1. International Herald Tribune of 12–13 December 1981, p. 16.Google Scholar

1a. International Herald Tribune of 28 August 1981, p. 14.Google Scholar

2. See Neue Zürcher Zeitung of 23 October 1980, No. 247, p. 7.

3. International Herald Tribune of 3 November 1980, p. 7.Google Scholar

4. Keesing's Contemporary Archives, vol. 21(1975), p. 27211Google Scholar; Collins, M.G., “The Salvage of Sunken Military Vessels – Project Jennifer: A Dangerous Precedent?” 8 Journal of Maritime Law and Commerce (1977), pp. 433–454Google Scholar. For another discovery announced recently, see Neue Zürcher Zeitung of 11 November 1980, No. 263, p. 5Google Scholar, and of 21 September 1981, No. 218, p. 5. These notices relate to the salvaging, by a British firm, of the British vessel “Edinburgh” which sank in the Barents Sea in 1942 with a treasure estimated at $ 100,000,000. The operation is governed by an agreement under which the Soviet Union is to receive two-thirds of the treasure, the remainder going to the British State and the salvors.

5. Prott, L. V. & O'Keefe, P. J., “International Legal Protection of the Underwater Cultural Heritage”, 14 Revue belge de droit international (1978 - 1979), pp. 85–103, at p. 87.Google Scholar

6. Ibid., pp. 86–7.

7. Ibid., pp. 87 - 8; Altes, A. Korthals, “Submarine Antiquities: A Legal Labyrinth”, 4 Syracuse Journal of International Law and Commerce (1976), pp. 77–96, at p. 78.Google Scholar

8. The legal régime of submarine antiquities, especially its international law aspects, have been examined by the following authors: Auburn, F. M., “Deep Sea Archaeology and the Law”, 2 International Journal of Nautical Archaeology and Underwater Exploration (1973), pp. 159 - 62Google Scholar; Braekhus, S., “From the Wreck of the ‘Akerendam’ in 1725 to the Discovery of Coins at Runde in 1972”, 20 Scandinavian Studies in Law (1976), pp. 39–68Google Scholar; Castagné, A., “L'archéologie sous-marine et le droit”, in Société française pour le droit international, Actualités du droit de la mer. Colloque de Montpellier, 25 - 27 mai 1972 (Paris, A. Pedone, 1973), pp. 164 - 83Google Scholar; Korthals Altes, op. cit. n. 7; Matysik, S., “Legal Problems of Recovery of Historical Treasures from the Sea-Bed”, in Frankowska, M., ed., Scientific and Technological Revolution and the Law of the Sea (Wroclaw, Polish Academy of Sciences, Institute of Legal Sciences, 1974), pp. 141 - 53Google Scholar; Prott & O'Keefe, op. cit. n. 5.

9. 249 UNTS, p. 240.

10. 10 ILM (1971), p. 289.

11. 11 ILM (1972), p. 1358.

12. This conclusion results from Arts. 3 to 5 of the 1954 Convention, Art. 22 of the 1970 Convention and Art. 3 of the 1972 Convention.

13. European Treaty Series No. 66.

14. The full name of this body was: Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction.

15. ISNT of 7 May 1975, Doc. A/CONF. 62/WP. 8, Third United Nations Conference on the Law of the Sea, Official Records, vol. 4, p. 137; RSNT of 6 May 1976, Doc. A/CONF. 62/WP. 8/Rev. 1, ibid., vol. 5, p. 125; ICNT of 15 July 1977, Doc. A/CONF. 62/WP. 10, ibid., vol. 8, p. 1, and Rev. 1 to 3 of that Text, of 28 April 1979, 11 April 1980 and 22 September 1980, reprinted in Platzöder, R., Dokumente der Dritten Seerechtskonferenz der Vereinten Nationen - Genfer Session 1979 (Ebenhausen, Stiftung für Wissenschaft und Politik), vol. 1, p. 17Google Scholar, Platzöder, , Dokumente … New Yorker Session 1980, vol. 1, p. 1Google Scholar, and Platzöder, , Dokumente … Genfer Session 1980, vol. 1, p. 1Google Scholar. Document Rev. 3 was entitled “Draft Convention on the Law of the Sea (Informal Text)”.

