Revisiting the relationship between marine scientific research and the underwater cultural heritage

International Journal of Marine and Coastal Law

Volumn 25, Issue 1, 2010, Pages 33-61

  Dromgoole, Sarah ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

Continental shelf; Exclusive economic zone; Marine scientific research; Treasure hunting; Underwater cultural heritage

Indexed keywords

ARCHAEOLOGY; COMPLIANCE; CONTINENTAL SHELF; CULTURAL HERITAGE; EXCLUSIVE ECONOMIC ZONE; HUNTING; LAW OF THE SEA; SALVAGING; UNDERWATER ENVIRONMENT; UNESCO;

EID: 77649250995     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180809X12583617932149     Document Type: Review

References (153)

1. OME Press Release, 29 May 2008 (this and other press releases available at http://www.shipwreck.net).
2. Odyssey Marine Exploration, Inc. v The Unidentified, Shipwrecked Vessel, Motion to Approve Notice of Action in Rem and Arrest, Case No. 8:08-cv-1045, filed 3 February 2009. (In light of the positive identification, OME filed an unopposed motion to vacate the warrant for arrest on 17 September 2009 and the British government will be conducting a public consultation exercise to determine the future of the site.) The other vessel arrested is believed to be Le Marquis Tournay, an 18th century vessel of French origin, captured as prize and awarded to British privateers: Odyssey Marine Exploration, Inc. v The Unidentified, Shipwrecked Vessel, Motion to Approve Notice of Action in Rem and Arrest, Case No. 8:08-cv-01044, filed 14 January 2009.
3. For an interesting exposition of the approach taken by the US admiralty courts to the application of salvage law and the law of finds, see J. Du Clos, "A Conceptual Wreck: Salvaging the Law of Finds" (2007) 38 Journal of Maritime Law and Commerce 25-38.
4. See, e.g., "Hoard of treasure 'found on wreck off Cornwall'", Telegraph Online, 19 May 2007. The site appears to be that of a 17th century merchant vessel, but has yet to be positively identified: OME Press Release, 11 March 2009. The Merchant Royall was reputedly carrying substantial funds on behalf of the Spanish Crown.
5. Claims filed in April 2007. One of these wrecks, lying approximately 100 nm west of Gibraltar, appears to be the site code-named 'Black Swan', from which OME reportedly recovered 17 tons of coins and other valuables in May 2007: see further, S. Dromgoole, "The Marine Historic Environment: Two White Papers and a Black Swan" (2007) 22 IJMCL 621-631.
6. According to a preliminary determination by the US district court, the 'Black Swan' is the Spanish frigate Nuestra Senora de las Mercedes: see Odyssey Marine Exploration, Inc., v The Unidentified Shipwrecked Vessel, Case No. 8:07-CV-614, Report and Recommendation of the Magistrate Judge, Mark Pizzo, 3 June 2009. The other site, which lies in the western Mediterranean, is thought to be an Italian liner, SS Ancona, which was sunk by German U-boats in 1915 off Sardinia. She was believed to be carrying a number of valuable shipments.
7. These Arrest Complaints, filed in November 2008, relate to wreck sites believed to be RMS Laconia and SS Cairnhill, two British merchant vessels lost during the First World War. See further, note 14, below.
8. OME Press Release, 6 May 2008. According to OME, it has five "high value targets" in the Atlas search area, one of which being HMS Victory: OME Press Release, 4 June 2009.
9. In the territorial sea (extending up to 12 nm from baselines), the coastal State would have an unfettered right to regulate the activities; in the contiguous zone (a zone contiguous to the territorial sea extending no further than 24 nm from baselines), the coastal State would have a right to regulate the removal of archaeological and historical objects (see UN Convention on the Law of the Sea 1982, Art. 303(2)).
10. See, in particular, UNESCO Convention 2001, Arts. 9 and 10. For details of the Convention (adopted 2 November 2001, Paris, in force 2 January 2009, 41 ILM 37 (2002)),
11. see generally S. Dromgoole, "2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage" (2003) 18 IJMCL 59-108.
