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Where Do We Go from Here?

UnderWater Magazine - November/December, 2001
by Greg Stemm

Just back from the latest UNESCO cultural heritage discussions, ProSEA's Greg Stemm wonders what it all means for underwater salvage contractors.

After four years of negotiating the UNESCO Convention for the Protection of Underwater Cultural Heritage (we'll call it CPUCH), the first stage of the process appears to be finished. I say first stage, because, at press time, the next stage involved presenting the CPUCH to the General Conference in October, where UNESCO was to decide whether this should even be a Convention that will be presented to its members (ed. note: more on this next issue).

So, this begs the question is there a Convention or not? Well, there is something akin to a Convention, but its fate is unclear at this time.

After four years of negotiations, it was assumed that we would be able to finish the negotiations at the April 2001 meeting. When it became clear that it would be impossible to resolve some of the more complicated issues at that meeting, a two-week meeting was scheduled for July. This gathering was supposed to be the "do-or-die" meeting. If we couldn't agree on the language for the Convention, there was a good possibility that there just wouldn't be one.

At the July meeting, there was a real sense of urgency. The two major issues that haunted the convention from the beginning continued to dominate the scene. The first and most complex of these issues was the jurisdictional issue. Simply put - who would have control of underwater cultural heritage in the various maritime zones defined in the Law of the Sea Convention? The second, smaller in scope, but no less contentious, was the special treatment of warships.

At first, it seemed like we were making progress on these two issues, but the intransigence of some of the parties made compromise all but impossible. To his credit, Chairman Carsten Lund tried everything to bring these two groups together - debates in working groups, drafting groups, back to the plenary session, back to working groups and back to drafting groups again. After all this effort, there was really little movement on either side. In the end, some of the most hotly contested language had to literally be forced through, which typically resulted in some very unhappy delegates.

Constructive Ambiguity?
One of the most interesting phenomena I observed was the tendency to resort to "constructive ambiguity" when we hit an issue which proved too contentious for compromise. I was amazed that delegates actually found that they could fix some problems by simply inserting language that was sufficiently confusing to allow either side to interpret it the way they saw fit.

While this bizarre strategy often moved us past controversial issues, the net result was language in some articles which will prove difficult, if not impossible, to administer in the real world.

During the course of the two weeks, we often ran up against issues related to drafting which could not be decided easily, so these were shoveled off to the side, with the idea that we would address them again at the "final reading." At that time we could confront these issues with advice from the drafting committee, who would theoretically look at them during the course of the week and make recommendations during the last reading of the document.

In fact, this final reading never happened. The last day was a frantic one, which saw a showdown between the Group of 77 (also known as G-77, a well-organized group of "developing countries") and the nations of the world that have blue water navies, including the United States, Great Britain, Russia, Norway, Germany, France and Japan. The latter were significantly outnumbered by the G-77, which resulted in nearly every issue coming down in favor of the developing countries, providing a regime which may have the net effect of providing many countries with more control over their coastal waters than had been previously negotiated in the Law of the Sea Convention.

At the end of the last day, late in the evening, the Chairman told the meeting that we had run out of time and had two choices; we could either present the Draft Convention to UNESCO in its present form (that is, unread, and unedited by the meeting of experts), or we would not have a Convention.

The United States is not a member of UNESCO, but was there as an observer. As a result, we didn't have a vote, but our delegation made a very strong statement criticizing the language of many of the articles, and made it clear that we would not be able to sign the Convention in its present form.

In spite of the protests of the US, the United Kingdom, and a number of the other countries that comprise the vast majority of the world's ocean technology resources, the G-77 carried the day in a vote that dictated that the Convention should be approved and sent to the UNESCO General Conference in October. I found it really interesting that this was done without even knowing the final language of the Convention.

Finally, a Final Draft
Since the close of that meeting, the UNESCO Secretariat has done its best to bring all the negotiated text together in a document that is now the final draft of the Convention. This document was circulated for comment and sent to the General Conference on October 29 for a vote to decide whether it should be adopted (more on this next issue). If adopted, there will be a drive to get countries to sign on and ratify it. Once 20 countries ratify it, it will enter into force, but only for those countries that become signatories.

In this column, I'll restrict my comments to the body of the Convention, and not discuss the Rules - the regulations that will govern activities directed at Underwater Cultural Heritage. It will require a separate column to address the nuances of these new requirements. In my opinion, they will not prevent private sector shipwreck exploration, but will require stringently supervised planning and techniques for any operations involving shipwrecks of a hundred years of age or older. Our own company, Odyssey Marine Exploration, is already writing our government contracts to incorporate these rules, just to be on the safe side.

Issues of Concern
As for the Articles of the Convention itself, here are some of the issues that present concerns:

  1. The Expansive Definition of UCH - The first issue that is a real problem is the definition of Underwater Cultural Heritage (UCH) contained in Article 1. It is unreasonably broad, and does not include any criteria for archaeological or historic significance. Certainly every hundred-year-old coin or antique has a historical character. However, the idea that the sweeping rules of the CPUCH Annex be applied to every object is difficult to imagine, and will be difficult to implement.

  2. Regulation of Activities "Incidentally Affecting" UCH - Article 5 imposes an awesomely broad duty on states to use "best practicable means" to prevent any activity that might incidentally affect UCH. This provision could give license to a vast regulatory scheme for offshore activities as varied as pipeline or cable laying, fishing, hydrocarbon drilling, dredging, and bioprospecting. A substantial concern could be raised that Article 5 will give license to coastal states to restrict legitimate activities in their exclusive economic zones (EEZs), not now contemplated under the Law of the Sea.

