RIVERS STATE UNIVERSITY

NKPOLU-OROWOROKWU, PORT HARCOURT

POST-GRADUATE SCHOOL

ARTICLE SUBMISSION IN PARTIAL FUFILMENT OF

JOURNAL PUBLICATION

ON
UNDERWATER CULTURAL HERITAGE: AN EXAMINATION OF
THE LAW OF THE SEA AND THE UNESCO CONVENTION

PRESENTED TO

THE FACULTY OF LAW, POST GRADUATE SCHOOL

BY

Princess Nice David, LLM in view (Rivers State University),

BL (Nigerian Law School Agbani Enugu),
B.A English/Edu (Imo State University),
LLB (Rivers State University)
Legal Practitioner
 ABSTRACT

The term “Underwater Cultural Heritage” encompasses all traces of the existence of humanity inclusive of sites,
structures, wrecks and their cargo, artifacts, prehistoric objects, et al – having a cultural, historical, or
archaeological character that has been over the years submerged and thus exists underwater. The concept of
underwater archaeology or heritage can be said to be a relatively novel discipline and with the passage of time
become a concerned discourse as the need for the protection of these underwater cultural heritage became of
paramount and intrinsic value to mankind. A number of states have enacted legislations that specifically applies to
underwater cultural heritage but most of these municipal heritage protection legislation, does not apply beyond
territorial waters. A less comprehensive attempt was made by the United Nations Convention on the Law of the Sea
and Customary International Law on underwater heritage. However, the United Nations Educational, Scientific
and Cultural Organization Convention on the Protection of the Underwater Cultural Heritage provides a rather
concise and comprehensive instrument governing the Underwater Cultural Heritage and its protection. In line with
this background, this paper also aims at examining the jurisdictional nature of the discourse and other related
issues.
 NATURE OF UNDERWATER CULTURAL HERITAGE
Mankind stand in some relation to the oceans and its inhabitants – as means of transportation,
communication, political and religious affiliation etc. The importance of the oceans and its bodies
cannot be over-emphasized. However, traversing the seas brings peril in proportion to its benefits:
scholars estimate that more than three million shipwrecks currently lie on the ocean floors. Of
these, scientists have explored less than one percent.1 This is a wealth of knowledge for
archeologists and other persons of interest seeking to understand patterns of human behavior over
the centuries, as well as scholars seeking to recover lost elements of history. These pre-historic
underwater properties can be said to be part of the concept of underwater cultural heritage.
“Underwater Cultural Heritage” means all traces of human existence having a cultural, historic
and archaeological character which have been partially or totally under water, periodically or
continuously, for at least 100 years such as sites, structures, buildings, artefacts and human
remains together with their archaeological and natural context; vessels, aircraft, other vehicles or
any part thereof, their cargo or other contents, together with their archaeological and natural
context; and objects of prehistoric character.”2 The definition, though comprehensive in nature,
may be deemed to be slightly inadequate as the phrase “all traces of human existence” is quite
vague, legally and as a mechanism tool. Also, a problem that may arise with the 100-year period
is that the beginning of this period is not clearly identified in the convention nor in the Law of the
Sea Convention and stating “…for at least 100 years…” imply that the temporal criterion requires
a 100-year threshold for objects to be considered Underwater Cultural Heritage. Furthermore, the
above definition does not regulate ownership questions but focuses solely on heritage values.
The sheer quantity of submerged human history has led historical wrecks to be considered in
terms of “cultural heritage” rather than mere shipwrecks. And haven been addressed with such
terminology, the nature of cultural heritage can be said to be a slippery concept with a multi-
faceted definition. For instance, Australia defines underwater cultural heritage as the protection
of shipwrecks older than 75years, which are then declared to be historic3. This definition thus
appears to be a blanket definition and the protection of the concept has no explicit significance
criteria, but is dependent solely on the age of the vessel. In contrast, a broad definition of maritime
cultural assets would include all deposits, wrecks, remains or, in general, all assets of prehistoric,
archaeological, or historical interest not limited by number of years.

1
Jay Bennett, ‘Less than 1 Percent of the World’s Shipwrecks Have Been Explored’, (2016) Popular
Mechanics ≤http://www.popularmechanics. com/science/a19000/less-than-one-percent-worlds-
shipwrecks-explored/≥ accessed on 11th August 2018
2 Art. 1 (a) (i)-(iii) United Nations Educational, Scientific and Cultural Organization Convention on the
Protection of the Underwater Cultural Heritage, 2001.
3
Sec. 4A (1) Pt. II Historic Shipwrecks Act, 1976
Although, the concept of the Underwater Cultural Heritage(UCH) can be said to be a recent study
of interest, the search of objects under the water appears to have since existed. It however was
described as search for treasure which differs from underwater cultural heritage as the search for
treasures is basically tied to monetary market value and little or no importance is placed on the
historic value of the objects and their context as a fundamental building block in history’s quest
for explanations. Treasure hunt may be important; it however appears to be a threat to the UCH
as human activities in maritime areas and coastal zones in search of treasures have endangered
heritage in an exponential way.

