The UNESCO draft convention on underwater cultural heritage: A critique and counter-proposal

Journal of Maritime Law and Commerce

Volumn 30, Issue 2, 1999, Pages 331-353

  Bederman, David J ^a  

^a NONE

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EID: 0033462541     PISSN: 00222410     EISSN: None     Source Type: Journal    
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References (130)

1. UNESCO Doc. CLT-96/CONF.202/5 (Apr. 1998).
2. See Bederman, Historic Salvage and the Law of the Sea, 29 U. Miami Inter-Am. L. Rev. (1998) (forthcoming).
3. For the purposes of the discussion here, the referenced version of the ILA Draft is the one that appears in O'Keefe & Nafziger, The Draft Convention on Underwater Cultural Heritage, 25 Ocean Dev. & Int'l L. 391 (1994). See also 20 Marine Pol'y 304 (1996).
4. For the purposes of the discussion here, the referenced version of the ILA Draft is the one that appears in O'Keefe & Nafziger, The Draft Convention on Underwater Cultural Heritage, 25 Ocean Dev. & Int'l L. 391 (1994). See also 20 Marine Pol'y 304 (1996).
5. See UNESCO Doc. 146 EX/27, at 8-9 (23 Mar. 1995).
6. UNESCO Doc. 29 C/83, at 15 (¶ 18(c)) (29 C/COM. IV/2) (item 6.3) (Nov. 12, 1997).
7. UNESCO Draft, art. 1, para. 1.
8. Id. art. 1, para. 1(a).
9. Id. art. 1, para. 1(b).
10. See O'Keefe & Nafziger, supra note 3, at 406 (glossing identical text of the ILA Draft).
11. Id.
12. An alternative, as presented in the Counter-Proposal, see art. 2, para. 2, would be to require that the underwater cultural heritage or historic shipwreck have "unique and outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view."
13. As referenced in the Abandoned Shipwreck Act, 43 U.S.C. §§ 2102(b), 2105(a) (3). See also National Historic Preservation Act, 16 U.S.C. § 470a.
14. But see UNESCO Doc. 146 EX/27, at 8, ¶ 42 (Mar. 23, 1995) (doubting whether the 1972 UNESCO Convention on the Protection of the World Cultural and Natural Heritage could be applied to shipwreck sites offshore or the artifacts recovered therefrom).
15. UNESCO Draft, art. 2, para. 1.
16. See id., art. 1, para. 2.
17. 974 F.2d 450, 1992 AMC 2705 (4th Cir. 1992), cert. denied, 507 U.S. 1000 (1993).
18. See Robinson v. Western Australian Museum, 16 A.L.R. 623, 647-48, 654, 663, 671-74 (1977) (Austl.) (holding that the original owner of the Gilt Dragon (sunk in 1656) retained title to the vessel).
19. The Akaba, 54 F. 197, 200 (4th Cir. 1893); Wilkie v. Two Hundred and Five Boxes of Sugar, 29 F. Cas. 1247 (D.S.C. 1796) (No. 17,662). See also Simon v. Taylor, [1975] 2 Lloyd's Rep. 338 (Sing. High Ct. 1974) (Federal Republic of Germany held to still be the owner of a U-Boat torpedoed and sunk during World War II).
20. See LOSC, Dec. 10, 1982, art. 303, para. 3, U.N. Doc. A/CONF.62/122 (1982), reprinted in United Nations, The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, U.N. Sales No. E.83.V.5 (1983), 21 I.L.M. 1261 (1982).
21. See CADG, 974 F.2d at 461; Friedman v. United States, 347 F.2d 697, 704 (8th Cir.), cert. denied, 382 U.S. 946 (1965) (abandonment is an ultimate fact or conclusion based upon a combination of act and intent); Morissette v. United States, 187 F.2d 427, 430 (6th Cir. 1951), rev'd on other grounds, 342 U.S. 246 (1952) (same).
