Professor James Nafziger has ably praised and defended the UNESCO Draft Convention on the Protection of the Underwater Cultural Heritage.¹ I come now to bury it. And although I have written elsewhere about the background history and antecedent drafts of the UNESCO initiative,² I intend to focus here on two points: (1) illustrating the most glaring deficiencies of the UNESCO Draft, and (2) introducing an alternative approach to the problem of managing the resource of historic shipwrecks.

I. Critique of the UNESCO Draft

Truth be told, there was little in the April 1998 UNESCO Draft Convention on Underwater Cultural Heritage that was surprising or novel. Most of the draft is based on an earlier effort by the International Law Association (ILA). The ILA is an international organization of academic international law specialists, acting in their individual capacities. The ILA Draft was under consideration for a few years, but no input was invited from any person or entity other than those concerned with historic preservation values. The final product of the ILA's work was adopted at Buenos Aires in 1994.³

The ILA Draft was explicitly intended to be submitted for the consideration of the U.N. Educational, Scientific and Cultural Organization (UNESCO), and in 1995 it was. In a Report issued on March 23, 1995, UNESCO's Executive Board considered the feasibility of "drafting a new instrument for the protection of the underwater cultural heritage."⁴ Authorization to proceed on this drafting project was granted at the 1997 UNESCO General Conference. The stated objective was to have a draft convention submitted to the next General Conference of UNESCO in November 1999.⁵ The April 1998 Draft Convention was tabled pursuant to this mandate.

As the UNESCO instrument is now drafted it suffers from a number of key defects, and I will attempt to briefly consider them here. They are: (1) a ridiculously over-inclusive definition of "cultural heritage," (2) a seriously flawed definition of abandonment for historic shipwrecks, (3) an expansive grant of competence to coastal States, in violation of current international law, and, finally and most seriously, (4) an abortive attempt to abolish commercial incentives for historic shipwreck exploration and recovery.

The definitions set out in Article 1 of the UNESCO Draft are overinclusive, ambiguous, and prone to misinterpretation or confusion. The term "underwater cultural heritage" itself is problematic. It is so broadly inclusive that it stretches to "all underwater traces of human existence."⁶ Does this mean that pieces of a splintered surfboard or even a soda can thrown overboard on a fishing outing should be countenanced by the UNESCO Draft? Certainly not, but the definition would seem to cover such items. The term, which is defined to include "sites, structures, buildings, artefacts and human remains, together with their archaeological and natural contexts"⁷ could easily be read also to include support beams of a pier, lobster traps, and oil rig platforms.

Article 1 further confuses matters with the definition of "wreck" in paragraph 1(b) as including "a vessel, aircraft, or other vehicle or any part thereof, its cargo or other contents, together with its archaeological and natural context."⁸ Does this mean that the ship’s cargo is covered by the UNESCO Draft even if it has drifted off or has washed ashore? The provision’s reference to "archaeological and natural context," is intended to emphasize that "[c]ontext is one of the most essential aspects of archaeological heritage in providing knowledge of life during a particular era,"⁹ but despite the inclusion of the archaeological and natural contexts in the definition of "underwater cultural heritage," there is no definition of the scope of such contexts.

Furthermore, the definitions of "underwater cultural heritage" are so expansive as to be outlandish. The commentary to the ILA Draft (the acknowledged source for the UNESCO Draft) states that "[t]his is likely to include all aspects of the underwater cultural heritage of significance to the history of humanity,"¹⁰ and this is precisely the problem. Such an overinclusive definition ignores the necessity for a requirement of significance, whether cultural or historical. In order to create both a manageable regime and one worthy of international treaty, only wrecks of significance should be included in the definition.

These definitions, in tandem with the commentary provided by the drafters, seem to falsely equate age with historical significance. Under the UNESCO Draft, if a cargo ship loaded with simple raw materials sank, its contents would be considered "underwater cultural heritage." But, in this situation, the cargo has no independent historical significance and should not be considered "underwater cultural heritage." The glaring absence in article 1 of an additional provision which would remedy the problem of the faulty assumption that age equals significance is a tremendous failing of the UNESCO Draft. A provision to the effect that the treaty shall apply to those articles which have historical significance and substantively add to historical understanding would be a start for focusing perhaps the most important definition of the treaty.

If UNESCO persists in embracing such an expansive and undiscriminating definition of "underwater cultural heritage,"¹¹ it would need to adopt some sort of tentative list (albeit a list that is not exclusive) which would identify the types of historically significant items which would be granted the protection of the UNESCO Draft. A listing approach, such as the National Register system in the United States,¹² might be a suitable vehicle for such identification.¹³ This process would enable each State Party to an international regime to create a list of "significant" wrecks, thereby giving full information to divers. This definition would also create a rebuttable presumption and allow for continued exploration of shipwrecks and the recovery of property lost at sea.

