INTERNATIONAL ANDNATIONAL LAWSRELATING TOARCHAEOLOGYUNDERWATER 47
can regulate activities directed at underwater cultural
heritage, while beyond that, no state has the exclusive right
to regulate activities directed at the underwater cultural
heritage. This does not mean that a state has no powers
in these zones. Under international law, all states have juris-
diction over nationals of that state, and over vessels that
are registered in that state and fly that state’s national
flag. A state can therefore adopt laws regulating the con-
duct of its vessels and nationals in international maritime
zones. This could apply to underwater archaeology. A state
could not, however, prevent other nationals and vessels
flying foreign flags from interfering with the underwater
cultural heritage in these zones.
It is therefore important to determine in which zone
an underwater cultural heritage site is situated in order
to determine which state has jurisdiction. Having done so,
it is then possible to determine what legal regime the regu-
lating state applies. While each state is unique and with
unique legal systems, a number of states have agreed that
in relation to certain activities in international waters, a
common regime will be applied. Although there is no com-
mon regime in relation to underwater cultural heritage,
there is a common regime in relation to salvage law,
which may be applied to the underwater cultural heritage.
INTERNATIONAL SALVAGE LAW
Salvage law has a long history, which begins in the
Rhodian Maritime Code of 900 bc. Since then, it has
developed relatively uniformly in most maritime nations.
To ensure that similar laws are applied to salvage opera-
tions that take place in international waters, a number of
states entered into an international Salvage Convention in
1910, which was subsequently updated in 1989. These states
have therefore agreed that certain uniform principles
will apply. Under this regime, salvage is defined as ‘the
compensation allowed to persons by whose voluntary
assistance a ship at sea or her cargo or both have been
saved in whole or in part from impending sea peril, or in
recovering such property from actual peril or loss, as in
cases of shipwreck, derelict or recapture’. The policies
that form the foundation of salvage law are to encourage
individuals to voluntarily save lives and property at sea
and to return such saved property to its owner. By so
doing, the salvor ensures that valuable commercial goods
are not lost and are able to re-enter the stream of com-
merce. Before salvage law may be applied, three criteria
must be satisfied:
1 property in marine peril on navigable waters,
2 voluntary or contractual efforts to rescue the prop-
erty; and
3 partial or total success.Once these three criteria are satisfied, the court will grant
a salvage award. In assessing the salvage award, the court
will take into account a number of factors, such as:- the salved value of the vessel and other property;
- the measure of success obtained by the salvor; and
- the skill and efforts of the salvors in salving the ves-
sel and other property.
It does not, however, take into account the extent to
which appropriate archaeological techniques have been used
in the excavation and recovery of historic wreck.UNDERWATER CULTURAL HERITAGE AND
SALVAGE LAW
What should be obvious about this salvage regime is
that it is designed to save vessels and other property that
are in immediate marine peril. Many would argue that
it is not appropriate to consider underwater cultural her-
itage, which has been submerged for a long time and
reached a state of near equilibrium with the marine
environment, as being in ‘marine peril’. This argument
was offered in a number of court cases in the US involv-
ing the salvage of historic wreck, only to be mostly
rejected by the US Admiralty Courts. The US therefore
considers salvage law to be appropriate to the recovery of
underwater cultural heritage. Not all states, however,
agree, and a number, such as Canada, the Republic of
Ireland and France, will not apply salvage law to under-
water cultural heritage.
The 1989 Salvage Convention makes no specific men-
tion of sunken vessels or their cargo in the definition
of ‘vessel’ or ‘property’. During negotiations, the question
of salvage of underwater cultural heritage was raised.
France and Spain attempted to have underwater cultural
heritage excluded from the Convention, but were only
partially successful. Article 30(l)(d) of the 1989 Convention
allows a state to enter a reservation which reserves the right
not to apply the Convention ‘when the property involved
is maritime cultural property of pre-historic, archae-
ological or historic interest and is situated on the sea-bed’.
The 1989 Salvage Convention therefore does apply to
underwater cultural heritage unless a state specifically
chooses not to apply it. Not every country that enters
a reservation will refrain from applying the Convention
to the salvage of underwater cultural heritage. The UK,
for example, entered a reservation in accordance with
article 30(l)(d) which gave it the right to enter a re-
servation in the future. As such, the reservation does
nothing more than allow the UK to enter a reservation
not applying the Convention at some future date. France,
on the other hand, has entered such a reservation, and