By Peter Hess

My thanks to the Maritime Law Association for the financial assistance it provided me with for costs incurred from June 29-July 2, 1998, while I was an Observer at a series of meetings of governmental experts discussing the proposed "International Convention for the Protection of the Underwater Cultural Heritage ("Convention"). The meetings were held at the headquarters of the United Nations Educational, Scientific & Cultural Organization

("UNESCO") in Paris, the entity which is sponsoring the proposed Convention.

The text of the Convention under discussion is actually a second draft, the first having been prepared by the International Law Ass'n. ("ILA"). Following a series of meetings and objections raised to many of its provisions over the past several years, the ILA, or "Buenos Aires" draft was scrapped and a new and allegedly improved version was prepared by UNESCO and released for comment in April, 1998.

Much to the disappointment of the U.S. State Department and most American citizens and organizations that have been following the promulgation of this Convention, the UNESCO draft does little to address the shortcomings voiced with the ILA version and in many instances compounds, rather than improves, those problems. As a consequence, it is generally accepted that the promulgation of any Convention will likely entail 2-3 more meetings of governmental experts; the next of which is scheduled in Paris for April 19-23, 1999. The Convention is unlikely to be ready for ratification by the UNESCO General Assembly as originally forecast for November, 1999, but may well be before them when it next convenes in the year 2001.

I. The National Delegations

The 1998 meetings were attended by over fifty (50) national delegations, at least 42 of which spoke on the record over the course of the meetings. Each delegation was typically comprised of a combination of the following: a permanent UNESCO delegate from that country; a cultural resource manager, often, a high official of that state's national museum; and/or an international lawyer, typically one with expertise in the Law of the Sea

("LOS").

The U.S. delegation was unique in that only three of the four members were federal bureaucrats (Bob Blumberg, State Dept.; Ole Varmer, Esq., NOAA; and Michelle Aubry, an archaeologist with the National Park Service). Much to its credit, the State Dept. insisted that a representative of the salvage community be included as a delegate. Greg Stemm, a deepwater salvor and President of the nascent Professional Shipwreck Explorers Ass'n. ("ProSEA") was the sole salvor in any delegation--this in the discussion of a proposed treaty which proposes to the emerging industry of deep ocean recovery!

Six nations comprise the UNESCO Convention drafting committee: Denmark (whose delegate, Professor Carsten Lund, branding shipwreck divers as "savage looters", was elected President of the Paris meetings), Colombia, Tunisia, Poland, Philippines and Mozambique. None of these nations even remotely qualify as major maritime powers. Nevertheless, these delegations will play a key role in the Convention ratification process as it is up to them to assimilate the comments and objections received during meetings of governmental experts and come up with an improved draft for discussion at the next round of meetings. Accordingly, these delegations have a disproportionate influence on the Convention negotiation process: their particular concerns and biases should be carefully monitored and appealed to should the MLA or any other organization or entity want its own views heard and incorporated into the language of the Convention. Of these nations, the Philippines is the only country supportive of a role for the private sector in the search for and recovery of historic shipwrecks.

In recent years, there has been successful collaboration between the Philippine National Museum and private salvors on a series of archaeological recovery projects. Cognizant of the lack of governmental resources with

which to conduct underwater archaeology and the reality of their nation's inability to police shipwreck sites in a vast, archipelagic nation, the Philippine delegation recognizes that the draft Convention's blanket prohibition of privately-funded salvage will not deter underwater exploration and discovery: it will only ensure that whenever finds are made by private parties, they will never be reported to the government.

Comprised of persons who have worked closely and effectively with private salvors, the Philippine delegation understands the downside of the highly restrictive regimen under present consideration: rather than ensuring quality archaeology on historic shipwrecks, ironically, the Convention creates incentive for finders to work quickly and surreptitiously, thereby promoting the destruction of the resource that it is intended to protect. An MLA educational campaign for the benefit of the UNESCO conferees describing the time-tested principles of admiralty's law of salvage and finds and the incentives created for salvors to act in good faith upon the discovery of historic shipwrecks.

