THE 2001 UNESCO CONVENTION ON THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE

in The Italian Yearbook of International Law Online
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THE 2001 UNESCO CONVENTION ON THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE

in The Italian Yearbook of International Law Online

References

1 Hereinafter: the CPUCH. For the text see UNESCO, General Conference, 3 1 st Session, Doc. 31 C/64 of 31 October 2001. The text coincides with the draft voted and adopted on 7 July 2001 by a Group of Governmental Experts which held four meetings between 1998 and 2001. The Group was chaired by Mr. Lund of Dcnmark. Z The complicated wording of some provisions of the CPUCH (despite the good work of the Drafting Committee), is due to the many last-minute developments in a negotiation already difficult in itself and the concern that any change in the most crucial articles would have determined. 3 However, the relevance of the CPUCH is not limited to maritime waters. Any State party may declare that the Rules annexed to the CPUCH "shall apply to inland waters not of a maritime character" (Art. 28). 4 Hereinafter: the UNCLOS.

5 On the origin of the UNCLOS regime see NORDQUIST, ROSENtvE and SOHN, United Nations Convention on the Law of the Sea 1982 - A Commentary, Vol. V, Dordrecht, 1989, p. 158. They reach the following conclusion: "The regimes for underwater archaeology resulting from the Convention are complicated and not complete" (p. 161). It is not possible to quote here all the books and articles devoted to the regime of underwater cultural heritage. Suffice it to recall, in the Italian literature, the basic work by MIGLIORINO, 1l recupero degli oggetti storici ed archeologici sommersi nel diritto internazionale, Milano, 1984. 6 In this zone, which is located between the external limit of the territorial sea (12 n.m., in most cases) and 24 n.m., the coastal State may exercise control for customs, fiscal, immigration or sanitary purposes. ' Destroyed by a company holding a license for oil exploitation, for instance.

8 For example, the Law of France No. 89-874 of 1 December 1989, according to which the relevant provisions of the French legislation "sont applicables aux biens culturels maritimes situes dans une zone contigue comprise entre douze et vingt-quatre milles marins mesures a partir des lignes de base de la mer territoriale, sous reserve d'accords de delimitation avec les Etats voisins" (Art. 12). 9 It seems too eccentric 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. However, a judgment rendered on 21 December 1983 by the United States District Court, District of Maryland (case of Subaqueous Exploration and Archaeology, Ltd., and Atlantic Ship Historical Society, Inc. v. The Unidentified, Wrecked and Abandoned Vessel et al.) held that Sect. 1311 of the United States Submerged Lands Act was applicable to the wrecks of ships sunk in the second half of the 18th century (Santa Rosalea, Royal George, San Lorenzo de Escoral, Santa Clara). The Act grants to the Member States of the United States title and ownership to the natural resources in lands beneath navigable waters within the boundaries of the respective States. The Court maintained that "the remains of abandoned, two hundred year old shipwrecks, which have lain undisturbed for centuries under an undetermined amount of sand, reasonably can be characterized as natural resources for the purposes of the federal Act" (Federal Supplement, Vol. 577, p. 613).

10 Art. 59 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, should also be taken into consideration. Under Art. 59, "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". If this were the case, the CPUCH regime could be seen as the application of UNCLOS Art. 59, as far as the underwater cultural heritage within the exclusive economic zone is concerned. � � The problems posed by flags of convenience should also be taken into consideration. 12 The project was supported in part by the United States National Geographic Society, the Office of Naval Research and the J.M. Kaplan Fund. 13 In this area, which includes the Skerki bank and is located along one of the major navigational routes crossing the Mediterranean in ancient times, several archaeological discoveries of objects pertaining to the Phoenician, Greek and Roman civilizations have been made. 4 BALLARD, "High-Tech Search for Roman Shipwrecks", National Geographic, 1998, No. 4, p. 32. 15 The Times, 6 August 1997. Mr. Ballard pointed out that the objects removed from the Mediterranean "were protected by the non-profit Sea Research Foundation which would not allow their exploitation". This implies that the Sea Research Foundation is supposed to be the owner of the objects in question. Surprisingly enough, Mr. Ballard complained of the lack of rules to deter the looting of the underwater cultural heritage: "Far from being a plunderer, he said, he was worried about others who would try to loot the ancient ships with no international laws to deter them". For a

