In 1818, having just reached the age of majority, the HMS Neptune was decommissioned and demolished. After prominent service during the French Revolutionary and Napoleonic Wars and lesser deployment elsewhere, the Neptune’s time had clearly come. Had this ship been luckier, however, it might have sunk in the line of duty and been preserved in one way or another on the sea floor, and had the ship been exceptionally lucky, it might now be protected under the emerging law of underwater cultural heritage (UCH).^{Footnote 1}

John Francis Sartorius’s painting, “Neptune Engaged, Trafalgar, 1805,” graces the cover of Underwater Cultural Heritage and International Law by Sarah Dromgoole, the eminent professor of maritime law at the University of Nottingham. Although she observes that cultural heritage law as a whole is in a “nascent stage of development” (p. 16), her thorough analysis of the specific regime of UCH law suggests that, like the HMS Neptune, it, at least, may have achieved the age of majority.

The UNESCO Convention on the Protection of the Underwater Cultural Heritage is at the center of the book’s compass for navigating the rough seas of UCH law. The centrality of the Convention, as well as the attention paid to other developments in UCH law during the last 20 years, serves to update and expand upon Anastasia Strati’s seminal work,^{Footnote 2} which was published at the outset of the protracted negotiations of the Convention during several Meetings of Experts in Paris. Eventually, in 2001, the 31st General Conference of UNESCO adopted and opened the Convention for signature, and in 2009 it came into force.

Dromgoole traces the roots of the Convention, most immediately in the International Law Association’s (ILA’s) Buenos Aires Draft Convention on the Protection of the Underwater Cultural Heritage (1994) and most problematically in the only two provisions of the 1982 United Nations Convention on the Law of the Sea (LOSC) that specifically address UCH: Article 149, pertaining to the deep seabed area, and Article 303, pertaining to the contiguous zone extending out to 24 nautical miles from coastal baselines. Although both of these provisions are incomplete, ambiguous, and arguably incoherent, the book properly sets the UNESCO Convention’s compass needle steadily on them, given the status of the comprehensive LOSC as the definitive restatement of the Law of the Sea. It is disheartening, however, that since the LOSC came into force two decades ago, commercial exploitation of UCH has continued apace, leading to the destruction of some 345 major shipwrecks and damage to many thousands more. Evidently, the LOSC cannot serve as the last word on the global protection of UCH; hence the UNESCO initiative.

The LOSC frequently overshadowed the UNESCO negotiations. Although only one delegation during the Meetings of Experts, Norway, consistently opposed any role for UNESCO as a chosen instrument for progressively developing the UCH, its expressed fear of “creeping” coastal jurisdiction over activity at sea beyond the limits set by the LOSC was shared by most of the maritime powers and some noncoastal states. More precisely and frustratingly, the fear was not of unduly extending protection of the UCH itself, but rather that by doing so, of contributing to a general relaxation of narrow coastal state jurisdiction in future initiatives unrelated to the UCH. This fear unfortunately animated a vigorous and sustained debate during the entire drafting process. Indeed, despite the Convention’s detailed provisions for protective measures in established maritime jurisdictions, the drafters avoided all use of the toxic term “coastal state” lest the Convention serve to memorialize the geographical origin of jurisdictional creep. Indeed, negotiations of both the LOSC and the UNESCO Convention sought to avoid any hint of expansive coastal state jurisdiction. Tullio Scovazzi has famously referred to this obsession as a horror jurisdictionis. ^{Footnote 3}

Dromgoole observes that “the most intractable difficulty is, and always has been, the question of coastal state jurisdiction on the continental shelf” (p. 370). Ultimately, the issues of creeping jurisdiction as well as sovereign custody of warships and other state vessels largely prevented a consensus at the conclusion of the negotiations in Paris. Instead, the Convention was approved by a vote of 87 in favor and four against it,^{Footnote 4} with 15 abstentions.

The claim that the UNESCO Convention improperly extends coastal state jurisdiction beyond the LOSC parameters is simply unfounded. First, Article 303 of the LOSC itself provides that its rules are “without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.” Presumably, such other protections would include both existing and future agreements and rules. There is neither any wording nor context to the contrary. Second, the whole idea of the UNESCO initiative was to build upon the shaky foundation of Articles 149 and 303 or, as Dromgoole aptly puts it, “to plug the gaps” in it (p. 303). Third, even if the new protections of UCH on the continental shelf and the superjacent exclusive economic zones, as defined by the LOSC, are viewed as instances of creeping jurisdiction, they are not unprecedented. For example, the 1994 Agreement relating to the Implementation of Part XI of the LOSC, which modified the deep seabed area regime, and the 1995 Straddling Fish Stocks Agreement both altered the scope and content of the LOSC significantly. Last, after some awkward hesitation, the General Assembly of the United Nations eventually endorsed the UNESCO initiative.

