² Hereafter ‘UNESCO’.

³ Doc. 31 C/24, Paris, 3 Aug 2001. Hereafter ‘the Convention’. The Convention was adopted by the General Assembly of UNESCO on 2 Nov 2001 by a vote of 81 in favour, 4 against (Russian Federation, Norway, Venezuela, and Turkey) and 15 abstentions (which included UK, France, Germany, the Netherlands, Israel, Brazil, Columbia, Greece, Hungary, and Saudi Arabia).

⁴ 294 UNTS 215.

⁵ 10 ILM 289.

⁶ 1037 UNTS 151.

⁷ Hereafter ‘UCH’.

⁸ In 1966, during a UNESCO Regional Seminar on the Protection of Movable Property, held in Brisbane, Australia, is was declared that ‘if positive steps are not taken immediately it is anticipated that the recent advances that have been made by treasure hunters internationally … will result in tragic loss of essential and important heritage.’

⁹ See, eg, ‘Fleet of Medieval Ships Discovered in Britain’, Independent, 24 Oct 2000.

¹⁰ Historic shipwreck (those that sunk more than a hundred years ago) that have yielded significant commercially valuable commodities include the Duoro (coins sold for £1.5 million, see Diver ‘Mint Duoro coins draw the bidding’ (Jan 1997), 46Google Scholar; The Times ‘Golden treasure from shipwreck to fetch £1.5m’, 7 Sept 1996, 11)Google Scholar, the SS Central America (see Kinder, G, Ship of Gold in the Deep Blue Sea (New York: The Atlantic Monthly Press, 1998)Google Scholar, the Neustra Señora de Atocha (reputed to be worth $250 million; see Velocci, T, ‘Treasure Hunting: There's Gold in Them Thar Galleons’, National Business, Aug 1980, 58–62)Google Scholar, the Cazador (worth $50 million; see Diver ‘Ten days on the Cazador’ (June 1996), 86–9)Google Scholar, the Nanking Cargo (sold for $15 million at auction, see The Times, ‘The Ocean Gold Rush’ 25 Oct 1993) and the Diana (worth £1 million, see The Times, ‘Shipwreck gives up her hoard of perfect porcelain’, 25 Jan 1995, 4). A significant number of recovery operations undertaken by treasure salvors indicated that the recoveries were expected to yield huge fortunes, but have yet to come to fruition. See, eg, the case of the Hanover (reported to be worth £50 million, see Sunday Times, 'Wreckfinder hits £50 m crock of gold’, 27 Oct 1996 at 11; Diver ‘Will the Hanover yield a fortune in gold?’ (Dec 1996), 59Google Scholar; Diver ‘Hanover—is the treasure still on board?’ (Jan 1997), 47).Google Scholar

¹¹ UN Doc. A/Conf 62/122; (1982) 21 ILM 1261. Hereafter ‘UNCLOS’.

¹² Hereafter ‘ILA’. Founded in 1873, the International Law Association is a private nongovernmental organisation of persons interested in international law. The headquarters are situated in London and has over forty branches worldwide.

¹³ Art 149 provides that; ‘All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the state or country of origin, or the state of cultural origin, or the state of historical and archaeological origin’, while Art 303 provides that ‘1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose. 2. In order to control traffic in such objects, the coastal State may, in applying Art 33, presume that their removal from the sea-bed in the zone referred to in that Art without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that Art. 3. Nothing in this Art affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges. 4. This Art is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.’

¹⁴ For a more detailed discussion on Arts 149 and 303 of UNCLOS see: Forrest, CJS, ‘International Law and the Preservation of Underwater Cultural Heritage’, unpublished PhD Thesis (2000), University of Wolverhampton, 47–58Google Scholar; Strati, A, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea (London: Martinus Nijhoff Publishers, 1995)Google Scholar; Migliorino, L, ‘In Situ protection of the underwater cultural heritage under international treaties and national legislation’, 10(4) International Journal of Marine and Coastal Law (1995), 486CrossRefGoogle Scholar; CF Newton, , ‘Finders Keepers? The Titanic and the 1982 Law of the Sea Convention’ 10 Hastings International and Comparative Law Review (1986), 178Google Scholar; Prott, LV, and O'Keefe, PJ, Law and the Cultural heritage: Volume 1, Discovery and Excavation (Abingdon: Professional Book Ltd, 1984), 98Google Scholar; Oxman, BH, ‘Marine Archaeology and the International Law of the Sea’ 12(3) Columbia VLA Journal of Law and the Arts (1988), 362Google Scholar; O'Keefe, PJ, and Nafziger, J, ‘The Draft Convention on the Protection of the Underwater Cultural Heritage’ 25 Ocean Development and International Law (1994), 393CrossRefGoogle Scholar; Caflish, L, ‘Submarine Antiquities and the International Law of the Sea’, 13 Netherlands Lawbook of International Law (1982), 20Google Scholar; Migliorino, L, ‘Submarine Antiquities and the Law of the Sea’, 4(4) Marine Policy Reports (1982), 4Google Scholar; Blake, J, ‘The protection of the underwater cultural heritage’ 45 International and Comparative Law Quarterly (1996), 819–43CrossRefGoogle Scholar; Arend, AC, ‘Archaeological and Historical Objects: Implications of UNCLOS III’ 22 Virginia Journal of International Law (1982), 799Google Scholar; and Watters, DR, ‘The Law of the Sea and Underwater Cultural Resources’ 48 American Antiquity (1983), 812.CrossRefGoogle Scholar

¹⁵ Strati, above n 14, 330–4 includes a summary of the positive and negative factors of the inclusion of Arts 149 and 303 in UNCLOS.

¹⁶ Arend regards Art 149 as applying the concept of the common heritage of mankind to UCH. Arend, above n 14, 800. Caflish, however, regards Art 149 as having abandoned the principle of the common heritage of mankind by failing to designate an authority to control the recovery of objects of an archaeological and historical nature. See Caflish, above n 14, 31

¹⁷ Dromgoole, S, ‘Law and the Underwater Cultural Heritage: A Legal Framework for the Protection of the Underwater Cultural Heritage of the United Kingdom’ (1993), unpublished PhD Thesis, University of Southampton, 4–1.Google Scholar

¹⁸ Other recommendations included: (1) the drawing up of a European Convention and the setting up of a European Group for Underwater Archaeology; (2) a single authority to be given primary responsibility for dealing with land and underwater heritage finds; (3) provision to be made for appropriate enforcement measures; and (4) a determination of the minimum legal requirements that should be incorporated into national legislation.

¹⁹ For further detail on the European draft Convention, see Blake, above n 14, 820–7.

²⁰ For a detailed discussion of the ILA draft, see O' Keefe and Nafziger, above n 14.

²¹ Hereafter ‘ICOMOS’. Established in 1964 ICOMOS is a non-governmental organisation with special observer status at UNESCO, and whose primary function it is to advise Intergovernmental organisations of the steps necessary to conserve the monuments and sites of the world. The ICOMOS Charter was ratified by the 1 lth ICOMOS General Assembly, held in Sofia, Bulgaria, from 5–9 Oct 1996.