16. Doc. A/CONF. 62/L. 78.

17. See below, pp. 16 - 17. On 30 April 1981, the Third United Nations Conference on the Law of the Sea adopted the Draft Convention by a vote of 130 to 4, with 17 abstentions. At the time of writing, the work of the Drafting Committee was not, however, completed.

18. This is, in fact, the solution suggested by the French Language Group of the Drafting Committee.

19. “Value” is the term found in Art. 1 of the 1972 Convention for the Protection of the World Cultural and Natural Heritage (see n. 11), while the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (see n. 10) and the 1973 Greek proposals mentioned in n. 86 use the word “importance”.

20. On this issue, see in particular the Scandinavian legislation described by Braekhus, op. cit. n. 8, at pp. 62 - 3. Under the laws of Finland and Norway, the wrecked ship must be at least one hundred years old. This means that what is decisive is the time at which the ship was built and not the date at which it was wrecked; it also means that objects which are but a few years old qualify as antiquities if the ship carrying them has the required age. The laws of Denmark and Sweden prescribe a period of 150 and 100 years, respectively, from the date of the shipwreck. Thus, an antique statue carried by a recently wrecked ship could not be considered an antiquity. It would appear that the age of the object considered should be decisive and not the date of the shipwreck.

21. Oxman, B. H., “The Third United Nations Conference on the Law of the Sea: The Ninth Session (1980)”, 75 AJIL (1981), pp. 211 - 56, at p. 241 n. 152.CrossRefGoogle Scholar

22. In reality the reference to archaeological and historical objects seems to stem from proposals submitted to the Seabed Committee by Greece and by Turkey. These proposals, which related to items found in the International Seabed Area, will be dealt with below, pp. 26 - 7.

23. The fall of Tenochtitlán (1521) or Cuzco (1533).

24. 8 ILM (1969), p. 679.

25. See above, n. 20.

26. See below, pp. 27 - 8.

27. Art. 1 (1) of the Geneva Convention on the Territorial Sea and the Contiguous Zone, of 29 April 1958, 516 UNTS, p. 205; Art. 2 (1) and (2) of the Draft Convention. These provisions are declaratory of existing customary rules.

28. Unless that law allows for the application of foreign legislation, for instance the admiralty rules of the flag state of a foreign ship removing antiquities from the bed of the internal waters or from its subsoil.

29. Caflisch, L. & Piccard, J., “The Legal Régime of Marine Scientific Research and the Third United Nations Conference on the Law of the Sea”, 38 ZaöRV (1978), pp. 848–901, at pp. 854 - 5 n. 21.Google Scholar

30. This sovereignty results from Art. 1 (1) and (2) of the Geneva Convention on the Territorial Sea of 1958 and from Art. 2 (1) and (2) and Art. 3 of the Draft Convention, all of which reflect existing custom.

31. Art. 3. While the customary character of the 12-mile limit was dubious in 1958 - neither the (First) Geneva Conference on the Law of the Sea of 1958 nor the Second Geneva Conference held in 1960 were able to reach agreement on this point - recent state practice leaves no doubt that the 12-mile limit has now acquired that character, cf. below, n. 42.

32. Art. 1 (2) of the Geneva Convention; Art. 2 (3) of the Draft Convention.

33. Arts. 14 to 23 of the Geneva Convention; Arts. 17 to 32 of the Draft Convention.

34. This Convention limits itself to providing, in its Art. 4 and pursuant to the judgment rendered by the International Court of Justice on 18 December 1951 in the Fisheries case (United Kingdom v. Norway, 1CJ Reports 1951, p. 116), that in certain situations coastal archipelagos may be taken into account for the drawing of straight baselines.

35. For the limits and the legal status of archipelagic waters, see Arts. 46 to 54 of the Draft Convention. Cf. also Rodgers, P. E. J., Midocean Archipelagos and International Law (New York, Vantage Press, 1981)Google Scholar and the writings indicated therein. Arts. 46 to 54 of the Draft Convention apply neither to outlying archipelagos belonging to a continental state nor to coastal archipelagos, the latter being covered by Art. 7 (straight baselines).

