I. Introduction
The protection of underwater cultural heritageFootnote 1 remains a major challenge. The controversy surrounding the legendary Spanish galleon San José, which sank in 1708 during a battle off the coast of Colombia, is illustrative of this. The 2015 discovery of the wreck, said to be loaded with silver, gold and gems worth more than a billion US dollars today,Footnote 2 resulted in an argument concerning the conditions of the salvage operation: should the corporations involved receive large parts of the trove as remuneration for their services or should the integrity of the find be maintained?Footnote 3 The debate exemplifies the highly contradictory stakes involved in underwater cultural heritage, ranging from the long-term preservation of objects as ‘an integral part of the cultural heritage of humanity’Footnote 4 to the realisation of commercial interests.Footnote 5
It is against this backdrop that this article examines the potential of the UNESCO Convention on the Protection of the Underwater Cultural Heritage, which marks a milestone in the endeavour to preserve and protect underwater cultural heritage.Footnote 6 The focus is on Article 16, which requires States Parties to adopt measures ensuring that both their nationals and vessels flying their flag do not participate in activities directed at underwater cultural heritage that violate the standards of the Convention. The provision is particularly comprehensive in three respects: first of all, it covers a wide range of activities that potentially have detrimental effects on underwater cultural heritage. Second, it obliges States Parties to adopt a triad of legislative measures—concretely, to enact prohibitions, to adopt criminal sanctions, and to establish jurisdiction over the respective offences. Third, as regards the latter aspect, States Parties must establish jurisdiction over the conduct of their nationals and of persons on board vessels flying their flag wherever it occurs, which creates a global jurisdictional shield for the protection of underwater cultural heritage.Footnote 7
Article 16 is a powerful tool for the protection of underwater cultural heritage—if implemented in a robust way.Footnote 8 Yet the implementation of the provision by States Parties remains fragmentary, as evidenced by the examples of FranceFootnote 9 and Switzerland, the latter of which has failed to assess correctly the Convention's scope and content.Footnote 10 Insufficient implementation is also documented by a resolution adopted by the Convention's Scientific and Technical Advisory Board (STAB)Footnote 11 in April 2018, which recommends that the Meeting of States Parties ‘draw attention to the problem of the participation of nationals of States Parties or vessels under the flag of States Parties in the pillage or exploitation of historic shipwrecks in non-State Parties’.Footnote 12
So far, Article 16 has not received much scholarly attention. Mentioned only briefly in a number of writings,Footnote 13 most publications discussing the protection of underwater cultural heritage remain conspicuously silent on the norm.Footnote 14 This is striking since Article 16 has been described as ‘pivotal to the scheme the Convention establishes’.Footnote 15 Moreover, during the drafting process, the provision that ultimately became Article 16 was labelled a ‘core’ provision of the Convention by both UNESCO and leading experts in the field.Footnote 16
It is for these reasons that the present article seeks to cast light on Article 16 and to demonstrate that States Parties must take a triad of legislative measures under this not very clearly worded provision. It proceeds in four steps: after presenting current challenges in the protection of underwater cultural heritage (Part II), it briefly outlines the Convention's structure and main content (Part III). It then undertakes an in-depth analysis of Article 16 in accordance with recognised methods of treaty interpretation and, additionally, by relying on insights gained from relevant domestic legal instruments (Part IV). Finally, it moves beyond the scope of the Convention and argues that the effective protection of underwater cultural heritage can, at present, only be achieved if measures taken by States Parties apply equally to natural persons and to corporations engaged in treasure hunting at sea (Part V).
II. The Challenge: Endangered Underwater Cultural Heritage
The threat to underwater cultural heritage is real and the endangerment of historic shipwrecks is a paradigmatic example of this.Footnote 17 Over the last few decades, the capabilities of underwater technology have dramatically increased.Footnote 18 Depths that were once considered beyond human reach are now accessible due to advanced diving techniques and the use of underwater vehicles, notably research submarines and remote-controlled diving-robots.Footnote 19 While this technological progress has opened up new possibilities in underwater archaeology, it has also paved the way for detrimental interference with previously untouched shipwreck sites.
The legal and political quagmire surrounding the salvage of the San José exemplifies the challenges involved in the protection of underwater cultural heritage. In 2018, Colombia unveiled plans to recover objects from the wreck through a public–private partnership.Footnote 20 The prospect of corporations potentially participating in the endeavour and ending up with large parts of the trove as remuneration for their servicesFootnote 21—thereby compromising the integrity of the find—raised concerns. In its April 2018 meeting, the STAB considered the issue and did not shy away from criticising core aspects of the planned project. In both a resolutionFootnote 22 and an open letter to the Colombian Government,Footnote 23 it categorised the salvage as ‘commercial exploitation’, which is prohibited under the UNESCO Convention.Footnote 24 It warned that ‘similar salvage operations had an extremely negative result for the countries concerned and caused heritage destruction, as well as legal disputes and displeasure’.Footnote 25 Moreover, the STAB stressed that ‘all elements of the San José shipwreck represent cultural heritage’,Footnote 26 noting that ‘several members of the proposed project team’ were previously ‘involved in treasure-hunt operations and have worked in constant disregard of best archaeological standards’.Footnote 27 A lawsuit filed by a concerned citizen aimed at halting the public–private partnership salvage was unsuccessful.Footnote 28 Eventually, the current Colombian government reconsidered the position of its predecessor: after having repeatedly suspended the salvage operation,Footnote 29 it announced in October 2019 that none of the wreck's objects would be used to finance the recovery operation.Footnote 30
The original salvage plan for the San José is not an isolated case, but fits into a larger pattern of instances where governments have teamed up with corporate ‘treasure hunters’Footnote 31 and were left with very little in the end; the salvage of the Belitung, Cirebon and Florida Key wrecks provide further examples.Footnote 32 Moreover, there are many well-known instances of pillage by treasure hunters, which have resulted in the destruction of large quantities of underwater cultural heritage.Footnote 33 Overall, there is strong evidence that the recovery or in situ preservation of historic shipwrecks under the direction of public rather than private entities is more advantageous for archaeological and public interests. Salvage corporations may, for example, try to claim exclusive access to the site,Footnote 34 while recovery or preservation by public entities is more conducive to general access. Further, public involvement is more likely to produce desirable side effects, notably a boost in tourism due to the establishment of fascinating museums or the possibility of non-intrusive diving experiences.Footnote 35
The destructive force of private underwater treasure hunting, whether conducted by recreational divers or commercial excavation enterprises, paradoxically even affects items that are at the very centre of search operations: ancient arts and craft objects, precious metals or gemstones. Such items can be damaged if not treated in accordance with accepted archaeological standards upon their recovery,Footnote 36 and there has been at least one instance of deliberate destruction of numerous precious items in order to increase the market value of the preserved objects.Footnote 37 Moreover, a good number of such items have been lost for public appreciation and further scientific research because they have been auctioned off into private collections.Footnote 38
Since underwater cultural heritage encompasses ‘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’,Footnote 39 it not only includes archetypal ‘treasures’ but also other objects that are of outstanding scientific interest. Among them are notably the wrecks themselves, which show how ships were construed at the time,Footnote 40 preserved cargo,Footnote 41 and everyday items reflecting conditions on board.Footnote 42 Indeed, various commentators refer to historic shipwrecks as ‘time capsules’.Footnote 43 Due to their position on or in the seabed, they are less exposed to the elements—particularly oxygen, which would likely accelerate their decay on land—and thus tend to be particularly well-preserved.Footnote 44 They provide unmatched insights into the technical advances of seafaring, trade routes and everyday life at sea and on landFootnote 45 at a particular moment in human history: the time of their sinking.Footnote 46 In short, shipwrecks play a crucial role in understanding human history, provided they are properly studied and preserved.