Far from impairing the LOSC, the UNESCO regime repairs it. Dromgoole observes that “Article 149 has been much criticised over the years and deservedly so … [it] is essentially an empty shell” (p. 261). The more complicated Article 303 comes off a bit better as a model of constructive ambiguity (p. 302). Dromgoole takes the LOSC seriously, however, doing her best to make a silk purse of coherent and creditable law out of a sow’s ear of muddled pronouncements. Building on Article 149’s core principle of benefiting humankind and Article 303’s duty of states to cooperate with each other in protecting objects found at sea—both admirable contributions to UCH law—she carefully analyzes the critical relationships between the LOSC and the UNESCO Convention. She concludes that fundamentally both instruments have taken an internationalist approach that requires parties “to protect UCH found not only in its own offshore waters, but also in those of other states” (p. 289). The prescribed protective measures are fundamentally based on jurisdictional principles of territoriality (e.g., to interdict contraband UCH brought into a State Party) and nationality (e.g., to impose best scientific practices on a State Party’s citizens throughout the world). The measures include notification, reporting, scientific collaboration, and information sharing related to UCH, imposition of sanctions for violations of the Convention’s rules, and seizure and disposition of contraband objects.

Besides the issue of creeping jurisdiction, the other major issue that prevented a consensus in Paris and has since inhibited ratification of the UNESCO Convention involves the status of sunken warships and other state vessels. Some flag states (e.g., the United Kingdom) have historically asserted claims to all such vessels that have ever flown its flag, based on a theory of sovereign immunity, whereas other flag states (e.g., the United States) have asserted such claims, also in perpetuity, based on a theory of ownership or entitlement. Not surprisingly, states within which UCH is found have generally rejected both theories. During one phase of the drafting negotiations, the entire UNESCO initiative was threatened by a tension between Spain, a premier flag state in a bygone era, and New World coastal states concerning 16th- to 18th-century vessels of Spanish origin that had sunk within the territorial waters of those states.

These tensions eased when a compromise was struck whereby the drafters of the Convention gamely established multiple regimes for warships and state vessels that are specific to each maritime zone. Although these regimes fundamentally defer to the interests and authority of flag states, they also establish a role for “coordinating states” (practically speaking, a euphemism for the taboo term “coastal states”) in collaborative management of UCH within the exclusive economic zones and on the continental shelf, as well as a role for other countries able to establish a “verifiable link” with a particular vessel. The scope of these provisions has significantly expanded now that sunken vessels from World War I are falling within the Convention’s 100-years-or-older definition of UCH. Definitional controversies remain, such as whether sunken vessels can properly be described any longer as “naval property” of a state insofar as they can no longer operate in a naval capacity and whether vessels on public service but not state-owned when they were sunk can qualify as state vessels.

The issue of whether the law of salvage and finds should apply to UCH posed another possible threat to consensus during the UNESCO drafting process, but in the end the Convention’s highly qualified acceptance of this body of law dispelled most of the controversy. On the one hand, the traditional law itself, aside from UCH, has a long and generally uncontroversial history. For example, in 1718, when the pirate Blackbeard sought to bring the treasure-laden French vessel Rose Emelye into the then English colony of North Carolina, he not only had to bribe Governor Charles Eden to do so, but also had to attest (falsely) that he had found the vessel abandoned offshore. On the other hand, once recent technological advancements enabled deepwater activity directed at UCH, its justification by private salvors and looters under the traditional law raised fundamental questions. For example, even the most basic doctrinal requirements under salvage law of marine peril and unsolicited rescue are not readily applicable to UCH.

The ILA’s Buenos Aires Draft Convention declared quite simply that it was not subject to the law of salvage. The drafters of the UNESCO Convention initially adopted the same provision but later became concerned about two problems with that approach: (1) the explicit acknowledgment of a law of salvage and finds in Article 303 of the LOSC and (2) the political reality that, given the influence of salvors, a flat rejection of the law of salvage and finds might cripple the entire UNESCO initiative. The Convention therefore acknowledges the applicability of the law of salvage and finds but imposes three requirements for activities under it: authorization by competent authorities, full conformity with the Convention, and assurance that any recovery of UCH achieves its maximum protection. This provision must be understood against the backdrop of the International Maritime Organization’s 1989 Salvage Convention, which embraces UCH but permits parties to enter a reservation to the provision for it. Although some 22 states have entered such a reservation, Dromgoole points out that conflicts may occur when those states that have not done so are also States Parties to the UNESCO Convention.

