Introduction
With over 70 percent of the Earth’s surface covered by water,Footnote 1 it is not surprising that more mineral and other natural resources are found in the Earth’s water bodies than on the land surface. For instance, some 87 percent of the world’s known offshore hydrocarbon fields are found in the exclusive economic zone (EEZ) area of the sea.Footnote 2 The surface of the ocean is also home to what is generally known as underwater cultural heritage (UCH) which includes shipwrecks, submerged prehistoric villages, lost cities and ancient harbors, and ports, as well as the vast historic items kept inside these items.Footnote 3 UCH embraces both tangible and intangible elements of historical, economic, social, and cultural value to a group/community, a nation, or humankind.Footnote 4 Hence, it is (or, as some argue, must be) difficult to provide an exact value (especially monetary value) to maritime cultural heritage.Footnote 5 Testifying to the value to humanity of UCH, a recent study of all 1,223 World Heritage sites that examined whether the sites have potential connections with UCH showed that over 355 of such properties (that is, 29 percent, or nearly one-third of them) are related to UCH.Footnote 6 Scovazzi is, therefore, right to claim that “the greatest museum of human civilization lies on the seabed.”Footnote 7
The focus of this article is on shipwrecks, particularly sunken State vessels.Footnote 8 Dromgoole states that “[a] significant proportion of UCH comprises sunken warships and other government-owned (or operated) vessels and aircraft that were engaged in war, or other public service, at the time of loss.”Footnote 9 The United Nations Educational, Scientific and Cultural Organization (UNESCO) estimates that there are over three million shipwrecks spread across the Earth’s ocean floors awaiting discovery, and they contain vast amounts of jewels, weapons, and other historical and cultural artifacts.Footnote 10 Yet, some sources say that less than one percent of these shipwrecks have been explored.Footnote 11 There is, for instance, a record of only around 250,000 sunken vessels among those scattered around the world’s seas and oceans.Footnote 12
Shipwrecks have been the interest of archaeologists who “seek to expand our knowledge of history through a study of submerged material culture.”Footnote 13 They deliver information for “reconstructing lifestyles, trade routes and shipbuilding techniques that no longer exist” todayFootnote 14 and further assist in unveiling an authentic treasure of knowledge by looking at the “navigation instruments, clothing, and even foods and medicines used aboard” the wrecks that have been rescued.Footnote 15 Together with other heritage resources, shipwrecks can be employed to “create, recover and preserve certain narratives about the past that significantly impact national cultural identity and the overall possible directions of the transitional process.”Footnote 16
Looking at shipwrecks from the monetary point of view, it is estimated that there is around $60 billion of unclaimed treasure in the world’s shipwrecks, and roughly 3,000 of shipwrecks are thought to have contents still onboard that are valuable enough to attract salvage missions.Footnote 17 Only one of these, the San José, a Spanish galleon which sunk in 1708, and was discovered in 2015 deep in the Caribbean waters by the Colombian Navy, is estimated to have carried a cache of gold, silver, and emeralds onboard thought to be worth as much as $17 billion; it has hence been named “the holy grail of shipwrecks.”Footnote 18
In the process of searching for the accurate past, advances in the technology of diving and remote sensing equipment, especially the invention of aqualung by Jacques Cousteau and Emile Gangnam in 1942-1943Footnote 19 and later self-contained underwater breathing apparatus (scuba) diving have facilitated discovery and access to shipwrecks. This has, in turn, led to an unprecedented public awareness and recovery of shipwrecks, which, before such development, were out of human reach.Footnote 20 These developments can also trigger, and have triggered, several conflicts,Footnote 21 including disputes over: ownership of the wrecks among the flag States, the finders, the countries where the shipwrecks are located or where the cargo came from, which State must exercise jurisdiction on the wrecks,Footnote 22 and how the wrecks are to be handled (that is, whether to be picked up in salvage or preserved in situ). Conflicts over shipwreck ownership are particularly problematic and complex as they very often involve the application of domestic laws on foreign-owned wrecks (some of which may be State vessels) and numerous parties, including States from different corners of the world with different interests and claims.Footnote 23 Specific questions that need analysis in the context of shipwreck ownership claims include: (i) who owns shipwrecks in generalFootnote 24 and historic shipwrecks and their cargo in particular,Footnote 25 (ii) are sunken military vessels considered UCH,Footnote 26 (iii) in matters concerning historic shipwrecks, should preferential rights be granted to the coastal State, the flag State, the State of origin, the State of cultural origin, or the State of historical and archaeological origin,Footnote 27 (iv) does sovereign immunity apply to sunken State vessels?Footnote 28
Africa is a continent fully encircled by water bodies, with the Mediterranean Sea in the North, the Red Sea, the Gulf of Aden, the Indian Ocean in the East, the Atlantic Ocean in the West, and the Atlantic and Indian Oceans merging in the South. The total coastline of the continent is around 26,000 nautical miles (48,152 kilometers), with 13 million square kilometers of EEZ, as well as a continental shelf covering an area of approximately 6.5 million square kilometers.Footnote 29 Africa has its share of historic shipwrecks that are of immense historical importance, witnessing ancient navigation to and from Africa, its past civilization, the advent of colonialism, and the painful history of the shipping of African slaves and wealth to all corners of the world. For instance, the waters of Egypt, which is custodian of ancient civilizations and due to its location by the Red Sea and the Mediterranean Sea, hold several shipwrecks of historical value. The discovery of the L’Orient, Le Guerrier, L’Artemise, La Serieuse and Le Patriote, and more than 60 shipwrecks lying on the seabed of Abukir Bay is evidence of the invaluable history that shipwrecks situated in African waters have preserved.Footnote 30 The South African coast, particularly the water around the Cape of Good Hope (also known as the “graveyard of ships”), is claimed to hold nearly 3,000 sunken vesselsFootnote 31 originating from around 25 different nations in Europe, Africa, the Americas, Asia, and Australia in the time span between 1550 and 1984.Footnote 32 One of the most famous of these vessels is the Portuguese slave ship, the São José Paquete Africa, which departed Mozambique on 3 December 1794 for a 7,000-mile voyage to Maranhão, Brazil, carrying between 400 and 500 slaves, pressed flesh to flesh with their backs on the floor, and violently crashed only 100 yards off the treacherous Cape of Good Hope with an estimated 212 of the slaves perishing in the sea.Footnote 33 Another study has also documented the stories of over 300 wrecks on the East African Coast (stretching some 4,000 miles from Cape Guardafui in Somalia to the Mozambique Channel) which sank between 1698 and 2002, although the earliest recorded casualty is the Portuguese galleon San Raphael, which grounded and burned at Mtongoni, south of Tanga, in 1499.Footnote 34 Shipwrecks are found all over the continent in its inland waters and in the African coasts of the Red Sea, the Mediterranean Sea, the Indian Ocean, and the Atlantic Ocean (where it is estimated that most shipwrecks of the world are foundFootnote 35). Records exists of shipwrecks in the waters of Eritrea, Lake Albert, Lake Victoria, Kenya, Malawi, Somalia, Mozambique, and Tanzania (East Africa); Algeria, Egypt, Libya, Morocco and Tunisia (North Africa); Namibia and South Africa (Southern Africa); and Cape Verde, Gambia, Nigeria, Senegal, and Sierra Leone (West Africa), some dating back to the early seventh century AD and the 1530s.Footnote 36 Most of these vessels attest to Africa’s painful past as they were used to transport the rich and various African resources vandalized by the colonizers or the millions of slaves shackled and transported as cargo from African shores to plantations and other destinations of slavery in Europe and the Americas. The shipwrecks off African coasts constitute an important part of this history. An appropriate handling of the legacy of these historical shipwrecks includes their preservation under the relevant rules of international law and domestic laws, which do (should) reflect said international law rules. The result of the discussion under these rules can contribute to the further implementation of the African Renaissance, the subject of this special issue.
