Treasure hunters, Sunken state vessels and the 2001 UNESCO convention on the protection of underwater cultural heritage

International Journal of Marine and Coastal Law

Volumn 25, Issue 2, 2010, Pages 209-236

  Aznar Gómez, Mariano J ^a  

^a UNIVERSITAT JAUME I   (Spain)

Author keywords

Admiralty law; Immunities of States; Law of the sea; Sunken State vessels; Treasure hunters; Underwater cultural heritage

Indexed keywords

CULTURAL HERITAGE; HERITAGE CONSERVATION; LAW OF THE SEA; UNDERWATER ENVIRONMENT; UNESCO; VESSEL; WRECK;

FRANCE; UNITED KINGDOM; UNITED STATES;

EID: 77951699506     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180910X12665776638623     Document Type: Article

References (139)

1. -41 International Legal Materials 40 (2002).
2. For a complete analysis of the Convention (including its drafting), see R. Garabello, La Convenzione UNESCO sulla protezione del patri-monio culturale subacqueo (Milan, 2004).
3. See also S. Dromgoole, '2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage', 18 International Journal of Marine and Coastal Law 59 (2003);
4. C. Forrest, 'A New International Regime for the Protection of Underwater Cultural Heritage', 51 International and Comparative Law Quarterly 511 (2002);
5. and M.J. Aznar-Gómez, 'La Convención sobre la protección del patrimonio cultural sub-acuático de 2 de noviembre de 2001', 54 Revista Española de Derecho Internacional 475 (2002).
6. -2 Along with some other reasons, such as jurisdiction, the 'blanket protection', salvage law, and the subordination of the Convention to the United Nations Convention on the Law of the Sea [10 December 1982, 1833 UNTS 397 (hereinafter 'LOSC')]. Because it was not a member of the UNESCO in 2001, the United States did not vote, but it made a formal statement at the conclusion of the negotiations, giving the reasons for their opposition to the final text.
7. For a general review of the position of major States regarding the Convention, see S. Dromgoole (ed.), The Protection of the Underwater Cultural Heritage. National Perspectives in Light of the UNESCO Convention 2001 (Leiden, Martinus Nijhoff, 2006).
8. Spain ratified the Convention on 6 June 2005. The Convention was officially published in Spain in Boletín Oficial del Estado, No.55, 5 March 2009, at 22706-22721.
9. For an analysis of the Spanish position, see M.J. Aznar-Gómez, La protección del patrimonio cultural sub-acuático (Valencia, Tirant lo Blanch, 2004).
10. It must be said that notwithstanding its opposition to the Convention, the United Kingdom applauded the general principles of the text and, particularly, subscribed to the norms annexed to the Convention. Actually, the British Government "has adopted the annex of the Convention as best practice for archaeology" (Hansard Written Answers, 24 January 2005, Col. 46W). The United States, for its part, during the Second Meeting of the States Parties to the Convention, had the occasion to "re-affirm its support of the overall goal of this UNESCO Convention to protect underwater cultural heritage. The United States fully supports the Annex of Rules concerning activities directed at underwater cultural heritage." UNESCO Doc. UCH/09/2.MSP/220/4 REV., Annex, at 12.
11. Significantly, in the United Kingdom, the Council for British Archaeology has repeatedly warned about recent treasure-hunters' activities directed at British sunken State vessels (particularly the HMS Sussex and the HMS Victory) and voiced extreme concern about a commercial treasure-hunting contract between the UK Government and a US salvage company-Odyssey Marine Exploration Inc.-to recover bullion from a wreck which the salvors believe to be that of the Sussex (see )
12. and another contract dealing with the 'salvage' of the remains of the Victory (see).
13. Furthermore, a request for ratification of the UNESCO Convention was made by "the marine historic environment community of the United Kingdom" through the Burlington House Declaration, adopted at a seminar hosted by the Society of Antiquaries of London, Burlington House, London, on 28 October 2005 (available at ).