36. Arts. 2 (1) and 49 of the Draft Convention.

37. Arts. 53 and 52 of the Draft Convention.

38. Convention on the Territorial Sea and the Contiguous Zone, see above, n. 27; Convention on the High Seas, 450 UNTS, p. 82; Convention on the Continental Shelf, ibid., vol. 499, p. 311; Convention on Fishing and on Conservation of the Living Resources of the High Seas, ibid., vol. 559, p. 285.

39. The Geneva Conferences of 1958 and 1960 were unable to agree on these points, see above, n. 31. As Art. 24 states that the combined maximum bieadths of the territorial sea and the contiguous zone shall not exceed 12 miles, without specifying the maximum breadth of the former, it may be argued that, even back in 1958, a 12-mile territorial sea was permissible, the consequence being that the states claiming a territorial sea of that breadth would be deprived of a contiguous zone.

40. Oda, S., “The Concept of the Contiguous Zone”, 11 ICLQ (1962), pp. 131 - 53.CrossRefGoogle Scholar

41. Fitzmaurice, G. G., “Some Results of the Geneva Conference on the Law of the Sea”, 8 ICLQ (1959), pp. 73–121, at pp. 111–151.CrossRefGoogle Scholar

42. As of 1 May 1981, 80 States claim a 12-mile territorial sea, cf. U.S. Department of State, Bureau of Intelligence and Research, Office of the Geographer, Limits in the Seas, No. 36, National Claims to Maritime Jurisdiction, 4th revision, p. 8.

43. Castagné, op. cit. n. 8, at p. 171.

44. See the statement made on 26 March 1958 by Mr. Jhirad (India) in the Fourth Committee of the 1958 Conference, (First) United Nations Conference on the Law of the Sea, Official Records, vol. 6, p. 51; this statement was related to the definition of “natural resources” which had been proposed by six states (Australia, Ceylon, Federation of Malaya, India, Norway, United Kingdom, cf. Doc. A/CONF. 13/C. 4/L. 36 of 24 March 1958, ibid., p. 136) and which was to form the basis of the definition subsequently included in Art. 2 (4) of the Geneva Convention on the Continental Shelf. Korthals Altes, op. cit. n. 7, at p. 80, argues that wrecks are “resources” though not “natural resources”, but it is difficult to see what the acceptance of this argument would achieve on the practical level.

45. Commentary (5) on Art. 68, ILC Yearbook 1956, vol. 2, p. 298.

46. The question was raised again, albeit in connection with the seabed and its subsoil beyond the limits of national jurisdiction, in a “Study on International Machinery” presented to the Seabed Committee on 26 May 1970 by the Secretary-General of the United Nations, Doc. A/AC. 138/23, at p. 36. This study contained the following passage: “Perhaps [the wrecks, relics or lost objects lying on the seabed] are not ‘resources’ or at least not ‘natural resources’. Nevertheless, they may fall under the jurisdiction of the machinery, if the recovery of such objects is regarded as another use of the sea-bed.”

47. Caflisch & Piccard, op. cit. n. 29, at pp. 861–2.

48. See above, p. 14 and nn. 44 and 45.

49. This probability results in particular from the fact that, save for a minor drafting modification (replacement of the word “regulations” by the formula “laws and regulations”), the provisions on the legal régime of the contiguous zone contained in Art. 24 were incorporated without change into Art. 33 of the Draft Convention.