22. See CADG, 974 F.2d at 461-65; Zych v. Unidentified, Wrecked and Abandoned Vessel, Believed to be SB Lady Elgin, 755 F. Supp. 213, 214-16 (N.D. Ill. 1990). I should not be seen as suggesting that wrecks of truly "ancient" vintage are never deemed abandoned. The general maritime law's requirement of a currently identifiable owner resolves this concern. Many courts have required an authentic chain-of-title from the original hull or cargo owner to the current salvor-claimant. See Bemis v. RMS Lusitania, 884 F. Supp. 1042, 1995 AMC 1665 (E.D. Va. 1995). aff'd, 99 F.3d 1129 (4th Cir. 1996), cert. denied, 118 S. Ct. 1558 (1998).
23. But see Abandoned Wreck Law (Revised), Cayman Islands, §§ 2, 3, 12 (1977); Historic Shipwrecks Act, Australia, § 4A (1976), both abstracted in O'Keefe & Nafziger, supra note 3, at 395 (for a 50 year time limit).
24. 43 U.S.C. §§ 2101-2106.
25. 43 U.S.C. § 2101(b).
26. See Nunley v. M/V Dauntless Colocotronis, 863 F.2d 1190, 1198, 1993 AMC 1676 (5th Cir. 1989) (valid abandonment occurs through act of "deserting" property); Katsaris v. United States, 684 F.2d 758, 761 (11th Cir. 1982) (abandonment does not occur unless there is a "total desertion" by the owner); Everhart v. State Life Ins. Co., 154 F.2d 347, 356 (6th Cir. 1946) (abandonment is an "absolute relinquishment or renunciation" of a right).
27. See Moyer v. Wrecked and Abandoned Vessel, known as Andrea Doria, 836 F. Supp. 1099, 1994 AMC 1021 (D.N.J. 1993).
28. See CADG, 874 F.2d at 461; Lady Elgin, 755 F. Supp. at 217.
29. 1988 U.S.C.C.A.N. at 366.
30. According to well-established precedent, a cargo insurer which declares a total loss and pays the full policy limits takes title of the property via subrogation. This can be accomplished through a formal tender of abandonment or by simply paying all claims. See Great Western Ins. Co. v. Fogarty, 86 U.S. (19 Wall.) 640 (1873); Patapsco Ins. Co. v. Southgate, 30 U.S. (5 Pet.) 604, 622-23 (1831); CADG, 974 F.2d at 457 ("Under applicable law, then and now, once the underwriters paid the claims made upon them by the owners of the gold, the treasure became theirs."); The Tashmoo, 1937 AMC 1536, 1540 (Arb. 1937) ("an underwriter who has fully reimbursed his assured in respect to a loss is entitled to any salvage that results in respect to such loss. . . ."). Insurers do not lightly declare total losses and pay full policy limits. When they do so, they expect to take title and to acquire the benefits of any subsequent salvage. Marine insurers have led in the recovery of valuable property from shipwrecks, and its return to the stream of commerce, precisely because they have invested in that property when they paid on the loss policies.
31. See O'Keefe & Nafziger, supra note 3, at 406, cmt. 2 (glossing text which the UNESCO Draft expressly relied upon).
32. See UNESCO Draft, art. 1, paras. 2 (a) & (b).
33. UNESCO Draft, art. 2, para. 2.
34. I have previously advocated this position. See Steinmetz v. United States, 973 F.2d 212, 1992 AMC 2879 (3d Cir. 1992), cert. denied, 507 U.S. 984 (1993). I believe the "custom" that sovereigns never abandon their vessels (save by an explicit act) is actually of very recent origin. The United States has admitted that until quite recently it was generally acknowledged that nations could be impliedly divested of title to their sunken warships under the admiralty law of finds. See 1980 Digest of United States Practice in International Law 999, 1003-05 (M. Leich ed.) (Opinion of State Dep't Legal Advisor, Dec. 30, 1980) (collecting authorities). Prior to the 1960's, the decisions of courts in this country clearly evinced the position that a State could impliedly abandon title in its sunken warships. See, e.g., Baltimore, Crisfield & Onancock Line, Inc. v. United States, 140 F.2d 230, 234, 1944 AMC 87 (4th Cir. 1944) (United States battleship sunk as target practice in 1911); State ex rel. Bruton v. Flying "W" Enters., Inc., 160 S.E.2d 482, 1968 AMC 2125 (N.C. 1968) (Confederate blockade runners and other vessels); State by Ervin v. Massachusetts Co., 95 So. 2d 902, 903, 1962 AMC 1061 (Fla. 1956), cert. denied, 355 U.S. 881 (1957) (United States battleship sunk as target practice in 1922, found in 1952); Deklyn v. Davis, 1 Hopk. Ch. 154 (N.Y. 1824) (British frigate sunk in 1781 or 1782, found 30 years later).