But, as matters stand now, the UNESCO Draft’s current definition of "underwater cultural heritage" is simply extravagant and unworkable.

Article 2, paragraph 1 of the UNESCO Draft indicates that it only applies to underwater cultural heritage that has been "abandoned."¹⁴ The definition of abandonment propounded in the previous article, however, is unacceptable due to confusing and unrealistic time constraints. This definition allows a period of 25 years from the discovery of technology sufficient to recover the heritage, or if no technology was available to permit recovery, 50 years from "the last assertion of interest by the owner" of the "underwater cultural heritage" before the heritage is deemed legally abandoned.¹⁵ This is too short a time span to assume that the owner or interested party has abandoned all hope of ever locating the item. The UNESCO Draft creates a new international standard for abandonment which is quite inconsistent with the long-standing general maritime law. In so doing, it works an expropriation of property in violation of international law, an act that would have to be accompanied by prompt, adequate and effective compensation by the State which was asserting title or a regulatory interest in the affected historic shipwreck.

A few examples will suffice in illustrating that the standard of abandonment propounded in the UNESCO Draft is contrary to the general maritime law as observed in a number of maritime countries. In Columbus-America Discovery Group v. Atlantic Mutual Insurance Co.,¹⁶ a U.S. Circuit Court of Appeals held a group of insurance companies which had assumed title to the SS Central America (which sank in 1857 off the coast of South Carolina) and failed to recover the wreck in the intervening 135 year time period were still the proper owners. Similarly lengthy time frames were at issue in negotiations between Norway and the Netherlands over the ownership of wrecks of vessels which belonged to the Dutch East India Company.¹⁷

The general maritime law has, moreover, consistently held that currently identifiable owners of property unwillingly lost at sea are presumed not to have abandoned their rights and interests.¹⁸ Indeed, the 1982 Convention on the Law of the Sea [LOSC] confirmed this result when it preserved "the rights of identifiable owners" of shipwrecks located in a coastal State’s territorial sea or contiguous zone.¹⁹ That is why the legal test for abandonment (whether on land or at sea) has always required two elements: (1) an intent to abandon; and (2) an act carrying that intent into effect.²⁰ Indeed, some courts have required "strong and convincing evidence" for proof of abandonment.²¹ Presumptive periods for abandonment have thus been disfavored in the general maritime law.²²

In United States federal legislation known as the Abandoned Shipwreck Act of 1987 (ASA),²³ Congress presumably intended that courts apply the general maritime law's presumption against abandonment of property involuntarily lost at sea. Indeed, the ASA does not directly define the term abandonment. However, Congress desired that the Act apply to "certain abandoned shipwrecks, which have been deserted and to which the owner has relinquished ownership rights with no retention."²⁴ Congress' use of the terms "deserted" and "relinquished" require, at a bare minimum, a strongly evinced intent to abandon. Indeed, they may even be regarded as terms-of-art, a congressional recognition that the maritime law applies a strong presumption against abandonment.²⁵ Congress obviously had the opportunity to establish a statutory presumption of abandonment, and did not do so.

In cases of involuntary loss at sea, the consistent standard used by admiralty courts has been to ascertain whether the owner had the knowledge and means to recover the property.²⁶ If the owner knew of the location of the wreck and had the technical means to economically recover the wreck, but failed to do so, that constitutes an abandonment. If not, then the wreck cannot be deemed to be abandoned by inference.²⁷ This is utterly consistent with the intent of Congress as expressed in the ASA's legislative history: "[T]he term abandoned does not require the original owner to actively disclaim title or ownership. The abandonment or relinquishment of ownership may be implied or otherwise inferred, as by an owner never asserting any control over or otherwise indicating his claim of possession of the shipwreck."²⁸ Rather, following from the suggestive language in the ASA legislative history, a court can infer abandonment, but only when the owner has failed to "assert control" or "otherwise indicat[e] [a] claim of possession."²⁹

While the UNESCO Draft claims to "stabilize expectations" and to preserve the reasonable rights of owners³⁰ the 50 year limit does no such thing. The provisions regarding the availability of technology suitable to recovery of cultural heritage are convoluted and obtuse. It is unclear whether the two clauses³¹ are contradictory or merely alternatives. Clause 2(a) leaves open the possibility of reading an indefinite time period into the UNESCO Draft as a 25 year span following the discovery of technology which would make recovery feasible. However, clause 2(b) allows only 50 years following an assertion of the owner’s rights if no technology suitable to the task was available.

