This is Admiralty Attorney Peter Hess's report to the Maritime Law Association (MLA) on UNESCO's International Convention on Underwater Cultural Heritage held in Paris, France- April 19-24, 1999.

I thank the Maritime Law Association for the honor of serving as its unofficial "Observeur" during April's negotiations at UNESCO's Paris headquarters on its proposed International Convention on the Protection of the Underwater Cultural Heritage ("Convention"). The session opened on Monday, April 19th and ran through Saturday the 24th. More delegates were in attendance than during last summer's session, although this appeared to be due to larger individual national delegations rather than through the participation of additional nations. The Convention began much like last summer's negotiations, with a large plenary session for two days followed by smaller breakout groups of delegates addressing definitions, jurisdictional issues and the Convention's consistency with UNCLOS, and appropriate standards for underwater archaeological excavations.

The elected Chair, Karsten Lund of Denmark is an international lawyer with some background in the United Nations Law of the Sea Convention ("UNCLOS"); however, the number two delegate, the Rapporteur, hailing from Benin in West Africa, as well as the rest of the leadership committee--Tunisia, China, Argentina, and Ireland--have little, if any, experience in regulating salvage operations or managing underwater cultural heritage ("UCH"). The IMO did not participate in this session in any capacity. The committee proved ill-equipped for directing or limiting the debate and in organizing meeting logistics, leading to delays in providing necessary materials and an inability to circumvent the frequent impasses that precluded consensus.

Among the Observeurs were representatives of several organizations and/or interest groups facing an uncertain future if the draft Convention is enacted. These include Pat Clyne, Vice President of Salvors, Inc., Mel Fisher's company engaged in the recovery of several treasure-laden Spanish galleons off the Florida coast under the protection of U.S. admiralty jurisdiction; Eke Boesten and Craig Forrest, experts on international and salvage law from The Hague, Netherlands and Capetown, South Africa, respectively; Steve Yormak, Esq., an Ontario attorney representing several clients engaged in historic shipwreck salvage in Canadian waters; and Dr. David Saul of Bermuda, an avid shipwreck diver, founder of the Bermuda Underwater Exploration Institute and the former Prime Minister of that wreck-studded island nation. Several of these individuals are among the founders of the Professional Shipwreck Explorers Association ("ProSEA"), an international organization seeking to protect the traditional freedom of the seas and the rights of finders and salvors under admiralty law.

I. Substantive Overview :

In essence, the Convention proposes to "protect" UCH by giving title to "all traces of human existence underwater" to coastal nations while also granting them the power to prohibit its recovery by private entities. By permitting signatory nations to exercise sovereignty over international waters in a far more pervasive manner than presently envisioned or permitted under UNCLOS, the Convention allows for significant deviation from extant international law. Following a pre-meeting intervention by the United States, this resulted in the withdrawal of an endorsement of the draft Convention by DOALOS, the United Nations' Division of Ocean Affairs and the Law of the Sea.

The Convention is also a frontal assault on U.S. admiralty jurisdiction and the venerable law of salvage and finds, which will be abolished if the U.S. is to sign and ratify the Convention. This is because in its zeal to outlaw the sale, purchase or trade of UCH, signatories are obliged to rescind any law or regulation that provides commercial incentive for the recovery of UCH--i.e., admiralty law's salvage award (Art. 12, #2).

Two words summarize April's proceedings: tedious and infuriating. Although the snail's (escargot's?) pace of the discussions is not unusual for international negotiations, the one-sided nature of the debate was particularly frustrating: the floor was opened only to national delegations and Non-Governmental Organizations ("NGO's") with a "special relationship" to UNESCO--a status conferred only on NGO Convention proponents. In spite of our decades of collective experience in adjudicating salvage rights, organizations like the MLA were denied participation in the discussions. Moreover, the extent to which the delegates comprising the self-described "meeting of experts" remain uninformed about the subject matter and fully ignorant of the extant role of admiralty law was both astonishing and depressing.

One example is illustrative. I asked a Belgian delegate, a female bureaucrat age about 30, if she was a diver; as I expected--and as is nearly universal among the "experts"--she had never seen a shipwreck. I then asked what input Dr. Robert Stenuit of Brussels had had with shaping the Belgian position on the Convention. Stenuit is a world-renowned underwater archaeologist and author, the first to discover and salvage shipwrecks from the Spanish Armada off Ireland, as well as dozens of other historically significant vessels worldwide. To my chagrin, the Belgian delegate responded sheepishly that she had never heard of him!

