Abstract
This article examines three main bodies of law that apply to the discovery of Her Majesty’s Ships Erebus and Terror. These ships set sail from England in 1845, became trapped in ice in what is now the Canadian Arctic Archipelago, and were not re-discovered until 2014 and 2016. Public international law is relevant to the inquiry insofar as this body of law deals with immunity claims with respect to warships and state owned ships and property, and also establishes the rights of the coastal state with respect to the various maritime zones and activities within those zones. The UNESCO Convention of 2001 on the Protection of the Underwater Cultural Heritage is also relevant when considering the rights and obligations of states with respect to sunken vessels. In addition to the general body of public international law, the article also examines three bilateral agreements between the United Kingdom of Great Britain and Northern Ireland and Canada with respect to the wrecks. These agreements—part treaty, part private law arrangements—form a second specialized body of relevant law. The final part of the paper examines how the status of the vessels is also governed by the terms of the Nunavut Land Claims Agreement between Canada and the Inuit of Nunavut, the source of the third body of relevant laws.
Highlights
Her Majesty’s Ships Erebus and Terror set sail on May 19, 1845, from the port of Greenhithe, on the estuary of the Thames, England
The discovery, celebrated for many reasons, serves to bring into sharp focus the question of which law or laws are relevant with respect to issues such as the protection and ownership of the vessels and the wreck sites. This turns out to be a more complicated question than might be expected by a general observer, or even by a lawyer with general training in domestic law. This is because the resolution of the legal issues associated with the ownership of, and responsibility for, these two shipwrecks involves questions relating to different normative orders: (1) public international law; (2) the terms of specific agreements relating to the wrecks between the United Kingdom (UK) and Canada whether operating in public international law or private law; and (3) Canadian law, including the terms of the Nunavut Land Claims Agreement between Canada and the Inuit of Nunavut,[7] as well as federal laws protecting historic and cultural sites.This article has the modest goal of attempting to provide a descriptive account of these bodies of relevant law and takes these three bodies of law as its outline
The general rules of international law confirm that, until determined or agreed otherwise, the United Kingdom continues as the owner of the Erebus and Terror and continues to be able to claim immunity from the application of Canada’s laws to those vessels
Summary
Her Majesty’s Ships Erebus and Terror set sail on May 19, 1845, from the port of Greenhithe, on the estuary of the Thames, England. The discovery, celebrated for many reasons, serves to bring into sharp focus the question of which law or laws (including different systems of law) are relevant with respect to issues such as the protection and ownership of the vessels and the wreck sites This turns out to be a more complicated question than might be expected by a general observer, or even by a lawyer with general training in domestic law. This is because the resolution of the legal issues associated with the ownership of, and responsibility for, these two shipwrecks involves questions relating to different normative orders: (1) public international law; (2) the terms of specific agreements relating to the wrecks between the United Kingdom (UK) and Canada whether operating in public international law or private law; and (3) Canadian law, including the terms of the Nunavut Land Claims Agreement between Canada and the Inuit of Nunavut,[7] as well as federal laws protecting historic and cultural sites.This article has the modest goal of attempting to provide a descriptive account of these bodies of relevant law and takes these three bodies of law as its outline
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