35. See Report of the Meeting of Experts for the Protection of Underwater Cultural Heritage, UNESCO Doc. CLT-96/CONF.605/6, at 5-7, ¶¶ 22-26 (May 22-24, 1996) (confirming the need to exclude warships from the provisions of any draft Convention).
36. UNESCO Draft, art. 1, para. 1(b). See also Report of the Meeting of Experts for the Protection of Underwater Cultural Heritage, UNESCO Doc. CLT-96/CONF.605/6, at 4-5, ¶¶ 16-18 (May 22-24, 1996).
37. See California v. Deep Sea Research, Inc., 118 S. Ct. 1464, 1473, 1998 AMC 1521 (1998) (abandonment under the ASA must "conform with its meaning under admiralty law").
38. O'Keefe & Nafziger, supra note 3, at 405.
39. Id. at 409. See also A. Strati, The Protection of Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea 359 (1995).
40. The LOSC provided that the absolute limit of coastal State authority over "archaeological and historical objects found at sea" was 24 nautical miles, the outer limit of the contiguous zone, established under article 33 of the Convention. Article 303, paragraph 2, codifies this understanding: In order to control traffic in such objects [archaeological and historic objects found at sea], the coastal State may, in applying article 33 [on Contiguous Zones], presume that their removal from the sea-bed in the zone referred to in that article without its approval would result in an infringement [of its laws]. LOSC, supra note 19, art. 303, para. 2.
41. See ILA Draft, supra note 3, art. 5, para. 2.
42. See J. Roach & R. Smith, United States Responses to Excessive Maritime Claims 477 (2d ed. 1996) (both authors are attorneys with the State Department, and the volume originally appeared as a publication of the Naval War College's International Law Studies series). See also Zander & Varmer, Closing the Gaps in Domestic and International Law: Achieving Comprehensive Protection of Submerged Resources, 1 Common Ground 60, 68 (Fall/Winter 1996).
43. See J. Roach & R. Smith, United States Responses to Excessive Maritime Claims 477 (2d ed. 1996) (both authors are attorneys with the State Department, and the volume originally appeared as a publication of the Naval War College's International Law Studies series). See also Zander & Varmer, Closing the Gaps in Domestic and International Law: Achieving Comprehensive Protection of Submerged Resources, 1 Common Ground 60, 68 (Fall/Winter 1996).
44. See commentary to UNESCO Draft art. 1 (indicating that Greece, Germany, Italy, the Netherlands, the Republic of Korea, Tunisia, and the United Kingdom opposed the concept of a cultural heritage zone).
45. But cf. Report of the Meeting of Experts for the Protection of Underwater Cultural Heritage, UNESCO Doc. CLT-96/CONF.605/6, at 7-10, ¶¶ 27-39 (May 22-24, 1996) (concluding that "it would be realistic for a future Convention to avoid referring to any new zone under coastal State jurisdiction. . . . It was generally agreed to speak rather of rights and duties of States beyond the territorial waters and of jurisdiction implying potential control but not control itself.") (¶ 39) (emphasis in original).
46. See UNESCO Draft, art. 5, para. 2 ("States Parties may regulate and authorize all activities affecting underwater cultural heritage in the exclusive economic zone and on the continental shelf, in accordance with this Convention and other rules of international law.").
47. See id. art. 5, para. 3 ("In authorizing such activities [occurring within the States' EEZ or continental shelf], States Parties shall require compliance, at a minimum, with the operative provisions of the [ICOMOS] Charter, in particular taking into account the needs of conservation and research, including the need for re-assembly of a dispersed collection, as well as public access, exhibition and education."). The ICOMOS Charter is incorporated into the UNESCO Draft by the terms of article 24.