II. The U.S. Position:

The United States was represented by attorney Bob Blumberg of the State Dept.; Ole Varmer, Esq. of NOAA; Mike Bok, Esq., Dept. of Defense; Russ Lamont, Esq., State Dept. (official delegation "legal advisor"); Michele Aubry, National Park Service; Jerome Hall, Institute of Nautical Archaeology; and Greg Stemm, Odyssey Marine Exploration, Inc., a commercial salvor. The delegation was dominated by federal bureaucrats whose anti-admiralty law ideology established by an inter-agency Task Force working on these issues for the past several years permeates the official U.S. position. This notwithstanding, the U.S. delegation was virtually the only one not implacably hostile to the idea of any continued role in the future for private enterprise and/or admiralty jurisdiction in the exploration for and recovery of UCH.

The primary goal of the U.S. was to ensure consistency with UNCLOS. Proposals such as a newly-designated "cultural heritage zone" coextensive with, or as some nations have suggested, extending beyond the 200 nautical mile Exclusive Economic Zone ("EEZ") were singled out as particularly objectionable.

Recognizing the need for flexibility in the interpretation and enforcement of the Convention, the U.S. consistently argued for making mandatory provisions thereof discretionary. To do otherwise makes ratification of the Convention and the enactment of requisite enabling legislation problematic, a phenomena particularly true of the United States. As a practical matter, this proposal simply entailed suggesting the replacement of the Convention's many "shall"s with "should"s.

With significantly less enthusiasm, the U.S. pushed for recognition of "multiple uses" of the resource base: that there are other interest groups with a stake in UCH, including salvors, recreational divers, fishermen, cable layers, etc. While the concept was endorsed by the U.K., Norway and the Philippines, most delegations--firmly under the control of the cultural resource bureaucrats who are to be enriched by the windfall of UCH--continued to denounce the idea of "multiple use" as heresy.

Not included in its official commentary, but the subject of vigorous discussion between Observeurs and the U.S. delegation outside of the UNESCO meetings was the projected implementation of multiple use. The Interagency Task Force wishes to remove jurisdiction over UCH from admiralty and establish in its stead a bureaucratic model whereby a finder or prospective salvor would apply for a permit from a newly-designated federal agency. Appellate review would remain with the federal courts. Notwithstanding the ringing endorsement of admiralty jurisdiction over historic shipwreck salvage operations by an unanimous Supreme Court last term in California v. Deep Sea Research, Inc., 118 S.Ct. 1464 (1998), the Task Force envisions the retention of equitable admiralty law principles--such as the time-honored Blackwall criteria for the determination of a salvage award--with the elimination of the presumption of marine peril in favor of the Convention's preference for "preservation in place" (i.e., "leave it there and do nothing").

Thus, the primary objection that the U.S. delegation has with admiralty jurisdic-tion is the philosophy underlying the salvage award: that property found on the seafloor is imperiled and should be recovered and returned to the stream of commerce. The bureaucratic paradigm is to leave such discoveries alone (until the taxpayers can be hoodwinked into financing a costly governmental expedition). Yet even assuming that a shipwreck has reached equilibrium with its submerged environment, marine peril is created by the very act of discovery, as the site becomes vulnerable to looting and unscientific disturbance. By mandating that archaeology be part and parcel of any salvage operations on a site of historic and scientific significance, admiralty law already protects the values that the bureaucratic model seeks to promote. And by making the finder a stakeholder in the ultimate disposition of the property, admiralty has created powerful incentives to ensure good faith in the conduct of any recovery operations.

The U.S. has already recognized the difficulty in enacting a Convention mandating the elimination of all commercial incentive for the recovery of UCH and has wisely suggested a reservation clause enabling signatory nations to opt out of this particularly draconian proposal. As widespread international ratification of the Convention is necessary to create an effective legal regimen protecting UCH, philosophical differences notwithstanding, many nations appeared resigned that a reservation clause allowing for selective adoption of more controversial provisions thereof will be necessary. The MLA should vigorously push for such a reservation clause and lobby major maritime nations to exercise it. Having succeeded there, the retention of traditional admiralty jurisdiction can be effectively defended before Congress.

III. Definitions of Terms:

Sharp differences remained unresolved over definitions of "UCH", "abandonment" and "warship"; in two days of debate by a group of breakout delegates, no consensus was reached on any single term. For example, while there was widespread agreement that defining UCH as "all traces of human existence underwater" was too broad, many nations opted for the equally problematic "certain traces . . ." while the U.S. pitched a definition which equates UCH to its historic or archeological significance, as is presently required under our domestic law in nominating properties to the National Register of Historic Places.