12. As at 8 November 2009 the following States had ratified the Convention: Albania, Barbados, Bosnia and Herzegovina, Bulgaria, Cambodia, Croatia, Cuba, Ecuador, Grenada, Iran, Lebanon, Libya, Lithuania, Mexico, Montenegro, Nigeria, Panama, Paraguay, Portugal, Romania, Saint Lucia, Slovakia, Slovenia, Spain, Tunisia and Ukraine.
13. France, Germany, Greece, the Netherlands and the UK all abstained from voting in favour of the Convention. However, it has been necessary to insert the word "generally" in the text because, on 30 October 2009, the French Ministry of Culture and Communication announced that France was on the point of ratifying the Convention. It seems likely that OME's operations in the English Channel have precipitated this volte-face.
14. Norway, along with the Russian Federation (and two other States, Turkey and Venezuela), voted against the Convention. The United States did not have a vote as it was not a member of UNESCO at the time (it rejoined the organisation in 2003). However, in a formal statement at the conclusion of the negotiations, it made clear that it opposed the text in its final form.
15. OME would argue that its activities are conducted in accordance with such standards. The difficulty for this and other commercial operators is that the standards that are now generally referred to are those enshrined in the Rules annexed to the UNESCO Convention 2001. These Rules appear to be rapidly becoming generally accepted as the appropriate code of conduct for work on marine archaeological sites, even by States that have concerns regarding other provisions of the Convention. The Rule that causes particular difficulty for commercial organisations is Rule 2. While its interpretation is not without controversy, it does seem to prohibit the sale of material on the open market: see further, Dromgoole, note 9 above, p. 65. This Rule makes it very difficult to 'marry archaeology with the business model': see "Is taking treasure from shipwrecks piracy?", Times Online, 21 May 2009.
16. The UK filed Statements of Interest in respect of RMS Laconia and SS Cairnhill in February 2009 (for the basis on which these claims were made, see further, note 17 below). In July 2009, OME filed a notice to vacate the arrest warrant on the Laconia and amended its arrest complaint in respect of the Cairnhill so as to exclude from the arrest any property on the vessel belonging to the UK: OME, Form 10-Q Quarterly Report to the US Securities and Exchange Commission, 7 August 2009.
17. Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634 (4th Cir., 2000). The particular significance of this case was that the US Court of Appeals upheld the right of Spain, as owner of the wrecks, to preclude unauthorised salvage. The salvor was denied a salvage reward and ordered to return to Spain all artefacts removed from the sites.
18. The 'Merchant Royall' case and the Mercedes case (see, respectively, notes 4 and 5 above). It is interesting to note that the Republic of Peru has also intervened in respect of the Mercedes, claiming that any treasure on board the Mercedes belongs to Peru, not Spain, on the basis of State succession. The submission to the court by Peru, and Spain's reply arguing that Peru's State succession-based theory is non-justiciable by a US court, make fascinating reading, as does Magistrate Judge Pizzo's preliminary Report and Recommendation of 3 June 2009. The proceedings in these cases show how the question of the identification of a wreck can be immensely difficult, but also demonstrate that States can launch an intervention before the identity is positively confirmed.
19. In the case of RMS Laconia and SS Cairnhill the UK government claimed ownership of the vessels and cargo by virtue of wartime re-insurance schemes (see further: "Battle for the treasure chest that changed the course of the Great War", The Independent, 17 March 2009).
20. United Nations Convention on the Law of the Sea, adopted 10 December 1982, Montego Bay, in force 16 November 1996, 21 ILM 1261 (1982).
21. Keith Muckelroy's pioneering text on maritime archaeology, published in 1978, referred to the "chequered development" of the subject up until that time and sought to articulate for the first time the principles, theories and methods of this sub-discipline of archaeology: see K. Muckelroy, Maritime Archaeology (1978, Cambridge University Press, Cambridge), Chap. 1, esp. pp. 22-23.
22. The UNESCO Convention 2001 defines 'underwater cultural heritage' to mean "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⋯": Art. 1(1)(a). This paper employs the term more generally, so as to include all material that has such character even if it does not meet the UNESCO age criterion.