50. See above, pp. 12 - 13.

51. Federal Republic of Germany v. Denmark and the Netherlands, ICJ Reports 1969, p. 3.

52. Ibid., paras. 63 to 65, at pp. 38 - 40.

53. See above, p. 15.

54. See above, n. 15.

55. The proposal is reprinted in Platzöder, , Dokumente … - Genfer Session 1979, vol. 3, p. 819.Google Scholar

56. Doc. C. 2/Informal Meeting/43/Rev. 1 of 21 August 1979. This text had been preceded by Doc. C. 2/Informal Meeting/43 of 16 August 1979. Both proposals are reproduced in Platzöder, , Dokumente … - New Yorker Session 1979, vol. 3, pp. 515 and 514.Google Scholar

57. Docs. C. 2/Informal Meeting/13/Rev. 2 and 3 of 19 and 27 March 1980, reprinted in Platzöder, , Dokumente … -New Yorker Session 1980, vol. 2, pp. 747 and 748.Google Scholar

58. This reference proved unnecessary because antiquities will always be found on or in the seabed, not in the superjacent water column, because under Art. 76 (1) of the Draft Convention the continental shelf begins at the outer limit of the territorial sea and because, according to Art. 56 (3), the bed of the exclusive economic zone and its subsoil are governed by the régime of the continental shelf.

59. The account which follows is mainly based on Oxman, op. cit. n. 21, at pp. 240 - 1, and Treves, T., “La nona sessione della Conferenza sul diritto del mare”, 63 Rivista di diritto internazionale (1980), pp. 432 - 63, at pp. 440 - 2Google Scholar. Both authors were directly involved in the negotiation of what was eventually to become Art. 303 of the Draft.Convention.

60. Doc. GP/4 of 27 March 1980, Platzöder, , Dokumente … -New Yorker Session 1980, vol. 2, p. 503.Google Scholar

61. Doc. GP/10 of 18 August 1980, Platzöder, , Dokumente … - Genfer Session 1980, vol. 2, p. 394Google Scholar. This reduction was very minor compared to the one which was accepted by the Greek delegation a few days later and was included in the final text of Art. 303.

62. Oxman, op. cit. n. 21, at p. 240.

63. According to Treves, op. cit. n. 59, at p. 441 n. 35, this suggestion may have been based on the analogous provision of Art. 211 (3) of the Draft Convention which authorises states to establish particular requirements in matters of prevention, reduction and control of pollution as a condition for the entry of foreign vessels into their ports or internal waters or for calls at their off-shore terminals.

64. See above, p. 10 and n. 31.

65. Oxman, op. cit. n. 21, at p. 241, argues that the fiction may have some basis in reality: in many cases, small craft engaged in recovering antiquities from areas immediately beyond the territorial sea of a foreign state will operate out of a port or anchorage of that state. To this argument one may object that, whatever the basis of operations, the items reclaimed from the bed of the contiguous zone or from its subsoil are presumed to have been removed from the coastal state's territory or territorial sea, which in fact is not the case. Hence the fiction remains.

66. Treves, op. cit. n. 59, at p. 442.

67. On Art. 149, see below, pp. 25 - 31.

68. Docs. C. 2/Informal Meeting/39 of 16 May 1978 and C. 2/Informal Meeting/39/ Rev. 1 of 1 September 1978, Platzöder, , Dokumente … -New Yorker Session 1978, vol. 2, pp. 298 and 299.Google Scholar

69. Docs. C. 2/Informal Meeting/52 and 53 of 19 March 1980, Platzöder, , Dokumente … - New Yorker Session 1980, vol. 2, pp. 751 and 752.Google Scholar

70. One wonders whether the expression “flag state” may be properly used in connection with wrecks lying on the sea-bed. On this point, see below, n. 81.

71. This results from the explanatory note which was attached to Doc. C. 2/Informal Meeting/39/Rev. 1 (Soviet proposal cited in n. 68) and which read as follows:

“The Law of the Sea Convention which is being prepared at the United Nations Conference is aimed at regulating relations among States with regard to a broad range of questions related to the use of the ocean.

A customary rule has come into being in international law whereby a flag state and the owner of a ship or aircraft do not forfeit their rights to a ship or aircraft sunk at sea or to equipment and property on board. Such rights are absolute and are not subject to any time limit, provided that the ship, the aircraft or the equipment and property on board sink beyond the limits of the territorial waters of States.

The above-mentioned customary rule of law corresponds to the legislative practice of a large number of States, and its purpose is to protect the rights of owners of sunken property, even in the territorial or internal waters of States. The rights of foreign nationals and bodies corporate in this regard are also protected.