The ambiguity resulting from these definitions leaves much to be desired and will certainly cause the UNESCO Draft to falter. At a minimum, these provisions appear to shift the burden from a presumption of ownership to one of abandonment. Not only does this conflict with the general maritime law, it will necessitate a case-by-case analysis to determine whether an item was truly abandoned by the rightful owner.

Ironically, the UNESCO Draft does assume that one class of underwater cultural heritage is never abandoned: "any warship, military aircraft, naval auxiliary or other vessels or aircraft owned or operated by a State. . . ."³² Although this is not the place to consider whether sovereign vessels or aircraft lost at sea can be abandoned,³³ it is interesting to note that the UNESCO Draft resolves this issue in favor of States, thus removing a possible ground for objection to the Draft.³⁴

Regarding the general scope of the UNESCO Draft, article 1(a) provides that it only applies to "underwater cultural heritage" which has been abandoned and has also been submerged for at least 100 years (with the caveat that "[a]ny State Party may, however, protect underwater cultural heritage which has been submerged underwater for less than 100 years").³⁵ This article creates some interesting problems.

First, it creates an unusual effect on the laws of finds and salvage. Article 1(2) creates at least a 50 year window in which a wreck is deemed abandoned (after 50 years; it could be after 25 years under Art. 1, paragraph 2 (a)), but it is not covered by the UNESCO Draft until it has been submerged for at least 100 years. This could result in circumstances in which a finder/salvor of such a wreck would gain title to the item due to the true owner’s legal inability to maintain title after the 50 year period has lapsed.

Second, the caveat allowing a State Party to the UNESCO Draft to alter the requirements and, in effect, to apply the Convention to "underwater cultural heritage" that has been submerged for less than 100 years (presumably a State could do away with this provision entirely) could lead to inconsistent application of the Convention and conflicts with owners’ rights over their property. The intent of Article 2 is simply unclear. By countenancing a patch-work of national regulations, the goal of uniformity sought by the UNESCO Draft Convention will certainly be destroyed. But this uniformity concern aside, the real objection to these provisions of the UNESCO Draft is that, by concocting an expansive definition of abandonment of property lost at sea, they would effectuate an expropriation of private property in violation of international law.

It has been suggested that this problem with the UNESCO Draft can be simply cured by ensuring that the instrument speaks only to the regulatory authority that States can exercise over historic shipwrecks, and not to legislate as to title in those wrecks. But, as will be discussed presently, the UNESCO Draft commands that commercial recovery of a shipwreck and its contents — even by its owner — must be barred by signatory States. Operation of this rule would still effect a regulatory taking or "creeping expropriation" of property in violation of relevant international law principles. So it is essential that the UNESCO Draft properly define abandonment consistent with the general maritime law,³⁶ and exclude from its application underwater cultural property that has not been abandoned.

The drafters of the UNESCO instrument supposedly made one critical change from the earlier draft prepared by the ILA. The ILA Draft proposed the creation of a new form of coastal State competence in the law of the sea: a cultural heritage zone. As defined in Article 1, paragraph 3 of the ILA Draft, the "‘cultural heritage zone’ means all the area beyond the territorial sea of the State up to the outer limit of its continental shelf as defined in accordance with relevant rules and principles of international law."³⁷ Article 5 outlined the establishment of the "cultural heritage zone" in which "the State Party shall have jurisdiction over activities affecting the underwater cultural heritage."³⁸

The participants at the Third United Nations Law of the Sea Conference (UNCLOS III) will immediately realize that such a novel maritime zone is not in accordance with the relevant rules and principles of international law. This expansion of coastal State jurisdiction is certainly beyond the scope of the Exclusive Economic Zone (EEZ) and Continental Shelf regimes. The provisions establishing the "cultural heritage zone" seek to alter those compromises reached in Article 303 of the 1982 United Nations Law of the Sea Convention (LOSC).³⁹

While some States at UNCLOS III lobbied for complete coastal State control and authority over archaeological and historical objects found on their continental shelves, the United States and other nations resisted this proposal on account of a fear of upsetting the already delicate balance of interests on the continental shelf. The compromise arrived at allows coastal States to completely regulate the removal of "underwater cultural heritage" in their territorial seas and contiguous zones, but no farther.

