1. Draft resolution presented to the General Conference of UNESCO in Nov. 1995: Doc.28 C/29.

2. Nafziger, J. A. R. (Rapporteur), Buenos Aires Draft Convention on the Protection of the Underwater Cultural Heritage—Final Report, Cultural Heritage Law Committee of the ILA (1994).Google Scholar

3. International Council for Museums and Sites (ICOMOS), Draft Charter for the Management and Protection of the Underwater Cultural Heritage, prepared by an ICOMOS subcommittee on the underwater cultural heritage. Lund, Chairman C..Google Scholar

4. Information provided by the Cultural Heritage Division of UNESCO.

5. Opinion expressed at a meeting of the Subcommittee for the Artistic and Architectural Heritage of the Committee on Culture and Education, Parliamentary Assembly of the Council of Europe in Strasbourg, Sept.1995. Item 3(c) of Draft Agenda, AS/CULT/AA (1995) O.J. 2.

6. Draft European Convention on the Protection of the Underwater Cultural Heritage (1985), available in a preliminary draft in Council of Europe Doc.DIIR/JUR(84)l; final version published in the “Final Report” of CAHAQ (see infra n.14). Council of Europe Doc.CAH AQ(85)5 (restricted). It should be noted that the final version differs in parts from the publicly available 1984 version.

7. Nafziger, J. A. R. (Rapporteur), International Law Association Cairo Conference (1992). Committee on Cultural Heritage Law, ILA, p.12.Google Scholar

8. Council of Europe, The Underwater Cultural Heritage, Report of the Committee on Culture and Education, Parliamentary Assembly of the Council of Europe (Rapporteur: Mr J. Roper), Doc.4200 (Strasbourg, 1978)—the “Roper Report”.Google Scholar

9. Idem. p.3.

10. Roper, J., “Explanatory Memorandum”, in Council of Europe, op. cit. supra n.8, at p.3.Google Scholar

11. U.N.T.S. Vol.499, p.311.Google Scholar

12. This point is illustrated in Prott, L. V. and O'Keefe, P. J. “Final Report on Legal Protection of the Underwater Cultural Heritage”, in Council of Europe, op. cit. supra n.8, at p.57: “As the object itself is outside the jurisdiction of the State, a strong argument could be put that any interference with a ship working on the site [within a State's declared CPZ] would be unlawful and may lead to international protest.”Google Scholar

13. Recommendation 848, Parliamentary Assembly of the Council of Europe, on the underwater cultural heritage (Strasbourg. 1978). published in Council of Europe, Texts Adopted by the Assembly. Session 30–32 (1978/81) (30th Ord. Sess.).

14. Ad Hoc Committee of Experts on the Underwater Cultural Heritage (CAHAQ), established by the Council of Europe following the Roper Report, supra n.8.

15. Vide: UN, The Law of the Sea, United Nations Convention on the Law of the Sea (with Index and Final Act of the Third Conference on the Law of the Sea) (1983), pp. 12 and 38Google Scholar; Koh, T. T. B., “A Constitution for the Oceans”, in Norquist, M. H. (Ed.), United Nations Convention on the Law of the Sea 1982—A Commentary, Vol.1 (1985), pp. 11–16Google Scholar; and Sanger, C., Ordering the Oceans—the Making of the Law of the Sea (1986).Google Scholar

16. Examples of progressive development in the LOSC are the provisions relating to the establishment of EEZs and to marine scientific research, while Art.77 (which mirrors Art.2 of the 1958 Continental Shelf Convention) is an example of the codification of law; see also Zuleta, B., “Introduction to the United Nations Convention on the Law of the Sea”, in Norquist, op. cit. supra n.15, pp.17–28, at p.18.Google Scholar