different view see BLACKMAN, "Is Maritime Archaeology on Course?", American Journal of Archaeology, 2000, p. 596: "Many of the countries of the Mediterranean seaboard support such ideas [i.e. the creation of a 200-mile cultural heritage zone], and I wonder whether it has been realized in the United States how much offense has been caused to their sensibilities by American archaeological operations in deep water in the Mediterranean". 16 RMS Titanic, Inc. v. Haver, reproduced in ILM, 1999, p. 807. 17 Decision rendered by the District Court in the Eastern District of Virginia on 23 June 1998 in the case of RMS Titanic, Inc. u The Wrecked and Abandoned Vessel (Titanic II). The decision to prohibit certain activities within a wreck-site zone on the high seas was reversed by the already mentioned Decision rendered on 24 March 1999 by the United States Court of Appeals for the 4th Circuit (cit. supra note 16). Indeed, it was difficult to reconcile the establishment of such a "wreck- site" with the principle of freedom of the high seas (unless it were to be assumed that the high seas is free until a salvor comes in!). 18 The Decision of 24 March 1999 by the United States Court of Appeals for the 4th Circuit (cit. supra note 16) erroneously attributes the nature of customary international law to a body of rules which is a part of domestic law and is applied only in a few national legal systems.

19 Under the Italian legislation (Law No. 1089 of 1 June 1939, GU No. 184 of 8 August 1939 and D.Lgs. No. 490 of 29 October 1999, GU Suppl. to No. 302 of 27 December 1999), all the objects belonging to the cultural heritage which are fortuitously found belong to the State. The finder is entitled to a reward.

20 The objects in question are more likely to lie on the scabed, that is on the continental shelf. However, the possibility that they are located in the superjacent waters cannot be totally excluded. During the negotiations, the highly hypothetical example was made of a bottle containing a

message by the Italian national hero, Mr. Giuseppe Garibaldi, which is found floating in the exclusive economic zone of a State different from Italy. 21 See the informal proposal by Cape Verde, Greece, Italy, Malta, Portugal, Tunisia and Yugoslavia (UN Doc. A/CONF.62/C.2/Infonnal Meeting/43/Rev. 3 of 27 March 1980): "The Coastal State may exercise jurisdiction, while respecting the rights of identifiable owners, over any objects of an archaeological and historical nature on or under its continental shelf for the purpose of research, recovery and protection. However, particular regard shall be paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin, in case of sale or any other disposal, resulting in the removal of such objects out of the Coastal State". 22 See, however, the declaration made by the Netherlands on 28 June 1996 upon 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". See also the declarations made by Cape Verde on 10 August 1987 and Portugal on 3 November 1997. z3 UNESCO Doc. CLT-96/CONF.202/5 of April 1998. Under Art. 5, para. 1, of the draft "States Parties shall require the notification of any discovery relating to underwater cultural heritage occurring in their exclusive economic zone or on their continental shelf'. 24 Text in Marine Policy, 1996, p. 304: "A State Party to this Convention may establish a cultural heritage zone and notify other States Parties of its action. Within this zone, the State Party shall have jurisdiction over activities affecting the underwater cultural heritage" (Art. 5, para. 1). "'Cultural heritage zone' means all the area beyond the territorial sea of the State up to the outer limit of its continental shelf as defined in accordance with relevant rules and principles of international law" (Art. 1, para. 3). 25 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.

26 UNESCO Doc. WG1-NP3 of 6 July 2000 (reproduced also in the Final Report of the Third Meeting of Governmental Experts on the Draft Convention on the Protection of Underwater Cultural Heritage, ibid.). 27 To avoid the ghost of jurisdiction (horror jurisdictionis), the coastal State was not called coastal State, but was given a special responsibility 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 ). 28 UNESCO Doc. WG.I/NP.1 of 5 July 2000, reproduced also in the Final Report of the Third Meeting of Governmental Experts, cit. supra note 25. 29 An attempt to define what a "verifiable link" means was not made. However, Art. 9, para. 5, of the CPUCH, provides that any State Party may declare its interest in being consulted on how to ensure the effective protection of the underwater cultural heritage and that "such declaration shall be based on a verifiable link, especially a cultural, historical or archaeological link, to the underwater cultural heritage concerned". 30 Again, the expression "coastal State" was not used in the "non-paper" either.

