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Published online by Cambridge University Press: 16 April 2020
Deep-water technology and commercial interests have put the protection of underwater cultural heritage under considerable pressure in recent decades. Yet the 2001 UNESCO Convention has the potential to fend off the threat—if fully implemented. This article sets out the legislative duties States Parties have under one of the Convention's core provisions: Article 16. It requires States Parties to take a triad of legislative measures: they must enact prohibitions, impose criminal sanctions and establish corresponding jurisdiction over their nationals and vessels. In addition, the comprehensive protection of underwater cultural heritage also necessitates measures covering acts of corporate treasure hunters, even though this is not required by the Convention itself.
They would like to sincerely thank Dr Maria Orchard for her instrumental research assistance on the topic and editorial work on the article. The usual disclaimer applies.
1 Defined in the Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) 2562 UNTS 3 (hereinafter UNESCO Convention or Convention), art 1(1)(a) as ‘all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years’.
2 J Daley, ‘“Holy Grail” of Spanish Treasure Galleons Found Off Colombia’ Smithsonian (25 May 2018) <www.smithsonianmag.com/smart-news/holy-grail-spanish-treasure-galleons-found-colombia-180969171/>.
3 In more detail, see Part II.
4 UNESCO Convention preamble para 2.
5 On the various positions in the debate, see J Kitt, ‘Sunken Treasure Trove off the Coast of Cartagena Inches Closer to the Surface’ The Bogotá Post (4 August 2018) <https://thebogotapost.com/sunken-treasure-trove-off-the-coast-of-cartagena-inches-closer-to-the-surface/31373/>.
6 Dromgoole, S, ‘Preface’ 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) xiiiGoogle Scholar.
7 See on all three aspects, Part IV, notably Section A.
8 In order to fully implement art 16, States Parties are also required to take non-legislative steps. Of particular importance are prevention and dissemination measures, such as the distribution of information material to persons engaging in underwater explorations, see eg PJ O'Keefe, Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage (Institute of Art and Law 2002) 109–10. Despite the practical significance of such steps, the present article focuses solely on the heart of art 16, that is, its legislative measures.
9 Notwithstanding the fact that France plays a particularly active role in the preservation of underwater cultural heritage, it has not fully implemented the Convention. So far, the criminal provision in the Code du patrimoine only covers underwater cultural heritage in waters subject to French sovereignty (internal and territorial waters) or where France exercises sovereign rights (contiguous zone); see Code du patrimoine, version consolidée au 1 janvier 2020, arts L532-1 to L532-14 read together with arts L544-5 to L544-11.
10 Switzerland ratified the Convention on 25 October 2019, see UNESCO <www.unesco.org/eri/la/convention.asp?KO=13520&language=E&order=alpha>. On the implementing legislation passed by the Swiss Federal Assembly before ratification, which is fraught by major deficiencies, see Petrig, A and Stemmler, M, ‘UNESCO-Übereinkommen über den Schutz des Unterwasserkulturerbes: Unvollständige Umsetzung durch die Schweiz’ (2020) 139(I) ZSR 47–94Google Scholar; and below text relating to (n 115).
11 On the STAB, which assists the Meeting of States Parties to the UNESCO Convention with the implementation of the Convention's Annex, see UNESCO Convention art 23(4) and (5).
12 UNESCO, ‘Convention on the Protection of the Underwater Cultural Heritage, Ninth Meeting of the Scientific and Technical Advisory Body, 24 April 2018, Resolutions and Recommendations’ (24 April 2018) UNESCO Doc UCH/18/9.STAB/10, RESOLUTION 8 / STAB 9.
13 See eg Rau, M, ‘The UNESCO Convention on Underwater Cultural Heritage and the International Law of the Sea’ (2002) 6 Max PlanckYrbkUNL 422–4Google Scholar; Dromgoole, S, Underwater Cultural Heritage and International Law (Cambridge University Press 2013) 283–5CrossRefGoogle Scholar, 292, 296, 305; O'Keefe, Shipwrecked Heritage (n 8) 109–10; O'Keefe, PJ, ‘“Commercial Exploitation”: Its Prohibition in the UNESCO Convention on Protection of the Underwater Cultural Heritage 2001 and Other Instruments’ (2013) 18 Art Antiquity and Law 141Google Scholar; Carducci, G, ‘The Expanding Protection of Underwater Cultural Heritage: The New UNESCO Convention Versus Existing International Law’ in Camarda, G and Scovazzi, T (eds), The Protection of the Underwater Cultural Heritage: Legal Aspects (Giuffrè Editore 2002) 176Google Scholar.