17. The main points concerning the LOSC and archaeology are the gap in protection left between the outer limit of the contiguous zone and the deep seabed “Area”; the use of a legal fiction or presumption in Art.303(2) (infra n.23) to provide control of items of the archaeological heritage in the contiguous zone; the failure to establish an administrative structure to oversee the provisions of Art. 149; definitional problems relating to the nature of what is to be protected; and the reservation of salvage laws. See Strati, A., The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary LOS (1995)Google Scholar; Prott, L. V. and O'Keefe, P. J., Law and the Cultural Heritage. Vol.1 (1984)Google Scholar; Caflisch, L., “Submarine Antiquities and the International Law of the Sea” (1982) XIII N.Y.I.L. 3CrossRefGoogle Scholar; Walters, D. R., “The Law of the Sea Treaty and Underwater Cultural Resources” (1983) 48 American Antiquity 806, 808CrossRefGoogle Scholar; Lund, C., “The Rules of UN Law of the Sea Protection”, in Council of Europe, Parliamentary Assembly, Parliamentary Conference on the UN Convention on the Law of the Sea, Palermo, 2–4 11 1983, AS/JUR/MAR/CONF(35)7 pp. 1–10 at p.1Google Scholar; Nafziger, J. A. R., op. cit. supra n.7.Google Scholar

18. Only two Arts, refer to the archaeological heritage: Art. 149 which relates to the seabed “Area” in international waters and Art.303 which deals with items raised from the seabed within the 24-mile contiguous zone.

19. On the agenda for UNCLOS III drawn up by the Seabed Committee and adopted in 1972, “Archaeological and Historical Treasures on the Seabed and Ocean Floor Beyond the Limits of National Jurisdiction” was item 23 from a list of 25. UN Doc.27, GAOR Supp.21 (A/3721).

20. A. Strati, “The International Protection of the Underwater Cultural Heritage: Legal Framework and New Developments”, paper given at the European Conference on the Protection of the Underwater Cultural Heritage, Athens (Vougliameni), 7–8 Apr. 1994, p.3; discussion at a conference held at the National Maritime Museum (London). 3–4 Feb. 1995 in Summary Report of the National Maritime Museum Conference on the Protection of the Underwater Cultural Heritage (1995), p.6.Google Scholar

21. For Turkish government objections to the adoption by the Council of Europe of the draft European Convention in 1985 see Turkish View on the Draft European Convention on the Underwater Cultural Heritage (1985), supplied by the Turkish Representation to the Council of Europe; and “Minority Statement by the Turkish Expert”, in Council of Europe Doc.CAHAQ(85)5, supra n.6.Google Scholar

22. Leanza, M., “The Territorial Scope of the Draft European Convention on the Protection of the Underwater Cultural Heritage”, in International Legal Protection of Cultural Property, Proceedings of the 13th International Colloquy on European Law, Division of Legal Affairs, Council of Europe (Strasbourg, 1984).Google Scholar

23. Art.303(2) reads: “In order to control traffic in [objects of an archaeological and historical nature found at sea], the coastal state may, in applying article 33, presume that their removal from the seabed in the zone referred to in that article [the 24-mile contiguous zone] without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article.”

24. Art.1 includes a reference to “all remains and objects and other traces of human existence located in or in part in the sea, lakes, rivers, canals … or recovered from any environment”.

25. The presumption or “legal fiction” created by Art.303(2), supra n.23, is discussed in Strati, op. cit. supra n.17, at p. 166.Google Scholar

26. The Royal Decree of 8 Nov. 1972 of Norway Relating to the Exploration and Exploitation of Petroleum in the Seabed and Substrata of the Norwegian Continental Shelf includes the duty to report any find of a historical nature such as a wreck site; another example is that licences for exploration for and exploitation of the mineral resources of the Netherlands section of the continental shelf also include references to the protection of the cultural heritage; cited in Strati, idem, p.261.

27. Supra n.21.

28. E.T.S No.66; the revised text became the European Convention on the Protection of the Archaeological Heritage (revised) (Malta, 1992), E.T.S. No.143.

29. Art.1(3) of the 1992 European Convention extends its scope to “the archaeological heritage … whether situated on land or under water”.

