Buenos Aires Draft Convention on the Protection of the Underwater Cultural Heritage

Article 1: Definitions

For the purposes of this Convention:

1. “Underwater cultural heritage”means all underwater traces of human
existence including:

(a) sites, structures, buildings, artifacts and human remains,
together with their archaeological and natural contexts; and

(b) wreck such as a vessel, aircraft, other vehicle or any part
thereof, its cargo or other contents, together with its
archaeological and natural context.

2. Underwater cultural heritage shall be deemed to have been abandoned”:

(a) whenever technology would make exploration for research or
recovery feasible but exploration for research or recovery has not
been pursued by the owner of the heritage within 25 years after
discovery of the technology; or

(b) whenever no technology would reasonably permit exploration for
research or recovery and at least 50 years have elapsed since the
last assertion of interest by the owner in the underwater cultural
heritage.

3. “Cultural heritage zone means all the area beyond the territorial sea
of the State up to the outer limit of its Continental Shelf as
defined in accordance with relevant rules and principles of
international law.

4. “Charter”means the “Charter for the Protection and Management of the
Underwater Cultural Heritage”prepared by the International Council
for Monuments and Sites (ICOMOS) and annexed to this Convention.

Commentary

1. The definition of “underwater cultural heritage”is specific, unlike, for
example, a more philosophical definition in the 1992 European Convention on
the Protection of the Archaeological Heritage (Revised), Europ. T.S. No.
143. It is designed to make it easier for administrators and courts to
decide if something is covered by the Convention or not. The cargo and other
contents of the vessel are specifically stipulated because there have been
disputes covering whether these were part of a shipwreck. Also included are
sites, structures, buildings, artifacts, and human remains, together with
their archaeological and natural contexts. This is likely to include all
aspects of the underwater cultural heritage of significance to the history
of humanity. The context in which objects are found is itself specified as
part of the underwater cultural heritage. Context is one of the most
essential aspects of the archaeological heritage in providing knowledge of
life during a particular era.

2. The definition of “abandoned”is intended to stabilize expectations under
the Convention by simplifying its scope. The legal concept of abandonment
is elusive. Most jurisdictions take the view that there must be both
abandonment in fact and the intention to abandon a vessel or its cargo. The
latter requirement is particularly difficult, especially when the master and
crew of a vessel have actually left it and the owner does nothing within a
reasonable period of time to recover it. For example, in Columbus-America
Discovery Group v. Atlantic Mutual Insurance Co., 974 F.2d 450 (4th Cir.
1992), a federal appeals court in the United States upheld the 135-year-old
subrogated interests of insurance underwriters in a cargo of gold. The SS
Central America sank in 1857 off the coast of South Carolina. On board was
a shipment of gold from Californian merchants, bankers and express companies
to New York banks. Following the loss, the insurance companies paid out
under the policies and, under the doctrine of subrogation, became the owners
of the gold that was eventually found in 1989. The lower court held that the
claimants’ failure to recover the gold for 130 years and destruction or loss
of documentary evidence of their payments under the policies meant that they
had abandoned the gold. The Court of Appeals remanded the action to the
lower court with instructions to take account of the interests of the
successor insurers. In November 1993 the lower court awarded 90% of the
treasure to salvors and 10% to the insurance companies. N.Y. Times, Nov. 19,
1993, at A13.

Similarly, The Netherlands, as successor in title to all wrecks of vessels
that belonged to the Dutch East India Company, claimed gold and silver coins
from the wreck of the Akerendam, which was discovered off the coast of
Norway in the 1970’s. A negotiated settlement between Norway and the
Netherlands awarded the latter 10 per cent of the coins. Although some
scholarly writing has acknowledged the import of Dutch claims to such
treasure, the Agreement noted in the Report between Australia and the
Netherlands Concerning Old Dutch Shipwrecks 1972, Aus. T.S. No. 18, was
careful not to enshrine any such claim of right. In view of the uncertain
nature of the legal concept of abandonment and the effect this ambiguity
would have on the scope of the Convention, its definition attempts to define
abandonment with more precision but at the same time to preserve the
reasonable rights of owners.

3. The Charter is intended to provide a set of criteria whereby States may
judge whether activity in respect of the underwater cultural heritage has
been, or will be, acceptable. In other words, if material has been excavated
or retrieved, States will have a basis for determining whether it has been
done in accordance with archaeologically acceptable standards. The Charter
has been prepared by the International Committee for the Underwater Cultural
Heritage established by the International Council for Monuments and Sites
(ICOMOS). It is complementary to the “Charter for the Protection and
Management of the Archaeological Heritage”already produced by ICOMOS, but
is modified to take account of the special features of underwater cultural
heritage.

