¹ For example, the Nuestra Senora de Atocha. See Treasure Salvors I 569 F.2d 330, 337 (5th Circuit 1978).

² United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 396 (UNCLOS).

³ Arts 149 and 303, UNCLOS. Art 149 provides that all objects of an archaeological nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole. Art 303 provides that States have the duty to protect objects of an archaeological nature found at sea and shall cooperate in doing so. The latter also creates a legal fiction to give coastal States jurisdiction over such heritage in the contiguous zone.

⁴ If a State even decides to claim a contiguous zone in the first place. The UK, for example, does not.

⁵ States have the right to claim a territorial sea not exceeding 12 nautical miles from the baseline (Art 3 UNCLOS), a contiguous zone not exceeding 24 nautical miles from the baseline (Art 33 UNCLOS) and an EEZ not exceeding 200 nautical miles from the baseline (Art 57 UNCLOS). Baselines are determined in accordance with arts 5–7 UNCLOS.

⁶ See generally Scovazzi, T ‘The Law of the Sea Convention and Underwater Cultural Heritage’ (2012) 27 IJMCL 753Google Scholar. Art 303 also upholds the law of salvage.

⁷ Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) UNESCO Doc 31C/Res 24; (2002) 41 ILM 37.

⁸ MV Williams, ‘UNESCO Convention on the Protection of the Underwater Cultural Heritage: An Analysis of the United Kingdom's Standpoint’ (The UNESCO Convention for the Protection of the Underwater Cultural Heritage: Proceedings of the Burlington House Seminar, London, October 2005) 10.

⁹ EC Green Paper, ‘Towards a Future Maritime Policy for the Union: A European Vision for the Ocean and Seas (Brussels, 7 June 2006) Doc COM (2006) 275 final, Vol II – Annex, 48.

¹⁰ UNGA Res A/RES/71/257. This is a turnaround indeed, as UNGA initially failed to endorse the Convention's final text.

¹¹ The meetings were attended by delegates from UK Government departments, national heritage agencies and key voluntary bodies.

¹² The Burlington House Declaration asks the Government to ratify the Convention. For the full text of the Burlington House Declaration, see <http://www.jnapc.org.uk/Burlington%20House%20Proceedings%20final%20text.pdf>.

¹³ UK UNESCO 2001 Convention Review Group, ‘The UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001: An Impact Review for the United Kingdom’, Final Report (2014) ISBN 978-0-904608-03-8.

¹⁴ Comprising underwater archaeologists and policy experts within the field. The Final Report of the Review provides a balanced analysis of administrative and policy implications in ratifying the Convention, ibid 12.

¹⁵ 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage: The Case for UK Ratification (March 2014) <http://honorfrostfoundation.org/wp/wp-content/uploads/2016/04/2001-Convention-The-Case-for-Ratification-FINAL.pdf>.

¹⁶ ibid 3.

¹⁷ United Kingdom National Commission for UNESCO, ‘UNESCO Convention on the Protection of Underwater Cultural Heritage: Next Steps for the UK Government’ (March 2015) Policy Brief 17.

¹⁸ ibid 5.

¹⁹ DCMS, ‘The Culture White Paper’ (March 2016) 46. This was followed by a response to a written parliamentary question in November 2016, which stated that the ‘Government remains committed to reconsidering the case for ratification of the [Convention]’ and that a decision on timescales would be made late Spring 2017 <http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2016-11-21/53922/>.

²⁰ Department for Digital, Culture, Media and Sport written statement, HC Deb (31 October 2017) cWS.

²¹ As examined in greater detail below in Part 3, a number of WWI wrecks from the Battle of Jutland have already been salvaged for metal. Over the last few years, a number of British WWII wrecked warships have also disappeared from the Java Sea, again salvaged for metal. See, for example, Lamb, K, ‘Lost Bones, a Mass Grave and War Wrecks Plundered off Indonesia’ The Guardian (London, 28 February 2018)Google Scholar. Lamb reports that salvors have recovered the bones of Allied soldiers killed in action in WWII.

²² Final Report (n 13), Royal Navy Loss List, Appendix 2.1.