14 See eg L Bautista, ‘Ensuring the Preservation of Submerged Treasures for the Next Generation: The Protection of Underwater Cultural Heritage in International Law’ (Law of the Sea Institute, UC Berkeley – Korea Institute of Ocean Science and Technology Conference, Seoul, May 2012) <www.law.berkeley.edu/files/Bautista-final.pdf>; LB Bautista, ‘Gaps, Issues, and Prospects: International Law and the Protection of Underwater Cultural Heritage’ (2005) 14 DalhousieJLegalStud 57; C Forrest, ‘A New International Regime for the Protection of Underwater Cultural Heritage’ (2002) 51 ICLQ 511; CR Bryant, ‘The Archaeological Duty of Care: The Legal, Professional, and Cultural Struggle over Salvaging Historic Shipwrecks’ (2001) 65 AlbLRev 97. Especially in transnational criminal law doctrine, the focus seems to be rather on the trafficking of cultural property and thus on UNESCO Convention arts 14 and 17; see eg A Visconti, ‘Cultural Property Trafficking’ in N Boister and RJ Currie (eds), Routledge Handbook of Transnational Criminal Law (Routledge 2015) 275; N Boister, An Introduction to Transnational Criminal Law (2nd edn, Oxford University Press 2018) 224.
15 Dromgoole, Underwater Cultural Heritage and International Law (n 13) 305.
16 P Fletcher-Tomenius and C Forrest, ‘The Protection of the Underwater Cultural Heritage and the Challenge of UNCLOS’ (2000) 5 Art Antiquity and Law 151; see also Cultural Heritage Law Committee, ‘Buenos Aires Draft Convention on the Protection of the Underwater Cultural Heritage – Final Report’ in International Law Association Report of the Sixty-Sixth Conference (Buenos Aires 1994) (International Law Association, London 1994) 440.
17 From UNESCO Convention art 1(1)(a)(i), (ii) and (iii) accrues that underwater cultural heritage is not limited to historic shipwrecks and their cargo; but as per Dromgoole, Underwater Cultural Heritage and International Law (n 13) 1, ‘shipwrecks are the predominant form of [underwater cultural heritage]’, on the basis of which we explain the challenges for the protection of underwater cultural heritage.
18 O'Keefe, Shipwrecked Heritage (n 8) 4; see also G Hutchinson, ‘Threats to Underwater Cultural Heritage: The Problems of Unprotected Archaeological and Historic Sites, Wrecks and Objects Found at Sea’ (1996) 20 Marine Policy 287–8.
19 The fleet of vehicles at the disposal of the Woods Hole Oceanographic Institution offers insights into today's technological capabilities: Woods Hole Oceanographic Institution, ‘Underwater Vehicles’ <www.whoi.edu/main/underwater-vehicles>.
20 See OL Martínez Ante, ‘Así se va a Rescatar el “Tesoro” del Galeón San José’ El Tiempo (25 April 2018) <www.eltiempo.com/cultura/arte-y-teatro/como-se-ve-el-galeon-san-jose-y-como-sera-rescatado-209298>.
21 A share of 50 per cent of the parts of the trove not considered to be national heritage was reported as being the reward for involved corporations; see Martínez Ante (n 20).
22 UNESCO, ‘Convention on the Protection of the Underwater Cultural Heritage, Ninth Meeting of the Scientific and Technical Advisory Body’ (n 12) RESOLUTION 4 / STAB 9.
23 On file with the authors.
24 UNESCO Convention art 2(7) and Rule 2 of the Annex.
25 UNESCO, ‘Convention on the Protection of the Underwater Cultural Heritage, Ninth Meeting of the Scientific and Technical Advisory Body’ (n 12) RESOLUTION 4 / STAB 9, para 2(d).
26 ibid para 2(c).
27 ibid para 2(b).
28 ‘Tribunal da luz Verde al Rescante del Galeón San José’ Semana (Bogotá, 31 July 2018) <www.semana.com/nacion/articulo/tribunal-de-cundinamarca-deniega-medidas-cautelares-contra-rescate-del-san-jose/577229>.
29 See R Emblin, ‘Colombia Extends Suspension of Partnership to Salvage San José Galleon’ The City Paper (14 June 2019) <https://thecitypaperbogota.com/news/colombia-extends-suspension-of-partnership-to-salvage-san-jose-galleon/22320>.
30 See on this R Emblin, ‘Galleon San José's Treasure Will Not Finance Salvage, claims VP Ramírez’ The City Paper (10 October 2019) <https://thecitypaperbogota.com/news/galleon-san-joses-treasure-will-not-finance-salvage-claims-vp-ramirez/22910>.
31 On the risks associated with treasure hunters, see C Forrest, International Law and the Protection of Cultural Heritage (Routledge 2010) 287–8; activities of treasure hunters have been a driving force for the adoption of the Convention; see S Dromgoole, ‘2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage’ (2003) 18 International Journal of Marine and Coastal Law 65. The term ‘corporate treasure hunters’ is also used by Y Winter and J Chambers-Letson, ‘Shipwrecked Sovereignty: Neoliberalism and a Disputed Sunken Treasure’ (2015) 43 Political Theory 297. Other terms are, inter alia, ‘treasure-hunter companies’ (MJ Aznar-Gómez, ‘Treasure Hunters, Sunken State Vessels and the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage’ (2010) 25 International Journal of Marine and Coastal Law 211–12) and ‘treasure-salvaging companies’ (UNESCO, ‘The UNESCO Convention on the Protection of the Underwater Cultural Heritage’ 7 <www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/2001-convention/>).
32 UNESCO, ‘Submerged Archaeological Sites: Commercial Exploitation Compared to Long-Term Protection’ 3 <www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/access/culture-and-development/>; UNESCO, ‘The Threat of the Commercial Exploitation of Underwater Cultural Heritage’ <www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/protection/threats/commercial-exploitation/>. On the Belitung, see also O'Keefe, ‘Commercial Exploitation’ (n 13) 142–3.