The ILA Draft Convention, then, sought to modify the 1982 U.N. Convention in a few material respects. It allowed the creation of a "cultural heritage zone" which was coextensive with the entire breadth of coastal State authority out to 200 nautical miles (or beyond). However, within that zone, the coastal State must observe the international guidelines for the proper removal and recovery of archaeological and historical objects as outlined in the "Charter for the Protection and Management of the Underwater Cultural Heritage" (the Charter) prepared by the International Council for Monuments and Sites (ICOMOS).⁴⁰

This aspect of the ILA Draft was the subject of concerted attack by a number of maritime powers. The governments of the United States and United Kingdom went on official record with their opposition to the ILA Draft Convention and its provisions of a cultural heritage zone and enhanced coastal State authority over historic shipwreck, premises which "were expressly considered and rejected at the Third UN Conference on the Law of the Sea."⁴¹ These sentiments were echoed by other countries at UNESCO meetings leading up to the preparation of the UNESCO Draft.⁴²

Despite this opposition to the creation of a cultural heritage zone, and UNESCO’s disavowal that it intended such an innovation,⁴³ the UNESCO Draft achieves precisely that same result, although by means calculated to obscure that intent. But the language of article 5 of the UNESCO Draft seems clear enough: coastal State are given the power to regulate activities affecting underwater cultural heritage within their EEZs and on their continental shelves.⁴⁴ Indeed, the UNESCO Draft requires that coastal States regulate historic shipwreck recovery in such a way as to comply with the operative provisions of the ICOMOS Charter, a number of which expressly prohibit the commercial exploration or recovery of those shipwrecks.⁴⁵ States Parties are given the right to issue permits for activities affecting underwater cultural heritage in their EEZs and continental shelves, and are required to punish "all breaches of the terms" of those permits.⁴⁶

Lastly, article 5 allows that coastal State "may deny authorization for the conduct of activities affecting underwater cultural heritage having the effect of unjustifiably interfering with the exploration or exploitation of their natural resources, whether living or not living."⁴⁷ This is an amendment to article 246 of the LOSC, which governs the conditions in which the permission of a coastal State must be secured before nationals of another State may conduct marine scientific research (MSR) in that coastal States’ EEZ or continental shelf. Article 246 provides that a coastal State may only deny permission for MSR if the research has an application to the exploitation of natural resources, and, obviously, shipwrecks are not a natural resource of the EEZ or continental shelf. Article 5(4) of the UNESCO Draft would upset that accommodation by allowing coastal States to conclusively deny requests for historic shipwreck exploration as a corollary to their right to regulate MSR. Not only does that increase coastal State competences in the EEZ and continental shelf in a way that is contrary to the settled international law on this subject,⁴⁸ it would also have the effect of allowing coastal States to veto many meritorious exploration projects.

In all events, the UNESCO drafters regarded article 5 as a "core provision" of their project.⁴⁹ And although no cultural heritage zone is created, the drafters indicate that their provision "is the first time that a Convention specifies the right of coastal States to establish their jurisdiction over underwater cultural heritage on their continental shelf and exclusive economic zone."⁵⁰ The UNESCO Draft simply creates a cultural heritage zone in another guise, one that just as effectively promotes the arrogation and expansion of coastal State claims to offshore areas.

If the UNESCO Draft suffered merely from definitional missteps and a too-great willingness to alter established international law, I suppose it could be excused and amended in due course. But the fundamental failing of the Draft is its embrace, as a first principle, that historic shipwrecks as underwater cultural heritage should be managed in only one way (in situ preservation), exclusively by the standards of one epistemic community (nautical archaeologists), without regard for the interests of other, multiple users of shipwrecks. The UNESCO Draft, like its ILA predecessor, has concluded that commercial incentives in the exploration and recovery of historic shipwrecks is evil and should be outlawed.

UNESCO has gone on record as being implacably hostile to the interests of private salvors. One recent official UNESCO document criticized the 1982 Law of the Sea Convention's reservation of rights under "the law of salvage or other rules of admiralty"⁵¹ as "protect[ing] the commercial exploitation of historic shipwrecks, leading to the destruction of archaeological resources without their scientific examination."⁵² A Group of Experts assembled by UNESCO to consider the contours of a Draft Convention categorically concluded that "the recovery of archaeological material should not be governed by its commercial value."⁵³ One expert at the meeting said that "the concept of being financially rewarded was fundamentally antithetical to archaeological and scientific research."⁵⁴ The experts ultimately agreed that "incentives to salve should not be included in the new international provisions on the protection of underwater cultural heritage."⁵⁵ UNESCO has thus committed itself to the same anti-competitive, State regulatory approach embraced by the ILA Draft, as well as largely endorsing the expansion of coastal State jurisdiction offshore. As just one example, a recent UNESCO publication characterizes historic salvors as "pillage[rs]," who

