1 Convention on the Protection of the Underwater Cultural Heritage, Nov. 2, 2001, 41 ILM 40 (2002) [hereinafter Convention], available at <http://www.unesco.org/culture/laws/underwater/html_eng/convention.shtml>.

2 International Law Association, Draft Convention on Underwater Cultural Heritage (1994), reprinted in J, Patrick. O’Keefe, & James, A. R. Nafziger, , Report: The Draft Convention on the UCH, 25 Ocean Dev. & Int’l L. 391 (1994)Google Scholar [hereinafter ILA Draft].

3 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397 [hereinafter LOS Convention].

4 One should not lose sight of the fact that, at least according to the preamble to the LOS Convention, the desire was “to settle ... all issues related to the law of the sea.” The preamble also recognizes, however, that there are matters “not regulated” by the LOS Convention. They continue to be governed by the rules and principles of general international law.

5 As early as July 7, 2001, the last day available for the meeting of governmental experts, the delegation of the Russian Federation called for a vote, which resulted in the adoption of the draft by that group by 49 in favor, 4 against, and 8 abstentions.

6 LOS Convention, supra note 3, Art. 303(4).

7 The idea of “implementation” of the LOS Convention by the new Convention, often mentioned during the debates, remains fragile to the extent that the scope of application (ratione materiae) of the two conventions is not easily comparable, as the LOS Convention never defined its notion of the objects referred to in its Articles 149 and 303 (paragraphs 1 and 2). The correspondence of these objects to the notion of UCH in the Convention is here simply assumed brevitatis causa to enable a comparison of the two instruments.

8 Oceans and the Law of the Sea, GA Res. 54/31, pmbl. (Jan. 18, 2000).

9 E.g., W, George. Bush, , Statement on United States Policy for the Protection of Sunken Warships, 37 Wkly. Comp. Pres. Doc. 195, 195 (Jan. 22, 2001)Google Scholar (“The unauthorized disturbance or recovery of these sunken State craft and any remains of their crews and passengers is a growing concern both within the United States and internationally.”).

10 For instance, as stated in the R.M.S. Titanic case: “Because the wreck lies under 2.5 miles of water, where there is virtually no light, the water is frigid, and the water pressure beyond general comprehension, only the most sophisticated oceanographic equipment can explore the site and recover property.” R.M.S. Titanic v. Haver, 171 F.3d 943, 966 (4th Cir. 1999).

11 Detailed commentary on each provision cannot be provided here. For commentary on the provisions of the LOS Convention on UCH and elements of domestic and international practice, see Anastasia Strati, the Protection of the Underwater Cultural Heritage: an Emerging Objective of The Contemporary Law of the Sea (1995); Jean-Paul, Beurier, Pour un Droit international de I’archéologie sous-marine, 93 Revue Générale De Droit International Public [RGDIP] 45 (1989)Google Scholar; Caflisch, Lucius, Submarine Antiquities and the International Law of the Sea, 1982 Google Scholar Neth. Y.B. Int’l L. 3; Goy, Raymond, L’ Epave du Titanic et le droit des épaves en haute mer, 1989 Google Scholar Annuaire Francais De Droit International 752; Leanza, Umberto, La Zona archeologica marina e la protezione dei beni culturali subacquei, in La Protezione Internazionale E La Circolazione Comunitar1a Dei Beni Culturali Mobili 91 (Pasquale Paone ed., 1998)Google Scholar; Treves, Tullio, Stato costiero e archeologia marina, 76 Rivista Di Diritto Internazionale 698 (1993)Google Scholar; Philomène, A. Verlaan, , Marine Archaeology: A Trojan (Sea) Horse? 1989 Google Scholar Ocean, Y.B. 231; Ingo, von Münch, Schiffswracks. Völkerrechtliche Probleme, 20 Archiv Des Völkerrechts 183 (1982)Google Scholar.

12 For instance, strictly applying the statement(s) that the Convention shall not “prejudice” the duties of states parties under, inter alia, the LOS Convention and/or that its interpretation and application shall be “in a manner consistent with,” inter alia, the LOS Convention may end up paralyzing the new Convention, whose regime certainly elaborates on, and increases the substance and reach of, the duties to protect UCH for states parties. On the other hand, no particular precaution seems needed concerning the interpretation in the context of the LOS Convention of those other provisions of the Convention that are not substantial and innovative rules but simply references to notions codified in the LOS Convention such as “continental shelf” (not defined in the new Convention) and “Area” (defined in Article 1(5), following Article 1 (1) (1) of the LOS Convention).

13 That is the case especially in private law international conventions. See, e.g., United Nations Convention on Contracts for the International Sale of Goods, Apr. 11, 1980, Art. 7(1), 19 ILM 668 (1980).