Commercial treasure hunting has enormous potential to clash with the preservation of underwater cultural heritage. The search for and excavation of shipwrecks located in the depths of the oceans is costly.Footnote 47 Treasure hunting operations are therefore often funded by private investors and, as a consequence, carried out as expeditiously as possible in order to generate the promised dividends.Footnote 48 The ensuing time pressure makes it virtually impossible for such operations to abide by relevant archaeological standards, which require a more cautious, and thus more time-consuming, approach.Footnote 49 A state-of-the-art exploration and documentation of a single wreck may take years,Footnote 50 since a full understanding of the significance of individual objects and the complete trove can generally only be achieved if the context of the trove is studied extensively prior to recovery.Footnote 51 Corporate treasure hunters tend to portray their operations as archaeological endeavours, yet their commercial focus is clearly antithetical to archaeological standards and they often fail to live up to this claim.Footnote 52 In fact, their brisk undertakings seriously endanger underwater cultural heritage.Footnote 53
Treasure hunting not only occurs in territorial waters, over which a State exercises sovereignty,Footnote 54 but also in other maritime areas, such as on the continental shelf or in the Area.Footnote 55 In these latter zones, the ability of a State to protect endangered cultural heritage is considerably restricted since, unlike on their territory, States are not free to exercise their jurisdiction.Footnote 56 In order to preserve underwater cultural heritage in these zones, States have to rely on jurisdictional bases that allow them to intervene in extraterritorial matters, notably the well-established active nationality and flag State principles.Footnote 57 These principles allow States to address the conduct of both their nationals and of persons on board vessels flying their flag regardless of where the conduct took place.Footnote 58 The higher the number of States establishing and exercising jurisdiction over their respective nationals and ships, the more global the protective shield for underwater cultural heritage becomes. It is at this juncture that the UNESCO Convention, and specifically Article 16, comes into play.Footnote 59
III. The Convention: Structure and Main Content
The Convention follows a classic structure. Its operative part commences with a series of general stipulations,Footnote 60 which, inter alia, define the Convention's key terms.Footnote 61 They further clarify the Convention's relationship with other legal instrumentsFootnote 62 and declare its openness to the conclusion of further agreements on the protection of underwater cultural heritage by States Parties, provided they are in conformity with the Convention and do ‘not dilute its universal character’.Footnote 63
Of particular interest for present purposes is Article 2, which sets out the ‘[o]bjectives and general principles’ of the Convention.Footnote 64 This provides that the aim of the Convention is ‘to ensure and strengthen the protection of underwater cultural heritage’.Footnote 65 States Parties are specifically required to ‘preserve underwater cultural heritage for the benefit of humanity in conformity with the provisions of this Convention’.Footnote 66 Article 2 further determines how States Parties shall achieve the protection of underwater cultural heritage: by taking adequate measures using the best means available to them.Footnote 67 The provision decisively shapes the Convention's protective regime by prescribing that ‘preservation in situ of underwater cultural heritage shall be considered as the first option before allowing or engaging in any activities directed at this heritage’Footnote 68 and by prohibiting the commercial exploitation of underwater cultural heritage.Footnote 69 At the same time, Article 2 makes it clear that the Convention does not regulate all aspects relevant in the realm of underwater cultural heritage. It includes a savings clause stipulating that ‘nothing in this Convention shall be interpreted as modifying the rules of international law and State practice pertaining to sovereign immunities’.Footnote 70 Another issue the Convention does not govern is ownership questions regarding underwater cultural heritage.Footnote 71
The next part of the Convention sets out the rights and obligations of States Parties in the various maritime zones.Footnote 72 In particular, they must prescribe under domestic law that the Rules of the Convention's Annex apply to activities directed at underwater cultural heritage in their internal, archipelagic and territorial waters.Footnote 73 The same applies if they choose to ‘regulate and authorise activities directed at underwater cultural heritage’ in their contiguous zone.Footnote 74 Regarding the exclusive economic zone, the continental shelf and the Area, the Convention obliges States Parties, inter alia, to require their nationals and the masters of their vessels to report the discovery of underwater cultural heritage and the intention to engage in activities directed at underwater cultural heritage located in these zones.Footnote 75 It also regulates how States Parties must proceed with actual discoveries of underwater cultural heritage in these maritime zones.Footnote 76
The next part of the Convention sets out its enforcement regime.Footnote 77 Articles 14 to 18 oblige States Parties to take measures to prevent and impede violations of the Convention—regardless of where the interference with underwater cultural heritage took or takes place.Footnote 78 Article 14 aims at preventing the import, trade and possession of underwater cultural heritage that has been illicitly exported or recovered in contravention to the Convention. Article 15 obliges States Parties to enact prohibitions regarding the use of their territory (notably ports) in support of activities directed at underwater cultural heritage that are not in conformity with the Convention. Article 16 pertains—as we will see in more detail laterFootnote 79—to activities that endanger underwater cultural heritage, are not in conformity with the Convention, and emanate from States Parties’ nationals or persons acting from vessels flying their flag. Article 17 provides an obligation to impose sanctions for the violation of measures implemented by States Parties according to the Convention.Footnote 80 Finally, Article 18 obliges States Parties to take measures allowing for the seizure of underwater cultural heritage located in their territory, the recovery of which violated the Convention.Footnote 81
The final part of the Convention consists of provisions pertaining to, inter alia, cooperation and information-sharing between States Parties.Footnote 82 Further, it requires the setting up of competent domestic authorities to ensure the proper implementation of the ConventionFootnote 83 and establishes two treaty organs—a Meeting of States Parties and a Secretariat—for the implementation and further development of the treaty.Footnote 84 Finally, annexed to the Convention are the ‘Rules concerning activities directed at underwater cultural heritage’, which are the least controversial part of the Convention, yet very important as they contain binding standards for the handling of underwater cultural heritage sites.Footnote 85 The Rules regulate the management of underwater cultural heritage in greater detail than the main text of the treaty, and their content is even followed by States not party to the Convention.Footnote 86
IV. At the Heart of Article 16: Prohibitions, Sanctions and Jurisdiction
As set out in the Introduction, Article 16 is a powerful tool for achieving the Convention's aim since it requires States Parties to adopt a triad of legislative measures in their domestic law: prohibitions, criminal sanctions and jurisdictional rules.Footnote 87 The following section considers this obligation in more detail, in accordance with recognised methods of treaty interpretation as set out in Articles 31 and 32 of the Vienna Convention on the Law of TreatiesFootnote 88 and drawing on insights gained from comparative inquiries into domestic legal instruments pertaining to the protection of sunken military vessels and aircraft.