The underwater cultural heritage has an important socio-cultural and historical significance to
mankind and is an invaluable source of knowledge. Many traces of history still exist but not all
are visible, as many remains are located in the seabed. Indeed, there are numerous ancient
shipwrecks and important submerge coastal ruins that are partially or completely hidden under
the water. Much more awaits discovery. Prehistoric submerged heritage may hold important
information on the development of humanity. The concept of the underwater cultural heritage is
an integral part of cultural heritage of humanity and a particularly important element in the history
of peoples, nations, and their relations with each other concerning their common heritage. Oceans
and seas play a crucial role for human well-being and the environment as a whole. Covering more
than 70 percent of the surface of our plant, they provide half of the world’s oxygen, sequester
carbon and provide a home for 80 percent of life on earth. Marine resources also provide food for
hundreds of millions of people around the world. The strain on oceans is rapidly growing and its
natural resources are being affected. Overfishing, loss of habitat, invasive species, pollution from
nutrients and plastics, and climate change are taking their toll. Owing to the great importance or
significance of the underwater heritage and its valued heritage, underwater cultural heritage merits
the same attention as land-based heritage and should be afforded the same protection in light of
the many threats created by modern society. This heritage holds many surprises geared towards
the history of mankind.

The world is becoming increasingly aware of the wealth of history, in the form of shipwrecks and
archaeological objects, which lies beneath its seas and oceans. With advances in technology, this
history is becoming increasingly accessible. However, as access to these sites increases, so does
their vulnerability to physical destruction. By its very nature, underwater cultural heritage with a
strong historical or cultural link to particular modern state may be located in international waters
far from its place of origin. The issue is therefore very much one of international concern. With
this being the situation, there is a dire need to protect the underwater cultural heritage.
 UNDERWATER CULTURAL HERITAGE PROTECTION
The Underwater Cultural Heritage Convention is the first universal instrument that exclusively
deals with the preservation of the underwater cultural heritage in international law. The UCH
Convention builds upon and addresses the gaps of the very limited, vague and contradictory
protective regime afforded to UCH within the framework of the United Nations Convention on
the Law of the Sea(UNCLOS). The protection of the underwater cultural heritage has been
described as ‘the last major issue of a global nature that needs to be resolved in the Law of the
Sea’4
Until quite recently, for both marine archeologists and law academician, the legal regime of
marine archeology has been largely a neglected topic. In the past, the absence of the necessary
technology to explore, much more to exploit, underwater sites, especially those lying beyond areas
of national jurisdiction, hardly created any jurisdictional problems5 as the recovery of artifacts
from the sea was underestimated because it was not seen as economically viable except the
recovery was treasure based. While not much has changed with the legal regime, the leaps in
technology have made the exploration, recovery and disposition of artifacts of historical and
cultural value from the sea economically viable on a commercial scale. 6 It thus became a very
lucrative commercial maritime industry. The advent of advanced technology now enables those
who possess them to recover almost any object in the sea, at any depth, anywhere in the globe. It
has also allowed a dramatic increase in the illicit recovery of and trade in underwater cultural
heritage.7
It is pertinent to note that underwater cultural artifacts are a finite resource. Once they are damaged
or destroyed, they are irretrievably lost. These artifacts being an integral link to the past should
be regarded as part of humanity’s common collective cultural heritage and should be protected as
such. This is the reason why protection and preservation of UCH is at the core of the UCH
Convention. In sum, the underlying basis for the UCH Convention can be distilled as a reflection
and reaction of the international community to three distinct factors. The first is the recognition
that the recent advances in technology have made UCH increasingly accessible. The second is the
increasing awareness that UCH, more than just being an economic resource, are more importantly

