by J. Ashley Roach, Captain, JAGC, U.S. Navy (Ret.), Office of the Legal Adviser, U.S. Department of State.
(Material contained herein is made available for the purpose of peer review and discussion and does not necessarily reflect the views of the Department of the Navy or the Department of Defense.)
At the present time there is hardly any object which cannot be located and explored on the sea-bed. Sophisticated equipment can pinpoint any anomaly on the sea-bed, and advanced technology enables the lifting of most objects.2 This technology, pioneered for the exploration of natural resources, is now in use by salvors, marine archaeologists and marine historians, whose interests are not necessarily viewed as being compatible.3 The cost of this technology is dropping rapidly and can be used by "treasure hunters", the main interest of many of whom is the recovery of commercially valuable material without regard to the methods of archaeological excavation.4 Furthermore, much of the underwater cultural heritage which remains unexplored is on the outer reaches of the continental shelf or on the deep sea-bed beyond the limits of coastal State jurisdiction over sunken shipwrecks which, under the LOS Convention, is limited to 24 miles from the baseline.5 There is, however, at present no multilateral treaty governing the treatment of sunken ships located in those areas beyond coastal State jurisdiction,6 nor is there any multilateral treaty governing the particular case of sunken warships or military aircraft. As described in the following paragraphs, there is, nevertheless, a moderately well-developed body of customary international law governing the treatment of sunken warships and military aircraft (as opposed to other vessels and aircraft not entitled to sovereign immunity).7
Warships, naval auxiliaries, and other vessels owned or operated by a State and used at the time they sank only on government non-commercial service, are State vessels.8 Aircraft used in military, customs and police services are State aircraft.9 International law recognizes that State vessels and aircraft, and their associated artifacts, whether or not sunken, are entitled to sovereign immunity.10
In addition, such shipwrecks and sunken aircraft are historical artifacts of special importance and entitled to special protections. Many such ships and aircraft have unique histories making them important parts of their country's traditions.11 In addition, these ships and aircraft may be the last resting places of many sailors and airmen who died in the service of their nations. 12
The practice of States confirms the well-established rule of international law that title to such vessels and aircraft is lost only by capture or surrender during battle (before sinking),13 by international agreement, 14 or by an express act of abandonment, gift or sale by the sovereign in accordance with relevant principles of international law and the law of the flag State governing the abandonment of government property.15 Once hostilities have ended, belligerents do not acquire any title to such vessels or aircraft through the act of sinking them. Likewise, title to such vessels and aircraft is not lost by the mere passage of time.16
A coastal State does not acquire any right of ownership to a sunken state vessel or aircraft by reason of its being located on or embedded in land or the seabed over which it exercises sovereignty or jurisdiction.17 Access to such vessels and aircraft and their associated artifacts located on or embedded in the seabed of foreign archipelagic waters, territorial seas or contiguous zones, is subject to coastal State control in accordance with international law.18 It is the policy of most Governments to honor requests from sovereign States to respect, or to authorize visits to, such sunken vessels and aircraft.19
Access to sunken state vessels and aircraft and their associated artifacts located on or embedded in the continental shelf seaward of 24 miles from the baseline is subject to flag State control and is not subject to coastal State control.20 Access to sunken state vessels and aircraft and their associated artifacts located on or embedded in the seabed seaward of 24 miles from the baseline is subject only to flag State control. 21
Except for opposing belligerents while hostilities continue, no person or State may salvage or attempt to salvage sunken state vessels or aircraft, or their associated artifacts, wherever located, without the express permission of the sovereign flag State, whether or not a war grave.22
Once hostilities have ended, sunken state vessels and aircraft containing crew remains are also entitled to special respect as war graves and must not be disturbed without the explicit permission of the sovereign.23
The flag State is entitled to use all lawful means to prevent unauthorized disturbance of the wreck or crash site (including the debris field) or salvage of the wreck.24
Disturbance of any shipwreck or crash site is necessarily a destructive process. In virtually every instance, once recovery activities are undertaken, the site cannot be restored or replicated. Any recovery effort which disturbs the site denies other properly authorized persons the opportunity for scientific discovery and study.25
Accepted principles of marine archaeology, naval history and environmental protection require thoughtful research design, careful site surveys, minimal site disturbance consistent with research requirements, adequate financial resources, preparation of professional reports, and a comprehensive conservation plan before artifacts should be permitted to be recovered and treated.26 These principles apply particularly to sunken state vessels and aircraft.27
These rules do not affect the rights of a territorial sovereign to engage in legitimate operations, such as removal of navigational obstructions, prevention of damage to the marine environment, or other actions not prohibited by international law, ordinarily following notice to and in cooperation with the State owning the vessel or aircraft or otherwise entitled to assert the sovereign immunity of the wreck.28
2 STRATI, THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: AN EMERGING OBJECITVF OF THE CONTEMPORARY LAW OF THE SEA 344-345 (1995) [hereinafter, STRATI]. See, e.g., BALLARD, THE DISCOVERY OF THE TITANIC (rev. ed. 1989) (sank on April 15, 1912, in 12,500 feet of water); Ballard, The Bismarck Found, Nat'l Geog., Nov. 1989, at 622 (sunk in battle on May 27, 1941, some 300 miles west of Brest, France, in 15,617 feet of water).
