1. A fundamental misunderstanding of the Convention

To understand the rationale behind the UK's position on the Convention, one must appreciate its method of heritage protection, which is a site-based, selective approach. Although there now exists some divergence in the way that wreck sites are protected in the devolved nations,Footnote ⁴⁷ previously the Protection of Wrecks Act 1973 had regulated this issue on a national level. Under this statute, applications must be made for wrecks to be formally designated and even then, they must be of ‘historical, archaeological or artistic importance’.Footnote ⁴⁸ This approach is responsive, meaning that a wreck must first be discovered before it can be designated and protected, and thus far, only 63 wrecks have successfully met these criteria. Any person wishing to engage with these sites must then apply to the relevant heritage body for a license.

The notion of significance has been a central factor in the UK's policy on heritage protection. As the Convention does not include such a criterion, the UK interpreted Article 1 to mean that it would have to extend the same level of protection —and resources—to every shipwreck on the territorial seabed, of which it estimated there to be 10,000.Footnote ⁴⁹ Presumably this position is founded upon fears of a significant, and likely unquantifiable, financial burden and legislative disruption. This is a misconception of what the Convention proposes to achieve, based upon the erroneous view that the site-based approach is the only strategy, and resulting in the belief that the UK would be required to designate all UCH that fell within the, prima facie, broad definition. This misconception could be the result of a non-specialist UK delegation at the UNESCO consultation meetings.Footnote ⁵⁰ Those present lacked any archaeological background or qualifications, and the delegation did not include any broader representation from NGOs either.Footnote ⁵¹ The only specialist advice provided at the time was legal and provided by FCO lawyers.Footnote ⁵²

The Convention makes no mention of protecting individual sites. Rather, it takes an activity-based approach. This means that the aim of the Convention is not protecting UCH by designating all sites that fall within the definition; it is to protect UCH by regulating activities directed at UCH. Other States appeared to grasp this concept more easily during negotiations, with Canada, for example, noting during the adoption of the text that ‘[the] work has resulted in a text that is focused on “activities directed at” underwater cultural heritage’.Footnote ⁵³

Article 7(2) imposes a duty on State parties to ensure the Rules in the Annex are applied to activities directed at UCH in the territorial sea. Such activities are defined in Article 1(6) as having UCH as their primary object and which may, directly or indirectly, physically disturb or otherwise damage UCH. This definition narrows the scope of activities further still, as they must satisfy two criteria to fit the remit of the obligation: having UCH as the primary object, and physically disturbing or damaging UCH. Moreover, Article 2(4) states that ‘State Parties shall … take all appropriate measures … that are necessary to protect [UCH], using for this purpose the best practicable means at their disposal and in accordance with their capabilities.’Footnote ⁵⁴ The measures to be taken in each instance should be determined as appropriate. Read in its entire context, it seems difficult to understand how this could have been an obstacle.

This approach could procure a highly flexible and context-specific approach to address the individual needs of particular UCH within the capabilities of the UK. The most significant wrecks could still be afforded statutory protection using a site-based approach, but there is scope within the Convention's provisions to exercise judgment in safeguarding non-designated wrecks. The UK expressly recognizes that the absence of designation does not lower significance.Footnote ⁵⁵ Where UCH falls within the Convention's definition but the UK does not deem designation necessary, the State's obligations would simply be to regulate activities with UCH as the primary object that may result in physical disturbance, as outlined in Article 7(2). The UK already has a system in place regulating marine activities, which is capable of incorporating the obligation with little legislative change.

The Marine and Coastal Access Act 2009 and the Marine (Scotland) Act 2010 provide a mode of regulating marine activities. Licenses are required in the UK's inshore areasFootnote ⁵⁶ for various activities, such as removing an object from the seabed using a vessel or floating container. Many of the activities for which the Convention is directed at will fall within the existing requirements for a marine license. This means that the additional number of activities requiring regulation under the Convention will be very small, particularly as they need to have UCH as the primary object and involve physical disturbance of that heritage. Currently a license is not required to remove something from the seabed by hand,Footnote ⁵⁷ but it would be relatively straightforward to add provisions whereby a license is required if the activity falls within the Convention's criteria. Such provisions would also ensure that where intrusive work is carried out it will be done in accordance with archaeological standards, such is the obligation in Article 7(2). Activities falling outside of this scope would not require regulation, such as fishing, dredging, and non-intrusive wreck diving.Footnote ⁵⁸ The Convention does not restrict divers, but ensures that physical intervention conforms to archaeological standards where UCH is concerned.