4
Alastair D. Couper, The Principal Issues in Underwater Cultural Heritage (Marine Policy Publishers 1996)
285
5
Anastasia Strati, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the
Contemporary Law of the Sea (The Hague 1995), 40.
6
Jeffrey T. Scrimo, ‘Raising the Dead: Improving the Recovery and Management of Historic Shipwrecks,’
(2000) (5) Ocean and Coastal Law Journal; 271.
7
Craig Forrest, ‘Strengthening the International Regime for the Prevention of the Illicit Trade in Cultural
Heritage,’ (2003) (4) Melbourne Journal of International Law; 595.
an invaluable cultural, historical and archeological resource. The last is the apparent absence of a
clear protective regime governing UCH under international law.8
The protection of both treasures, objects, and artifacts found underwater is very pivotal for both
economic and historical value. Treasure-hunting is a staple of adventure stories, but the trade in
valuable objects raised from the sea floor is also big business. For example, in 1986, an auction
house raised US$ 16 million from the sale of Chinese porcelain and gold ingots recovered from
the Dutch East India Company Ship (the Geldermalsen), which sank in the South China Sea in
1752.9 In such cases, the recovered objects end up in the hands of private collectors and are not
available to scholars for the purposes of research and study, nor are they displayed to the public
at large and thus destroying irreplaceable historical and archaeological information in the process,
or worse, dynamiting wreck sites. Like archaeological and historical sites on land, underwater
cultural heritage provides insights into the past. Archaeologists can be said to be usually less
interested in the spectacular or precious objects recovered from a wreck or other underwater site,
than the context in which they appear. While wrecks and other objects often decay or become
assimilated into the marine environment through accretion, layers of silt and sediment can also
preserve a wreck and its cargo. Owing to the chemistry and biology of deeper waters, wrecks
located on the deep seabed tend to be exceptionally well preserved.10 In other cases, the
immediate environment around a wreck may not support marine creatures, which would otherwise
consume it. For example, the seventeenth-century, wooden Swedish warship, (the Wasa), was
found incredibly well preserved because it sank in cold brackish water that saved it from
shipworms. As a result, the Wasa provided the window into the life and times of the seventeenth-
century sailors.11 It has been overly-emphasized that underwater archaeology is a relatively
recent discipline that was pioneered in the 1950s and 1960s and the development of scuba-diving
equipment allowed archaeologists unprecedented opportunities to discover, survey and excavate
underwater sites. Nevertheless, technological developments such as scuba also posed a
considerable threat to the preservation of underwater cultural heritage. Additional threats are
posed by other uses of coastal areas and the sea including land reclamation, dredging, dumping,
the construction of habour works, drilling for natural gas and oil, mineral exploration and the
laying of cables and pipelines. Land-based marine pollution also affects underwater cultural
heritage.12

8
Russel K. Lamotte, ‘Introductory Note to UNESCO: Convention on the Protection of the Underwater
Cultural Heritage,’ (2002) (41) International Legal Materials; 37
9
Sue Williams, ‘Underwater Heritage: A Treasure Trove to Protect’ (1997) 87 UNESCO Sources 8
10
Edward Brown, ‘Legal loopholes’ (1997) 87 UNESCO Sources 10.
11
Petter Karlsson, ‘Wasa Goes Down, Can Come Up!’ (1997) 87 UNESCO Sources 15
12
P O’Keefe, ‘International Waters’ in S. Dromgoole (ed), Legal Protection of the Underwater Cultural
Heritage (1999) 234
The fact that UCH is a multi-use resource implies that it is not only important archeologically,
historically or culturally; it also has an economic value. Shipwrecks supply various kinds of
economic values. These are: salvage value - as when cargoes of high monetary value are
recovered, so returning them to the 'stream of commerce'; archaeological value - as when the
careful investigation of a wreck uncovers interesting historical information; recreation value - as
for hobbyist divers; and reef value - as when a wreck creates an artificial reef as a habitat for fish
that may be of value to recreational anglers. The introduction of the concept of the UCH may even
invigorate illicit trade, increase global demand of UCH and cause the prices of UCH to sky-rocket.
The oil and gas industry, the pipe-laying industry, unintentional or accidental human acts, and
even nature itself are just some of the other culprits. These and many more are the need to protect
the underwater cultural heritage. The protection of the underwater cultural heritage is burdened
on the shoulders of International law; United Nations Convention on the Law of the Sea 1982,
United Nations Educational, Scientific and Cultural Organization Convention on the Protection
of the Underwater Cultural Heritage 2001.