The concept of "abandonment" as a threshold to any governmental assertion of ownership is, lamentably, an alien one to many nations. Thus, while the U.S., U.K. and several other major maritime nations recognized the takings problem which ensues when private property is converted to public use, few of the lesser developed states are so burdened and could scarcely comprehend a legal regimen restricting or conditioning the seizure of private property by the state. These delegations were extremely hostile to the concept that UCH off their shores might still belong to marine underwriters or even other sovereign nations.

This controversy dovetailed with the question of what constitutes a "warship", which remains the property of the flag nation in perpetuity and exempt from the provisions of the Convention. As was the case last summer, Spain was the leading advocate of a broad definition of the term, staking out a position by which Spain can maintain title to its shipwrecked treasure galleons. Opposition to the exclusion of warships from the Convention has been particularly strong from Latin American nations-- former Spanish colonies--who assert that the coastal nation should determine the disposition of any shipwrecks found within their EEZ. Little progress was made in resolving this issue.

The U.S. reiterated its deference to the ownership claims of foreign nations, as recently seen in litigation before the U.S. District Court for the Eastern District of Virginia. In a case pitting the Commonwealth of Virginia and its permittee, Sea Hunt, Inc.--the finder of the Spanish wrecks of JUNO (1802) and LA GALGA (1750) off Assateague, Virginia--against the U.S. and Spain, the issue of abandonment of shipwrecked warships has been raised for the first time. Judge Calvitt Clarke has ruled that LA GALGA was formally abandoned in 1763 when Spain surrendered Eastern North America to Great Britain at the end of the Seven Years (French & Indians) War; but the JUNO remains Spanish property. The issue of the salvage award to be paid Sea Hunt for the discovery of the treasure-laden JUNO and their right to continue salvage remains to be litigated. Sea Hunt, Inc. v. Shipwrecked Vessels, ---F Supp.2d---, No. 2:98cv281, (E.D. Va., 1999).

IV. Consistency With UNCLOS:

Two other breakout groups began working on Thursday. Convention Articles 4-7, dealing with jurisdictional issues, have proven particularly problematic for the maritime nations that had been most directly involved in the UNCLOS negotiation. Although the UNESCO Secretariat suggested amended language for these provisions (appended hereto), consensus on any of these eluded the delegates. For example, nearly an entire morning was spent discussing Article 4 #1, which is simply a restatement of existing international law! Little headway was made on related issues; the questions of the jurisdictional reach of coastal states and flag state jurisdiction over vessels flying its flag remain controversial and unresolved.

Canada has made a particularly strong effort to recognize coastal state competance to protect UCH on the Continental Shelf, clearly envisioned as encompassing at least part of the Area seaward of the EEZ. The ultimate goal of Canada's efforts appears to be its exercise of jurisdiction over the TITANIC, which lies approximately 350 nautical miles off Nova Scotia. If made a part of the Convention, such a proposed regimen--clearly inconsistent with UNCLOS, which limits coastal state sovereignty in the EEZ seaward of the Contiguous Zone to the regulation of the taking of natural resources, not UCH--many maritime nations, including the U.S., U.K., France, Russia and Norway, indicated that they would be unlikely to sign on.

V. Standards for Underwater Excavations:

As originally proposed, the Convention incorporates the terms of the International Council on Museums and Other Sites' ("ICOMOS") Charter for the Protection and Management of UCH, which are, by and large, similar to the archaeological standards enforced by U.S. admiralty courts. As archaeology is made the sine quo non of admiralty jurisdiction over historic shipwrecks, it is evident that the Convention is aimed not at protecting archaeological values, but rather at granting ownership and control over UCH to the world's governments. This is perhaps best illustrated with one glaring difference between admiralty law and the Convention, one of its most controversial provisions: ICOMOS' prohibition of the sale, trade or purchase of UCH.

A breakout session addressing excavation standards was convened and did make some progress in drafting excavation standards over which widespread consensus was reached. These include the recordation of archaeological data, the conservation and study of artifacts recovered, and the sharing of the knowledge derived with scholars and the public. However, the most intractable issues were debated but by no means agreed upon. This includes the aforementioned prohibition of sale, permanent curation of all UCH without irreparable dispersal thereof, and pervasive restrictions upon commercial activities related to UCH--provisions designed to make privately-funded exploration and salvage of UCH economically infeasible.

Canada, whose draft was being debated, immediately sought to isolate divers and salvors from other interest groups by proposing to limit the Convention's reach to "activities directed at UCH", rather than, for instance, the inadvertent destruction of a shipwreck site by a trawler net. This clever ploy adopts a mens rea standard, limiting punitive measures to intentional acts like salvage and artifact collection while placating the liability concerns of cable layers, dredgers and commercial fishing interests. While this method of divide and conquer may be effective inquelling influential opposition groups to the Convention, its tacit acceptance of the widespread damage and destruction of UCH by ocean trawling and similar activities is hardly consonant with the proclaimed goal of protecting the resource base.