²² Doc. 141 EX/18 Paris, 23 Mar 1993, Resolution 5.5.1 para 20.

²³ CLT-96/CONF.605/6 Paris, 22–24 May 1996.

²⁴ CLT-96/CONF.202/5 Paris, Apr 1998.

²⁵ CLT-98/CONF.202/7, Paris 29 June–2 July 1998 and CLT-99/CONF. 204, Paris, Aug 1999.

²⁶ CLT-96/CONF.202/5 Rev 2, Paris, July 1999.

²⁷ Doc. 31 C/24, Paris, 3 Aug 2001.

²⁸ The Philippine opening statement at the 2000 meeting delivered by HE Hector K Villarroel, 3 July 2000.

²⁹ CLT-96/CONF.605/6, Paris, 22–24 May 1996, 2; CLT-98/CONF.202/7, Paris, 29 June–2 July 1998, 3; CLT-99/CONF.204, Paris, Aug 1999, 1.

³⁰ ILA Sixty-Seventh Conference, Report of the International Committee on Cultural Heritage Law (1996), 4.

³¹ The Convention alters aspects of existing law which determines the rights and duties of persons engaged in activities directed at UCH, which has, to a large extent, been determined according to admiralty law. Admiralty law, essentially a matter of private law, is the subject of international regulation in the form of the 1989 London Salvage Convention LEG/CONF.7/27, 2 May 1989 negotiated under the auspices of the International Maritime Organisation. Hereafter ‘IMO’.

³² Consistency is important when considering the integration of these three spheres of law as each sphere is currently regulated to some extent by conventional international law. Yet few States are in fact signatories to all these conventions. For example, the only States that are signatories to the 1989 Salvage Convention, UNCLOS and the 1970 UNESCO Convention are Australia, China, Egypt, Greece, India, Italy, Jordan, Mexico, Nigeria, Norway, Russia, Saudi Arabia, and Tunisia. An attempt to alter the effects of each convention in this particular forum has led to the possibility of a multitude of different bilateral or multilateral international obligations being created.

³³ Norway, for example, specifically stated for the record that it reserved its position on whether or not UNESCO is the appropriate forum for the negotiation and adoption of a convention on the protection of the underwater cultural heritage. General remarks by Mr Hans Wilhelm Longva, Director General, Department of Legal Affairs, Royal Norwegian Ministry of foreign Affairs, 19 Apr 1999. See also O'Keefe, PJ, Second Meeting of Governmental Experts to Consider the Draft Convention on the Protection of Underwater Cultural Heritage’ 8(2) International Journal of Cultural Property (1999), 569.CrossRefGoogle Scholar

³⁴ Comments of Iraq, Israel, Greece, and Turkey (1999 meeting).

³⁵ Comments of many South American States (1998, 1999, and 2000 meeting).

³⁶ Some States opposed any reference to UNCLOS at all, including States that have not become Parties to UNCLOS, such as Turkey (2000 meeting) and landlocked States, such as Hungary (2000 meeting).

³⁷ Such as Greece and Turkey (1998, 1999, and 2000 meeting).

³⁸ Such as the Netherlands, UK and US (1998, 1999, and 2000 meeting).

³⁹ A number of international cultural heritage conventions promote the provision of technical assistance to States. For example, Art 33 of the 1999 Second Protocol to the 1954 Hague Convention encourages the provision of technical assistance at bilateral or multilateral level. This should encourage developed States to provide technical assistance to developing States, and may be particularly apt in cases where two States may have close links, particularly historical links, such as in the case of former colonies and the previous colonial powers.

⁴⁰ Recently, the city of Potosi, Bolivia, has claimed ownership of a cargo of silver and gold mined from the town and found on the wreck of the Spanish galleon La Capitana, wrecked off the shore of Ecuador in 1564.

⁴¹ The preamble has changed little from the ILA draft, which had been based to a large extent on the 1985 European draft convention.

⁴² Art 31(2) of the 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331.

⁴³ Art 2(1).

⁴⁴ The UNESCO general principle is a great deal broader than that of Art 149. First, the general principle is one of preservation and not preservation OR disposal. Disposal is no longer regarded as an alternative to preservation, but rather subject to it. (CLT-99/WS/8, Paris, Apr 1999, 24) Secondly, no reference is made to the preferential rights of certain States. In light of the problems in interpretation of these terms in Art 149, this omission is welcome. The concerns of States with an historical or cultural interest may be taken into consideration in other Articles of the convention, including the proposed Articles on cooperation, notification, disposition, and on collaboration and information sharing. Thirdly, unlike Art 149, the UNESCO general principle does not apply to the area, but to all maritime zones dealt with in the convention.

⁴⁵ The preamble includes a paragraph that recognises ‘the importance of protecting and preserving such underwater cultural heritage and that responsibility therefore rests with all States’.

⁴⁶ 10 ILM 289.

⁴⁷ 1037 UNTS 151.

⁴⁸ See Prott, LV, Commentary on the UNIDROIT Convention (Leicester: Institute of Art and Law, 1997).Google Scholar

⁴⁹ Preamble.

⁵⁰ UNESCO's concern regarding UCH was expressed in 1997, in which a UNESCO report stated that ‘the recent accessibility of underwater wrecks, due to the widespread use of Self-Contained Underwater Breathing Apparatus (SCUBA), has been followed by severe looting. As early as 1974 a study made for the Turkish authorities stated that there were no classical age wreck examined off the coast of that country which had not been interfered with, in other countries, divers had used explosives to break up wrecks and make bullion readily accessible. In yet other cases, holes had been blasted in the wreck area by using “prop-wash” without regard for proper survey or mapping, thus destroying information, which could have been retrieved by scientific investigation and also destroying many artefacts, such as old ships' timbers, of great importance to the archaeological record. In many cases the desire to control severe damage of this kind has been the reason for a national State extending its jurisdiction beyond the territorial sea', Doc. 29C/22, Paris, 5 Aug 1997.

⁵¹ Art 2(5) states that ‘the preservation in situ of underwater cultural heritage shall be considered as the first option before allowing or engaging in any activities directed at this heritage’. This is reiterated in Rule 1 of the Annex which declares that ‘the protection of underwater cultural heritage through in situ preservation shall be considered as the first option. Accordingly, activities directed at underwater cultural heritage shall be authorised in a manner consistent with the protection of that heritage, and subject to that requirement may be authorised for the purpose of making a significant contribution to protection or knowledge or enhancement of underwater cultural heritage.’ The preamble endorses the principle of preservation in situ, and states that; ‘committed to improving the effectiveness of measures at international, regional and national levels for the preservation in situ or, if necessary for scientific or protective purposes, the careful recovery of underwater cultural heritage’.

⁵² Art 2(2) states that ‘States Parties shall cooperate in the protection of underwater cultural heritage’, while Art 2(4) declares that: ‘States Parties shall, individually or jointly as appropriate, take all appropriate measures in conformity with this Convention and with international law that are necessary to protect underwater cultural heritage, using for this purpose the best practicable means at their disposal and in accordance with their capabilities.'

