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Musings: The Titanic Wreckage, UNCLOS And Billionaires

Updated: Jun 6

In June 2023, the news of the failed OceanGate submersible Titanic dive tragedy was all over the news and in nearly every conversation on and off social media. The submersible operated by OceanGate Expeditions on its way to the Titanic wreckage site lost contact with its mother ship off Newfoundland approximately one hour and 45 minutes into its descent. Unfortunately, all five individuals aboard the submersible (who paid a whopping $250,000 per head) perished in the incident. After the disaster, OceanGate, suspended operations.

Then, on May 27, 2024, the NY Post reported that "Ohio billionaire Larry Connor plans to take $20M sub to Titanic site to prove industry’s safer after OceanGate implosion". A quote from the publication states that "Real estate investor Larry Connor, of Dayton, said he and Triton Submarines co-founder Patrick Lahey will plunge more than 12,400 feet (2.3 miles) to the shipwreck site in a two-person submersible".

There is surely something tempting about going down such depth for those who can afford it but for the rest of us, we may not clearly understand the fascination with the remains of the 111-year-old wreck of Titanic and why it will not be left to rest. Some have suggested using the money "wasted" on this expedition to solve world hunger or donate to a cause but that is a discussion for another day.

Regulations to the rescue?

The conversation that followed the news of another billionaire risking the footsteps of the OceanGate CEO, Stockton Rush is the focus of this article, particularly the conversation that had people questioning if the Province of Newfoundland or the Government of Canada could discourage people from attempting to plunge more than 12,400 feet down the Atlantic in a bid to catch a glimpse of the Titanic wreck. A post on X suggested that the province of Newfoundland urgently requires regulations stipulating that individuals engaging in such activities must possess adequate insurance to cover potential rescue operations. Alternatively, it would be preferable to designate the Titanic site as a sacred graveyard and refrain from further disturbance.

The thing with making regulations about what should or should not be allowed on and within certain depths of the international waters is that it gets more complicated as you dig further. Maybe, if this was a wreckage in the high sea, probably it would be a different conversation. Besides, access to the wreck is an allegedly a "one company" venture. The "RMS Titanic Inc" holds a distinctive status as the sole entity permitted by law to salvage items from the wreckage, as ststed on the website ;

"RMS Titanic, Inc. was granted salvor-in-possession rights to the wreck of Titanic by a United States federal court in 1994 and is the only company permitted by law to recover artifacts from the wreck site of Titanic"

The Business Insider describes it as a "cottage industry dedicated to exploiting the remains of the RMS Titanic for profit" - well, no thanks to capitalism but this remains a disputed and alleged conclusion baout the goals of the company. According to Business Insider,

"OceanGate was required to certify to a federal judge that its expeditions would not infringe on that right. OceanGate also has links with two people who have deep ties to RMS Titanic Inc. as the company is the only entity legally allowed to salvage items from the wreckage"

R.M.S Titanic - International Agreement

However, there is an international Agreement open to all states regarding the protection of the shipwreck of the RMS Titanic. The treaty was proposed following Congress's suggestion in the R.M.S. Titanic Maritime Memorial Act of 1986. Its aim is to combat looting, unwanted salvage, and other detrimental activities targeting the R.M.S. Titanic, thereby enhancing protection of the wreck site. The international law dubbed the Consolidated Appropriations Act, 2017 (Public Law 115-31) was signed into law on May 5, 2017, provides some legal backing to who can assess the wreckage site.

The Agreement was negotiated among representatives of Canada, France, the United Kingdom, and the United States, reaching a conclusion on January 5, 2000. The United Kingdom officially ratified the Agreement on November 6, 2003, putting it into effect through Order 2003 No. 2496. Meanwhile, the United States signed the Agreement on June 18, 2004, pending its "acceptance," which implies that the U.S. would need to pass domestic legislation authorizing the fulfillment of the Agreement's obligations before officially becoming a party to it.

The U.S. enacted the necessary domestic implementing legislation on May 5, 2017, with the Consolidated Appropriations Act, 2017 (Public Law 115-31). According to Section 113 of the Act provides that:

“No person shall conduct any research, exploration, salvage, or other activity that would physically alter or disturb the wreck or wreck site of the RMS Titanic unless authorized by the Secretary of Commerce per the provisions of the Agreement Concerning the Shipwrecked Vessel RMS Titanic. The Secretary of Commerce shall take appropriate actions to carry out this section consistent with the Agreement.”

It is also important to mention that the 100th anniversary of the Titanic's sinking in 2012 brought it under UNESCO's protective umbrella. The 2001 underwater heritage convention by UNESCO automatically safeguards objects submerged for a century, and since the Titanic rests in international waters (as against the high seas), it qualified for protection.

International waters vs. high seas: While "international waters" and "high seas" are often used the same way, there's a subtle legal difference. "High seas" strictly refers to ocean areas outside any country's control. "International waters" is broader, encompassing all ocean zones where international law applies.

Something Called UNCLOS and ABNJ

Even though the Titanic wreckage is located in "international waters" which may not be subject to the discourse of "no man's land" as the open seas, the context of UNCLOS and ABNJ remains relevant. So, i digress a little.

For those who do not already know there is already a regulation called the United Nations Conference on the Law of the Sea (UNCLOS). The legal foundation for international ocean governance regimes and agreements for marine conservation is established by the United Nations Conference on Law of the Sea. UNCLOS marked the beginning of exclusive sovereign nation-state rights for exploiting marine resources over 200 nautical miles of Exclusive Economic Zones (EEZ) off its coast.The seas and oceans are segmented into separate maritime zones, each governed by its own legal framework with unique implications.