The abolition of commercial exploration and recovery of historic shipwrecks in the UNESCO Draft is accomplished in a devious and back-handed way. In contrast, Article 4 of the ILA Draft flatly directs that "[u]nderwater cultural heritage shall not be subject to the law of salvage."⁵⁷ The stated rationale for this provision is that historic shipwrecks are not in "marine peril."⁵⁸ But, more honestly, the ILA Draft makes express its assumptions about historic salvage. "The major problem," the ILA commentary notes, "is that salvage is motivated by economic considerations; the salvor is often seeking items of value as fast as possible rather than undertaking the painstaking excavation and treatment of all aspects of the site that is necessary to preserve its historic value."⁵⁹ Even more breath-taking is the ILA Draft's ad hominem attack on the entire historic salvage community, as "looters" and "destroyers of our past."⁶⁰

The UNESCO Draft’s abolition of commercial exploration and recovery of underwater cultural heritage can be seen in two different sets of provisions. The first set includes articles 5(3) and 7(1) -- core provisions of the Draft -- which, respectively, require coastal States to "require compliance, at a minimum, with the operative provisions of the [ICOMOS] Charter"⁶¹ and other States Parties to regulate the activities of their nationals if they are conducted "in a manner inconsistent with the principles of the Charter."⁶² The ICOMOS Charter contains two explicit bars on commercial exploration and recovery of shipwrecks. The Charter provides categorically that "Underwater cultural heritage is not to be traded as items of commercial value."⁶³ Moreover, "[p]roject funding must not require the sale of underwater cultural heritage. . . ."⁶⁴ I think it is certainly safe to assume that these two clauses would be considered "operative provisions" or a "principle" of the Charter, and thus would be binding on States Parties.

The second provision in the UNESCO Draft which effects an abolition of commercial shipwreck recovery is article 12(2): "States Parties shall provide for the non-application of any internal law or regulation having the effect of providing commercial incentives for the excavation and removal of underwater cultural heritage."⁶⁵ The Commentary to this article makes clear that it is intended as an alternative to the ILA Draft’s express abolition of the application of the international maritime law of salvage and finds to historic shipwrecks.⁶⁶ Moreover, the intent of this provision is to void any provision of maritime law that provide monetary incentives to excavate or remove cultural property.⁶⁷

The UNESCO Draft seeks to amend the 1982 U.N. Convention on the Law of the Sea’s application of "the law of salvage or other rules of admiralty" to historic shipwreck recovery.⁶⁸ It is also nothing less than a categoric prohibition — if not outlawry — of the practice of historic salvage. These provisions evince a strong, and perhaps even irrational, antipathy towards international maritime law and the admiralty courts that administer it. It is an enmity that is entirely undeserved. Despite its historic origins, the law of salvage has readily evolved to meet modern concerns regarding historic preservation of shipwrecks. Because the salvor essentially acts as an agent of the district court in recovering the wreck and bringing it into the jurisdiction of the court, judges have broad discretion both in the initial selection and appointment of the salvor, and later, in deciding the amount of the salvor’s award. The federal courts in the United States have exercised that discretion to ensure that the historical values of antiquated shipwrecks are preserved in the salvage process.

It has sometimes been suggested that ancient and modern salvage laws have developed over centuries without any regard for archaeology. The underlying policy thrust of the assertion is that the hoary admiralty law of salvage is totally unsuited to the "modern" problem of managing historic shipwrecks as a cultural resource. The policy alternative advocated by many historic preservationists is that salvage law be replaced by further governmental regulation of shipwrecks, regulation that will uniquely privilege decision-making by nautical archaeologists. The clear message is that shipwrecks should, under no circumstances, be considered an economic resource, as lost property to be restored to the "stream of commerce."

Indeed, it has been suggested that wreck salvage has never been part of admiralty jurisdiction. This is utterly fallacious. All salvage of property lost at sea implicates maritime commerce.⁶⁹ And the power to regulate such activities was specifically reserved by Congress in the Submerged Lands Act.⁷⁰ Courts have consistently held that salvage of wrecked vessels is within the scope of traditional admiralty jurisdiction.⁷¹ Wrecked vessels are still subject to marine peril, under the traditional rule of The SABINE.⁷²

It might be helpful to the debate to realize that the admiralty law of salvage is not as rigid or as single-focussed as has been supposed. At least as applied in admiralty courts in the United States, historic preservation values have been merged with "traditional" salvage law. It has become the consistent practice of U.S. courts that before granting exclusive salvage rights over an historic shipwreck to a commercial recovery outfit, archaeological protocols be observed concerning the wreck site, in order to allow for future study and research about the wreck and its contents.