  3. Inconsistency with 1982 UN Convention on the Law of the Sea - The UNESCO Draft is in many respects inconsistent with the Law of the Sea Convention. This is particularly true of Articles 9-12 on coastal state jurisdiction and activities in the area, but also in relation to provisions that appear contrary to UNCLOS Article 303's preservation of the law of salvage and maritime law. I say "appear," because this is one of those areas where that the article is open to interpretation.

  4. Confusing Jurisdictional Competence - From a strictly practical perspective, the most problematic aspect of the UCH Draft is that the Convention is deliberately obfuscatory as to which state would have primary control over a particular operation or activity. The "constructive ambiguity" so frequently invoked during the negotiations serves to create a nightmarish regime for entities that will be required to work under these deliberately confusing jurisdictional puzzles.

    It is clear that the only "constructive" aspect of this ambiguity was that it allowed the Convention to be pushed through. It will certainly not be constructive in application nor interpretation for those that will have to deal with the results of these negotiations.

    One example of the challenges of this regime is the requirement for reporting of finds of UCH by the "national" to the flag state. This raises questions of which person, on any given ship, has a responsibility to report finds of UCH, and to whom? On many research or commercial vessels, it is not uncommon to find the citizens of a dozen different countries. This could easily be read as requiring each person of a different nationality to report finds to his own state. Every engineer, deck hand, chef or steward may find himself obligated to report finds to his state. What if he is the National of a signatory to the Convention on a vessel that flies the flag of a non-signatory state? It also raises the question of confidentiality agreements with the crews of vessels, which are not unusual. Would a National be required to violate the terms of their employment in making such a report?

  5. Onerous and Cumbersome Institutional Arrangements - Recognizing that it may only be a framework for further rounds of regulation, many provisions of the UCH Draft Convention hand over substantial powers to unaccountable international entities. Aside from the reporting requirements of Articles 9(3) and 11(2), which will be time-consuming for states, private sector, and commercial operators, both UNESCO and the International Seabed Authority will be granted substantial information-sharing responsibilities under Article 19.

    Clearly, the Meetings of State Parties and Scientific and Technical Advisory Board (STAB) will play a major role in the refinement of the Annex Rules, and the potential role of this mechanism is not clearly understood.

    While the peaceful settlement of disputes provision of Article 25 is a welcome development, it fails to provide a mechanism by which private parties can resolve dispute with governmental authorities, especially in the potentially incendiary circumstance of prompt release of vessels arrested under the authority of Article 17. This issue will have an important bearing on commercial offshore contractors. Can a vessel be confiscated because cable or pipeline is inadvertently run through the fragile remains of a small ancient shipwreck hidden beneath the seabed? How will the dispute be settled?

  6. Warship Jurisdiction - The regime for consultation and jurisdiction of UCH that will apply to "state vessels" is filled with sufficient "constructive ambiguity" so as to make it virtually impossible for any archaeological institution, commercial offshore company, or private sector exploration firm to know for sure who controls the wreck of a warship. The assertion of flag state rights over warships will undoubtedly conflict with assertion of rights by coastal states that become party to CPUCH. This presents an ominous situation where the best interests of the UCH are ignored in a jurisdictional deadlock between the coastal and flag state.

ADC Members: Be Alert
These issues are the most obvious and problematic. Taken together, they provide a confusing and unmanageable regime that may serve to hinder rather than promote the ultimate protection of UCH. These difficulties will play havoc with archaeological institutions every bit as much as the private sector, since they will have an effect on any attempt to properly manage UCH, without regard to the intent or legitimacy of the constituency.

The potential effects on the offshore industry are so far-reaching that I believe that it is important that ADC members closely monitor the Convention, and ascertain which of their clients may have projects that could fall under this regime, especially in foreign countries. In the end, the Convention will provide one more tool for regulatory supervision of commercial activities in the countries where it is adopted.

The net result? Countries that wish to continue allowing legitimate private sector access to shipwrecks will still be able to do so. Countries that want to prevent private sector access can do so now anyway, so this will not really change things in those countries.

Ironically, the group that will be most profoundly affected by this Convention is the archaeological community. The Rules that govern access to shipwrecks are much more stringent than most academic or non-profit organizations are used to. Fiscally responsible private sector archaeological contractors will, in my opinion, be better able to adapt to the rigorous financial and accountability requirements of the draft Convention.

I would be remiss not to add that I believe that there was one very positive consequence of the process of negotiating this Convention. The US delegation, under the leadership of Bob Blumberg, brought together many different constituencies of the shipwreck resource, from the private sector to federal resource managers and institutional archaeologists.

Through the process of hammering out the US position, we have all come to better understand and respect each other's positions. This will help create an atmosphere of cooperation as the US federal government strives to create a reasonable and practical regime for the management of UCH within its jurisdiction.

As always, the opinions set forth in this article are mine alone, and don't reflect the views of the United States' delegation to the UNESCO expert meetings, nor this publication. Anyone wishing to view the entire Draft Convention can find it at shipwreck.net under "Links." I welcome comments via e-mail at :email Greg Stemm. UW

Odyssey Marine Exploration's Greg Stemm, President of the Professional Shipwreck Explorers Association, hosts this column in each issue of UnderWater.

UnderWater Magazine is the bimonthly journal of the Association of Diving Contractors International, Inc. It is published by Doyle Publishing Company for the commercial diving, ROV, and underwater industries. Entire contents © 1993 - 1999 Doyle Publishing Company. Reproduction in whole or in part without express written permission is prohibited.

©2002 Greg Stemm

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