As Risvas correctly observed, “in general, the protection of UCH in the African context is a relatively underexplored topic in legal scholarship.”Footnote 37 This article intends, in part, to contribute to address this dearth of attention by examining the laws of select African States in preserving, asserting jurisdiction on, or claiming ownership of the shipwrecks in their maritime zones in light of the relevant rules of international law, particularly those contained in the 1982 United Nations Convention on the Law of the Sea (LOSC) and the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage (CPUCH).Footnote 38 First, though, we will present how these two conventions regulate UCH in general and sunken (State) vessels in particular, which, Dromgoole states, comprise a significant portion of UCH and present inherent challenges and sensitivities in their regulation under international law (because of such issues as state immunity and state succession).Footnote 39
UCH and Sunken State Vessels under the LOSC
The Inadequacy of the LOSC to Protect and Conserve UCH in General
The history of the 1982 LOSC goes back to the 1930 Hague Conference where Members of the League of Nations negotiated to clarify the rules relating to shipping and the limits of the territorial sea, including the establishment of a contiguous zone (that is, an area of the sea beyond the traditional three nautical miles limiting the territorial sea). Both attempts failed.Footnote 40 The next move to codify the oceans occurred under the first Law of the Sea Conference held in Geneva and resulted in four conventions relating to the territorial sea and the contiguous zone, the high seas, the continental shelf, fishing, and conservation of the living resources of the high seas. The 1958 Conference was essentially the codification of the law of the sea. However, like its 1930 predecessor at The Hague, the 1958 Conference failed to reach an agreement on the limits of the territorial sea. The four treaties of the 1958 Conference do not contain provisions dealing with UCH.Footnote 41 The second Law of the Sea Conference held in 1960 in Geneva, mainly to resolve the two unresolved issues of the 1958 Conference (limits of the territorial sea and fisheries rights), neither produced any significant agreement nor did it examine the need to protect UCH.Footnote 42
The greatest breakthrough in governing the oceans would come with the launching of the third Law of the Sea Conference in 1982 which resulted in the LOSC. Widely described as the “constitution of the oceans,”Footnote 43 the LOSC deals with “practically every aspect of the uses and resources of the seas and the oceans.”Footnote 44 It covers wide-ranging issues, including the determination of maritime zones,Footnote 45 navigation, fishing, deep-seabed mining, marine scientific research, the laying of submarine cables and pipelines, resolving maritime disputes, and the protection of the marine environment.Footnote 46 Despite its extensive nature (320 articles spread over 17 Parts as well as nine annexes), the LOSC contains only two provisions – Articles 149Footnote 47 and 303Footnote 48 – that, O’Keefe states, “were eventually inserted in the 1982 Convention.”Footnote 49 The two provisions refer to UCHFootnote 50 in general, vague and insufficient terms,Footnote 51 are obscure,Footnote 52 and, in the words of Scovazzi, “fragmentary” and “disastrous.”Footnote 53 The most practicable way of understanding how the LOSC regulates UCH, if at all, is to identify the rights and duties given to coastal and other States in each maritime zone of the sea.Footnote 54
The general provision on the protective authority of States in the sea regarding UCH is Article 303(1) of the LOSC, which provides that “States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose.” The phrase “found at sea” is understood to apply to UCH found in all maritime zones.Footnote 55 Authors agree that, owing to its broad content, this provision does not say very muchFootnote 56 and is vague and ambiguous.Footnote 57 It is, therefore, more politicalFootnote 58 or hortatoryFootnote 59 in its content. The term “duty” in this provision has been variously interpreted to refer to the obligation: not to deliberately damage underwater relics, to accept a request to form cooperation on protection of UCH, to report the accidental discovery of UCH sites, to take all necessary interim measures to protect UCH, to preserve UCH in situ, to avoid unnecessary damage’ and/or to conserve the recovered objects.Footnote 60 More specific rights and duties pertaining to the regulation of UCH in each maritime zone must, therefore, be sought elsewhere in the LOSC.