Canadian strongly endorsed the Convention's philosophy of "preservation in place", archaeolog-ese for "do nothing" and the rationale for prohibiting finders and salvors from recovering any UCH. Ironically, "preservation in place" does not apply to taxpayer-financed expeditions overseen by the bureaucrats who will have made all private competition illegal.

Again, the Canadian position appeared to have been prepared with the specific goal of asserting jurisdiction over TITANIC while providing legal justification to close down the ongoing salvage of artifacts from the sunken ocean liner. Yet this past March, the Fourth Circuit Court of Appeals affirmed U.S. admiralty jurisdiction over the ongoing deep ocean salvage of TITANIC, while simultaneously protecting the right of the scientific community to visit this icon of the deep to study the relentless deterioration of the remnant of modern history's greatest maritime disaster. RMS Titanic, Inc. v. Wrecked & Abandoned Vessel, etc., ---F.3d---, No. 98-1934 (4th Cir. 1999).

In its opinion, the appellate court harkened back to the first known promulgation of international law, the Rhodian Sea Codes of the ancient Phoenician mariners, which recognized that awarding a salvor for his good faith ensured not only honesty during the recovery operations, but protected the interest of the owner as well. This vibrant principle--a feature of admiralty law passed down through every era of maritime trade to the present--has endured and evolved because its works. It is perhaps the ultimate irony that UNESCO--an international organization ostensibly dedicated to the preservation of man's cultural legacies--is willing to sacrifice mankind's legal legacy in order to allow governments to lay claim to all the world's UCH.

VI. Future Action:

UNESCO's General Assembly next convenes in October, 1999. While an agreed Convention text will not be placed before them for a vote this session, undoubtedly the Secretariat will report on its promising progress in order to secure additional funding for future "meetings of experts". A third such negotiation session is unlikely to be convened before the year 2000. The MLA should continue to closely monitor these negotiations and begin a more vigorous effort to become a participant in the debate. The fact that the most experienced and knowledgeable persons in underwater exploration and the existing legal regimen for adjudicating ownership and salvage rights to UCH are barred from speaking during the Convention discussions is nothing short of outrageous. This is particularly true when contrasted with the qualifications of the vast majority of the so-called "experts" who are, in effect, deciding the future of our past.

The MLA must make a more concerted effort to coordinate its work with its counterparts in other maritime nations and with international organizations like the CMI and IMO. The UNESCO Convention not only threatens the future of U.S. admiralty law, it poses a grave threat to the practice of maritime law and the traditional jurisdiction of admiralty courts the world over. And the MLA should continue to build a larger constituency with related industries including salvors, recreational divers, commercial fishermen, dredgers and cable layers, many of whom are our client already.

The MLA should compile a compelling defense of admiralty jurisdiction showing its long and vibrant history and clearly demonstrating its effectiveness in protecting the values that the Convention seeks to promote while protecting the rights of owners and sovereigns and allowing for the participation of private enterprise in the exploration for and recovery of UCH. UNESCO must be disabused of the notion that there is a crisis beneath the seas with no extant and competent legal authority to protect UCH.

This week, we celebrate the Centennial of the Maritime Law Association. The MLA's proud history has seen tremendous progress and innovation in maritime transit and commerce matched only by the evolution of admiralty law to address and resolve the new issues and problems engendered by these changes. Perhaps nowhere can this be seen more clearly than in the evolution of the law of finds and salvage to embrace the same archaeological values that the UNESCO Convention endorses.

Today, it is the law of finds and salvage which is itself in peril. With technology opening a new frontier of deep ocean exploration and recovery, the nascent industry that is developing to bring new discoveries from man's past back to modern awareness faces an ill-conceived death sentence. And one of the few arenas of maritime law promising vibrant future growth and an endlessly fascinating source of both law and human knowledge will be abruptly foreclosed.

Envision for a moment the cases and controversies engaging the admiralty practitioners at the MLA's second centennial. Deep sea exploration will likely be routine, as will the commercial exploitation of its boundless mineral resources and the recovery of its priceless historic legacy. Far above the oceans' surface, interplanetary travel and commerce will navigate a sea more limitless and vast than the liquid realm ever appeared to mankind's first brave mariners. And where there are spacecraft, there will be a need for bold and intrepid extraterrestrial salvors to render assistance to distressed persons and property imperiled in the depths of outer space.

Lamentably, this bold vision of the admiralty practice of the future may remain only the stuff of science fiction if the MLA cannot successfully rescue the law of salvage and finds from the present international political peril confronting us today.