Dromgoole aptly describes an annex of Rules Concerning Activities Directed at Underwater Cultural Heritage as “undoubtedly the Convention’s greatest achievement to date (p. 63).” The origin of the rules is simple. In the run up to the Buenos Aires Draft Convention, the ILA asked the International Council on Monuments and Sites to draft a set of best practices. The resulting rules were then modified, annexed, and incorporated into the UNESCO Convention as 36 requirements for the proper management of UCH, ranging from project design and funding to conservation and curation of objects.

Rule 2 of the Annex is especially important as an elaboration of the corresponding Article 2(7) of the Convention, which provides that UCH “shall not be commercially exploited.” Unfortunately, that rule and the term “commercial goods” as the single prohibited use of recovered UCH can be interpreted simply as exceptions to acceptable activities and uses such as, respectively, “scientific exploitation” and “scientifically recovered” goods. It is then all too easy to redefine an essentially commercial venture as a scientific one. Rule 2 is riddled with such constructive ambiguities that risked textual integrity, sensibility, and enforceability in the interest of achieving a consensus in Paris that proved to be elusive. Elsewhere, Dromgoole flags numerous other examples of constructive ambiguities, ranging from the use of the hortatory “should” instead of the mandatory “shall” to the innovative term “verifiable link.” The definition of what constitutes such a link between a state and particular UCH will certainly require clarification if the concept is truly to serve as “a powerful tool in diffusing the political and historical tensions that emerge between states when dealing with the discovery of UCH” (p. 131). Similarly, the vague or even deliberately ambiguous term “deposition” of recovered objects, which Dromgoole interprets as “deaccessioning,” is coupled with another ambiguous phrase: “in the course of a research project.” It is therefore questionable whether Rule 2(b), which presumably was intended to prohibit all commercial transactions involving UCH, is “tightly defined,” as Dromgoole suggests (p. 237).

Despite such ambiguities, Dromgoole concludes that the “wiggle room for sale of artefacts seems to be tiny” (p. 240). Whether this proves to be the case, it is clear that the era of rampant treasure hunting, under the guise of traditional salvage law, is gradually yielding to a more responsible, state-supervised ethos of management. Parties to the Convention are obligated to ensure that all activity directed at UCH within their regulatory competence be organized and conducted in accordance with the annexed rules, an important premise of which is that vessels will remain in situ. That premise is promising. A combination of remotely operated vehicles and satellite transmission of video feeds from them to online viewers at distant archaeological “command centers” marks a new era of telepresence in which UCH can be left in situ and still be accessible and scientifically productive. Scientists and laypersons alike then have immediate visual access to the UCH. Small underwater robots such as U-CAT now make it possible to probe inside wrecks, which is beyond the capability of the bulkier remotely operated vehicles.

Public–private partnerships directed at UCH will be essential. Uniform, scientifically responsible guidelines for such partnerships in line with the annexed rules of the UNESCO Convention are also essential. Even then, issues will doubtlessly arise, such as in the context of national security constraints on scientifically creditable exploration of UCH. For example, land-based excavations at the ancient port of Kinet Hoyuk in Turkey, a safe and calm harbor dating back to the Bronze Age, sought to explore historically pertinent shipwrecks that were thought to be buried in nearby alluvial deposits. Surprisingly, and without explanation, though, the Turkish government refused to grant a permit for an extension of approved land-based research out to sea. The most plausible explanation of this outcome involves a NATO naval base located adjacent to the wrecks. Land-based archaeologists noticed that surface vessels were uncommon at the base, leading to speculation that sensitive submarine activity sourced at the base may have explained the Turkish government’s action.

This volume will serve as a superb reference for years to come. Its meticulous consideration of provisions in the UNESCO Convention^{Footnote 5} and its relationship with other international law, especially the rather misbegotten LOSC provisions, elucidates and supplements the travaux. Dromgoole’s discussion and citation of significant judicial decisions is highly instructive. A detailed index provides easy and reliable references to both historical and analytic content. An excellent bibliography will prove useful for further elaboration of topics and future research. Later editions of the book, however, might benefit from adding the full texts of the LOSC and UNESCO Conventions in an appendix. Also, what is understandably missing in pathfinding studies of this sort is commentary on the personal dynamics among negotiators—the human dimension, as it were. In the opinion of the reviewer, an observer during the UNESCO Meetings of Experts, personal interactions, attractions, and repulsions played an important role in shaping the Convention. It is likely, too, that personal dynamics will continue to shape the codification and progressive development of the regime to protect UCH.

Where does this leave us? The author’s conclusion of an inevitable convergence of practice under the LOSC and UNESCO regimes is compelling, as is her meticulous commentary on the emerging law. It is also apparent that the trend in general maritime law, including the progressive trend in judicial decisions of admiralty courts within the United States and elsewhere, reflects a growing recognition that responsible stewardship of UCH within a sturdy framework of international law is essential. We might speak even today of an international law of UCH.