For example, in the MDM Salvage case,⁷³ the District Court denied the applications of two different sets of commercial salvors to recover property from a Spanish galleon, noting that neither firm had attempted to preserve the "archaeological integrity" of the wreck. The Court noted that:

Indeed, U.S. courts have made express that the potential salvor's fidelity to archaeological values is among the elements to be considered in granting a salvage award.⁷⁵ This is not to say, of course, that commercial salvors have been held to exactly the same technical standards as adopted by nautical archaeologists. Under special circumstances, U.S. courts have allowed for some modest deviations from these protocols.⁷⁶

II. An Incentive Regime for Historic Shipwrecks:

So the UNESCO Draft’s abolition of commercial incentives for the exploration and recovery of historic shipwrecks is a totally illogical and extreme reaction to the problems presented in historic shipwreck management and the conservation of the underwater cultural heritage. But if the UNESCO initiative is misguided (for all of the reasons indicated above), what would be the contours of an appropriate regime? In collaboration with ProSEA, the Professional Shipwreck Explorers Association, I have attempted to draft an International Convention on the Exploration and Protection of Submerged Historic Wrecks. Although I hope most (if not all) of the provisions of this counter-draft are self-explanatory, I thought it useful to set forth here some of the more salient features of this proposal.

The counter-proposal applies to "historic wrecks," and thus chooses not to confront the nettlesome definitional problems associated with the use of the term "underwater cultural heritage." The reason this choice seemed sensible is that the ProSEA Draft, by its own terms, does not apply to "any historic wreck located within a Contracting State's internal waters, archipelagic waters, territorial sea, or, if the relevant Contracting State has adopted regulations pursuant to articles 33 and 303(2) of the 1982 U.N. Convention on the Law of the Sea, its contiguous zone."⁷⁷ In short, the ProSEA Draft applies only to ocean areas beyond 24 nautical miles from shore, or, for those coastal States that have not enacted underwater cultural heritage areas for their contiguous zones, beyond that States’ territorial sea (usually 12 nautical miles). With that limitation, it was believed that the only cultural heritage to be regulated by a treaty instrument would be historic wrecks. The ProSEA Draft thus concentrates on the status of historic shipwrecks located in coastal States’ exclusive economic zones (EEZs), continental shelves,⁷⁸ and then beyond on the high seas.

The counter-proposal defines historic wrecks as "any vessel, ship, airplane or other man-made mode of transportation lost at sea no later than one hundred (100) years prior to the commencement of exploration or recovery operations."⁷⁹ For the sake of clarity, a "wreck" is also defined as "any form of vessel or water-borne craft, aircraft, or other man-made mode of transportation that has been lost or sunk and is wholly or partially submerged under water."⁸⁰ The ProSEA Draft makes continuous reference to "objects from (or associated with) historic wrecks," and these are defined to include "the hull or shell of the wreck, any part thereof, its cargo or contents, as well as its archaeological, historic, cultural and natural context."⁸¹ Finally, the Draft attempts to regulate historic wrecks and wreck sites, and a wreck site is defined to include "areas in which objects from (or associated with) a wreck are found, including secondary archaeological deposits, including a safety zone not exceeding a distance of 200 meters as measured from the outermost archaeological deposit."⁸² This provision mirrors those in the 1982 Law of the Sea Convention which create 500 meter safety zones around offshore and marine scientific installations.⁸³

The ProSEA makes one other exclusion from its scope, and it is a significant one. Article 4 creates a narrow and finely-wrought exception for "State-owned vessels." I have already noted that there is substantial controversy surrounding the question of whether warships (or, for that matter, all vessels owned and operated by a State) should be subject to a heightened standard of explicit abandonment.⁸⁴ And although I doubt whether State vessels sunk before this century should be subject to this rule, it is probably necessary to confront this issue. The approach taken in Article 4 is to precisely delimit the class of State-owned vessels which are covered by a rule of express abandonment. That was accomplished by requiring that, first, the vessel be a warship (as defined in article 29 of the 1982 Law of the Sea Convention)⁸⁵ or a vessel owned and operated by a State which used, at the time of its loss at sea, for exclusively non-commercial purposes. The second restriction is that such a vessel was entitled, at the time of its loss at sea, to sovereign immunity under then generally recognized principles of international law.⁸⁶ This would require the relevant tribunal to determine the intertemporal law that applied to the ship at the time of its sinking;⁸⁷ it would be insufficient for a State to assert that under current theories of sovereign immunity, the vessel should be subject to a rule of express abandonment.