33 UNESCO, ‘Pillage’ <www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/protection/threats/pillage/>.
34 See, on the particularly illustrative case of the Titanic, Forrest, International Law and the Protection of Cultural Heritage (n 31) 298–9. The salvage corporation's claim was ultimately unsuccessful in US courts, RMS Titanic Inc v Haver, 171 F.3d 943, 969–70 (4th Cir, 1999); see also S Dromgoole, ‘The International Agreement for the Protection of the Titanic: Problems and Prospects’ (2006) 37 Ocean Devopment & International Law 25, n 74.
35 UNESCO Secretariat and STAB, ‘The Benefit of the Protection of Underwater Cultural Heritage for Sustainable Growth, Tourism and Urban Development’ (2001) passim <www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/UNESCO_UCH_Development_Study.pdf>; see also Dromgoole, Underwater Cultural Heritage and International Law (n 13) 224.
36 O Varmer, ‘The Case against the “Salvage” of the Cultural Heritage’ (1999) 30 JMarL&Com 288–9; see in general TJ Maarleveld, U Guérin and B Egger (eds), Manual for Activities Directed at Underwater Cultural Heritage: Guidelines to the Annex of the UNESCO 2001 Convention (UNESCO 2013) 179–200.
37 See UNESCO, The Impact of Treasure-Hunting on Submerged Archaeological Sites (UNESCO 2016) 7.
38 R Frost, ‘Underwater Cultural Heritage Protection’ (2004) 23 AustYBIL 25, 31.
39 UNESCO Convention art 1(1)(a).
40 LV Prott and PJ O'Keefe, ‘International Legal Protection of the Underwater Cultural Heritage’ (1978) 14 Rev BDI 90–1.
41 MZ Mohd Nor and A Zahid, ‘Competing Interests in the Underwater Cultural Heritage: A Question of Balance’ (2016) 9 Journal of East Asia and International Law 123–4.
42 Varmer, ‘The Case against the “Salvage” of the Cultural Heritage’ (n 36) 289; see also Hutchinson (n 18) 288.
43 See eg Mohd Nor and Zahid (n 41) 123; Hutchinson (n 18) 288. ‘Time capsules’ can also exist on land, eg where a settlement has been buried by a natural disaster. However, on land the protection of these sites against intrusions is considerably more difficult than at sea. This is evidenced by sites such as Herculaneum and Pompeii: preserved as of the time of the eruption of Mount Vesuvius 79 AD, they were subject to subsequent plundering; their status as ‘time capsules’ accordingly disputed by eg AE Cooley and MGL Cooley, Pompeii and Herculaneum: A Sourcebook (2nd edn, Routledge 2014) 1–2. Maritime ‘time capsules’ are of particular interest because they are ‘single period’ time capsules and thus differ from land sites, which generally include artefacts from different time periods, see Varmer, ‘The Case against the “Salvage” of the Cultural Heritage’ (n 36) 288.
44 Varmer, ‘The Case against the “Salvage” of the Cultural Heritage’ (n 36) 280–1; Frost (n 38) 26. On stunning examples in the Black Sea, see T Embury-Dennis, ‘Explorers Accidentally Find 41 Shipwrecks Thousands of Years Old in Black Sea’ The Independent (London, 25 October 2016) <www.independent.co.uk/news/world/europe/shipwrecks-discovery-black-sea-bulgaria-thousands-years-old-a7379691.html>.
45 See Mohd Nor and Zahid (n 41) 123; C Henn, ‘The Trouble with Treasure: Historic Shipwrecks Discovered in International Waters’ (2012) 19 University of Miami International and Comparative Law Review 147; Prott and O'Keefe (n 40) 90–1; Varmer, ‘The Case against the “Salvage” of the Cultural Heritage’ (n 36) 288.
46 Henn (n 45) 147; Dromgoole, Underwater Cultural Heritage and International Law (n 13) 1.
47 Bryant (n 14) 110; Varmer, ‘The Case against the “Salvage” of the Cultural Heritage’ (n 36) 289; see also SR Nicholson, ‘Mutiny as to the Bounty: International Law's Failing Preservation Efforts Regarding Shipwrecks and Their Artifacts Located in International Waters’ (1997) 66 UMKC Law Review 138.
48 Varmer, ‘The Case against the “Salvage” of the Cultural Heritage’ (n 36) 289; T Villegas Zamora, ‘The Impact of Commercial Exploitation on the Preservation of Underwater Cultural Heritage’ (2008) 60 Museum International 20; on funding patterns, see also I Rodríguez Temiño and A Roma Valdés, ‘Fighting Against the Archaeological Looting and the Illicit Trade of Antiquities in Spain’ (2015) 22 IJCP 116–18.