Conflicts may emerge when the state is acknowledged as the sole legal proprietor of the sea within its jurisdiction. As the legal proprietor, it holds the responsibility and discretion to decide on the issuance of licenses and permissions for the utilization and safeguarding of marine resources. According to UNCLOS, the sea is divided into 4 parts: Territorial waters, Contiguous Zone, Exclusive Economic Zone (EEZ), and Continental Shelf each governed by different institutions and regimes.

However, UNCLOS falls short in detailing specific mechanisms for complete implementation. The historical lack of a robust international legislative body with enforceable laws has limited the potential for imposing sanctions, thereby resulting in irregularities in laws to protect the open sea. The open resource notion has been worsened by the contents of UNCLOS and extreme marine resource exploitation in Areas Beyond National Jurisdiction (ABNJ).

Another complication within the UNCLOS legal framework arises from the fact that the 200-nautical-mile border from the coast does not form a straight-line delineation to the other end of the continental shelf.

This discrepancy occurs because the margin extends into the deep ocean, leading to disputes over ownership of the deep seabed as claimed by coastal nations.

Article 1 (1) under the UNCLOS convention states that deep sea exploration “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”. Furthermore, in the preamble of the convention, it is mentioned that “subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States”.

The designation of the deep seabed as the "common heritage of mankind" poses a significant risk to the High Seas. This classification treats the High Seas and its resources as a shared pool within an area devoid of legal restrictions or clearly defined geographical boundaries. The 200-nautical-mile agreement encompasses nearly two-thirds of the world's oceans, known as areas beyond national jurisdiction (ABNJ), which extend to depths exceeding 10 kilometers and account for 95% of the Earth's total habitat volume . Consequently, these ABNJ regions face mounting pressure resulting in damage and loss to the seabed ecosystem.

The high (open) sea conjures an image of an ultimate frontier, so distant and difficult to access that people have only had occasional glimpses of this remarkable part of the planet. Imagine that nearly two-thirds of the world's oceans accounting for 95% of the Earth's total habitat volume is an area with no jurisdiction - that translates to a large wilderness where many ship wreckages like the Titanic remains. These areas are also prone to indscriminate dumping  of hazardous materials, resource extraction, slavery. piracy and drug trafficking, there are International treaties and conventions, such as UNCLOS that provides some legal framework for marime cooperation.

Following the implementation of UNCLOS in 1994, significant endeavors were undertaken to establish the International Tribunal for the Law of the Sea (ITLOS). ITLOS is an intergovernmental body formed under the directives of the Third UN Conference on the Law of the Sea, as per the UN Convention on the Law of the Sea, signed in Montego Bay, Jamaica, on December 10, 1982. ITLOS was officially founded on October 21, 1996, with jurisdiction that is not mandatory but rather contingent upon the consent of the involved states.

In March 2023 at the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, member states reached a historical agreement. The high seas - international waters treaty breakthrough marked a turning point for international ocean governnace. The last time such an agreement regarding international ocean governance was reached was the UNCLOS in 1982.

Who owns the Titanic wreckage?

The next question then becomes about ownership of the titanic wreckage. Eventhough, the Titanic was flying a British flag on its vogage from Southampton, England when it sank and it was headed to United States of America. While its wreckage remains off the coast of Canada, wreckage ownership could be open to public debate since more people now question why there should be any more visit to site of the wreckage; argauement being, we already seen and know enough. The ownership of the Titanic remains disputed following an effort by a US court in 2009 to decide ownership of over $100m of theTitanic's artefacts. The designer is known as Thomas Andrews died with ship.

By the time the Titanic was discovered in 1985, establishing ownership was a murky affair. The original owner, White Star Line, had been absorbed by their competitor, Cunard. The insurance companies involved, with their unknown number of underwriters, faced a tangled web of paperwork. Even if they could have untangled it, asserting ownership proved difficult. Admiralty law declared sunken vessels in international waters as unclaimed. The International agreement which gave the U.S and the U.K the legal right to determine who owns the responsbility for granting permits to those who wish to visit the wreck translates to nobody owning the ship and proof that any legal steps to disuade people from visiting the site is outside the jurisdcition of Newfoundland and Canada.

What Can Newfoundland or Anyone do?

According to NOAA, the majority of the Titanic wreckage is situated approximately 350 miles off the coast of Newfoundland. Marine explorer Robert Ballard initially discovered the wreckage in 1985 and revisited it around two decades later to examine the boat's decay. Also people going for the Titanic expedition can begin thier journey from the St. John’s Harbour in Newfoundland. It would be tempting to assume this is close to the Province of Newfoundland and some sort of regulation could carry weight from this end but the details of UNCLOS has placed major limitation on the province and Canada to enact any sort of regulation even if they wanted to. International Ocean governace is as complicated as it gets.

Newfoundland- the province lacks jurisdiction over the wreckage, as does Canada - the country, since it resides in high seas (or open seas). Canada was party to the international agreement during negotiation, it is unclear if any regulation can be enforced within the jurisdiction of Canada that can carry as much weight compared to a scenario where there is an international binding regulation beyond the authorization of the Secretary of Commerce.

The quagmire of managing access to the high seas justifies why the Titanic being considered within the Jurisdiction of International waters (where countries could protect it with some legal framework allowed under UNCLOS) could provides pointers to ways access to the wreckage can be halted (But that would be an extreme stance). The other approach could be reconsidering Canada along with U.S and the U.K as having the legal right to who can access the wreck site. On the flipside, the location of the wreckage could be reconsidered as "the high sea", which gives other actors besides national governments, a say about accessing the site but that is easier said than done because as it is, access is very limited and is beneficial to presevring what is left of the RMS Titanic, why change that?

In the end, this is me musing.

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