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA AND THE

UNDERWATER CULTURAL HERITAGE

The United Nations Convention on the Law of the Sea forms the backbone of modern international
maritime law but addresses cultural heritage and underwater archaeology only tangentially.
Drafters of the Convention inserted duties related to cultural heritage in Articles 149 and 303 of
the United Nations Convention on the Law of the Sea 1982.
Article 149 (Archaeological and historical objects) provides thus: “All objects of an
archaeological and historical nature found in the Area shall be preserved or disposed of for the
benefit of mankind as a whole, particular regard being paid to the preferential rights of the State
or country of origin, or the State of cultural origin, or the State of historical and archaeological
origin.”
Article 303 (Archaeological and historical objects found at sea) provides thus:
“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. 4. This article is without prejudice to other
international agreements and rules of international law regarding the protection of objects of an
archaeological and historical nature.”
Neither of the above article was integral to the drafting of the convention, but both form the first
international treaty language that addressed the specific issue of underwater cultural heritage.
Article 149 raises two primary points, each fraught with ambiguity. Article 149 stipulates that
objects found in “the Area” should (1) be preserved or disposed of “for the benefit of mankind,”
while (2) giving preferential rights to three conceivably different entities: the State of origin, the
State of cultural origin, and/or the State of archaeological origin. Questions under the first point
include (a) what constitutes objects, (b) what is the relationship between preservation and
disposal, and (c) how to “benefit” mankind. Under the second point, the Convention similarly
fails to elaborate on how to balance the three different States which could be capable of claiming
preferential rights, nor does it explain what those preferential rights ought to be. Article 149
represents an unenforceable starting point to understanding underwater cultural heritage, but it
does begin to clearly manifest the international community’s desire to protect and preserve
underwater cultural heritage.
Article 303 contains much more specific language pertaining to underwater cultural heritage, and
introduces the primary tension between legal regimes for UCH. Article 303 addresses
archaeological and historical objects at sea, and elaborates on three primary principles: (1) it
bestows a duty on states to cooperate to protect archaeological objects found at sea; (2) it requires
that the rights of “identifiable” owners cannot be infringed; and (3) it suggests that no duty in
UNCLOS affects rights under the law of salvage “or other rules of admiralty.” Each of these three
points has been elaborated on through State practices, domestic laws, and subsequent conventions.
Specifically, principles two and three of Article 303 introduce the defining conflict surrounding
underwater cultural heritage: to what extent are shipwrecks subject to salvage and finds as
opposed to the in-situ preservation required by archaeological practice? These two provisions,
which provide the only substantive international law relating to UCH in international waters, were
obviously left vague and ambiguous. The sheer breadth and scope of the matters covered in the
LOSC and the “consensus approach” adopted throughout the negotiations, which spanned almost
a decade, relegated the issue of the UCH to one of seemingly minor importance compared to the
major issues of the Third Law of the Sea (LOS) Conference. Articles 149 and 303 of the said
convention likewise embody general principles of international law: first, that States have the duty
to protect UCH in the different maritime zones; second, that this duty is undertaken for the benefit
of humanity; and lastly, every State has the duty to cooperate in the fulfillment of these duties.
These principles constitute the very foundation of the UCH Convention itself. The question, thus,
is not one of coverage or mere inclusion in an international legal instrument.
The proper question should be phrased, thence: Is the protection and preservation of UCH under
international law adequate? It was apparent that the international legal framework on the
protection of underwater cultural heritage was inadequate. It was fragmented, ambiguous, and
lacks the mechanism for enforcement.

On the international legal framework on the protection of the underwater cultural heritage, the
division of ocean space into the various maritime zones provided for under the LOS Convention
correspondingly necessitates that any meaningful discussion on the international legal framework
on the protection of the UCH must account for this division. The LOSC makes reference to six
maritime #zones: internal waters,13 the territorial sea,14 the contiguous zone,15 the exclusive
economic zone, 16 the continental shelf,17 and the Area.18 The LOSC carefully laid out the various
rights and duties of states in each of these zones. The UCH Convention follows this schematic
dissection of the ocean into the various maritime zones of jurisdiction. This part of the paper aims
to: first, describe broadly the legal regime of protection within the LOSC; and second, to describe
in greater detail the legal regime within the UCH Convention. The protective regime afforded to
UCH within the framework of the LOSC can be summarized as: first, insufficient in scope;
second, ambiguous in content; and third, ineffective in its protection.19 Thus, even though the
UNCLOS was conceived as a “package deal”, it does not stand in the way of filling the gaps it
has left open with regard to the protection of archaeological and historic objects found at sea.
It is noteworthy that different rules apply to underwater cultural heritage depending on the
different maritime zones in which it is located. Those rules are outlined below by reference to
each maritime zones.
Internal waters, territorial waters, and archipelagic waters: activities relating to relics located
on the seabed or subsoil of internal waters, territorial waters or archipelagic waters, are subject to
the jurisdiction of the coastal state.20 That is, the coastal state is able to exercise jurisdiction over
underwater cultural heritage located in these waters.
Contiguous Zone: activities relating to underwater cultural heritage, prima facie, do not come
within those subject areas, namely, customs, fiscal, immigration or sanitary laws, in which a
coastal state may take preventive or punitive action in the contiguous zone.