⁵³ Art 2(10) states, ‘Responsible non-intrusive access to observe or document in situ underwater cultural heritage shall be encouraged to create public awareness, appreciation, and protection of the heritage except where such access is incompatible with its protection and management’.

⁵⁴ ‘Partially’ will refer to objects part of which remain submerged. For example, the wreck of the USS Arizona in Pearl Harbor, Hawaii. Though not having been submerged for over a hundred years, it does illustrate the way in which a vessel may be partially submerged.

⁵⁵ ‘Periodically underwater’ will refer to those objects that lie in the inter-tidal zone, and are only submerged during high tides. For example, the wreck of the VOC vessel Amsterdam at Hastings, UK.

⁵⁶ See CLT-99/WS/8, Paris, Apr 1999, 15. The definition is derived from the ILA definition, which itself was based on the 1985 European draft Convention.

⁵⁷ Earlier, unsuccessful proposals, included non-human resources, such as palaeontological objects as well as natural features of cultural significance to indigenous peoples that have spiritual association with the oceans. CLT-2000/CONF.201/3, Paris, Paris 2000, 3. The Archaeological Institute of America (AIA) also called for an expanded definition to include nonhuman archaeological objects, such as Paleo-Indian sites. Anon., ‘Comments of the Archaeological Institute of America on the UNESCO Draft Convention on the Protection of the Underwater Cultural Heritage’ 7(2) International Journal of Cultural Property (1998), 538–44Google Scholar; Prott, LV and Srong, I (ed), Background Materials on the Protection of the Underwater Cultural Heritage (Paris: UNESCO/Nautical Archaeology Society, 1999), 174.Google Scholar

⁵⁸ A number of states have used time periods as a criteria for protection, including the Netherlands (50 years—The Monument and Historic Buildings Act 1988); Denmark (100 years— The Protection of Nature Act 1992, Act No 9 of 3 Jan 1992); Norway (100 years—The Cultural Heritage Act 1979, Act of 9 June No 50); Sweden (100 years—Act Concerning Ancient Monuments and Finds of 30 June 1988); and Greece (all UCH dating from prior to 1453, and those UCH from 1453 to 1830 on the advise of the Archaeological Council). The use of the 100 years time limit is also apparent in a number of international conventions and recommendations, including the 1970 UNESCO Convention 10 ILM 289 and the 1985 European Convention on Offences Relating to Cultural Property ETS No.119

⁵⁹ This includes Japan, Sweden, Egypt, UK, and US.

⁶⁰ The ILA draft convention, stated that: ‘This Convention applies to underwater cultural heritage which has been lost or abandoned and is submerged underwater for at least 100 years.’

⁶¹ See, eg, the most recent example of uncertainties regarding ownership of State owned vessels in Sea Hunt, Inc v Commonwealth of Virginia 221 F 3d 634 (4th Cir 2000); on appeal from the decision in Sea Hunt, Inc v Unidentified, Shipwrecked and Abandoned Vessel or Vessels, 47 F Supp. 2d 678; (ED Va 1999).

⁶² See, eg, Columbus–America Discovery Group v Atlantic Mutual Insurance, 742 FSupp 1327 (EDVa. 1990); 974 F 2d 450 (4th Cir 1992); Treasure Salvors, Inc v Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F 2d 330, 340 (5th Cir. 1978); Pierce v Beamis (The Lusitania) [1986] 1 QB 384 [1986] Lloyd's Rep 132.

⁶³ CLT-99/WS/8, Paris, Apr 1999, 17. For an overview of the national laws of a number of States, see Dromgoole, S, (ed.), Legal Protection of the Underwater Cultural Heritage: National and International Perspectives (The Hague: Kluwer Law International, 1999)Google Scholar. See also ILA Sixty-Fourth Conference, Report of the International Committee on Cultural Heritage Law, Queensland, Australia (1990), 3–6.Google Scholar

⁶⁴ The original UNESCO draft convention held that; ‘underwater cultural heritage shall be deemed to have been abandoned: (a) whenever technology would make exploration for research or recovery feasible but exploration for research or recovery has not been pursued by the owner of such underwater cultural heritage within 25 years after discovery of the technology; or (b) whenever no technology would reasonably permit exploration for research or recovery and at least 50 years have elapsed since the last assertion of interest by the owner in the underwater cultural heritage.’

⁶⁵ For example, the 1907 International Peace Conference, included provisions for the protection of cultural property in the event of armed conflict was not confined to public property, but included private property. Similarly, the 1954 Convention concerns the protection of cultural heritage ‘irrespective of origin or ownership’. See Reichelt, G, ‘International Protection of Cultural Property’ 1 Uniform Law Review (1985), 7–147Google Scholar; Williams, SA, ‘Recent Developments in Restitution and Return of Cultural Property’, 3 International Journal of Museum Management and Curators (1984), 117–29CrossRefGoogle Scholar; Bator, PM, The International Trade in Art (Chicago: The University of Chicago Press, 1982)Google Scholar; Kifle, J, International Legal Protection of Cultural Heritage (Stockholm: Juristforlaget, 1974)Google Scholar; O'Keefe, PJ, Trade in Antiquities: Reducing Destruction and Theft (Paris: UNESCO Publishing, 1997).Google Scholar

⁶⁶ CLT-96/CONF 202/5 Rev 2, Paris, July 1999. For convenience, the term' State vessels' will refer to ‘any warship, naval auxiliary, other vessel or aircraft owned or operated by a state for noncommercial purposes’.

⁶⁷ Bederman, DJ, ‘Rethinking the Legal Status of Sunken Warships’ 31 Ocean Development and International Law (2000), 97–125.CrossRefGoogle Scholar

⁶⁸ See US practise in Digest of United States Practises in International Law, vol.8, 999–1006; Roach, JA, ‘Sunken Warships and Military Aircraft’ 20(4) Marine Policy (1996), 351–4.CrossRefGoogle Scholar

⁶⁹ Disputes concerning the ownership of sunken State owned vessels include; the Juno and La Galga, Spanish vessels sunk in US territorial waters (see Sea Hunt, Inc v Unidentified Shipwrecked Vessel or Vessels, 47 F Supp. 2d 678 (ED Va. 1999); the La Balle, a French vessel sunk in US territorial waters; a Second World War German U-boat sunk in 1944 off Singapore (Simon v Taylor and Another [1975] 2 Lloyd's Rep 338 (Singapore High Court); the Akerendam, a VOC vessels and U-76 in Norwegian waters. (see Braekmus, S, ‘Salvage of Wrecks and Wreckage Legal Issues Arriving from the Discovery of Coins at Runde in 1972’, Scandinavian Studies in Law (1976), 39–68)Google Scholar; and the Birkenhead, a UK vessel sunk in South African territorial waters (see Kayle, A, Salvage of the Birkenhead (Johannesburg: Southern Book Publishers, 1990)Google Scholar. In the case of the Birkenhead and CSS Alabama it is interesting to note that the flag State claims of ownership were not recognised in the Exchange of Notes. In the case of the CSS Alabama, France did acknowledge the US's claim in other correspondence. (Roach, JA, ‘France Concedes United States has title to CSS Alabama’ 85 American Journal of International Law (1991), 381)CrossRefGoogle Scholar. Similarly, the agreement between the Netherlands and Australia regarding VOC vessels does not actually acknowledge the Dutch Government's ownership of these vessels prior to the conclusion of the agreement. (see Agreement between the Netherlands and Australia Concerning Old Dutch Shipwrecks 1972 repr in Prott and Srong, above n 57, 75–8). For a detailed discussion on the point of abandonment and ownership of State vessels, see Bederman, above n 67, 97–125.