14. On this matter, see among others L. Vierucci, 'Le statut juridique des navires de guerre ayant coulé dans des eaux etrangères: le cas des frégates espagnoles Juno et La Galga retrouvées au large des côtes des Etats-Unis', 105 Revue Générale de Droit International Public 705 (2001);
15. M. White, 'Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels', (2001) 95 American Journal of International Law 678;
16. M.J. Aznar-Gómez, 'La reclamación española sobre los galeones hundidos frente a las costas de los Estados Unidos de América: el caso de La Galga y la Juno', (2000) 52 REDI 247.
17. Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 974 F. 2d 450, 461 (4th Cir. 1992), cert. denied, (1993) 507 U.S. 1000.
18. Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 47 F. Supp. 2d 678 (E.D. Va. 1999).
19. Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634 (4th Cir. 2000).
20. Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634 (4th Cir. 2000), cert. denied, 148 L. Ed. 2d 956, 121 S.Ct. 1079 (2001).
21. The United States submitted an amicus curiæ brief supporting Spain's legal position with regard to the legal status of sunken warships, the application of several conventions in force between the two nations, and the extent of the 'express abandonment' rule to the case. The United Kingdom supported the Spanish position through a Diplomatic Note of 7 July 1999 (Diplomatic Note no. 41).
22. 'Presidential Statement on United States Policy for the Protection of Sunken State Craft'
23. January 2001, Public Papers of the Presidents: William J. Clinton, vol.III, page 2956, Jan. 19, 2001
24. reprinted in Federal Register, Vol.69, No.24, Tursday, February 5, 2004, Notices, at 5648.
25. Sea Hunt, 221 F.3d at 647.
26. I have 'marked' the words 'salvage' and 'salvor' because UCH should not be subject to salvage. As Patrick O'Keefe and James Nafziger said, "the law of salvages relates solely to the recovery of items endangered by the sea; it has no application to saving relics on land. For underwater cultural heritage, the danger has passed; either a vessel has sunk or an object has been lost overboard. Indeed, the heritage may be in greater danger from salvage operations than from being allowed to remain where it is." P.J. O'Keefe & J.A.R. Nafziger, 'The Draft Convention on the Protection of the Underwater Cultural Heritage', 25 Ocean Development & International Law 393 (1994), at 408.
27. See further O. Varmer, 'The Case Against the 'Salvage' of the Cultural Heritage', (1999) 30 Journal of Maritime Law & Commerce 279.
28. In that case, Spain, having asserted and found its sovereign rights upheld, on 17 October
29. -2006 concluded an agreement for the protection of the sites, the conservation of the artifacts and the exhibition of some of them in Virginia (text of the agreement on file with the author).
30. This legal framework was endorsed by the 'Sunken Military Craft Act', 28 October 2004 [Pub. L. No. 108-375, § 1406, 118 Stat. 2094 (codified at 10 U.S.C. §113 note)].
31. Odyssey Marine Exploration Inc. v. Unidentified, Shipwrecked Vessel, Case No: 8:07-cv-614- T-23MAP. The docket includes 270 documents, all of them available at . I will quote the different documents as 'Mercedes Doc. x', 'x' being the number of each docket document.
32. Odyssey arrived in Spanish waters by the mid-nineties. In 2002 its controversial agreement with the British Ministry of Defence for the excavation of the HMS Sussex, sunk in Spanish waters in 1694, was made public. For a critical appraisal, see S. Dromgoole, 'Murky waters for government policy: the case of a 17th century British warship and 10 tonnes of gold coins', (2004) 28 Marine Policy 189.
33. However, Odyssey implicitly (and for commercial purposes almost explicitly) admitted that it was the site of the Spanish frigate. The exact location-about 100 miles west of Gibraltar at a depth of approximately 1,100 meters-was provided to the Court under seal.
34. An in personam claim against Spain was also filed with and rejected by the Court applying the 'immunity of jurisdiction' principle. Mercedes Doc. 91.