A. Ordinary Meaning: The Interpretive Starting Point
Article 16 reads as follows:
Article 16 – Measures relating to nationals and vessels
States Parties shall take all practicable measures to ensure that their nationals and vessels flying their flag do not engage in any activity directed at underwater cultural heritage in a manner not in conformity with this Convention.
This wording raises questions as to what tasks States Parties must carry out under Article 16, how such tasks are to be accomplished and, in particular, what types of legislative measuresFootnote 89 they must adopt.
From the ordinary meaning of the words ‘shall take’—and even more clearly from the French ‘prennent’Footnote 90—it follows that States Parties do not have discretion as to whether to take measures at the domestic level; rather, they are obliged to do so.Footnote 91 The provision is equally straightforward as regards the objective States Parties must pursue under Article 16: they must ‘ensure that their nationals and vessels flying their flag do not engage in any activity directed at underwater cultural heritage’ contrary to the Convention. In order to achieve this goal, they must adopt ‘measures’.
Article 16 also specifies the type of conduct that measures taken by States Parties must address: ‘any activity directed at underwater cultural heritage in a manner not in conformity with this Convention’. The words ‘activities directed at underwater cultural heritage’ are defined by Article 1(6) of the Convention as activities ‘having underwater cultural heritage as their primary object and which may, directly or indirectly, physically disturb or otherwise damage underwater cultural heritage’. This definition entails two important consequences: first, States Parties are only obliged to install measures for activities that specifically target underwater cultural heritage.Footnote 92 Second, these activities need not actually damage the concerned items, rather it suffices that they may ‘disturb or otherwise damage’ them. Read together with the remainder of Article 16, measures must thus extend to all activities that target underwater cultural heritage in a manner incompatible with the Convention and which could cause damage.
As regards the types of measures States Parties must take, the wording of Article 16 is not very explicit but the phrase ‘all practicable measures to ensure’ nonetheless provides important clues. First of all, the term ‘all’ requires the adoption of a comprehensive set of implementing measures. The word ‘practicable’ does not change this assessment in a fundamental way since States Parties must ‘ensure’ that certain activities do not occur and thus work towards a particular outcome. Consequently, the term ‘practicable’ does not inject a great deal of leeway for States Parties and must mean that they are required to take feasible and result-yielding measures, but are not required to adopt measures which impose an undue burden—especially if they do not yield any discernible effects for the protection of underwater cultural heritage. Such an interpretation is in line with the ordinary meaning of the term ‘opportunes’ used in the French version of Article 16, which stems from the Latin term opportunus—and translates to ‘leading into port’.Footnote 93
States Parties are therefore obliged to prevent problematic activities with all the means at their disposal which contribute to the objective set out in Article 16. Since the objective consists of the prevention of a particular kind of conduct, the adoption of prohibitions under domestic law is the necessary first step.Footnote 94 The second step follows from the first: as the observance of prohibitions depends considerably on the dissuasive effect of sanctions, and since Article 16 requires the taking of ‘all practicable measures’, States Parties are obliged to buttress their prohibitions with sanctions.Footnote 95 What is more, the wording ‘all practicable measures’ also determines the kind of sanctions States Parties must adopt. They are not only required to take some practical measures, but rather ‘all’ measures serving the objective ‘to ensure’ the prevention of illicit conduct. Since the endangerment of underwater cultural heritage is often driven by the prospect of significant monetary gain,Footnote 96 the strongest sanctions available to States Parties are also the most appropriate: criminal penalties.
The third and last form of legislative measures States Parties must adopt—the establishment of criminal jurisdiction over the enacted offences—arises from a combined reading of three textual elements of Article 16: once more, the duty to take ‘all practicable measures’ is decisive and demands the use of all expedient options. It is complemented by the obligation of States Parties ‘to ensure that their nationals and vessels flying their flag do not engage’ in problematic conduct. By referring to ‘nationals’ and ‘vessels flying their flag’, the provision mentions two classic grounds of jurisdiction.Footnote 97 Further, Article 16 does not contain any limit regarding the geographical scope of the measures to be implemented. Taken together, this suggests that Article 16 requires States Parties to establish jurisdiction over the conduct of their nationals as well as activities on ships flying their flag—regardless of where they occur.Footnote 98
The triad of legislative measures States Parties must implement is not an end in itself. Since Article 16 requires the prevention of activities that are carried out ‘in a manner not in conformity with this Convention’, it allows for the enforcement of substantive provisions of the Convention that regulate the handling of underwater cultural heritage, but for which there are no specific enforcement measures in place. It therefore functions as a mechanism ensuring compliance with large parts of the Convention, most notably with the Rules contained in the Annex.Footnote 99 In the words of O'Keefe: ‘Article 16 is directed at the fulfilment of a State's obligations under other provisions of the Underwater Convention’.Footnote 100 This function greatly benefits from the fact that Article 16's geographical scope of application is not restricted to any particular maritime zone.Footnote 101 By requiring domestic measures covering acts contrary to the Convention regardless of where they take place,Footnote 102 it provides for a global protective shield for underwater cultural heritage.
B. Object and Purpose: Article 16 in Light of the Convention's Aim
What follows is an object-and-purpose based interpretation of Article 16, reading the provision in light of the overall goal of the UNESCO Convention and in a way that furthers its aim.Footnote 103 This exploration confirms the previous findings.
Article 2 of the UNESCO Convention contains particularly clear references to the Convention's object and purpose, setting out that the ‘Convention aims to ensure and strengthen the protection of underwater cultural heritage’.Footnote 104 Accordingly, it requires States Parties to ‘preserve underwater cultural heritage’.Footnote 105 What is more, Article 2 instructs States Parties to ‘take all appropriate measures … necessary to protect underwater cultural heritage’ and obliges them to use ‘the best practicable means at their disposal’.Footnote 106 The provision thus provides strong indication of the Convention's object and purpose, which consists in the protection of the underwater cultural heritage through measures to be taken by States Parties conforming to the requirements set out in Article 2.