⁷⁰ For example, the majority of wreck designated as being of historical or archaeological importance in UK territorial waters between 1973 and 1995 are warships. Firth, AJ, ‘Managing Archaeology Underwater’, unpublished PhD Thesis, University of Southampton, 1996, 75–9Google Scholar. See also Dromgoole, S and Gaskell, , ‘Draft UNESCO Convention on the Protection of the Underwater Cultural heritage 1998’ 14(2) International Journal of Maritime and Coastal Law (1999), 186–7.Google Scholar

⁷¹ This included Brazil, Korea, Finland, Costa Rica, Argentina, Iran, Dominican Republic (representing the Latin American and Caribbean nations), Cuba, Columbia, Canada, Uruguay, and Thailand. It should be noted that few of these States have extensive maritime histories, and more likely to have wrecked foreign State owned vessels lying in their territorial waters than they will have their own State owned vessel lying anywhere in the world's oceans.

⁷² Art 95, headed ‘Immunity of warships on the high seas’ states that; ‘warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State’. Art 96, headed ‘Immunity of ships used only on governmental non-commercial service’ states that ‘ships owned or operated by a State and used only on governmental non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the Flag State’.

⁷³ They are exempt from the Brussels Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea (1910) (37 Stat. 1658, TS No 516, Art 14) and the International Convention on Salvage (1989), LEG/CONF.7/27, 2 May 1989. See further Strati, above, n 14, 220–2.

⁷⁴ Dromgoole and Gaskell, above n 70, 233; Caflish, above n 14, 25; Riphagen, W, ‘Some Reflections on “Functional sovereignty”’ Netherlands Yearbook of International Law (1975), 128Google Scholar and Migliorino, L, ‘The Recovery of Sunken Warships in International Waters’, in Vukas, B (ed.), Essays on the New Law of the Sea (Zagreb: Sveucilisna naklada Liber, 1985), 251.Google Scholar

⁷⁵ Malta has declared that ‘the immunity afforded by the UNCLOS to warships and other government ships operated for non-commercial purposes applies only as long as they remain in operation: if wrecked, they do not continue to enjoy this immunity’, Comments of Malta Concerning the Draft Convention on the Protection of the Underwater Cultural Heritage distributed at the 2000 meeting, 3 July 2000.

⁷⁶ Art 29 of UNCLOS reads: ‘for the purposes of this Convention, “warships” means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under the regular armed forces discipline.’

⁷⁷ This applies to cases such as privateers, as well as to early vessels, such as those of the Vikings.

⁷⁸ This would apply in particular to vessel of antiquity, and include such famous sites as the Uluburun, Geledonyia, and Antikythera wreck sites.

⁷⁹ This regime applies similarly to an archipelagic State with regard to foreign State vessels found in the archipelagic waters.

⁸⁰ Art 7(3).

⁸¹ See Fletcher-Tomenius, P and Forrest, C, ‘The Protection of the Underwater Cultural Heritage and the Challenge to UNCLOS’ 5(5) Art, Antiquity and Law (2000), 125–58.Google Scholar

⁸² Art 10(7).

⁸³ Art 10(4).

⁸⁴ Though there are exceptions. Human remains have been found to exist on UCH sites, especially wrecks, which were lost over a hundred years ago. For example, human remains were discovered on the site of the Mary Rose, which sank in 1545. See McKee, A, How We Found the Mary Rose (London: Souvenir Press, 1982).Google Scholar

⁸⁵ Reference may be made to the International Council of Museums Code of Ethics (1986) and the Museums Association (UK) Code of Ethics for Museum Professionals (1977, amended 1987) which require ethical and legal consideration to be given to recovery of human remains. Some incidences of divers inappropriate removal of human remains have been recorded. For example, it was reported that divers recovering gold bullion from the wreck of the HMS Edinburgh had picked up skulls and used them in conjunction with underwater torches to frighten fellow divers. See Jessop, K, Goldfinder (London: Simon & Schuster Ltd, 1998)Google Scholar. See also ‘Divers Looting Sunken D-Day War Graves’, Independent, 31 Oct 2000.

⁸⁶ Art 2(9).

⁸⁷ ‘Comments of Canada’ working paper distributed at the Second Meeting of Governmental Experts, UNESCO Headquarters, Paris, 19–24 Apr 1999.

⁸⁸ An alternative was proposed to widen the scope by including not only activities which had UCH as its primary object, but also those which had UCH as ‘its object or as one of its objects’. (WG.1/WP.12, Paris, 4 July 2000). This, it is submitted, would have been a preferable definition as it would incorporate, for example, marine scientific research operations that have investigations of marine life on UCH as its object, though not the UCH itself.

⁸⁹ The preamble to the negotiating draft of the Convention has included a paragraph which read: ‘Conscious also of growing threats to underwater cultural heritage from various other activities namely exploration of natural resources of various maritime zones, constructions, including construction of artificial islands, installations and structures, laying of cables and pipelines’, CLT-96/CONF.202/5 Rev 2 Paris, July 1999, 1. The International Cable Protection Committee has, however, stated that this paragraph in the preamble unduly labels as ‘growing threats’ activities such a laying cables', CLT-2000/CONF.201/3, Paris, Apr 2000, 3. As such, any reference to cable laying as a threat to UCH was eliminated from the Convention.

⁹⁰ Art 5.

⁹¹ The Canadian delegation proposed the inclusion of the following Article: Art X: Activities incidentally affecting underwater cultural heritage. 1. Each State Party shall take reasonable measures to ensure that activities are avoided that adversely affect known underwater cultural heritage in its internal waters, archaepelagic waters, territorial sea, exclusive economic zone or on its continental shelf. 2. Where a State party designates as requiring special protection underwater cultural heritage in internal waters, archaepelagic waters, territorial sea, exclusive economic zone or on its continental shelf, it shall take all necessary measures to ensure that activities do not adversely affect such underwater cultural heritage. 3. Where UNESCO designates as requiring special protection underwater cultural heritage in the Area, each State Party shall take all necessary measures to ensure that vessel flying its flag do not undertake activities that adversely affect such underwater cultural heritage, CLT-96/CONF 202/5 Rev 2, Paris, July 1999.

⁹² O'Keefe and Nafziger, above n 14.

⁹³ Art 8 of UNCLOS.

⁹⁴ CLT-99/WS/8, Paris, Apr 1999, 29.