35. See, among others, International Herald Tribune, 18 May 2007;
36. Telegraph, 19 May 2007;
37. The Gibraltar Chronicle, 19 May 2007.
38. See also "Odyssey Provides 'Black Swan' Shipwreck Information Update", 21 May 2007 (at http://www.shipwreck.net/, visited 22 May 2009).
39. Mercedes Doc. 25.
40. Peru claimed that, because the coins were minted in El Callao, the 'treasure' belongs to Peru. But the most intriguing question (at least from a legal point of view) was not the argument citing LOSC Art. 149 (clearly inapplicable here), but the implicit subordination ( forum prorogatum) to US courts by a sovereign Nation, because it argued that the Court should "address the competing claims of Peru and Spain before reaching the question whether either or both nations have sovereign immunity from the claims of Odyssey" (Mercedes Doc. 141 at 3). Spain never abdicated from its sovereign privilege of immunity of jurisdiction, as it seems Peru did with this claim.
41. Particularly Mercedes Doc. 141 at 26-31.
42. During the XIXth century (particularly from 1824 onwards), having failed to win postwar reparations from Britain for the Mercedes, Spain offered compensation to those who suffered losses (Mercedes Doc. 163, Ex. C at 2-3). It must not be forgotten that the cargo service was a public service provided by the Spanish Navy (as was done historically by other navies). If the service failed or was interrupted, the State was obliged to compensate the private persons, keeping the possible insurance contracts apart.
43. Mercedes Doc. 131. These arguments were supported by the US Government in a Statement of Interest (Odyseey Doc. 247).
44. -28 U.S.C. 1602 et seq.
45. Mercedes Doc. 209 (R&R hereinafter).
46. Mercedes Doc. 270 at 2. Because this decision, open to revision before the Eleventh Circuit Court of Appeals, endorses the R&R without adding any significant issues, I will mainly refer to the R&R document.
47. R&R at 12: "The debris field's location, coins, cannons, and artifacts persuasively match the Mercedes's historical record. That Odyssey, which set out to discover the Mercedes, found this mix strewn about in an area a few football fields square where the vessel met its explosive ending makes the conclusion even more compelling. The res is the Mercedes.
48. Ibid..
49. Regarding Peru's arguments, a crystal-clear response from the Court can be found in R&R pages 29 and 30: "Peru overlooks this Court's tenuous jurisdictional grip over the res. This is not the typical in rem action involving a maritime lien on a cargo vessel docked at a port within the district. Here, the res lacks any nexus to our nation's sovereign boundaries. Instead of the usual jurisdictional ties, in rem jurisdiction has precariously rested on the concepts of jus gentium and constructive possession of the wreck, the bases for the Court's initial exercise of authority upon Odyssey's verified complaint. In some practical sense, this jurisdictional grant has been an inchoate one [. . .] The success of Odyssey's lien against Spain's claim of sovereign immunity, not to mention the fate of any claims against the res, has always hinged on the wreck's identity or its lack of any discernable identity. With the Mercedes's identity confirmed and her status cloaked with her sovereign's immunity, her jurisdictional mooring line to this district has been severed. In rem jurisdiction no longer exists." (Citations omitted.)
50. R&R at 16.
51. R&R at 22. For the Court, "[d]ividing the Mercedes's cargo, either geographically or by ownership rights (private versus government owned) as Odyssey proposes, contradicts Pimen- tel 's teaching by prejudicing Spain's sovereign interests and countering principles of comity." Ibid. at 23.
52. R&R at 23. This not only departs from US domestic law but from international law as well: see The M/V "Saiga" (no.2) case (Saint Vincent and the Grenadines v. Guinea), Merits, International Tribunal of the Law of the Sea, Judgment of 1 July 1999,106 (stating that UNCLOS considers "a ship as a unit [. . .] Thus the ship, every thing on it, and every person involved or interested in its operations are treated as an entity linked to the flag State. The nationalities of these persons are not relevant").