2. Overestimation of the number of wrecks

The UK explanation of its vote alludes to ‘probably 10,000 wreck sites on the seabed under the UK's territorial sea’Footnote ⁵⁹ and declares that protecting all of these would be impossible. In fact, there is significant evidence that the number of known wrecks in the territorial sea that fall within the Convention's definition is substantially lower than the estimate noted by the UK. The number of wrecks known to be over 100 years old is less than one thousand,Footnote ⁶⁰ and by 2018 will be approximately 2,800 owing to the large number of ships sunk in battle during WWI.Footnote ⁶¹ Firth notes that wrecks dating from before 1860 are so rare that they are highly likely to be significant for one reason or another.Footnote ⁶²

Let us assume that the UK is correct that the number of wrecks is 10,000 and all of them require designation. Even then it is difficult to see how it would ‘simply be impossible’ to enforce the Convention's rules when comparing UCH to terrestrial sites. Where an activity may affect a scheduled monument or listed building, an application for Scheduled Monument Consent (SMC) or Listed Building Consent must be made. Collectively, there are approximately 34,000 scheduled monuments across the UK,Footnote ⁶³ with hundreds of thousands of listed buildings. With this in mind, the provisions of the Convention are not impossible. UCH is much less accessible than land sites, and is likely to be subject to less interference and activity as a result.

In any event, as the Convention does not implement a site-based approach, the number of wrecks in the UK's territorial sea falling within the definition becomes immaterial. The focus should be shifted to the number of activities directed at UCH. Firth notes that the likely number of licensable activities each year will be very low, amounting only to a few tens, especially if the licensable activities through the Protection of Wrecks Act 1973 are set aside.Footnote ⁶⁴ Non-intrusive activities and those not having UCH as their primary purpose fall outside the Convention's scope.

This ‘blanket approach’ means that the system can protect heritage sites prior to discovery. The problem with a site-based, reactive system is that interference can occur between discovery and designation. For example, the HMS Association was discovered prior to the enactment of the Protection of Wrecks Act 1973 and news of the discovery brought about salvors who recovered over 2,000 artefacts, leaving the wreck in such a state that when the Act came into force she was initially considered not worth protecting.

In terms of cost, blanket protection has been shown to be the most convenient and effective administrative procedure for the protection of UCH.Footnote ⁶⁵ Assessment of significance requires effort and is likely to involve extensive physical intervention. In Australia, historic shipwrecks over 75 years old are given blanket protection. This has worked well in terms of providing clarity for heritage managers, divers, treasure hunters and marine developers in knowing what the compliance requirements are—significance is still a factor in terms of a finder's reward or assessing intervention, but it is not the primary purpose of the system.Footnote ⁶⁶

3. Acceptance of other broad cultural heritage definitions

The definition of UCH in the Convention is consistent with what the UK subscribes to both nationally and internationally. The UK has ratified the European Convention on the Protection of the Archaeological Heritage 1992 (Valletta Convention),Footnote ⁶⁷ which has a broad definition of archaeological heritage. Article 1 provides that archaeological heritage ‘shall be considered to be elements of the archaeological heritage all remains and objects and any other traces of mankind from past epochs’. This lacks a significance criterion, but the UK is still a State party.

More recently in the UK Marine Policy Statement (MPS),Footnote ⁶⁸ published in 2011, a very broad definition of the historic environment includes ‘all aspects of the environment resulting from the interaction between people and places through time, including all surviving physical remains of past human activity, whether visible, buried or submerged’.Footnote ⁶⁹ This is a much wider definition than the Convention's historic ‘character’ criterion. The MPS distinguishes between all remains, and those elements that have been identified as ‘holding a degree of significance’, which it calls ‘heritage assets’.Footnote ⁷⁰ The MPS indicates that marine planning authorities should consider undesignated assets subject to the same policy principles as those that are designated.Footnote ⁷¹ It seems that the UK could easily continue this approach in conformity with the Convention.

Finally, a consultation on the marine planning system in England noted that planners would be expected to take account of the principles set out in the Annex of the Convention.Footnote ⁷² If there is an expectation for the Rules to be applied to heritage in the UK's territorial sea, this narrows the gap between the Convention and UK law further still.

It is clear from this analysis that it is the UK's interpretation which is problematic, rather than the definition of UCH itself. The Convention does nothing more than place a duty on States to ensure that activities conform to archaeological guidelines if they are both directed at UCH and likely to disturb or damage such objects. Even then, States are able to act in accordance with their capabilities. The Convention does not require the UK to designate any more wrecks than it deems appropriate, or regulate every single activity involving UCH. Given that the number of wrecks falling within the Convention's scope is significantly lower than originally anticipated, the number of activities that require regulation will also be lower. Although this may require some administrative changes, it should not be too onerous for the UK to execute given that a marine licensing system already exists for other activities. This should no longer be employed as a reason to justify non-ratification and should not delay a review of the Government's position.

1. Extension of sovereign immunity to wrecked warships

Some commentators deem that once sunk, a vessel fails to retain its status as a ‘ship’ and consequently does not retain its immunity.Footnote ⁸³ UNCLOS does not define ‘ship’, but Article 29 describes a ‘warship’ as being ‘under the command of an officer’ and ‘manned by a crew’, which does suggest that the ship must be afloat to fall within the definition.Footnote ⁸⁴ Similarly, the 1989 Salvage Convention defines a ‘vessel’ as being ‘capable of navigation’.Footnote ⁸⁵ For these reasons, inter alia, Ronzitti has stated the customary nature of this principle is doubtful.Footnote ⁸⁶

Upon examining UNCLOS in a broader context, the definition of a warship only becomes relevant when differentiating between provisions relating to warships and all other ships.Footnote ⁸⁷ Many States with strong views on extending sovereign immunity to wrecked warships have ratified both UNCLOS and the Salvage Convention;Footnote ⁸⁸ they could not have intended that these Conventions would limit their immunity to warships and government vessels afloat.