48. See id. art. 5, para. 5. See also UNESCO Draft arts. 8 (Permits), 10 (Other Sanctions).
49. Id. art. 5, para. 4.
50. It should be noted that when the United States proclaimed its EEZ, it specifically disclaimed any interest in regulating any form of MSR. See Reagan Proclamation on the Establishment of an Exclusive Economic Zone, 48 Fed. Reg. 10,605 (Mar. 10, 1983). In article 3(3) of the counter-proposal discussed later in this article, historic shipwrecks are disallowed as a "natural resource," for which article 246 of the LOSC would permit coastal States to have complete discretion in refusing a permit for MSR.
51. UNESCO Draft, art. 5, commentary ¶ 1. The other "core provision" is article 7, which requires that States regulate the activities of their nationals and vessels so as to ensure compliance with the ICOMOS Charter.
52. Id.
53. LOSC, supra note 19, art. 303, para. 3.
54. UNESCO Doc. 146 EX/27, at 3, ¶ 17 (Mar. 23, 1995). The Feasibility Study concluded that article 303 of the LOSC was, "according to archaeologists and lawyers concerned with the preservation of the underwater cultural heritage, . . . insufficient for the protection of the cultural heritage." Id. at 3, ¶ 14. The explicit reservation, in article 303(3) for the admiralty law governing salvage and finds, was characterized by UNESCO as a "serious problem." Id. ¶ 15.
55. Report of the Meeting of Experts for the Protection of Underwater Cultural Heritage, UNESCO Doc. CLT-96/CONF.605/6, at 11, ¶ 45 (May 22-24, 1996).
56. Id.
57. Id. at 13, ¶ 52.
58. Williams, Underwater Heritage, A Treasure Trove to Protect, UNESCO Sources 7 (Feb. 1997) (No. 87).
59. O'Keefe & Nafziger, supra note 3, at 408.
60. See infra note 72 and accompanying text. See also UNESCO Doc. 146 EX/27, at 6, ¶¶ 29-30 (Mar. 23, 1995) (questioning whether shipwrecks are in marine peril).
61. O'Keefe & Nafziger, supra note 3, at 409 (commentary to art. 4).
62. Id. at 414 (commentary to art. 14).
63. UNESCO Draft, art. 5, para. 3.
64. Id. art. 7, para. 1.
65. ICOMOS Charter, art. 13 (Curation), ¶ 2.
66. Id. art. 3 (Funding), ¶ 2.
67. UNESCO Draft, art. 12, para. 2.
68. See id. commentary ¶ 2 ("Following the omission of article 4 of the ILA draft on the exclusion of salvage law, this paragraph has been drafted to avoid the application of a national law to material brought ashore from outside the national jurisdiction where this would provide monetary incentives to excavate. This seems to be the principal objection to the application of salvage law, and would also cover finder's law in jurisdictions where that may apply.").
69. See id. ("[O]ther provisions of salvage law would need to be examined to ensure they are not inconsistent with the regime established by the Charter.").
70. LOSC, supra note 19, art. 303, para. 3.
71. See New Eng. Mut. Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1 (1871); DeLovio v. Boit, 7 F. Cas. 418, 444, 1997 AMC 550 (No. 3,776) (C.C.D. Mass. 1815) (Story, J.).
72. See 43 U.S.C. § 1314(a) (expressly retaining for the United States "all its . . . powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce [and] navigation. . . .").
73. North Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119 (1919); The George W. Elder, 206 F. 268 (9th Cir. 1913), cert. denied, 232 U.S. 722 (1914).
74. 101 U.S. (11 Otto) 384 (1879). See also Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 337, 1978 AMC 1404 (5th Cir. 1978); Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F. Supp. 540, 557, 1983 AMC 1018 (S.D. Fla. 1982).
75. 631 F. Supp. 308, 310-11, 1987 AMC 537 (S.D. Fla. 1986).
76. Id. at 310. See also Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F. Supp. 186, 208, 1983 AMC 966 (S.D. Fla. 1981).