53. Odyssey Docs. 3 and 5. In one of the Titanic sagas before the US courts, it was clearly settled that "[t]he propriety of exercising in rem jurisdiction over an entire ship wreck within the court's territorial jurisdiction when only part of that wreck is actually presented to a court rests upon the fiction that the res is not divided and that therefore possession of some of it is constructively possession of all." R.M.S. Titanic, Inc. v. Haver, 171 F. 3d 943 (4th Cir. 1999), cert. denied, 120 S. Ct. 74 (1999), at 964, citation omitted.
54. R&R at 33.
55. Mercedes Doc. 270 at 4.
56. Following a classical approach, "[f ]rom the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures." P.C.I.J., Case concerning German interests in Polish Upper Silesia, Merits, series A, no.7, at 19). However, particularly in contemporary maritime law litigation, US admiralty courts have an undisputed authority.
57. Contrary to what is admitted regarding State vessels in general and conventional international law, it must be recalled that current conventional international law-the LOSC and the 1958 Geneva Conventions-does not contain a particular, express provision on the legal status of sunken State vessels. See L. Caflisch, 'La condition des épaves maritimes en droit international public', in L.A. Sicilianos (ed.), Droit et justice. Mélanges en l'honneur de Nicolas Valticos 68-88 (Paris, Pedone, 1999);
58. and T. Scovazzi, 'Les épaves de navires d'État', 52 Annuaire Français de Droit International 400 (2006).
59. Quite recently, the Institut de Droit International (IDI) included the subject 'The Legal Regime of Wrecks of Warships and Other State-Owned Ships in International Law' within its Programme (Ninth Commission, IDI, decided in Santiago de Chile, 2007, N. Ronzitti, rapporteur).
60. See further discussions on this in M.J. Aznar-Gómez, 'Legal Status of Sunken Warships "Revisited"', 9 Spanish Yearbook of International Law 61 (2003).
61. Cfr. D.J. Bederman, 'Rethinking the Legal Status of Sunken Warships', 31 ODIL 97 (2000).
62. -23 September 1910, 37 Stat. 1658; USTS 576; UKTS 1913 No.4 (Cd. 6677); 1 Bevans 780. In force since 1 March 1913 and with a widespread number of parties (82 States), including the 'specially affected' States.
63. -28 April 1989, 1953 UNTS 165.
64. Bederman, UNTS, op. cit., supra n. 42, at 111. The following States, representing almost the totality of the 'specially affected States', have made this reservation: Australia, Bulgaria, Canada, China, Croatia, Ecuador, Estonia, Finland, France, Germany, Iran, Mexico, Netherlands, New Zealand, Norway, Poland, Russia, Saudi Arabia, Spain, Sweden, Tunisia and the United Kingdom. The Netherlands decided to apply the Convention to its warships or other vessels described in paragraph 1 of Art. 4 of the Convention, but under several domestic law conditions (Source: International Maritime Organization, Status of Multilateral Conventions and Instruments in respect of which the International Maritime Organization or its Secretary- General performs depositary or other functions as to 31 December 2009). The United States has not made this reservation. However, the Abandoned Shipwreck Act of 1987 (Pub.L. 100-298; 43 U.S.C. 2101-2106) prohibits the application of the law of salvage to abandoned shipwrecks.
65. Report of the Meeting of Experts for the Protection of Underwater Cultural Heritage, UNESCO Doc. CLT-96/CONF. 605/6, at p. 12, par. 48. Private international rules (as maritime rules) "may be common to several States and may even be established by international conventions or customs, and in the latter case may possess the character of true international law governing the relations between States.
66. But apart from this, it has to be considered that these rules form part of municipal law." P.C.I.J., Case concerning the payment of various Serbian loans issued in France/Case concerning the payment in gold of the Brazilian federal loans issued in France, Series A, Nos. 20/21, at 41.
67. The nature of salvage law as a venerable law of the sea has been critically assessed from a civil law point of view: "[b]e as it may, the fact remains that the bodies of 'the law of salvage and other rules of admiralty', despite their immemorial tradition, are today typical of a few common law systems but are complete strangers to other domestic legal systems." T. Scovazzi, 'The 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage', in G. Camarda & T. Scovazzi (eds.), The Protection of the Underwater Cultural Heritage: Legal Aspects 113 (Milano, Giuffrè, 2002), at 119.