49 See eg MP Montero in S Williams, ‘Underwater Heritage, A Treasure Trove to Protect’ (1997) 87 UNESCO Sources 7.
50 Montero ibid.
51 See Varmer, ‘The Case against the “Salvage” of the Cultural Heritage’ (n 36) 289–90.
52 See Rodríguez Temiño and Roma Valdés (n 48) 116–18.
53 Mohd Nor and Zahid (n 41) 124; see also Frost (n 38) 25, 31.
54 S Wolf, ‘Territorial Sea’, Max Planck Encyclopedia of Public International Law (last updated August 2013) para 1 <http://opil.ouplaw.com>.
55 O'Keefe, Shipwrecked Heritage (n 8) 2; for definitions of these zones, see United Nations Convention on the Law of the Sea (UNCLOS) (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, arts 76 and 1(1)(1) respectively.
56 See BH Oxman, ‘Jurisdiction of States’ Max Planck Encyclopedia of Public International Law (last updated November 2007) paras 13–14 <http://opil.ouplaw.com>.
57 See, on these bases of jurisdiction, Oxman (n 56) paras 18, 29–30; and D König, ‘Flag of Ships’ Max Planck Encyclopedia of Public International Law (last updated April 2009) paras 16–17, 25 <http://opil.ouplaw.com>. Regarding underwater cultural heritage in or on the seabed in the contiguous zone, UNCLOS art 303(2) transfers certain competences to coastal States, yet its scope is rather obscure, see T Scovazzi, ‘Article 303’ in A Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (C.H. Beck 2017) 1953–5.
58 See again Oxman (n 56) paras 18, 29–30.
59 Regarding the different jurisdictional elements of the Convention, see Rau (n 13) 437–45.
60 UNESCO Convention arts 1–6.
61 ibid art 1.
62 ibid arts 2(8), 3 and 4.
63 ibid art 6.
64 ibid art 2 heading.
65 ibid art 2(1).
66 ibid art 2(3).
67 ibid art 2(4).
68 ibid art 2(5), further elaborated in Rule 1 of the Annex; on the relevance of this principle, see Dromgoole, Underwater Cultural Heritage and International Law (n 13) 24. Yet it is important to note that according to both stipulations of the Convention, the preservation in situ of underwater cultural heritage is not an irrefutable dogma, but merely the first option to be considered. As per Rule 1 of the Annex, salvage activities are generally permissible if they make ‘a significant contribution to the protection or knowledge or enhancement of underwater cultural heritage’.
69 UNESCO Convention art 2(7), further elaborated in Rule 2 of the Annex.
70 ibid art 2(8); questions relating to the sovereign immunity of State vessels thus remain governed by other rules of international law, notably by UNCLOS arts 95 and 96.
71 See S Dromgoole, ‘Editor's Introduction’ in S Dromgoole (ed), The Protection of the Underwater Cultural Heritage: National Perspectives in Light of the UNESCO Convention 2001 (2nd edn, Martinus Nijhoff 2006) xxxii; see also O'Keefe, Shipwrecked Heritage (n 8) 115.
72 UNESCO Convention arts 7–13.
73 ibid art 7; the provision merely refers to ‘the Rules’; this, at first sight cryptic, reference is clarified by arts 1(9) and 33 from which accrues that the capitalised ‘Rules’ are the rules contained in the Convention's Annex.
74 ibid art 8.
75 ibid arts 9(1) and 11(1); as regards the exclusive economic zone and the continental shelf, however, the reporting requirement is limited to zones of States Parties, see ibid art 9(1)(a) and (b).
76 ibid arts 10 and 12.
77 See Rau (n 13) 407, 422. Forrest, International Law and the Protection of Cultural Heritage (n 31) 350–6 uses the term ‘enforcement regime’ in a less comprehensive way; Dromgoole, Underwater Cultural Heritage and International Law (n 13) 283–5 categorises arts 14–16 as general ‘control mechanisms’ of the Convention relevant for all maritime zones.
78 See Dromgoole Underwater Cultural Heritage and International Law (n 13) 288 for arts 14–16. For further details on arts 14–18 of the Convention, see below Part IV, Section C.
79 See below Part IV.
80 UNESCO Convention art 17(1).
81 ibid art 18(1).
82 ibid arts 19 and 21.
83 ibid art 22.
84 ibid arts 23 and 24.
85 On the emergence of this part of the Convention, see Dromgoole, Underwater Cultural Heritage and International Law (n 13) 57–9.
86 Among them even staunch critics of main aspects of the Convention, such as the US and the UK: MJ Aznar and O Varmer, ‘The Titanic as Underwater Cultural Heritage: Challenges to its Legal International Protection’ (2013) 44 Ocean Development and International Law 101; see also O Varmer, ‘United States of America’ in S Dromgoole (ed), The Protection of the Underwater Cultural Heritage: National Perspectives in Light of the UNESCO Convention 2001 (2nd edn, Martinus Nijhoff 2006) 384–5. As per Dromgoole, Underwater Cultural Heritage and International Law (n 13) 307, the Rules ‘embody internationally accepted standards for the conduct of underwater archaeological activities’.
87 See above Part I.
88 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. See, on these methods in general, O Dörr, ‘Article 31: General Rule of Interpretation’ and ‘Article 32: Supplementary Means of Interpretation’ in O Dörr and K Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (2nd edn, Springer 2018) 559–614 and 617–32.