Statistics show that a considerable number of seagoing vessels and other property are lost beyond the limits of territorial waters each year, and it would therefore seem expedient to embody in a convention a rule which has already become established in customary international law.”

It is doubtful whether this note accurately reflects the current status of international customary law in the matter.

72. See above, p. 3 and n. 4.

73. Doc. 2/Informal Meeting/50 of 14 March 1980 (Bulgaria, Byelorussia, Czechoslovakia, German Democratic Republic, Hungary, Poland, Ukraine, Soviet Union), Platzöder, , Dokumente … - New Yorker Session 1980, vol. 2, p. 749.Google Scholar

74. This suggestion, which seems to have been prompted by the incident referred to above, p. 3 and n. 4, is open to criticism. Upon its being wrecked and its sinking, a vessel, regardless of whether it was or was not state-owned or state-operated and used exclusively on governmental non-commercial service, ceases to be a ship (cf. below, n. 81) and thus is no longer subject to the jurisdiction of the flag state; by the same token, it would appear to have lost its sovereign immunity.

75. See above, pp. 5–6.

76. Art. 48 of Part III of the RSNT (see above, n. 15) contained the following definition, which was omitted from the subsequent Texts: “For the purpose of this Convention, ‘marine scientific research’ means any study or related experimental work designed to increase mankind's knowledge of the marine environment.”

77. See above, pp. 14 - 15.

78. Para. 2 of Art. 246 establishes the general rule of coastal state consent for research to be carried out in the exclusive economic zone and on the continental shelf. Para. 3 provides that “in normal circumstances” consent shall be given if the proposed research is to be conducted “exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind”, i.e. if it constitutes “fundamental” research. Para. 5 allows the coastal state, in its discretion, to withhold its consent for research which is resource-oriented, which involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment, or which necessitates the construction, operation or use of artificial islands, installations and structures (the two other cases mentioned in para. 5 are of no interest here). Para. 6, finally, provides that the coastal state may not exercise its discretion to withhold consent in respect of research to be undertaken on the part of the continental shelf located beyond the 200-mile limit, except in “those specific areas which coastal States may at any time publicly designate as areas in which exploitation or detailed exploratory operations focused on those areas are occurring or will occur within a reasonable period of time”. The content of these provisions, taken as a whole, shows beyond any reasonable doubt that the term “marine scientific research” relates to the natural marine environment and its resources rather than to the remnants of human culture found on and in the sea-bed.

79. The freedom to exercise activities connected with submarine antiquities is not, it is true, expressly mentioned among the freedoms of the high seas enumerated in Art. 87 (1) of the Draft Convention, but the inclusion of the words “inter alia” in this provision shows that the enumeration is not exhaustive.

80. See the preamble to the Convention, where the States Parties express their desire “to codify the rules of international law” and recognise that the provisions of the Convention are “generally declaratory of established principles of international law”.

81. Gidel, G., Le droit international de la mer, vol. 1 (Paris, Sirey, 1932), pp. 70 - 1Google Scholar, citing the Costa Rica Packet case (Great Britain v. the Netherlands) decided by an arbitral award rendered on 13/25 February 1897 by F. de Martens (de Martens, , Nouveau Recueil Général de Traités, 2nd series, vol. 23, p. 810Google Scholar). According to Gidel, it may be inferred from the award that a floating “assemblage” which has the form of a boat and which has been abandoned on the high seas will not qualify as a ship submitted to the exclusive jurisdiction of the flag state unless there is evidence of a continued intention to use this “assemblage” for maritime navigation under the control of a state.

82. The situation is identical with that described in n. 79 with respect to Art. 87 (1) of the Draft Convention. On this point, see Commentary (2) of the ILC on Art. 27 of its Draft, ILC Yearbook 1956, vol. 2, p. 278.

83. See above, pp. 19 - 20.

84. For partial descriptions, see Korthals Altes, op. cit. n. 7, at pp. 82 - 4, and Auburn, op. cit. n. 8, at pp. 160 - 1.