There is also the argument that immunity should apply only to recently sunk vessels. Forrest debates that ‘while there are legitimate security and national intelligence reasons for granting exclusive flag State jurisdiction in the case of recently sunken State-owned vessels, these considerations do not, however, apply to sunken State-owned vessels that fall within the definition of [UCH]’.Footnote ⁸⁹ However if it is contended that wrecked warships fail to retain their immunity, as they are not manned ‘ships’ or capable of navigation, then in applying this logic even recently wrecked vessels could not retain sovereign immunity as ‘warships’. There must be another theoretical basis for wrecked warships to retain their immunity.

It seems more reasonable to submit that immunity is only retained as long as necessary to protect State interests, but who decides when such interests no longer require protecting? Most States tend to agree that immunity no longer applies if ownership in the shipwreck is expressly abandoned or relinquished.Footnote ⁹⁰ Dromgoole views this as having become part of customary law,Footnote ⁹¹ and La Belle and Le Corossol both demonstrate the necessity of an express abandonment of ownership.Footnote ⁹² It could be viewed that express abandonment by a State would be an implicit statement that it no longer needs to protect its interests through sovereign immunity, meaning the decision is made by the State itself on a case-by-case basis.

There is other evidence in international law that a sunken warship does retain its sovereign immunity. In conventional international law, and as an appendage to the sovereign immunity principle, the 1989 Salvage Convention explicitly does not apply to State-owned vessels,Footnote ⁹³ and the recently in force Wreck Removal ConventionFootnote ⁹⁴ also excludes ‘any warship or other ship owned or operated by a State and used, for the time being, only on Government non-commercial service, unless that State decides otherwise’.Footnote ⁹⁵ This would fit the idea that wrecked warships retain their immunity.

In terms of customary international law, there is evidence of general State practice, whether or not it could be considered sufficiently consistent. The majority of major maritime States take the view that sunken warships retain sovereign immunity once sunk and have acted on this basis.Footnote ⁹⁶ For instance, former US President Clinton explicitly stated that, ‘the United States retains title indefinitely to its sunken State craft unless title has been abandoned or transferred in the manner Congress authorized or directed’.Footnote ⁹⁷ Past disputes have also been resolved by interstate agreements based on this principle. For example, in 1989, the UK and South Africa made an exchange of notes whereby South Africa recognized British title to the HMS Birkenhead located in its waters.Footnote ⁹⁸ In 2003 an agreement was signed between the USA and France, giving the latter official title to the wreck of La Belle, sunk in 1686 off the coast of Texas. In 2011, the US 11th Circuit Court of Appeals affirmed that Spain was entitled to a presumption of immunity over the Nuestra Señora de las Mercedes, sunk off Portugal in 1804, under Section 1609 of the Foreign Sovereign Immunities Act 1976.Footnote ⁹⁹

With regard to opinio juris, many States have declared that they act in accordance with the ‘rule of international law’ that sovereign immunity is retained. For example, ‘the United States recognizes the rule of international law that title to foreign sunken State craft may be transferred or abandoned only in accordance with the law of the foreign flag State’.Footnote ¹⁰⁰ Germany states that ‘under international law, warships and other … State vessels and aircraft continue to enjoy sovereign immunity after sinking’,Footnote ¹⁰¹ and Russia considers that ‘under international law of the sea all the sunken warships and government aircraft remain the property of their flag State’.Footnote ¹⁰² Domestic lawFootnote ¹⁰³ and other State documentsFootnote ¹⁰⁴ could also be considered as evidence of such practice. It is clear that States believe they have legal authority to act in this way, and so the existence of opinio juris could be argued.

The Institut de droit international’s Resolution on ‘The Legal Regime of Wrecks of Warships and Other State-Owned Ships in International Law’ (‘IDI Resolution’)Footnote ¹⁰⁵ confirms wrecked warships’ immune status. Article 3 states that ‘sunken State ships are immune from the jurisdiction of any State other than the flag State’. Although the theoretical basis for this is unclear, the travaux préparatoires appear to favour either State ownershipFootnote ¹⁰⁶ or the public property statusFootnote ¹⁰⁷ of such wrecks as justifications for immunity, rather than being immune by virtue of being ‘warships’.Footnote ¹⁰⁸

Finally, whilst the concept of submerged war graves does not currently exist in international law, it is customary international humanitarian law to respect, protect and properly maintain war gravesFootnote ¹⁰⁹—jus in bello applies. Although there is no strict definition of the term ‘war graves’, it is understood to be a broad concept.Footnote ¹¹⁰ It is clear there are many possible theoretical bases for wrecked warships to retain sovereign immunity.

2. Does the Convention alter this position?

Although customary status is likely, it is difficult to say with certainty in the absence of judicial confirmation. What is important to note is that the UNESCO Convention does not modify any principle of sovereign immunity from that which may already exist. According to Article 2(8), ‘… nothing in this Convention shall be interpreted as modifying the rules of international law and State practice pertaining to sovereign immunities, nor any State's rights with respect to its State vessels and aircraft’. States should be reassured that the Convention does not alter any existing principle of immunity.