23. See, e.g., Nafziger, who refers to this area as "the unprovided for margin" (J. Nafziger, "The Titanic Revisited" (1999) 30 JMLC 311-329 at 320);
24. Wegelein, who comments on the "unwieldy uncertainty" with respect to archaeological items in this area (F. Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and Other Platforms in International Law (2005, Martinus Nijhoff, Leiden/Boston), pp. 216-217);
25. and Scovazzi, who refers to the "legal vacuum" that is created and graphically describes what its consequences may be (T. Scovazzi, "The Protection of Underwater Cultural Heritage: Article 303 and the UNESCO Convention" in D. Freestone et al., (eds.), The Law of the Sea: Progress and Prospects (2006, Oxford University Press, Oxford), 120-136 at pp. 124-125).
26. This paper is concerned with activities 'directed at' UCH, rather than activities 'incidentally affecting' UCH (to adopt a useful dichotomy drawn by the UNESCO Convention 2001: see Art. 1(6) and (7)). It therefore focuses on shipwrecks, rather than other forms of UCH. However, it should be noted that there is growing awareness of the archaeological potential that the continental shelf possesses in respect of submerged prehistoric landscapes and interest in the threats posed to such landscapes by activities that may incidentally have an impact upon them. Legal mechanisms for countering these threats are rather different from those in respect of activities directed at UCH and are beyond the scope of this paper.
27. Interestingly, all three of these possibilities have been advocated by representatives of the US government from time to time, presumably in order to demonstrate that there are alternatives to any extension of direct regulatory authority over UCH: see, e.g., B. Oxman, "Marine Archaeology and the International Law of the Sea" (1987-1988) 12 Columbia-VLA Journal of Law and the Arts 353-372 at 369-370;
28. R. Blumberg, "International Protection of Underwater Cultural Heritage" in M. Nordquist et al., Recent Developments in the Law of the Sea and China (2006, Martinus Nijhoff, Leiden), pp. 491-501.
29. See, e.g., A. Strati, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea (1995, Martinus Nijhoff, The Hague), pp. 256-257. In the EEZ a coastal State has sovereign rights over all living resources by virtue of Art. 56 of the LOSC; where a State has not declared an EEZ, or beyond the 200-nm limit where it has, there would need to be disturbance of sedentary species (LOSC, Art. 77). There is growing scientific evidence of a strong bond between wrecks and marine flora and fauna: see, e.g., the reports on wrecks and ecology produced by Wessex Archaeology (available at http//www.wessexarch.co.uk/tags/coastal-and-marine).
30. See, e.g., Strati, note 23 above, p. 288 fn. 86.
31. See, e.g., Strati, note 23 above, pp. 267 and 329.
32. See further, MSR and international law of the sea section, below.
33. In 2008 a discussion paper by the present author exploring the link between marine archaeology, treasure hunting and MSR was presented for consideration to the EU Working Group on the Law of the Sea (COMAR). The present article develops the arguments set out in that document. For details of recent academic literature on the subject, see note 50 below.
34. See LOSC, Art. 246, discussed further below, see MSR and international law of the sea section.
35. Adopted, 23 May 1969, Vienna, in force 27 January 1980, 8 ILM 679(1969).
36. Adopted 29 April 1958, Geneva, in force 10 June 1964, 499 UNTS 311.
37. CSC, Art. 2(1) and (2). For the equivalent provisions in the LOSC, see Art. 77(1) and (2).
38. CSC, Art. 5(8).
39. CSC, Art. 5(1) and (8).
40. See Part XIII of the LOSC, esp. Art. 246.
41. In respect of the EEZ, see also Art. 56(1)(b)(ii).
42. LOSC, Art. 56(1)(a).
43. See LOSC Art. 56(1)(b). As far as the coastal State's sovereign rights on the continental shelf are concerned, see Art. 77.
44. Art. 246(3).
45. Art. 246(5)(a). The other instances are where the MSR project: (i) involves drilling into the continental shelf, the use of explosives or introduction of harmful substances; (ii) involves the construction, operation or use of artificial islands, installations and structures; or (iii) contains inaccurate information or there are outstanding obligations under an earlier project. See Art. 246(5)(b)-(d).