13
Article 8 United Nations Convention on the Law of the Sea, 1982
14
Article 3 United Nations Convention on the Law of the Sea, 1982
15
Article 33 United Nations Convention on the Law of the Sea, 1982
16
Article 55 and 57 United Nations Convention on the Law of the Sea, 1982
17
Article 76 United Nations Convention on the Law of the Sea, 1982
18
Article 1 United Nations Convention on the Law of the Sea, 1982
19
Moritaka Hayashi, Archaeological and Historical Objects under the United Nations Convention
on the Law of the Sea, (Marine Policy Publishers 1996) 291.
20
Article 1 and 2 Convention on the Territorial Sea and the Contiguous Zone, 1958
However, Article 303(2) of UNCLOS 1982 provides that, in order to control traffic in
archaeological and historical objects, the coastal state may presume that their removal from the
seabed in the contiguous zone without its approval amounts to an infringement of the laws listed
in Article 33. This provision has a number of curious features. First, by a legal fiction, the removal
of underwater cultural heritage is presumed to be an infringement of the coastal state’s fiscal or
customs laws, as neither immigration nor sanitary laws would apply to such activities. Second, it
differs from the usual contiguous zone jurisdiction in that the coastal state may prevent, or take
punitive action in respect of, the removal of objects located within 24 nautical miles of its
baselines, rather than the coastal state’s enforcement jurisdiction being limited to activities
occurring within the territorial sea.21
Exclusive Economic Zone: By virtue of the 1958 Geneva Convention on the Continental Shelf
(CSC) and UNCLOS, the coastal state has sovereign rights to explore and exploit the natural
resources located on the continental shelf.22 Natural resources can be defined as the mineral and
other non-living resources of the seabed and living organisms belonging to sedentary species. In
1956, the International Law Commission in its commentary on the draft Convention on the
Continental Shelf clarified that ‘natural resources’ did not include ‘objects such as wrecked ships
and their cargoes … lying on the seabed or covered by the sand of the subsoil.’23 As the definition
of ‘natural resources’ in UNCLOS is the same as in the CSC, it thus appears that the coastal state
does not have exclusive jurisdiction with respect to underwater cultural heritage situated on its
continental shelf. One may opine however that underwater archaeology, as an academic
discipline, comes within the purview of ‘scientific research’ relating to the natural resources of
the continental shelf, or the marine environment generally. If this view is correct, then pursuant
to Articles 5(8) of the Continental Shelf Convention and 246(2) of UNCLOS, the consent of the
coastal state would be required before any such activity could be undertaken on its continental
shelf, thereby giving the coastal state a degree of control over activities of third states, their
nationals and vessels. Another view may be that underwater archaeology is excluded from the
ambit of ‘scientific research’ for the purposes of the Continental Shelf Convention and UNCLOS.
This view is supported by the fact that underwater cultural heritage does not form part of the
natural resources of the continental shelf, the text of the relevant provisions and their drafting
history, and the fact that underwater archaeology is not directed at scientific inquiry regarding the
marine environment.

21
Edward Brown, ‘The International Law of the Sea,’ (1994) (1) Introductory Manual Journal; 135
22
Article 2 Continental Shelf Convention and Article 77 United Nations Convention on the Law of the Sea
1982
23
P O’Keffe, Shipwreck Heritage: A commentary on the UNESCO Convention on Underwater Cultural
Heritage (2002) 90
High seas and the Area: The list of ‘high seas freedoms’ in the 1958 Geneva Convention on the
High Seas is not exhaustive24, so that the search for and recovery of underwater cultural heritage
would be governed by the principle of the freedom of the high seas. Under UNCLOS, the situation
is similar, except in regard to relics located within the ‘Area’. Consequently, in the high seas, the
only constraint on states is not to interfere with the exercise by other states of the same freedoms
of the high seas, and the vague duty in Article 303(1) of the UNCLOS. Otherwise, admiralty law
will govern underwater cultural heritage located in the high seas. In regard to underwater cultural
heritage located on the deep sea bed beyond the continental shelf, that is, the ‘Area’,
Article 149 of UNCLOS provides: “All objects of an archaeological or historical nature found
in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular
regard being paid to the preferential rights of the State or country of origin, or the State of cultural
origin, or the State of historical and archaeological origin”.
However, the text finally adopted as Article 149 does not give the International Seabed Authority
jurisdiction over such objects, nor does it specify how such objects are to be preserved or disposed
of ‘for the benefit of mankind as a whole’, appearing to leave the matter to the discretion of
individual states. Further, it does not provide a mechanism by which to determine, in the event of
a conflict, which states are to take preference, or what these preferential rights entail. In this
regard, the phrases ‘state or country of origin’, ‘state of cultural origin’ or ‘state of historical or
archaeological origin’ are particularly unhelpful, as the following example illustrates.
It is also unclear whether, in the event of a dispute, such matters would be covered by the dispute
settlement procedures in Part XI of UNCLOS.

UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL

ORGANIZATION CONVENTION ON THE PROTECTION OF THE
UNDERWATER CULTURAL HERITAGE

The 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, which
originated in a 1994 draft convention by the International Law Association(ILA), came into force
in January 2009. The Convention provides for the protection of underwater cultural heritage, and
expands on the duties identified in Articles 149 and 303 of UNCLOS. The UCH Convention also
includes a set of rules intended to guide States in the protection of cultural heritage, and represent
requirements that States should include in domestic systems governing underwater cultural
heritage.25 Importantly, one of the primary purposes of the UCH Convention is to preserve
cultural heritage for archaeological use and study, rather than to treat it as an undersea resource.

24
Article 2 of Geneva Convention on the High Seas 1958
25
Article 33 United Nations Educational, Scientific and Cultural Organization Convention on the
Protection of the Underwater Cultural Heritage, 2001.
The UCH Convention has two particularly important clauses relevant to uses of underwater
cultural heritage in relation to other bodies of law: (1) the salvage clause 26 and (2) the non-
commercialization clause. Article 4 of the UCH Convention provides that activities related to
UCH may not be subject to the law of salvage or law of finds, unless those activities are (a)
properly authorized, (b) in compliance with the UCH Convention, and (c) capable of ensuring
“maximum protection” for any UCH involved. This seemingly self-contradictory provision
begins with a straightforward rule preventing the application of salvage law, yet then backtracks
and provides exceptions engineered to specifically allow the application of salvage law for
underwater cultural heritage. This provision is written in conflictingly because it represents an
attempt at compromise between civil law countries, which overwhelmingly rejected the
application of the law of salvage to UCH, and common law countries, which supported salvage.
The non-commercialization clause was another source of conflict about the application of salvage
law to underwater cultural heritage. The clause, which prohibits the “trade . . . or irretrievable
dispersal” of cultural heritage, softened somewhat during negotiations from the unyielding stance
of the International Council on Monuments and Sites (ICOMOS) charter, which declares that
commercial exploitation is incompatible with responsible preservation efforts. A primary purpose
of this clause was to prohibit “treasure hunters” from stealing and selling valuable historical
artifacts looted from wrecks. While the compromise provision is carefully worded to allow certain
commercial actors access to underwater cultural heritage, it emphasizes the controversial question
about the extent of State supervision and control over salvors, treasure hunters, and contractors.

There is therefore a recognition that the threat to UCH is a global threat and that the preservation
of UCH is a necessity which states must undertake in the interest of humanity. On addressing the
issues of ownership and abandonment, the International Law Association (ILA) and early
UNESCO drafts had proposed that the convention be applicable only to UCH that has been
abandoned for at least 100 years. While this seemed like an attempt to avoid questions of
ownership, uncertainties regarding the determination of abandonment had the effect of broadening
negotiations to include these issues, particularly with regard to state owned vessels. 27 The issues
of ownership and abandonment has been a concerned litigation discourse over the years. 28 While
questions of ownership and abandonment of UCH, particularly wrecks, is problematic, it should
not have any effect on the preservation of the archaeological values of the wreck and the deletion
of the abandonment criteria should be widely welcomed.

26 Article 4 United Nations Educational, Scientific and Cultural Organization Convention on the Protection

of the Underwater Cultural Heritage, 2001.

