A new international regime for the protection of underwater cultural heritage

International and Comparative Law Quarterly

Volumn 51, Issue 3, 2002, Pages 511-554

  Forrest, Craig ^a  

^a UNIVERSITY OF QUEENSLAND   (Australia)

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EID: 85012505424     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/51.3.511     Document Type: Article

References (189)

1. 294 UNTS 215.
2. 10 ILM 289.
3. 1037 UNTS 151.
4. See, eg, ‘Fleet of Medieval Ships Discovered in Britain’, Independent, 24 Oct 2000.
5. Historic shipwreck (those that sunk more than a hundred years ago) that have yielded significant commercially valuable commodities include the Duoro (coins sold for £1.5 million, see Diver ‘Mint Duoro coins draw the bidding’ (Jan 1997), 46
6. The Times ‘Golden treasure from shipwreck to fetch £1.5m’, 7 Sept 1996, 11), the SS Central America
7. (see G Kinder, Ship of Gold in the Deep Blue Sea (New York: The Atlantic Monthly Press, 1998)
8. the Neustra Señora de Atocha (reputed to be worth $250 million; see T Velocci, ‘Treasure Hunting: There's Gold in Them Thar Galleons’, National Business, Aug 1980, 58–62)
9. the Cazador (worth $50 million; see Diver ‘Ten days on the Cazador’ (June 1996), 86–9)
10. the Nanking Cargo (sold for $15 million at auction, see The Times, ‘The Ocean Gold Rush’ 25 Oct 1993)
11. and the Diana (worth £1 million, see The Times, ‘Shipwreck gives up her hoard of perfect porcelain’, 25 Jan 1995, 4).
12. A significant number of recovery operations undertaken by treasure salvors indicated that the recoveries were expected to yield huge fortunes, but have yet to come to fruition. See, eg, the case of the Hanover (reported to be worth £50 million, see Sunday Times, ‘Wreckfinder hits £50 m crock of gold’, 27 Oct 1996 at 11
13. Diver ‘Will the Hanover yield a fortune in gold?’ (Dec 1996), 59
14. Diver ‘Hanover—is the treasure still on board?’ (Jan 1997), 47).
15. UN Doc. A/Conf 62/122; (1982) 21 ILM 1261. Hereafter ‘UNCLOS’.
16. For a more detailed discussion on Arts 149 and 303 of UNCLOS see: CJS Forrest, ‘International Law and the Preservation of Underwater Cultural Heritage’, unpublished PhD Thesis (2000), University of Wolverhampton, 47–58
17. A. Strati, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea (London: Martinus Nijhoff Publishers, 1995)
18. L. Migliorino, ‘In Situ protection of the underwater cultural heritage under international treaties and national legislation’, 10(4) International Journal of Marine and Coastal Law (1995), 486
19. C.F. Newton, ‘Finders Keepers? The Titanic and the 1982 Law of the Sea Convention’ 10 Hastings International and Comparative Law Review (1986), 178
20. L.V. Prott, and PJ O'Keefe, Law and the Cultural heritage: Volume 1, Discovery and Excavation (Abingdon: Professional Book Ltd, 1984), 98
21. B.H. Oxman, ‘Marine Archaeology and the International Law of the Sea’ 12(3) Columbia VLA Journal of Law and the Arts (1988), 362
22. P.J. O'Keefe, and J Nafziger, ‘The Draft Convention on the Protection of the Underwater Cultural Heritage’ 25 Ocean Development and International Law (1994), 393
23. L. Caflish, ‘Submarine Antiquities and the International Law of the Sea’, 13 Netherlands Lawbook of International Law (1982), 20
24. L. Migliorino, ‘Submarine Antiquities and the Law of the Sea’, 4(4) Marine Policy Reports (1982), 4
25. J. Blake, ‘The protection of the underwater cultural heritage’ 45 International and Comparative Law Quarterly (1996), 819–843
26. A.C. Arend, ‘Archaeological and Historical Objects: Implications of UNCLOS III’ 22 Virginia Journal of International Law (1982), 799
27. D.R. Watters, ‘The Law of the Sea and Underwater Cultural Resources’ 48 American Antiquity (1983), 812.
28. Strati, above n 14, 330–4 includes a summary of the positive and negative factors of the inclusion of Arts 149 and 303 in UNCLOS.