3See, e.g., Columbus -American v. Atlantic Mutual Ins., 742 F.Supp. 1327 (E.D. Va. 1990), rev'd 974 F.2d 450 (4th Cir. 1992), cert. denied 61 L.W. 352 (Mar. 23, 1993) (wreck of S.S. Central America, which sank in a hurricane on Sept. 12, 1857, located in 8,000 feet of water 160 miles off the South Carolina coast, and its cargo of gold recovered); Broad, "Lost Japanese Sub With 2 Tons of Axis Gold Found on Floor of Atlantic", N.Y. Times, July 19, 1995, Cl, C7; "The Treasure of the 1-52", Newsweek, July 31, 1995, at 64; Hubinger, "We Got That Sonofabitch!", 9 Naval History, Nov./Dec. 1995, at 17.
4 Strati identifies a number of conflicting interests in the protection of underwater cultural heritage. At the national level, she identifies the main interest groups as the identifiable owners, archaeologists, commercial salvors, hobby-divers, collectors, auctioneers and the State. At the international level, she identifies as the main actors the flag State of the wreck, the coastal State, the flag State of the vessel which undertakes research or recovery operations, the State of origin if different from the flag or coastal State, and the international community. STRATI 19-20.
5 As the sovereignty of a coastal State extends beyond its land territory and internal waters to the adjacent territorial sea, which may extend no more than 12 nautical miles from the baselines from which the breadth of the territorial sea is measured, LOS Convention, articles 2 and 3, the coastal State has jurisdiction to regulate underwater cultural heritage located within its internal waters and territorial sea. While LOS Convention gives the coastal State no jurisdiction over submerged cultural resources seaward of the territorial sea, the coastal State is authorized to presume that the removal of archaeological and historical objects from the sea-bed of the contiguous zone, which may extend no more than 24 nautical miles from the baselines, without its approval would result in an infringement of its customs laws, and thus may exercise the control necessary to prevent and punish such infringement. LOS Convention, article 33. A few States have claimed jurisdiction over submerged cultural resources on their continental shelves or located within their EEZs seaward of 24 miles from the baseline: Australia, Historic Shipwrecks Act, No. 190 of 1976, sec. 28, quoted in STRATI 259 (continental shelf, subject to the constraints of international law); Cape Verde, Law No. 60/IV/92, Dec. 10, 1992, article 28, which may be found in UN, LOS BULL., No. 26, Oct. 1994, at 29 (EEZ and continental shelf) and declaration II on ratification of the LOS Convention, which may be found in UN, Multilateral Treaties Deposited 855; Cyprus (continental shelf); Ireland, National Monuments (Amendment) Act 1987, No. 17 of 1987, sec. 3(l), quoted in STRATI 289 n. 95 (continental shelf); Jamaica, Act 33 of 1991, art. 4(c)(i), which may be found in UN, Current Developments No. III, at 47 (EEZ); Morocco, Act No. 1-81, Dec. 18, 1980, art. 5, which may be found in UN, National Legislation on the EEZ 196 (EEZ); Norway Royal Decree of Dec. 8, 1972 relating to Exploration and Exploitation of Petroleum in the Seabed and Substrata of the Norwegian Continental Shelf, quoted in STRATI 261; Portugal, Law No. 289/93, Aug. 21, 1993, referred to in STRATI 289 n. 95, which does not appear to be published in English (continental shelf); Spain, Law 16, 1985, on Spanish Historical Heritage, June 26, 1985, art. 40, quoted in STRATI 289 n. 95 (continental shelf); Yugoslavia, Act concerning the Coastal Sea and the Continental Shelf, July 23, 1987, art. 24(3), which may be found in UN, Current Developments No. 111, at 139 (continental shelf).
6 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY, para. 303. 10, at 161-162 (Nordquist, Rosenne and Sohn eds., 1989):
Beyond the 24 nautical miles, the coastal State has no particular standing under this Convention. Its rights and duties will be governed by general international law and applicable international treaties. . . . Archaeological research does not come within the purposes for which "sovereign rights" are granted to the coastal State as set forth in Parts V and VI of the Convention .... [T]here is no provision regarding the expanse of sea, seabed, and subsoil between the outer-24-nautical-mile line and the outer limit of coastal State sovereign rights or jurisdiction . . . Presumably, in the course of time, this incipient new branch of law will be completed by the competent international organization, above all UNESCO, and by State practice.