Article 1 of the ProSEA Draft contains the provision that the "Exploration of Historic Wrecks . . . and recovery of objects from (or associated with) such wrecks, shall be governed by the terms of the 1989 International Convention on Salvage, except to the extent that those terms are modified in this instrument."⁸⁸ This reflects an important legal principle: that many of the general maritime law’s rules of salvage are applicable to the exploration and recovery of historic shipwrecks. It appears to make more sense to use the 1989 Salvage Convention as the starting-point for the creation of a legal regime — particularly one that emphasizes incentive and responsibility — rather than cobbling together disparate rules drawn from other sources.

In 1989, the International Maritime Organization (IMO), the U.N. specialized agency charged with the regulation of shipping, concluded an International Convention on Salvage.⁸⁹ The 1989 Salvage Convention replaced the 1910 Brussels Convention on Salvage, which did not contain any provisions on historic shipwrecks. It has been argued that the 1989 Salvage Convention impliedly excluded historic shipwrecks from its application.⁹⁰ The Convention defines "salvage operations" as "any act or activity to assist a vessel or any other property in danger in navigable waters or in any waters whatsoever."⁹¹ The argument would run that because shipwrecks are not "in danger," they would not qualify for salvage. But, as already mentioned,⁹² shipwrecks are often characterized as being in marine peril under the general maritime law, and thus do qualify for salvage.⁹³ So this purported exclusion of shipwreck salvage from the 1989 Salvage Convention appears doubtful, or, at best, ineffective.⁹⁴

More pertinently, the 1989 Salvage Convention allows a State, upon ratification, to make a reservation "not to apply the provisions of th[e] Convention . . . when the property involved is maritime cultural property of prehistoric, archeological or historic interest and is situated on the sea-bed."⁹⁵ This obviously means that the 1989 Convention would, in the absence of a Contracting State making a reservation, apply to salvage of historic shipwrecks. Upon its ratification, the United States declined to reserve against the Convention's application to historic shipwrecks. As of 1996, only eight States had made the necessary reservation regarding the non-applicability of the Convention to historic salvage.⁹⁶ The Convention entered force of July 14, 1996, and as of January 1998 has 25 parties representing over a quarter of the world's ocean-going shipping tonnage.⁹⁷

As of this writing, it is uncertain whether the 1989 Salvage Convention would, on its own authority, have any impact on the recovery of artifacts from historic shipwrecks. Arguably the 1989 Convention has no bearing on the question of coastal State authority to regulate shipwreck recovery, that matter having been presumably settled in the 1982 U.N. Convention on the Law of the Sea. Nevertheless, the provisions of the 1989 Salvage Convention lend credence to the principle that historic salvage is not to be presumptively excluded from the ambit of salvage operations and that the general maritime law of salvage continues to extend to recovery of historic wrecks.⁹⁸

By incorporating the terms of the 1989 Salvage Convention, the counter-proposal attempts to clearly delineate that commercial incentives should apply to the exploration and recovery of historic shipwrecks. Indeed, it simply makes no sense (as the UNESCO Draft purports to do) to exclude maritime law doctrines of salvage and finds from this sector. As will be discussed further below, the ProSEA Draft builds from the provisions of the 1989 Salvage Convention by affirmatively requiring that salvors or finders of historic shipwrecks observe certain archaeological and historic preservation protocols as a condition for a maritime tribunal to give a salvage award, to grant title in the wreck, or to enjoin others from interfering with that party’s operations.

The ProSEA Draft grasps the nettle of distinguishing between wrecked vessels and cargoes that have been abandoned and those that have not. I simply do not believe that any useful or credible treaty instrument on this subject can avoid that subject. From the question of title comes the determination of ownership. While certain experts have suggested that the question of title can be divorced from a grant to coastal States of extensive regulatory competence over shipwrecks, I believe this is a grievous mistake. It will be a license to coastal States to regulate an owner’s access to its property, and thus effectuate a creeping expropriation or regulatory taking in violation of international law.

Article 11 provides a definition of abandonment. This provision recognizes that abandonment has to be determined not only for the vessel, but also for the cargo.⁹⁹ Article 11 recognizes that property involuntarily lost at sea can be abandoned in two fashions, by express abandonment and by implied abandonment. Express abandonment is fairly straight-forward, requiring that a "wreck's original owner (and its successors in interest), or the original owner's assignees or subrogees (and their successors in interest) have expressly renounced their rights and interests in the wreck."¹⁰⁰ This provision acknowledges that a wreck’s original owner may have successors in interest. Moreover, that original owner or successor may have assigned or subrogated (via an insurance policy) its rights to another party. This clause requires that a "chain of title" be constructed to establish whether a party has expressly renounced its rights in a wreck.