29. S. Dromgoole, ‘Law and the Underwater Cultural Heritage: A Legal Framework for the Protection of the Underwater Cultural Heritage of the United Kingdom’ (1993), unpublished PhD Thesis, University of Southampton, 4–1.
30. For further detail on the European draft Convention, see Blake, above n 14, 820–7.
31. For a detailed discussion of the ILA draft, see O' Keefe and Nafziger, above n 14.
32. ILA Sixty-Seventh Conference, Report of the International Committee on Cultural Heritage Law (1996), 4.
33. Norway, for example, specifically stated for the record that it reserved its position on whether or not UNESCO is the appropriate forum for the negotiation and adoption of a convention on the protection of the underwater cultural heritage. General remarks by Mr Hans Wilhelm Longva, Director General, Department of Legal Affairs, Royal Norwegian Ministry of foreign Affairs, 19 Apr 1999.
34. See also PJ O'Keefe, Second Meeting of Governmental Experts to Consider the Draft Convention on the Protection of Underwater Cultural Heritage’ 8(2) International Journal of Cultural Property (1999), 569.
35. Art 31(2) of the 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331.
36. 10 ILM 289.
37. 1037 UNTS 151.
38. See LV Prott, Commentary on the UNIDROIT Convention (Leicester: Institute of Art and Law, 1997).
39. Preamble.
40. Earlier, unsuccessful proposals, included non-human resources, such as palaeontological objects as well as natural features of cultural significance to indigenous peoples that have spiritual association with the oceans. CLT-2000/CONF.201/3, Paris, Paris 2000, 3. The Archaeological Institute of America (AIA) also called for an expanded definition to include non-human archaeological objects, such as Paleo-Indian sites. Anon., ‘Comments of the Archaeological Institute of America on the UNESCO Draft Convention on the Protection of the Underwater Cultural Heritage’ 7(2) International Journal of Cultural Property (1998), 538–544
41. L.V. Prott and I Srong (ed), Background Materials on the Protection of the Underwater Cultural Heritage (Paris: UNESCO/Nautical Archaeology Society, 1999), 174.
42. See, eg, the most recent example of uncertainties regarding ownership of State owned vessels in Sea Hunt, Inc v Commonwealth of Virginia 221 F 3d 634 (4th Cir 2000)
43. on appeal from the decision in Sea Hunt, Inc v Unidentified, Shipwrecked and Abandoned Vessel or Vessels, 47 F Supp. 2d 678; (ED Va 1999).
44. See, eg, Columbus-America Discovery Group v Atlantic Mutual Insurance, 742 FSupp 1327 (EDVa. 1990)
45. 974 F 2d 450 (4th Cir 1992)
46. Treasure Salvors, Inc v Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F 2d 330, 340 (5th Cir. 1978)
47. Pierce v Beamis (The Lusitania) [1986] 1 QB 384
48. [1986] Lloyd's Rep 132.
49. CLT-99/WS/8, Paris, Apr 1999, 17. For an overview of the national laws of a number of States, see S Dromgoole, (ed.), Legal Protection of the Underwater Cultural Heritage: National and International Perspectives (The Hague: Kluwer Law International, 1999).
50. See also ILA Sixty-Fourth Conference, Report of the International Committee on Cultural Heritage Law, Queensland, Australia (1990), 3–6.
51. For example, the 1907 International Peace Conference, included provisions for the protection of cultural property in the event of armed conflict was not confined to public property, but included private property. Similarly, the 1954 Convention concerns the protection of cultural heritage ‘irrespective of origin or ownership’. See G Reichelt, ‘International Protection of Cultural Property’ 1 Uniform Law Review (1985), 79–147
52. S.A. Williams, ‘Recent Developments in Restitution and Return of Cultural Property’, 3 International Journal of Museum Management and Curators (1984), 117–129
53. P.M. Bator, The International Trade in Art (Chicago: The University of Chicago Press, 1982)
54. J. Kifle, International Legal Protection of Cultural Heritage (Stockholm: Juristforlaget, 1974)
55. P.J. O'Keefe, Trade in Antiquities: Reducing Destruction and Theft (Paris: UNESCO Publishing, 1997).
56. D.J. Bederman, ‘Rethinking the Legal Status of Sunken Warships’ 31 Ocean Development and International Law (2000), 97–125.