27
Sea Hunt Inc v. Commonwealth of Virginia 221 F 3d 634(2000)
28
Columbus-America Discovery Group v. Atlantic Mutual Insurance 742 F 1327 (1990)
The issue of ownership had earlier arose in Treasure Salvors Inc. v. Unidentified Wrecked and
Abandoned Sailing Vessel29; [n early June 1971, the Plaintiff discovered what was considered
to be the remains of Nuestra Senora de Atocha which was besieged by hurricane and sunk in
1622 causing the drowning of five hundred and fifty persons and immense treasure was lost. Upon
discovery of the treasures and the remains of the ship at their own expenses, the United States
intervened claiming title to the discoveries. The sole issue raised by the court was “whether
ownership of an abandoned derelict (the Atocha) and its treasure, found by a treasure hunter
(Treasure Salvors Inc) outside the territorial limits of the state (The United States), should be
awarded to the treasure hunter discovered at its own expense or to the state haven been discovered
in international waters”. The United States based its claim on the doctrine of “Sovereign
Prerogative,” a common law notion derived from the right of the King of England to objects
recovered from the sea by his subjects. The U.S contended that the doctrine of sovereign
prerogative had been legislatively asserted by congress through the enactment of the Antiquities
Act, 1970 and the Abandoned Property Act, 1970. Dealing first with the Abandoned Property
Act, the court noted that it had long been decided that the Act referred only to property “strewn
about the country and its harbors during the civil war” 30 and clearly, the Atocha was not within
that purview. Secondly, on the Antiquities Act, in similar fashion, purports to apply to any historic
or prehistoric ruin or monument, or to any object of antiquity. But this Act, the court pointed out,
has been held to be unconstitutionally vague. Moreover, both the Antiquities Act and the
Abandoned Property Act apply only to property found within the jurisdiction of the United States.
The Atocha, lying on the outer continental shelf beyond territorial waters was plainly beyond the
reach of the United States; thus neither Act could apply to it. The United States went further to
assert that the Atocha was within the jurisdiction of the United States through the use of the Outer
Continental Shelf Lands Act (OCSLA).
The court discountenanced that position since the statute (OCSLA) merely asserts jurisdiction
over the minerals in and under the continental shelf. Additionally, the court noted that even if
OCSLA did extend the jurisdiction of the United States over wrecked Ships, it would be invalid
because it would conflict the Geneva Convention on the Continental Shelf. And the court pointed
out, the International Law Commission, in its report on the Geneva Convention stated that it is
clearly understood that the rights in question do not cover objects such as wrecked ships and their
cargoes (including bullion) lying on the seabed or covered by the sand of the subsoil. Thus, having
considered and rejected each aspect of the United States' "hustled" sovereign prerogative theory,
the district court granted Treasure Salvors' motion for summary judgment, declaring it the new

29 569 F. 2d 330
30
Russel v. Forty Bales Cotton, 21 Fed.Cas. No.12,154 (1872)
owner of the Atocha and her treasure as against the whole world. The United States appealed. In
addition to reasserting its claim that Congress had legislatively asserted sovereign prerogative
through the Abandoned Property Act and the Antiquities Act, the United States also contended
that a legislative assertion of the doctrine was not necessary. The Fifth Circuit rejected these
arguments and others raised by the United States and affirmed the district court's decision, though
modifying it slightly.
Another example of Underwater Cultural Heritage on the issues of ownership and abandonment
is the RMS Titanic; where a British passenger ship that sank in the North Atlantic Ocean on 15th
April 1912 at 2.20am after colliding with an iceberg and its sinking caused the death of about
1,524 people. The wreckage was discovered on 1st September 1985, during a joint French/U. S
expedition led by Jean-Luis Michel of the French Research Institute for the Exploration of the
Seas (IFREMER) and Robert Ballard. It was found approximately 340 nautical miles off the coast
of Newfoundland, Canada 3800 meters beneath the surface. The titanic disaster led to major
improvements in maritime safety like the establishment of the International Convention for the
Safety of Lives at Sea (SOLAS) in 1914, which still governed maritime safety today. It also
contributed to the establishment of the International Maritime Organization (IMO). 31 It is
pertinent to note that notwithstanding that the RMS Titanic wreckage was found by a joint
French/U. S expedition, it is not automatically owned by them. As in the case of spontaneous
salvage, “the law of salvage presumes that the owner desires the salvage service.”32 This contrasts
with the Law of Finds which is a common law doctrine of “finders, keepers” for property. Under
the Law of Finds, for a finder to gain title to a vessel it must have first been abandoned by its
owners. Abandonment, in the context of a sunken vessel, exists where there has been either an
express declaration by the owners that they are relinquishing title to the vessel or where it can be
implied through desertion of the property with no indication of intent to return. 33 According to
admiralty law, when no owner exists or can be determined, the party who recovers the property
at sea is entitled to the application of the law of finds. The law of finds is commonly considered
a maritime concept despite its common law genesis.34
In Pierson’s Case, a New York court denied a hunter’s claimed right to a fox holding that an
individual’s mere pursuit of an animal did not convey upon that individual title to it. Tittle was
granted to a second hunter who actually seized the fox.

31
Mariano J. Aznar and Ole Varmer, ‘The Titanic as Underwater Cultural Heritage: Challenges to its Legal
International Protection’ (2013) (44) Ocean Development and International Law Journal; 110.
32
RMS Titanic Inc. v. Haver, 171 F.3d 943, 943 (1999)
33
RMS Titanic Inc. v. Haver, 171 F.3d 943, 110 (1999)
34
Pierson v. Post, 3 Cai R. 175 (N.Y Sup. Ct 1805)
While a salvor merely possesses the ship under salvage law, under the law of finds, the finder is
entitled to the property since the law assumes that “the property involved either was never owned
or was abandoned.”35 In determining the issues of ownership or abandonment of an underwater
objects, the provisions of the UNESCO Convention, the law of finds and the Salvage laws should
be put into due consideration.

