The Draft International Convention on the Exploration and Protection of Submerged Historic Wrecks
The States Parties to this Convention, ACKNOWLEDGING the importance of Submerged Historic Wrecks as a source of significant historic, cultural and archaeological information, AWARE that increased availability of advanced underwater technology enhances the identification, study and recovery of Historic Wrecks, RECOGNIZING the need for uniform rules for the exploration of shipwrecks, airplanes and other man-made modes of transportation which have been lost at sea, CONSCIOUS of the contribution which underwater explorers, archaeologists, scientists and historians can make to the cultural heritage of humanity through the application of special scientific methods and the use of suitable techniques during underwater exploration, CONVINCED that responsible and professionalism commercial exploration of Historic Wrecks is compatible with, and complementary to, the fundamental goals and intentions of the scientific, archaeological, anthropological and historical communities, BELIEVING that cooperation among all constituencies and users are necessary for the successful multiple use management, conservation and utilization of Historic Wreck resources, DEEPLY CONCERNED that Historic Wrecks throughout the world are in imminent peril from natural causes, marine construction, dredging, fisheries and indiscriminate illicit salvage operations, AFFIRMING that it is in the best interest of all constituencies and users of Historic Wrecks to develop a standard for the disposition and allocation of Historic Wreck artifacts which encourages cooperation between the archaeological, commercial and scientific communities, ACKNOWLEDGING the relevant provisions of the 1982 U.N. Convention on the Law of the Sea, HAVE AGREED as follows: PART I. GENERAL PROVISIONS Article 1 Exploration and Recovery of Historic Wrecks Lost at Sea Exploration of Historic Wrecks, including shipwrecks, airplanes, or any other man-made modes of transportation lost at sea, and recovery of objects from (or associated with) such wrecks, shall be governed by the terms of the 1989 International Convention on Salvage, except to the extent that those terms are modified in this instrument. Article 2 Definitions (1) "Archaeological Excavation" - The process of systematic artifact recovery and mapping of Historic Wreck Sites using generally accepted contemporary archaeological techniques. (2) "Archaeological Significance" - Having unique and outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view. (3) "Director-General" - The Director-General of the United Nations Educational, Scientific and Cultural Organization. (4) "Exploration" - Any form of interaction with Historic Wrecks including recovery (salvage or finds), archaeological investigation and excavation, tourism, diving, scientific research or other methods of study and resource utilization. (5) "Fair Market Value Appraisal" - An estimate of the current Fair Market Value of the artifact or artifacts by a professional appraiser with experience appropriate to the specific type and age of the subject artifacts. Comparable sales, previous legitimate offers for the artifact(s) and any other information which can be readily relied upon for developing an accurate representation of the price which might be expected in an open market transaction between and a willing buyer and willing seller should be considered by the appraiser. (6) "Historic Wrecks" - For the purposes of this Convention include any vessel, ship, airplane or other man-made mode of transportation lost at sea no later than one hundred (100) years prior to the commencement of exploration or recovery operations. (7) "Irreplaceable Archaeological Value" - An artifact that provides archaeologically significant data or knowledge which cannot be obtained from any other source or through documentation, photography, molding, replication or other means of producing a facsimile of the artifact. (8) "Organization" - The United Nations Educational, Scientific and Cultural Organization. (9) "Objects from (or associated with) Historic Wrecks" - The hull or shell of the wreck, any part thereof, its cargo or contents, as well as its archaeological, historic, cultural and natural context. (10) "Qualified Project Archeologist" - A person holding a graduate degree in anthropology or archaeology, or equivalent training and experience, who has: (a) at least 12 months experience in research concerning archaeological resources of the relevant period; (b) demonstrated the ability to carry out research as evidenced by published reports, articles, theses or similar documents and; (c) completed at least 16 months of professional experience and/or specialized training in archaeological field, laboratory, library research, administration or management, including four months of experience and/or specialized training in the kind of activity being proposed. (11) "Salvage Convention" - The 1989 International Convention on Salvage. (12) "Wreck" - Any form of vessel or water-borne craft, aircraft, or other man-made mode of transportation that has been lost or sunk and is wholly or partially submerged under water. (13) "Wreck Site" - Areas in which objects from (or associated with) a wreck are found, including secondary archaeological deposits, including a safety zone not exceeding a distance of 200 meters as measured from the outermost archaeological deposit. Article 3 Scope of the Convention (1) This Convention shall not apply to any historic wreck located within a Contracting State's internal waters, archipelagic waters, territorial sea, or, if the relevant Contracting State has adopted regulations pursuant to articles 33 and 303(2) of the 1982 U.N. Convention on the Law of the Sea, its contiguous zone. (2) Nothing in this Convention shall affect the right of a Contracting State to permit or authorize exploration or recovery of Historic Wrecks in its internal waters, archipelagic waters, territorial sea or contiguous zone. (3) Historic Wrecks shall not be considered natural resources subject to the terms of article 246 of the 1982 U.N. Convention on the Law of the Sea. Article 4 State-Owned Wrecks (1) Unless a State owner of a historic wreck has expressly renounced its rights and interests in a vessel, this Convention shall not apply to any: (a) i) Warship (as defined under article 29 of the 1982 U.N. Convention on the Law of the Sea) or warplane, or ii) any other vessel or aircraft owned and operated by a State, and used, at the time of its loss at sea, for exclusively non-commercial purposes, (b) which was entitled, at the time of its loss at sea, to sovereign immunity under then generally recognized principles of international law. (2) For wrecks to which this article appertains, Article 15 of the Salvage Convention shall be inapplicable.