89 On the necessity to adopt legislative measures under art 16, see O'Keefe, Shipwrecked Heritage (n 8) 109 and Rau (n 13) 423–4.
90 See Convention sur la Protection du Patrimoine Culturel Subaquatique (adoptée le 2 novembre 2001, entrée en force le 2 janvier 2009) 2562 UNTS 72, art 16: ‘Les États parties prennent toutes les mesures opportunes’ (emphasis added).
91 See on this O'Keefe, Shipwrecked Heritage (n 8) 109 and Rau (n 13) 423–4.
92 This finding is also bolstered by UNESCO Convention art 1(7), which defines ‘[a]ctivities incidentally affecting underwater cultural heritage’ as activities which ‘despite not having underwater cultural heritage as their primary object or one of their objects, may physically disturb or otherwise damage underwater cultural heritage’.
93 Larousse, Dictionnaires de français, ‘opportun’: ‘latin opportunus, qui conduit au port’ <www.larousse.fr/dictionnaires/francais/>.
94 See on this also Rau (n 13) 423–4.
95 See on this also O'Keefe, Shipwrecked Heritage (n 8) 109, who states that ‘measures to be taken must ensure that nationals and vessels do not engage in the activity’; and Rau (n 13) 424, who acknowledges the obligation of the States Parties to take ‘further legislative action’ (emphasis added) in addition to prohibitions.
96 See eg Bryant (n 14) 107; N Gibbs, ‘The Ocean Gold Rush’ Time (Amsterdam, 25 October 1993) 66–9.
97 See on this above Part II.
98 See, for a similar reasoning, Rau (n 13) 424; see also E Boesten, Archaeological and/or Historic Valuable Shipwrecks in International Waters: Public International Law and What It Offers (T.M.C. Asser Press 2002) 174–5 who underlines the jurisdictional component of art 16; Dromgoole, Underwater Cultural Heritage and International Law (n 13) 62.
99 Dromgoole, Underwater Cultural Heritage and International Law (n 13) 62 reaches the same result but based on a slightly different argument.
100 O'Keefe, Shipwrecked Heritage (n 8) 109.
101 See also Rau (n 13) 424.
102 Dromgoole, Underwater Cultural Heritage and International Law (n 13) 285.
103 See, on this in general, Dörr (n 88) 584–5.
104 UNESCO Convention art 2(1).
105 ibid art 2(3).
106 ibid art 2(4).
107 See above Part IV, Section A.
108 See, on this in general, Dörr (n 88) 586–7.
109 See, for a similar reasoning regarding other problematic occurrences, O'Keefe, Shipwrecked Heritage (n 8) 109.
110 See above Part II.
111 This trait of art 16 is mentioned by Boesten (n 98) 174–5.
112 See Dromgoole, ‘Editor's Introduction’ (n 71) xxvii–xxviii; see also UNESCO/DOALOS, ‘Draft Convention on the Protection of the Underwater Cultural Heritage’ (April 1998) UNESCO Doc CLT-96/Conf.202/5, reproduced in S Dromgoole and N Gaskell, ‘Draft UNESCO Convention on the Protection of the Underwater Cultural Heritage 1998’ (1999) 14 International Journal of Marine and Coastal Law 201. Many of these capabilities are associated with corporations: see eg Dromgoole, Underwater Cultural Heritage and International Law (n 13) 6; Mohd Nor and Zahid (n 41) 134.
113 See, on the exploitation of insufficient State protection of underwater cultural heritage by treasure hunters, Villegas Zamora (n 48) 22.
114 Regarding the necessity of such action by maritime States, see Dromgoole, ‘Editor's Introduction’ (n 71) xxvii–xxviii; see, on the corresponding feature of art 16, Boesten (n 98) 174–5.
115 See Arrêté fédéral portant approbation et mise en œuvre de la convention sur la protection du patrimoine culturel subaquatique (modification de la loi sur le transfert des biens culturels et de la loi fédérale sur la navigation maritime sous pavillon suisse) (translation: Federal decree regarding the adoption and implementation of the Convention on the Protection of the Underwater Cultural Heritage), Feuille Fédérale (CH) 2019 4385, 4388. This clearly amounts to a violation of the UNESCO Convention from the moment it enters into force for Switzerland in January 2020.
116 Petrig and Stemmler (n 10) 77–8 along with 75–6.
117 See also Rau (n 13) 437–9.
118 On the interrelation between these articles: Rau (n 13) 407; see also Dromgoole, Underwater Cultural Heritage and International Law (n 13) 62 and 283–5.
119 Other provisions of the Convention that refer to the taking of measures are art 2(4), which requires States Parties to take ‘all appropriate’ and ‘necessary’ measures to protect underwater cultural heritage in general, see above Part IV, Section B; arts 10(4)–(6) and 12(3), (4), (6), which concern the adoption of protective measures regarding specific finds of underwater cultural heritage; art 13, which aims at measures securing the compliance of government ships with the provisions of the Convention in the different maritime zones; arts 19(4) and 20, which oblige States Parties to disseminate various kinds of information related to underwater cultural heritage.
120 UNESCO Convention art 18(1).
121 Emphasis added.
122 UNESCO Convention art 17(1).
123 See on this also O'Keefe, Shipwrecked Heritage (n 8) 112, who discusses inter alia imprisonment as a suitable punishment under art 17(2).