The far more difficult problem concerns implied abandonment. The ProSEA Draft would codify the general maritime law rule, mentioned above,¹⁰¹ that looks to whether an owner knew (or should have known) the location of a wreck, and had the technology to explore or recover it, but yet did not do so within a reasonable time (10 years in the Draft article).¹⁰² I believe this strikes the right balance between owners of historic wrecks and other parties (including sovereigns) that would seek rights to explore and recover them. It does require that owners be vigilant in their rights, and to act promptly when it learns the location of a wreck, or (in the more likely scenario) when the technical capacity to find, explore, and recover the wreck becomes available.

The distinction between abandoned and unabandoned historic wrecks is crucial to the ProSEA Draft. If an historic wreck is considered abandoned, it will be governed by the provisions of Part II on Exploration of Historic Wrecks. Explorers of historic wrecks do not, obviously, have ownership rights in the wrecks. Instead, they can be granted salvage rewards by tribunals of competent jurisdiction applying maritime law, on conditions that will be discussed further below. An explorer of an historic wreck may enforce their salvage rights against owners through maritime liens.¹⁰³

In contrast, finders of historic wrecks which have been abandoned may seek "a declaration of title in objects recovered from a wreck."¹⁰⁴ In addition, there are a host of "other rights" or forms of relief that both explorers and finders may seek from "a maritime or admiralty court or any other tribunal of competent jurisdiction."¹⁰⁵ Among these are (1) the sole right to engage in exploration of a wreck and to exclude all others from a wreck site, (2) the exclusive right to recover objects from a historic wreck without interference, and (3) protection of intellectual property rights derived from the exploration of a wreck site and objects recovered therefrom.¹⁰⁶ As will be discussed presently, a finders’ or explorers’ rights will often be conditioned on the nautical archaeological and historic preservation undertakings it is prepared to make.

Explorers and finders may seek these rights and relief in courts of competent jurisdiction. These are defined in Article 13 of the ProSEA Draft. If the tribunal is located in a signatory State where the finder of explorer is a citizen, national, resident, domicilliary, or is incorporated or has its principal place of business, it will be deemed competent to issue the sorts of decrees just described.¹⁰⁷ Likewise, if a finder or explorer "accepts the jurisdiction of the court or tribunal and agrees to place all objects recovered from the wreck site within that court’s or tribunal’s jurisdiction," it will be deemed competent.¹⁰⁸ This is a form of in rem jurisdiction applied by many maritime tribunals around the world. If a decree granting ownership rights or other forms of relief is made by a court of competent jurisdiction, such decrees are fully enforceable in all other States Party to the Convention.¹⁰⁹ In case of disputes arising under the Convention, they will be resolved by arbitration. If no arbitral tribunal has been constituted within 6 months of the initiation of the dispute, it may be referred wither to either to the International Court of Justice or the new International Tribunal for the Law of the Sea.¹¹⁰

In exchange for receiving rights or remedies from courts applying the Convention, shipwreck explorers and finders have a number of duties. These are articulated in article 6 of the counter-proposal. The idea here is that courts will be in the best position to enforce these duties, as a condition for the explorer or finder to receive a decree binding and enforceable under the Convention. This is the essence of the incentive regime I have discussed.

The duties under article 6 are notable. In many respects they emulate the guidelines suggested in the ICOMOS Charter. In some regards, they go even further in promoting the archaeological integrity of the wreck and historic preservation values. But they do so in harmony with commercial incentives to explore historic wrecks and to recover items therefrom. As a general matter, shipwreck explorers and finders are "obliged to take all reasonable and practicable measures to encourage the protection and management of historic wreck sites and objects recovered therefrom."¹¹¹ This general obligation is supplemented by a host of specific duties, which are presented in article 6 in the rough chronological order that a shipwreck exploration and recovery operations would proceed.

In the first general phase of work, explorers and finders are under a duty to plan the exploration and recovery,¹¹² and to engage the services of a qualified project archaeologist.¹¹³ One of the most important decisions to be made at this phase of the work is to determine whether in situ preservation of the wreck site is the most appropriate utilization.¹¹⁴ If this option is chosen, recovery of artifacts or objects from the site will be precluded.

In the next phase of the work, the emphasis of article 6 is on meticulous record-keeping of archaeologically significant data. This includes "mapping of the wreck site . . . including recording the spatial relationships among objects, vessel parts and bottom features, whether recovered or left in place."¹¹⁵ Moreover, the explorers or finder must "record[] descriptive and locational data on all objects and artifacts associated with the wreck which are recovered from, or observed on, the wreck site and its debris field, in accordance with accepted contemporary archaeological recording standards."¹¹⁶

Exploration and Protection of Submerged Historic Wrecks