Steve Yormak, an Ontario, Canada attorney and I are back from an exhausting but productive week negotiating the UNESCO Convention for the Protection of the Underwater Cultural Heritage. Both of us served as private sector advisors to our respective delegations; we were more a part of the behind the scenes decision-making than in previous UNESCO sessions. However, our attendance and participation at earlier Convention negotiations in Paris proved invaluable in making acquaintances, familiarization with UNESCO procedures and establishing our credibility: in short, laying the necessary foundation to be effective at this year's session.

The sessions were lengthy, grueling and long-winded; their pace was sometimes almost laughable. For example as time slipped away during the second week, delegations spent 2 1/2 hours in the full plenary session wringing their hands about the lack of time remaining! Nearly two days were spent discussing the provisions governing the new UNESCO bureaucracy to be created, yet no discussion of what it will do (or who will pay for it) took place! Sessions often didn't end until well into the evening with briefings and inter-delegation meetings beginning at 8 am or earlier.

At the close of the two week session, no final agreement had been reached on a Convention and Annex setting forth the rules by which underwater excavations should be conducted. Many of the less contentious provisions have been agreed upon; however, questions like penal sanctions and enforcement and reservations (the right of a State Party to opt out of certain Convention provisions) remain unresolved.

Ongoing disputes over two major issues threaten to preclude any international accord: the question of coastal state competence--that is, how far offshore will a nation be permitted to assert jurisdiction, sovereignty and control of UCH; and the issue of "Warships," which the major maritime powers want exempted from the Convention and its restrictive rules.

These issues have been chronic flashpoints of controversy; In spite of repeated negotiations even at a smaller working group level, the lines of division remain virtually unchanged. The wealthier, "First World" nations (essentially, the G-7 and Russia--the major economic powers) are adamant that that Convention be entirely consistent with the United Nations Convention on the Law of the Sea ("UNCLOS") while the Second and Third World nations favor an aggressive expansion of sovereignty over UCH out to the limits of the Exclusive Economic Zone (200 nautical miles offshore) and even beyond. Numerous drafts of proposed UNESCO Convention language were presented without any real sign of compromise to date.

A similar fracture on the issue of Warship status has endured as long as the UNESCO Convention has been pending. While the fault line appears to be between the wealthy and less prosperous nations, it is even more pronounced between the former colonizing powers and their now-liberated colonies.

Particularly conspicuous is the confrontation between Spain and the Latin American nations over ownership of the Spanish "sovereign" warships lost in American waters--the treasure galleons whose rich cargoes constitute perhaps the most highly sought after class of shipwreck in the world. In light of last summer's ruling by a US appellate court that Spain retains ownership of two valuable frigates found in Virginia's territorial waters--and can prevent their recovery by the finder, Sea Hunt, Inc.--this issue has taken on both a higher profile and a greater sense of urgency in its resolution.

Couched in terms of "War Graves," the major maritime nations assert perpetual title to these sunken vessels and aircraft even when found in the Territorial Waters of another state. Of course, this is viewed as an invasion of the sovereignty of the coastal state and has been vehemently rejected by a majority of the nations participating in the UNESCO negotiations. As with the coastal state competence issue, numerous efforts at crafting compromise language have failed.

Coastal state competence and Warship status remain the most intractable areas of controversy. The UNESCO Secretariat has decided to reconvene the Plenary (all nations) session to try to complete the negotiations by mid-July, 2001, so that a Convention can be put before the UNESCO General Assembly when it convenes in October of this year. If no agreement is reached by this summer, a Convention cannot be introduced until the next session of the General Assembly in October, 2003.

Having said all of this, there was significant progress in reaching an international accord on many of the issues contained within the Convention and Annex. Annex rules have been pretty much agreed to; while there remains some room for private sector involvement in underwater exploration and recovery of UCH, greater restrictions on the sale of artifacts make the significant investment into such search and recovery operations increasingly problematic.

For example, the Annex explicitly prohibits project funding by the sale of artifacts and the "irretrievable dispersal" of shipwreck collections is banned. Clearly, the goal of the proponents of the UNESCO Convention is to make it economically infeasible to salvage historic shipwrecks for profit.