Article 3 also notes that the Convention shall generally ‘be interpreted and applied in the context of and in a manner consistent with international law, including [UNCLOS]’. The UK states that the Convention alters the balance of coastal/flag State rights in UNCLOS, but incompatibility with UNCLOS is virtually impossible. Article 30(2) of the Vienna Convention on the Law of Treaties (VCLT)Footnote ¹¹¹ provides that when a treaty specifies that it is not to be considered incompatible with another treaty, the provisions of the other treaty prevail.

The two problematic articles for States are Articles 7(3) and 10(7), reproduced in full above. Article 7(3) appears to fall short of placing an obligation on the coastal State to inform the flag State of any warship discoveries and there are concerns that informing any other States with ‘verifiable links’ could dilute the principle of sovereign immunity. Again, this should be read in conjunction with Article 2(8), which dictates that rules relating to immunity are not modified. This reinforces the fact that express State consent is a requirement. Similarly, Article 2(2) provides that State parties shall cooperate in the protection of UCH. This echoes the general provision in Article 303(1) UNCLOS, which provides that States have the duty to protect UCH objects found at sea and shall cooperate for that purpose. Should the coastal State neglect to inform the flag State of the discovery, it would surely breach both provisions.

The concept of a ‘verifiable link’ in Article 7(3) is particularly useful where the age or quality of a vessel makes it difficult to identify whether it is indeed a State vessel.Footnote ¹¹² It still gives the potential flag State the right to be notified and consulted, and ensures that the coastal State cooperates with the flag State in guaranteeing the best possible protection for UCH. Similarly, where other States with ‘verifiable links’ may be contacted, for example State interests in cargo or crew, an opportunity is presented to cooperate in protecting the wreck.Footnote ¹¹³

Although Article 10(7) provides that no activities shall be directed at warships without flag State consent, this is subject to paragraphs 2 and 4. Both paragraphs are examined in detail in Part 3 below, but Article 10(2) appears to give coastal States a broad right to prevent or authorize activities directed at UCH, including warships, in its EEZ and continental shelf; whilst Article 10(4) limits the scope of sovereign immunity by allowing the coastal State to act prior to consultation. The former does not give the coastal State title over UCH in its territory, implicitly or otherwise. It is a necessary inclusion to balance the legitimate rights and sovereign interests of States, and simply restates the competence that States already have under UNCLOS to prevent interference with their sovereign rights.Footnote ¹¹⁴ The latter provision actually upholds the principle of immunity. The coastal State can take immediate action only to prevent damage to the UCH. This means that the coastal State can prevent looting or other damage to the foreign warship, thus preserving the wreck and its sovereign status.

3. Is the Convention more effective than the sovereign immunity principle?

Although the UNESCO Convention does not modify any international law or State practice relating to sovereign immunity, not all jurists subscribe to the notion that a sunken warship retains its immunity. The theoretical basis for sovereign immunity over wrecked warships is ambiguous, meaning that enforcing the UK's position in every jurisdiction could prove problematic. Relying on this principle to effectively protect wrecked warships leaves the UK dependent upon the cooperation of other States to apply it uniformly.

Sovereign immunity may also be redundant in protecting sunken vessels if they have been subsequently sold for scrap, as most States perceive that immunity is lost when title is abandoned.Footnote ¹¹⁵ Many military wrecks have already been sold by the UK, such as those lost in the Battle of Jutland.Footnote ¹¹⁶ Following calls to prevent the warships from being salvaged by a Dutch company,Footnote ¹¹⁷ the UK believed that as they had been sold for scrap following sinking, they were no longer sovereign immune and so there was little it could do to prevent interference.Footnote ¹¹⁸

The UNESCO Convention will provide protection for wrecked warships in these circumstances, making its ratification a priority. State vessels and aircraft are defined in Article 1(8) as ‘warships, and other vessels or aircraft that were owned or operated by a State and used, at the time of sinking, only for government non-commercial purposes, that are identified as such and that meet the definition of [UCH]’. It is notable that this definition makes reference to the ship's ownership and/or usage at the time of sinking. This suggests that a ship's status at the point of foundering is a determining factor in whether it is a ‘State vessel’ for the purposes of the Convention, and this is significant.

Unlike sovereign immunity, which States agree can be lost through abandonment, a vessel's status at time of sinking is a fact in law that cannot be transferred or lost. Provided that a State is able to positively identify the remains of its State vessels and give assurance of its status as a non-commercially operated vessel, State interest would remain under the UNESCO Convention in spite of whether immunity has been lost.Footnote ¹¹⁹ Anyone seeking to direct activities at such wrecks would have to seek the flag State's permission. This is also a much broader definition than the IDI Resolution, which requires usage and ownership of a vessel meaning ships under charter at the time of sinking may fall outside its provisions. If the vessel is not easily identifiable, the concept of a verifiable link in Article 7(3) discussed above would still ensure the potential flag State can remain involved.

