Ensuring the preservation of submerged treasures for the next generation: the protection of underwater cultural heritage in international law (original) (raw)

Abstract

It is widely accepted that for the recovery of a wreck to be commercially viable, it must be worth more than $10 million and there are only around 100-200 such wrecks in the deep seabed.

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References (31)

  1. Lauren W. Blatt, "SOS (Save Our Ship)! Can the UNESCO 1999 Draft Convention on the Treatment of Underwater Cultural Heritage Do Any Better?" Emory International Law Review 14 (2000): 1581.
  2. Craig Forrest, "Historic Wreck Salvage: An International Perspective," Tulane Maritime Law Journal, 33 (2009): 368.
  3. Roberta Garabello, "The Negotiating History of the Convention on the Protection of the Underwater Cultural Heritage" in Roberta Garabello and Tullio Scovazzi, eds., The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention (Leiden, 2003), 89 -192;
  4. Patrick J. O'Keefe, "Protecting the Underwater Cultural Heritage: The International Law Association Draft Convention," Marine Policy 20 (1996): 297; Espósito and Fraile, in Bringing New Law to Ocean Waters, cited above.
  5. See Council of Europe Recommendation 848 (1978) on the Underwater Cultural Heritage (Doc. 4200, Strasbourg) as cited in Sarah Dromgoole, "2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage," 18 International Journal of Marine and Coastal Law 18 (2003): 60. This was the first attempt to establish regional principles on the protection of underwater cultural heritage and to address the jurisdictional issue of coastal state jurisdiction over underwater cultural heritage. See discussion of Anastasia Strati, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea (The Hague, 1995), 85-87.
  6. Draft European Convention on the Protection of the Underwater Cultural Heritage, Doc. CAHAQ (85) 5.
  7. At this last meeting, the Chairman, Mr. Carsten Lund of Denmark, produced a Single Negotiating Text which was the focus of fierce debates. See Roberta Garabello, "The Negotiating History of the Convention on the Protection of the Underwater Cultural Heritage" in Roberta Garabello and Tullio Scovazzi, eds., The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention (Leiden, 2003), 91.
  8. Anastasia Strati, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea (The Hague, Netherlands: Kluwer Law International, 1995) 99, 117 -121;
  9. Deirdre O'Shea, "The Evolution of Maritime Historic Preservation Jurisprudence," Widener Law Symposium Journal 8 (2002): 417. 72 Article 1 (b)(c), UCH Convention. 73 Article 1 (a), UCH Convention. Italics supplied.
  10. See for example, Craig Forrest, "Defining Underwater Cultural Heritage," The Journal of Nautical Archeology 3 (2002): 3.
  11. See for example, Craig Forrest, "A New International Regime for the Protection of Underwater Cultural Heritage," International Comparative Law Quarterly 51 (2002): 523-524; but see Sarah Dromgoole, "2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage," International Journal of Marine and Coastal Law 18 (2003): 64. See especially, David J. Bederman, "The UNESCO Draft Convention on Underwater Cultural Heritage: A Critique and Counter-Proposal," Journal of Maritime Law and Commerce 30 (1998): 331. See also David J. Bederman, "The UNESCO Convention on Underwater Cultural Heritage: Panacea or Peril for Resource Managers?" in Jennifer R. Richman and Marion P. Forsyth, Legal Perspectives on Cultural Resources (United States: Altamira Press, 2004), 143-145. Forrest thinks that the interpretation of this provision is not clear; Dromgoole believes that the definition in the UCH Convention embodies a "significance criterion" while Bederman strongly argues that the "outlandish" definition is so expansive to be interpreted as including "a splintered surfboard or even a soda can." For an in-depth discussion on the negotiating history of this provision, see Roberta Garabello, "The Negotiating History of the Convention on the Protection of the Underwater Cultural Heritage" in Roberta Garabello and Tullio Scovazzi, eds., The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention (Leiden, 2003), 100 -109.
  12. Hance D. Smith and Alastair D. Couper. "The Management of the Underwater Cultural Heritage," 4 Journal of Cultural Heritage 4 (2003): 25; Alastair Couper, "The Principal Issues in Underwater Cultural Heritage," Marine Policy, 20 (1996): 283.
  13. Paul Fletcher-Tomenius and Craig Forrest, "Historic Wreck in International Waters: Conflict or Consensus?" Marine Policy, 24 (2000): 1.