68. -23 May 2007. Text available in IMO Doc. LEG/CONF.16/19, 23 May 2007.
69. Article 4(2). In its commentary to the draft of 2002, IMO excluded the application of this Convention to historic wrecks: when analysing Art. 1(6), it said that, "[a]s regards the comment to add 'underwater cultural heritage' to the definition of 'Related interests', it is considered that the provisions of the UNESCO Convention on the Protection of the Underwater Cultural Heritage (November 2001) provide the necessary safeguards for traces of human existence having cultural, historical or archaeological character; more in particular the articles 3, 5, 9 and 10." IMO Doc. LEG 85/3, 17 August 2002, Annex 2, at 3.
70. -6 November 1952, 158 UNTS 432.
71. -6 November 1972, Australian Treaty Series No.18 (1972).
72. -3 October 1989, text reprinted in 20 UN Law of the Sea Bulletin 26 (1992).
73. Agreement Regarding the Wrecks of La Belle, of 31 March 2003. Text reprinted in R. Garabello & T. Scovazzi (eds.), The Protection of the Underwater Cultural Heritage (Leiden, Martinus Nijhoff, 2003), at 265-266
74. Official text in French available at: Décret n̊ 2003-540 du 17 juin 2003 portant publication de l'accord entre le Gouvernement de la République française et le Gouvernement des Etats-Unis d'Amérique concernant l'épave de La Belle, signéà Washington le 31 mars 2003 (Journal officiel de la République française n̊ 144 du 24 juin 2003, at 10560-1).
75. Exchange of Notes of 22 September 1989, U.K. Treaty Series no.3 (1990).
76. Memorandum of Understanding Between the Government of Great Britain and Canada Pertaining to the Shipwrecks HMS Erebus and HMS Terror, of 8 August 1997. Text reprinted in Camarda & Scovazzi, op. cit., supra note 46, at 442.
77. See Sjur Brækhus, 'Salvage of wrecks and wreckage: legal issues arising from the Rund Find', (1976) Scandinavian Studies in Law 37.
78. Simon v. Taylor, (1980) 56 International Law Reports 40.
79. See above.
80. Note by the Spanish Ministry of Foreign Affairs and Cooperation of 23 March 2007 (on file with the author).
81. All the following unilateral declarations can be found in Federal Register, Vol.69, No.24, Tursday, February 5, 2004, Notices, at 5647-5648
82. Actually, the United Kingdom reacted against Odyssey 'salvage' operations directed at wrecks presumed to be UK sunken State vessels (perhaps the Laconia or/and the Cairn Hill ) before the US Courts. See Odyssey Marine Exploration Inc. v. Unidentified, Shipwrecked Vessel, Case No: 8:09-cv-02219-EAK-TGW, Doc. 19, filed 9 February 2009. However, as published by Odyssey, the UK Government would have agreed to pay Odyssey a salvage award of 80% as compensation for the artifacts which were recovered from the site of Admiral Balchin's HMS Victory, and submitted to the UK Receiver of Wreck. Following this agreement, Odyssey filed a motion to dismiss and vacate the warrant for the arrest which was filed in the US District Court (Case No. 8:08-cv-1045).
83. See , visited 21 January 2010.
84. Even more recent news reported a new deal between Odyssey and the UK Government Department for Transport to 'salvage' the SS Gairsoppa and splitting the cargo, which is estimated to be worth £70m (Sunday Times, 24 January 2010, at 14; Odyssey Press Release of 25 January 2010, at , visited 26 January 2010).
85. Whiteman, (1986) 9 Digest of International Law 221.
86. (1986) 29 The Japanese Annual of International Law 185.
87. See R.S. Neyland, Sovereign Immunity and the Management of United States Naval Shipwrecks, at (visited on 7 January 2010).