57. See US practise in Digest of United States Practises in International Law, vol.8, 999–1006
58. J.A. Roach, ‘Sunken Warships and Military Aircraft’ 20(4) Marine Policy (1996), 351–4.
59. Disputes concerning the ownership of sunken State owned vessels include; the Juno and La Galga, Spanish vessels sunk in US territorial waters (see Sea Hunt, Inc v Unidentified Shipwrecked Vessel or Vessels, 47 F Supp. 2d 678 (ED Va. 1999)
60. the La Balle, a French vessel sunk in US territorial waters; a Second World War German U-boat sunk in 1944 off Singapore (Simon v Taylor and Another [1975] 2 Lloyd's Rep 338 (Singapore High Court)
61. the Akerendam, a VOC vessels and U-76 in Norwegian waters. (see S Braekmus, ‘Salvage of Wrecks and Wreckage Legal Issues Arriving from the Discovery of Coins at Runde in 1972’, Scandinavian Studies in Law (1976), 39–68)
62. the Birkenhead, a UK vessel sunk in South African territorial waters (see A Kayle, Salvage of the Birkenhead (Johannesburg: Southern Book Publishers, 1990). In the case of the Birkenhead and CSS Alabama it is interesting to note that the flag State claims of ownership were not recognised in the Exchange of Notes.
63. In the case of the CSS Alabama, France did acknowledge the US's claim in other correspondence. (J.A. Roach, ‘France Concedes United States has title to CSS Alabama’ 85 American Journal of International Law (1991), 381).
64. Similarly, the agreement between the Netherlands and Australia regarding VOC vessels does not actually acknowledge the Dutch Government's ownership of these vessels prior to the conclusion of the agreement. (see Agreement between the Netherlands and Australia Concerning Old Dutch Shipwrecks 1972 repr in Prott and Srong, above n 57, 75–78).
65. For a detailed discussion on the point of abandonment and ownership of State vessels, see Bederman, above n 67, 97–125.
66. For example, the majority of wreck designated as being of historical or archaeological importance in UK territorial waters between 1973 and 1995 are warships. AJ Firth, ‘Managing Archaeology Underwater’, unpublished PhD Thesis, University of Southampton, 1996, 75–79.
67. See also S Dromgoole and N Gaskell, ‘Draft UNESCO Convention on the Protection of the Underwater Cultural heritage 1998’ 14(2) International Journal of Maritime and Coastal Law (1999), 186–7.
68. They are exempt from the Brussels Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea (1910) (37 Stat. 1658, TS No 516, Art 14) and the International Convention on Salvage (1989), LEG/CONF.7/27, 2 May 1989.
69. See further Strati, above, n 14, 220–2.
70. Dromgoole and Gaskell, above n 70, 233
71. Caflish, above n 14, 25
72. W. Riphagen, ‘Some Reflections on “Functional sovereignty”’ Netherlands Yearbook of International Law (1975), 128
73. L. Migliorino, ‘The Recovery of Sunken Warships in International Waters’, in B Vukas (ed.), Essays on the New Law of the Sea (Zagreb: Sveucilisna naklada Liber, 1985), 251.
74. See P Fletcher-Tomenius and C Forrest, ‘The Protection of the Underwater Cultural Heritage and the Challenge to UNCLOS’ 5(5) Art, Antiquity and Law (2000), 125–158.
75. Though there are exceptions. Human remains have been found to exist on UCH sites, especially wrecks, which were lost over a hundred years ago. For example, human remains were discovered on the site of the Mary Rose, which sank in 1545. See A McKee, How We Found the Mary Rose (London: Souvenir Press, 1982).
