It has been said that ‘the greatest museum of human civilization lies on the seabed’. Owing to the development of underwater archaeology as a scientific discipline, the protection of underwater cultural heritage has begun to emerge as a crucial issue in international law. Thus this section addresses two key instruments on this subject: the LOSC and the Convention on the Protection of Underwater Cultural Heritage adopted by UNESCO on 2 November 2001 (hereinafter the UNESCO Convention).
(a) The LOSC
Under the LOSC, only two provisions, i.e. Articles 303 and 149, are devoted to the protection of underwater cultural heritage. Article 303(1) places a general obligation upon States to protect objects of an archaeological and historical nature found at sea and to cooperate for this purpose. Accordingly, a State which deliberately allowed the destruction of underwater cultural heritage or refused to cooperate in the protection of such heritage would be contrary to Article 303(1).
It is implicit in the LOSC that the coastal State can exercise its jurisdiction with regard to underwater cultural heritage located in the internal waters and the territorial sea. Furthermore, Article 303(2) allows the coastal State to exercise its jurisdiction to prevent and punish the removal of archaeological and historical objects located in the contiguous zone. Article 149 deals with the protection of archaeological and historical objects located within the Area. Under this provision, all archaeological and historical objects found in the Area must be preserved or disposed of for the benefit of mankind as a whole, with particular regard to the preferential rights of the State or country of origin, the State of cultural origin or the State of historical and archaeological origin. Yet this provision does not offer any guidance on the manner in which the ‘benefit of mankind as a whole’ should be harmonised with the rights of various categories of States.
The LOSC is deficient in not containing provisions for the protection of archaeological and historical objects found in the EEZ or on the continental shelf. This legal vacuum could easily lead to a first-come-first-served approach on the basis of the freedom of the seas. The danger of non-protection of these objects is aggravated by Article 303(3), which provides:
Nothing in this article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges.
The application of the law of salvage may mean the application of a first-come-first-served approach which would serve the interest of private commercial gain. Overall it may have to be admitted that the LOSC is inadequate to protect archaeological and historical objects.
(b) The 2001 Convention on the Protection of Underwater Cultural Heritage
The UNESCO Convention is a crucial instrument as a defence against the weak rules of the LOSC concerning the protection of underwater cultural heritage. As provided in Article 2(1), this Convention aims to ensure and strengthen the protection of underwater cultural heritage. Under Article 2(3), States Parties are obliged to preserve underwater cultural heritage for the benefit of humanity in conformity with the provisions of this Convention.
The benefit of humanity arises from the acknowledgement of ‘the importance of underwater cultural heritage as an integral part of the cultural heritage of humanity and a particularly important element in the history of peoples, nations, and their relations with each other concerning their common heritage’. Under Article 1(1)(a):
‘Underwater cultural heritage’ means all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years such as:
(i) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context;
(ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and
(iii) objects of prehistoric character.
The phrase ‘all traces of human existence’ suggests that ‘underwater cultural heritage’ includes not only objects but also entire sites, including the context in which they are found. Pipelines and cables placed on the seabed are not regarded as underwater cultural heritage. Likewise installations other than pipelines and cables placed on the seabed and still in use are not considered underwater cultural heritage. Although no comprehensive analysis of the UNESCO Convention can be made here, four principal features of the Convention merit being highlighted: (i) the preclusion of the salvage law, (ii) the prohibition of commercial exploitation, (iii) protection of underwater cultural heritage in the EEZ and
on the continental shelf, and (iv) the obligation to cooperate.
The first noteworthy feature of the UNESCO Convention is the preclusion of the law of salvage. In this regard, Article 4 of the UNESCO Convention is clear:
Any activity relating to underwater cultural heritage to which this Convention applies shall not be subject to the law of salvage or law of finds, unless it:
(a) is authorized by the competent authorities, and
(b) is in full conformity with this Convention, and
(c) ensures that any recovery of the underwater cultural heritage achieves its maximum protection.