46. See further, The right to conduct MSR section, below.
47. A. Soons, "The Legal Regime of Marine Scientific Research: Current Issues" in M. Nord-quist, et al., Law, Science and Ocean Management (2007, Martinus Nijhoff, Leiden), pp. 139-166 at p. 151.
48. See, e.g., A. Soons, Marine Scientific Research and the Law of the Sea (1982, TMC Asser Instituut, The Hague), pp. 6, 124;
49. Wegelein, note 20 above, p. 78.
50. Soons, note 39 above, p. 6.
51. In examining the implementation of Part XIII of the LOSC by the US, a non-State party to the Convention, Gorina-Ysern comments: "the US Department of State has implemented an MSR policy that has not only resulted in full domestic adaptation and compliance with Part XIII, UNCLOS, but also in the crystallization of most of its provisions under customary international law": M. Gorina-Ysern, An International Regime for Marine Scientific Research (2003, Transnational Publishers, Ardsley, New York), p. 166. It should be noted, however, that it has been US policy not to exercise jurisdiction over foreign MSR in the EEZ, while at the same time recognising the right of other States to do so: see President R. Reagan's Statement on Oceans Policy of 10 March 1983, available at http://www.oceanlaw.org.
52. On the question of whether the formal proclamation of an EEZ is necessary in order to claim the rights over the EEZ afforded by the LOSC, including the right to exercise jurisdiction over MSR, see Gorina-Ysern, note 41 above, pp. 311-312.
53. See Soons, note 39 above, pp. 8 and 275 fn. 38. The author of another, more recent, monograph on MSR also identifies this as the "crucial difference": Wegelein, note 20 above, p. 219. The third monograph on the subject (Gorina-Ysern, note 41 above) does not refer to marine archaeology.
54. Strati, note 23 above, p. 42. However, Strati also indicates that in certain circumstances there may be only a fine line between archaeological research and other forms of research that do constitute MSR: see ibid., p. 256. See further below.
55. See, e.g., L. Caflisch, "Submarine Antiquities and the International Law of the Sea" (1982) 13 Netherlands Yearbook of International Law 3-32 at 23 fn. 78;
56. M. Giorgi, "Underwater Archaeological and Historical Objects" in R-J Dupuy, D. Vignes (eds.), A Handbook on the New Law of the Sea (1991, Martinus Nijhoff, Dordrecht/Boston/Lancaster), Chap. 11, 561-576 at pp. 570-571;
57. A. Korthals Altes, "Submarine Antiquities: A Legal Labyrinth" (1976) 4 Syracuse Journal of International Law and Commerce 77-96 at 81;
58. Oxman, note 22 above, pp. 366-367.
59. However, cf. P. Verlaan, "Marine Archaeology: A Trojan (Sea) Horse?" (1989) 8 Ocean Yearbook 231-253, especially at 235-6.
60. Report of the International Law Commission to the General Assembly, 11th Session, GAOR Supp. No. 9, UN doc. A/3159 (1956), reprinted in [1956] 2 Yearbook of the International Law Commission 253-302 at 298.
61. Presumably at this early stage the concern of the ILC was to limit the extent of coastal State rights in respect of the exploitation of resources, rather than their rights to protect resources. In other words, it saw shipwrecks primarily as a resource that the coastal State might wish to exploit, rather than as one it might wish to protect.
62. B. Oxman, "The Third United Nations Conference on the Law of the Sea: The Ninth Session (1980)" (1981) 75 American Journal of International Law 211-241 at 239.
63. It is interesting to note that Strati suggests that the seed of doubt about the archaeological potential of the continental shelf may have been sown by the US delegation, in order to avoid expansion of "coastal competence" for UCH beyond the contiguous zone: Strati, note 23 above, pp. 343-344.