76. Reference may be made to the International Council of Museums Code of Ethics (1986) and the Museums Association (UK) Code of Ethics for Museum Professionals (1977, amended 1987) which require ethical and legal consideration to be given to recovery of human remains. Some incidences of divers inappropriate removal of human remains have been recorded. For example, it was reported that divers recovering gold bullion from the wreck of the HMS Edinburgh had picked up skulls and used them in conjunction with underwater torches to frighten fellow divers. See K Jessop, Goldfinder (London: Simon & Schuster Ltd, 1998).
77. See also ‘Divers Looting Sunken D-Day War Graves’, Independent, 31 Oct 2000.
78. ‘Comments of Canada’ working paper distributed at the Second Meeting of Governmental Experts, UNESCO Headquarters, Paris, 19–24 Apr 1999.
79. O'Keefe and Nafziger, above n 14.
80. For a more detailed discussed of the arguments for/against commercial recovery of historic wreck, see Sweeney, ‘The American Law of Treasure Salvage’
81. Varmer, ‘Should there be Such a Thing as Treasure Salvage’, papers presented at the 1998 Maritime Law Symposium: Sunken Treasure: Law, Technology and Ethics. Roger Williams University, Bristol, Rhode Island 13–15 Aug 1998
82. See also, WA Cockrell, ‘The Trouble with Treasure: A Preservationist View of the Controversy’ 45 American Antiquity (1980), 333–339
83. G. Brice, ‘Salvage and the Underwater Cultural Heritage’ 20 Marine Policy (1996), 337–342
84. Miller, ‘The Second Destruction of the Geldermalsen’, in Prott and Srong, above n 57, 94–101
85. G. Hutchinson, ‘Threats to Underwater Cultural Heritage: The Problem of Unprotected Archaeological and Historical Sites, Wrecks and Objects Found at Sea’, 20(4) Marine Policy (1996), 287–290
86. T.F. King, ‘Losers, Weepers: The Great Historic Shipwreck Debate’, paper presented at the National Trust for Historic Preservation Conference, US, 7 Oct 1992
87. W.A. Cockrell, ‘Why Dr Bass Couldn't Convince Mr Grumbel: The Trouble with Treasure Revisited. Again’
88. R. Duncan Mathewson III, ‘Archaeology on Trial’
89. P. Throckmorton, ‘The Worlds Worst Investment: The Economics of Treasure Hunting with Real-Life Comparisons’, in LE Babits and H Van Tilberg (eds.), Maritime Archaeology: A Reader of Substantive and Theoretical Contributions (New York: Platinum Press, 1998), 75–104
90. K. Atkinson, ‘Private Enterprise in Maritime Archaeology’ II Bulletin of the Australian Institute of Maritime Archaeology (1987), 19
91. D.K. Abbass, ‘A Marine Archaeologists Looks at Treasure Salvage’ 30(2) Journal of Maritime Law and Commerce (1999), 261–8.
92. A.G. Giesecke, ‘Historic Shipwreck Resources and State Law: A Development Perspective’ unpublished PhD Thesis (1992), Catholic University of America, 3
93. Also see JA Roach, ‘Shipwrecks: Reconciling Salvage and Underwater Archaeology’, paper presented at the Proceedings of the Thirty-First Annual Law of the Sea Institute, University of Miami, 30–31 Mar 1998, 8.
94. E. Herscher, ‘Hearings Held on Historic Shipwreck Legislation’ 11 Journal of Field Archaeology (1984), 79.
95. M.J. Norris, The Law of Salvage (Mount Kisco, NY: Baker Voorhis, 1958), 157. In this sense, salvage refers to the actual award, but it may also be used to describe the type of work undertaken in order to achieve this award.
96. Blackwall, 77 US (10 Wall 1 19L Ed 870 (1869))
97. The Sabine 101 US 384 (1880).
98. O'Keefe and Nafziger, above n 14, 408
99. See also Brice, above n 97, 337.
100. See, eg, J Barto Arnold III, ‘Some thought on salvage law and historic preservation’ 7 International Journal of Archaeology (1978), 174.