  14. Gillian Hutchinson. "Threats to Underwater Cultural Heritage: The Problems of Unprotected Archaeological and Historic Sites, Wrecks and Objects Found at Sea," Marine Policy, 20 (1996): 287.
  15. Neil Brodie, "Export Deregulation and the Illicit Trade in Archeological Material" in Jennifer R. Richman & Marion P. Forsyth, Legal Perspectives on Cultural Resources (United States, 2004), 85 -99.
  16. See for example, Komurcu, Cultural Heritage Endangered by Large Dams and its Protection under International Law," Wisconsin International Law Journal, 20 (2002): 233; Christopher C. Bryant. "The Archaeological Duty of Care: The Legal, Professional, and Cultural Struggle Over Salvaging Historic Shipwrecks," Albany Law Review, 65 (2001-2002): 97.
  17. Paul Fletcher-Tomenius and Craig Forrest, "Historic Wreck in International Waters: Conflict or Consensus?" Marine Policy, 24 (2000): 3.
  18. The Convention "shall not apply to the remains and contents of any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, at the time of its sinking, only for government non-commercial purposes."CLT-96/CONF 202/5 Rev 2, Paris, July 1999.
  19. David J. Bederman, "Rethinking the Legal Status of Sunken Warships," Ocean Development and International Law 31 (2000): 97; Jeffrey W. Yeates. "Clearing Up the Confusion: A Strict Standard of Abandonment for Sunken Public Vessels," University of San Francisco Maritime Law Journal, 12 (1999-2000): 359.
  20. J. Ashley Roach, "Sunken Warships and Military Aircraft," Marine Policy, 20 (1996): 351.
  21. See Articles 95 and 96, LOSC.
  22. Article 8, High Seas Convention and Article 29, LOSC.
  23. Jerry E. Walker, "A Contemporary Standard for Determining Title to Sunken Warships: A Tale of Two Vessels and Two Nations" University of San Francisco Maritime Law Journal, 12 (1999- 2000): 355; Craig Forrest, "A New International Regime for the Protection of Underwater Cultural Heritage," International Comparative Law Quarterly 51 (2002): 527.
  24. See Craig Forrest, "A New International Regime for the Protection of Underwater Cultural Heritage" (2002) 51 I. C. L. Q. 512, at 528. See also David J. Bederman, "Maritime Preservation Law: Old Challenges, New Trends," Widener Law Symposium Journal 8 (2002): 163.
  25. See especially Clarissa A. Kang. "Charting Through Protection for Historic Shipwrecks Found in U.S. Territorial Waters: Sea Hunt, Inc. v. Unidentified, Shipwrecked Vessel or Vessels," Virginia Environmental Law Journal 19 (2000): 87. See also Jason R. Harris. "Protecting Sunken Warships as Objects Entitled to Sovereign Immunity," University of Miami Inter-American Law Review, 33 (2002): 101.
  26. See for example, issues of private ownership claims in Stephen Paul Coolbaugh. Comment. "Raiders of the Lost … Sub? The Potential for Private Claims of Ownership to Military 5.2.4. Other issues There are other equally important, critical issues, which, due to limitations of space, will not be covered extensively in this paper. Some of these issues are: (1) the consistency of the UCH Convention with the LOSC; 154 (2) the conflict of values between the principal users of UCH (the archeological community, the treasure salvage community and the sport diving community); 155 (3) potential conflict with national legislation; 156 (4) the application of salvage law, the law of Shipwrecks in International Waters: The Case of Japanese Submarine I-52," (2001) 49 Buffalo Law Review 931.
  27. David J. Bederman, "The UNESCO Convention on Underwater Cultural Heritage: Panacea or Peril for Resource Managers?" in Jennifer R. Richman & Marion P. Forsyth. Legal Perspectives on Cultural Resources (United States: Altamira Press, 2004), 145-146, opines that despite the harmonizing provision of Article 3, the UCH Convention is still in many respects inconsistent with the LOSC. He thinks this is true for Articles 9 through 12 of the UCH Convention on coastal state jurisdiction and activities in the Area, as well as provisions which contradict the preservation of the law of salvage and maritime law in Article 303 of the LOSC. He adds that Article 10 (2) of the UCH Convention is an unambiguous amendment to the LOSC which could enter in force, as provided for in the UCH Convention, with as little as twenty ratifications.