When interpreting Article 16 in light of this object and purpose, the adoption of prohibitions backed with criminal sanctions is a first and indispensable step of any implementation scheme. States Parties can hardly protect underwater cultural heritage without the criminalisation of acts that endanger it and doing so is clearly included within ‘the best practicable means at their disposal’. As regards the conduct to be prohibited, Article 16 only requires the prohibition of activities ‘directed at’ underwater cultural heritage.Footnote 107 While the best way of furthering the Convention's aim would certainly be the prohibition of all kinds of intrusions with underwater cultural heritage by means of criminal law, the unequivocal wording of the provision does not allow for such an expansive interpretation.Footnote 108 Yet States Parties are free to go beyond their obligations stemming from the Convention and to also prohibit other types of conduct that may be detrimental to underwater cultural heritage.Footnote 109 Such a course of action would certainly be in furtherance of the Convention's aim.
The Convention's object and purpose also require the establishment of States Parties’ criminal jurisdiction over the activities of their nationals or persons on board their vessels. As underwater cultural heritage can be found in all maritime zones, the protective regime foreseen by the Convention needs to extend to all of them. Absent territorial jurisdiction in the majority of these zones, it is necessary that States Parties establish their jurisdiction based on the nationality of the person and the flag of the vessel,Footnote 110 a course of action which is clearly ‘at the disposal’ of States and ‘appropriate’ in light of the specific factual and jurisdictional context in which treasure hunting occurs. In short, only if States Parties enact criminal offences and establish their jurisdiction based on both the active nationality and the flag State principles is it possible to suppress illicit activities on a worldwide scale and achieve a truly global protective regime.Footnote 111
The extraterritorial reach of domestic prohibitions and penal power is essential, not least because many activities directed at underwater cultural heritage can only be carried out with advanced technical equipment. It is thus more likely that nationals of so-called ‘maritime States’, where cutting-edge technology is available, engage in such ventures.Footnote 112 They may do so in waters under the sovereignty of States lacking the resources to enforce the ConventionFootnote 113 or in maritime zones under no State's jurisdiction. In such situations, the active personality principle allows for nationals involved in treasure hunting activities abroad to be brought within the reach of their State's penal power and therefore closes an important enforcement gap.Footnote 114
Yet awareness about the importance of this aspect of Article 16 for attaining the Convention's goal is still lacking among certain States Parties. For instance, Switzerland's implementing legislation only addresses conduct by persons on board ships flying the Swiss flag, but does not extend to problematic conduct by Swiss nationals on board foreign-flagged vesselsFootnote 115—which is the far more likely scenario.Footnote 116 To establish criminal jurisdiction solely based on the flag State principle is obviously insufficient to ensure that activities contrary to the Convention do not take place and is thus at odds not only with the wording of Article 16,Footnote 117 but also with the object and purpose of the Convention as a whole. Absent ratification of the Convention by all or most States, potential offenders can easily evade the exercise of flag State jurisdiction by operating from a ship registered in a State which is not party to the Convention or by a State known for its casual approach to such activities (or to the enforcement of the law more generally). Conversely, not establishing the flag State principle under domestic law is not an option either: a vessel could then be manned exclusively with nationals of non-States Parties, thus putting all of its activities beyond the reach of the Convention. The effective enforcement of the Convention therefore hinges on the establishment of jurisdiction based on the nationality of vessels and of persons.
C. Context: The Immediate Normative Setting of Article 16
The context of Article 16 also contributes to an understanding of its content; the focus is on its immediate normative environment, in particular the enforcement regime contained in Articles 14 to 18 of the Convention.Footnote 118
Similar to Article 16, Articles 14, 15 and 18 require States Parties to adopt implementing ‘measures’;Footnote 119 yet each of these provisions addresses a different type of conduct. Article 14 aims ‘to prevent the entry into their territory, the dealing in, or the possession of, underwater cultural heritage illicitly exported and/or recovered’. Article 15, in turn, requires States Parties ‘to prohibit the use of their territory, including their maritime ports’ in support of activities which contravene the Convention. Finally, Article 18 obliges each State Party to ‘take measures providing for the seizure of underwater cultural heritage in its territory that has been recovered in a manner not in conformity with this Convention’.Footnote 120 Taken together, these three norms cover a substantial number of practices linked to the destruction and endangerment of underwater cultural heritage, but none requires implementing measures that address the potentially detrimental direct interference with underwater cultural heritage. This central role is assigned to Article 16, making it the lynchpin of the Convention's enforcement regime.
As regards the types of measures States Parties must adopt, Article 15 is particularly explicit by obliging States Parties ‘to prohibit the use of their territory … in support of any activity directed at underwater cultural heritage’.Footnote 121 Article 18 is similarly straightforward in demanding a particular kind of sanction—that is, the seizure of illicitly recovered underwater cultural heritage. Article 17 has the same degree of clarity, requiring the introduction of sanctions for the violation of implementing measures.Footnote 122 According to Article 14, States Parties must adopt measures to ‘prevent’ the entry, dealing in and possession of illicitly recovered underwater cultural heritage, which certainly remains a vain endeavour absent norms prohibiting such conduct. Reading Article 16 in this context demonstrates that prohibitions and sanctions are key components of the Convention's enforcement regime—a fact that supports the previous findings.
One of the neighbouring provisions of Article 16 also provides guidance regarding the character of the sanctions to be adopted under the Convention: Article 17(2) specifies that sanctions imposed by States Parties for the violation of implementing measures ‘shall be adequate in severity to be effective in securing compliance with this Convention and to discourage violations wherever they occur’.Footnote 123 This finding resonates with the argument that the implementation of Article 16 necessitates sufficiently dissuasive sanctions—that is, sanctions under criminal lawFootnote 124—and that the words ‘all practicable measures to ensure’ must be understood in such a way.
As regards jurisdiction, Articles 14, 15 and 18 are—either explicitly or implicitly—based on the idea that States Parties have recourse to their territorial jurisdiction in order to enforce the Convention. By contrast, Article 16 is the only provision that references two grounds of jurisdiction that have extraterritorial reach—the active nationality and flag State principles. From this comparison, it becomes clear that Article 16 is intended to have a global reach. What is more, both grounds of jurisdiction mentioned in Article 16 are not unique within the framework of the Convention. Articles 9(1) and 11(1) also rely on the active nationality and flag State principles, making their use a general feature of the Convention.Footnote 125 The fact that the enforcement regime of the Convention exhibits a global approach is also illustrated by Article 17(2) specifying that sanctions must ‘discourage violations wherever they occur’. Such a contextual reading of Article 16 bolsters the conclusion that it requires the establishment of criminal jurisdiction based on the nationality of persons and vessels.
D. Systemic Integration: Article 16 in the Context of Similar Treaties
Further support for the claim that Article 16 requires States Parties to adopt a triad of measures can be gained from systemic integration as foreseen by Article 31(3)(c) VCLT.Footnote 126 For such an analysis, two kinds of treaties are of particular interest: those regulating the protection of particular shipwrecks and so-called ‘suppression conventions’.Footnote 127 A survey of these instruments suggests that the enactment of prohibitions backed by criminal sanctions and the establishment of jurisdiction with extraterritorial reach are the usual steps taken to tackle unwanted activities that transcend national borders—regardless of whether it is shipwrecks or other interests that are at stake.