88. Cooperation is also found, for example, between Australia and Turkey on the wreck of the First World War Australian submarine AE2, sunk in 1914 in Turkish waters during the Gal- lipoli campaign. See M. Spencer, 'Exploring the Australian WW1 Submarine AE2', (2000) 26 Journal of the Australian Naval Institute 27. Actually, Art. 7(3) of the UNESCO Convention implies cooperation between the flag and the coastal States when dealing with sunken State vessels.
89. Like the case of the US schooners Hamilton and Scourge, sunk in Lake Ontario during the War of 1812, and transferred to Canada. See Royal Indem. Co. v. United States, 313 U.S. 289, 294, 61 S.Ct. 995, 997, 85 L.Ed. 1361 (1941).
90. Like the transfer to the Government of the Marshall Islands of the warships sunk during the atomic bomb tests at Bikini and Kwajalein Atoll (in accord with Sec. 177 of the 1982 Compact of Free Association). Public Law 99-239 of 14 January 1986.
91. As it was in the case of the Russian cruiser Admiral Nakhimov, that sank after being captured by the Japanese Navy.
92. See Garabello, op. cit., supra note 1, at 317-321 Maritime graves do not need to be necessarily those of sunken State vessels, and particularly sunken warships. All maritime graves deserve protection and respect. This is the inspiring principle of Art. 2(9) and Rule 5 of the UNESCO Convention, of the Agreement Between the Republic of Estonia, the Republic of Finland and the Kingdom of Sweden regarding the M/S Estonia (23 February 1995, text in Marine Policy 355 (1996))
93. and of the Agreement Concerning the Shipwrecked Vessel RMS Titanic between Canada, France, the United Kingdom and the United States (6 November 2003, not in force, text available at ).
94. See below.
95. Thus a huge amount of State vessels (particularly warships) that sank over the last Century are left aside. However, time passes and-at least theoretically-the USS Missouri, the Yamato, the Bismarck and the HMS Ark Royal should become UCH under the UNESCO Convention in a few decades. It could be also discussed that, as literally expressed in Art. 1(1) of the Convention, the lapse of 100 years does not have to be necessarily the last 100 years . . .
96. Actually, the UNESCO Convention does not address the question of title or property in the context of UCH. See Report of the Meeting of Governmental Experts on the Draft Convention for the protection of the Underwater Cultural Heritage, UNESCO Doc. CLT-98/ CONF.202/7, para. 13.
97. As one scholar said, "the regime of wrecks found within the territorial sea of a State party would not change by much". G. Aquaviva, 'The Case of the Alabama. Some Remarks on the Policy of the United States Towards Underwater Cultural Heritage', in Camarda & Scovazzi, op. cit., supra note 46, at 46.
98. This Article also includes the recommendation to inform, if applicable, "other States with a verifiable link, especially a cultural, historical or archaeological link" of the discovery of the wrecks.
99. The rejection of a British and Russian proposal, endorsed by the United States, trying to substitute "should inform" to "shall consult" and adding a sentence with wording that "such State vessels and aircraft shall not be recovered without the collaboration of the flag State, unless the vessel and aircraft have been expressly abandoned in accordance with the laws of that State", cannot be seen as an acceptance of the rule of reversion of title to warships to the coastal State either (see the proposal in UNESCO Doc. 31 C/COM.IV/DR.5, of 26 October 2001).
100. States have "exclusive competence" in regard to their own territory (Isla de Palmas, 2 UNRIAA 829 (Perm. Ct. Arb. 1928), at 838), including the maritime spaces within those territories (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, at 111, para. 212).
101. Forrest, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, op. cit., supra note 1, at 528-529
102. Furthermore, under customary international law as reflected in LOSC Art. 303(1), coastal States should have the duty to protect UCH and shall cooperate with other nations for that purpose. Under LOSC Art. 303(2), coastal States also have the right to prohibit any unauthorized salvage or recovery action of UCH in its internal waters, territorial sea, and contiguous zone. Under the UNESCO Convention, coastal States should also have the duty to adopt the minimal measures necessary to protect the wreck and not to impede without reason the legitimate protective measures decided by the flag State.