PART II. EXPLORATION OF HISTORIC WRECKS
Article 5 Exploration of Historic Wrecks This Part shall apply to those Historic Wrecks which have not been abandoned by their owner, as defined in article 11.
Article 6 Duties of Explorers of Historic Wrecks Explorers of Historic Wrecks under this Convention are obliged to take all reasonable and practicable measures to encourage the protection and management of Historic Wreck Sites and objects recovered therefrom, including: (1) Determining whether In Situ preservation of a Historic Wreck Site is the most reasonable utilization of the site, taking into consideration multiple use public and private access consistent with the historical values and environmental integrity of the site; (2) Developing and executing a thorough and feasible plan for funding the supervision and archeological excavation of any Historic Wreck Site which is planned, as well as accommodations for the ultimate conservation and disposition of all artifacts and objects recovered from the wreck site; (3) Supervision of exploration or excavation of artifacts from an archaeologically significant Historic Wreck by a qualified project archaeologist, who shall be included in all aspects of the planning and execution of the recovery operation; (4) Requiring employees and sub-contractors to be fit, by knowledge and experience appropriate to the exploration activities, for the work they undertake on any Historic Wreck; (5) Mapping of the wreck site and related debris field, including recording the spatial relationships among objects, vessel parts and bottom features, whether recovered or left in place; (6) Recording descriptive and locational data on all objects and artifacts associated with the wreck which are recovered from, or observed on, the wreck site and its debris field, in accordance with accepted contemporary archaeological recording standards; (7) Stabilization and conservation of all objects recovered from a wreck site, so as to minimize the loss of significant scientific, archaeological and historical data; (8) Preservation, publication and dissemination of field notes, maps, photographs, other primary recorded data and archival information about the wreck site and objects recovered therefrom, consistent with contemporary archaeological reporting standards; (9) Developing and implementing a balanced and responsible plan for the care, conservation and distribution of all artifacts and materials recovered from Historic Wreck Sites, which may include: a) Offering preferential rights to purchase artifacts deemed to be of irreplaceable archaeological value by a Contracting State, a State of Origin, a State of Cultural Origin, or a State of Historical or Archaeological Origin to that State at a price to be determined by mutual agreement of the Explorer and the State, based on a Fair Market Value Appraisal. b) Making archaeologically significant artifacts from wreck sites reasonably available to the archaeological and historical communities to study after recovery. c) Making reasonable accommodations for keeping a representative sample of archaeologically significant artifacts from Historic Wrecks together as a collection that is available for study and analysis by legitimate researchers, as well as for the benefit and education of the public. d) Holding out for sale only those artifacts that have been subjected to reasonable scholarly study and analysis, or which have been documented, photographed, molded or replicated in a manner that allows reasonable future study and analysis; e) Developing a plan by which owners of archaeologically significant artifacts which have been deaccessioned or sold may report subsequent transfers of those artifacts so that they may be made available for future study.
Article 7 Conditions and Criteria of Salvage Rewards for Recovery of Historic Wrecks In addition to the criteria detailed in Article 13, paragraph 1 of the Salvage Convention, an explorer's or salvor's liberal reward for recovery of Historic Wrecks shall take into account the explorer's or salvor's satisfaction of the duties detailed in article 6 above and shall otherwise comport with international maritime law. Article 8 Prohibition of Salvage Operations Exploration, including salvage or recovery, of Historic Wrecks may not be restricted by the owner, unless the owner (or its assignee or agent) has been in actual possession of the wreck site, or has engaged in exploration of the wreck site, within the previous five years. Article 9 Enforcement of the Rights of Explorers of Historic Wrecks (1) An Explorer of an Historic Wreck may enforce their salvage rights against an owner through a maritime lien, as prescribed in Salvage Convention article 20. (2) An Explorer may enforce their other rights to a wreck site and objects recovered therefrom, as if it were a finder, in accordance with article 13 of this Convention.