The second noteworthy feature concerns the prohibition of commercial exploitation. In this regard, Article 2(7) explicitly provides that ‘[u]nderwater cultural heritage shall not be commercially exploited’. This provision is further amplified by Rule 2 of the Annex to the UNESCO Convention. In this connection, Article 16 places an obligation upon States Parties to ‘take all practicable measures to ensure that their nationals and vessels flying their flag do not engage in any activity directed at underwater cultural heritage in a manner not in conformity with this Convention’. Furthermore, each State Party is obliged to impose sanctions for violations of measures it has taken to implement this Convention.
Third, a major breakthrough in the UNESCO Convention concerns the creation of a legal regime governing the protection of underwater cultural heritage in the EEZ and on the continental shelf. Under Article 9(1), ‘[a]ll States Parties have a responsibility to protect underwater cultural heritage in the exclusive economic zone and on the continental shelf in conformity with this Convention’. To this end, the Convention sets out a three-step procedure.
The first step is reporting. Under Article 9(1)(a), a State Party must require its national or the master of the vessel flying its flag to report discovery or activity directed at underwater cultural heritage located in its EEZ or on its continental shelf. When the discovery or activity is located in the EEZ or on the continental shelf of another State Party, Article 9(1) (b) provides two options:
(i) States Parties shall require the national or the master of the vessel to report such discovery or activity to them and to that other State Party.
(ii) Alternatively, a State Party shall require the national or master of the vessel to report such discovery or activity to it and shall ensure the rapid and effective transmission of such reports to all other States Parties.
The second step is consultation. Where there is a discovery of underwater cultural heritage or it is intended that activity shall be directed at underwater cultural heritage in a State Party’s EEZ or on its continental shelf, that State Party is required to consult all other States Parties which have declared an interest under Article 9(5) on how best to protect the underwater cultural heritage. That State is to coordinate such consultations as ‘Coordinating State’, unless it does not wish to do so.
The third step concerns specific measures. Under Article 10(2), a State Party in whose EEZ or on whose continental shelf underwater cultural heritage is located has the right to prohibit or authorise any activity directed at such heritage to prevent interference with its sovereign rights or jurisdiction as provided for by international law, including the LOSC.
Furthermore, Article 10(4) allows the coastal State as ‘Coordinating State’ to take all practical measures to prevent any immediate danger to underwater cultural heritage. These provisions would seem to provide the coastal State with grounds for exercising its jurisdiction over such heritage within the EEZ. Under Article 10(6), the ‘Coordinating State’ shall act ‘on behalf of the States Parties as a whole and not in its own interest’.
The fourth feature of the UNESCO Convention pertains to international cooperation in the protection of underwater cultural heritage. In this regard, Article 2(2) places a general obligation upon States Parties to cooperate in the protection of underwater cultural heritage. It is suggested that the obligation to protect underwater cultural heritage falls not only on the State most directly connect to the heritage, but with all States. Article 6 (1) further encourages States Parties to enter into bilateral, regional or other multilateral agreements or develop existing agreements, for the preservation of underwater cultural heritage. Article 6(2) allows Parties to such agreements to invite States with a verifiable link to the underwater cultural heritage concerned – especially a cultural, historical or archaeological link – to join such agreements. The regional cooperation through conclusion of the agreements is particularly important in the protection of underwater cultural heritage found in enclosed or semi-enclosed sea, such as the Mediterranean, the Baltic and the Caribbean.
(c) The Relationship Between the LOSC and the UNESCO Convention
Finally, the relationship between the LOSC and the UNESCO Convention must be considered.
Under Article 3 of the UNESCO Convention:
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.
On the other hand, Article 304(4) of the LOSC provides:
This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.
It may not be unreasonable to consider that this provision refers not only to agreements concluded before the adoption or entry into force of the LOSC but also to subsequent agreements, including the UNESCO Convention. Accordingly, an appropriate interpretation appears to be that in the case of any conflicts between the two conventions, the UNESCO Convention prevails, in light of the general principle of law according to which the special rules prevail over the general rules (lex specialis derogate legi generali).
source: The International Law of the Sea, Yoshifumi Tanaka