[Paris, France] In a highly unusual vote early in the morning on Sunday, July 8th, a majority of UNESCO’s multinational delegations comprising its “Committee of Experts"--without reading, reviewing or debating its final text--nevertheless ratified the controversial “International Convention for the Protection of the Underwater Cultural Heritage” (“Convention"). The Convention will now be considered by the UNESCO General Congress when it convenes this October; its approval there is virtually ensured. From UNESCO, the Convention goes to the legislatures of the world's nations for adoption by that country. Its provisions become binding upon the citizens and vessels of State Parties (that is, nations whose legislatures have approved the Convention) after only ten nations enact it.

But the Convention won no support from any of the major economic and maritime nations--the United States, the United Kingdom, the Russian Federation, France, Germany, the Netherlands, China, Sweden, Norway, Turkey, Greece, Venezuela and Chile--each refused to endorse it and its many controversial provisions. The universal rejection of the Convention by these powers virtually ensures its overall ineffectiveness. Their opposition was primarily due to the Convention's unprecedented extension of the sovereignty of Coastal States into international waters at the expense of the naval and military interests of the major maritime nations. Particularly objectionable to them was a lack of sufficient recognition of the rights of the Flag State to control the fate of sunken military vessels and aircraft found in international waters offshore of the coastlines of other State Parties to the Convention.

As time ran out during the marathon negotiations--a continuation of a two-week meeting in March and April of this year--a ratification vote was called in spite of the fact that no delegate had yet received a copy of the Convention text being voted upon. Although UNESCO's broken photocopier was blamed for this failure, the negotiations had been plagued with mismanagement of the allotted time and a lack of effective leadership from their inception. Divers and underwater explorers nevertheless will see widespread restrictions upon their activities in the waters within 200 nautical miles of the many lesser developed nations likely to become State Parties to the Convention. Underwater Cultural Heritage (UCH) is defined broadly to include any trace of human existence underwater that is over 100 years old. UCH cannot be bought, sold or traded for commercial purposes. Any activities “directed at” UCH will require professional archaeological supervision with exacting conditions pre-approved by the State off whose shores the project is taking place. Other States with an historical, archaeological or cultural link to the particular UCH must be informed and consulted as well.

Punitive sanctions--including importation restrictions and seizure of salvaged artifacts--must be imposed by State Parties, who are further required to police the actions of their citizens and vessels flying their flags wherever they may be engaged in “activities directed at UCH" anywhere on the world’s oceans.

As a practical matter, for profit or recreational shipwreck recovery projects will become almost impossible to be conducted legally when offshore of State Parties to the Convention. Moreover, oil and gas exploration as well as commercial and even recreational fishing interests will face severe punishment for causing even “incidental harm” to UCH.

While it is some relief that the nations with the vast majority of underwater exploration technology and the greatest numbers of shipwreck divers and salvors have rejected the Convention, its inevitable passage by the UNESCO General Conference and subsequent ratification by many of the world’s nations will nevertheless bring about significant restrictions and prohibitions of operations in substantial portions of the oceans. Nor does the Convention provide any guarantee of simply non-destructive, recreational access by divers to UCH: such provisions were considered but rejected by the UNESCO delegates.

The many contentious issues debated by the Committee of Experts will again be discussed when the General Conference convenes in October, 2001. When the Convention comes before the national legislature of potential State Parties, there may also be another opportunity for those of us with an interest in the future of our underwater past to be heard in our own countries.

Underwater explorers of all callings should be particularly cognizant of the Convention’s adoption and ratification processes, and be ready, able and willing to speak out internationally in defense of our traditional right to explore, recover and preserve UCH. For if we all do not seize these few remaining opportunities to shape the law that threatens to severely restrict us, our underwater exploration--like the sunken historic vessels we love to explore--may be forever wrecked.

Peter E. Hess is a maritime attorney and shipwreck diver from Wilmington, Delaware. He was a member of this year's U.S. UNESCO Delegation in Paris and has been actively following the proposal and passage of the Convention for nearly a decade.