II. Non-Governmental Organizations

Meetings began on Monday, June 29th with a session ostensibly open only to the drafting committee, followed by daylong sessions open to participation by national delegations and Non-Governmental Organization members of the United Nations ("NGO's") with a "special relationship" to UNESCO. Other NGO organizations were given Observer status: they could be seen but not heard.

The "special relationship" criteria has become a major obstacle to effective participation in the Convention promulgation process by NGO's and others opposed to its provisions. While ostensibly, ILA has earned this status through its work on the previous draft of the Convention, in reality, its drafting committee was chaired by Michael O'Keefe of Australia, the husband of Dr. Lyndel Prott, the UNESCO official in charge of overseeing the enactment of the Convention! This is clearly the quintessential "special relationship."

The International Council on Monuments and Sites ("ICOMOS"), an archaeological organization affiliated with UNESCO, also fulfilled the unwritten criteria and was permitted to speak at the Paris meetings. ICOMOS'

Charter on the Protection and Management of Underwater Cultural Heritage ("Charter"), annexed to the Convention, proposes standards for the excavation of shipwreck sites, including an unrealistic and unenforceable blanket prohibition on the sale, trade or ownership of any shipwreck artifacts. The inclusion of the Charter and its doctrinaire restrictions on salvage operations in the draft Convention became the focus of considerable debate.

The Comite Maritime International ("CMI") was represented by Augustin Blanco- Bazan, Senior Legal Officer of the International Maritime Organization ("IMO") in London. Finding nothing in the UNESCO Convention to contravene the provisions of the 1989 Salvage Convention, neither CMI nor IMO voiced any substantive objection thereto. Their overriding concern is with vessels in navigation: once sunk, its disposition has heretofore been of little consequence to them.

Not surprisingly, UNESCO is portraying the lack of opposition by CMI/IMO as support for the Convention by these influential bodies. It is incumbent upon the MLA to address this situation with their international counterparts and clearly demonstrate the threat that the Convention poses to admiralty jurisdiction and practice in the United States, where the search for and recovery of shipwrecked property is an integral part of maritime commerce as is the carriage of goods at sea. Moreover, deepwater salvage represents one of the few arenas of admiralty law with unlimited growth potential. It is vital for the future of the practice of maritime law to educate those in CMI/IMO as to the importance of protecting the salvor's inherent right to bring an admiralty action to protect his right to recover that which he has found and wishes to rescue from marine peril.

The only other NGO demonstrating a special relationship to UNESCO was the World Underwater Federation, whose comments, predictably, were laudatory toward the Convention and its goals, but whose claim to represent the interests of divers and underwater explorers is preposterous at best. In 21 years of active scuba diving, I have never seen any publication nor am aware of any meetings of this self-proclaimed international federation. I suspect that much like an earlier endorsement of the ILA draft by London's Salvage Association--an organization of commercial towers and salvors of vessels in commerce, but with no interest in the search for and recovery of historic shipwrecks--the Underwater Federation's participation in the negotiations is being used as a straw man so that UNESCO can assert that scuba divers are in support of the Convention. In reality, as presently drafted, virtually 100% of U.S. shipwreck divers are vehemently opposed to the Convention. NGOs like the Explorers Club--whose members are responsible for the discovery of most of the significant shipwreck finds of the past century--and the MLA were and in the future, will likely continue to be denied the "special relationship" status which is a prerequisite to actual participation in the Convention negotiation process.

Dr. Prott informed me that UNESCO has tightened its internal regulations governing recognition of "special relationships", in the past two years, deleting nearly two-thirds of such NGOs from its list and establishing a rigorous, multi-year process for any NGO seeking to earn such status in the future. UNESCO's implicit message seems clear: NGOs or other organizations that do not support the Convention will not be recognized as having a "special relationship"; accordingly, they will remain barred from speaking and being heard during the negotiation process.

Cognizant of the fact that the debate on the Convention is taking place with little or input by, or representation of those whose activities will be outlawed should it be enacted, the State Department, through the U.S. delegation chair, Robert Blumbeg, Esq., offered to cover the cost of the next meeting of governmental experts with the caveat that the meeting be open to participation by any organization with a bona fide interest in the issues implicated in the Convention. Although a second meeting has been scheduled for April 19-23, 1999, it is not clear at the present if this meeting will be open to more widespread participation.