77. See CADG, 974 F.2d at 468; Deep Sea Research, Inc. v. Brother Jonathan, 883 F. Supp. 1343, 1362, 1995 AMC 1682 (N.D. Cal. 1995), aff'd, 102 F.3d 379, 1997 AMC 315 (9th Cir. 1996), aff'd in part and vacated and remanded in part, 118 S. Ct. 1464, 1998 AMC 1521 (1998).
78. See Moyer, 836 F. Supp. at 1107 (where the court noted that because the ocean liner was of "decidedly modern vintage, [t]here exist extensive photographs, deck plans, models, and other documentation"); Platoro Ltd. v. Unidentified Remains of a Vessel, 518 F. Supp. 816, 822 (W.D. Tex. 1981).
79. The text of the ProSEA Draft is available from the author (lawdjb@law.emory.edu).
80. PmSEA Draft, art. 3, para. 1.
81. One provision of the ProSEA Draft, article 19, clarifies that coastal States are obliged to promptly release any arrested or detained vessels engaged in the exploration or recovery of historic wrecks. Failure to do so would subject the coastal State to proceedings under article 292 of the LOSC before the International Tribunal for the Law of the Sea.
82. Id. art. 2, para. 6.
83. Id. art. 2, para. 12.
84. Id. art. 2, para. 9.
85. Id. art. 2, para. 13.
86. See LOSC, supra note 19, arts. 60, para. 5 & 260.
87. See supra notes 32-33 and accompanying text.
88. That provision requires that a warship (1) bear the external markings of such ships of its nationality, (2) be under the command of an officer duly commissioned by the government of that State and whose name appears on the appropriate service list or its equivalent, and, (3) be manned by a crew under regular armed forces discipline. See LOSC, supra note 19, art. 29.
89. ProSEA Draft, art. 4, para. 1(b).
90. For more on this concept, see Island of Palmas Case (U.S. v. Neth.), 2 Rep. Int'l Arb. Awards 829 (Perm. Ct. Arb. 1928) (Huber, arb.); I. Brownlie, Principles of Public International Law 129-30 (4th ed. 1990).
91. PmSEA Draft, art. 1.
92. International Convention on Salvage, Apr. 28, 1989, IMO Doc. LEG/CONF.7/27 (May 2, 1989), S. Treaty Doc. No. 12, 102d Cong., 1st Sess. (1991). For more background on the 1989 Convention, see Brice, Salvage and the Marine Environment, 70 Tul. L. Rev. 669 (1995); Gaskell, The International Salvage Convention of 1989, 4 Int'l J. Estuarine & Coastal L. 268 (1989); Comment, Protecting the Environment with Salvage Law: Risks, Rewards, and the 1989 Salvage Convention, 65 Wash. L. Rev. 639 (1990).
93. International Convention on Salvage, Apr. 28, 1989, IMO Doc. LEG/CONF.7/27 (May 2, 1989), S. Treaty Doc. No. 12, 102d Cong., 1st Sess. (1991). For more background on the 1989 Convention, see Brice, Salvage and the Marine Environment, 70 Tul. L. Rev. 669 (1995); Gaskell, The International Salvage Convention of 1989, 4 Int'l J. Estuarine & Coastal L. 268 (1989); Comment, Protecting the Environment with Salvage Law: Risks, Rewards, and the 1989 Salvage Convention, 65 Wash. L. Rev. 639 (1990).
94. International Convention on Salvage, Apr. 28, 1989, IMO Doc. LEG/CONF.7/27 (May 2, 1989), S. Treaty Doc. No. 12, 102d Cong., 1st Sess. (1991). For more background on the 1989 Convention, see Brice, Salvage and the Marine Environment, 70 Tul. L. Rev. 669 (1995); Gaskell, The International Salvage Convention of 1989, 4 Int'l J. Estuarine & Coastal L. 268 (1989); Comment, Protecting the Environment with Salvage Law: Risks, Rewards, and the 1989 Salvage Convention, 65 Wash. L. Rev. 639 (1990).