30. Council of Europe, “Explanatory Report to the European Convention on the Protection of the Archaeological Heritage (Provisional Edition)”, in The Third Conference of Ministers Responsible for the Cultural Heritage (Strasbourg. 1991), Doc.MPC(91)8, p.l.Google Scholar

31. Art. 1(2) reads: “To this end shall be considered elements of the archaeological heritage all remains and objects and any other traces of mankind from past epochs” and continues with the three-part qualification that its preservation and study inform the history of mankind and the natural environment, that excavation and other forms of research are the main sources of information about it and that “they are located in any area within the jurisdiction of the Parties”.

32. Council of Europe, op. cit. supra n.30, at p.3.Google Scholar

33. Examples of such problems include the acquisition of the ram of an ancient warship by Bremerhaven Museum on the Swiss antiques market; an exhibition held at the National Maritime Museum in London in late 1994 of items raised from the Titanic; and the decision by the Institute of Archaeology (London) to carry out the conservation of items commercially salvaged from historic wrecks for profit.

34. Council of Europe, op. cit. supra n.30, at p.6.Google Scholar

35. Supra n.5 for information on the Council of Europe discussions; the conference organised in Athens in Apr. 1994 (see supra n.20) is an example of EU interest in the subject. Discussions were held in Dec. 1995 concerning possible co-operation between the European Commission and the Council of Europe in this field; a recent call by the Commission under its Raphael Programme for proposals “to protect and advantage the European … archaeological heritage” with reference to “subaquatic” (sic) archaeology is also illustrative of its increasing involvement in this field, (1996) O.J. C67 (5 Mar.).

36. Membership of the Council of Europe increased from 23 in 1985 to 38 in 1995.

37. Information supplied by the Division of Legal Affairs, Council of Europe. Statutory Res. 93(27) of the Committee of Ministers of 12 May 1993 amended the voting procedure for adoption of treaty texts by the Committee of Ministers and the opening for signature to member States.

38. Opinion, supra n.5, and in discussion with officials of the Secretariat of the Council of Europe; it is too early for this to be set out in official documentation.

39. A reply from the Committee of Ministers of the Council of Europe to Written Question No.264 concerning the remit of C AHAQ described the second part of this remit as: “to draft a recommendation to member states on means of furthering co-operation between the different bodies and categories of persons concerned with the protection of the underwater cultural heritage”: Doc.5072; see infra n.42 for further information.

40. Art.1(2)(iii) gives the extent of jurisdictional scope over the underwater cultural heritage protected as those elements which “are located in any area within the jurisdiction of the Parties”.

41. Strati, op. cit. supra n.20.

42. Motion for a Recommendation on the promotion of understanding between communities and families within the area of the North and Baltic seas. Parliamentary Assembly, Council of Europe (Strasbourg 1995), Doc.7357.

43. This follows on from the unfulfilled second remit of CAHAQ cited supra n.39.

44. Nafziger, op. cit. supra n.2.

45. Examples given in Nafziger, op. cit. supra n.2, at p.218 include the plundering of the wreck of the Titanic lying on the outer edge of the Canadian continental shelf and of the Central America at a depth of ca. 2.4 km., 160 miles off the US coast. For further information on the discovery of the Titanic see Ballard, R. D., The Discovery of the Titanic: Exploring the Greatest of all Ships (1987).Google Scholar

46. This approach is mirrored in the Preamble to the 1985 draft European Convention where the underwater cultural heritage is characterised as “an integral part of the common heritage of mankind”.

47. Art.9 of the 1992 European Convention stresses the importance of “educational actions with a view to rousing and developing an awareness in public opinion of the value of the archaeological heritage for understanding the past and of the threats to this heritage”.

48. The Preamble recognises “the need to codify and progressively develop the law in conformity with international rules and practice, including provisions in the 1982 United Nations Convention on the Law of the Sea”.

49. 43 U.S.C. 2101–2210; in relation to the ILA draft Convention see Nafziger. op. cit. supra n.17. at p. 13.

50. Art.1 defines the underwater cultural heritage as “all underwater traces of human existence including: (a) sites, structures, buildings, artifacts and human remains, together with their archaeological and natural contexts: and (b) wreck … its cargo and other contents, together with its archaeological and natural context”.