Internal waters, and, under Article 2 of the LOSC, the territorial sea (including its bed and subsoil) fall under the full sovereignty of the coastal State. UCH within internal waters and territorial sea is, therefore, subject to the jurisdiction of the coastal State, which can issue and enforce its domestic laws with respect to UCH (except State vessels with immunityFootnote 61) and other historical relics as qualified by international law (such as the CPUCH).Footnote 62
Under the architecture of the LOSC, the authority and rights of the coastal State diminish as one goes further into the sea. Thus, in the contiguous zone (the area of the sea which may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured), the coastal State can, under Article 33(1) of the LOSC, only exercise the control necessary to: (i) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (ii) punish the infringement of these laws and regulations committed within its territory or territorial sea.Footnote 63 Given the nature of the four types of laws that can be enforced in the contiguous zone, therefore, it is difficult to argue that a coastal State has jurisdiction to regulate and enforce domestic laws on UCH in this zone. The only specific reference in the LOSC to the regulation of UCH in the contiguous zone is Article 303(2) which provides that in order to control traffic of objects of an archaeological and historical nature, the coastal State may presume that the removal of such objects from the seabed of the contiguous zone would result in an infringement within its territory or territorial sea of the laws and regulations referred to in Article 33.Footnote 64 Authors have made various comments on the formulation of Article 303(2). Some, like Strati,Footnote 65 Blake,Footnote 66 RisvasFootnote 67 and BowensFootnote 68 claim that Article 303(2) has, in effect, established a 24-mile “archaeological zone”Footnote 69 where the coastal State can exercise legislative and enforcement authorities of its domestic laws relating to UCH. Others, such as OxmanFootnote 70 and Brown,Footnote 71 argue that Article 303(2) has only established an enforcement jurisdiction, while RauFootnote 72 holds that there is not even a legislative jurisdiction established under Article 303(2). None of these authors disputes, however, that Article 303(2) limits the enforcement (and perhaps also legislative) jurisdiction of the coastal State only to the removal (and not, for instance, to the destruction, as Scovazzi observesFootnote 73) of UCH with the objective of controlling their traffic. Footnote 74 There is no authority for “search for such objects, or the carrying out of archaeological or other activities impacting on underwater cultural heritage by nationals or vessels of other state.”Footnote 75 In practice, though, many countries, including Algeria, Cyprus, France, Tunisia, South Africa, Denmark, and China, exercise UCH jurisdiction in their contiguous zones.Footnote 76
The other maritime zone where there is some regulation under the LOSC regarding UCH found therein is the deep-sea bed, also known as the “Area.” Article 1(1) of the LOSC defines the Area, which comprises about 56 percent of the Earth’s surface,Footnote 77 as the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (that is, beyond the territorial sea and the continental shelfFootnote 78). Article 149 of the LOSC provides that any archaeological and historical object (such as shipwreck and aircraft found sunkFootnote 79) in the Area “shall be preserved or disposed of for the benefit of mankind as a whole” and that particular regard must be had 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.” Given that Articles 149 and 303(1) both apply to the Area (the former applying generally to all areas and the latter specific to the Area), authors have considered Article 149 to be lex specialis to Article 303(1).Footnote 80 Except for the two notions introduced by Article 149 (preservation for the benefit of mankind and preferential rights given to the three types of States), however, Article 149 has been observed as vague and ambiguousFootnote 81 and devoid of details, such as what constitutes archaeological and historical objects.Footnote 82 Scovazzi observes that Article 149 appears complicated in its wording,Footnote 83 and Rau adds that the provision “is not only primarily programmatic in character, but also suffers from various flaws” and therefore “is generally deemed of little practical importance.”Footnote 84 Moreover, Tanaka argues that Article 149 “does not offer any guidance on the manner in which the ‘benefit of mankind as a whole’ should be harmonized with the rights of various categories of States.”Footnote 85
The abovementioned LOSC provisions show that UCH in the EEZ and on the continental shelf beyond the contiguous zone (an area that is at least 176 miles in breadth) is, except for the general provision in Article 303(1) and other general provisions, left without any regulation.Footnote 86 Dromgoole states that the combined effect of Articles 149 and 303, which Shelton argues are “ambiguous at best,”Footnote 87 means that “they appear to leave a particular geographical ‘gap’ in the provision they afford,” a gap or lacuna that must be filled as far as UCH in the continental shelf and the EEZ.Footnote 88 The protection of UCH in the EEZ and on the continental shelf becomes problematic because Articles 56 and 77 of the LOSC respectively state that the coastal State’s sovereign rights in its EEZ and on its continental shelf are confined to natural resources; they do not include UCH. There is, therefore, no legal protection afforded to UCH found in the EEZ and on the continental shelf beyond the contiguous zone.Footnote 89 Tanaka has observed that since the LOSC is “deficient in not containing provisions for the protection of [UHC] in the EEZ or on the continental shelf[,] [t]his legal vacuum could easily lead to a first-come-first-served approach on the basis of the freedom of the seas.”Footnote 90 The said danger of non-protection of these objects is aggravated by Article 303(3), which leaves the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges untouched. Tanaka adds that “the application of the law of salvage may mean the application of a first-come-first-served approach which would serve the interest of private commercial gain.”Footnote 91 Strati concludes her observation of the protection of UCH in the EEZ or on the continental shelf beyond the contiguous zone as: “the protection of archaeological sites in these areas lies in principle at the discretion of flag States, which even if they were willing to take the appropriate measures, lack the necessary means of enforcement.”Footnote 92
The state of preservation of UCH under the LOSC is, therefore, best summarized by Tanaka’s conclusion that “the LOSC is inadequate to protect archaeological and historical objects.”Footnote 93
The LOSC on Ownership of UCH
It can be stated that the LOSC does not deal with the controversial issue of ownership of UCH. The only explicit reference to ownership of UCH under the LOSC is Article 303(3) which, in the context of the protection of objects of an archaeological and historical nature found at sea, provides that the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges remain intact. This means that in the exercise of their duty, under paragraph (1), to protect and cooperate in protection of UCH and their right to enforce under paragraph (2), some domestic laws in the contiguous zone if UCH is removed from that area, States Parties must refrain from interfering in the matters raised in paragraph (3), one of which is the right of identifiable owners (as related to the law of finds).Footnote 94 Dromgoole states that the relationship between paragraph (3) and paragraphs (1) and (2) means that “in circumstances where [paragraphs (1) and (2)] apply, the question of ownership rights will be one that has to be determined by the applicable domestic law.Footnote 95 She, however, agrees that paragraph (3) is not sufficiently clear:
The precise effect of [paragraph 3] is hard to fathom. Certainly, it is not an attempt to exclude or abolish the rights of identifiable owners; equally, it does not provide that states must recognize ownership rights, or give them priority over heritage protection objectives, when they implement the provisions to which this paragraph applies.Footnote 96
Scovazzi laments that the worst among the “few weak, dubious and even bad” provisions of the LOSC is Article 303(3)Footnote 97 in the sense, in part, that “[i]f there is a conflict between the general objective to protect the underwater cultural heritage (Art. 303(1)), on the one hand, and the provisions of salvage law and other rules of admiralty [under Art. 303(3)], on the other, the latter prevail.”Footnote 98
The broad exception that issues such as the right of identifiable owners and the law of salvage enjoy under Article 303(3) is, however, subject to the exception in Article 303(4), which allows for the making of “other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.” This provision has been understood to include “treaties that are concluded subsequent to, as well as antecedent to, the LOSC” and, therefore, “Article 303(3) has no effect on the freedom of the negotiators of a subject specific treaty on UCH to deal with ownership rights in whatever way they see fit.”Footnote 99
Ownership v. Jurisdiction Under the LOSC