103. Cooperation, particularly with Latin American and Mediterranean countries, is a landmark of Spanish legal policy regarding the protection of UCH. See Libro Verde del Plan Nacional de protección del patrimonio cultural subacuático español, May 2009 (on file with the author).
104. -23 May 1969, 1155 UNTS 331.
105. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, at 109-110, para. 160;
106. see also Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, at 21-22, para. 41.
107. I deal in this paper with 'collective' paths. Although Art. 30 prohibits reservations to the Convention, States might make unilateral interpretative declarations upon ratification. Although Spain was tempted to ratify the convention, none of the current States parties has made this kind of interpretative declaration upon ratification.
108. Summary Records of the First Meeting of the States Parties to the UNESCO Convention, Doc. UCH/09/2.MSP/220/4, 15 September 2009, at 10. The Guidelines were particularly foreseen to give guidance to the State cooperation and consultation mechanism contained in Articles 8 to 13 of the Convention and regarding the appointment of coordinating States in the Area, and, if needed, in the EEZ.
109. -82 Resolution 7/MSP 1, UNESCO Doc. CLT/CIH/MCO/2009/ME/98, 26-27 March 2009, at 13.
110. UNESCO Doc. UCH/09/2.MSP/220/5 REV., 20 October 2009.
111. Resolution 5/MSP 2, UNESCO Doc. UCH/09/2.MSP/220/11, 3 December 2009. This working Group would consist of representatives of the following States Parties: Bulgaria, Cambodia, Croatia, Ecuador, Grenada, the Islamic Republic of Iran, Lebanon, Mexico, Nigeria, Portugal, Romania, Saint Lucia, Spain, and Ukraine.
112. Ibid., emphasis added.
113. See for example, paragraph 'A.1. Application of the Convention', which includes controversial definitions of marine zones allegedly following the LOSC. The same could be said about the observations by States, which included sound legal questions in their answers to the questionnaire prepared by the UNESCO Secretariat. See 'Results of the Questionnaire for the preparation of Draft Operational Guidelines for the Convention on the Protection of the Underwater Cultural Heritage', unpublished (on file with the author).
114. Hence, UNESCO would follow the Council of Europe's practice of issuing explanatory reports to accompany its conventions. As normally said in those reports, their texts do not constitute an instrument providing an authoritative interpretation of each convention, although they might be of such a nature as to facilitate the application of the provisions contained therein.
115. See supra note 81.
116. One cannot forget, for example, that in the political, non-legal realm, Latin American and Caribbean countries have asserted that UCH "is the property of the State in which it is found and through this it is the heritage of the Humanity." Santo Domingo Declaration, 16 June 1998, which resulted from the First Meeting of the Technical Commission on Underwater Cultural Heritage of the Forum of Ministers of Culture and Officials Responsible for Cultural Policy of Latin America and the Caribbean (webpage at )
117. reprinted in UNESCO, Background Materials on the Protection of the Underwater Cultural Heritage (vol. II, UNESCO, Paris, 2000), at 341-2. However, a line of change could be identified from 2008 onwards, when the Meeting of Ministries of Culture of the Conferencia Iberoamericana adopted the Declaration of San Salvador (22-23 May 2008)
118. in which it was decided to adopt a common position regarding the protection and conservation of UCH in the region and to call for a commission of experts to follow up on the question (12). See the Declaration (in Spanish) at .
119. Art. 34 of the Vienna Convention on the Law of Treaties.
120. See R. Garabello, 'The Negotiating History of the Convention on the Protection of the Underwater Cultural Heritage', in Garabello & Scovazzi, op. cit., supra note 52, at 89;
121. E. Boesten, Archaeological And/Or Historical Shipwrecks In International Waters: Public International Law and What It Offers (The Hague, TMC Asser Press, 2002), at 148-9;
122. and H. Cassan, 'Le patrimoine culturel subaquatique ou la dialectique de l'objet et du lieu', in: V. Coussirat-Coustère et al. (eds.), La mer et son droit. Mélanges offertsàLaurent Lucchini et Jean-Pierre Quéneudec 127-147 (París, Pedone, 2003).