51. O'Keefe, P. J., “The International Law Association: Draft Convention on the Protection of the Underwater Cultural Heritage”, in Vedovato, G. and Vlad Borrelli, L. (Eds), La Tutela del Patrimonio A rcheologico Subacqueo (acts of an international congress held at the Centra Universitario Europeo per i Beni Culturali, Ravello. 1993). p.44.Google Scholar

52. In the case of Subaqueous Exploration and Archaeology Ltd v. The Unidentified, Wrecked and Abandoned Vessel 577 F. Supp. 579 (1983) concerning one of four 18th- andc 19th-century wrecks found off the Maryland coast, the admiralty court declined to accept the rule recently developed in the 5th Circuit that an ancient, abandoned shipwreck constitutes a marine peril for the purposes of a valid salvage claim; for further discussion of this case see McWilliams, D. L., “Salvage of Ancient Treasure Ships” (1986)Google Scholar Lloyds Mar. & Comm. Quarterly 16–21. In the case of Robinson v. The Western Australia Museum (1977)Google Scholar 51 A.L.J.R. 806 Judge Mason gave the opinion that salvage rules may be applied to a vessel which has lain on the seabed for a long time; this case is discussed in O'Keeffe, P. J., “Maritime Archaeology and Salvage Laws—Some Comments Following Robinson v. The Western Australia Museum” (1978) 7 Int J. Nautical Archaeology 3–7.Google Scholar

53. Sweden—Act No.589 of 30 June 1971 states that objects wrecked over 100 years ago and ancient monuments over 100 years old are protected (s.9a); Denmark—Act No.445 of 1973 protects wrecks and other man-made objects which have lain in Danish waters for over 150 years; and Norway—Act No.50 of 9 June 1978 (with amendments of 1 Jan. 1993, in particular Chap.IV on ship finds) also provides for a similar time limit.

54. O'Keefe, P. J., “Introduction to the International Law Association's Draft Convention on the Underwater Cultural Heritage”, paper at conference supra n.20.Google Scholar

55. Art. 15 allows for revision of the Charter by ICOMOS in response to changing circumstances (such as new technologies) which will continue to bind States parties unless they notify UNESCO otherwise.

56. This allows States to establish cultural heritage zones with wider jurisdictional scope than the 24-mile CPZ proposed in the 1985 draft European Convention or most zones which States adopt under the terms of the 1992 European Convention.

57. The flexibility this allows for may have been chosen to avoid the problems faced over the 1985 draft European Convention; see supra n.21 for the Turkish objections to the 1985 draft text.

58. Nafziger. op. cit supra n.2. at p.440.Google Scholar

59. A similar provision exists in the European Convention on Offences Related to Cultural Property (1985). E.T.S. No.1 19.Google Scholar

60. See supra n.47.

61. See O'Keefe, op. cit supra n.54.

62. UNESCO, Feasibility Study for the Drafting of a New Instrument for the Protection of the Underwater Cultural Heritage. Executive Board of UNESCO (Paris. 1995). Doc.146 EX/27.

63. Supra nn.8 and 13 respectively.

64. See supra n.58.

65. UNESCO, op. cit. supra n.62, at p.5.Google Scholar

66. Strati, , op. cit. supra n.20, at p.2; and op. cit. supra n.17, at chap. 10 in particular.Google Scholar

67. Examples of European legislation updated under the influence of the 1985 draft European Convention include the Monuments Act No.622 (1988) of the Netherlands, Law No.289/93 of 21 Aug. 1993 of Portugal. National Monuments Act No.17 (1987) of Ireland, and Law No.89–874 of 1 Dec. 1989 on Maritime Cultural Property of France.

68. See supra n.33.

69. Summary Report, supra n.20.

70. See supra n.17.

71. An example of the profits to be made from the commercial salvage of a historic wreck is the salvage, in the South China Seas in 1985, of De Getdermalsen, a Dutch East India Company merchant vessel carrying a cargo of over 160,000 pieces of fine Chinese porcelain—the “Nanking Cargo”—plus 200 gold ingots; this cargo raised over $15 million at auction (one dinner service alone fetching $327,000): Gibbs, N., “The Ocean Gold Rush”, Time, No.43, 25 10 1993.Google Scholar