124 See on this Part IV, Section A.
125 Rau (n 13) 437, as per whom both principles are arguably also inherent in UNESCO Convention arts 10(4) and 12(3).
126 See, on this approach in general, Dörr (n 88) 603–5. Doctrine is divided whether it is necessary that the ‘external’ treaty is ratified by all States party to the treaty subject to interpretation: C McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 313–15, discusses various meanings that could be given to the words ‘applicable in the relations between the parties’ in art 31(1)(c) VCLT; M Herdegen, ‘Interpretation in International Law’ Max Planck Encyclopedia of Public International Law (last updated March 2013) para 24 <http://opil.ouplaw.com> argues for complete identity between the States parties to an ‘external’ treaty and to the treaty subject to interpretation. Since we do not adhere to this view, but rather to the broader reading of the requirement ‘applicable in the relations between the parties’, it does not matter that the two external international agreements of interest here—those regarding the M/S Estonia and the RMS Titanic—have not been ratified by any State Party to the UNESCO Convention.
127 On the term ‘suppression convention’, see Boister (n 14) 19–20.
128 Agreement Regarding the M/S Estonia (adopted 23 February 1995, entered into force 26 August 1995) 1890 UNTS 175, art 1.
129 M/S Estonia Agreement art 4(1).
130 ibid art 4(2).
131 See on this also Boesten (n 98) 174, who deems art 16 suitable to assist in the enforcement of the M/S Estonia Agreement.
132 S Dromgoole, ‘United Kingdom’ in S Dromgoole (ed), The Protection of the Underwater Cultural Heritage: National Perspectives in Light of the UNESCO Convention 2001 (2nd edn, Martinus Nijhoff 2006) 344, n 161.
133 Agreement Concerning the Shipwrecked Vessel RMS Titanic (2000), retrievable at US Department of State Archive <https://2001-2009.state.gov/g/oes/rls/or/2004/33709.htm>. According to art 11(2), the Agreement enters into force as soon as two States consent to be bound by it. So far, the UK consented, while the US signed the Agreement subject to the enactment of implementing legislation. The US Congress has not yet acted upon this: see US National Oceanic and Atmospheric Administration, Office of General Counsel, ‘R.M.S Titanic – Legislation’ (30 May 2018) <www.gc.noaa.gov/gcil_titanic-legislation.html>; see also the ‘Status List’ on the Agreement available at UK The National Archives, Foreign and Commonwealth Office, ‘Depositary’ (27 July 2008) <https://webarchive.nationalarchives.gov.uk/tna/20080727163407/ http://www.fco.gov.uk/en/about-the-fco/publications/treaties/depositary>.
134 Titanic Agreement art 2.
135 On the obvious similarities between the Titanic Agreement and the enforcement regime of the UNESCO Convention: Dromgoole, ‘Editor's Introduction’ (n 71) xxxvi.
136 Titanic Agreement art 4(1).
137 ibid art 4(4).
138 The Protection of Wrecks (RMS Titanic) Order 2003 art 1(2).
139 On the criminal character of the provision, see Dromgoole, ‘The International Agreement for the Protection of the Titanic’ (n 34) 14–15.
140 Merchant Shipping and Maritime Security Act 1997 section 24(3).
141 On jurisdiction in this context, see also Dromgoole, ‘The International Agreement for the Protection of the Titanic’ (n 34) 7.
142 International Convention Against the Taking of Hostages (adopted 17 December 1979, entered into force 3 June 1983) 1316 UNTS 205 (Hostages Convention).
143 United Nations Convention Against Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September 2003) 2225 UNTS 209 (UNTOC).
144 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (adopted 10 March 1988, entered into force 1 March 1992) 1678 UNTS 201 (SUA).
145 Eg SUA arts 3, 5 and 6; UNTOC arts 5, 6, 8, 11, 15; Hostages Convention arts 1, 2, 5; see in general Boister (n 14) 19–20; for doctrine on the protection of cultural property by means of transnational criminal law, see (n 14).
146 The comparison of international norms with domestic rules is, however, not foreign to international law; the most prominent example is the identification of general principles of law in the sense of art 38(1)(c) of the Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 33 UNTS 21: see P de Cruz, ‘Comparative Law, Functions and Methods’, Max Planck Encyclopedia of Public International Law (last updated April 2009) paras 51–54 <http://opil.ouplaw.com>; another example for gaining insights from a comparison of domestic rules is the identification of ‘constitutional traditions common to the Member States’ pursuant to art 6(3) of the consolidated version of the Treaty on European Union [2016] OJ C202/13: see U Kischel, Comparative Law (Oxford University Press 2019) 84–5.
147 Kischel (n 146) 871.
148 On the comparability of the Convention's provisions and the Act, see A Strati, ‘Draft Convention on the Protection of Underwater Cultural Heritage: A Commentary Prepared for UNESCO’ (April 1999) UNESCO Doc CLT-99/WS/8, 42–3.
149 10 USC section 113 (2019).