²³ Decisions Adopted by the Executive Board at Its 141st Session, Paris (17 June 1993) UNESCO Doc 141 EX/Decisions, 34.

²⁴ Feasibility Study for the Drafting of a New Instrument for the Protection of the Underwater Cultural Heritage, Paris (23 March 1995)Google Scholar UNESCO Doc 146 EX/27, para 9.

²⁵ ibid para 27.

²⁶ ibid para 13.

²⁷ ibid paras 41–2. Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 23 November 1972, entered into force 15 December 1975) 1037 UNTS 151.

²⁸ Decision on the Report by the Director-General on the Reinforcement of UNESCO's Action for the Protection of the World Cultural and Natural Heritage, UNESCO document 141 EX/SR 15 para 15.

²⁹ Despite not being a member of UNESCO at that time.

³⁰ Garabello, R, ‘The Negotiating History of the Convention on the Protection of the Underwater Cultural Heritage’ in Garabello, R and Scovazzi, T (eds), The Protection of the Underwater Cultural Heritage before and after the 2001 UNESCO Convention (Martinus Nijhoff Publishers 2003) 92Google Scholar.

³¹ For example, art 2(7) and Rule 2 Annex.

³² Garabello (n 30) 180.

³³ For example, the UK. See UNESCO Convention on the Protection of the Underwater Cultural Heritage: ‘UK Explanation of Vote’ UK Foreign & Commonwealth Office (2001).

³⁴ See generally, Garabello (n 30).

³⁵ Notable non-parties include Australia, China, Cyprus, Germany, Greece, Indonesia, Ireland, Japan, Malaysia, the Netherlands, Norway, the Philippines, Russia, Singapore, Turkey, the UAE, the UK, and the USA. These States either have a large number of vessels in their registries, a large number of wrecks in their jurisdictional waters, or possess the technology to salvage UCH. Many of their reasons for non-membership are explained below in Section III. Notable State parties include France, Italy, Portugal and Spain, all of which have a rich maritime history.

³⁶ Sweden's Statement on Vote during Commission IV on Culture, reproduced in Garabello and Scovazzi (n 30) 250.

³⁷ USA's Statement during Commission IV on Culture, reproduced in Garabello and Scovazzi (n 30) 252.

³⁸ UCH/17.6.MSP/3, 14. In 2016, the Netherlands officially announced its intention to ratify, stating that ‘the urgency to protect the underwater cultural heritage at the international level is high’ <https://www.government.nl/latest/news/2016/05/19/the-netherlands-will-protect-the-underwater-cultural-heritage>.

³⁹ See ‘UK Explanation of Vote’ (n 33).

⁴⁰ The Impact Review referred to above considers provisions that may present challenges in terms of requiring new administrative arrangements or reallocation of resources. As these are more typically heritage management issues rather than substantive points of law, they will not be considered in this article.

⁴¹ Art 1(a), emphasis added. It should be noted that the Convention's operational guidelines suggest that a State can choose to apply the provisions to objects and sites under 100 years, Operational Guidelines for the Convention on the Protection of the Underwater Cultural Heritage, CLT/HER/CHP/OG 1/REV (August 2015) 4.

⁴² For example, art 4. See also above (n 31).

⁴³ [1986] No 11076, 11077, 11078 P (Transcript) (Ir H Ct 1994).

⁴⁴ Garabello (n 30) 106–9.

⁴⁵ ibid 109.

⁴⁶ ‘UK Explanation of Vote’ (n 33).

⁴⁷ Although the semantics of the UK's devolved settlement are largely outside the scope of this particular article, Northern Ireland, Scotland and Wales have the required legislative competence to create their own legislation over heritage matters.

⁴⁸ Section 1 Protection of Wrecks Act 1973, emphasis added.

⁴⁹ An earlier figure in the negotiations was given as half a million wrecks, see Garabello (n 30) 108.

⁵⁰ Williams (n 8) 2.

⁵¹ ibid. Williams notes that the division in opinion between interested parties to the draft Convention may explain the lack of NGO representation that many other States had.

⁵² ibid.

⁵³ Garabello (n 30) 242.

⁵⁴ Emphasis added.