  28. Paul Fletcher-Tomenius and Craig Forrest, "Historic Wreck in International Waters: Conflict or Consensus?," Marine Policy, 24 (2000): 1; Jeffrey T. Scrimo. "Raising the Dead: Improving the Recovery and Management of Historic Shipwrecks," Ocean and Coastal Law Journal, 5 (2000): 271;
  29. John Alan Cohan. "An Examination of Archeological Ethics and the Repatriation Movement Respecting Cultural Property (Part One)," Environs Environmental Law and Policy Journal, 27 (2004): 349.
  30. James A. R. Nafziger, "The Underlying Constitutionalism of the Law Governing Archeological and Other Cultural Heritage," Willamette Law Review, 30 (1994): 581. For example, the US federal Abandoned Shipwreck Act (ASA) claims federal ownership of abandoned shipwrecks embedded in a state's submerged land and simultaneously transfers title to the wrecks to the states for administration, management and regulation. See Sean D. Murphy, "US Concerns Regarding UNESCO Convention on Underwater Heritage," American Journal of International Law, 96 (2002): 468. For a discussion of the ASA, see Roberto Iraola, "The Abandoned Shipwreck Act of 1987," Whittier Law Review, 25 (2004): 787. But see Sherri J. Braunstein, "Shipwrecks Lost and Found at Sea: The Abandoned Shipwreck Act is Still Causing Confusion Rather than Preserving Historic Shipwrecks," Widener Law Symposium Journal, 8 (2002): 301. Another example is Australia's domestic legislation on UCH, the Historic Shipwrecks Act, which declares all remains of a ship which are "situated in Australian waters or above the continental shelf of Australia" and at least 75 years old to be "historic shipwrecks" and declares a protected zone around a historic shipwreck or historic relic. (ss 4a, 7). See Constance Johnson, "For Keeping or for Keeps? An Australian Perspective on Challenges Facing the Development of a Regime for the Protection of Underwater Cultural Heritage," Melbourne Journal of International Law, 1 (2000): 19. See also Liza J. Bowman, "Oceans Apart Over Sunken Ships: Is the Underwater Cultural Heritage Convention Really Wrecking Admiralty Law?" Osgoode Hall Law Journal, 42 (2004): 1. 157 See excellent discussion of Guido Carducci, "The Crucial Compromise on Salvage Law and the Law of Finds" in Roberta Garabello and Tullio Scovazzi, eds., The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention (Leiden, 2003), 193 -206. See also Craig Forrest, "Has the Application of Salvage Law to Underwater Cultural Heritage Become a Thing of the Past?" Journal of Marine Law and Commerce, 34 (2003): 309; Anne M. Cotrell, "The Law of the Sea and International Marine Archeology: Abandoning Admiralty Law to Protect Historic Shipwrecks," Fordham International Law Journal, 17 (1994): 667. See also John D. Kimball. "Jurisdiction: A United States Admiralty Court Can Award and Enforce Salvage Rights in a Shipwreck in International Waters. R.M.S. Titanic, Inc. v. Haver, 171 F.3D 943, 1999 AMC 1330 (4TH CIR. 1999)," Journal of Marine Law and Commerce, 30 (1999): 691. See also Mark A. Wilder, "Application of Salvage Law and the Law of Finds to Sunken Shipwreck Discoveries," Defense Counsel Journal, 67 (2000): 92. See interesting discussion in Justin S. Stern, "Smart Salvage: Extending Traditional Maritime Law to Include Intellectual Property Rights in Historic Shipwrecks" Fordham Law Review, 68 (2000): 2489. See also Terence P. McQuown, "An Archeological Argument for the Inapplicability of Admiralty Law in the Disposition of Historic Shipwrecks," William Mitchell Law Review, 26 (2000): 289.
  31. Jerry E. Walker, "A Contemporary Standard for Determining Title to Sunken Warships: A Tale of Two Vessels and Two Nations," University of San Francisco Maritime Law Journal, 12 (1999- 2000): 311. For discussion on both property rights and sovereignty issues involved in cultural property disputes, see Evangelos I. Gegas, "International Arbitration and the Resolution of Cultural Property Disputes: Navigating the Stormy Waters Surrounding Cultural Property," Ohio State Journal of Dispute Resolution, 13 (1997): 129. Please also refer to discussion on the legal status of sunken warships above. See also issues on litigation of disputes in Peter E. Hess "Deep Shipwreck in High Courts," 17 Delaware Lawyer, 17 (1999): 16; and Nafziger, James A.R. " The Evolving Role of Admiralty Courts in Litigation Related to Historic Wreck," Harvard International Law Journal, 44 (2003): 251.