95. International Convention on Salvage, Apr. 28, 1989, IMO Doc. LEG/CONF.7/27 (May 2, 1989), S. Treaty Doc. No. 12, 102d Cong., 1st Sess. (1991). For more background on the 1989 Convention, see Brice, Salvage and the Marine Environment, 70 Tul. L. Rev. 669 (1995); Gaskell, The International Salvage Convention of 1989, 4 Int'l J. Estuarine & Coastal L. 268 (1989); Comment, Protecting the Environment with Salvage Law: Risks, Rewards, and the 1989 Salvage Convention, 65 Wash. L. Rev. 639 (1990).
96. See O'Keefe & Nafziger, supra note 3, at 393.
97. 1989 Salvage Convention, supra note 90, art. 1, para. 1.
98. See supra note 72 and accompanying text.
99. This matter was discussed extensively in the IMO Legal Committee deliberation on the 1989 Salvage Convention. See IMO Docs. LEG/56/4/5; LEG 56/WP.14.
100. See also UNESCO Doc. 146 EX/27, at 3, ¶ 19 (Mar. 23, 1995) (incorrectly suggesting that French and Spanish efforts to exclude historic shipwrecks from salvage under the 1989 Convention were "accepted").
101. 1989 Salvage Convention, supra note 90, art. 30, para. 1(d).
102. See Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or Its Secretary General Performs Depositary or Other Functions 458 (Dec. 31, 1993) (reservations of Mexico, Saudi Arabia, and Spain). See also Report of the Meeting of Experts for the Protection of Underwater Cultural Heritage, UNESCO Doc. CLT-96/CONF.605/6, at 12, ¶ 48 (May 22-24, 1996).
103. See Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or Its Secretary General Performs Depositary or Other Functions 458 (Dec. 31, 1993) (reservations of Mexico, Saudi Arabia, and Spain). See also Report of the Meeting of Experts for the Protection of Underwater Cultural Heritage, UNESCO Doc. CLT-96/CONF.605/6, at 12, ¶ 48 (May 22-24, 1996).
104. See International Maritime Organization, Summary of Status of Conventions as at 5 January 1998, available at www.imo.org/convent/summary.htm.
105. But see Report of the Meeting of Experts for the Protection of Underwater Cultural Heritage, UNESCO Doc. CLT-96/CONF.605/6, at 12, ¶ 48 (May 22-24, 1996) (where an expert from the IMO, Mr. Augustín Blanco-Bazán, opined that "because of the private-law, non-mandatory character of the Convention, the right to exclude the application of salvage law existed even without express reservation.").
106. See ProSEA Draft, art. 11, para. 2.
107. Id. art. 11, para. 1(a).
108. ScC supra notes 26-29 and accompanying text.
109. See ProSEA Draft, art. 11, para. 1(b).
110. See id. art. 9, para. 1.
111. See id. art. 13, para. 1(c).
112. Id. art. 13, para. 1.
113. See id. art. 13, paras. 1(a), 1(b) & 1(d).
114. See id. art. 13, para. 3(a).
115. See id. art. 13, para. 3(b).
116. See id. art. 14.
117. See id. art. 18.
118. See id. art. 6.
119. See id. art. 6, para. 2.
120. See id. art. 6, paras. 3 & 4. For a definition of this term, see id. art. 1, para. 10.
121. See id. art. 6, para. 1.
122. See id. art. 6, para. 5.
123. See id. art. 6, para. 6.
124. See id. art. 6, para. 7.
125. See id. art. 6, para. 8.
126. This phrase is elsewhere defined as those artifacts "having unique and outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view." See id. art. 2, para. 2.
127. See id. arts. 6, paras. 9(b), 9(c), 9(d) & 9(e).
128. Defined at art. 2, para. 7, as "an artifact that provides archaeologically significant data or knowledge which cannot be obtained from any other source or through documentation, photography, molding, replication or other means of producing a facsimile of the artifact."
129. See id. art. 6, para. 9(a).
130. This is "an estimate of the current Fair Market Value of the artifact or artifacts by a professional appraiser with experience appropriate to the specific type and age of the subject artifacts. Comparable sales, previous legitimate offers for the artifact(s) and any other information which can be readily relied upon for developing an accurate representation of the price which might be expected in an open market transaction between a willing buyer and willing seller should be considered by the appraiser." See id. art. 2, para. 5.