64. Strati, note 23 above, p. 164.
65. See also ibid., p. 192, fn. 30.
66. See E. Boesten, Archaeological and/or Historic Valuable Shipwrecks in International Waters (2002, TMC Asser Press, The Hague), p. 65 et seq.,
67. K. Croff, "The Underwater Cultural Heritage and Marine Scientific Research in the Exclusive Economic Zone" (2009) 43 Marine Technology Society Journal 93-100;
68. and Keun-Gwan Lee, "An Inquiry into the Compatibility of the UNESCO Convention 2001 with UNCLOS 1982" in L. Prott (ed.), Finishing the Interrupted Voyage: Papers of the UNESCO Asia-Pacific Workshop on the 2001 Convention on the Protection of the Underwater Cultural Heritage (2006, Institute of Art and Law, Leicester), pp. 20-26 at p. 25.
69. See Boesten, note 50 above, p. 71 and, more particularly, Croff, note 50 above.
70. See also Strati, note 23 above, p. 256.
71. Over the years there has been much questioning about the number of wrecks that are likely to be found in the open sea: see Strati, note 23 above, p. 344, fn. 13.
72. The system was originally developed for military use, but was made available to civilian users in 1996: see further, http://www.gps.gov/.
73. See Introduction above.
74. According to Wegelein, only six per cent of the seabed has been explored: Wegelein, note 20 above, p. 19.
75. S. Bateman, "Hydrographic surveying in the EEZ: differences and overlaps with marine scientific research" (2005) 29 Marine Policy 163-174 at 170.
76. Indeed, it has even been posited that survey activities may themselves fall within the scope of "other activities for the economic exploitation and exploration" of the EEZ: Bateman, note 56 above, p. 170.
77. Bateman, note 56 above, p. 169.
78. Wegelein, note 20 above, pp. 66-67.
79. Soons, note 39 above, p. 124.
80. Wegelein, note 20 above, p. 78.
81. See, e.g., Soons, note 39 above, pp. 121, 124.
82. Indeed oceanographic data collection in general is a controversial subject. In light of differing views on whether or not 'operational oceanography', in other words the collection of routine ocean observations relating to, e.g., ocean currents, temperature, salinity, etc., is or is not MSR, the Advisory Body of Experts on the Law of the Sea (ABE-LOS) established by the Intergovernmental Oceanographic Commission (IOC) of UNESCO is currently developing guidelines for the deployment of certain forms of ocean data acquisition systems (ODAS), including 'Argo-floats' (see further, P. Verlaan, "Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organisation (IOC/UNESCO)" (2009) 24 IJMCL 173-183). While the deployment of these systems gives rise to some rather different issues from those under discussion here, the arguments regarding whether or not such deployment should be governed by the MSR regime mirror those in respect of survey activity.
83. In a recent study, after noting that Irish practice on the matter was difficult to ascertain, Ronan Long comments: "State practice elsewhere appears to support the view that hydro-graphic surveying within the EEZ is within the jurisdiction of the coastal State and that the consent of the coastal State must be obtained prior to the commencement of survey activities." He goes on to cite Australia and Canada as two examples of States that seek authorisation for hydrographic survey activities in the EEZ of other States. See R. Long, Marine Resource Law (2007, Thomson/Round Hall, Dublin), p. 696.
84. China too appears to regard hydrographic surveying as MSR: see Z. Keyuan, "Law of the Sea Issues Between the United States and East Asian States" (2008) 39 ODIL 69-93 at 78-79.
85. LOSC, Art. 58(1). The US and UK, for example, are of this view.
86. Churchill and Lowe, for example, state: "since such activities can be regarded as embracing the safety of navigation, they should be regarded as an internationally lawful use of the sea related to the freedom of navigation and therefore permissible for all States in the EEZ by virtue of art. 58 of the Convention": R. Churchill and A. Lowe, The Law of the Sea (3rd ed., 1999, Manchester University Press, Manchester), p. 405 fn. 3.
87. See also Soons, note 39 above, pp. 125, 157;
88. and Wegelein, note 20 above, pp. 80-81.
