About ProSEA:

The Professional Shipwreck Explorers Association (ProSEA) is a voluntary, not-for-profit trade association for companies and individuals engaged in commercial exploration and recovery of shipwrecks. ProSEA has developed a rigorous Code of Conduct for its members, which demands observance of sound business practices, responsible stewardship, and recognition of historic preservation values in any activities involving historic or archaeologically-significant shipwrecks. Specifically, ProSEA members observe the primary archaeological requirements of the ICOMOS Charter for the Protection and Management of the Underwater Cultural Heritage, and, in some respects, exceed those requirements. As a service to its members and to the international community, ProSEA is developing an International Registry of Underwater Cultural Heritage, a virtual catalogue of artifacts that have been permitted to be placed in private hands. Such a Registry will allow researchers to access images and information about artifacts and to track their whereabouts for further study.

ProSEA’s Position on Underwater Cultural Heritage:

ProSEA embraces the idea that underwater cultural heritage (including historic and archaeologically-significant shipwrecks) is a significant resource requiring careful management. The best way to manage that resource is to recognize that there are multiple users of shipwrecks. These constituencies include nautical archaeologists (whether sponsored by academic, governmental or private institutions), marine and coastal area users (including fishing, marine construction, cable-laying, petroleum, and tourism sectors), sports and recreational divers, shipwreck salvors and explorers, and, of course, the wider public itself. In order to be successful, any resource management policy must take into account access by all these constituencies and user groups.

ProSEA’s Position concerning the UNESCO Draft Convention:

ProSEA recognizes the need for development of a mechanism for the management of Underwater Cultural Heritage, especially in International waters, where there is virtually no protection for archaeologically-significant shipwrecks at this time. However, this mechanism needs to be carefully formulated in a manner that encourages cooperation with all user groups involved with the shipwreck resources of the world, and does not conflict with current applicable legal regimes and policies.

As currently drafted, the UNESCO Draft Convention on Underwater Cultural Heritage fails to recognize multiple users of shipwreck resources and categorically denies commercial access to those resources. For this reason alone, the Draft, as currently proposed, is unacceptable to ProSEA.

ProSEA’s objections to the current draft of the UNESCO Convention can be summarized as follows:

The Draft's current definition of "underwater cultural heritage" (article 1.1) is too broad. No sensible regime can be constructed on this subject if underwater cultural heritage is defined as "all underwater traces of human existence." Such a definition trivializes the importance of underwater cultural heritage and makes effective implementation impossible.

ProSEA recommends that a definition of underwater cultural heritage be constructed which identifies, in a rigorous manner, only those objects of special or outstanding archaeological significance. Whatever definition of UCH is agreed upon, it must be uniformly applied.

The Draft currently conflicts with other aspects of the law of the sea. To the extent the Draft sanctions coastal State competence over shipwrecks located beyond that State's contiguous zone, it manifestly contradicts articles 246 and 303(2) of the 1982 Convention.

ProSEA recommends that the Draft not sanction any increased coastal State authority:

The Draft currently virtually outlaws commercial access to shipwrecks over 100 years of age. Articles 5(3) and 7(1) require that coastal States enforce the relevant provisions of the Annex, and two of these (clauses 2 & 16), prohibit commercial sale of artifacts recovered from shipwrecks. (These are the only clauses of the Charter that ProSEA opposes.) Moreover, article 12(2) of the Draft achieves the same result by barring the application of "Any internal law or regulation having the effect of providing commercial incentives for the excavation and removal of" UCH. Draft article 12(2) conflicts with article 303(3) of the 1982 Convention which preserves "the law of salvage or other rules of admiralty."

ProSEA recommends that these provisions in the Draft be removed and that any treaty project recognize commercial incentives for legitimate shipwreck exploration which adheres to proper archaeological standards. Preferably, an incentive regime should consider application of the maritime law of salvage or finds by admiralty courts of competent jurisdiction.

ProSEA understands and supports the need for specific international legislation addressing the protection of the underwater cultural heritage. The association also believes in maintaining the rights and duties bestowed upon those working on the sea-bottom by admiralty law. In our view admiralty law, as it is evolving to consider archaeological principles, has the potential to enhance the protection of the underwater cultural heritage.

The current Draft includes inadequate dispute settlement mechanisms. Article 19 provides for arbitration as a first option, after which recourse may be taken to the International Court of Justice. No other forms of Alternative Dispute Settlement mechanisms are mentioned, nor has access to dispute settlement been allowed for other than State Parties. As the Draft Convention stresses the principle of shared responsibility, and as the disputes most likely to arise will be between private and State parties, the article is fairly limited. Likewise, some provision should be made for the prompt release of vessels and crews, in the event that the provisions of draft article 10 are implicated. This would be consistent with the provisions of the 1982 U.N. Convention on the Law of the Sea.

ProSEA recommends that the Convention’s dispute settlement provisions be accorded serious consideration. Aside from recourse to arbitration and the ICJ, other forms of alternative dispute resolution need to be specifically addressed. Moreover, ProSEA believes that the dispute settlement provisions of the Law of the Sea Tribunal need careful consideration, as they may offer a credible institutional setting for disputes arising under the Convention. In addition, ProSEA recommends that the interests of those other than State parties be recognized, and that any dispute settlement mechanism decided upon allows access to all parties involved in the interpretation or application of the present Convention or the operative provisions of the rules of the Annex. Lastly, a specific provision requiring prompt release of vessels or crews involved in exploration of underwater cultural heritage be included.