150 Introductory Text to the Protection of Military Remains Act 1986. While the protection of human remains has been the driving force behind the adoption of the Act, this is not reflected by its wording since the term ‘remains’ also covers ‘cargo, munitions, apparel or personal effects’; see S Dromgoole, ‘Military Remains on and Around the Coast of the United Kingdom: Statutory Mechanisms of Protection’ (1996) 11 International Journal of Marine and Coastal Law 33–4.
151 Compare Protection of Military Remains Act 1986, section 1, with UNESCO Convention art 1.
152 Protection of Military Remains Act 1986, section 2.
153 See (n 140) and relating text.
154 Protection of Military Remains Act 1986, section 3(1); section 3(1)(b)(iv) was amended by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009, SI 2009/1941, sched 1, section 69, with the effect that companies ‘registered under the Companies Act 2006’ became liable under the Act. Notwithstanding the specific rules of the Protection of Military Remains Act 1986, the UK government only began to designate shipwrecks as controlled sites or protected places in 2002; seemingly, the mere existence of the Act was a sufficient deterrent for a considerable period of time: Dromgoole, ‘United Kingdom’ (n 132) 330–1.
155 Sunken Military Craft Act, 10 USC § 113, section 1402(a); for further insights on the Act: DJ Bederman, ‘Congress Enacts Increased Protections for Sunken Military Craft’ (2006) 100 AJIL 653–9.
156 Sunken Military Craft Act, 10 USC § 113, section 1404.
157 ibid section 1405.
158 ibid section 1402(c)(2).
159 The negotiations were not recorded in detail, but can be retraced by having recourse to UNESCO documents and relevant scholarly writings; on UNESCO documents, see R Garabello, ‘The Negotiating History of the Convention on the Protection of the Underwater Cultural Heritage’ in R Garabello and T Scovazzi (eds), The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention (Martinus Nijhoff 2003) 92–3 and 159–61.
160 On particularly contentious points, see T Scovazzi, ‘The 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage’ in G Camarda and T Scovazzi (eds), The Protection of the Underwater Cultural Heritage: Legal Aspects (Giuffrè Editore 2002) 120–30.
161 O'Keefe, Shipwrecked Heritage (n 8) 14–16. UNCLOS contains provisions on the protection of underwater cultural heritage (especially arts 149 and 303); however, it does not establish a comprehensive protection regime comparable to the UNESCO Convention. UNCLOS is not considered any further here, but see T Scovazzi, ‘Article 149’ in A Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (C.H. Beck 2017) 1052–8; Scovazzi, ‘Article 303’ (n 57) 1950–61.
162 International Law Association, ‘Resolutions Proposed by International Committees’ in International Law Association Report of the Sixty-Sixth Conference (Buenos Aires 1994) (International Law Association, London 1994) 15–21.
163 Strati (n 148) 1; as per O'Keefe, Shipwrecked Heritage (n 8) 23, ‘the ILA Draft did indeed act as a blueprint for the development of the UNESCO Convention on the Protection of the Underwater Cultural Heritage’ (italics omitted).
164 On the substantive linkage between the provisions: Dromgoole, Underwater Cultural Heritage and International Law (n 13) 283–4; Rau (n 13) 438, n 208.
165 Art 5 ILA Draft featured a particular kind of coastal State jurisdiction: the ‘cultural heritage zone’, which States Parties would have been free to establish and which, as per art 1(3) ILA Draft, paralleled the extent of the continental shelf: Dromgoole, Underwater Cultural Heritage and International Law (n 13) 50; Cultural Heritage Law Committee (n 16) 436–7, 439.
166 See Bautista, ‘Gaps, Issues, and Prospects’ (n 14) 65–6; for the content of the ICOMOS Charter, see <www.icomos.org/en/faq-doccen/179-articles-en-francais/ressources/charters-and-standards/161-charter-on-the-protection-and-management-of-underwater-cultural-heritage>.
167 See Garabello (n 159) 180.
168 On the cultural heritage zone, see above (n 165). In essence, prohibitions under art 8 must cover activities in maritime zones under the jurisdiction of non-States Parties, on the continental shelf of States Parties that chose not to establish a cultural heritage zone, and in areas beyond relevant State jurisdiction.
169 See above Part IV, Section A.
170 Cultural Heritage Law Committee (n 16) 440.
171 ibid.
172 Reprinted in Dromgoole and Gaskell (n 112) 193–206. As per O'Keefe, Shipwrecked Heritage (n 8) 29, the draft was not subject to negotiations until April 1999; the first meeting of governmental experts in 1998 solely served as an exchange of views. The draft was jointly presented by UNESCO and DOALOS; but due to criticism regarding DOALOS’ authority to participate in the process, it assumed a fairly restrained role in the ensuing discussions.
173 Reprinted in Dromgoole and Gaskell (n 112) 201.
174 Garabello (n 159) 160–1.
175 ibid 161.
176 UNESCO, ‘Draft Convention on the Protection of the Underwater Cultural Heritage’ (July 1999) UNESCO Doc CLT-96/CONF.202/5 Rev.2, 5, 6, 8. This draft was the result of negotiations that took place in Paris in April 1999: PJ O'Keefe, ‘Second Meeting of Governmental Experts to Consider the Draft Convention on the Protection of Underwater Cultural Heritage’ (1999) 8 IJCP 568. Of the numerous differences between the three proposals, we only discuss those that are particularly helpful for understanding today's art 16.