The Agreement regarding the M/S Estonia (M/S Estonia Agreement), concluded between Estonia, Finland and Sweden, pertains to the protection of the wreck and the surrounding area of the sea bed ‘as a final place of rest for victims of the disaster’.Footnote 128 It further requires that the ‘Contracting Parties undertake to institute legislation, in accordance with their national procedures, aiming at the criminalisation of any activities disturbing the peace of the final place of rest’.Footnote 129 They are, moreover, obliged ‘to make it possible to punish the commission of an offence … by imprisonment’.Footnote 130 The wording of the M/S Estonia Agreement is much more explicit than Article 16 (even if read together with Article 17(2)) in terms of the types of measures States Parties must adopt. The Agreement displays in an exemplary way the kind of measures that must be adopted in order to protect underwater sites effectively; it is therefore helpful for identifying the types of implementing measures required under Article 16.Footnote 131
The Agreement Concerning the Shipwrecked Vessel RMS Titanic (Titanic Agreement), which was finalised in 2000Footnote 132 but has not yet come into force,Footnote 133 also provides insights for the interpretation of Article 16. The Titanic Agreement strives to protect the wreck as ‘a memorial to those … who perished and whose remains should be given appropriate respect’ and describes the Titanic as ‘an underwater historical wreck of exceptional international importance’.Footnote 134 Due to this twofold focus, the Titanic Agreement features an even closer thematic link with the UNESCO Convention than the M/S Estonia Agreement.Footnote 135 It requires each State Party to ‘take the necessary measures, in respect of its nationals and vessels flying its flag’ to regulate their conduct at the site in accordance with other stipulations of the Agreement.Footnote 136 Moreover, each State Party ‘shall take appropriate actions with respect to its nationals and vessels flying its flag to enforce the measures it has taken pursuant to this Agreement’.Footnote 137 The United Kingdom has already adopted corresponding regulations in The Protection of Wrecks (RMS Titanic) Order 2003, which will enter into force with the Agreement.Footnote 138 Article 6 of the Order imposes criminal offences for violations of the Agreement's standards,Footnote 139 which according to the UK Merchant Shipping and Maritime Security Act 1997 applies to acts on board a ‘United Kingdom ship’ and, in international waters, to acts of British citizens and other persons (including companies) with specific, enumerated relationships to the UK.Footnote 140 Taken together, these regulations exemplify the types of implementing measures the Agreement and the protection of underwater cultural heritage more generally require: a triad of measures, that is, prohibitions, sanctions and the establishment of jurisdiction over extraterritorial occurrences.Footnote 141 Article 16 should be interpreted in line with this wider, relevant normative context.
In order to determine the types of implementing measures States Parties are required to adopt under Article 16, so-called ‘suppression conventions’ in the sphere of transnational criminal law are also worth considering. Like the UNESCO Convention, these treaties aim at tackling crimes that evade territorial jurisdiction due to their transnational nature, such as the crime of hostage taking,Footnote 142 transnational organised crime,Footnote 143 and acts endangering the safety of maritime navigation.Footnote 144 Yet the transnational nature of the activities in question is not the only common feature that these treaties share with the UNESCO Convention. In an attempt to address problematic conduct, the suppression conventions explicitly state what types of implementing measures State Parties must take and generally oblige them (i) to prohibit the respective conduct under domestic law, (ii) to make the relevant offence(s) subject to appropriate penalties, and (iii) to establish jurisdiction over the offence(s) in question.Footnote 145 Hence, suppression conventions not only combat conduct that poses transnational challenges similar to the endangerment of underwater cultural heritage, but, moreover, provide a mirror image of the measures that Article 16 requires, according to the above interpretations.
E. The Broader Legal Landscape: Comparative Insights from Domestic Legislation
Taking account of comparative insights from enquiries into domestic legal instruments is not part of the traditional interpretative canon for treaties.Footnote 146 Nonetheless, considering domestic acts in the interpretive exercise has the potential to further inform the understanding of an international norm.Footnote 147 For current purposes, relevant comparative insights can, inter alia, be gained from two domestic statutes: the United Kingdom's Protection of Military Remains Act 1986Footnote 148 and the United States’ Sunken Military Craft Act of 2004.Footnote 149 Both instruments demonstrate that the triad of measures—offences, sanctions, and jurisdiction—is a common feature for the legal protection of underwater sites.
The UK Act strives ‘to secure the protection from unauthorised interference of the remains of military aircraft and vessels that have crashed, sunk or been stranded and of associated human remains’.Footnote 150 Despite the fact that the Act defines the protected objects differently from the Convention,Footnote 151 it is of interest for two reasons. First, because it comprises detailed offence definitions.Footnote 152 Second, it has a jurisdictional provision that is very similar to Section 24 of the UK Merchant Shipping and Maritime Security Act 1997,Footnote 153 covering offences committed within the UK and its waters, on board a ‘British-controlled ship’ or in international waters on board a foreign-flagged ship by British citizens and other persons (including companies) with specific, enumerated relationships to the UK.Footnote 154 It thus exemplifies the need for provisions pertaining to the enforcement of substantive rules relating to the protection of underwater sites—provisions similar to the types of implementing measures required under Article 16.
The US Sunken Military Craft Act of 2004 prohibits persons from engaging or attempting to engage in ‘any activity directed at a sunken military craft that disturbs, removes, or injures any sunken military craft’ unless covered by an exemption, such as a permit.Footnote 155 Violations of the respective provisions are sanctioned by civil penaltiesFootnote 156 and liability may arise for damages and enforcement costs.Footnote 157 The application of the Act is restricted to US nationals and resident aliens unless the application to further persons is supported by ‘generally recognised principles of international law’ or a particular international agreement.Footnote 158 Thus, the Act provides a further example of the protection of underwater sites through the establishment of prohibitions equipped with sanctions and the use of the active nationality principle in order to enforce substantive rules beyond territorial limits—a finding that further bolsters the interpretation of Article 16 offered above.
F. Travaux Préparatoires: The Route towards a Robust Provision
The findings made so far also receive support from the preparatory works relating to Article 16.Footnote 159 The provision did not figure among the most controversial drafting points.Footnote 160 Consequently, discussions regarding Article 16 were rather scarce and mainly centred on its jurisdictional component; other aspects, notably the kinds of activities to be addressed, the types of implementing measures and their geographical scope, received considerably less attention.