Accord, Oxman, Marine Archaeology and the International Law of the Sea, 12 Colum.-VLA J.L. & Arts 353, 365-370 (1988) ("[t]he Convention does not establish coastal-state jurisdiction as such over marine archaeology, wrecks or cultural artifacts in the exclusive economic zone or the continental shelf"); UN, Law of the Sea: Report of the Secretary -General, UN Doc. A/43/718, ¶¶ 42-44 (1988) ("there is a need to clarify through an international agreement the issue of jurisdiction regarding wrecks lying between the contiguous zone and the international sea-bed area"); Giorgi, Underwater Archaeological and Historical Objects, in A HANDBOOK ON THE NEW LAW OF THE SEA 570-572 (Dupuy & Vignes eds., 1991).
To fill this gap, the International Law Association (ILA) has prepared a draft Convention on the Protection of the Underwater Cultural Heritage, which has been forwarded to UNESCO for its consideration. 25 Ocean Dev. & Int'l L. 391 (1994); STRATI, supra n. 2, at 437-446. The ILA draft would, inter alia, establish a new zone of coastal State jurisdiction over underwater cultural heritage out to 200 miles from the baseline, while exempting sunken warships and state aircraft from its coverage. The United Kingdom and the United States are opposed to the creation of such a new zone, which was expressly considered and rejected at the Third UN Conference on the Law of the Sea. Oxman, The. Third United Nations Conference on the Law of the Sea: 7he Ninth Session (1980), 75 Am. J. Int'l L. 211, 240 (1981). International law, nevertheless, permits a State to legislate and enforce its laws relating to under-water cultural heritage that apply to its nationals and vessels flying its flag wherever located, and to persons of any nationality located in its territory and to all persons and vessels using its ports that are not entitled to sovereign immunity. States may also agree among themselves to do so likewise. See, e.g., n. 23 infra regarding the wreck of the M/S Estonia.
UNESCO has decided to review the ILA draft convention with a view to determining whether to convene a diplomatic conference for the adopting of a convention affording protection to underwater cultural property.
7 See letter from the Deputy Legal Adviser, U.S. Department of State to the Deputy General Counsel, Maritime Administration, Dec. 30, 1980, reprinted in 1980 DIGEST OF U.S. PRACTICE IN INTERNATIONAL LAW 999-1006 (1986) [hereinafter, DIGEST].
8 LOS Convention, articles 95-96; 1958 High Seas Convention, articles 8-9.
9 Convention on International Civil Aviation, Chicago, Dec. 7, 1944, T.I.A.S. No. 1591, 3 Bevans 944, 15 U.N.T.S. 295, article 3.
10 29 JAPANESE ANN. INT'L L. 186 (1986) (Soviet note of Oct. 3, 1980, regarding the Admiral Nakhimov sunk on May 28, 1905); 1958 High Seas Convention, articles 8-9; LOS Convention, articles 95-96; Queneudec, Chronique de droit de la mar, 23 ANNUAIRE FRANQAIS DE DROIT INTERNATIONAL 735 (1977). Contra, Caflisch, Submarine Antiquities and the International Law of the Sea, 13 NETH. Y.B. INT'L L. 3, 22 n. 74 (1982); Migliorino, The Recovery of Sunken Warships in International Law, in ESSAYS ON THE NEW LAW OF THE SEA 250, at 251 (B. Vukas ed., 1985) (as sunken warships no longer meet the definition of warship). STRATI, supra n. 2, at 221, takes the view that immunity is debatable, although ownership is not lost unless abandonment is proven.
11 STRATI, supra n. 2, at 348.
12 Droingoole & Gaskell, "Who has a Right to Historic Wrecks and Wreckage?, 2 INTL J. CULTURAL PROP. 217, at 230-231 (1993).
131980 DIGEST 999; 29 JAPANESE ANN. INT'L L. 185-187 (1986) (Russian cruiser Admiral Nakhimov sank one hour after being captured on May 28, 1905, by Japanese Imperial Navy).
14 For example, the Treaty of Peace with Japan, Sept. 8, 1951, provides in chapter V, article 14(a)2(I) that each of the Allied Powers "shall have the right to seize, retain, liquidate or other-wise dispose of all property, rights and interests" of Japan "which on the first coming into force of the present Treaty were subject to its [the Allied Powers] jurisdiction." 3 U.S.T. 3181.