PART III. FINDERS OF HISTORIC WRECKS Article 10 Finders of Historic Wrecks. This part shall apply to Historic Wrecks that have been abandoned. Article 11 Definition of Abandonment. (1) Historic Wrecks lost at sea shall be deemed abandoned where: (a) The wreck's original owner (and its successors in interest), or the original owner's assignees or subrogees (and their successors in interest) have expressly renounced their rights and interests in the wreck, or, (b) The wreck's original owner (and its successors in interest), or the original owner's assignees or subrogees (and their successors in interest), have implicitly abandoned their rights and interests in the wreck by having: (i) Actual or constructive knowledge of the location of the wreck, and (ii) Access to the reasonable technical capacity to explore and recover the wreck, and (iii) Not having initiated or continued exploration of the wreck within the previous ten years. (2) Cargo associated with a wreck deemed to be abandoned pursuant to the above paragraph, will nevertheless not be considered abandoned if the cargo's original owner (and its successors in interest), or the original owner's assignees or subrogees (and their successors in interest), have neither expressly or implicitly abandoned their rights and interests in the cargo. Article 12 Duties of Finders of Historic Wrecks The terms of article 6 shall apply mutatis mutandis to finders of Historic Wrecks. Article 13 Rights of Finders of Historic Wrecks (1) Finders of Historic Wrecks are entitled to a decree, granted by a maritime or admiralty court or any other tribunal of competent jurisdiction, for the following forms of relief: (a) The sole right to engage in exploration of the wreck site and to exclude all others from the wreck site, but such right shall not unduly burden navigation and shall be exercised consistent with the provisions of the 1982 U.N. Convention on the Law of the Sea; and (b) The exclusive right to recover objects from the historic wreck without interference; and (c) A declaration of title in objects recovered from the wreck; and (d) Protection of intellectual property rights derived from exploration of the wreck site and objects recovered therefrom. (2) Such relief, as granted under paragraph (1), may be conditioned upon the finder's satisfaction of the duties detailed in Article 6 above. (3) The courts or tribunals of a Contracting State will be deemed competent to issue decrees under this article, if the Finder is: (a) (i) A natural person, a citizen, national, domicilliary or habitual resident of the Contracting State, or (ii) A juridical person, is incorporated in or has as its principal place of business the Contracting State; or (b) The finder accepts the jurisdiction of the court or tribunal and agrees to place all objects recovered from the wreck site within that court’s or tribunal’s jurisdiction. Article 14 Respect and Enforcement of Decrees All Contracting Parties to this Convention are obliged to take all measures necessary to ensure that decrees issued by courts or tribunals under the authority of articles 9 and 13 are fully enforceable as against their nationals or any other persons, natural or juridical, subject to their jurisdiction.
PART IV. OTHER PROVISIONS Article 15 Notifications All Contracting Parties are obliged to notify the Director-General of all: (1) Decrees issued by their courts pursuant to articles 9 and 13; (2) Measures taken to ensure the enforceability of decrees under article 14; (3) Governmental actions taken with respect to any authority exercised under Article 3. Article 16 Collaboration and Information Exchange. All Contracting Parties shall endeavor to collaborate and exchange information related to: (1) Explorations for, and discoveries of, wreck sites, including the availability of archival data, as relevant under Article 6 of this Convention; (2) Development of archaeological protocols for the exploration of wreck sites and recovery of objects therefrom, as relevant under Article 6; (3) Dissemination of information concerning wreck sites, as relevant under Article 6; (4) Exhibitions and scientific studies of wreck sites, as relevant under Article 6. Article 17 Education and Training Contracting Parties shall undertake education and training programs to promote the purposes of this Convention. Article 18 Dispute Settlement (1) Any dispute arising under this Convention, and not settled by negotiation, shall be submitted to arbitration. If the States Parties are unable to agree on the constitution of the arbitral tribunal within six months from the date of the request for arbitration, any of the parties to the dispute may refer the dispute (at its election) to either the International Court of Justice or the International Tribunal for the Law of the Sea. (2) Contracting States to this Convention shall be deemed to have submitted to the jurisdiction of the International Tribunal for the Law of the Sea for any disputes arising under this Convention. Article 19 Prompt Release of Vessels and Crews Engaged in Exploration and Recovery of Historic Wrecks (1) A Contracting State which arrests or detains a vessel or crew engaged in the exploration or recovery of Historic Wrecks within that States’ exclusive economic zone or continental shelf, must accord the vessel or crew all rights and remedies, including prompt release, as required under article 73, paragraph 4, of the 1982 U.N. Convention on the Law of the Sea, just as if that vessel or crew were suspected of engaging in violations of the Coastal State’s rules or regulations regarding the exploitation of living resources in the exclusive economic zone. (2) The failure of a Contracting State to promptly release a vessel or crew engaged in the exploration or recovery of Historic Wrecks within that State’s exclusive economic zone or continental shelf may be the subject of be a proceeding brought under article 292 of the 1982 U.N. Convention on the Law of the Sea. PART V. FINAL CLAUSES