101. Litigation in the US has proved to be the most illustrative of the way in which courts have interpreted ‘marine peril’. See, eg, in Platoro Ltd, Inc v The Unidentified Remains of a Vessel, 614 F 2d 1051, at 1055–6 (5th Cir 1980)
102. Cobb Coin Co v Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F.Supp 540, at 557 (SD Fla 1982)
103. Treasure Salvors, Inc v Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F 2d 330, at 337 (5th Cir 1978)
104. Thompson v One Anchor and Two Anchor Chains, 221 F 770 (WD Wis 1916)
105. Eads v Brazelton, 22 Ark 499 (1861)
106. Wiggins v 1100 Tons, More or Less, of Italian Marble, 186 F.Supp, 452 (ED Va 1960)
107. Subaqueous Exploration & Archaeology Ltd v The Unidentified Wrecked and Abandoned Vessel, 577 F Supp, 597, at 611 (D Md 1983).
108. See also the Canadian case, Her Majesty The Queen in Right of Ontario v Mar-Dive Corporation et al, 1997 AMC 1000.
109. D.R. Owen, ‘The Abandoned Shipwreck Act of 1987. Goodbye to Salvage in the Territorial Sea’ 19 Journal of Maritime Law and Commerce (1988), 499–516
110. T.T. Stevens, ‘The Abandoned Shipwreck Act of 1987: Finding the Proper Ballast for States’ 37(3) Villanova Law Review (1992), 602.
111. E. Clément, ‘Current developments at UNESCO Concerning the Protection of the Underwater Cultural Heritage’ 20(4) Marine Policy (1996), 309
112. S. Williams, ‘Underwater Heritage: A Treasure Trove to Protect’ 87 UNESCO Sources (1998), 7
113. R.J. Elia, ‘US Protection of Underwater Cultural Heritage Beyond the Territorial Sea: Problems and Prospects’ 29(1) International Journal of Nautical Archaeology (2000), 43–56.
114. One commercial treasure salvage company estimates that there are at most twenty or thirty shipwrecks that are economically viable to excavate. See G Stemm, ‘Protection of Our Underwater Cultural Heritage: Thoughts on the Future of Historic Shipwrecks’, paper presented at the Thirty-First Annual Conference of the Law of the Sea Institute, University of Miami, 30–1 Mar 1998, 7: other estimates put the number of economically viable wrecks as approximately 100–200, which would yield a salvage value of more than US$10 million. CLT-96/CONF 605/6, Paris, 22–24 May 1996, 12.
115. For example, artefacts from the historically important wreck, the HMS Invincible was sold on auction in the UK. It was only at the discretion of the salvor that a representative sample of the artefacts was sold by private agreement with the Chatham Historic Dockyard Trust. See Dromgoole, above n 17, 2–17.
116. P.F. Johnstone, ‘Is it Treasure or a Worthless Piece of Ship?’ 26(4) Historical Archaeology (1992), 118–23. It has therefore been the policy of many of the archaeological societies to oppose the commercial recovery of historic shipwrecks.
117. See RJ Elia, ‘The Ethics of Collaboration: Archaeologists and the Wydah Project’ 26(4) Historical Archaeology (1992), 105–117.
118. Doc. 28C/39 Paris, Oct 1995 para 30; see also O'Keefe, ‘Gold, Abandonment and Salvage’, 1, Lloyd's Maritime and Commercial Law Quarterly (1994), 11. The archaeological community have pointed to examples of commercial recovery operations such as that of the Dutch-East Indiaman, the Geldermalsen, as illustrating the manner in which valuable archaeological and historical information has been lost whilst the economic value of the wreck is maximised.
119. See Miller, above n 97, 94–101.
120. See also Hutchinson, above n 97, 287–290
121. J. Paull IV, ‘Salvaging Sunken Shipwrecks: Whose Treasure Is It?: A Look at the Competing Interests for Florida's Underwater Riches’ 9(2) Journal of Land Use and Environmental Law (1994), 359–65)
122. H. Zhao, ‘Recent Developments in the Legal Protection of Historic Shipwrecks in China’ 23 Ocean Development and International Law (1992), 319.
123. Varmer, above n 97, 2. Nafziger states that: ‘the profit basis of salvage, … encourages commercial salvors, who must recover their costs, to fragment or disintegrate heritage for sale and thereby disperse recovered artefacts to the detriment of historic enquiry.’