As long as States are party to the Convention, sovereign immunity is not strictly required to prevent interference with sunken warships. Had the UK and the Netherlands been State parties, UK approval would have been required for any activities directed at the Jutland wrecks, which were on active duty when they sank. Additionally, as commercial exploitation is also excluded by the Convention, Dutch-flagged vessels salvaging for profit would also have breached its provisions.Footnote ¹²⁰ Human remains must, too, be respected under Article 2(9) and Rule 5 of the Annex. The Convention provides a level of protection beyond what sovereign immunity can offer wrecked warships. This should be reason enough for the UK to reconsider its viewpoint on ratification.

As a major maritime State, the UK has a large number of State wrecks. Approximately 3500 date up to 1945, with 45 per cent of those located in other jurisdictions.Footnote ¹²¹ Domestic laws are insufficient to protect these wrecks beyond the UK's maritime limits. Despite being able to designate wrecks as protected under the PMRA 1986 regardless of their location, the statute only applies to British passport holders and/or British flagged vessels. In 2014, the UK Department for Culture, Media and Sport and the Ministry of Defence published a guidance document on the treatment of historic military wreck sites outside UK territorial waters.Footnote ¹²² Although the document contains good guidelines for protection,Footnote ¹²³ it does not contain binding legal provision and nor would foreign jurisdictions have to comply.

Reliance on sovereign immunity alone is insufficient in the absence of clear jurisprudence indicating customary international law status. Even with this confirmation, it is likely that immunity only applies where the flag State has not abandoned title. Where a wreck is no longer immune, it would generally be subject to the law of salvage. For example, when the UK became aware of the salvage of Jutland wrecks, HMS Indefatigable and HMS Queen Mary in 2010 and 2011 respectively, it was concluded that no further action could be taken.Footnote ¹²⁴ It is clear that the only real way to safeguard such wrecks is through international agreement; the UNESCO Convention provides a way to do this without modifying law and State practice in relation to sovereign immunity. The UK's position should be reviewed as a matter of urgency.

Other States that initially held the same concerns about the Convention have seen that it does not modify sovereign immunity in practice, for example Spain, which ratified the treaty in 2005. Aznar-Gomez states that informal conversations have taken place with Mexico, Japan, Chile and the Philippines with regard to the status of several Spanish sunken vessels in their respective territorial waters.Footnote ¹²⁵ France, which also holds the view that sovereign immunity is retained,Footnote ¹²⁶ ratified in 2013, and the Netherlands has been seriously considering ratifying the Convention.Footnote ¹²⁷ Fears that the flag State will not be informed of discoveries are unfounded, and incidents of unauthorized intervention by other States are rare.

As analysed above, sovereign immunity for wrecked warships is not yet a fully established customary norm; certainly, this is true for those wrecks that fall within the domain of archaeological law. Coupled with the consideration that immunity no longer operates where State ownership has been abandoned, the principle may not be the most effective method to protect such wrecks. Enforcing it could be difficult or unfeasible in some circumstances. The Convention can protect wrecks where title has been lost as it defines a warship by its status at the time of sinking; thus, it avoids affording a theoretical basis for the extension of sovereign immunity. Far from diminishing the principle of immunity for wrecked warships, it strengthens protection and upholds State interests by safeguarding them beyond what can be achieved by relying on sovereign immunity alone. Given this, it does not modify any immunity that may already exist in international law and explicitly stipulates as much. The UK can continue its practice of regarding wrecked warships as immune, but its accession to the Convention would mean that any abandoned State wrecks would also be afforded protection as ‘warships’. Given that many of these wrecks have already been irreparably damaged, and the illegal and unethical salvage of warships remains ongoing,Footnote ¹²⁸ the UK Government should consider their protection an ‘immediate priority’Footnote ¹²⁹ and reconsider its indefinite hiatus on reviewing the Convention.

1. Article 9(1) UNESCO Convention

The problem is the ‘constructive ambiguity’Footnote ¹³⁵ of Article 9(1)(b), which is deliberately equivocal in order to try to accommodate varying views regarding jurisdictional powers of the coastal State. One issue that arises in relation to this provision is the use of the term ‘State Party’ in relation to rights and obligations under the Convention. It is unclear whether these rights attach to the coastal State in whose waters the vessel is located, or to the flag State of the vessel.

1. (a) a State Party shall require that when its national, or a vessel flying its flag, discovers or intends to engage in activities directed at [UCH] located in its [EEZ] or on its continental shelf, the national or the master of the vessel shall report such discovery or activity to it;

2. (b) in the [EEZ] or on the continental shelf of another State Party:

   1. (i) States Parties shall require the national or the master of the vessel to report such discovery or activity to them and to that other State Party;

   2. (ii) alternatively, a State Party shall require the national or master of the vessel to report such discovery or activity to it and shall ensure the rapid and effective transmission of such reports to all other States Parties.

This lack of clarification is a concern for many States. If the flag State has this power, then the Article does nothing more than give effect to the existing right of flag States to have their own nationals and vessels report to them – this is based on the active personality principle in international law, and arises from principles of nationality rather than territory. However, if ‘State Party’ could be interpreted as the coastal State, Article 9 would give coastal States the power to require notification of discoveries or activities directed at UCH in their contiguous zone or EEZ. This would be a new competence awarded outside of the UNCLOS framework,Footnote ¹³⁶ which many States find unacceptable. The deliberate ambiguity used to move forward with the Convention, despite a lack of consensus on the issue, has been a block for several major maritime States.Footnote ¹³⁷ The UK was unwilling to ratify in the absence of a clear interpretation.