123. Actually, Russia had previously submitted the question to the UN General Assembly which, in its Resolution No. 53/32 of 6 January 1999, stressed the importance of ensuring that the UNESCO Convention was in "full conformity" with the relevant provisions of the LOSC.
124. UNESCO Doc. CLT-99/CONF. 204, para. 25.
125. See Garabello, op. cit., supra note 91, at 119-120.
126. As usual, this text has been interpreted with completely different meanings from State to State. These interpretations justified, in some cases, the negative vote, the abstention in the final voting on the Convention, and/or the opposition to its final text (this was the case for the Netherlands, France, Norway, Russia, the United Kingdom and the United States). However, some other States regarded Art. 3 to be in full conformity with the LOSC (for example, Argentina, Denmark, Japan, Ireland, Italy, Poland and Spain), in 'consistency' with the LOSC (Australia and Greece) or, even, 'too much' subordinate to the LOSC (Turkey and Venezuela, not parties to the latter).
127. Art. 32 of the Vienna Convention on the Law of Treaties, again reflecting customary law (Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, ICJ Reports 2008, para. 153).
128. As reflected in Art. 2(8) of the Convention, which must be interpreted and applied in relation to Art. 3 of the same Convention.
129. On the customary status of Art. 30(2), see the commentary on this provision by F. Paolillo in O. Corten & P. Klein (eds.), Les Conventions de Vienne sur le droit des traités. Commentaire article par article 1247 (Brussels, Bruylant, 2007) at 1257-1258
130. These paragraphs read as follows: "1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose. "2. In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the seabed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article. "3. Nothing in this article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges.
131. As one commentator has said, the LOSC "is a sensitively engineered Convention establishing a finely balanced legal regime whose rights and duties have taken years to negotiate in a manner acceptable to all. Accordingly, any amendment requires a much higher threshold of consensus than UNESCO can achieve." Boesten, op. cit., supra note 91, at 149.
132. LOSC Art. 59 says: "In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.
133. This, along with Art. 2(11) of the UNESCO Convention, should also imply a limit for those seeking for a 'new archaeological zone' against the jurisdictional rules codified in the LOSC. See U. Leanza, 'Zona archeologica marina', in F. Francioni, A. del Vecchio & E. de Caterini (eds.), Protezione internazionale del patrimonio culturale: interessi nazionali e difesa del patrimonio commune della cultura 41 (Milan, Giuffrè, 2000).
134. Cfr. A.C. Arend, 'Archaeological and Historical Objects: the International Legal Implications of UNCLOS III', (1982) 22 Virginia Journal of International Law 777;
135. and, more recently, R. Blumberg, 'International Protection of Underwater Cultural Heritage', in M. Nordquist, J. Moore & K. Fu (eds.), Recent Developments in the Law of the Sea and China 461 (Leiden, Martinus Nijhoff, 2006).
136. See also my particular approach in Aznar-Gómez, Recent Developments in the Law of the Sea and China, op. cit., supra note 3, at 163-176.
137. 'Salvage' has a very limited scope when dealing with UCH. Art. 4 of the Convention states: "Any activity relating to underwater cultural heritage to which this Convention applies 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" (emphasis added). It is hardly difficult to find a case where 'classical salvage' might (and was willing to) comply with these strict conditions and the rest of the Convention, including the rules annexed.
138. The European Union Commission's Green Paper 'Towards a future Maritime Policy for the Union: A European vision for the oceans and seas' stresses that "[m]ember States should be encouraged to sign the UNESCO Convention on the Protection of Underwater Cultural Heritage" (Doc. COM(2006) 275 final, vol.II-Annex, 7 June 2006, at 48).
139. See T. Scovazzi, 'The entry into force of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage', Aegean Review of the Law of the Sea and Maritime Law, published online: 4 August 2009, available at .