needs of conservation and research.

Paragraph 2: The United States of America proposes that paragraph 2 end with "inconsistent with this Convention".

Syria stresses that, amongst other measures to protect underwater cultural heritage, international co-operation should be improved to promote the return of cultural property discovered in areas under State jurisdiction and to forbid illicit traffic of such goods as well as measures such as the prevention of military activities, underwater explosions and works causing environmental pollution. Ukraine wishes to insert a statement concerning the drawing up and publication of national registers of underwater cultural heritage in areas which are under the jurisdiction of certain countries. The United States of America reserves comment on this Article.

Iran proposes that this Article be modified so that all  discoveries of underwater cultural heritage in the area defined in Article 1 paragraph 1(1) UNCLOS must be made in accordance with agreement among right holders of such assets. The United States of America proposes that the words "Secretary-General of the International Seabed Authority, which shall transmit the information to ..."  be deleted.

The United States of America proposes that the words "by educational means" be deleted.

The United States of America proposes that the word "shall" be replaced by "should".

Paragraph 2 : The United States of America proposes deletion.

Paragraph 3 : The United States of America proposes deletion.

Spain would like UNESCO to oversee the activities involved in the recovery process of underwater cultural heritage by maintaining an information register and providing the details to all States. The Russian Federation would like UNESCO and the International Seabed Authority, as appropriate, to maintain a database with information about finds and discoveries and provide this information to States upon request.

Ukraine believes that this Article should more clearly define the function of national bodies which exert control over underwater cultural heritage. The United States of America believes that this Article demonstrates a major gap in the Convention because it raises the question as to how State Parties are to resolve between themselves, situations where each have a legitimate interest to be accommodated.

The Russian Federation proposes that the UNCLOS procedure should be applied in settling disputes. Israel proposes to redraft this Article to permit all disputes between two or more States Parties concerning the interpretation or the implementation of the Convention be settled by peaceful means. Turkey proposes to use the procedure in Article 33 of the United Nations Charter in the case of disputes. The United States of America believes that this Article is not necessary and inappropriate for such a subject-specific Convention.

The United States of America believes that the Convention should be open to acceptance by all States. 

Israel proposes a less restrictive version of this Article. Turkey proposes that this Article be redrafted so that it is more flexible. The United States of America states that it cannot adhere to a treaty prohibiting reservations and exceptions and believes that there should be provisions relating to territorial application.

The Latin American and Caribbean group believes that amendments to the ICOMOS Charter should be subject to this Article and not to the procedure envisaged by Article 24.

Paragraph 1 : Israel and Turkey would like modify this paragraph so that written amendments are given to the Director General who will circulate them to the other States.

Paragraph 4 : The United States of America believes that entry into force of amendments by a 2/3 majority of State Parties is too uncertain.

Paragraph 5 : The United States of America proposes that this paragraph be deleted.

Paragraph 6 : The United States of America believe that this paragraph should not permit the possibility of different regimes.

The United States of America queries what rule of international law is referred to (except for what appears in UNCLOS).

Paragraph 2 : Israel and Turkey suggest revisions of the Charter may be proposed by ICOMOS and submitted to the Director-General of UNESCO. In addition, Israel suggests adding a further paragraph to the Charter specifying that if a site is exposed to danger of destruction, a State may grant permits without adequate funding in advance. The United States of America believes that the Charter by its terms, contains recommendations and as such, is unsuitable for inclusion in the Convention in this format. In addition, paragraph 2 is inconsistent with the law of treaties, Article 40 of the Convention of Vienna on the laws of treaties as it is for States to propose and to amend treaties.