Articles 31–33 VCLTFootnote ¹³⁸ provide for interpreting treaties where provisions are unclear. Article 31(1) provides that ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. In order to provide context, the text and any subsequent practice in the application of the treaty can be considered.Footnote ¹³⁹ If a plain reading of the text of Article 9 is made, it simply outlines the duty of the flag State to ensure its vessels report any discoveries or activities. The chapeau of the article seems to confirm this.Footnote ¹⁴⁰

Paragraph 1(a) refers to a State's national, vessel and maritime zones, meaning that the State party mentioned here is both the flag State and the coastal State. Paragraph 1(b) refers to another State party's maritime zones, ie not those of the flag State. Presumably then, ‘that other State Party’Footnote ¹⁴¹ also refers to the same State, that is, the coastal State. Given that the coastal State is the other State party, then the obligation to require reporting as set down in the provision must be read as falling on the flag State.Footnote ¹⁴²

‘Subsequent practice’ also provides context for interpreting a treaty, and is defined by the ILC as ‘conduct in the application of a treaty, after its conclusion, which establishes the agreement of the parties regarding the interpretation of the treaty’.Footnote ¹⁴³ Article 31(3)(b) VCLT and the ILC both indicate that there must be collective agreement as to how a provision should be interpreted. This would be difficult to apply here, as no subsequent practice has yet emerged; certainly, no collective practice exists. Only one report of a wreck has been made to UNESCO, and as such there is no practice to aid in the interpretation of Article 9(1)(b).Footnote ¹⁴⁴ However, a draft of the Operational Guidelines prepared by the Secretariat in 2009 attempted to provide some clarification on Article 9(1):Footnote ¹⁴⁵

Nevertheless, the sentiment amongst States was that the above paragraphs did not exactly reflect Article 9(1)(b),Footnote ¹⁴⁷ and that the guidelines should not try and rewrite or interpret the treaty.Footnote ¹⁴⁸ It was completely altered in the eventually adopted Operational Guidelines and removed any explanation of the provision.Footnote ¹⁴⁹

Finally, the context for interpretation can include any relevant rules of international law applicable in the relations between the parties.Footnote ¹⁵⁰ It seems logical that States would opt for an interpretation that is consistent with UNCLOS, which the majority of State parties have ratified. UNCLOS allows for ‘other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature’.Footnote ¹⁵¹ This could be understood as also covering the UNESCO Convention. In the same vein, the UNESCO Convention itself provides that the treaty is not incompatible with UNCLOS,Footnote ¹⁵² and so with this in consideration, Article 9 must be interpreted in such a way that is not irreconcilable with UNCLOS. Article 311 UNCLOS provides a special procedure for the conclusion of agreements modifying or suspending the operation of UNCLOS provisions.Footnote ¹⁵³ As this procedure was not strictly followed during the UNESCO Convention negotiations, it must be deduced that all States involved did not consider the Convention to modify or suspend the operation of any UNCLOS provisions.Footnote ¹⁵⁴

In order to confirm the meaning resulting from the application of Article 31, supplementary means of interpretation, including the preparatory work of the treaty, may be consulted.Footnote ¹⁵⁵ An Advisory Report prepared by the Netherlands in considering ratifying the treaty maintains that the ambiguity starts in the negotiations, therefore there is no point consulting the preparatory works.Footnote ¹⁵⁶ However, it is useful to know the origins of Article 9 in the travaux préparatoires.Footnote ¹⁵⁷

The proposal for the wording of Article 9 was put forward by the USA. The idea was that a State Party, by a declaration at the moment of ratification, could decide either for simultaneous notification to the flag State and coastal State or, alternatively, only to the flag State, which would then ensure transmission of the report to other State parties.Footnote ¹⁵⁸ However, the wording was ambiguous, leaving the provision open to a number of interpretations. The interpretation allowing creeping jurisdiction was swiftly rejected by the authors,Footnote ¹⁵⁹ but a number of other States welcomed the opportunity for a constructive ambiguity.Footnote ¹⁶⁰

A last-minute proposal by the UK, France and Russia attempted to remove the ambiguity by clarifying Article 9(1)(b) and proposing two amendments to the text.Footnote ¹⁶¹ This clarified that it is the flag State which has the right to require reporting, for instance, the amendment to sub-paragraph (ii) provided ‘a State Party shall require its national or master of a vessel flying its flag to report such discovery or activity to it and shall ensure the rapid and effective transmission of such reports to all other State Parties’. The USA supported this move, stating that ‘Article 9(1)(b)(ii) can only be read as an obligation on flag States in regard to its own nationals and flag vessels.’Footnote ¹⁶² Despite being defeated by a large majority, Garabello states that ‘the interpretation emerging from [the proposed amendment] is to be preferred for Art. 9, para. 1(b)(ii), in conformity with the preparatory works’.Footnote ¹⁶³ Although the ambiguity in the provision does indeed extend from the travaux préparatoires, the intention of the authors of the draft provision was that ‘State Party’ should be read as ‘flag State’, not ‘coastal State’.Footnote ¹⁶⁴

