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The entry into force of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage

Aegean Review of the Law of the Sea and Maritime Law

Abstract

On 2 January 2009 the Convention on the Protection of the Underwater Cultural Heritage (CPUCH; Paris, 2001) entered into force for the first 20 States that decided to become parties to it. The CPUCH can be seen as a reasonable defence against the disastrous regime on underwater cultural heritage set forth by the United Nations Convention on the Law of the Sea (UNCLOS; Montego Bay, 1982). In fact, the UNCLOS allows for a “freedom-of-fishing” regime where a State which has a cultural link with the objects cannot prevent the pillage of its historical heritage. The picture is worsened by the reference in the UNCLOS to “the law of salvage and other rules of admiralty” which have been intended by United States courts as meaning the application of a first-come-first-served approach in many cases relating to the underwater cultural heritage. The basic defensive tools included in the CPUCH are the elimination of the undesirable effects of the law of salvage and finds, the exclusion of a first-come-first-served approach for the heritage found on the continental shelf, and the strengthening of regional cooperation.

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Notes

  1. On this convention see O’Keefe (2002), Boesten (2002), Camarda and Scovazzi (2002), Garabello and Scovazzi (2003, p. 89), Aznar Gómez (2004), Garabello (2004), and Dromgoole (2006).

  2. As on May 2009 the parties to the CPUCH were 25, namely Panama, Bulgaria, Croatia, Spain, Libya, Nigeria, Lithuania, Mexico, Paraguay, Portugal, Ecuador, Ukraine, Lebanon, Saint Lucia, Romania, Cambodia, Cuba, Montenegro, Slovenia, Barbados, Grenada, Tunisia, Slovakia, Albania, Bosnia and Herzegovina.

  3. Namely, the Russian Federation, Norway, Turkey and Venezuela. The United States, that was not entitled to vote (not being a member of UNESCO at that time), regretted that it could not accept the CPUCH because of objections to several key provisions relating to jurisdiction, the reporting scheme, warships and the relationship of the convention to the United Nations Convention on the Law of the Sea. The negative vote of Turkey and Venezuela was due to disagreement on the CPUCH provisions on peaceful settlement of disputes (Art. 25) and reservations (Art. 30).

  4. Namely, Brazil, Czech Republic, Colombia, France, Germany, Greece, Iceland, Israel, Guinea-Bissau, Netherlands, Paraguay, Sweden, Switzerland, United Kingdom, Uruguay. The abstentions were based on different, and sometimes opposite, reasons. For instance, the Greek delegate stated inter alia that “despite the fact that throughout the negotiations at UNESCO the majority of governmental experts were in favour of extending coastal rights over underwater cultural heritage on the continental shelf, the Draft Convention does not even mention the term ‘coastal State’”. According to the French delegate, “la France est en désaccord avec le projet sur deux points précis: le statut des navires d’Etat et les droits de juridiction, dont nous considérons qu’ils sont incompatibles avec les dispositions de la Convention sur le droit de la mer”.

  5. On the UNCLOS regime of underwater cultural heritage see Migliorino (1984) and Strati (1995).

  6. I.C.J., Reports, 1969, para. 85 of the judgment. According to the arbitral award rendered on 16 November 1957 in the Lake Lanoux case (France vs. Spain), the obligations to negotiate an agreement “take very diverse forms and have a scope which varies according to the manner in which they are defined and according to the procedures intended for their execution; but the reality of the obligations thus undertaken is incontestable and sanctions can be applied in the event, for example, of unjustified breaking off of the discussions, abnormal delays, disregard of the agreed procedures, systematic refusals to take into consideration adverse proposals of interests, and, more generally, in cases of violation of the rules of good faith” (International Law Reports, 1957, p. 128).

  7. The imprecise wording of Art. 149 gives rise to some doubts. Must the State of historical origin be at the same time also the State of archaeological origin in order to get preferential rights? What is the meaning of the word “country” in the expression “State or country of origin”? Why is “country” not used in the cases of cultural, historical and archaeological origin?

  8. The reference to the exclusive economic zone seems redundant (and will be hereinafter omitted), as the objects of archaeological or historical nature are more likely to lie on the seabed than to float in the waters of the exclusive economic zone. However, during the negotiations for the CPUCH, the highly hypothetical example was made of a bottle containing a message by a national hero, which is later found floating in the exclusive economic zone. Embarking on another effort of imagination, one could also think of a little artefact which has been eaten by a fish or cetacean swimming in the exclusive economic zone.

  9. Or the 12-mile limit of the territorial sea, if the coastal State has not established an archaeological contiguous zone.

  10. In 1956 the International Law Commission made the following remark in the commentary to the relevant provision of the draft convention on the continental shelf: “it is clearly understood that the rights of the coastal State do not cover objects such as wrecked ships and their cargos (including bullion) lying on the seabed or covered by the sand and the subsoil” (UN, Yearbook of the International Law Commission, 1956, II, p. 298).

