In the past, there has been a lot said and written about the proposed Convention, so I am not going to discuss whether or not this Convention is something we would like to have. Many people feared its impact, especially as draft provisions seemed contrary to the current law of the sea, impossible to implement, unlikely to meet the objective that underwater cultural heritage should benefit humankind as a whole.

Moreover, during the negotiations of the Convention it became clear that many negotiators were guided by the unfounded idea that commercial explorers were the main threat to underwater cultural heritage.

Although many have their own ideas about the new legislation, it needs to be understood that this document will be the law, whether we like it or not. Of course, it should be noted that the Convention still requires the signature of a significant amount of states to become binding law, but it is clear that the process can no longer be stopped.

The Convention is a fact.
It is therefore useful to discuss the UNESCO Convention's basic parameters from which all commercial underwater explorers will operate. Moreover, what are the consequences for the daily practice of commercial exploration of shipwrecks? Strict legal provisions and archaeological standards will cover the operations. Does this mean that shipwrecks can no longer be excavated, or are there still possibilities to explore deepwater treasures as long as you abide by the rules?

Living with the Convention
It is impossible to address all aspects of the new framework. However, a general outline of the legal structure will give you an idea of what to expect.

Let's assume you have spent years doing research, found some investors, hired a search and survey vessel, and finally located a vessel sunk in international waters, but on the continental shelf of a particular coastal State X. You are very happy, the time and money spent has paid off, you found what you were looking for. Let's also assume that both the country the ship orginiated from, State N, and State X have signed the Convention, and that your own nation - State Y - is also a signatory to the Convention.

In order to find out whether or not the find will qualify as underwater cultural heritage under the Convention, it is important to know the definition of underwater cultural heritage. According to the Convention, this means: "all traces of human existence having a cultural, historical, or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years."

This includes, for example: sites, structures, buildings, artifacts, and human remains, together with their archaeological and natural context, as well as vessels, aircraft, other vehicles, and cargo.

The hypothetical vessel has indeed been lying at the sea bottom for more than 100 years and therefore qualifies as underwater cultural heritage; the Convention is therefore applicable. The three states you are dealing with (coastal State X, nationality State Y, and owner of the wreck State N) are all under the obligation to take appropriate measures that are necessary to protect the find and will have to consider in-situ preservation as a first option before allowing any activities directed at the heritage.

Your own State Y puts you under the obligation to report the find to the appropriate national authorities and to coastal State X. Alternatively, you report your find to your own State Y, which will notify all state parties to the Convention including, of course, coastal State X. Any state party to the Convention may now declare to State X an interest in being consulted on how to ensure the effective protection of the find. Such declarations will be based on a verifiable link with the heritage concerned.

State N has a clear verifiable link with the vessel found and declares an interest, as well as a statement of ownership. This can lead to complicated situations. Usually these vessels carried goods from several countries, so who will have a primary say in the deposition or preservation of the heritage? However, as you are the finder, you are not that concerned about the internal and external affairs of all states. You want to recover your find.

Coastal State X is the state you address. State X, however, can only grant authorization when the activities you envisage are in conformity with the provisions of the Convention. These include in-situ preservation, consultation with all states with a verifiable interest, and, if recovery becomes a question, conformity with the Rules of the Annex.

Moreover, State X has the right to prohibit or authorize any activity directed at the find to prevent interference with its sovereign rights or jurisdiction and will consult all states mentioned before on how to best protect the heritage.

You, in the mean time, are waiting for an authorization. You realize that, now that the find is subject to the Convention, a few general principles become applicable. Recovered material shall be deposited, conserved, and managed in a manner that ensures its long-term preservation, recovered artifacts shall not be commercially exploited, and proper respect will be given to human remains.

Moreover, you become aware of the fact that when you recover without authorization, your finds will probably be confiscated when you are trying to bring the artifacts on shore and sanctions will be applicable.

Your hopes are on the application of salvage law. As most states are unfamiliar with the concept of salvage and finds law, and as the Convention places strict rules on the application of such laws, your hopes are unfortunately not honored. It is not an ideal situation and the chances that you will get authorization for your recovery operation are not very high.

Is the situation much different when you locate a vessel in territorial waters? Not much. A report and notification system has been provided for all sea zones and the rules of the Annex will have to be applied. Salvage and finds law, although not completely banned, will have to be applied in conformity with the Convention and the ban on the commercial trade of artifacts applies regardless of where the find has been found.

What Does All This Mean?
Does this mean that it will be impossible from now on to engage in a shipwreck exploration and exploitation project? The answer to that question is not a clear yes or no. What is clear is that the ways most people have dealt with shipwrecks are over when the Convention is signed by a significant number of states.

First of all, the Convention places very strict rules on state parties, rules that require substantial financial means. It is unlikely that all states will have the financial means or are willing to allocate such means to the protection of the underwater cultural heritage. Knowing this, in combination with the realization that state parties are under the general duty to protect underwater cultural heritage for the benefit of humankind, it is easy to see opportunities for cooperation.

Contractors would be wise to negotiate cooperation agreements with the coastal state in question before an operation starts, as it is unlikely that state parties to the Convention will give you authorization after the find has already been located.

Cooperation will benefit the finder of the heritage, and humankind in general, as the coastal state will have the possibility to engage in an operation that otherwise would have been too expensive. Moreover, the finder and potential explorer may be able to share the costs of preservation and conservation, as well as the costs for qualified archaeologists, all highly expensive affairs. It must be remembered, however, that if a shipwreck is indeed best preserved in-situ, a recovery operation can be best forgotten.

It is clear that the finder will have to abide by the rules of the Annex. Very strict and precise rules have been laid down. Contractors should count on substantial financial resources being needed before the start of an operation, such as qualified archaeologists to oversee the recovery methods, as well as conservation and management facilities to ensure the long-term preservation of recovered artifacts.

The Convention is clear about the prohibition to commercially exploit recovered artifacts. Hence different ways to raise the financial resources required will have to be found. By selling the photo and video rights, non-intrusive means to let the world know what has been found, the finder may be able to finance the project partially. By involving parties other than states (the public, trainee archaeologists, and sport divers), it may be possible to convince the coastal state that the benefit of humankind is truly a factor that will be taken into account.

For most non-professional shipwreck explorers, it will be difficult to abide by the new legislation. Consequently, material will be seized and legal problems of massive proportions can be expected.