89. However, cf. Bateman, note 56 above.
90. Art. 21 affords the coastal State the right to regulate "marine scientific research and hydro-graphic surveys" within the territorial sea. By contrast, as Churchill and Lowe point out (ibid., p. 405 fn. 3), Art. 56 affords the coastal State jurisdiction over MSR in the EEZ, but does not refer to hydrographic surveys. Having said that, use of terms relating to survey and research in the LOSC is very inconsistent and it is difficult to know the degree to which the use reflects specific intentions.
91. The US position in respect of surveys and MSR has been set out at length by J. Ashley Roach of the US State Department: see, e.g., J. Roach, "Marine Scientific Research and the New Law of the Sea" (1996) 27 ODIL 59-72;
92. J. Roach and R. Smith, United States Responses to Excessive Maritime Claims (1996, Martinus Nijhoff, The Hague/Boston/London), Chap. 15;
93. J. Roach, "Defining Scientific Research: Marine Data Collection" in M. Nordquist et al. (eds.), Law, Science and Ocean Management (2007, Martinus Nijhoff, Leiden/Boston), pp. 541-573.
94. For example, see Roach and Smith, note 68 above, pp. 431, 446-447;
95. also Roach, note 68 above (1996, ODIL), p. 63. It is possible that, at least in part, this may reflect a fear of 'functional creep': assertion of jurisdiction over some forms of survey leading to assertion of jurisdiction over all forms of survey.
96. LOSC, Art. 58(1) (emphasis added).
97. According to Soons, "hydrographic surveying⋯ when⋯ conducted for the purpose of enhancing the safety of navigation or in connection with the laying of submarine cables or pipelines, must be regarded as an internationally lawful use of the sea associated with the operation of ships or submarine cables and pipelines in accordance with Article 58": Soons, note 39 above, p. 157 (emphasis added).
98. LOSC, Art. 246(5)(a). For support for this notion, see Bateman, note 56 above.
99. UN Office for Ocean Affairs and the Law of the Sea, Marine Scientific Research: A Guide to the Implementation of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1991, United Nations, New York).
100. Broad-margin coastal States are required to determine the outer edge of their continental margin in accordance with detailed criteria set out in Art. 76 of the LOSC.
101. Personal communication with Andrew Tate, FCO, 18 December 2008.
102. Wegelein, note 20 above, p. 79.
103. This article focuses on the question of the potential for infringement of the economic rights of the coastal State. However, it is also highly likely that the naval authorities of the coastal State would regard any mapping of large areas of seabed by foreign flag vessels as a national security concern: see R. McLaughlin, "Confidential Classification of Multi-Beam Bathymetric Mapping of the US EEZ: Is a New US Marine Scientific Research Policy in Order?" (1988) 19 ODIL 1-33 at 4 et seq.
104. Soons, note 39 above, pp. 6-7.
105. Roach and Smith, note 68 above, p. 426.
106. As Soons explains, "[r]esource exploration in all areas under coastal State jurisdiction is subject to the sovereign rights of the coastal State": Soons, note 39 above, p. 125.
107. According to Soons, "[e]xploration may be defined as data collecting activities ⋯ concerning natural resources ⋯ conducted specifically in view of the exploitation (i.e. economic utilization) of those natural resources" and further "scientific research which is of direct significance for the exploration and exploitation of natural resources but which is not aimed at the utilization of such resources still qualifies as marine scientific research": Soons, note 39 above, p. 125.
108. However, as will be seen in the next section, it may (somewhat tangentially) affect its right to conduct MSR.
109. See MSR and international law of the sea section, above.
110. Art. 246(3).
111. For the other circumstances in which a coastal State may withhold its consent, see note 36 above.
112. Art. 246(5).
113. See Art. 246(3) and (5). Emphasis added.
114. Art. 238.
115. While some governments have contracted with treasure salvors, or have licensed treasure salvage activity, the author is unaware that any government has directly conducted treasure hunting activity itself.
116. Soons, note 39 above, pp. 129-130.
117. Soons, note 39 above, p. 131.
118. In the event that a treasure salvor was acting under the authority of a State or competent international organisation, it is submitted that their activities would qualify as 'applied research' because they are undertaken for commercial objectives. As such, again they would be subject to regulation entirely at the discretion of the coastal State.