⁹⁵ The following States proposed the application of the convention to both maritime zones and internal waters; Hungary, Tunisia, Belgium, France, Australia, Argentina, Canada, Mexico, India, and Venezuela (2000 meeting). Similarly, Syria, Austria, Netherlands, Poland, and Spain indicated their preference for the application of the convention to the internal waters of the state.

⁹⁶ WG.l/WP 29, Paris, 6 July 2000.

⁹⁷ For a more detailed discussed of the arguments for/against commercial recovery of historic wreck, see Sweeney, ‘The American Law of Treasure Salvage’ and Varmer, ‘Should there be Such a Thing as Treasure Salvage’, papers presented at the 1998 Maritime Law Symposium: Sunken Treasure: Law, Technology and Ethics. Roger Williams University, Bristol, Rhode Island 13–15 Aug 1998; See also, Cockrell, WA, ‘The Trouble with Treasure: A Preservationist View of the Controversy’ 45 American Antiquity (1980), 333–9CrossRefGoogle Scholar; Brice, G, ‘Salvage and the Underwater Cultural Heritage’ 20 Marine Policy (1996), 337–42CrossRefGoogle Scholar; Miller, ‘The Second Destruction of the Geldermalsen’, in Prott and Srong, above n 57, 94–101; Hutchinson, G, ‘Threats to Underwater Cultural Heritage: The Problem of Unprotected Archaeological and Historical Sites, Wrecks and Objects Found at Sea’, 20(4) Marine Policy (1996), 287–90CrossRefGoogle Scholar; TF King, ‘Losers, Weepers: The Great Historic Shipwreck Debate’, paper presented at the National Trust for Historic Preservation Conference, US, 7 Oct 1992; WA Cockrell, ‘Why Dr Bass Couldn't Convince Mr Grumbel: The Trouble with Treasure Revisited. Again’, R Duncan Mathewson III, ‘Archaeology on Trial’ and P Throckmorton, ‘The Worlds Worst Investment: The Economics of Treasure Hunting with Real-Life Comparisons’, in Babits, LE and H, Van Tilberg (eds.), Maritime Archaeology: A Reader of Substantive and Theoretical Contributions (New York: Platinum Press, 1998), 75–104CrossRefGoogle Scholar; Atkinson, K, ‘Private Enterprise in Maritime Archaeology’ II Bulletin of the Australian Institute of Maritime Archaeology (1987), 19Google Scholar; Abbass, DK, ‘A Marine Archaeologists Looks at Treasure Salvage’ 30(2) Journal of Maritime Law and Commerce (1999), 261–8.Google Scholar

⁹⁸ Above n 10.

⁹⁹ Giesecke, AG, ‘Historic Shipwreck Resources and State Law: A Development Perspective’ unpublished PhD Thesis (1992), Catholic University of America, 3Google Scholar; Also see Roach, JA, ‘Shipwrecks: Reconciling Salvage and Underwater Archaeology’, paper presented at the Proceedings of the Thirty-First Annual Law of the Sea Institute, University of Miami, 30–31 Mar 1998, 8.Google Scholar

¹⁰⁰ Herscher, E, ‘Hearings Held on Historic Shipwreck Legislation’ 11 Journal of Field Archaeology (1984), 79.Google Scholar

¹⁰¹ Norris, MJ, The Law of Salvage (Mount Kisco, NY: Baker Voorhis, 1958), 157Google Scholar. In this sense, salvage refers to the actual award, but it may also be used to describe the type of work undertaken in order to achieve this award.

¹⁰² Blackmail, 11 US (10 Wall 1 19L Ed 870 (1869)); The Sabine 101 US 384 (1880).

¹⁰³ O'Keefe and Nafziger, above n 14, 408; See also Brice, above n 97, 337.

¹⁰⁴ See, eg, Arnold, J Barto III, ‘Some thought on salvage law and historic preservation’ 7 International Journal of Archaeology (1978), 174.Google Scholar

¹⁰⁵ Litigation in the US has proved to be the most illustrative of the way in which courts have interpreted ‘marine peril’. See, eg, in Platoro Ltd, Inc v The Unidentified Remains of a Vessel, 614 F 2d 1051, at 1055–6 (5th Cir 1980); Cobb Coin Co v Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F.Supp 540, at 557 (SD Fla 1982); Treasure Salvors, Inc v Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F 2d 330, at 337 (5th Cir 1978); Thompson v One Anchor and Two Anchor Chains, 221 F 770 (WD Wis 1916); Eads v Brazelton, 22 Ark 499 (1861); Wiggins v 1100 Tons, More or Less, of Italian Marble, 186 F.Supp, 452 (ED Va 1960); Subaqueous Exploration & Archaeology Ltd v The Unidentified Wrecked and Abandoned Vessel, 577 F Supp, 597, at 611 (D Md 1983). See also the Canadian case, Her Majesty The Queen in Right of Ontario v Mar-Dive Corporation et al, 1997 AMC 1000.

¹⁰⁶ Above n 31.

¹⁰⁷ While the courts have not been able to provide a definitive interpretation of the meaning of ‘marine peril’, commentators on these decisions have been equally divided. Compare Brice, above n 97, 339; Owen, DR, ‘The Abandoned Shipwreck Act of 1987. Goodbye to Salvage in the Territorial Sea’ 19 Journal of Maritime Law and Commerce (1988), 499–516Google Scholar and Stevens, TT, ‘The Abandoned Shipwreck Act of 1987: Finding the Proper Ballast for States’ 37(3) Villanova Law Review (1992), 602.Google Scholar

¹⁰⁸ Clément, E, ‘Current developments at UNESCO Concerning the Protection of the Underwater Cultural Heritage’ 20(4) Marine Policy (1996), 309CrossRefGoogle Scholar; Williams, S, ‘Underwater Heritage: A Treasure Trove to Protect’ 87 UNESCO Sources (1998), 7Google Scholar; Elia, RJ, ‘US Protection of Underwater Cultural Heritage Beyond the Territorial Sea: Problems and Prospects’ 29(1) International Journal of Nautical Archaeology (2000), 43–56.CrossRefGoogle Scholar

¹⁰⁹ One commercial treasure salvage company estimates that there are at most twenty or thirty shipwrecks that are economically viable to excavate. See G Stemm, ‘Protection of Our Underwater Cultural Heritage: Thoughts on the Future of Historic Shipwrecks’, paper presented at the Thirty-First Annual Conference of the Law of the Sea Institute, University of Miami, 30–1 Mar 1998, 7: other estimates put the number of economically viable wrecks as approximately 100–200, which would yield a salvage value of more than US$10 million. CLT-96/CONF 605/6, Paris, 22–24 May 1996, 12.

¹¹⁰ For example, artefacts from the historically important wreck, the HMS Invincible was sold on auction in the UK. It was only at the discretion of the salvor that a representative sample of the artefacts was sold by private agreement with the Chatham Historic Dockyard Trust. See Dromgoole, above n 17, 2–17.