4. Drafting of the Convention involved much discussion of how the “cultural
heritage zone”should be defined. Mr. Anderson disagreed with the concept
of a cultural heritage zone and considered that the proposal, when read with
Article 5, goes beyond the current state of international law as represented
by the UN Convention on the Law of the Sea. Some argued that its breadth
should be left to the State concerned; for example, the zone might be made
co-extensive with the contiguous zone, Continental Shelf , 200-mile exclusive
economic zone, a special 200-mile zone, or any combination of these. Others
argued that a regime with multiple options of this sort would create too
many problems of delimitation where States with opposing or adjacent
coastlines have proclaimed or exercise different options. It was eventually
agreed that the area should coincide with the continental shelf.

Article 2: Scope of the Convention

1. This Convention applies to underwater cultural heritage which has
been lost or abandoned and is submerged underwater for at least 100
years. Any State Party may, however, protect underwater cultural
heritage which has been submerged underwater for less than 100 years.

2. This Convention does not apply to any warship, military aircraft,
naval auxiliary, or other vessels or aircraft owned or operated by a
State and used for the time being only on government non-commercial
service, or their contents.

Commentary

1. The Convention does not cover all underwater cultural heritage within the
definition of Article 1(4). According to Article 2, the heritage must have
been abandoned for at least 100 years beneath the sea. The 100-year
qualification can be found in the domestic legislation and practice of many
states. Of crucial importance is the date on which this period commences.
It could be the date of creation of the object, but this would mean that
some antique objects would qualify as soon as they sank. There is no
scientific basis for the 100-year rule. Some archaeologists work on material
of more recent vintage. The best rationale for the rule is administrative
convenience. It is an efficient means for separating out material which is
more likely to be important from that which is less likely. The Convention
does give States the option of extending its coverage to underwater cultural
heritage which is less than 100 years old. Thus, a State could specify in
its legislation any particular aspect of the heritage–for example,
wrecks–that it wanted covered by a shorter time span.

2. The definition of “abandoned requires modification with respect to
government owned or operated non-commercial maritime vessels or aircraft.
The mere passage of time should not be interpreted to establish abandonment
of such material. Many states resist any attempt to interfere with the sites
of such material. For example, the first wreck protected under the
Australian Historic Shipwrecks Act 1976 was a Japanese submarine sunk in
action off Bathurst Island, parts of which a salvor had been planning to
raise for scrap. Similarly, the United States has stated that:

… salvors should not presume that sunken U.S. warships have been
abandoned by the United States. Permission must be granted from the
United States to salvage sunken U.S. warships, and as a matter of
policy, the U.S. Government does not grant such permission with
respect to ships that contain the remains of deceased servicemen ….

In the absence of an express transfer or abandonment or a U.S.
warship sunk in the near past (e.g. in the World War II era), it
should be presumed that title to such vessels remains in the U.S.
Title to vessels sunk in the more distant past (such as during the
17th and 18th centuries) would, of course, still be determined by the
more conventional interpretation of abandonment of that period.

Letter from Department of State to Maritime Administration, December
30, 1980, reprinted in United States Department of State, 8 Digest of
United States Practice in International Law 999, 1004 (1980).

Many other States take a similar view and, in light of the firmness with
which this view is held, the Convention exempts warships from its scope. A
specific concern is that wrecks of warships may contain the remains of
service personnel who died in active combat and are regarded by the flag
States as war graves that should not be disturbed.

Article 3: General Principle

States Party shall take all reasonable measures to preserve underwater
cultural heritage for the benefit of humankind.

Commentary

This Article encapsulates the principle of Article 149 of the 1982 United
Nations Convention on the Law of the Sea. It is cast as a general duty
rather than one applying only in a specific maritime area. Moreover, the
duty is one of preservation. Thus, no mention is made of disposal of
objects, as in Article 149. Necessary disposal of underwater cultural
heritage should be done in such a way as to preserve it.

Article 4: Non-Applicability of Salvage Law

Underwater cultural heritage to which this Convention applies shall not be
subject to the law of salvage.

Commentary

It should be noted that the law of salvage relates solely to the recovery
of items endangered by the sea; it has no application to saving relics on
land. For underwater cultural heritage, the danger has passed; either a
vessel has sunk or an object has been lost overboard. Indeed, the heritage
may be in greater danger from salvage operations than from being allowed to
remain where it is. Even if it lies in an area of turbulence, the remedy is
to use the provisions of the Convention and Charter rather than rely on
criteria drawn from salvage practices. The major problem is that salvage is
motivated by economic considerations; the salvor is often seeking items of
value as fast as possible rather than undertaking the painstaking excavation
and treatment of all aspects of the site that is necessary to preserve its
historic value.

Author: international

Mentioned in these Entries

Continental Shelf.