119. Soons argues that the coastal State would need only to identify the subparagraph of Art. 246(5) which it considers applicable: Soons, note 39 above, p. 170. However, arguably even this would not be necessary in circumstances where the treasure hunter is a private organisation acting without the authority of a State or competent international organisation. In such cases they have no right to conduct MSR whatsoever.
120. For example, the statement of the US observer to the 31st UNESCO General Conference in October 2001, setting out US views on the final draft of the UNESCO Convention 2001, commented: "The United States believes the draft Convention reflects substantial progress in certain important areas, notably the annexed rules ⋯"; the equivalent statement of the UK delegation provided: "the UK can support most of the articles in the current draft of the Convention, particularly the provisions in the Annex".
121. The Rules are based on a charter drafted by archaeologists under the auspices of the International Council on Monuments and Sites (ICOMOS). The Rules have been given particular endorsement by the UN General Assembly in Resolutions 60/30 and 61/222, adopted in 2005 and 2006 respectively: see N. Ferri, "The protection of the underwater cultural heritage according to the United Nations General Assembly" (2008) 23 IJMCL 137-150.
122. According to Lowe, 'soft law' means "norms that are not themselves legally binding but form part of the broader normative context within which expectations of what is reasonable or proper State behaviour are formed": V. Lowe, International Law (2007, Oxford University Press, Oxford), pp. 95-96.
123. LOSC, Art. 78(1).
124. The OCS is the name commonly given to the seabed and subsoil in areas where the continental margin extends further than 200 nm from baselines: see Art. 76(1).
125. For details, see Art. 246(6).
126. Art. 257 (which provides that "[a]ll States ⋯ and competent international organisations have the right ⋯ to conduct marine scientific research in the water column beyond the limits of the exclusive economic zone") acts as a further reminder that only States and competent international organisations are afforded rights by the LOSC in respect of MSR.
127. The wording of the LOSC has led to some uncertainty on this point: see Churchill and Lowe, note 66 above, at p. 407.
128. See also, Soons, note 39 above, pp. 215-216.
129. However, there is an argument that there is physical contact, even where the equipment itself does not come into contact with the seabed, because the sound waves sent out by the equipment bounce off the surface of the seabed.
130. See Soons, note 39 above, p. 216. Wegelein also reaches the same conclusion: see Wegelein, note 20 above, p. 202.
131. The Area is the seabed and subsoil beyond the limits of national jurisdiction: see Art. 1 (1)(1).
132. Art. 256.
133. The failure to designate an international body to implement Art. 149 has long been recognised as one of the major defects of that Article: see, e.g., Strati, note 23 above, p. 300.
134. Art. 303(1). Art. 303 falls under LOSC Part XVI 'General Provisions' and therefore the duty set out in paragraph (1) applies to all sea areas, including the Area. For the 'flesh' referred to, see in particular Art. 143(3).
135. See Soons, note 39 above, p. 156.
136. Churchill and Lowe, note 66 above, p. 176, citing M. Nordquist (ed.), United Nations Convention on the Law of the Sea: A Commentary (1993, Martinus Nijhoff, Dordrecht/Boston/London) Vol. II, p. 569.
137. There is an alternative analysis. Churchill and Lowe have themselves suggested use of Article 59 to deal with disputes relating to wrecks in the EEZ: see Churchill and Lowe, ibid., p. 152 fn. 22 and pp. 175-6.
138. However, their argument appears to be based on the notion that the recovery of shipwrecks is an unattributed right. If so, the conflict of interest between the party undertaking the recovery and the coastal State would presumably be one relating to the potential cultural value of the wreck. The fact that it did not directly relate to the economic interests of the coastal State could affect the outcome of application of the formula.
139. LOSC, Art. 303(1). This provision applies to all sea areas, including the continental shelf and EEZ: see note 106 above.
140. UN General Assembly Resolutions A/60/30 of 8 March 2006 and A/61/222 of 16 March 2007, para. 7 (in both).
141. Ibid. For a discussion of these resolutions, see Ferri, note 95 above. Interestingly, as Ferri points out, the UN General Assembly did not urge States to ratify the UNESCO Convention 2001.