¹¹¹ Johnstone, PF, ‘Is it Treasure or a Worthless Piece of Ship?’ 26(4) Historical Archaeology (1992), 118–23CrossRefGoogle Scholar. It has therefore been the policy of many of the archaeological societies to oppose the commercial recovery of historic shipwrecks. See Elia, RJ, ‘The Ethics of Collaboration: Archaeologists and the Wydah Project’ 26(4) Historical Archaeology (1992), 105–17.CrossRefGoogle Scholar

¹¹² Elia, eg, declares that these interest groups have ‘fundamentally opposed core values, goals, methods and interests’ and that ‘commercial salvage operations are fundamentally at odds with preservation’, Elia above n 108, 46 and 49.

¹¹³ Doc. 28C/39 Paris, Oct 1995 para 30; see also O'Keefe, , ‘Gold, Abandonment and Salvage’, 1, Lloyd's Maritime and Commercial Law Quarterly (1994), 11Google Scholar. The archaeological community have pointed to examples of commercial recovery operations such as that of the Dutch-East Indiaman, the Geldermalsen, as illustrating the manner in which valuable archaeological and historical information has been lost whilst the economic value of the wreck is maximised. See Miller, above n 97, 94–101. See also Hutchinson, above n 97, 287–90; Paull, J IV, ‘Salvaging Sunken Shipwrecks: Whose Treasure Is It?: A Look at the Competing Interests for Florida's Underwater Riches’ 9(2) Journal of Land Use and Environmental Law (1994), 359–65)Google Scholar; and Zhao, H, ‘Recent Developments in the Legal Protection of Historic Shipwrecks in China’ 23 Ocean Development and International Law (1992), 319.CrossRefGoogle Scholar

¹¹⁴ Doc. 146 EX/27, Paris, 23 Mar 1995.

¹¹⁵ Varmer, above n 97, 2. Nafziger states that: ‘the profit basis of salvage, … encourages commercial salvors, who must recover their costs, to fragment or disintegrate heritage for sale and thereby disperse recovered artefacts to the detriment of historic enquiry.’ JAR Nafziger, ‘Historic Salvage Law Revisited’, 31, Ocean Development and International Law (2000), 81–96.

¹¹⁶ RMST Inc, the salvors of the RMS Titanic, have stipulated that no artefacts from the collection would be sold individually, and that the company would only sell the collection as a single entity.

¹¹⁷ For example, coal recovered from the RMS Titanic is not regarded as forming part of the cultural collection of artefacts by the salvage company, RMST Inc.

¹¹⁸ The excavation of the Tudor warship the Mary Rose resulted in the recovery of authentic items of archery which had been extremely scarce before the excavation. Included were thousands of arrows, ‘so many that they represent a real storage problem’, McKee, A, How We Found the Mary Rose (London: Souvenir Press, 1982), 121.Google Scholar

¹¹⁹ Roach, above n 99.

¹²⁰ See, eg, the recent documentary series viewed on the BBC in March and April 2000 covering the wrecks of the Queens Anne's Revenge in US territorial waters, the HMS Pandora in Australian territorial waters and the submarine M2 and vessel Swan in UK territorial waters.

¹²¹ A number of books on discoveries and recoveries of shipwrecks have recently been published, including a number of publications on the RMS Titanic, such as Ballard, RD, The Discovery of the Titanic (London: Guild Publishing, 1987)Google Scholar; McCluskie, T, Sharpe, M, and Marriott, L, Titanic and Her Sisters Olympic and Britannic (London: Parkgate Books, 1999)Google Scholar; and Wels, S, Titanic: Legacy of the Worlds Greatest Ocean Liner (Delmar, California: Tehabi Books and Time Life Books, 1997)Google Scholar. Others include Cussler, C, The Sea Hunters (London: Simon & Schuster, 1996)Google Scholar; Robinson, CM, Shark of the Confederacy: The Story of the CSS Alabama (London: Leo Cooper, 1995)Google Scholar; Pickford, N, The Atlas of Shipwrecks and Treasure (London: Dorling Kindersley, 1994)Google Scholar; Jessop, K, Goldfinder (London: Simon & Schuster, 1998)Google Scholar, Beasant, J, Stalin's Silver (London: Bloomsbury, 1995)Google Scholar; and Kinder, G, Ship of Gold in the Deep Blue Sea (New York: The Atlantic Monthly Press, 1998).Google Scholar

¹²² The huge success of the RMS Titanic exhibition in Greenwich, UK, and St Petersburg Florida bears testimony to the possible success of a salvage operation that does not rely on the sale of recovered artefacts.

¹²³ St.Petersberg Times, ‘Hunt for treasure, but it'll cost a pretty boubloon’, 1 Sept 2000.

¹²⁴ Nafziger, JAR, ‘International Penal Aspects of Protecting Cultural Property’, 16, International Lawyer (1985), 835Google Scholar; id, ‘Comments on the Relevance of Law and Culture to Cultural Property Law’ 10 Syracuse Journal of International Law (1983), 325.

¹²⁵ Messenger, PM (ed), The Ethics of Collecting Cultural Property: Whose Culture? Whose Property? (Albuquerque: University of New Mexico Press, 1989), xxiGoogle Scholar. Similarly, in 1970, a prominent Museum Director stated, in relation to the negotiations regarding the 1970 UNESCO Convention, that ‘it is unrealistic to expect to stop all trade in archaeological objects and in fact a legal trade should help to stop the illicit trade’, Meyer, , The Plundered Past (New York: Atheneum, 1974), 186.Google Scholar

¹²⁶ Rule 33 states: ‘The project archives, including any underwater cultural heritage removed and a copy of all supporting documentation shall, as far as possible, be kept together and intact as a collection in a manner that is available for professional and public access as well as for the curation of the archives. This should be done as rapidly as possible and in any case not later than 10 years from the completion of the project, in so far as may be compatible with conservation of the underwater cultural heritage.’ Rule 34 states: ‘The project archives shall be managed according to international professional standards, and subject to the authorisation of the competent authorities.’

¹²⁷ CLT-2000/CONF.201/10, Paris, 7 July 2000, 2

¹²⁸ Policing underwater sites is extremely difficult, more so in international waters. A number of instances have been reported which relate to theft from UCH sites protected by national laws. See, eg, the theft of a cannon from the fifteenth-century historic shipwreck protected under the Protection of Wrecks Act 1973 in the UK. McDonald, K, ‘Breech of the Law’, Diver (Dec 1999), 75Google Scholar. See also ‘Wreck plunderers find way through law on war graves: Battleship Royal Oak’, The Times 4 Apr 1994 and ‘Divers Looting Sunken D-Day War Graves’, Independent, 31 Oct 2000.

¹²⁹ CLT-96/CONF.605/6, Paris, 22–24 May 1996 para 45.

¹³⁰ Oxman, above n 14, 355.

¹³¹ ILA Sixty-Fourth Conference, Report of the International Committee on Cultural Heritage Law, Queensland, Australia (1990), 1–17Google Scholar; CLT-99/CONF.204, Paris, Aug 1999, 5–8.