15 I OPPFNHEIM'S INTERNATIONAL LAW 1165 § 560 n. 2 (Jennings & Watts eds., 9th ed. 1992); Dromgoole, supra n. 12, at 226-227 (1993). The procedures for abandonment of sunken U.S. warships and aircraft located outside the territory of the United States are set forth in 10 U.S. Code §§ 7305-7306 & 7545 (1988) and its implementing regulation, 32 C.F.R. parts 172 & 736 (1994), and for other U.S. vessels, 40 U.S. Code §484(i) and 46 U.S. Code App. § 1158. For example, in 1989, the U.S. Maritime Administration sold the SS JOHN BARRY to a group of investors, in return for a share of any proceeds from the salvage of any of its cargo, reputed to be tons of silver. This World War 11 Liberty ship was torpedoed about 125 miles off the east coast of Oman on August 28, 1944, by a Japanese submarine.
16 1980 DIGEST 1004; Simon v. Taylor and Another, 1 MALAYSIAN L.J. 236 (Singapore High Ct. 1975), 56 INT'L L. REP. 40 (1980) (U-859, sunk by a British submarine in 1944, remains the property of the German State); Dromgoole, supra n. 12, at 234-235; Naval Historical Center, U.S. Department of the Navy, Policy Fact Sheet: Sunken Naval Vessels & Naval Aircraft Wreck Sites (undated).
17 29 JAPANESE ANN. INT'L L. 115 (1986) (objects located on Chinese territorial seabed recovered from Japanese troopship Awa Maru sunk during World War 11 remained property of Japan); Roach, France Concedes United States Has Title to CSS Alabama, 85 Am. J. INT'L L. 381 (1991); Dromgoole, supra n. 12, at 225-226.
18 Exchange of Notes Constituting an Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Italy regarding the salvage of H.M.S. Spartan, Rome, Nov. 6, 1952, 158 U.N.T.S. 432 (1952) (Spartan was sunk on Jan. 29, 1944, in Anzio Bay); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of South Africa regarding the salvage of H.M.S. Birkenhead, Pretoria, Sept. 27, 1989, U.K.T.S. No. 3 (1990), Cm. 906, 60 BRIT. Y.B. INVL L. 671 (1990) (sank in Feb. 1852, off the Cape Colony); Agreement between the Government of the French Republic and the Government of the United States of America concerning the wreck of the CSS Alabama, Paris, Oct. 3, 1989, T.I.A.S. No. 11687, UN, LOS BULL. No. 20, Mar. 1992, at 26 (41abama was sunk on June 19, 1864, some seven miles off Cherbourg during the U.S. Civil War by USS Kearsarge). See also Dromgoole, supra n. 12, at 228, regarding the Birkenhead agreement.
19 1980 DIGEST 999 & 1006.
20 STRATI, supra n. 2, at 262.
21 This rule is of particular relevance to the cases of the Bismarck and 1-52.
22 1980 DIGEST 1003-1004.
23 See Dromgoole, supra n. 12, at 230-232; Agreement regarding H.M.S. Birkenhead, supra n. 18 (445 lives lost); 1980 DIGEST 999, 1005 & 1.006; British Protection of Military Remains Act, 1986, ch. 35. A different situation pertains for non sovereign-immune vessels. See e.g. the Agreement between the Republic of Estonia, the Republic of Finland and the Kingdom of Sweden regarding the M/S Estonia, signed Feb. 23, 1995, IMO Circ. Itr 1959, Nov. 16, 1995. This roll on-roll off ferry, with over 900 passengers on board, sank on September 28, 1994, in 230 feet of the Baltic Sea while en route from Tallinn to Stockholm, more than 24 miles from the nearest land, òto Island, Finland. The signatories agreed that the wreck and the surrounding area shall be regarded as a final place of rest for victims of the disaster and as such shall be afforded appropriate respect; undertook to institute legislation aiming at the criminalization of any activities disturbing the peace of the final place of rest, in particular any diving activities with the purpose of recovering victims or property from the wreck or the seabed; and urged the public and all States to afford appropriate respect to the site of the M/S Estonia for all time.
24 See United States v. Steinmetz, 763 F.Supp. 1293 (D.N.J. 1991), aff'd 973 F.2d 212 (3d Cir. 1992), cert. denied 113 S.C. 1578 (Mar. 22, 1993) (unauthorized salvage of the CSS Alabama ship's bell); Karppi, Rare Aircraft Recovered, Naval History, Jan./Feb. 1996, at 57 (U.S. Navy retains title to Douglas TBD-1 Devastator torpedo bomber BuNo 0353 which sank in 1943 in 500 feet of Atlantic water).
25 STRATI, supra n. 2, at 14-18, 344-345.
26 Id., at 36-40, and sources cited therein.
27 Whipple, Aircraft as Cultural Resources: 7he Navy Approach, 18 CRM, No. 2, at 10 (1995).
28 1980 DIGEST 999 & 1005.