142. While the judiciary within the US federal admiralty court system is demonstrating increasing enlightenment in its application of the laws of salvage and finds to material of cultural significance, one of the difficulties with leaving regulation entirely to this system is that it can take effect only after some material has been recovered and therefore interference has taken place at a site. In a fascinating article on the subject, Nafziger has argued that the US courts are doing their best to fill a void in public international law by applying private law principles: J. Nafziger, "The Evolving Role of Admiralty Courts in Litigation related to Historic Wreck" (2003) 44 Harvard International Law Journal 251-270.
143. In particular, there are questions concerning the degree to which the market for collectable coins can become saturated: there may be a need for close management of the release of large numbers of coins onto the market in order to maximise returns.
144. Although France has had such a change of view (see above, note 11), it seems unlikely that any of the other maritime States that expressed objections or reservations to the Convention in 2001 will revise their opinion in at least the short- to mid-term. However, for each State at some stage a 'tipping point' may be reached where their concerns about the fate of UCH in their offshore waters outweigh their reservations and objections to the Convention.
145. A third option is for the maritime States to consider negotiating a 'UNESCO-lite' Convention, that is, one that mirrors the UNESCO Convention, but avoids the issues that are contentious. Like the Titanic Agreement, such a treaty would utilise flag State and port State controls and would be based on principles of reciprocity. However, even if such a treaty was negotiated by only a small handful of States, it would inevitably take time to come to fruition and the process could well become bogged down. (Despite the fact that the text of the Titanic Agreement was finalised in 2000, it has still to be signed by two of the four States that participated in its development (Canada and France). Furthermore, although it has been signed by the US and the UK, it still needs US Congressional approval before it can come into force for these two States. See further, S. Dromgoole, "The International Agreement for the Protection of the Titanic: Problems and Prospects" (2006) 37 ODIL 1-31.) The text of the Titanic Agreement can be found at http://www.fco.gov.uk/.
146. See Introduction, above.
147. See Introduction, above.
148. For some support for this assertion, see Soons, note 38 above, p. 162. The Law of the Sea Section of the UK FCO processes around 100 MSR applications a year and would be unlikely to have difficulty coping with the extra workload: personal communication with Andrew Tate, FCO, 18 December 2008. It needs to be borne in mind that MSR regulation applies only to foreign flag vessels and nationals. Many ordinary archaeological projects now make use of remote-sensing equipment, but the vast majority of these projects are unlikely to be subject to regulation. However, there will be exceptions. For example, there have been a number of expeditions by US vessels and nationals to search for the Bonhomme Richard, which sank off the east coast of England in 1779. From what the author has been able to gather, MSR permits were not required in respect of these expeditions. However, there is some question as to whether they should have been and this suggests that, at least in some circumstances, the FCO may regard shipwreck search missions as MSR.
149. One of the most controversial and debatable aspects of the UNESCO Convention 2001 is the degree to which it is, and has to be, consistent with the LOSC. The question whether a new treaty could extend coastal State jurisdiction in respect of UCH beyond the limits established in the LOSC was one that dogged the UNESCO negotiations and ultimately led the negotiators to resort to some complex control mechanisms that may well prove difficult to implement. For an interesting discussion of the relationship between the LOSC and the UNESCO Convention, see Scovazzi, note 20 above.
150. Vienna Convention on the Law of Treaties 1969, Art. 31(1).
151. See further Dromgoole, note 9 above, pp. 79-83.
152. Lee argues that if activities directed at UCH were regarded as constituting MSR it would "become easier to interpret and implement" the relevant provisions of the UNESCO Convention in a manner consistent with international law, including the LOSC; in other words it would help to bolster the very legitimacy of the UNESCO Convention. See Lee, note 50 above, p. 25.
153. Strati, note 23 above, p. 285. The interpretation Strati was referring to related to a comment by Carsten Lund in a report for the Council of Europe produced in 1983, where he appeared to be arguing that, for the purposes of Art. 149, the Area might have a different definition than for other purposes and might "stretch in on the continental shelf ⋯".