85. In addition, there was the proposal of the United States of 3 August 1970 entitled “Draft United Nations Convention on the International Sea-Bed Area” (Doc. A/AC. 138/25). Under Art. 25 of that draft, the proposed International Seabed Resource Authority was to be empowered to “designate as international marine parks and preserves specific portions of the International Sea-bed Area that have unusual educational, scientific or recreational value”.

86. Archaeological and Historical Treasures of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction, Doc. A/AC. 138/SC. I/L. 16 of 2 August 1972; Draft Article on Item 23 of the List of Subjects and Issues. Protection of Archaeological and Historical Treasures, Doc. A/AC. 138/SC. I/L. 25 of 14 August 1973. The “List of Subjects and Issues” to be dealt with by the Seabed Committee appears in Doc. A/AC. 138/66 of 16 August 1972.

87. Draft Article under Point 23. Archaeological and Historical Treasures on the Sea-Bed and Ocean Floor beyond the Limits of National Jurisdiction, Doc. A/AC. 138/SC. I/L. 21 of 28 March 1973.

88. On these problems, see also the critique by Prott & O'Keefe, op. cit n. 5, at p. 93.

89. According to the statement made on 23 March 1973 by Mr. Akyamaç (Turkey) before Sub-Committee I of the Seabed Committee (Doc. A/AC. 138/SC. I/SR. 65, p. 43), the formula “State of the country of origin” contained in the Turkish proposal (see above, n. 87) was preferred to the term “State of cultural origin” because the latter was imprecise owing to the fact that the same culture may have been shared in the past by several countries. The wording suggested by Turkey thus seems to have been intended to designate the state which at present exercises sovereignty over the “country” of origin of the object.

90. Contrary to the initial Greek proposal (see above, n. 86), which would have enabled the Authority to take measures to ensure that activities of exploration and exploitation of the Area's natural resources did not damage submarine sites.

91. Texts Illustrating Areas of Agreement and Disagreement on Items 1 and 2 of the Sub-Committee's Programme of Work, Appendix III to the Report of the Seabed Committee to the General Assembly of the United Nations, General Assembly, Official Records, 28th session, Supplement No. 2 (Doc. A/9021), vol. 2, p. 39, at p. 69.

92. Art. 20 of the Draft Articles Considered by [the First Committee] at Its Informal Meetings, Doc. A/CONF. 62/C. 1/L. 3 of 5 August 1974, Third United Nations Conference on the Law of the Sea, Official Records, vol. 3, p. 157.

93. See p. 7.

94. See above, p. 19.

95. Para. 3 of Art. 303, which notably reserves the rights of identifiable owners and the law of salvage and other admiralty rules, could clash with the principle, laid down in Art. 149, that antiquities found in the Area shall be preserved or disposed of for the benefit of mankind as a whole. Para. 4 of Art. 303, which reserves other international agreements and rules of international law, might also conflict with Art. 149, for the latter contains no such reservation.

96. Pp. 29 - 31.

97. See above, pp. 26 - 7.

98. There is yet another, more prosaic and more probable explanation. The history of the expression reaches back to the proposal submitted in 1973 to the Seabed Committee by Turkey (see above, n. 87). The term “State of the country of origin” used in that proposal was apparently intended to designate the state which presently exercises sovereignty over the “country” of origin of the object (see above, n. 89). For reasons difficult to fathom, Sub-Committee 1 of the Seabed Committee amended this term to read “State of country of origin” (see above, p. 27), thus rendering it meaningless or incomprehensible. The new wording was nevertheless maintained in Art. 19 of Part I of the ISNT of 1975 (see above, p. 28). When the latter was revised for the first time in 1976, the formula was modified to read “State or country of origin” (see above, p. 28). No doubt this modification, which was quite possibly based on the assumption that the word “of” was the result of a typographical error, was intended to instil some meaning into an obscure text, but its authors took no account of the original formula contained in the 1973 Turkish proposal. For this reason, the change made in 1976 and incorporated into Art. 149 seems to deviate from what the authors of the Convention originally had in mind.

99. On this point, see above, pp. 7 - 10.