The ILC states that the supplementary means referred to in Article 32 also include ‘conduct by one or more of the parties in the application of the treaty after its conclusion’.Footnote ¹⁶⁵ Although State practice is severely limited, a number of State parties have issued declarations under Article 9(2) regarding the manner in which reports will be transmitted under Article 9(1)(b).Footnote ¹⁶⁶ Algeria, Cuba, Mexico, Saudi Arabia and Ukraine all require reporting to the flag State in the first instance, subsequently transmitting the information to other States by various means. Argentina, Italy and Portugal have all declared that they will report in accordance with Article 9(1)(b)(ii), and although they do not clarify which State party a vessel should report to, it is difficult to foresee a situation in which the coastal State is notified but the flag State is not. Whilst these States prefer to retain the flexibility of an ambiguous provision, no party has expressly declared that it will require reporting to the coastal State, either solely, or simultaneously with the flag State under Article 9(1)(b)(i). The Dutch Advisory Report considers it unlikely that a State party will impose a duty to notify coastal States given the different interpretations by States.Footnote ¹⁶⁷

The conclusion that emerges from the application of Articles 31 and 32 VCLT suggests an implicit understanding that only the flag State that can require notification. Nevertheless, the travaux préparatoires indicate that the constructive ambiguity in Article 9 was clearly intentional and was not intended to have a strict interpretation. In the absence of consistent and collective subsequent practice, potential State parties will not be able to confirm an exact interpretation, yet this should not impede them from ratifying. Most States are party to UNCLOS, where Article 303(2) also has a jurisdictional constructive ambiguity; this is not seen as a problem. The ambiguity in Article 9 should be seen as a flexibility, allowing States with a range of views on jurisdictional powers to ratify. States can make their individual approach clear by entering a declaration under Article 9(2) upon signature or ratification, making a choice where their report will be sent to. The UK could ratify the Convention, declaring that reports will be submitted to the flag State in the first instance.

Declarations exist exactly for this concern and purpose; to clarify the State's position on the understanding or interpretation of a provision, without excluding or modifying the treaty's legal effect. The UK has utilized declarations to clarify its understanding of jurisdictional issues when ratifying other agreements, for example, the UN Straddling Fish Stocks Agreement.Footnote ¹⁶⁸ If the UK does make a declaration on the UNESCO Convention, it would simply be acting in accordance with its past conventional activity. It is therefore difficult to see why the UK cannot take similar action with this treaty, and it should not pose an obstacle to reviewing its position on the Convention.

2. Article 10(2) UNESCO Convention

Because of its nature, UCH is often irreversibly entwined with natural resources on the seabed. Most shipwrecks, particularly ones which fall under the Convention's 100-year criteria, have transformed into habitats for various species after many years underwater. Article 10(2) is understood to be an explicit recognition of that link.Footnote ¹⁶⁹ It reaffirms that a State can exercise its sovereign rights to prevent interference with its natural resources, and implicitly suggests that in doing so, could use this as a mechanism to protect UCH.Footnote ¹⁷⁰ This ‘innovative’ right afforded to the coastal State to prohibit or authorize activities directed at UCH is in no way granted under UNCLOS,Footnote ¹⁷¹ suggesting another jurisdictional creep:

In practice, the provision merely has a declaratory nature. It only permits States to prohibit or authorize activities directed at UCH to prevent interference with its sovereign rights or jurisdiction provided for by international law, including UNCLOS.Footnote ¹⁷² Article 56 UNCLOS sets out the coastal State's sovereign rights and jurisdiction in the EEZ, and under Article 58(3), it has the right to adopt laws and regulations in accordance with UNCLOS to safeguard those rights. Article 77 sets out sovereign rights over the continental shelf and provides that coastal States can authorize and prohibit activities of other States in relation to these rights. Article 10(2) merely gives effect to a right already created by UNCLOS. O'Keefe states that ‘even if such prohibition or regulation has the incidental effect of protecting [UCH], there is no issue of ‘‘creeping jurisdiction’’ or contravention of the provisions of UNCLOS’.Footnote ¹⁷³

It has been questioned whether the wording ‘to prevent interference’ in paragraph 2 implies that measures can be taken against activities which may interfere with sovereign rights, not simply ones that do. This would give States broad discretion to take measures against a number of activities that may or may not interfere with their sovereign rights. The Netherlands in particular had disagreed with the phrase ‘prevent interference’ during negotiations, favouring ‘will interfere’.Footnote ¹⁷⁴ However, the norm cannot be used to provide extensive protection to UCH.Footnote ¹⁷⁵ The right is limited to the prevention of interference with the coastal State's sovereign rights or jurisdiction. The actions of a coastal State making excessive use of its rights under Article 10(2) to provide extensive protection to UCH could, in principal, be challenged before a court or tribunal.Footnote ¹⁷⁶ Recourse to dispute resolution under Article 25 of the Convention is available for State parties.