14 As already for other existing maritime conventions. See generally Berlingieri, Francesco, Diritto marittimo uniforme e attuazione dells convenzioni intemazionali, in L’unificazione Del Diritto Internazionale Prtvato E Processuale 37 (1989)Google Scholar.

15 For a further analysis of these difficulties for movable cultural property, which may apply also to UCH once recovered, displaced, and subject to different legal systems and regimes, see Guido Carducci, La Restitution Internationale Des Biens Culturels Et Des Objets D’Art: Droit Commun, Directive Cee, Conventions De L’Unesco Et D’Unidroit 214-40 (1997).

16 Convention, supra note 1, Art. 1(a).

17 Id. It is a three-branched list: “ (i) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context; (ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (iii) objects of prehistoric character.”

18 For an argument in favor of this test by a commentator who did not participate in the negotiations, see J, David. Bederman, , The UNESCO Drafi Convention on Underwater Cultural Heritage: A Critique and Counter-Proposal, 30 J. Mar. L. & Com. 331, 332–34 (1999)Google Scholar.

19 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 31 (1), 1155 UNTS 331.

20 Convention, supra note 1, Art. 2(2).

21 Id., Art. 1(8).

22 See id., Arts. 7(3), 10(7), 12(7).

23 Id., Art. 13.

24 The charter was adopted by the International Council on Monuments and Sites (ICOMOS), a nongovernmental organization, on October 9, 1996, in Sofia and ratified by the ICOMOS General Assembly with representatives from more than eighty countries. International Charter on the Protection and Management of the Underwater Cultural Heritage (Oct 9,1996), at <http://www.international.icomos.org/under_e.htm> [hereinafter ICOMOS Charter].

25 Convention, supra note 1, Art. 1(6).

26 Id., Art. 1(7).

27 Id., Art. 5.

28 Id., Art 2(1), (2).

29 Id., Art. 2(3).

30 LOS Convention, supra note 3, Art. 303(3).

31 This assumption is also implied where the Convention refers to the law of finds. Convention, supra note 1, Art. 4.

32 Id., Art. 2(5).

53 ICOMOS Charter, supra note 24.

34 See Convention, supra note 1, Art. 4 (salvage law).

35 Id., Art. 2(7).

36 Id., annex, Rule 2.

37 Id., annex, Rule 2, para. 2 (rule paras, are unnumbered).

38 Id., annex, Rule 1.

39 If excavation or recovery appears necessary for the purpose of scientific studies or for the ultimate protection of the UCH. Id., annex, Rule 4.

40 ILA Draft, supra note 2, Art. 4.

41 Doc. WP 13 (Mar. 27, 2001).

42 Outside the UNESCO negotiations, although criticism has been addressed to the exclusion of salvage in the ILA Draft, see Bederman, supra note 18, at 344 n.22, other views have been expressed in favor of the exclusion of salvage for UCH, e.g., Society for Historical Archaeology, Statement of Principles on the Revised UNESCO Draft Convention (June 28, 2000), at <http://www.sha.org/UNESCOd.htm>; Ricardo J. Elia, US Protection of Underwater Cultural Heritage Beyond the Territorial Sea: Problems and Prospects, 29 Int’l J. Nautical Archaeology 43, 51 (2000); Varmer, Ole, The Case Against the “Salvage” of the Cultural Heritage, 30 J. Mar. L. & Com. 279 (1999)Google Scholar.

48 Decree No. 61-1547 of Dec. 26, 1961, Art. 24J.O., Jan. 12, 1962, p. 374 (fixant le régime des épaves maritimes).

44 Law No. 89-874 of December 1, 1989, J.O., Dec. 5, 1989, p. 15, 033; D.L. 1989, 368 (relative aux biens culturels maritimes).

45 Abandoned Shipwrecks Act, Pub. L. No. 100-298, §7, 102 Stat. 434 (1988) (codified at 43 U.S.C. §2106 (2000)).

46 At least to those represented in UNESCO.

47 See Brice, Geoffrey, Maritime Law of Salvage 261, paras. 4–22 (3d ed. 1999)Google Scholar.

48 International Convenuon on Salvage, Apr. 28, 1989, Art. 30(1) (d), at <http://www.jus.uio.no/lm/imo.salvage.convention.1989/doc.html>.

49 With an important exception (unlikely to concern salvage of UCH directly) regarding the duties to prevent or minimize damage to the environment. Id., Art. 6.

50 See, e.g., Columbus-Am. Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 464 n.5 (4th Cir.1992) (“Such abandonment must be proved by clear and convincing evidence, though, such as an owner’s express declaration abandoning tide.”)

