Maritime Wrecks: Where the Lex Ferenda of Underwater Cultural Heritage Collides with the Lex Lata of the Law of the Sea Convention

Abstract

This study sets out what is to be understood as a ‘maritime wreck’, then considers how this concept relates to both the lex lata of the 1982 Law of the Sea Convention and the lex ferenda of the 1994 draft Convention for the Protection of the Underwater Cultural Heritage. Through this examination, it becomes apparent that the 1994 draft Convention is flawed to the extent that it prejudices the rights of land-locked and geographically disadvantaged States by calling for the establishment of a “cultural heritage zone” extending to the outer limit of the continental shelf of coastal States thus challenging the very structure of the Law of the Sea Convention. After having considered these observations, consideration is given as to how the 1994 draft Convention could be brought into line with the multilateral framework established by the Law of the Sea Convention, both from the perspective of terminology and substance. Such an exercise ensures a comprehensible regime for dealing with maritime wrecks and would facilitate State acquiescence in being bound by a treaty that protects objects of an archaeological and historical nature.