3. Article 10(4) UNESCO Convention

Article 10(4) was an equally thorny point during negotiations in terms of coastal State jurisdiction, despite being the ‘cornerstone’ of the Convention.Footnote ¹⁷⁷ As with the previous two provisions above, the argument centres around the latitude given to coastal States. Some States considered that any special role attributed to the coastal State would run counter to UNCLOS.Footnote ¹⁷⁸ As a result, the term ‘coastal State’ is not used anywhere in the Convention, rather the text refers to a ‘Coordinating State’. Considerable apprehension remains over such a concept, which is seen as a whitewashing of additional coastal State jurisdictional competences in the EEZ and continental shelf. Subsequently, States such as the UK have a number of concerns about the role of the coastal State and the scope of practicable measures it could unilaterally take. The provision, prima facie, allows the coastal State to act prior to consultation with other interested States, taking limitless measures in doing so:Footnote ¹⁷⁹

Paragraph 4 must be read in the context of the entire article. Concerning the granting of more powers to the coastal State, Article 10(3)(b) provides that the coastal State does not necessarily have to be the Coordinating State. There is a choice for another State to coordinate consultations if the coastal State cannot do so.Footnote ¹⁸⁰ This means that any perceived extension of jurisdiction cannot be attributed to the coastal State. This is confirmed by Article 10(6), stating that any action taken cannot constitute a basis for any jurisdictional rights not provided for in international law, including UNCLOS. There is also a clear difference in the language in this provision and in paragraph 2 above, which specifically discusses the coastal State taking measures to protect interference with its own rights.

Having the coastal State be the default Coordinating State makes sense. Geographically it is the closest, and already has rights and jurisdictions in the area over other things.Footnote ¹⁸¹ Scovazzi recognizes that it would have been illusory to grant this right to the flag State, considering the risk of activities carried out by flags of convenience.Footnote ¹⁸² The coastal State's role is simply the coordinator, and this certainly does not prevent the flag State from taking action with its own vessels to prevent immediate danger to UCH in the EEZ or continental shelf of another State party.Footnote ¹⁸³ In practice, the designation of a default Coordinating State allows protective measures to move fairly quickly, without having to negotiate who the Coordinating State is in the first instance.

Article 10(3) places an emphasis on consultation with other interested State parties,Footnote ¹⁸⁴ with Article 10(6) providing that the Coordinating State must act on behalf of the State parties as a whole and not in its own interest.Footnote ¹⁸⁵ All interested State parties must be consulted in relation to the protection of UCH unless there is immediate danger, and even then, it must be for the benefit of all States. This provides that the scope of practicable measures to be taken cannot be unlimited. The authorization of any activity under paragraph 4 would also have to conform to the Rules in the Convention's Annex.

Although the UK and the USA strongly disagreed on paragraph 4, as it allowed the coastal State to take unilateral action,Footnote ¹⁸⁶ it is sensible to have an urgent measures procedure in place to enable States to adequately protect vessels in immediate danger. There must be some enforcement mechanism in the Convention or it would be somewhat of a paper tiger. Negotiations have the capacity to be lengthy and time-consuming,Footnote ¹⁸⁷ and there is a danger of losing the UCH if efficient action is not taken. For example, if a State happens across a foreign vessel looting UCH, it cannot afford to take time to consult other States; it must act quickly. Considering the adamant inclusion of ‘looting’ in the provision,Footnote ¹⁸⁸ it is clear that these are the kinds of activities envisaged to fall within the scope of this paragraph. This is also pursuant to the general duty to protect UCH in Article 303(1) UNCLOS.

Although the text of Article 10 is clumsy, it does not extend any new competences to the coastal State. Dromgoole believes that Article 59 UNCLOS could help bolster the legitimacy of the Coordinating State role.Footnote ¹⁸⁹ Article 59 provides for the resolution of disputes where UNCLOS does not attribute rights or jurisdiction to the coastal State in the EEZ and a conflict of interest arises between States. As such disputes must be resolved on the basis of equity and in the interest of the international community as a whole, the Coordinating State ‘acts on behalf of interested States [and] strengthens the argument that the interests of the coastal State and those of the international community are fundamentally one and the same’.Footnote ¹⁹⁰

Incompatibility with UNCLOS has been a significant stumbling block for State ratification, illustrated by the controversial Articles 9 and 10. The French ratification is significant in this respect. It had also been opposed to any expression of creeping jurisdiction that intended to modify the framework set out in UNCLOS.Footnote ¹⁹¹ It favoured an ad hoc approach of establishing bilateral and multilateral treaties to serve the interests of UCH on the continental shelf and on the EEZ, rather than this extension of the coastal State's jurisdiction.Footnote ¹⁹² The Netherlands’ perspective is also useful, given that it, too, initially felt that the Convention afforded extra competences to the coastal State.

The Dutch Advisory Report states that Article 10 simply gives more substance to protect UCH on the EEZ and continental shelf through cooperation, and that the system in Article 10(6) sufficiently safeguards against abuse of the provision. The Netherlands feels that Article 10 could be regarded as implementing Article 303(1),Footnote ¹⁹³ and the State is currently working to ratify the Convention. This change in States’ attitudes towards the Convention should serve as a workable example for the UK and other States with similar concerns, whilst also explicitly evidencing that these States have made underwater heritage a priority.