51 This is already true in the practice of the United States. For instance, in Fairport International Exploration Inc. v. Shipwrecked Vessel, 177 F.3d 491, 499 (6th Cir. 1999), the lapse of time alone was not deemed to establish abandonment. In the Columbus-America Discovery Group case, a narrower view of abandonment, close to a simple presumption because the vessel remained underwater for a long time after sinking, was presented by dissenting Circuit Judge Widener. 974 F.2d at 474. One step further in this direction, which means one degree lower in the protection of the owner, was provided by the even narrower view expressed by the U.S. Court of Appeals for the Fifth Circuit in Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 337, paras. 8-10 (5th Cir. 1978).

52 LOS Convention, supra note 3, Art. 303(3).

53 Convention, supra note 1, Art. 19(1), (2), (3).

54 Id., Art. 19(3), (4).

55 Id., Art. 2(6).

56 During the negotiations some delegates wished to limit this compatibility test to national rules only of absolute importance to the states parties, i.e., basically constitutional rules or constitution-level rules. This view was not adopted, as is reflected by the final language.

57 Convention, supra note 1, Art. 19(3).

58 Id., annex, Rule 2, para. 1.

59 Id., Art. 14.

60 As well as on the basis of the international rules, if any, applicable to this issue in the legal system of the “exporting” state.

61 See, e.g., Convention, supra note 1, Art. 19(4).

62 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 UNTS 231.

63 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, June 24, 1995, at <http://www.unidroit.org>.

64 Convention, supra note 1, Art. 18(1).

65 Id., Art. 18(2). The term “stabilize” and the French “stabilisation” were adopted as specific underwater archaeology terminology.

66 Brevitatis causa, by “characterized” link is meant in this Note a “cultural, historical or archaeological” link with the UCH.

67 Convention, supra note 1, Art. 18(3).

68 Article 6(1) refers to states parties (to the Convention).

69 Convention, supra note 1, Art. 7(1).

70 That is, rules, if any, deriving from other international agreements or international law. Id., Art. 7(2).

71 The exclusive right of the coastal state granted by Article 7(1) covers three areas (as does the whole title of Article 7), while the exception for state vessels and aircraft (Art. 7(3)) covers only archipelagic waters and the territorial sea.

72 This language, though mentioned earlier, was formally proposed by the United Kingdom and the Russian Federation, and by France late in the negotiations. UNESCO Docs. 31 C/COM.IV/DR.5, 31 C/COM.IV/DR.4 (Oct. 26, 2001).

73 Convention, supra note 1, Art. 2(2).

74 The same baselines apply to the delimitation of the contiguous zone and the territorial sea.

75 See generally Leanza, Umberto, Le Régime juridique international de la Méditerranée, 236 Recueil Des Cours 129, 252 (1992 V)Google Scholar.

76 ILA Draft, supra note 2, Arts. 1(3), 5.

77 Historic Shipwrecks Act, 1976, §1, at <http://www.austlii.edu.au>. See, for instance, §13(1) (d) for the case of removal of a historic shipwreck or a historic relic from Australia, from Australian waters, or from waters above the Australian continental shelf.

78 Convention, supra note 1, Art. 8.

79 Respectively, Articles 9 (EEZ and continental shelf) and 11 (Area).

80 Respectively, Articles 10 (EEZ and continental shelf) and 12 (Area).

81 Convention, supra note 1, Art. 9(1).

82 This declaration is to be made on depositing the instrument of ratification, acceptance, approval, or accession. Id., Art. 9(2).

83 Id., Art. 9(3), (4).

84 Id., Art. 10(2).

85 Since, according to Article 10(2) of the Convention, other sovereign rights or jurisdiction may be granted to the coastal state by other rules of international law.

86 As well as jurisdiction over the establishment and use of artificial islands, installations, and structures. LOS Convention, supra note 3, Art. 56(1) (b).

87 Id., Arts. 56, 77. Article 85 on the right of the coastal state to exploit the subsoil by means of tunneling may also be concerned in some circumstances.

88 Concerning the continental shelf. Id., Art. 81.

89 Which means only those states parties which have a verifiable link, especially a characterized link, to the UCH concerned. Convention, supra note 1, Arts. 9(5), 10(3) (a).

90 In that case, the coordinating state will be appointed by the states that have declared an interest. Id., Art. 10(3)(b).

91 In taking such measures, assistance may be requested from other states parties. Id., Art. 10(4).

92 Id., Art. 10(6).

93 Article 10(7) states, “[s]ubject” to the provisions of paragraphs 2 and 4. Later, “[notwithstanding” was suggested by the United Kingdom delegation and was also subsequently presented by it as a draft resolution, together with the Russian Federation. On a different issue, this draft resolution also proposed the deletion of “and the collaboration of the Coordinating State.” UNESCO Doc. 31 C/COM.IV/DR.5 (2001).