⁵⁵ UK Marine Policy Statement (March 2011) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/69322/pb3654-marine-policy-statement-110316.pdf> 22.

⁵⁶ Granted by the Marine Management Organisation (England), DAERA (Northern Ireland), Marine Scotland, Natural Resources Wales.

⁵⁷ However, other legislation must be complied with, eg Protection of Wrecks Act 1973, Protection of Military Remains Act 1986.

⁵⁸ There is an obligation in art 5 on State Parties to use the best practicable means at its disposal to prevent or mitigate any adverse effects that might arise from activities under its jurisdiction incidentally affecting UCH. Such activities are defined in art 1(7) as not having UCH as their primary object.

⁵⁹ Emphasis added.

⁶⁰ A Firth, ‘Underwater Cultural Heritage off England: Character and Significance’ (Protection of Underwater Cultural Heritage in International Waters Adjacent to the UK: Proceedings of the JNAPC 21st Anniversary Seminar, London, November 2010) 17.

⁶¹ ibid.

⁶² ibid. This means that they would likely be designated by the UK in any case.

⁶³ Figures available at <https://www.communities-ni.gov.uk/articles/scheduled-monuments#toc-0>, <http://cadw.gov.wales/historicenvironment/protection/monuments/?lang=en>, <https://historicengland.org.uk/listing/what-is-designation/scheduled-monuments/>, <https://www.historicenvironment.scot/advice-and-support/listing-scheduling-and-designations/scheduled-monuments/types-of-scheduled-monument/>.

⁶⁴ Firth (n 60) 20.

⁶⁵ Henderson, G, ‘Significance Assessment or Blanket Protection?’ (2001) 30(1) The International Journal of Nautical Archaeology 3Google Scholar.

⁶⁶ ibid 4.

⁶⁷ European Convention on the Protection of the Archaeological Heritage (Valletta Convention, Revised) ETS No 143.

⁶⁸ Marine Policy Statement (n 55).

⁶⁹ ibid 21, emphasis added.

⁷⁰ It defines ‘significance’ as the value of a heritage asset to this and future generations because of its heritage interest, which may be archaeological, architectural, artistic or historic, which remains a very broad definition.

⁷¹ ibid 22.

⁷² Consultation on a Marine Planning System for England (DEFRA, July 2010) 20, n 41. It would be reasonable to assume that the devolved nations may also take this approach.

⁷³ See The Parlement Belge (1880), 5 P.D. 197.

⁷⁴ Arts 17, 58(2) UNCLOS. See also Brussels Convention for the Unification of Certain Rules Concerning the Immunity of State-Owned Ships and Additional Protocol (adopted 10 April 1926 and 24 May 1934, entered into force 8 January 1937) 176 LNTS 199; Arts 8(1) and 9, Geneva Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11; and art 16, UN Convention on the Jurisdictional Immunities of States and their Property (adopted 2 December 2004, not yet in force). The concept of sovereign immunity was also upheld by ITLOS in The ARA Libertad Case (Argentina v Ghana) [2012] ITLOS Rep 21.

⁷⁵ Protection and Management of Historic Military Wrecks outside UK Territorial Waters: Guidance on How Existing Policies and Legislation Apply to Historic Military Wreck Sites (DMCS and the Ministry of Defence, April 2014) 7.

⁷⁶ Garabello (n 30) 110–11.

⁷⁷ UK Explanation of Vote (n 33).

⁷⁸ States’ explanations of votes and statements are reproduced in Garabello and Scovazzi (n 30) 239–53.

⁷⁹ Emphasis added.

⁸⁰ Emphasis added.

⁸¹ The UK and Russia (31 C/COM.IV/DR.5) and France (31 C/COM.IV/DR.4) attempted to change the word ‘should’ to ‘shall’ a few days before the final vote.

⁸² The Convention does not refer to ‘coastal State’ anywhere in the text, however, the coastal State is the default Coordinating State under art 10(3) unless it opts out of doing so.

