The State’s failure to ratify a UN treaty could lead to the plundering of our underwater cultural heritage
THERE ARE few legal constraints on international salvage companies seeking to raise valuable bullion from certain “commodity” wrecks off the Irish coastline, according to a leading maritime lawyer.
Law lecturer Dr Clive Symmons told The Irish TimesIreland's failure to ratify a Unesco treaty on underwater culture heritage and the fact many commodity wrecks are under 100 years old means the person or organisation attempting the salvage currently has no duty to notify the State of the salvage.
Dr Symmons, who is research associate at Trinity College Dublin’s law school and adjunct professor in marine law and ocean policy at NUI Galway, was commenting on plans by a US company to salvage silver bullion from two wartime wrecks off the Irish Atlantic coast.
He notes Prof Sarah Dromgoole of the University of Nottingham warned two years ago that states should co-operate as a “matter of urgency” to ensure commercial exploitation of shipwrecks met international archaeological standards.
US-based salvage company Odyssey Marine International confirmed last year it had discovered two commodity wrecks, using sidescan sonar on a remotely operated vehicle.
It has been awarded salvage tenders by the British transport department, and plans to raise the cargo this spring under an arrangement where it will retain 80 per cent of the value. The British government will retain the other 20 per cent.
The two ships are British-registered – the SS Gairsoppaand SS Mantola– with the first reported to be lying about 300 miles offshore and the second within Ireland's 200-mile limit.
The SS Gairsoppawas torpedoed and sunk by a German submarine on February 16th, 1941. It was carrying nearly 7,000 tonnes of cargo, including pig iron, tea and a large quantity of silver, when it left Calcutta for Liverpool in a convoy. En route it headed to Galway, as it was running low on fuel.
It never made it, however, as German U-Boat commander Ernst Mengersen torpedoed the ship, and then machine-gunned the steamer’s lifeboats. The sole survivor, second officer RH Ayres, was picked up in a lifeboat and later awarded an MBE.
The cargo ship is reported by Odyssey Marine International to be sitting upright in about 4,700 metres of water, some 300 miles off the west Irish coast.
The SS Mantola, which sank on February 9th, 1917, after it was torpedoed by a German submarine, is about 143 miles west-southwest of the Fastnet Rock, within the 200-mile Irish exclusive economic zone.
Seven Indian crewmen died but most of the crew survived and were brought to Bantry, Co Cork.
The Naval Service had come across Odyssey Marine Exploration's research ship Odyssey Explorerlast August. It was surveying some 25 miles west of the Blasket Islands, Co Kerry. The service informed those on board that the State should be notified on the basis it was undertaking scientific research, and should be licensed to tow a sidescan sonar in territorial waters. However, the company disputed this when contacted by The Irish Times.
Dr Symmons says the company is technically correct on several grounds. The author of Ireland and the Law of the Sea(Round Hall Sweet and Maxwell, Dublin, 2000) and editor of the recently published Selected Contemporary Issues in the Law of the Sea(Martinus Nijhoff, 2011) says that although the preliminary activities may be of a research nature, such activity is not classified as marine scientific research under the UN Convention of the Law of the Sea.
In 2001, a Unesco-inspired treaty, the Convention on the Protection of Underwater Cultural Heritage (UCH), was drawn up and came into force in January 2009, but Ireland is not among 20 states which are party to it.
Neither are the two other states associated with the two ships – Britain, as the state of registry, and the US, as the state of nationality of the salvors.
The new UN treaty stipulates that any relevant activity relating to cultural heritage at sea is not subject to the law of salvage and shall not be commercially exploited.
However, Article 4 of the treaty says salvage law may apply under certain conditions, most particularly where such activities were authorised by competent authorities.
Also, any State-owned ships are excluded from regulation under the new treaty.
“From a legal point of view, the law of salvage – as is involved in the current incident – sits uneasily with the developing international legal protection given to underwater cultural heritage,” Dr Symmons says.
The 1982 UN Convention on the Law of the Sea deals only briefly with “archaeological and historical objects” found in international waters, or within a coastal zone, he adds. “It seems that Britain was within its legal rights in unilaterally inviting and accepting a tender for salvage respecting the wreck in this case,” he says.
Irish legal interest could really only arise if the ship was on the Irish-claimed Continental Shelf zone, which extends up to 500 nautical miles from this coastline. If Ireland and other interested states were party to the new UCH treaty, an international co-operative mechanism would “potentially give rise to duties involving notification to, consultation with, and even co-ordination of, relevant activities”, he says.
However, the wrecks involved in this instance are less than 100 years old and are not covered by the UCH treaty or Ireland’s national monuments legislation, which protects shipwrecks over a century old within these waters.
Prof Dromgoole notes in the International Journal of Maritime and Coastal Law(No 25, 2010) that there was a "serious prospect" that many sites of cultural interest at sea would be exploited, subject only to "regulation by a combination of the US judicial system and market forces".
She proposes regulation under marine scientific research provisions within an amended Law of the Sea convention.