1. ILA Draft of 1994
Since the 1950s, a number of steps have been taken to bring the protection of underwater cultural heritage within the reach of international law.Footnote 161 An influential contribution was made by the International Law Association (ILA), which in 1994 issued the Buenos Aires Draft Convention on the Protection of the Underwater Cultural Heritage (ILA Draft)Footnote 162—a document that provided the basis for the subsequent UNESCO Convention drafts.Footnote 163 Article 8 of the ILA Draft is of particular interest since it served as the model for today's Article 16.Footnote 164 It reads as follows:
Article 8: Prohibition of Certain Activities by Nationals and Ships
Each State Party shall undertake to prohibit its nationals and ships of its flag from activities affecting underwater cultural heritage in respect of any area which is not within a cultural heritage zone or territorial sea of another State Party. The prohibition shall not apply to activities affecting the underwater cultural heritage that comply with the Charter.
The provision requires each State Party to adopt prohibitions regarding activities of ‘its nationals and ships of its flag … affecting underwater cultural heritage’ in areas not subject to the jurisdiction of another State Party.Footnote 165
While the thrust of Article 8 of the ILA Draft and Article 16 of the UNESCO Convention is the same, the former provision is narrower in three respects. First, it requires only one type of implementing measure—the prohibition of relevant conduct. The fact that this narrow wording has not been retained in Article 16 supports the view that a triad of measures must be taken. Second, Article 8 of the ILA Draft only requires that activities comply with the annexed ICOMOS Charter on the Protection and Management of Underwater Cultural Heritage that was subsequently adopted by the International Council of Monuments and Sites.Footnote 166 The ICOMOS Charter essentially corresponds to what later became the Rules in the Annex;Footnote 167 States Parties were thus not required to comply with the Convention as a whole at this point. Third, Article 8 of the ILA Draft applies only in those areas of the sea that are ‘not within a cultural heritage zone or territorial sea of another State Party’,Footnote 168 while Article 16 does not contain such a geographical limitation and thus has—as argued before—a global reach. In one respect, however, the material scope of Article 8 of the ILA Draft is wider than that of Article 16: it extends to all activities ‘affecting’ underwater cultural heritage. Hence, it includes any kind of interference, whereas Article 16 is restricted to activities that are ‘directed at’ underwater cultural heritage.Footnote 169
In terms of the addressees of the implementing measures—States Parties’ nationals and vessels—there is full accordance between the two provisions. The ILA drafters stressed that Article 8 is ‘a core’ provision of the ILA Draft and underlined the necessity of both jurisdictional grounds: the active nationality and flag State principles.Footnote 170 To rely solely on the latter was in their view ‘too uncertain’ since the vessel in question may be too small for registration or may be registered under a flag of convenience not effectively enforcing the law. Going a step further and subjecting the protection of underwater cultural heritage to universal jurisdiction was at that time deemed too controversialFootnote 171 and is arguably still so today.
2. UNESCO 1998 Draft
In 1998, UNESCO submitted a first draft of the Convention as the basis for further negotiations.Footnote 172 Article 7 of the UNESCO 1998 Draft retained the title of Article 8 of the ILA Draft and largely reflects its content. The provision reads as follows:
Article 7 Prohibition of Certain Activities by Nationals and Ships
1. A State Party shall take such measures as may be necessary to ensure that its nationals and vessels flying its flag do not engage in any activity affecting underwater cultural heritage in a manner inconsistent with the principles of the Charter.
2. Measures to be taken by a State Party in respect of its nationals and vessels flying its flag shall include, among others, the establishment of regulations:
(a) to prohibit activities affecting underwater cultural heritage in areas where no State Party exercises its jurisdiction under Article 5 otherwise than in accordance with the terms and conditions of a permit or authorisation granted in compliance with the provisions of the Charter;
(b) to ensure that they do not engage in activities affecting underwater cultural heritage within the exclusive economic zone or continental shelf of a State Party which exercises its jurisdiction under Article 5, in a manner contrary to the laws and regulations of that State.
Unlike Article 8 of the ILA Draft, the provision requires States Parties to ‘take such measures as may be necessary to ensure’ that nationals and vessels flying their flag do not engage in activities affecting underwater cultural heritage. This shift in content was foundational for the evolution of today's Article 16.
As regards the types of implementing measures, Article 7 of the UNESCO 1998 Draft is helpful for understanding Article 16. Its second paragraph requires ‘among others, the establishment of regulations … to prohibit’ illicit activities in certain areas. By using the words ‘among others’, the drafters made it very clear that whilst the adoption of prohibitions is important, this alone is insufficient to ensure that no acts affecting underwater cultural heritage are undertaken. This finding supports the interpretation of Article 16 made above.
In terms of the addressees of implementing measures, Article 7 of the UNESCO 1998 Draft follows in the footsteps of Article 8 of the ILA Draft: measures must extend to States Parties’ nationals and vessels. Explanatory comments on the draft provision emphasised the need of a combination of these two grounds of jurisdiction in order to deter illicit activities.Footnote 173 This view was shared during meetings, where drafters expressed their concerns that neither the flag State principle nor the active personality principle alone would have the potential to ensure effective protection.Footnote 174 Particularly as regards vessels flying the flag of a State not party to the Convention, enforcement was considered to be impossible.Footnote 175 Hence, the inclusion of both grounds of jurisdiction was a deliberate choice at this point in the drafting process and this approach was ultimately retained. The geographical scope of application of Article 7 of the UNESCO 1998 Draft is broader than in Article 8 of the ILA Draft: the latter only covers maritime areas which are not under the jurisdiction of a State Party, while Article 7(2)(b) of the UNESCO 1998 Draft also applies to areas in which States Parties exercise jurisdiction. Hence, the scope of application of the provision was considerably extended at this point—a step towards the geographically unrestricted nature of today's Article 16.
3. UNESCO 1999 Draft
The UNESCO 1999 DraftFootnote 176 contains three different proposals, all of which retain the title of Article 8 of the ILA Draft:
OPTION 1
Article 7 Prohibition of certain activities by nationals and ships
1. States Parties shall take all practicable measures to ensure that [their nationals and] vessels flying their flag refrain from engaging in any [activity directed at] underwater cultural heritage in a manner inconsistent with the Rules of the Annex.
2. Measures to be taken by a State Party in respect of [its nationals and] vessels flying its flag shall include:
(a) prohibition of [activities directed at] underwater cultural heritage in areas where no State Party exercises control under Article 5(2) otherwise than in accordance with the Rules of the Annex;
(b) all practicable measures to ensure that they do not engage in [activities directed at] underwater cultural heritage within the exclusive economic zone or continental shelf of a State Party which exercises control under Article 5(2) in a manner contrary to the laws and regulations of that State.
OPTION 2
Article 7 Prohibition of certain activities by nationals and ships
1. States Parties shall require that any discovery relating to underwater cultural heritage by their nationals or through the activities of vessels flying their flag in the exclusive economic zone or the continental shelf of another State be reported to the competent authorities of that State or the State of origin, or the State of cultural origin, or the State of historical and archaeological origin.