⁸³ See generally, Caflisch, L, ‘Submarine Antiquities and the International Law of the Sea’ (1982) 13 NYIL 3, 22CrossRefGoogle Scholar; Migliorino, L, ‘The Recovery of Sunken Warships in International Law’ in Vukas, B (ed), Essays on the New Law of the Sea (University of Zagreb 1985) 251Google Scholar; N Ronzitti (Rapporteur), ‘The Legal Regime of Wrecks of Warships and Other State-owned Ships in International Law’ (Session of Rhodes, Greece 2011) 74 Yearbook of the Institute of International Law 133, 143.

⁸⁴ It should also be noted that immunity is also extended under art 29 UNCLOS to ‘other government ships operated for non-commercial purposes’ for which a definition is not provided.

⁸⁵ International Convention on Salvage (adopted 28 April 1989, entered into force 14 July 1996) 1953 UNTS 165 (Salvage Convention) art 1(b).

⁸⁶ Ronzitti (n 83). The Rapporteur of the IDI's 9th Scientific Commission drafted a Preliminary Report, which was discussed at the Rhodes Session in 2011, following which a Resolution was adopted by the Tallinn Session in 2015.

⁸⁷ For example, art 107 UNCLOS provides that only warships (and other named vessels) may seize on account of piracy.

⁸⁸ For example, the UK and Russia have ratified both Conventions.

⁸⁹ Forrest, C, International Law and the Protection of Underwater Cultural Heritage (Routledge 2011) 336Google Scholar. Ronzitti agrees with this principle; Ronzitti (n 83) 143.

⁹⁰ See Federal Register, Volume 69, Number 24 (Thursday, 5 February, 2004) 5647-8.

⁹¹ Dromgoole, S, ‘The Legal Regime of Wrecks of Warships and Other State-owned Ships in International Law: The 2015 Resolution of the Institut de Droit International’ (2015) 25 IYIL 181, 190Google Scholar.

⁹² Le Gurun, G, ‘France’ in Dromgoole, S (ed), The Protection of the Underwater Cultural Heritage: National Perspectives in Light of the UNESCO Convention 2001 (2nd edn, Martinus Nijhoff 2006) 92–3Google Scholar.

⁹³ Art 4(1), Salvage Convention. Upon ratifying in 1994, the UK entered a reservation in accordance with art 30(1)(d) that would allow UCH to be excluded from the remit of salvage law and the Convention. It has not yet chosen to exercise this right.

⁹⁴ Nairobi International Convention on the Removal of Wrecks (adopted 18 May 2007, entered into force 14 April 2015) 46 ILM 694.

⁹⁵ ibid art 4(2).

⁹⁶ Such States include the USA, France, Germany, Japan, Russian Federation, Spain and the UK. See Federal Register (n 90) for full statements.

⁹⁷ ‘Presidential Statement on United States Policy for the Protection of Sunken State Craft’ (19 January 2001) Public Papers of the Presidents: William J Clinton, vol III, p 2956, 19 Jan 2001. Reprinted Federal Register (n 90).

⁹⁸ Exchange of Notes between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of South Africa concerning the regulation of the terms of settlement of the salvaging of the wreck of HMS Birkenhead (Pretoria, 22 September 1989) 1584 UNTS 321. For further examples, see MJ Aznar-Gomez, ‘Treasure Hunters, Sunken State Vessels and the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage’ (2010) 25 IJMCL 209, 221–3. Aznar-Gomez gives examples relating to Italy, Australia, the Netherlands, Norway, Germany, Singapore, Canada, Russia and Japan.

⁹⁹ The first such claim was made by Spain in 2000, where a federal appeals court in Virginia awarded ownership of La Galga and Juno to Spain rather than a treasure hunter who had spent nearly $2million on preliminary recovery work and fees. Spain was supported by the UK and the USA.

¹⁰⁰ Federal Register (n 90), emphasis added.

¹⁰¹ ibid, emphasis added.

¹⁰² ibid, emphasis added.

¹⁰³ Sunken Military Craft Act 2005 (10 USC Section 113ff) confirms that the USA does not lose ownership (and thus sovereign immunity) of a warship merely through the passage of time.

¹⁰⁴ MOD Guidance Document (n 75).

¹⁰⁵ Ronzitti (n 83) 371.

