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Authors

Jason R. Harris

Document Type

Article

Abstract

On January 19, 2001, in the closing hours of his presidency, William J. Clinton issued the following statement entitled "United States Policy for the Protection of Sunken Warships:" Thousands of United States government vessels, aircraft and spacecraft ("State craft"), as well as similar State craft of foreign nations, lie within, and in waters beyond, the territorial sea and contiguous zone. Because of recent advances in science and technology, many of these sunken Government vessels, aircraft, and spacecraft have become accessible to salvors, treasure hunters, and others. The unauthorized disturbance or recovery of these sunken State craft and any remains of their crews and passengers is a growing concern both within the United States and internationally. In addition to deserving treatment as gravesites, these sunken State craft may contain objects of a sensitive national security, archaeological or historical nature. They often also contain unexploded ordnance that could pose a danger to human health and the marine environment if disturbed, or other substances, including fuel oil and other hazardous liquids, that likewise pose a serious threat to human health and the marine environment if released. I believe that the United States policy should be clearly stated to meet this growing concern. Pursuant to the property clause of Article IV of the Constitution, the United States retains title indefinitely to its sunken State craft unless title has been abandoned or transferred in the manner Congress authorized or directed. The United States recognizes the rule of international law that title to foreign sunken State craft may be transferred or abandoned only in accordance with the law of the foreign flag State. Further, the United States recognizes that title to a United States or foreign sunken State craft, wherever located, is not extinguished by passage of time, regardless of when such sunken State craft was lost at sea. International law encourages nations to preserve objects of maritime heritage wherever located for the benefit of the public. Those who would engage in unauthorized activities directed at sunken State craft are advised that disturbance or recovery of such craft should not occur without the express permission of the sovereign, and should only be conducted in accordance with professional scientific standards and with the utmost respect for any human remains. The United States will use its authority to protect and preserve sunken State craft of the United States and other nations, whether located in the waters of the United States, a foreign nation, or in international waters. The Statement appears to affirm the opinion in the case of Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels. The court in Sea Hunt held that Spain did not abandon (either expressly or by implication) title to two warships, the La Galga and the Juno, which sank in U.S. waters in 1750 and 1802, respectively. Since the Judicial Branch tends to defer to the Executive Branch on international policy issues, it was not surprising that certiorari was denied. The Statement seeks to protect state craft only, thereby inherently making a distinction between state and non-state craft. Although there are particular reasons to protect warships, some of which are addressed by the Statement, not all of the rationales offered in the Statement justify the distinction between State and non-State vessels. The Statement attempts to protect sunken warships by stating they should be given "deserving treatment as gravesites," as objects of "archaeological or historical nature" and to encourage the protection of "maritime heritage." These explanations alone are not unique to warships. This paper will discuss reasons to treat the gravesites of military personnel aboard warships differently than civilian, non-warship gravesites. Until recently, the United States has occasionally allowed implied abandonment to be a sufficient justification to permit salvors to exploit and deface military gravesites. Yet with the advent of Sea Hunt and the Statement, both of which attempt to prevent such salvage attempts, the need arises for a more well-grounded explanation as to why there is a unique interest in protecting warships absent express abandonment by the nation of origin. While the Statement appears to be backed by a military-based policy decision, it should be questioned whether the United States has "shot itself in the foot" by making the Statement. Since it is generally a leader in developing the most extensive technological research capabilities in deep sea research, the United States must certainly have considered that the Statement could be read so as to prevent the United States from benefitting from salvaging other nations' warship wrecks as well. Nonetheless, it may be assumed that the United States' interest in protecting its warfare technology outweighs its interest in discovering the technology of other nations. The primary purpose of this paper is to provide a sufficient legal and historical basis upon which the United States may base its decision to protect sunken warships containing the remains of deceased soldiers as military gravesites at sea. Section II describes the legal context and climate regulating activities relating to sunken warships. Section IM of this paper will first focus on the unique position that soldiers and sailors aboard warships hold in states' interests, thus rationalizing the need for State protection. Criminal, tort, and property law arguments will be cited as potential devices by which the United States may protect and enforce its interests in the sunken warship and its contents, including deceased soldiers. Such legal devices become critical when considering the cultural necessity and symbolism related to the sinking of warships and the death of the soldiers aboard. Next, to further understand and justify the unique status of "warriors," the historical and modem culture of soldiers will be examined. Finally, the international practices recognizing an obligation to attach preferential protection to state vessels based on the concept of sovereign immunity, while a significant issue, is reserved for alternative forums.

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