2. Measures to be taken by a State Party in respect of [its nationals and] vessels flying its flag shall include:
(a) to prohibit [activities directed at] underwater cultural heritage in areas where no State Party exercises sovereignty or control in a manner contrary to the Rules of the Annex;
(b) to ensure that they do not engage in [activities directed at] underwater cultural heritage within the exclusive economic zone or continental shelf of a State Party which exercises sovereignty or control in a manner contrary to the Rules of the Annex.
OPTION 3
Article 6 Prohibition of certain activities by nationals and ships
All States Parties shall take all practicable measures to ensure that [their nationals] and vessels flying their flag do not engage in any activity [directed at] underwater cultural heritage in a manner inconsistent with this Convention and its Annex, or the laws and regulations of the State Party in whose exclusive economic zone or on whose continental shelf such underwater cultural heritage is located, as appropriate.
In terms of the goal to be achieved by States Parties, all three of the proposals submitted provided that the adopted measures must ‘ensure’ that particular groups of persons refrain from engaging in problematic conduct.Footnote 177 This underlines the importance the drafters attached to the idea.
As regards the types of implementing measures, the three options vary to some extent but share certain features. Options 1 and 3 require States Parties to ‘take all practicable measures’, which is the approach ultimately taken in Article 16. Similar to Article 7 of the UNESCO 1998 Draft, Options 1 and 2 specify that measures shall include the prohibition of problematic activities. By contrast, the more condensed Option 3 does not explicitly require doing so, yet nothing in the travaux suggests that this wording was chosen to exclude prohibitions; rather, this more open wording allows for the inclusion of various measures. In sum, the three options demonstrate the drafters’ intent to oblige States Parties to implement a variety of measures, including prohibitions—a finding that supports the interpretation of Article 16 made above.
Compared to earlier drafts, all three options are less demanding as regards the kind of conduct States Parties are required to prevent; as in Article 16, States Parties are only obliged to address activities ‘directed at’ underwater cultural heritage. The change from ‘affecting’ to ‘directed at’, which keeps incidental infractions outside the scope of the Convention, goes back to a Canadian proposal.Footnote 178 The new wording was, however, put in brackets, which indicates a willingness on the part of the drafters to reconsider the issue. Further, in all three proposals the standard against which relevant conduct has to be assessed was changed from ‘the Charter’Footnote 179 to ‘the Annex’ to the Convention.Footnote 180 Option 3 goes slightly further by requiring compliance with both the Convention and the Annex.Footnote 181
In terms of the addressees of the implementing measures, all three options pursue the path taken in earlier drafts: States Parties must take measures extending to both ‘their nationals’/‘its nationals’ and ‘vessels flying its flag’/‘vessels flying their flag’. However, in all three provisions, the term ‘their nationals’/‘its nationals’ was put in square brackets. At this stage, it seemed possible that the active personality principle might not be relied upon.
4. UNESCO 2000 Draft
In the written submissions following the 1999 meeting, Canada and Italy suggested the incorporation of a provision codifying the obligation of States Parties ‘to make it an offence for its nationals to engage in any activity directed at underwater cultural heritage’ without a permit awarded in compliance with the Annex—a proposal that highlights the need for prohibitions and sanctions under the Convention's regime.Footnote 182 The final report on the draft consultations of July 2000—here referred to as the UNESCO 2000 Draft—contains two versionsFootnote 183 of what ultimately became Article 16:
Art[icle] A Prohibition of certain activities by nationals and ships
The States Parties shall take all practicable measures to ensure that physical or legal persons having their nationality or vessels flying their flag refrain from engaging in activities in a manner inconsistent with this Convention, wherever these activities take place.
Article 7 Deterrence of certain activities by nationals and vessels
States Parties shall take all practicable measures to ensure that their nationals and vessels flying or entitled to fly their flag refrain from engaging anywhere in any [activity directed at] underwater cultural heritage in a manner inconsistent with the Rules of the Annex.
While Article A maintains the title of all previous draft provisions, Article 7 has a slightly different heading: ‘Deterrence of certain activities by nationals and vessels’—one that accentuates the provision's purpose, which is to prevent harmful activities. The obligation to take ‘all practicable measures to ensure’, as found in previous drafts, was kept and ultimately incorporated into Article 16. Article 7, in addition, relies on language from earlier drafts by stating that the activities in question must be ‘directed at underwater cultural heritage’. Since the words continued to be bracketed, it seems that there was not yet unanimity on the issue. As regards the standard against which relevant conduct is assessed, Article 7 refers to the ‘Rules of the Annex’ and Article A to the Convention as a whole—the latter being the benchmark ultimately retained in Article 16.
Unlike previous drafts, both provisions abandoned the idea of distinguishing between the areas where potentially harmful conduct, which is to be addressed by measures, must occur; rather, wording that emphasised the provision's worldwide reach was chosen. As in Article 7, measures must prevent the addressees ‘from engaging anywhere’ in any problematic activity, and Article A demands that measures extend to activities ‘wherever’ they take place. Arguably, this broader geographical scope of application made the provision more acceptable to negotiating States, like the US, which were fundamentally opposed to granting new jurisdictional powers to coastal States, notably in the EEZ and the continental shelf. These States insisted that the jurisdictional framework established under the UNCLOS should be relied on and supported provisions with worldwide application, allowing for far-reaching enforcement measures without broadening the jurisdictional powers of coastal States.Footnote 184
As regards the addressees of the implementing measures, both draft provisions enshrined the active nationality and flag State principles. This time, the words ‘nationality’ and ‘nationals’ respectively were no longer put in brackets, which is evidence of the clear support for the inclusion of the active personality principle in this draft and ultimately in Article 16. Article A even went one step further by requiring that measures encompass the conduct of ‘physical or legal persons having their nationality’,Footnote 185 which brought corporations within the draft Convention's reach.
5. Consolidated Working Paper of 2001
At the final round of consultations on the draft Convention in 2001, a Consolidated Working Paper was presented.Footnote 186 This paper included the three versions of Articles 6 and 7 of the UNESCO 1999 Draft respectively as well as Articles A and 7 of the UNESCO 2000 Draft.Footnote 187 Further negotiations took place on the basis of an ‘Informal draft negotiating text’,Footnote 188 Article 15Footnote 189 of which was largely based on Option 1 of Article 7 of the UNESCO 1999 Draft:
Article 15 … Prohibition of certain activities by nationals and ships
1. States Parties shall take all practicable measures to ensure that their nationals and vessels flying their flag refrain from engaging in any activity directed at underwater cultural heritage in a manner inconsistent with the Convention.
2. Measures to be taken by a State Party in respect of its nationals and vessels flying its flag shall include:
(a) prohibition of activities directed at underwater cultural heritage otherwise than in accordance with the Convention in areas where no State Party exercises control under Article 12;
(b) all practicable measures to ensure that they do not, in a manner contrary to the laws and regulations of a State Party which exercises control under Articles 11 or 12, engage in activities directed at underwater cultural heritage within the continental shelf of that State.