  11. It seems too difficult to assume that archaeological and historical objects which are found embedded in the sand or encrusted with sedentary living organisms can be likened to natural resources. But this approach is followed in the Abandoned Shipwreck Act, adopted by the United States on 1987, and is implied in Art. 10, para. 2, CPUCH (see infra, para. 3.B).

  12. Art. 59 of the UNCLOS (“Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction”), that is the provision on the so-called residual rights in the exclusive economic zone, could be taken into consideration as a means to fill the vacuum: “in cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole”.

  13. In this regard, the problems posed by flags of convenience must be taken into consideration.

  14. UN doc. A/CONF.62/C.2/Informal Meeting/43/Rev. 3 of 27 March 1980.

  15. Luckily enough, Art. 149 of the UNCLOS does not subject the heritage found in the Area to salvage law and other rules of admiralty.

  16. It is difficult to interpret Art. 303, para. 3, as referred to cases in which archaeological and historical objects are not involved.

  17. International Legal Materials, 1999, p. 807.

  18. “In recent decades treasure salvage has been added as an element of marine salvage under admiralty law. From an archaeological perspective, salvage law is a wholly inappropriate legal regime for treating underwater cultural heritage. Salvage law regards objects primarily as property with commercial value and rewards its recovery, regardless of its importance and value as cultural heritage. It encourages private-sector commercial recovery efforts, and is incapable of ensuring the adequate protection of underwater cultural heritage for the benefit of mankind as a whole” (Archaeological Institute of America, Comments on the UNESCO/UN Division on Ocean Affairs and the Law of the Sea Draft Convention on the Protection of the Underwater Cultural Heritage, reproduced in Prott and Srong 1999, p. 176). For various views on the application of salvage law to the underwater cultural heritage see Throckmorton (1990, p. 181), Nafziger (2003, p. 251), Scovazzi (2003, p. 19), and Hoffmann (2004, p 297).

  19. “The regimes for underwater archaeology resulting from the Convention are complicated and not complete” (Nordquist et al. 1989, p. 161).

  20. The fact that the UNCLOS regime is far from being satisfactory seems implicitly acknowledged in the declaration made by the Netherlands on June 28 1996 on ratification of the UNCLOS: “Jurisdiction over objects of an archaeological and historical nature found at sea is limited to articles 149 and 303 of the Convention. The Kingdom of the Netherlands does however consider that there may be a need to further develop, in international cooperation, the international law on the protection of the underwater cultural heritage”.

  21. Under para. 3, Art. 303 does not affect salvage law and other rules of admiralty. Under para. 4, Art. 303 is without prejudice to other international agreements regarding the protection of objects of an archaeological and historical nature. If there is a conflict between salvage law and an international agreement covered by para. 4, which one would prevail? Art. 303 is entirely silent about this question which reflects another contradiction included in this provision.

  22. There are not many specific agreements relating to underwater culturage heritage. See the 1972 agreement between Australia and the Netherlands concerning old Dutch shipwrecks, the 1989 exchange of notes between South Africa and the United Kingdom on the wreck of the Birkenhead, the 1989 agreement between France and the United States on the wreck of the Alabama, the 1997 memorandum of understanding between Canada and the United Kingdom on the exploration, recovery and disposition of the HMS Erebus and HMS Terror, the 2001 agreement between France and the United States on the wreck of the La Belle. A multilateral agreement was concluded in 2000 by Canada, France, the United Kingdom and the United States on the wreck of the Titanic. But it has not yet entered into force.

  23. See Final Report of the Third Meeting of Governmental Experts on the Draft Convention on the Protection of Underwater Cultural Heritage, UNESCO doc. CLT-2000/CONF.201/CLD.7, para. 4 of Annex 1 (hereinafter Final Report).

  24. UNESCO doc. WG1-NP3 of 6 July 2000, reproduced also in Final Report, quoted supra (note 23).

  25. To avoid the ghost of jurisdiction (horror jurisdictionis), the coastal State was not called “coastal State”, but was given a special responsibility as a coordinating State under the following wording: “Taking into account its interest in avoiding unjustified interference with the exercise of sovereign rights and jurisdiction in its exclusive economic zone or on its continental shelf in accordance with international law, a State Party has a special responsibility for the co-ordination of activities directed at the underwater cultural heritage and for the protection of any discoveries made in its exclusive economic zone or on its continental shelf” (Art. D, para. 2, of the tentative proposals of the chairman of Working Group 1).

  26. UNESCO doc. WG.1/NP.1 of 5 July 2000, reproduced also in Final Report, quoted supra (note 23).

  27. The expression “coastal State” was not used in the non-paper either.

  28. Under Arts. 11 and 12 of the CPUCH a similar, though not identical, three-step procedure applies to the underwater cultural heritage found in the Area.