Article 20 Relationship of Convention to the Salvage Convention. (1) States Parties to this Convention may include: (a) Contracting Parties to the Salvage Convention, or (b) States not Parties to the Salvage Convention, if, at the time of deposit of an instrument of ratification, accession, or acceptance to this Convention, the Party indicates its willingness to be bound to those provisions of the Salvage Convention explicitly referenced in this instrument, at least to the extent that such referenced provisions are necessary to fulfill the object and purpose of this Convention. (2) Any reservation earlier made by a Contracting Party to the Salvage Convention, pursuant to article 30, paragraph 1(d) of that instrument, shall be deemed terminated upon the entry into force of this Convention. Article 21 Signature, Ratification, Acceptance, Approval and Accession (1) This Convention shall be open for signature at the Headquarters of the Organization from __________ to ___________ and shall thereafter remain open for accession. (2) States may express their consent to be bound by this Convention by: (a) Signature without reservation as to ratification, acceptance or approval; or (b) Signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval; or (c) Accession. (3) Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Director-General.
Article 22 Entry Into Force (1) This Convention shall enter into force one year after the date on which 25 States have expressed their consent to be bound by it. (2) For a State which expresses its consent to be bound by this Convention after the conditions for entry into force thereof have been met, such consent shall take effect one year after the date of expression of such consent. Article 23 Reservations No reservations or exceptions may be made to this Convention. Article 24 Denunciation. (1) This Convention may be denounced by any State Party at any time after one year from the date on which this Convention enters into force for that State. (2) Denunciation shall be effected by the deposit of an instrument of denunciation with the Director-General. (3) A denunciation shall take effect one year, or such longer period as may be specified in the instrument of denunciation, after the receipt of the instrument of denunciation by the Director-General. Article 25 Revision and Amendment (1) A conference for the purpose of revising or amending this Convention may be convened by the Organization. (2) The Director-General shall convene a conference of the States Parties to this Convention for revising or amending the Convention, at the request of eight States Parties, or one fourth of the States Parties, whichever is the higher figure. Before convening a conference of State Parties, the Director-General shall consult with the Secretary-General of the International Maritime Organization. (3) The Conference of State Parties shall consider the opinions of experts from bona fide professional associations and non-profit organizations which represent users and constituencies of Submerged Historic Wrecks. These may include, but are not restricted to, The Salvage Association, The Society of Professional Archaeologists, The Council on Underwater Archaeology, The Society for Historical Archaeology, The Nautical Archaeology Society, The Professional Association of Dive Instructors, The Professional Shipwreck Explorers Association, The Explorers Club, The Marine Technology Society and the International Coalition of Fisheries Associations. (4) Once adopted, amendments to this Convention shall be subject to ratification, acceptance, approval or accession by the States Parties. (5) Any consent to be bound by this Convention expressed after the date of entry into force of an amendment to this Convention shall be deemed to apply to the Convention as amended. Article 26 Depositary (1) This convention shall be deposited with the Director-General. (2) The Director-General shall: (a) Inform all States which have signed this Convention or acceded thereto, and all Members of the Organization, of: (i) Each new signature or deposit of an instrument of ratification, acceptance, approval or accession together with the date thereof; (ii) The date of the entry into force of this Convention; (iii) The deposit of any instrument of denunciation of this Convention together with the date on which it is received and the date on which the denunciation takes effect; (iv) Any amendment adopted in conformity with article 25; (v) The receipt of any declarations or notifications made under this Convention; (b) Transmit certified true copies of this Convention to all States which have signed this Convention or acceded thereto. (3) As soon as this Convention enters into force, a certified true copy thereof shall be transmitted by the Depositary to the Secretary-General of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.
Article 27 Languages This Convention is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic.
IN WITNESS WHEREOF the undersigned being duly authorized by their respective Governments for that purpose have signed this Convention. DONE AT PARIS this ______ day of _____ one thousand nine hundred and __________.
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