The discussions above regarding ownership show that whether UCH is owned – for instance, in the case of sunken vessels – by private individuals or the State, the LOSC does not interfere in ascertaining, establishing, denying, or expropriating such ownership. Ownership of UCH must, as Forrest cautions (at least in the context of sunken State vessels), be distinguished from jurisdiction (that is, the ability of a State to control activities in its territory or over its nationalsFootnote 100) over UCH.Footnote 101 The case of shipwrecks, where in the context of UCH the question of ownership has mainly arisen,Footnote 102 best explains the relationship and distinction between ownership of and jurisdiction on UCH. A property’s sinking to the bottom of the sea (anywhere in the maritime zones), even centuries ago, does not mean that the owner loses ownership of the property-turned-UCH. Only lawful expropriation under domestic law or express abandonment by the owner would transfer ownership to a new owner (the State or otherwise).Footnote 103 Coastal or other linked States, however, maintain, depending on the maritime zone in which the UCH is found, the power (that is, jurisdiction) to regulate such UCH. In the context of State vessels, which also customarily enjoy immunity, Forrest explains that if such vessels are found sunk in the territorial waters of a coastal State, the ownership of the vessels continues to stay with the flag State while it continues to be argued whether the coastal State, without enforcing its laws on such vessels (if they continue to have immunity), has the jurisdictional right to regulate activities conducted in relation to that vessel.Footnote 104 The best way to reconcile the inherent rights of coastal State jurisdiction with flag State ownership (and immunity) and thereby efficiently protect the State vessels is, as Forrest correctly suggests, “through cooperation between the coastal state and the flag states.”Footnote 105 The further the State vessel is found sunk in the sea, the more diminished the jurisdiction of the coastal State will naturally be, while the ownership of the flag State remains constant.Footnote 106
The LOSC on Sunken State Vessels and Their Immunity
Due mainly to the principle of immunity attached to them, the case of warships and State vessels operated for non-commercial purposes is a politically sensitive subject, especially if they are found sunk in the seas.Footnote 107 The LOSC has some provisions that intend to preserve the special status of warships and such other State vessels. Under Article 30, any such ship or vessel which does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregard any request for compliance therewith which is made to it, may be required by the coastal State to leave the territorial sea immediately. Article 31 makes the flag State internationally responsible for any loss or damage to the coastal State resulting from non-compliance by these vessels concerning their passage through the territorial sea. Article 32 provides that outside of the exceptions under Articles 30 and 31, nothing in the LOSC affects the immunities of warships and other government ships operated for non-commercial purposes. Moreover, Articles 95 and 96 respectively provide that warships and ships owned or operated by a State and used only on government non-commercial service shall have complete immunity from the jurisdiction of any State other than the flag State while on the high seas. Similar to the LOSC’s provisions, Article 5 of the 1989 London Salvage Convention declares that: “this Convention shall not apply to warships or other non-commercial vessels owned or operated by a state and entitled, at the time of salvage operations, to sovereign immunity under general principles of international law unless that state decides otherwise.”
According to Migliorino, immunity means that vessels “are not to be stopped, detained, seized or in any way subject to aggressive action by a foreign ship.”Footnote 108 There are three questions that are linked to the treatment of the immunity of State vessels under the LOSC and other relevant fields of international law. The first question is whether sovereign immunity should apply to State vessels equally in the territorial waters and other maritime zones.Footnote 109 The second, more controversial, question is whether the principle of sovereign immunity continues to apply to State vessels after they have sunk; commentators have differences on this subject.Footnote 110 The third practical question is whether the immunity of sunken State vessels expires with the passing of time. It has been asked whether customary and conventional international law recognize immunity to State vessels that have sunk more than 100 years ago.Footnote 111 Looking at the provisions of the LOSC leads to the conclusion that whether in the context of treating such sunken State vessels as UCH otherwise, the LOSC does not provide adequate responses to these questions in relation to such vessels. A more satisfactory response (in the context of treating such vessels as UCH) that takes into consideration the different maritime zones wherein these vessels are located would later be provided under the CPUCH.
UCH and Sunken State Vessels under the CPUCH
The Evolution of the CPUCH in Brief
As mentioned above, UCH was barely regulated under the LOSC which had its focus on other matters of the ocean.Footnote 112 It would take a separate initiative that culminated in the adoption, under the auspices of UNESCO, of the CPUCH.
The CPUCH is the result of initiatives launched outside of UNESCO. The earliest of these was the initiative by the Parliamentary Assembly of the Council of Europe, which, frustrated by the slow progress of the third United Nations Conference on the Law of the Sea and the low attention given to UCH in that conference,Footnote 113 authorized, in 1977, the establishment of a committee to make recommendations on how to generally protect European UCH and particularly prevent shipwrecks from illicit exploration. The committee produced a report (called the Ruper Report) on archaeological and legal aspects and incorporated a formal recommendation entitled “Recommendation 848 on the Underwater Cultural Heritage.” The process led to the preparation in March 1985 of a draft European Convention on the Protection of the Underwater Cultural Heritage. Turkey’s objections (mainly directed at GreeceFootnote 114) to the provisions relating to the territorial scope of the Convention meant that the draft was never adopted.Footnote 115 The Council of Europe continued to work on the pan-European protection of UCH and produced the 1992 European Convention on the Protection of the Archaeological Heritage (Revised) (also known as the Valletta Convention), which updated an earlier convention of 1969 that barely regulated UCH.Footnote 116 The draft treaty of 1985 and the Valletta Convention were used as the key inspiration for the International Law Association (ILA), which took its separate initiative for the international regulation of UCH.Footnote 117
In 1988, the ILA, using the window opened under Article 303(4) of the LOSC, began working on the preparation of a draft convention on UCH. I also approached the International Council on Monuments and Sites to also assist in the preparation of a set of archaeological principles and standards to be attached to the draft. Three draft conventions were prepared in 1990, 1992, and 1994, the last one of which was adopted at the ILA’s 66th Conference in Buenos Aires and submitted to UNESCO for consideration.Footnote 118 The final ILA draft became the “blueprint for the development of” the CPUCH.Footnote 119 Challenging issues during the preparation of the ILA draft included: (i) whether the treaty should apply to all UCH (particularly sunken State vessels) or only to UCHs abandoned by their owners, (ii) whether the jurisdiction of the coastal State in preserving UCH should be extended up to 200 miles from the base line (that is, the need to establish a “cultural heritage zone”), and (iii) whether traditional salvage law and law of finds (allowed to continue to be in force under Article 303(3) of the LOSC) should be allowed to apply to UCH falling under the treaty.Footnote 120 These issues continued to be the most controversial matters during the deliberations that led to the adoption of the CPUCH.Footnote 121
Content of the CPUCH in Brief
The CPUCH contains 35 articles and an annex that has 36 Rules. The treaty, which Dromgoole states is a “substantial and technically complex treaty,” was prepared with the aim of ensuring and strengthening the protection of UCH (Article 2(1)) with the overall objective of the preservation of UCH for the benefit of humanity (Article 2(3)). The cornerstone for the implementation of the treaty is cooperation between States, other organizations, and interested parties (Article 2(2) and Preambular clause 10). By ensuring the protection of UCH as such, the treaty intends to “control treasure-hunting activities in international waters”Footnote 122 by, inter alia, banning the commercialization of UCH (Article 2(7)).Footnote 123 The CPUCH intends to work in tandem with the LOSC “by ensuring and strengthening the international protection of UCH” through “increasing awareness amongst the international community,” linking the protection of UCH to that of heritage found on land, and emphasizing their cultural value over their economic value.Footnote 124
Article 1(1) of the CPUCH defines UCH 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…” and includes vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context. The Convention intends not to prejudice the rights, jurisdiction, and duties of States under international law, including the LOSC, and must be interpreted and applied in the context of and in a manner consistent with them (Article 3).Footnote 125 The Convention mainly focuses on activities directed at UCH, in contrast to activities incidentally affecting UCH (both defined respectively under Article 1(6) and (7)). As far as the protection of UCH is concerned, the Convention prefers in situ preservation as the first option before allowing or engaging any activities directed at this heritage (Article 2(5)).Footnote 126 In addition to the elaborate rules of maritime zone-based UCH protection listed in Articles 7–12 (see below), Articles 14 and 16 also allow port state and nationality powers to authorize States Parties to respectively “prevent the entry into their territory, the dealing in, or the possession of, [UCH] illicitly exported, and/or recovered, where recovery was contrary to the Convention” and “ensure that their nationals and vessels flying their flag do not engage in any activity directed at [UCH] in a manner not in conformity with this Convention.”