The wording of Article 15(1) differs from today's Article 16 only slightly. Like Article 16, it demands that ‘States Parties shall take all practicable measures to ensure’ that no problematic conduct directed at underwater cultural heritage occurs. In Article 15, the words ‘directed at underwater cultural heritage’ were no longer bracketed, which suggests that their inclusion was now agreed upon. Furthermore, activities must now comply with the content of the Convention as a whole. In terms of the addressees of the implementing measures, Article 15 names—without any reservation—the ‘nationals and vessels’ of States Parties. At this stage of the drafting process, there is no doubt left about the deliberate inclusion of both jurisdictional grounds: the active nationality and flag State principles.
In sum, the analysis of the travaux supports the earlier findings based on Article 16's ordinary meaning in light of the object and purpose as well as the normative context of the Convention and comparative insights gained from domestic law. The main insight from the travaux is that Article 16 had been strengthened through the drafting process. As regards the types of measures, the enactment of prohibitions was no longer considered sufficient; rather, States Parties must adopt a variety of measures,Footnote 190 most importantly the triad of legislative measures that has been the focus of this article. It also follows from the travaux that the inclusion of both the active nationality and flag State principles was the result of a deliberate choice, and that the provision's geographical scope was steadily broadened until it was given global reach. Last but not least, the standard with which activities must comply expanded from the content of the Charter/Annex to that of the Convention as a whole. Just one single element of the provision was narrowed down in the course of the drafting process: only activities ‘directed at’ and not all activities affecting underwater cultural heritage are covered by Article 16. The drafters’ intent was clearly the establishment of a robust enforcement provision with global reach, which requires a variety of measures that are able ‘to ensure’ the protection of underwater cultural heritage.
However, even if States Parties fully implement Article 16, a significant loophole persists. As the content of Article A of the UNESCO 2000 Draft regarding legal entities was not retained, the provision only covers natural persons. Salvage corporations, which are key actors in the realm of excavation and recovery of underwater cultural heritage, were left outside the scope of the Convention.
V. Moving Beyond the Convention: Measures Against Corporate Treasure Hunters
Since the search for and the excavation of artefacts on the seabed is a costly yet lucrative business, which requires substantial funding and specialist equipment, it should not come as a surprise that corporations are major players in the field. The UNESCO Convention does not prohibit the involvement of commercial entities in underwater cultural heritage projects as such; however, it rules out both the ‘commercial exploitation of underwater cultural heritage for trade or speculation’ and ‘its irretrievable dispersal’ because they are ‘fundamentally incompatible with the protection and proper management of underwater cultural heritage’. In particular, underwater cultural heritage ‘shall not be traded, sold, bought or bartered as commercial goods’.Footnote 191 Briefly, it aims at deterring a specific kind of commercial actor: corporate treasure huntersFootnote 192 recovering underwater cultural heritage for the primary purpose of generating high profits through its sale.Footnote 193 The San José is again exemplary in this respect: commercial entities were heavily involved in the search for the shipFootnote 194 and the government of Colombia had initially planned to collaborate closely with corporations in the recovery of the trove through a public–private partnership.Footnote 195
The involvement of corporations in the exploitation of underwater cultural heritage is presumably motivated by the same economic reasons that speak in favour of corporate structures in general, notably attractive financing options as well as favourable tax regulations and liability frameworks. In many cases, their financial and thus operational resources transcend those of other actors.Footnote 196 This enables corporations to engage in large-scale projects which—if not undertaken in accordance with scientific standards—present a particularly serious threat to the preservation of underwater cultural heritage.
At the same time, our understanding of Article 16 of the UNESCO Convention is that it covers only natural persons, with powerful corporate treasure hunters remaining beyond its reach. This may lead to absurd results: a State Party may fully implement Article 16 and still be the seat of a treasure hunting corporation run by nationals of non-States Parties. Unless the State Party introduces legislation covering corporations, it will be unable to enforce the Convention's standards if the corporation operates in areas outside its territorial jurisdiction and does not use ships flying its flag. Hence, an indispensable precondition for a robust and effective protection scheme is the extension of the measures required under Article 16 to legal persons—at least until the Convention is ratified and fully implemented by a large majority of States.Footnote 197 Absent (almost) global adherence to the Convention, the inclusion of corporations within the scope of implementing measures can close the gaps in the protective regime that persist due to a lack of action by non-States Parties.
The idea of extending the measures required under Article 16 to corporations is neither new nor far-fetched, as evidenced by two UNESCO documents: Article A of the UNESCO 2000 Draft included measures aimed at legal persons of the nationality of a State Party;Footnote 198 and suggestion No. 22 of the UNESCO Model for a National Act on the Protection of Cultural Heritage foresees an extensive sanctions regime for conduct of natural persons and corporations.Footnote 199
At least three avenues could be pursued to achieve such an extension. First, the word ‘nationals’ in Article 16 could be interpreted as encompassing both natural and legal persons. While various treaties include corporations in the definition of the term ‘national’,Footnote 200 this does not seem to be the case for the UNESCO Convention. In fact, apart from above-mentioned draft Article A, there is—to the authors’ best knowledge—nothing to be found in the travaux that supports such a reading.Footnote 201 Second, Article 16 could be amended to include commercial entities; however, the Convention's amendment procedure is rather cumbersomeFootnote 202 and its reopening unlikely at this stage. The third and most realistic path is to convince States Parties to use their sovereign powers to extend implementing measures to corporations. That is, to draft definitions of offences which apply to natural and legal persons alike, to include sanctions suitable for both types of offenders, and to establish jurisdiction over corporations incorporated in their territory.
Corporate treasure hunters tend to take advantage of international disparities by setting up headquarters in wealthy States with favourable legal and economic conditions in order to exploit underwater cultural heritage in less prosperous regions of the world.Footnote 203 By extending implementing measures to include corporations, States Parties, especially those of the global North, could put an end to such practices. Admittedly, the creation of a liability framework for corporate treasure hunters runs the risk of them transferring their seat to more permissive States. Yet other considerations—such as the benefits of a stable business environment—might dissuade corporations from taking this step. Hence, there is at least a chance that corporations might take the high road and bring their business models in line with the Convention.
VI. Conclusion
This comprehensive analysis of Article 16 has yielded clear results. As submitted at the outset, the provision obliges States Parties to take a triad of legislative measures under their domestic law: they must adopt prohibitions in order to protect underwater cultural heritage, make breaches liable to criminal sanctions, and establish their jurisdiction over extraterritorial acts committed by their nationals and persons on board vessels flying their flag. It is this combination of measures of deterrence coupled with a worldwide scope of application that makes Article 16 a key provision of the enforcement regime and of the UNESCO Convention as a whole. Implemented in such a robust way, it has the potential to protect the underwater cultural heritage of the many from the misconduct of a few.