¹³² For a more detailed discussion on the drafts of the Convention and UNCLOS, see Fletcher-Tomenius and Forrest, above n 81, 125–58.

¹³³ Art 3 declares that: ‘Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under international law, including the United Nations Convention on the Law of the Sea. This Convention shall be interpreted and applied in the context of and in a manner consistent with international law, including the United Nations Convention on the Law of the Sea.’

¹³⁴ O'Keefe and Nafziger, above n 14, 400.

¹³⁵ Art 7 of the Convention provides that: ‘(1) States Parties, in the exercise of their sovereignty, have the exclusive right to regulate and authorise activities directed at underwater cultural heritage in their internal waters, archipelagic waters and territorial sea. (2) Without prejudice to other international agreements and rules of international law regarding the protection of underwater cultural heritage, States Parties shall require that the Rules be applied to activities directed at underwater cultural heritage in their internal waters, archipelagic waters and territorial sea.

¹³⁶ CLT-2000/CONF.201/3, Paris, Apr 2000, 9.

¹³⁷ Para.7 of the preamble declares that: ‘co-operation among States … is essential for the protection of underwater cultural heritage.’

¹³⁸ The rights and duties of State with regard to UCH in the contiguous zone follow on from that contained in Art 303 of UNCLOS. Art 8 of the Convention states: ‘Without prejudice to and in addition to Arts 9 and 10, and in accordance with Art 303 para 2 of the United Nations Convention on the Law of the Sea, States Parties may regulate and authorise activities directed at underwater cultural heritage within their contiguous zone. In so doing, they shall require that the Rules be applied.’

¹³⁹ Art 9.

¹⁴⁰ Art 10.

¹⁴¹ Art 9(l)(a).

¹⁴² Art 9(1)(b).

¹⁴³ Art 9(3) & (4).

¹⁴⁴ Art 9(5).

¹⁴⁵ Art 10(3).

¹⁴⁶ Art 10(5).

¹⁴⁷ Art 19(4).

¹⁴⁸ Art 10(2).

¹⁴⁹ Art 12 and 13 provide for the protection of UCH in the Area.

¹⁵⁰ ILA Sixty-Fourth Conference, Report of the International Committee on Cultural Heritage Law (Queensland, Australia, 1990), 13.Google Scholar

¹⁵¹ Above n 21.

¹⁵² Art 33.

¹⁵³ Art 14.

¹⁵⁴ Rule 1.

¹⁵⁵ The ILA draft convention contained Art 9, which reads, ‘[a] State Party to this Convention may provide for the issuance of permits, allowing entry into its territory of underwater cultural heritage excavated or retrieved after the effective date of this Convention so long as the State has determined that the excavation and retrieval activities have complied or will comply with the Charter.’ This was amended in the UNESCO negotiating draft to read: ‘A State Party may [issue][ provide for the issuance of] permits, subject to the compliance with [the Rules of the Annex], allowing entry into its territory of underwater cultural heritage’, CLT-96/CONF.202/5 Rev 2 1999, 2

¹⁵⁶ For further reading on the use of permits, see McLaughlin, , ‘Roots, Relics and Recovery: What Went Wrong with the Abandoned Shipwreck Act of 1987’ 19 Columbia-VLA Journal of Law and the Arts (1995), 149–98Google Scholar and Croome, A, ‘The United States Abandoned Shipwreck Act Goes into Action: A Report’ 21(1) International Journal of Nautical Archaeology (1992), 39–53.CrossRefGoogle Scholar

¹⁵⁷ See generally Prott, and O'Keefe, above n 14; Burnham, B, The Protection of Cultural Property: A Handbook of National Legislation (Paris: The International Council of Museums, 1974)Google Scholar; and Anon, The Protection of Movable Cultural Properties II Compendium of Legislative texts, Vol I and II (Paris: UNESCO Publishing, 1984).Google Scholar

¹⁵⁸ For example, in the 1970 UNESCO Convention.

¹⁵⁹ The creation of a permit system must be considered in light of the system of export and import control established under conventional international law. In particular, the 1970 UNESCO Convention establishes a system of controls, which may become operative if the UCH is to be moved from the State to which it was first brought to another State, with the result that two permits may be needed.

¹⁶⁰ Art 8(2) of the secretariat draft originally contained the following provision, ‘Should an excavation or retrieval of underwater cultural heritage occur without prior authorisation of a State Party, the State Party may issue permits allowing entry of such underwater cultural heritage into its territory, provided that excavation and retrieval activities have been conducted in accordance with the operative provisions of the Charter.’ This Article was criticised by a number of States as undermining the permit system and this Article was subsequently deleted.

¹⁶¹ Art 18(1).

¹⁶² CLT-99/WS/8, Paris, Apr 1999, 48. Art 9(2) of the negotiating draft stated: ‘a State shall seize underwater cultural heritage known to have been excavated or retrieved from the exclusive economic zone or the continental shelf of another State Party exercising control of those areas in accordance with Art 5 para 2 to 5 above only after the request or with the consent of that State.’ The duty to take measures to seize UCH recovered in a manner inconsistent with the Rules in the Annex apply to UCH recovered in all maritime zones beyond the territorial jurisdiction of the coastal State. Art 9(2) therefore provides that, in areas where the coastal State does exercise jurisdiction, the right to seize UCH recovered from these maritime zones will only arise at the request of the coastal State. It is, however, unnecessary to include a paragraph specifically dealing with these zones, and that all zones beyond the territorial jurisdiction of the coastal State will fall within the scope of Art 9(1). A number of States supported the elimination of an Article dealing with any specific zones, and as such, Art 9(2) was deleted. CLT-2000/CONF.201/8, Paris, 5 July 2000. This provision is similar to that provided for under the UNIDROIT Convention and the 1954 Hague Protocol. Art 2. See CLT-99/WS/8, Paris, Apr 1999, 48.

¹⁶³ In this case, the choice-of-law rules will be determined by the national courts. Questions of ownership of a vessel will ordinarily be determined by the law of the Flag State, while questions of ownership of the cargo will be determined by the law of the nationality of the owner, if known, or the flag of the vessel on the assumption that an owner of the cargo would be a national of the Flag State. See further CLT-99/WS/8, Paris, Apr 1999, 48. See further CLT 99/CONF 204/CLD10 for an alternatively worded Article proposed by the Chairperson of the 1999 meeting.

¹⁶⁴ Art 18(2).

¹⁶⁵ Art 11(1) of the negotiating draft had declared that: ‘each State Party shall record, protect and take all reasonable measures to conserve underwater cultural heritage seized under this Convention’, CLT-2000/CONF 201/8, Paris, 5 July 2000.

¹⁶⁶ Art 18(3).

¹⁶⁷ Nafziger, above n 124, 835–52; Bassiouni, C, ‘Reflections on Criminal Jurisdiction in International Protection of Cultural Property’ 10 Syracuse Journal of International Law and Commerce (1983), 281–322.Google Scholar

¹⁶⁸ For example, during the 1970 UNESCO Convention negotiations, proposals for the imposition of tougher criminal sanctions on those importing illicit cultural heritage were deleted in favour of a commitment from importing States to co-operate in the recovery and return of cultural heritage. (Art 9). See further Nafziger, above n.124, 838.