The CPUCH on the Thorny Issue of Jurisdiction
Regarding the issue of jurisdiction, the Convention intends to carefully balance the powers of coastal States with the interests of those States which, for reasons including ownership or different levels of link with the UCH, are interested in activities affecting a particular UCH. To achieve this objective, the jurisdiction of coastal States is, without interfering with the ownership of UCH found wherever, progressively diminished as the location of the UCH moves further from internal waters, archipelagic waters, and territorial sea towards the Area (Articles 7–12).Footnote 127
Within their internal waters, archipelagic waters and territorial sea, States Parties have, in the exercise of their sovereignty, the exclusive right to regulate and authorize activities directed at UCH (Article 7(1)) and shall require that the annexed Rules be applied to activities directed at UCH in these areas (Article 7(2).
Regarding UCH in the contiguous zone, the Convention states that, in addition to the provisions of Article 303(2) of the LOSC, States Parties may regulate and authorize activities directed at UCH and shall require that the Rules be applied.
Regarding UCH in the EEZ and on the continental shelf, it was stated earlier that this area was essentially left as a vacuum under the LOSC. Thus, as Rau correctly mentioned, the issue of the protection of UCH in the EEZ and on the continental shelf was a very difficult and controversial subject during the negotiations for the CPUCH,Footnote 128 and the drafters had to come up with a complicated system to respond to the various issues raised in this regard.Footnote 129 The protection of UCH in the EEZ and on the continental shelf is essentially based on the cooperation between the State on whose EEZ and the continental shelf the UCH is located (called the Coordinating State); the State whose national, or a vessel flying its flag, discovers or intends to engage in activities directed at UCH; and States which intend to be consulted on the process because of a verifiable link,Footnote 130 especially a cultural, historical, or archaeological link that they have with the UCH (Articles 9–10). At all times, the State in whose EEZ or continental shelf the UCH is located has the right to prohibit or authorize any activity directed at such heritage to prevent interference with its sovereign rights or jurisdiction as provided for by international law, including the LOSC (Article 19(2)).
Regarding UCH in the Area, the purpose is to further implement Article 149 of the LOSC. Accordingly, when a national or a vessel flying the flag of a State Party discovers or intends to engage in activities directed at UCH located in the Area, that State Party shall require its national, or the master of the vessel, to report such discovery or activity to it (Article 11(1)). States Parties shall notify the Director-General and the Secretary-General of the International Seabed Authority of such discoveries or activities reported to them (Article 11(3)). State Parties with a verifiable link to the UCH in the Area may also request the Director-General and the Secretary-General to be consulted on how to ensure the effective protection of that UCH (Article 11(3)). The Director-General then assembles all interested States Parties and the International Seabed Authority to coordinate their efforts in protecting the UCH in the Area and to select a Coordinating State. In the process, the Coordinating State shall act for the benefit of humanity as a whole, on behalf of all States Parties (Article 12(1)-(5)). Particular regard shall be paid to the preferential rights of States of cultural, historical or archaeological origin in respect of the underwater cultural heritage concerned (Article 12(6)).
The CPUCH on Ownership of UCH
The CPUCH does not contain provisions on private or public ownership rights of UCH.Footnote 131 Strati explains that the reason for this could be the fact that the CPUCH “does not deal with the question of title, as it is directed at interference with cultural heritage and the quality of the work done in relation to that heritage.”Footnote 132 Dromgoole reflects on this approach in the following words:
In light of the difficulties in trying to deal with the matter ‘head-on,’ the UNESCO Convention makes no reference to ownership at all. In the absence of any guidance from the treaty, the assumption must be that ownership rights will continue to exist in material falling within the scope of the Convention unless the applicable domestic law provides otherwise. Leaving ownership as a matter to be determined by national laws was the pragmatic way forward. Not only did it facilitate the inclusion of warships within the scope of the Convention, but also the negotiation process as a whole. The approach means that national heritage authorities and, ultimately, national courts will have to deal with any ownership claims that might arise with respect to material falling within the definition of the Convention.Footnote 133
The CPUCH on the Law of Salvage and the Law of Finds
The recovery of sunken wrecks in the oceans has traditionally been regulated under national and international salvage law; however, the subject “has long been a contentious issue” because salvage activities are believed to run contrary to the preservation (especially in situ preservation) of sunken wrecks.Footnote 134 Forrest notes that the fact that “salvage law is at odds with the preservation of historic wreck, was generally accepted during negotiations [of drafting the CPUCH].”Footnote 135 Moreover, salvage is intimately related to the “controversial issue of ownership of historic wrecks.”Footnote 136 As mentioned above, the broad exception granted to the laws of salvage and finds under Article 303(3) of the LOSC could legitimately be overridden under Article 303(4) by making other international agreements regarding UCH. Thus, drafters of the CPUCH found the freedom to regulate the laws of salvage and finds in a manner that primarily preserves UCH but also gives room for regulated activities under these two widely practiced laws. Article 4 of the CPUCH, therefore, provides that any activity relating to UCH to which the Convention applies Footnote 137 “shall not be subject to the law of salvage or law of finds, unless it: (a) is authorized by the competent authorities, and (b) is in full conformity with this Convention, and (c) ensures that any recovery of the underwater cultural heritage achieves its maximum protection.”Footnote 138 O’Keefe mentions that such authorization would have to be given by the competent authorities mentioned in Articles 7, 8, 10, and 12 of the Convention, and the salvage activity must also comply with the guidelines contained in the Annex. He states that “What article 4 does in requiring application of the three preconditions is to strip away the possibility of making a profit from the salvage.”Footnote 139
The CPUCH on Sunken State Vessels and Their Immunity
The final issue under the CPUCH to be discussed for purposes of this article is the way sunkenFootnote 140 State vessels and their immunity have been handled.Footnote 141 As Dromgoole observes, “a significant proportion of UCH comprises sunken warships and other government-owned (or operated) vessels and aircraft that were engaged in war, or other public service, at the time of loss.”Footnote 142 By its very nature, interfering with these vessels is a “matter of great political sensitivity”Footnote 143 and was, therefore, a “hotly debated issue”Footnote 144 during the drafting of the CPUCH. O’Keefe explains the reason behind such sensitivity as follows:
[State vessels] are closely related to the sovereignty of the State. They are in effect part of the State, and so any action to interfere with them is an interference with the State itself. There are other reasons which may apply to particular vessels. The possibility that human remains may be found is significant. The State will want to ensure that they are properly treated; in the words of the Convention itself, that they are treated with ‘proper respect’. There may be papers on board that could be embarrassing to the State if they still survive having been sealed in special containers.Footnote 145
That State vessels whose ownership has not been expressly abandoned by the flag StateFootnote 146 or have not been captured or surrendered during war enjoy immunity is an established principle. Regarding State vessels, three questions were raised in the section on LOSC: (i) should sovereign immunity apply to State vessels in the territorial waters and other maritime zones equally? (b) should the principle of sovereign immunity continue to apply to State vessels after they have sunk? and (c) should the immunity of sunken State vessels expire with the passing of time? Given its focus, the LOSC did not answer these questions adequately.Footnote 147 The CPUCH had to address these questions because allowing States other than the flag State (particularly coastal States) to participate in different capacities in preserving all UCH would mean that there would be a probability for interfering with the sunken State vessels, which are sheltered from any contact by the immunity they enjoy under international law. The CPUCH had to, therefore, carefully balance these interests by making use of the tested solution of granting more powers to the coastal State as the location of the sunken State vessels goes further into the sea. It needs to be remembered that this balanced, maritime, zone-based treatment of sunken State vessels applies only to those vessels that sank more than 100 years ago; if they sank less than 100 years ago, there will be no interference on them.Footnote 148 Moreover, it needs to be noted that the special rules applicable under CPUCH to sunken State vessels are additional to the protection rules mentioned above that vary according to the maritime zone where the UCH is located (Articles 7–12 of the CPUCH).
Accordingly, within internal waters, coastal States continue to enjoy, without any interference from the flag State of the sunken vessels, the exclusive right to regulate and authorize activities directed at such vessels (Article 7(1)). Within archipelagic waters or the territorial sea, the coastal State should inform the flag State party of State vessels discovered in its internal waters before regulating and authorizing activities directed at the protection of such vessels (Article 7(3)). In the EEZ or on the continental shelf, activities directed at protecting sunken State vessels shall not be conducted without the agreement of the flag State (Article 10(7)). In the Area, no activity concerning the protection of sunken State vehicles shall be carried out without the consent of the flag State (Article 12(7)).
By the employment of such arrangements in the different maritime zones, the CPUCH ensures the rule in Article 2(8) that “[c]onsistent with State practice and international law, including the [LOSC], nothing in this Convention shall be interpreted as modifying the rules of international law and State practice pertaining to sovereign immunities, nor any State’s rights with respect to its State vessels and aircraft.”
Treatment of UCH and Sunken (State) Vessels by African States
Conducting a comparative analysis of the legislative experiences of different countries in protecting UCH and examining them from the international perspective is not a new exercise in the field of international cultural heritage law.Footnote 149 This section discusses 23 lawsFootnote 150 from 22 African StatesFootnote 151 to examine general trends in the preservation, territorial scope of application, as well as ownership of shipwrecks in their maritime zones in light of the LOSC and CPUCH, particularly the latter. The States were selected on the basis of: (i) their representation of the varying geographies of the continent, (ii) their adjacency to the different waterbodies circling the continent, (iii) their status as islands, land-locked or coastal, (iv) their varying status of membership in the LOSC and CPUCH, and the varying years when their respective heritage laws were issued (from the 1960s to the 2010s). They are: Algeria, Angola, Cameroon, Chad, Comoros, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mali, Mauritius, Niger, Nigeria, Senegal, Seychelles, South Africa, Tunisia, Uganda, and Zambia. The African Union Model Law on the Protection of Cultural Property and Heritage (AU Model Law) will also be referred to. For purpose of easiness, a tabulated presentation of the following has been prepared indicating: (i) LOSC membership of the States, (ii) CPUCH membership of the States, (iii) name and date of the relevant heritage laws, (iv) what the laws state about ownership of heritage, (v) the territorial scope of the law (jurisdiction), and (vi) whether there is a separate regulation of sunken vessels or whether sunken vessels are included in the definition of heritage in those laws (see Table 1).
Tabulated presentation of the regulation of shipwrecks under the heritage laws of select African States and the African Union Model Law on the Protection of Cultural Property and Heritage
General Overview
Four of these laws were issued in the 1960s, three in the 1970s, five in the 1980s, seven in the 1990s, three in the 2000s, and one in the 2010s. Eight of the 23 laws were issued before the adoption of the LOSC in 1982, and 20 of them were issued before the adoption of the CPUCH in 2001.
Except for Libya, Eritrea, and Ethiopia, all of the selected States are States Parties to the LOSC. Ten of them (Algeria, Egypt, Libya, Madagascar, Malawi, Mali, Nigeria, Senegal, South Africa, and Tunisia) are States Parties to the CPUCH – as of 1 March 2025, 23 of the 78 States Parties to the CPUCH, that is nearly 30 percent, are African StatesFootnote 152 – and issued their laws before the adoption of the CPUCH.
Specific Regulation of Sunken Vessels
UCH generally; sunken vessels, particularly; and sunken State vessels, more particularly are barely recognized or regulated under the selected African laws. Search of these and other African heritage laws produced no result of a law specifically proclaimed for the protection of UCH or, obviously, for sunken (State) vessels.
As far as the inclusion of sunken vessels in the definition of heritage objects is concerned, the attention of most of the laws appears to be more on objects located in or under land territories. It is only through a broad reading of the definitions of heritage (named as monuments, antiquities, sites, cultural property, etc.) that one can incorporate sunken vessels or wrecks in the scope of most of these laws. Only the laws of Kenya, Madagascar, South Africa, Tunisia, and Zambia clearly include wrecks or sunken vessels in their definitions of heritage objects.