¹⁰⁶ As such vessels are State property, ownership remains with the State unless title is expressly transferred or abandoned.

¹⁰⁷ This view is supported by the Convention on Jurisdictional Immunities of States and their Property 2004 (n 74)

¹⁰⁸ Ronzitti (n 83) 142–5.

¹⁰⁹ Henckaerts, J and Doswald-Beck, L, Customary International Humanitarian Law, Vol 1: Rules (ICRC and Cambridge University Press 2006), Rule 115Google Scholar.

¹¹⁰ Petrig, A, ‘The War Dead and Their Gravesites’ (2009) 91 IRRC 341, 344CrossRefGoogle Scholar.

¹¹¹ Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.

¹¹² Dromgoole notes that for older wrecks, it may be difficult to determine whether they were used exclusively in public service. Dromgoole, S, Underwater Cultural Heritage and International Law (Cambridge University Press 2013) 156CrossRefGoogle Scholar.

¹¹³ The HMS Swift, a British wreck in Argentina, should serve as an example of the cooperation of States. See Elkin, D, ‘HMS Swift: Scientific Research and Management of Underwater Cultural Heritage in Argentina’ in Grenier, R, Nutley, D and Cochran, I (eds), Underwater Cultural Heritage at risk: Managing Natural and Human Impacts (UNESCO 2006) 76–8Google Scholar.

¹¹⁴ For example, art 73(1) UNCLOS.

¹¹⁵ Federal Register (n 90).

¹¹⁶ Over 6,000 British soldiers were killed in the battle off the coast of Norway, in addition to approximately 2,500 German soldiers. These wrecks came within the Convention's scope in 2016.

¹¹⁷ See generally, Booth, R, ‘Battle of Jutland War Graves ‘Vandalised’ by Illegal Metal Scavengers’ The Guardian (London, 18 September 2016)Google Scholar; McCartney, I, ‘The Battle of Jutland's Heritage under Threat: Commercial Salvage on the Shipwrecks as Observed 2000 to 2016 (2017) 103(2) The Mariner's Mirror 196CrossRefGoogle Scholar.

¹¹⁸ HL Deb (28 November 2012) vol 741, col 118.

¹¹⁹ The wreck would also need to fall within the definition in art 1(1) of the Convention.

¹²⁰ Arts 2(7) and 4, and Rule 2 Annex do not permit the operation of salvage law where the aim is commercial exploitation of the UCH.

¹²¹ Final Report (n 13), Royal Navy Loss List, Appendix 2.1.

¹²² DMCS and MOD Document (n 75).

¹²³ ibid 5.

¹²⁴ Warships: Wrecks: Written Question – 352, Commons (Asked 28 May 2015, Answered 1 June 2015). Presumably the Government believed it could not take action as the ships have been sold and immunity lost, see HL Deb (28 November 2012) vol 741, col 118.

¹²⁵ MJ Aznar-Gomez, ‘Spain's Position Having Ratified the UNESCO Convention’, Burlington House Seminar (2010) (n 60) 41–2.

¹²⁶ Garabello (n 30) 246, and Federal Register (n 90).

¹²⁷ Netherlands Ratification Announcement (n 38).

¹²⁸ See, for example, Holmes, O, Ulmanu, M and Roberts, S, ‘The World's Biggest Grave Robbery: Asia's Disappearing WWII Shipwrecks’ The Guardian (London, 3 November 2017)Google Scholar. See also Lamb (n 21).

¹²⁹ DCMS Statement (n 20).

¹³⁰ See generally Garabello (n 30) 138–54.

¹³¹ ibid 144.

¹³² Williams (n 8) 4.

¹³³ ‘UK Explanation of Vote’ (n 33).

¹³⁴ UNESCO doc WG1-NP3 (6 July 2000).

¹³⁵ See the Netherlands’ and Japan's Remarks Prior to Vote during Debates in Commission IV on Culture (29 October 2001, 31st Session of the General Conference, UNESCO), reproduced in Garabello and Scovazzi (n 30) 243–5. Japan sees the ambiguity as the ‘good facilitator’ to reconcile some conflicting views.