  29. For obvious reasons, information is limited to the competent authorities of States Parties: “Information shared between States Parties, or between UNESCO and States Parties, regarding the discovery or location of underwater cultural heritage shall, to the extent compatible with their national legislation, be kept confidential and reserved to competent authorities of States Parties as long as the disclosure of such information might endanger or otherwise put at risk the preservation of such underwater cultural heritage” (Art. 19, para. 3).

  30. On depositing its instrument of ratification, acceptance, approval or accession, a State Party shall declare the manner in which reports will be transmitted (Art. 9, para. 2).

  31. The ambiguity lies in the fact that the “State Party” in question could also be understood as the coastal State.

  32. A draft resolution submitted by the Russian Federation and the United Kingdom and endorsed by the United States tried to clarify the point by proposing the following wording: “When the discovery or activity is located in the exclusive economic zone or on the continental shelf of another State Party: (i) a State Party shall require its national or the master of a vessel flying its flag to report such discovery or activity to it and to that other State Party; (ii) alternatively, a State Party shall require its national or the master of a vessel flying its flag to report such discovery or activity to it and shall ensure the rapid and effective transmission of such reports to all other States Parties” (UNESCO doc. 31 C/COM.IV/DR.5 of 26 October 2001). The draft resolution was not adopted.

  33. Here and everywhere else, the CPUCH avoids the words “coastal State” (because of the already mentioned horror jurisdictionis) and chooses other expressions, such as the “State Party in whose exclusive economic zone or on whose continental shelf” the activity or the discovery is located.

  34. No attempt was made to define what is a “verifiable link”.

  35. See supra, note 33.

  36. The difficulty of regulating fishing by vessels flying flags of convenience and engaging in so-called IUU (illegal, unreported, unregulated) fishing demonstrates this risk.

  37. On the contrary, the draft resolution submitted by the Russian Federation and the United Kingdom and endorsed by the United States (supra, note 32) subordinated the right to adopt measures to prevent immediate danger to a specific condition: “(…) but in any event prompt assistance shall be requested from the State Party that is the flag State of the vessel engaged in such activities”.

  38. The majority of States participating in the CPUCH negotiations rejected the assumption, put forward by the United States on the basis of some judicial decisions taken in this country, that the only possibility for the coastal State to protect the underwater cultural heritage was based on its right to prevent interferences with its sovereign rights or jurisdiction as provided for by international law. This assumption is in principle unacceptable, as it implies that oysters and other equally respectable living resources are more important than the cultural heritage. It is also dangerous, as it can be interpreted in the sense that the salvor can retain the wreck after having given all the oysters to the coastal State!

  39. Under Art. 6, para. 3, the CPUCH “shall not alter the rights and obligations of States Parties regarding the protection of sunken vessels, arising from other bilateral, regional or other multilateral agreements concluded before its adoption, and, in particular, those that are in conformity with the purposes of” the CPUCH.

  40. Text in Garabello and Scovazzi (2003, p. 274).

  41. This suggestion was followed by the convening of an intergovernmental round table held in Siracusa on 5 April 2003, where Italy presented a draft regional agreement: see Scovazzi (2004, p. 157). No further developments have occurred so far.

  42. Oxman (2006, p. 840).

  43. For instance, in the case of the UNCLOS regimes on straight baselines, on passage through the territorial sea of ships carrying dangerous substances and on military exercises in the exclusive economic zone of other States.

  44. For instance, in the case of the delimitation of the exclusive economic zone or the continental shelf between adjacent or opposite States and in the case of historic waters.

  45. For instance, in the case of the underwater cultural heritage. In the future, this may happen also in the case of bioprospecting beyond the limits of national jurisdiction.

  46. See the Presidential Proclamation concerning the policy of the United States with respect to the natural resources of the subsoil and seabed of the continental shelf, adopted on 28 September 1945 (the so-called Truman Proclamation).

  47. “Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under international law, including the United Nations Convention on the Law of the Sea. This Convention shall be interpreted and applied in the context of and in a manner consistent with international law, including the United Nations Convention on the Law of the Sea”.

  48. In fact, the CPUCH has been criticized also for the regime that Art. 7, para. 3, provides for State vessels and aircraft found in the territorial sea of a State different from the flag State. On this question see Scovazzi (2006, p. 400).

  49. See, however, supra, para. 2, g, where the effects of Art. 303, para. 4, UNCLOS are taken in consideration.

  50. The same approach is repeated in Resolutions 61/222, 62/215 and 63/111, on “Oceans and Law of the Sea”, adopted by the General Assembly in 2006, 2007 and 2008.

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Correspondence to Tullio Scovazzi.

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Scovazzi, T. The entry into force of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage. Aegean Rev Law Sea 1, 19–36 (2010). https://doi.org/10.1007/s12180-009-0001-7

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