As far as the dedication of separate chapters for the regulation of wrecks or sunken vessels within the heritage laws is concerned, only the laws of Madagascar and Tunisia have separate chapters dedicated specifically to wrecks (Madagascar) or UCH in general (Tunisia). However, these separate chapters are far less comprehensive to correspond to the requirements of UCH protection under the CPUCH. It is common knowledge that Madagascar and Tunisia (which have laws with provisions specific to UCH) and the other eight CPUCH States Parties (which are yet to have such specific UCH provisions in their laws) have the obligation to reflect provisions of the CPUCH in their domestic laws.
Ownership of UCH
It has already been mentioned above that neither the LOSC nor the CPUCH dwell on the issue of ownership of UCH. Ownership of UCH is determined by the domestic laws of the relevant States under their choice of law rules.Footnote 153 It has also been underlined that ownership of UCH is different from and must be distinguished from the jurisdiction of UCH in whichever maritime zone the UCH is located. However, the declaration of state ownership by domestic law of UCH does not necessarily mean that it will not have an effect on some provisions of the LOSC and the CPUCH. This is particularly true in cases where domestic law declares that heritage objects (including UCH) belong to the State and the definition of UCH includes sunken State vessels. The recognition under the LOSC and the CPUCH of the continued immunity of these State vessels implies that their ownership is still retained by the flag States because no State can claim immunity on a sunken vessel unless it can show that the vessel is ownedFootnote 154 by it. That is why, as mentioned above, the best way to reconcile the interests of the coastal State and the flag State ownership is to have cooperation between them.Footnote 155
Seventeen of the 23 African laws studied for this article recognize the continuation of the ownership of heritage objects by persons (private or public) other than the State that issued the heritage law. The remaining six laws of Eritrea, Ethiopia, Kenya, Madagascar, Malawi, and Tunisia (all of which expressly or by interpretation include UCH in the scope of the heritage objects they protect) provide that heritage objects belong to (are owned by) the State. Among these, the laws of Eritrea, Malawi, and Tunisia declare that, by default, all heritage objects belong to the State while leaving some room for the continuity of private ownership under some conditions. The laws of Ethiopia, Kenya, and Madagascar leave no such space for private or other ownership. Thus, the implementation of the laws of the two coastal States among these (Kenya and Madagascar) may collide with the continued enjoyment of ownership (and immunity) of historic foreign State vessels found in their maritime waters, which they have by law declared to belong to them or their governments.
Jurisdiction on UCH
As discussed above, the CPUCH provides an elaborate set of rules on the role of coastal and other relevant States in the protection of UCH (generally) and sunken State vessels (specifically) in different maritime zones. The roles of all of these States are carefully balanced as more (or less) power is given to each such State depending on the particular maritime zone where the UCH or sunken State vessels are found. Thus, it is expected for coastal States, particularly those which are state parties to the CPUCH, to make sure that their heritage laws (if they apply to UCH) consider the jurisdictional limit given to them in each maritime zone where their heritage laws apply.
The laws of 12 of the 23 States studied (Algeria, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, South Africa, Tunisia, and Zambia) expressly or by a broader interpretation of the relevant provisions state that the area of their application extends up to the territorial water, the contiguous zone or the EEZ. The other 11 laws do not contain provisions that indicate their territorial scope. Of the 12 laws, the law of Tunisia extends its application up to the contiguous zone, while the law of Madagascar extends its application up to the EEZ. A reading of these two laws shows that the protection of UCH in these maritime zones is left essentially to the State and the institutions it has established to implement the law. There are no provisions referring to the cooperative protection of UCH found in their maritime zones. Madagascar’s law (Chapter 8) recognizes and respects the immunity of foreign warships and State vessels used exclusively for a non-commercial public service; however, it is not clear whether such recognition is extended to sunken foreign State vessels found in the waters of Madagascar.
The AU Model Law
As its name indicates the AU Model lawFootnote 156 is not a binding instrument on African States, but is intended to assist African States in preparing or updating laws pertaining to the protection of cultural property and heritage. It was prepared between 2015 and 2018 and has 44 articles. It contains provisions touching upon the three criteria used above in assessing the selected African laws (specific regulation of sunken vessels, ownership, and jurisdiction).
The Preamble places Africa’s past (the colonial experience and the systematic transferring and illicit trafficking during the colonial era) and future (as reflected in such documents as the Charter for African Cultural Renaissance and the African Union Agenda 2063) in the context of securing sustainable development and in due consideration of the obligations of African States under international legal instruments (such as the CPUCH) as they “devise ways and means for the full protection and preservation of cultural property and heritage.” Article 2 defines cultural property and heritage as:
movable and immovable cultural property including any object, as well as any monument, group of buildings, site or structure of any other kind, whether situated on land or underwater or removed thereof, which is on religious or secular grounds, classified or defined as archaeology, prehistory, ethnology, history, literature, art or science and whatever is considered as monument and/or cultural heritage by national laws. (Emphasis added.)
The model law then identifies the different forms of violations that are committed against cultural property and heritage, such as trafficking and illicit transactions, theft and international or negligent damage, and destruction or disfiguration (Article 5). It also extensively provides for the establishment of, and activities to be carried out by, the national entities entrusted with implementing the national law on cultural property and heritage (Articles 6–12). Under Article 18, the AU Model Law declares that “[o]wnership of cultural property and heritage shall be vested in the State or any authorized person) (para. 1), that “[a]ll undiscovered cultural property and heritage are owned by the State” (para. 2), and that “[a]ny person who finds or discovers an unregistered cultural property and heritage shall promptly report to the National Body (para. 3).” It provides that the State may, in the interest of the public, expropriate, upon payment of fair and adequate compensation, cultural property and heritage from any person (Articles 19 and 26). It also contains other provisions relating, inter alia, to education, research, and training (Article 24); restitution (Article 27); heritage impact assessment (Article 30); international cooperation (Article 38); and dispute settlement (Article 40).
Article 21 specifically applies to underwater cultural property and heritage. Para. (1) states that such objects “found in the internal waters, archipelagic waters and territorial sea as well as in the contiguous and exclusive economic zones shall be preserved by the State as its cultural property and heritage.” Para. (2) provides that “[u]pon registration, the National Body may maintain confidential the name or exact location of underwater cultural property and heritage sites, including historical shipwrecks where appropriate in situ protection and monitoring cannot be guaranteed.” Since one of the purposes of the AU Model law is to make sure that not only the CPUCH but also the other relevant cultural heritage treaties are properly reflected in the national heritage laws, it cannot be expected to go further than Article 21 and the other generally applicable provisions in it in reflecting the essence of CPUCH.