31 Under Arts. 1 I and 12 CPUCH a similar (although not identical) three-step procedure applies to the underwater cultural heritage found in the Area. 3Z For obvious reasons, the principle of transparency of information is limited to States Parties: "Information shared between States Parties, or between UNESCO and States Parties, regarding the diseovery 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). 33 Art. 9, para. 1(b). 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). � The ambiguity lies in the fact that the "State Party" in question could be understood as the coastal State. 35 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.S of 26 October 2001). 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 discovery is located.

3� The present experience of the regulation of fisheries proves the dangers posed by vessels flying flags of convenience and engaging in so-called IUU (illegal, unreported, unregulated) fishing. 3$ On the contrary, the draft resolution submitted by the Russian Federation and the United Kingdom and endorsed by the United States (cit. supra note 35) 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".

39 Under Art. 6, para. 3, the CPUCH "shall not alter the rights and obligations of State 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 oP' the CPUCH.

40 Namely, the international conference "Means for the Protection and Touristic Promotion of the Marine Cultural Heritage in the Mediterranean", held in Palermo and Siracusa, Italy, on 8-10 March 2001. For the proceedings, see CAMARDA and ScovAzzi (eds.), The Protection of the Underwater Cultural Heritage-Legal Aspects, Milano, 2002.

41 Art. 7, para. 3. This provision does not mention State vessels and aircraft found in maritime internal waters. They are consequently subject to the general regime of Art. 7, para. I: "States Parties, in the exercise of their sovereignty, have the exclusive right to regulate and authorize activities directed at underwater cultural heritage in their internal waters, archipelagic waters and territorial sea". 42 The already mentioned (see supra note 35) draft resolution submitted by the Russian Federation and the United Kingdom and endorsed by the United States proposed the following provision: "Within their internal waters, archipelagic waters and territorial sea, in the exercise of their sovereignty and in recognition of general practice among States, States Parties, with a view to cooperating on the best methods of protecting State vessels and aircraft, shall consult the flag State Party to this Convention and, if applicable, other States with a verifiable link, especially a cultural, historical or archaeological link, with respect to the discovery of such identifiable State vessels and aircraft. Such State vessels and aircraft shall not be recovered without the collaboration of the flag State, unless the vessels and aircraft have been expressly abandoned in accordance with the laws of that State". 43 See the formal statement "United States Policy for the Protection of Sunken Warships" issued in 2001 by the former US President Clinton (The White House, Office of the Press Secretary, 19 January 2001).

44 As regards the protection of underwater cultural heritage found in the exclusive economic zone or on the continental shelf see supra section 3.2. 45 Does the UNCLOS protect underwater cultural heritage or does it preserve at any cost the application of salvage law and other rules of admiralty? See supra section 3.1. "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 intcmational law, including the United Nations Convention on the Law of the Sea". 47 For example, under 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).

48 The observer delegate of the United States, who was not entitled to vote (the United States not being a Member of UNESCO), regretted that his delegation 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 UNCLOS. The negative vote of Turkey and Venezuela was based on critical remarks on the CPUCH provisions on the peaceful settlement of disputes (Art. 25) and reservations (Art. 30). All these statements were made on 29 October 2001. 49 Namely, Brazil, the Czech Republic, Colombia, France, Germany, Greece, Iceland, Israel, Guinea-Bissau, the Netherlands, Paraguay, Sweden, Switzerland, the United Kingdom, and 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 desaccord avec le projet sur deux points precis: le statut des navires d'Etat et les droits de juridiction, dont nous considerons qu'ils sont incompatibles avec les dispositions de la Convention sur le droit de la mer". Both statements were made on 29 October 2001. so For example, Australia, Canada, China, Japan, New Zealand and the Republic of Korea voted in favour. Among the Member States of the European Community, Austria, Belgium, Denmark, Finland, Ireland, Italy, Luxembourg, Portugal and Spain voted in favour, while France, Germany, Greece, the Netherlands, Sweden and the United Kingdom abstained.

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