94 Convention, supra note 1, Art. 11(1).

95 Id., Art. 11(2), (3).

96 Id., Art. 12(2).

97 Immediate danger, whether arising from human activity or any other cause. Id., Art. 12(3).

98 And in this case it shall issue all necessary authorizations therefor, and shall promptly inform the UNESCO director-general of the results of this research, and he or she, in turn, shall make such information available to other states parties. Id., Art. 12(5).

99 Unless the consulting states, which include the coordinating state, agree that another state shall implement these measures and/or issue all necessary authorizations. Id., Art. 12(4) (a), (b).

100 Id., Art . 12(6).

101 LOS Convention, supra note 3, Art. 149. This is also why this final part of the provision (Art. 12(6) of the Convention) is specific to the Area, as is Article 149 of the LOS Convention, and is absent from the similar provision on the EEZ and the continental shelf (Art. 10(6)).

102 Also, the language “particular regard” shall be paid to these preferential rights is nearly identical to that in Article 149 of the LOS Convention.

103 “Mainly” because another verifiable link seems to be permitted as a requirement for selection under Article 11 (4). The same interpretation seems to apply to Article 9(5) on the EEZ and the continental shelf.

104 Convention, supra note 1, Arts. 11(4), 12(2).

105 The powers and functions of the International Seabed Authority are to be expressly conferred upon it by the LOS Convention, supra note 3, Art. 157(2).

106 Convention, supra note 1, Art. 12(7).

107 Though practice does not seem to provide certainty about the existence of a well-rooted general customary regime of protection of UCH, a customary rule whose content would be the obligation at least to abstain from any act causing damage to or destruction of the UCH seems reasonable. Article 303(1) of the LOS Convention may be considered declarative of such a preexisting rule or to have contributed to its existence since 1982. In any case, the principle of freedom of the high seas and its main applications (laying submarine cables and pipelines, fishing, and scientific research) should not be considered in itself, and to the extent of the maritime zones where the principle still applies, as necessarily incompatible with the existence of this rule. As for the content of the described rule, and a fortiori of the principle of the freedom of the high seas with regard to UCH, they are manifestly different from the high-standard content of the Convention (including its annex).

108 Treaties are often presented as a source of abrogation of a custom. See, e.g., Reuter, Paul, Introduction Au Droit Des Traités 117 n.205 (1985)Google Scholar.

109 For an analysis of our proposal to distinguish these two effects of treaties on custom, see Carducci, Guido, L’Obligation de restitution des Mens culturels et des objets d’art en cas de conflit arme: droit coutumier et droit conventionnel avant et après la Convention de La Haye de 1954 (L ‘importance dufacteur temporel dans les rapports entre les traités et la coutume), 104 RGDIP 289, 292, 309–15 (2000)Google Scholar. To summarize the proposal: the effects of a treaty would be the abrogation of the customary rule among states parties only if the treaty intervened at a time when custom was conceived of as a tacit agreement (accord tacite), which is no longer the case for general customs but may still be the case in the adjudicator’s or arbitrator’s opinion for “regional” customs. In the other, more recent cases, where the treaty intervenes in the period (1910-1920) since custom has generally been conceived of as the result of practice and opinio juris, which is psychological and not simply voluntary, the effect should simply be the suspension of the effects of the preexisting customary rule (of a different content) between states parties to the treaty. This suspension effect would also apply in principle to the LOS Convention, and especially to the new Convention and its innovative content in the field of UCH, in relation to any potential preexisting general, maybe even regional customs on UCH (if in the adjudicator’s or arbitrator’s view they are not fundamentally an application of the tacit agreement— accord tacite—theory), as these customs would have a different content: the principle of freedom of the high seas as applied, inter alia, to UCH or, maybe and if its existence were agreed upon, a customary rule at least not to damage or destroy UCH (as suggested in note 107 supra).

110 Convention, supra note 1, Art. 25. Adoption of this article may nevertheless result in nonratification by some states not party to the LOS Convention. The delegation of Turkey made statements in this direction. It is useful to recall that among the different proposals made during the negotiations, Doc. WP 44 (Apr. 4, 2001), submitted by Venezuela, Turkey, and Thailand, suggested a simple one-paragraph Article 25 on peaceful settlement of disputes: no mention was made of the LOS Convention or its Part XV, and the peaceful means envisaged were exclusively those listed in Article 33(1) of the UN Charter.

111 Convention, supra note 1, Art. 29.

112 With the exception of the alternative to the federal clause (Art. 30), the Convention falls within the scope of Article 19(a) of the Vienna Convention on the Law of Treaties, supra note 19.