¹³⁶ Arts 56 and 77 UNCLOS set out the limited sovereign rights and jurisdiction of the coastal State over the EEZ and continental shelf.

¹³⁷ For example, the UK, Norway, Russia and the USA. See Garabello and Scovazzi (n 30) 248–52.

¹³⁸ Vienna Convention (n 111).

¹³⁹ ibid, art 31(3)(b).

¹⁴⁰ ‘Reporting and notification in the exclusive economic zone and on the continental shelf’.

¹⁴¹ Emphasis added.

¹⁴² Scovazzi believes this to be a true reflection, Scovazzi, T, ‘Convention on the Protection of Underwater Cultural Heritage’ (2002) 32 Environmental Policy and Law 152, 154Google Scholar. Forrest also appears to take this view, stating that a ship can either report to the flag State and coastal State, or just the flag State, which will undertake to inform the coastal State; Forrest (n 89) 348.

¹⁴³ International Law Commission, Subsequent agreements and subsequent practice in relation to the interpretation of treaties, Draft Conclusion 4(2), adopted by the Commission at its 65th Session (2013) UN Doc A/CN.4/L.813 (2013).

¹⁴⁴ The report was made by Italy, concerning a wreck off the coast of La Spezia, UCH/15/5.MSP/220/2 (18 June 2013) 3. Other reports have been returned to the authorities concerned as the wrecks in question were in territorial waters, rather than international waters.

¹⁴⁵ UNESCO Meeting of State Parties to the Convention on the Protection of the Underwater Cultural Heritage, ‘Draft Operational Guidelines’ (20 October 2009) UCH/09/2.MSP/220/5 REV.

¹⁴⁶ ibid 15–16.

¹⁴⁷ See comments by Saint Lucia, Working Group on the Operational Guidelines, Revised Draft of the Operational Guidelines (7 February 2011), UCH/11/WG/220/1 REV, 11.

¹⁴⁸ Summary Record of the Second Session of the Meeting of State Parties to the Convention on the Protection of the Underwater Cultural Heritage (11 January 2010), UCH/11/3.MSP/220/4rev, 8, 16. This is reflected in the final Operational Guidelines (n 41) para 22.

¹⁴⁹ Operational Guidelines (n 41) 8.

¹⁵⁰ Vienna Convention (n 111) art 31(3)(c).

¹⁵¹ Art 303(4).

¹⁵² Art 3.

¹⁵³ The Netherlands Advisory Committee on Issues of Public International Law, ‘Advisory Report on the UNESCO Convention on the Protection of the Underwater Cultural Heritage’ (Translation) (The Hague, December 2011) Advisory Report No 21, 6.

¹⁵⁴ ibid. Norway expressly reserved its position under art 311(3) during the general debate in Commission IV of the 31st General Conference of UNESCO relating to international agreements modifying or suspending the operation of provisions under UNCLOS. See M Rau, ‘The UNESCO Convention on Underwater Cultural Heritage and the International Law of the Sea’ (2002) Max Planck 6 UNYB 387, 392, 423. In any case, Rau suggests that the application of art 311 is not pertinent as art 311(5) does not affect international agreements expressly permitted by other articles of UNCLOS. This has the effect of precluding any argument of possible inconsistency between the lex generalis of art 311 and the lex specialis of other relevant articles of UNCLOS; Rau 423.

¹⁵⁵ Vienna Convention (n 111) art 32.

¹⁵⁶ Netherlands Advisory Report (n 153) 3.

¹⁵⁷ Garabello (n 30) contains a detailed record of negotiations.

¹⁵⁸ ibid 144.

¹⁵⁹ Including Germany, Norway, the Netherlands and France.

¹⁶⁰ Garabello (n 30) 144.

¹⁶¹ UNESCO Doc 31 C/COM.IV/DR.5 (26 October 2001).

¹⁶² Garabello (n 30) 144.

¹⁶³ ibid 145. See also Scovazzi (n 142) 154; cf O'Keefe, PJ, Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage (2nd edn, Institute of Art and Law 2014) 83Google Scholar. O'Keefe states that the rejection of this proposal is a ‘clear indication’ that most States preferred to retain both interpretations of the provision.