Were the UNESCO Convention ratified by the US Senate and signed by the President, implementation thereof through the passage of domestic US legislation could likely address these restrictions in such a manner as to ensure a viable role for private enterprise in the exploration and recovery of UCH offshore of the United States and/or pursuant to existing US admiralty jurisdiction over wreck sites in nearshore and international waters. In fact, "salvaging" US admiralty jurisdiction and the right of a finder to appear before a neutral judge and be compensated and/or awarded for the discovery and archaeologically-sound excavation of an historic shipwreck was the paramount concern of our clients and colleagues. The adoption of compromise language preserving this right by the plenary assembly of nation states represents one of the key issues resolved during the recently-completed UNESCO session.

Steve Yormak and I were each instrumental in reaching a compromise on this question. Most nations, led by Italy and Greece, were adamantly opposed to permitting any role whatsoever for the Law of Salvage (liberal compensation for rescuing another's property from marine peril) and Finds ("finders, keepers") in the resolution of issues relative to UCH. Supporting their position were most of the economically-disadvantaged nations, former colonies, and even several of the major maritime powers. Fighting for retention of the law of salvage and finds was the relatively small group of some (but not all) British Commonwealth nations including the United Kingdom, Ireland and Canada and the United States.

Relegated to a small working group to try to overcome the impasse that this issue posed, Italy and Greece fought mightily for an outright ban on salvage and finds law. While the United States has stated that it wants US admiralty jurisdiction over historic shipwrecks preserved, in sessions past this insistence has been little more than a bargaining chip with other nations. I have personally heard US delegates apologize to the other nations for existing US admiralty law and expressing personal opposition to the official US position defending its law.

Such lukewarm support by many US delegates for the rights of the US companies, citizens and capital--which has been very successful in the scientific and archaeologically appropriate recovery of historic shipwrecks worldwide--is hardly encouraging to the private sector and the underwater explorers who are presently finding and recovering these sunken vessels and aircraft. In large measure, my appointment to the US delegation was to ensure that those whose existing rights are most at risk are actually represented during the negotiation which seek to significantly restrict--if not outright ban--their heretofore entirely legal and commendable activities.

Because of the US position as only an Observer nation at UNESCO (having withdrawn from the Organization about 15 years ago because of repeated vilification for perceived world economic and/or political inequities) and also due to the President's recent renunciation of the Kyoto environmental accord, the US frequently took a back seat and allowed like-minded nations to lead the campaign to preserve and/or insert vital Convention provisions. With regard to the preservation of the law of salvage and finds, it was the Canadian and Irish delegations who were the champions of our cause.

Steve Yormak was truly indispensable in this effort--he lobbied the Canadians (or more accurately, taught his delegation)--what the law of salvage actually is and how it can operate to protect UCH. The Canadians learned well: their Chair, Roger Stockfish (really that's his name) was persistent and effective in forcing Italy and Greece to relent and accept the use of the law of salvage and finds in those nations that presently do so, but with greater restrictions on its application and effect. What is most remarkable about the Canadian advocacy on this issue is that it is diametrically opposed to the position Canada has taken in each previous UNESCO session: one of open--and effective--hostility to private sector participation in the search for and recovery of UCH.

I am convinced that without both of us there--Steve to get the Canadians squarely on our side and me to hold the US delegations' feet to the fire--there would not have been an agreement on salvage law. Both sides had threatened that the impasse on the law of salvage and finds was a dealbreaker. Ireland--a nation with what constitutes one of Europe's most effective regulatory scheme protecting UCH--indicated that an outright prohibition of the law of salvage and finds would preclude Irish ratification of the Convention.

Even the UN adjunct ICOMOS (the International Council on Monuments and Sites), an intractable opponent of privately-funded historic shipwreck recovery, urged compromise by Italy and Greece. When any chance for an agreement seemed futile, a compromise was reached. With the imposition of additional conditions restricting the operation of the law of salvage and finds, the right to recourse under a court's admiralty jurisdiction was saved (from bureaucratic peril). After additional vigorous debate, the compromise was adopted by the plenary assembly of nation states.

Here's what the Article as adopted provides: "Any activity relating to underwater cultural heritage to which this Convention applies shall not be subject to the law of salvage or law of finds unless:

• a) is authorized by the competent authorities, and
• b) is in full conformity with this Convention, and
• c) ensures that any recovery of the underwater cultural heritage achieves its maximum protection."

We are confident that the private sector can still function and remain economically viable even with these restrictions. We are therefor pleased to report that we accomplished our primary mission in Paris the successful salvage of the Law of Salvage and Finds.

We are awaiting word from UNESCO as to when the (final)? one week session will be convened. It appears that it will either be during the last week of June or the second week of July. We will keep you fully apprised as these details emerge. Thanks for your confidence and support to date.