177 It should be noted that Option 2 limits this obligation to particular maritime areas.
178 O'Keefe, ‘Second Meeting of Governmental Experts’ (n 176) 573; UNESCO, ‘Second Meeting of Governmental Experts to Consider the Draft Convention on the Protection of Underwater Cultural Heritage, 19–24 April 1999, Synoptic Report of Comments on the Draft Convention on the Protection of the Underwater Cultural Heritage’ (April 1999) UNESCO Doc CLT-99/CONF.204/5.
179 On the ICOMOS Charter, see above Part IV, Section F, Subsection 1.
180 The content of this annex was still subject to negotiations, O'Keefe, Shipwrecked Heritage (n 8) 152.
181 Options 1 and 3 even required that relevant conduct be in keeping with ‘the laws and regulations’ of a State Party in whose exclusive economic zone or continental shelf it occurs.
182 UNESCO, ‘Third Meeting of Governmental Experts to Consider the Draft Convention on the Protection of the Underwater Cultural Heritage, 3–7 July 2000, Synoptic Report of Comments on the Draft Convention on the Protection of the Underwater Cultural Heritage’ (April 2000) UNESCO Doc CLT-2000/CONF.201/3, 10–1.
183 UNESCO, ‘Final Report of the Third Meeting of Governmental Experts on the Draft Convention on the Protection of Underwater Cultural Heritage, 3–7 July 2000’ (August 2000) UNESCO Doc CLT-2000/CONF.201/7, 10, 14.
184 Blumberg, RC, ‘International Protection of Underwater Cultural Heritage’ in Nordquist, MH, Moore, JN and Fu, K (eds), Recent Developments in the Law of the Sea and China (Martinus Nijhoff 2006) 494–5Google Scholar; Dromgoole, Underwater Cultural Heritage and International Law (n 13) 281–2.
185 Emphasis added.
186 UNESCO, ‘Fourth Meeting of Governmental Experts on the Draft Convention on the Protection of the Underwater Cultural Heritage, 26 March–6 April 2001, Consolidated Working Paper’ (March 2001) UNESCO Doc CLT-2OOl/CONF.203/INF.3. For a detailed description of the proceedings, see O'Keefe, PJ, ‘Fourth Meeting of Governmental Experts to Consider the Draft Convention on the Protection of Underwater Cultural Heritage’ (2002) 11 IJCP 168–9Google Scholar.
187 UNESCO Doc CLT-2OOl/CONF.203/INF.3 (March 2001) (n 191) 22, 24, 26, 30.
188 See section ‘Informal draft negotiating text’ of UNESCO Doc CLT-2OOl/CONF.203/INF.3 (March 2001) (n 186) starting at 3; see also O'Keefe, Shipwrecked Heritage (n 8) 30, who refers to this part of the document as ‘Single Negotiating Text’.
189 UNESCO Doc CLT-2OOl/CONF.203/INF.3 (March 2001) (n 186) 43.
190 See also Rau (n 13) 423–4.
191 UNESCO Convention Rule 2 of the Annex.
192 On activities of corporate treasure hunters, see above Part II.
193 On the downsides of commercial exploitation of underwater cultural heritage, see UNESCO, ‘Submerged Archaeological Sites’ (n 32) 1-3; and UNESCO, The Impact of Treasure-Hunting on Submerged Archaeological Sites (n 37) 3–13.
194 W Drye, ‘Fight for “World's Richest Shipwreck” Heats Up’ National Geographic (20 July 2018) <www.nationalgeographic.com/science/2018/07/news-san-jose-shipwreck-colombia-salvage/>.
195 Kitt (n 5).
196 See eg Bryant (n 14) 109.
197 As of December 2019, 63 States have ratified the Convention, yet many ‘maritime States’, notably Russia and the US, are not among them: up-to-date list of States Parties (n 10).
198 See above Part IV, Section F, Subsection 4; UNESCO Doc CLT-2000/CONF.201/7 (August 2000) (n 183) 10.
199 UNESCO Model for a National Act on the Protection of Cultural Heritage, available at <www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/publications-resources/legal-documents/> No. 22. ‘Infringements and Sanctions’.
200 Crawford, JR, Brownlie's Principles of Public International Law (8th edn, Oxford University Press 2012) 528CrossRefGoogle Scholar.
201 The observations of Garabello (n 159) 111 substantiate this finding. As per Dromgoole, Underwater Cultural Heritage and International Law (n 13) 242, 244, the nationality principle allows for ‘legal entities’ to be brought within protective schemes for underwater cultural heritage, but she does not refer to the UNESCO Convention in this context.
202 See UNESCO Convention art 31.
203 See Henn (n 45) 159 who qualifies the US salvage industry as ‘the strongest, largest, best funded, and most technologically advanced in the world’; and Villegas Zamora (n 48) 22 describing the regional shift in commercial pillage activities. The San José is, again, illustrative as the two corporate treasure hunters involved in the search for its wreck off the coast of Colombia have their seats in the US and Switzerland respectively, see Drye (n 194); see on the issue also above Part IV, Section B.