¹⁶⁴ ibid. Emphasis added.

¹⁶⁵ ILC (n 143) Draft Conclusion 4(3).

¹⁶⁶ <http://www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/2001-convention/official-text/declarations-and-reservations/>.

¹⁶⁷ Netherlands Advisory Report (n 153) 8.

¹⁶⁸ Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3. This declaration notes the UK's understanding that no new grounds for jurisdiction are provided based on the nationality of persons involved in fishing on the high seas, rather than on the principle of flag State jurisdiction.

¹⁶⁹ See for example, O'Keefe (n 163) 90, Dromgoole (n 112) 290.

¹⁷⁰ cf Scovazzi (n 142) 155.

¹⁷¹ G Carducci, ‘New Developments in the Law of the Sea: The UNESCO Convention on the Protection of Underwater Cultural Heritage’ (2002) 96 AJIL 419, 430.

¹⁷² This provision in itself has also been controversial, as it suggests that there are jurisdictional rights beyond those conferred by UNCLOS. The same relates to art 3, where a similar formula is used. See Dromgoole (n 112) 301.

¹⁷³ O'Keefe (n 163) 69.

¹⁷⁴ Garabello (n 30) 148.

¹⁷⁵ Rau (n 154) 416; cf O'Keefe (n 163) 69.

¹⁷⁶ Rau (n 154) 427, emphasis added. O'Keefe considers it unlikely that a State would challenge the measures taken by another to protect its sovereign rights, asserting that it ‘would be necessary for the other State to prove its allegations – not only the practical aspects but also something approaching misconduct on the part of the coastal State’; O'Keefe (n 163).

¹⁷⁷ Scovazzi (n 142) 155.

¹⁷⁸ Garabello (n 30) 149. The UK, Norway and the USA also held this view.

¹⁷⁹ Dromgoole identifies a third issue, that the wording appears to permit measures to be taken in respect of all types of human activities, including those only incidentally affecting UCH; Dromgoole (n 112) 300.

¹⁸⁰ O'Keefe (n 163) 68. For example, if the coastal State lacks an administrative structure to handle the work involved; it does not have the requisite technology for the task; or the UCH in question has no particular relationship to its own people.

¹⁸¹ ibid 81.

¹⁸² Scovazzi (n 142) 155.

¹⁸³ Rau (n 154) 417.

¹⁸⁴ This ‘strangely placed’ provision is laid down in art 9(5); O'Keefe (n 163) 86. This declaration of an interest in consultation should be based on a verifiable link.

¹⁸⁵ This is confirmed in the travaux préparatoires, UNESCO Doc WG.1/NP.1 (5 July 2000).

¹⁸⁶ Garabello (n 30) 151.

¹⁸⁷ Scovazzi (n 142) 155, ‘By definition, in a case of urgency a determined State must be entitled to take immediate measures without losing time in any procedural requirements.’

¹⁸⁸ Garabello (n 30) 149.

¹⁸⁹ Dromgoole (n 112) 302.

¹⁹⁰ ibid 303.

¹⁹¹ Le Gurun (n 92) 78.

¹⁹² ibid 85.

¹⁹³ Netherlands Advisory Report (n 153) 10.

¹⁹⁴ The UK's ratification, alongside the likely accession of the Netherlands, would serve as confirmation of this.

¹⁹⁵ DCMS Statement (n 20).

¹⁹⁶ The Impact Report referred to in the Introduction of this article discusses the necessary administrative and policy changes, and the majority of the substantive clauses of the Convention present no difficulty to the UK. See Final Report (n 12) 71, 83.

¹⁹⁷ See, for example, Holmes, Ulmanu and Roberts (n 128).

¹⁹⁸ Recording the particular location of the artefacts and their proximity to other artefacts and the ship's hull are significant in preserving the entire time capsule, as this location information could be important for revealing history and culture. See Varmer, O, ‘The Case Against the “Salvage” of the Cultural Heritage’ (1999) 30(2) JMLC 279, 289Google Scholar.

¹⁹⁹ Steinbeck, J, The Grapes of Wrath (Penguin Classics 2000) 111Google Scholar.