Conclusions
The African Union’s theme for 2025 is “Justice for Africans and People of African Descent Through Reparations” as part of the movement in the Global South for a reckoning and payment of fitting compensation for the unimaginable damage caused by the experience of colonialism. According to the African Union, “[t]his initiative underscores the AU’s commitment to addressing historical injustices, including the trans-Atlantic slave trade, colonialism, apartheid, and genocide. It builds on decades of advocacy and collaboration, aiming to foster unity and establish mechanisms for reparatory justice on a global scale.”Footnote 157 This process needs to include preserving the legacies and physical traces of that dark experience for the future generations of the world. Part of that history is contained in the thousands of shipwrecks lying off the shores surrounding the continent. These wrecks are custodians not only of colonial history or the darker experience of slave trade but also of many other positive experiences such as the history of navigation to and from the continent, early civilization (some dating back to the seventh century AD) in the continent, and active trade, and thereby assist Africa occupy in its appropriate historical space.
African States have made their intent known to engage in this endeavour partly by enacting heritage laws beginning from the 1960s and becoming States Parties to a number of key international treaties, such as the LOSC and the various UNESCO treaties dwelling on the preservation of cultural and natural heritage. Thirty-six African States have registered 108 (that is 8.83 percent of the total 1,223) UNESCO World Heritage Sites.Footnote 158 However, African States have been more active in preserving land-based heritage resources than UCH, although it needs to be mentioned that the global focus on preserving UCH is itself a latecomer in the regime of international cultural heritage law. But, still, this article has shown that African States are lagging behind in giving proper space to UCH, and more so the thousands of shipwrecks in African coastal waters in their heritage laws. More legislative initiative and fitting implementation needs to be shown to be faithful at least to the commitment made by African States to the relevant UNESCO treaties, including the CPUCH, as well as other continental pledges such as the Charter for the African Cultural Renaissance to preserve land- and sea-based heritage resources.
Specific to the issue of how African laws have hitherto handled the preservation of UCH generally and sunken (State) vessels specifically, the image is not encouraging. Most of the laws studied for this article show that UCH/sunken (State) vessels do not even clearly make it to the definition of heritage objects targeted by these laws. The very few laws that include UCH or shipwrecks in their scope (expressly or by broad interpretation of the relevant provisions of these laws) contain only general provisions on registering the heritage objects and protecting them from harm. None of the laws engage in the forefront and the complex issues involved in the regime of UCH discussed above.
The primary cause of this state of affairs is arguably technological and other resource (human, institutional, and financial) limitations prevalent in nearly all matters affecting African development. Another key cause could be the fact that a large majority of these laws were issued years and decades before the adoption of the CPUCH and have not been comprehensively amended to reflect the international legal regime for protecting UCH. Another possible cause is the dearth of disputes or other interactions (such as salvage) of UCH/sunken (State) vessels off the African coast that could trigger interest in regulating African UCH/sunken (State) vessels. As such, African UCH remains undisturbed, and no discernible attention has been given to it and this may have contributed to the scantiness of African heritage laws in protecting UCH. A fourth cause, although not as strong as the three already mentioned, could, looking at it from the perspective of the CPUCH, be the fact that most of the shipwrecks in African coasts sunk no earlier than the CPUCH minimum of 100 years and may not have reached the time when they will demand an international protective attention. A Wikipedia list of nearly 110 African shipwrecks, for instance, shows that the large majority of them sank during the Second World War (1940–45, and more particularly in 1942 during the peak of the war) in the Algerian, Libyan, and Moroccan coasts in the Mediterranean Sea in the 2000s.Footnote 159
The Way Forward
The broader picture to look at in the context of the preservation of UCH generally and sunken (State) vessels particularly is the African Renaissance initiative and the rising African demand for righting historical wrongs committed in and against Africa as well as the global initiatives to preserve cultural heritage for the benefit of present and future generations. To remedy the shortcomings observed in African laws in the regime of preserving UCH/sunken (State) vessels, three measures that can be taken at three levels are recommended below.
The first intervention is what can be done minimally at the national level. As already mentioned, African heritage laws, mostly issued decades before the adoption of the CPUCH, need to be amended to comprehensively incorporate the CPUCH regime of UCH protection. However, since UCH is a separate heritage resource that brings its own complexities, the more advisable recommendation is for African States – at least the 23 (nearly half of the African States) which are State Parties to the CPUCH – to come up with laws separately regulating UCH wherein specific provisions are inserted to regulate the sensitive issue of sunken foreign (State) vessels.
The second intervention is what can be done bilaterally regarding sunken (State) vessels. Article 6(1) of the CPUCH encourages State Parties to enter into “bilateral, regional or other multilateral agreements or develop existing agreements, for the preservation of UCH.” Dromgoole states that “[t]he majority of [UCH-related] agreements are of a bilateral nature and relate to the sunken warship(s) of one state located in the territorial sea of another state.”Footnote 160 Garabello adds, although writing in the context of the years before the adoption of the CPUCH or its non-application, that:
… State practice … is interesting in that it shows that bilateral arrangements are the most suitable solution for settling potential disputes surrounding military wrecks, both historic and recent. They are indeed a very flexible means of solving delicate issues such as ownership, management, sharing of treasures, destiny of human bodies, etc. The lack of rules of international law (customary or conventional) concerning sunken warships – at least until the UNESCO Convention – makes the need for practical arrangements quite stringent and the bilateral solution for the right answer.Footnote 161
At least as far as the State vessels off the African coast that sank during the Second World War are concerned, in less than two decades, their time for protection under the CPUCH will mature. Preparations need to be made for their protection through bilateral, trilateral, or plurilateral agreements, as the case may be. The contribution of bilateral agreements, since the late 1970s, in the historical development of the international UCH regime is well recorded. Lessons can be learned from prominent examples from all over the world.Footnote 162
The third intervention can occur at a continental level. The presence of the CPUCH and accession to it by many African States makes the need for developing a pan-African UCH treaty redundant. The UCH provisions of the AU Model Law can, however, be adapted by African States as they develop or modify their laws on heritage in general or UCH in particular. The AU Model Law may also be reviewed to expand its provisions on UCH or, since UCH demands separate attention, a new AU Model Law on UCH may be developed to inspire the development or making of domestic UCH laws in Africa.
With these and other crucial interventions, such as the furthering of technical assistance from the developed world and concerned international organizations in identifying, researching and preserving Africa’s rich UCH/shipwreck resource, Africa’s serious initiative to mend its historical wound and have a promising cultural future through, in part, the African Renaissance can be better served.
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