¹⁶⁹ CLT-2000/CONF 201/8, Paris, 5 July 2000. The Article in the original draft read, ‘Each State Party shall impose criminal, administrative [or civil] sanctions for importation of underwater cultural heritage which is subject to seizure under Art 9’, CLT-96/CONF 202/5 Rev.2, Paris, July 1999.

¹⁷⁰ Art 17(2).

¹⁷¹ Art 10(2) of the secretariat draft stated that: ‘States Parties agree to co-operate with each other in the enforcement of these sanctions. Such co-operation shall include but not be limited to, production and transmission of documents, making witnesses available, service of process and extradition’, CLT-96/CONF 202/5 Paris, Apr 1998.

¹⁷² See, eg, Arts 12–17 of the 1972 UNESCO Recommendation Concerning the Protection at National Level of the Cultural and Natural Heritage; Arts 5, 13, and 14 of the 1970 UNESCO Convention; Arts 7 and 15 of the 1954 Hague Convention; and Art 5 of the World Heritage Convention.

¹⁷³ Art 5(b) of 1970 UNESCO Convention, Art 29 of the 1972 UNESCO Recommendation and Art 4(2) 1969 European Convention.

¹⁷⁴ This problem is recognised in the 1972 World Heritage Convention, which states that: ‘protection of this heritage at the national level often remains incomplete because of the scale of the resources which it requires and of the insufficient economic, scientific and technological resources of the country where the property to be protected is situated.’

¹⁷⁵ Education and public awareness are important features of many international conventions aimed at the protection of the world cultural and natural heritage. See, eg, Art 10 of the 1970 UNESCO Convention, Art 7 of the 1954 Hague Convention and Art 12 of the 1956 UNESCO Recommendations. See also Gifford, J, Redknapp, M, and Fleming, N, ‘UNESCO International Survey of Underwater Cultural Heritage’ 16 World Archaeology (1985), 374.CrossRefGoogle Scholar

¹⁷⁶ Art 15 of the negotiating draft provided that: ‘each State Party shall endeavour by educational means to create and develop in the public mind a realisation of the value of the underwater cultural heritage as well as the threat to this heritage posed by violations of this Convention and non-compliance with the Rules of the Annex’, CLT-96/CONF 202/5 Rev 2, Paris, July 1999, 11.

¹⁷⁷ A very successful educational and training programme is run by the Nautical Archaeological Society, based in the UK, and run in a number of States, including the US, South Africa, and Australia. See further <http://www.nasportsmouth.org.uk>.

¹⁷⁸ Similar provisions are contained in Art 24 of the 1972 World Heritage Convention, Art 25 of the 1954 Hague Convention, and Art 10(b) of the 1970 UNESCO Convention.

¹⁷⁹ See Dromgoole, above n 17, 5–12 and 5–45.

¹⁸⁰ The Group of 77 stated that: ‘the convention can only be effective if a sufficient level of human and technological resources for appropriate protection of underwater cultural heritage can be assured; therefore the Convention should provide a system of capacity building, transfer of technology and training related to protection’, CLT-2000/CONF 201/3add, Paris, June 2000, 10.

¹⁸¹ For example, Dr Robert Ballard has made extensive use of US naval vessels and technology, particularly the nuclear submarine NR-1 to search for UCH. See ‘Titanic man finds world's oldest ships 1,000ft down’ The Sunday Times, 27 June 1999.

¹⁸² See, eg, Arts 13–20 1956, UNESCO Recommendation.

¹⁸³ The preamble declares that: ‘Believing that cooperation among States, international organizations, scientific institutions, professional organizations, archaeologists, divers, other interested parties and the public at large is essential for the protection of underwater cultural heritage.’

¹⁸⁴ Art 2(2) declares that: ‘States Parties shall cooperate in the protection of underwater cultural heritage.’

¹⁸⁵ Art 19(1).

¹⁸⁶ Art 19(2).

¹⁸⁷ Art 19(3).

¹⁸⁸ Examples of bilateral agreements include the agreement entered into between the US and Mexico (Treaty of Cooperation Providing for the Recovery and Return of Stolen Archaeological, Historical and Cultural Properties, 17 July 1970, United States–Mexico, 22 UST 494, TIAS no 7088); between the US and Peru (Agreement for the Recovery and Return of Stolen Archaeological, Historical and Cultural Properties, 15 Sept 1981, United States–Peru, TIAS No 10136) and between US and Canada (Anon, ‘Agreement Between the Government of the United States of America and the Government of Canada Concerning the Imposition of Import Restrictions on Certain Categories of Archaeological and Ethnological Material’ 8 International Journal of Cultural Property (1999), 245–57)Google Scholar. See further Nafziger, , ‘Finding the Titanic: Beginning an International Salvage of Derelict Law of the Sea’ 12 Columbia-VLA Journal of Law and the Arts (1988), 339–51Google Scholar. The use of bilateral or regional agreements may be of particular importance in the preservation of an identified wreck of archaeological or historical significance. For example, the US have attempted to conclude a multi-lateral agreement to protect the wreck of the RMS Titanic. Although no regional agreement exists in this respect, an agreement that may be analogous to this type may be the agreement concluded by Scandinavian Countries to protect the site of the wreck of the Estonia. See Agreement Regarding the M/S Estonia repr in 20(4) Marine Policy (1996), 355–6Google Scholar. (For a discussion on wrecks as a memorial, see Allen, BL, Coastal State Control Over Historic Wrecks Situated on the Continental Shelf as Defined in Article 76 of the UN Law of the Sea Convention 1982, (Cape Town: Special Publication of the Institute of Maritime Law, University of Cape Town Publication no 14, 1991), 40–1)Google Scholar. An important bilateral agreement which concerns UCH, its that entered into between the Governments of Netherlands and Australia concerning VOC wrecks lost off the coast of Western Australia. See ‘Agreement between the Netherlands and Australia Concerning Old Dutch Shipwrecks 1972’, as reproduced in Prott and Srong, above n 57, 75.

¹⁸⁹ The slow pace of negotiations, and the call for a further meeting of experts prompted the Latin American group, led by the delegation from the Dominican Republic, to state that, if the process was not speeded up, they would consider establishing a regional agreement on the basis of the Declaration of Santo Domingo, which purports to implement many of the provision of the UNESCO draft. The Declaration of Santo Domingo (Appendix X) was endorsed by the X Forum of Minister of Culture and Offices Responsible for Cultural policies of Latin American and the Caribbean, 4–5 December 1998.

¹⁹⁰ Preamble.

¹⁹¹ Art 2(2).

¹⁹² Art 9(5).

¹⁹³ Art 11(4) and 12(6).

¹⁹⁴ See Nordquist, MH, United Nations Convention on the Law of the Sea 1982: A Commentary, vol 5 (Dordrecht: Martinus Nijhoff Publishers, 1989), lxi; Forrest above n 14, 48–56.Google Scholar