Mr. Robert Blumberg
Oceans, Environmental and Science Bureau
Department of State
2201 C Street, NW
Washington, District of Columbia, 20520

Dear Mr. Blumberg:

I am writing on behalf of the Historic Shipwreck Salvage Policy Council to comment on the proposed draft Convention on Underwater Cultural Heritage Convention and the issues to be raised during the next round of talks in Paris starting on March 26.

Let me start by expressing our extreme disappointment with Chairman Lund's March 1, 2001 Single Negotiating Text. As you are aware, the text takes years worth of careful negotiations and cast much of it aside. We had serious reservations about the previous texts, but the newly proposed text is significantly less palatable. We are mindful that the United States is not currently a member of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and as such, our desires carry less weight than we would like at meetings of that organization. Nevertheless, the United States delegation should prepare and propose an entire counterproposal draft of the Convention that more accurately reflects the hard won gains of the last several years of negotiations.

The problem with allowing the Chairman's draft to be the starting point is that you begin from such a dreadful position. However, you have indicated that, for now, it is not the policy of the United States delegation to have a specific counterproposal. So, allow me to address some of the myriad deficiencies in the overall negotiations by referring to the Chairman's draft.

The United States is uniquely positioned as the world leader in lawfully recovering, restoring and conserving history from the ravages of the sea. Much of this success can be attributed to historic salvors guided by the federal admiralty courts. The wisdom of the founders that private enterprise with limited government regulation was for the greater public good has been shown by the rediscovery of far more lost ships and their histories with private labor and capital than by exclusively relying on government and academic funding ever could. Thus, the language in the draft convention must be reworked to more adequately reflect the positive role that commercial salvors play in preserving history.

Specifically, Article 3, Paragraph 6 should be removed. Likewise, Rule 2 of the Annex should be stricken. We are mindful that the phrase commercially exploited can theoretically be read with the language in Article 5 that in full conformity with this Convention to arguably allow salvage under the Convention. While we agree with this reading, however, it would not provide much protection for commercial salvors until tested in the United State's courts. The uncertainly of the law and the prohibitive legal cost would certainly be a major disincentive to commercial salvage work. Surely it is better for everyone that the United States take the lead in negotiating a workable treaty than to have to waste time and resources in litigation better spent saving history.

Concerning Article 5, it is possible that under a model similar to the one currently used by the RMS Titanic salvors to not sell fungible artifacts could be viable under the law of salvage, it is much more problematic under the law of finds. Unlike salvage, where the salvor takes possession of the artifacts in trust for the original owner, under the law of finds, the finder is the owner. Therefore, finders have the ability to sell artifacts that salvors may not have. The law of finds may be extinguished under this Convention, even with the final clause in Article 5. Throwing out centuries of practice in the general maritime law along with provisions of the United Nations Law of the Sea Convention (UNLOS) preserving admiralty law would indeed be poor policy.

Another poor policy that should be excised from the treaty is the preface for in situ preservation. First of all, it is clear that this phrase means different things to different people. Accordingly, at a minimum, it should be defined in Article 1. In situ is not a panacea; except in extremely limited anaerobic conditions that almost never exist in salt water, water generally is harsh on cultural heritage. While in situ may be the first step in deciding what should be recovered and preserved, the language of the treaty should more adequately reflect that this is an approach that should be instituted at the finding of a site until a recovery plan can be formulated rather than a long term policy of preservation.

There also seems to be some confusion regarding the new language in the Chairman's draft establishing a Scientific and Technical Advisory Board (STAB) in Article 23. If the STAB is indeed in the final draft, then the representation on the board should be significantly increased to include both commercial salvors and representatives of the many other industries that will be impacted by this proposed treaty. Also, great care should be taken in reformulating the powers of the STAB in Paragraph 6 of Article 23. Since almost everything in the articles concerning commercial exploitation and artifact recovery is repeated in the annexed rules, the Stab's authority over implementation guidelines for the rules is a great source of potential mischief.

Implementing the treaty will require guidance from the STAB, but most of the actual regulation will come form the states competent authority For historic salvors that work in other national waters, this 'competent authority' becomes a concern. The treaty is largely silent on what constitutes a 'competent authority' and what limitations that the treaty places on them.

One of the areas where the 'competent authority' has transnational authority is under Article 17, Paragraph 1. The limitation on transferring objects that have been excavated without a permit from a 'competent authority' or not in conformity with the treaty potentially could become a tremendous problem. It is entirely possible under this Article to lawfully raise, record and conserve an object under the most stringent of archeological standards with clear title awarded by an admiralty court and still have the object subject to seizure. There is no provision for the legitimization of other competent authorities along the lines of the United State's full faith and credit clause or the United Nations' Treaty on the Recognition and Enforcement of Foreign Arbitral Awards. Reading the clause closely, the 'or not in conformity with the Convention' seems to assume that a state party could ignore the permit from another state party's 'competent authority.' Notice also that it is the 'permit' to be recognized or not, rather than any certification of authenticity. The Article also does not define a starting date for recognition of the permit. While Article 25 does propose a slow and cumbersome dispute settlement regime, it would be much better to address the very predictable problems in Article 17 in advance.

The potential problems with Article 17 are also demonstrated in Paragraph 4 that contains contradictory directions. If one state seizes an object that has a verifiable link to another state, conflict could arise if the seizing state believes that the state with the link lacks the ability to conserve an object. Current state practice shows that such contentious problems do arise in the terrestrial context. These are limited examples, but the entire Article deserves closer scrutiny than it has currently received.

Despite a great deal of scrutiny, the provisions of Article 2 still need a great deal of work. One of the major problems is the definition of a warship. International law has a very clear definition of a warship in UNCLOS. Likewise, the United States clearly defines warships versus other public vessels. The treaty, and the United States' delegation, should stop merging warships with other sovereign vessels and vessels in government service or vessels just carrying government cargo. It is demeaning to the honor and memories of sailors lost while serving their country aboard warships to equate their loss to merchant mariners that happened to be carrying a government cargo. Moreover, it undermines the reasons for and respect of sovereign immunity. Article 2 takes only a minor step towards preserving the distinctions with the exclusion of 'only on governmental and for non-commercial purposes.'

Also in Article 2 is an attempt to codify the 'express abandonment' standard. While some courts have found that the United States may have a constitutional duty to not abandon property with the mere passage of time, that clause does not apply to all of the sovereigns of the world. Mere abandonment would be sufficient. If the concern is over the loss of sovereign immunity, then the contradiction in Paragraph 4 that the flag state cannot take actions towards a flag states own vessel without collaboration of the coastal state should be addressed.

The concerns outlined above just highlights some of the many problems with the Chairman's draft of the Convention. It is clear that the United States delegation will have a great deal to work on during the Paris negotiations. I wish you luck in crafting a Convention that will be acceptable to the historic salvage community, Congress and the American people.

Sincerely,
Pat Clyne
Director
Historic Shipwreck Salvage Policy Council