CONCLUSION
Underwater cultural heritage which includes evidence of past cultures preserved in
shipwrecks and other underwater artifacts, enables mankind to open a window to the
unknown past and enrich the understanding of history. Thus the need for the protection of
these cultural heritage is paramount to mankind and such need is burdened on international
law of which the United Nations Convention on the Law of the Sea, United Nations
Educational, Scientific and Cultural Organization, The Law of Finds, Salvage Law and
other International bodies, has made attempts at addressing the issues relating to
underwater cultural heritage. Despite the historic value of the underwater cultural heritage,
aesthetic beauty alone could justify consideration of the protection of underwater cultural
heritage and in some other cases, it could be the narrative connected to the object found
that makes it unique and worth protecting.
The UCH Convention has been the subject of both strong praise as well as strong
criticism36 as well as other International Convention on the Underwater cultural heritage,
thus there is need for recommendations and proffering solutions.

35
Hener v. United States, 525 F. 350, 356(1981)
36
David J. Bederman, ‘The UNESCO Draft Convention on Underwater Cultural Heritage: A
Critique and Counter-Proposal,’ (1998) (30) Journal of Marine Law and Commerce; 331.
 RECOMMENDATIONS
1. The concept and importance of the underwater cultural heritage should be public
oriented as to protect objects found at sea.
2. A key role of inter-institutional cooperation in planning, monitoring, as well as
defining sustainable uses of underwater cultural heritage to confront pillage, looting,
invasive fishing and other threats that underwater cultural heritage faces, should be
established.
3. A review at the definition and general nature (inclusive of the ownership status) of
the concept of the underwater cultural heritage should be put into consideration, thus
giving a concise and comprehensive framework to the concept.
4. There is need for the establishment and improvements of local legislation on the
preservation of underwater cultural heritage especially in developing and under-
developed countries.
5. The ratification of the UNESCO convention on the Protection of Maritime and
Underwater Cultural Heritage could raise awareness of the value and threats to
UCH, and perhaps enhance opportunities for expanded research in support of
management.
6. The synergy between effective management of living marine resources and cultural
resources should be further exploited
 BIBLIOGRAPHY
TEXT BOOKS
1. Couper A, The Principal Issues in Underwater Cultural Heritage (Marine Policy Publishers
1996)
2. Hayashi M, Archaeological and Historical Objects under the United Nations Convention on
the Law of the Sea, (Marine Policy Publishers 1996)
3. O’Keffe P, Shipwreck Heritage: A commentary on the UNESCO Convention on Underwater
Cultural Heritage (2002)
4. Strati A, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the
Contemporary Law of the Sea (The Hague 1995)

JOURNALS
1. Craig Forrest, ‘Strengthening the International Regime for the Prevention of the Illicit Trade
in Cultural Heritage,’ (2003) (4) Melbourne Journal of International Law.
2. David J. Bederman, ‘The UNESCO Draft Convention on Underwater Cultural Heritage: A
Critique and Counter-Proposal,’ (1998) (30) Journal of Marine Law and Commerce.
3. Edward Brown, ‘The International Law of the Sea,’ (1994) (1) Introductory Manual Journal
4. Jeffrey T. Scrimo, ‘Raising the Dead: Improving the Recovery and Management of Historic
Shipwrecks,’ (2000) (5) Ocean and Coastal Law Journal
5. Mariano J. Aznar and Ole Varmer, ‘The Titanic as Underwater Cultural Heritage: Challenges
to its Legal International Protection’ (2013) (44) Ocean Development and International Law
Journal.
6. Russel K. Lamotte, ‘Introductory Note to UNESCO: Convention on the Protection of the
Underwater Cultural Heritage,’ (2002) (41) International Legal Materials;

ONLINE SOURCES
1. Jay Bennett, ‘Less than 1 Percent of the World’s Shipwrecks Have Been Explored’, (2016)
Popular Mechanics ≤http://www.popularmechanics. com/science/a19000/less-than-one-
percent-worlds-shipwrecks-explored/≥ accessed on 11th August 2018
2. Edward Brown, ‘Legal loopholes’ (1997) 87 UNESCO Sources 10.
<http://www.unesco.og/87sources/> accessed on 13th August 2018
3. Petter Karlsson, ‘Wasa Goes Down, Can Come Up!’ (1997) 87 UNESCO Sources 15
<http://www.unesco.og/87sources/> accessed on 13th August 2018
4. Sue Williams, ‘Underwater Heritage: A Treasure Trove to Protect’ (1997) 87 UNESCO
Sources8 <http://www.unesco.og/87sources/> accessed on 13th August 2018