124. J.A.R. Nafziger, ‘Historic Salvage Law Revisited’, 31, Ocean Development and International Law (2000), 81–96.
125. The excavation of the Tudor warship the Mary Rose resulted in the recovery of authentic items of archery which had been extremely scarce before the excavation. Included were thousands of arrows, ‘so many that they represent a real storage problem’, A McKee, How We Found the Mary Rose (London: Souvenir Press, 1982), 121.
126. A number of books on discoveries and recoveries of shipwrecks have recently been published, including a number of publications on the RMS Titanic, such as RD Ballard, The Discovery of the Titanic (London: Guild Publishing, 1987)
127. T. McCluskie, M Sharpe, and L Marriott, Titanic and Her Sisters Olympic and Britannic (London: Parkgate Books, 1999)
128. S. Wels, Titanic: Legacy of the Worlds Greatest Ocean Liner (Delmar, California: Tehabi Books and Time Life Books, 1997).
129. Others include C Cussler, The Sea Hunters (London: Simon & Schuster, 1996)
130. C.M. Robinson, Shark of the Confederacy: The Story of the CSS Alabama (London: Leo Cooper, 1995)
131. N. Pickford, The Atlas of Shipwrecks and Treasure (London: Dorling Kindersley, 1994)
132. K. Jessop, Goldfinder (London: Simon & Schuster, 1998)
133. J. Beasant, Stalin's Silver (London: Bloomsbury, 1995)
134. G. Kinder, Ship of Gold in the Deep Blue Sea (New York: The Atlantic Monthly Press, 1998).
135. St.Petersberg Times, ‘Hunt for treasure, but it'll cost a pretty boubloon’, 1 Sept 2000.
136. J.A.R. Nafziger, ‘International Penal Aspects of Protecting Cultural Property’, 16, International Lawyer (1985), 835
137. id, ‘Comments on the Relevance of Law and Culture to Cultural Property Law’ 10 Syracuse Journal of International Law (1983), 325.
138. P.M. Messenger (ed), The Ethics of Collecting Cultural Property: Whose Culture? Whose Property? (Albuquerque: University of New Mexico Press, 1989), xxi. Similarly, in 1970, a prominent Museum Director stated, in relation to the negotiations regarding the 1970 UNESCO Convention, that ‘it is unrealistic to expect to stop all trade in archaeological objects and in fact a legal trade should help to stop the illicit trade’
139. Meyer, The Plundered Past (New York: Atheneum, 1974), 186.
140. Policing underwater sites is extremely difficult, more so in international waters. A number of instances have been reported which relate to theft from UCH sites protected by national laws. See, eg, the theft of a cannon from the fifteenth-century historic shipwreck protected under the Protection of Wrecks Act 1973 in the UK. K McDonald, ‘Breech of the Law’, Diver (Dec 1999), 75.
141. See also ‘Wreck plunderers find way through law on war graves: Battleship Royal Oak’, The Times 4 Apr 1994
142. ‘Divers Looting Sunken D-Day War Graves’, Independent, 31 Oct 2000.
143. ILA Sixty-Fourth Conference, Report of the International Committee on Cultural Heritage Law, Queensland, Australia (1990), 1–17
144. For a more detailed discussion on the drafts of the Convention and UNCLOS, see Fletcher-Tomenius and Forrest, above n 81, 125–158.
145. Art 9.
146. Art 10.
147. Art 9(1)(a).
148. Art 9(1)(b).
149. Art 9(3) & (4).
150. Art 9(5).
151. Art 10(3).
152. Art 10(5).
153. Art 19(4).
154. Art 10(2).
155. ILA Sixty-Fourth Conference, Report of the International Committee on Cultural Heritage Law (Queensland, Australia, 1990), 13.
156. Art 33.
157. Art 14.
158. For further reading on the use of permits, see McLaughlin, ‘Roots, Relics and Recovery: What Went Wrong with the Abandoned Shipwreck Act of 1987’ 19 Columbia-VLA Journal of Law and the Arts (1995), 149–198
159. A. Croome, ‘The United States Abandoned Shipwreck Act Goes into Action: A Report’ 21(1) International Journal of Nautical Archaeology (1992), 39–53.
