Underwater cultural heritage should be defined so as to include only those submerged sites that have unique and outstanding historical and archaeological value. Information from such sites must distinctively advance knowledge of the past. In order to be considered underwater cultural heritage, artifacts from underwater sites must provide data that cannot be obtained by any other means.

Yes. If underwater cultural heritage is extended to cover property which has not been abandoned, and such property is then subjected to coastal State (or other national) ownership or regulatory control, that would constitute an expropriation of property in violation of international law and necessitate prompt, adequate and effective compensation to the owner of the property. Moreover, an international instrument may not change the standard of abandonment for property lost at sea in such a way as to conflict with general maritime law doctrines on that subject.

Coastal States have unquestioned rights under the Law of the Sea to regulate underwater cultural heritage within their internal waters, archipelagic waters, and territorial seas. Coastal States may also, pursuant to articles 33 and 303(2) of the 1982 Law of the Sea Convention, adopt regulations concerning underwater cultural heritage within their contiguous zones.

Any attempt by Coastal States to extend title or regulatory authority over underwater cultural heritage located beyond 24 nautical miles from shore would violate current international law. Underwater cultural heritage has never been regarded as a natural resource of the EEZ or continental shelf, subject to coastal State sovereign rights.

It is doubtful even whether regulation of underwater cultural heritage is a jurisdictional competence of coastal States within EEZs or continental shelves. Nor should the law of the sea be progressively developed to extend coastal State competence over underwater cultural heritage beyond 24 nautical miles. Such would be an unwarranted derogation of navigational freedoms and other rights.

Yes. Maritime law has governed the salvage or finds of property lost at sea for nearly three millennia. Today's international maritime law allows for explorers of underwater cultural heritage to receive liberal salvage awards (or outright title), provided that those explorers observe archaeological protocols in recording unique and critical information about underwater sites and the artifacts recovered therefrom.

In this respect, admiralty law already applies to the underwater cultural heritage, and provides effective protection for historic shipwrecks at no cost to the public. It does this by relying on the party that has the best resources for managing the site - the salvor that is in possession, who has a legal responsibility to guard and oversee the shipwreck.

By creating an economic incentive for a salvor to act in good faith and to utilize appropriate archaeological practices, the public's right to the knowledge and historical information that can be derived from a shipwreck is protected in a manner that can be monitored and enforced by the courts.

In addition, Article 303(3) of the Law of the Sea Convention specifically reserves the applicability of salvage law and other rules of admiralty to underwater cultural heritage. The Draft UNESCO instrument takes a contrary position and thus is an attempt to amend the 1982 Convention. UNESCO's effort could endanger the effective implementation of the 1982 Convention.

Any international instrument must promote multiple use management of underwater cultural heritage sites and allow for both public and private commercial exploration and recovery from those sites. Not to follow this course would fail to recognize the interests of the vast majority of the constituencies of this resource, as well as contravene basic property rights of US citizens.

In the Department of the Interior's Final Guidelines for the Abandoned Shipwreck Act, this concept, as recognized by the US Congress, is clearly described in Part II, Section F:

The urge to explore is innate to human nature. Private discovery and recovery of historic shipwrecks will continue to increase with the current rapid advances in the development of underwater exploration technology. Any attempt to restrict access solely to the archaeological community would be difficult to enforce at best. Without economic or legal incentive to adhere to sound archaeological excavation techniques, shipwreck sites will continue to be salvaged, albeit in a clandestine manner. When this happens, all archaeological and historical data is lost to mankind forever.

Unless historic preservation values are combined with commercial incentives, underwater cultural heritage will remain in marine peril, subject to eventual degradation, competing uses (such as marine construction, dredging, fishing or cable-laying), and pillage, as well as general under-utilization.