Lloyd's Maritime and Commercial Law Quarterly
UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001: implications for commercial treasure salvors
Sarah Dromgoole *
The UNESCO Convention on the Protection of the Underwater Cultural Heritage was adopted in November 2001. Drafts of the Convention produced in 1994 and 1998 gave rise to some alarm about the potential impact of the Convention on commercial interests, especially the interests of commercial treasure salvors. The final text differs markedly from the early drafts and this article examines its provisions concerning scope of application, approach to salvage law and the law of finds, and attitude to commercial exploitation. Brief consideration is also given to its control mechanisms. The conclusion reached is that, despite the considerable changes that were made during its preparation, the Convention is likely to have profound implications.
I. INTRODUCTION
Technological developments over recent years have now rendered shipwrecks in the deepest of ocean waters accessible to humankind. The discovery of wrecks such as the Titanic,
1
the Central America,
2
and—most recently—the Sussex,
3
evidences the power of modern deep-sea technology.4
While the investigation of such wrecks is a process that fascinates the public at large, it also brings into conflict two very different interest groups: those attracted by the commercial value of such wrecks and those concerned to protect their historical and cultural value. Since the technology required to access deep-water wrecks is generally available only to well-funded commercial organizations, there is a
* Senior Lecturer in Law, University of Leicester. The author would like to acknowledge the support of the University of Leicester in awarding her study leave enabling her to write this article.
1. RMS Titanic
lies at a depth of 3,800 metres. The site was discovered in 1985, and in 1987 approximately 1,800 artefacts were recovered. Further artefacts were recovered in 1993 and 1994. “Because the wreck lies under 2.5 miles of water, where there is virtually no light, the water is frigid, and the water pressure beyond general comprehension, only the most sophisticated oceanographic equipment can explore the site and recover property”: RMS Titanic Inc.
v. Haver
(1999) 171 F.3d 943 (4th Cir.), 966. On this case, see C.Forrest, “Salvage Law and the Wreck of the Titanic: RMS Titanic
v. Haver
” [2000] LMCLQ 1.
2. SS Central America
was a mail ship that sank in 1857, carrying a cargo of gold valued at the time of loss at more than $2 million. She was rediscovered in 1987, at a depth of 2,500 m. (approximately 1.5 miles) and much of the gold was recovered. See further, P.O’Keefe, “Gold, Abandonment and Salvage: The Central America
” [1994] LMCLQ 7.
3. HMS Sussex,
a 17th-century warship, lies at a depth of approximately 1,000 m. (more than 0.5 miles). In 2002, the UK government entered into an agreement with a commercial salvor for the recovery of coins from the wreck: for details, see infra,
333–335.
4. It is now possible to locate wrecks and recover material from 98% of the seabed using magnetometers, side-scan sonars, and manned and unmanned submersibles: E.O’Hara, “Maritime and fluvial cultural heritage”, Report of the Committee on Culture and Education, Parliamentary Assembly of the Council of Europe, Doc. 8867, 12 October 2000, para. 3.4.3.
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