160. See generally Prott, and O'Keefe, above n 14
161. B. Burnham, The Protection of Cultural Property: A Handbook of National Legislation (Paris: The International Council of Museums, 1974)
162. Anon, The Protection of Movable Cultural Properties II Compendium of Legislative texts, Vol I and II (Paris: UNESCO Publishing, 1984).
163. Art 18(1).
164. Art 18(2).
165. Art 18(3).
166. Nafziger, above n 124, 835–852
167. C. Bassiouni, ‘Reflections on Criminal Jurisdiction in International Protection of Cultural Property’ 10 Syracuse Journal of International Law and Commerce (1983), 281–322.
168. For example, during the 1970 UNESCO Convention negotiations, proposals for the imposition of tougher criminal sanctions on those importing illicit cultural heritage were deleted in favour of a commitment from importing States to co-operate in the recovery and return of cultural heritage. (Art 9). See further Nafziger, above n.124, 838.
169. Art 17(2).
170. Education and public awareness are important features of many international conventions aimed at the protection of the world cultural and natural heritage. See, eg, Art 10 of the 1970 UNESCO Convention, Art 7 of the 1954 Hague Convention and Art 12 of the 1956 UNESCO Recommendations. See also J Gifford, M Redknapp, and N Fleming, ‘UNESCO International Survey of Underwater Cultural Heritage’ 16 World Archaeology (1985), 374.
171. See Dromgoole, above n 17, 5–12 and 5–45.
172. For example, Dr Robert Ballard has made extensive use of US naval vessels and technology, particularly the nuclear submarine NR-1 to search for UCH. See ‘Titanic man finds world's oldest ships 1,000ft down’ The Sunday Times, 27 June 1999.
173. See, eg, Arts 13–20 1956, UNESCO Recommendation.
174. Art 19(1).
175. Art 19(2).
176. Art 19(3).
177. Examples of bilateral agreements include the agreement entered into between the US and Mexico (Treaty of Cooperation Providing for the Recovery and Return of Stolen Archaeological, Historical and Cultural Properties, 17 July 1970, United States-Mexico, 22 UST 494, TIAS no 7088)
178. between the US and Peru (Agreement for the Recovery and Return of Stolen Archaeological, Historical and Cultural Properties, 15 Sept 1981, United States-Peru, TIAS No 10136)
179. between US and Canada (Anon, ‘Agreement Between the Government of the United States of America and the Government of Canada Concerning the Imposition of Import Restrictions on Certain Categories of Archaeological and Ethnological Material’ 8 International Journal of Cultural Property (1999), 245–57).
180. See further Nafziger, ‘Finding the Titanic: Beginning an International Salvage of Derelict Law of the Sea’ 12 Columbia-VLA Journal of Law and the Arts (1988), 339–51. The use of bilateral or regional agreements may be of particular importance in the preservation of an identified wreck of archaeological or historical significance. For example, the US have attempted to conclude a multi-lateral agreement to protect the wreck of the RMS Titanic. Although no regional agreement exists in this respect, an agreement that may be analogous to this type may be the agreement concluded by Scandinavian Countries to protect the site of the wreck of the Estonia.
181. See Agreement Regarding the M/S Estonia repr in 20(4) Marine Policy (1996), 355–6.
182. (For a discussion on wrecks as a memorial, see BL Allen, Coastal State Control Over Historic Wrecks Situated on the Continental Shelf as Defined in Article 76 of the UN Law of the Sea Convention 1982, (Cape Town: Special Publication of the Institute of Maritime Law, University of Cape Town Publication no 14, 1991), 40–1).
183. as reproduced in Prott and Srong, above n 57, 75.
184. Preamble.
185. Art 2(2).
186. Art 9(5).
187. Art 11(4) and 12(6).
188. See MH Nordquist, United Nations Convention on the Law of the Sea 1982: A Commentary, vol 5 (Dordrecht: Martinus Nijhoff Publishers, 1989), 1xi
189. Forrest above n 14, 48–56.