1
Tullio Scovazzi *
THE 2001 UNESCO CONVENTION ON THE PROTECTION OF THE
UNDERWATER CULTURAL HERITAGE
1. An unexpected obstacle.
2. The UNCLOS regime:
A) two general obligations;
B) cigarette smugglers, clandestine immigrants and
infectious patients;
C) the benefit of mankind as a whole;
D) a legal vacuum;
E) an invitation to looting;
F) prospects for a better regime.
3. The CPUCH as a defensive tool:
A) the rejection of the law of salvage and finds;
B) the exclusion of a "first come, first served" approach
for the heritage found on the continental shelf;
C) the strengthening of regional cooperation.
4. Conclusive remarks.
* Professor of International Law, University of MilanoBicocca, Milan, Italy; legal expert of the Italian delegation
at the negotiations for the Convention on the Protection of the
Underwater Cultural Heritage.
1
1. An Unexpected Obstacle
On 6 November 2001 the Convention on the Protection of the
Underwater Cultural Heritage1 was signed in Paris with UNESCO.
When entered into force2, it will apply to "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" (Art. 1,
para. 1, a).
The
CPUCH,
negotiation,
was
which
adopted
is
by
the
vote
outcome
(87
of
States
a
in
longlasting
favour,
4
against3 and 15 abstentions4). However, the lack of consensus at
Hereinafter: the CPUCH. On this convention see O'KEEFE,
Shipwrecked Heritage: A Commentary on the UNESCO Convention on
Underwater Cultural Heritage, Leicester, 2002; GARABELLO, The
Negotiating History of the Provisions of the Convention on the
Protection of the Underwater Cultural Heritage, in GARABELLO &
SCOVAZZI (eds.), The Protection of the Underwater Cultural
Heritage - Before and After the 2001 UNESCO Convention, Leiden,
2003, p. 89.
1
The CPUCH will enter into force after the deposit of the
twentieth instrument of ratification or accession (Art. 27).
For the time being (December 2004), Panama, Bulgaria and
Croatia have ratified the CPUCH.
2
Namely, the Russian Federation, Norway, Turkey and
Venezuela. The observer delegate of the United States, who was
not entitled to vote (the United States not being a member of
UNESCO at that time), 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 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).
3
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
4
2
the moment of its adoption should not be considered as an
irreparable flaw. Not only did the great majority of developing
countries
vote
industrialized
in
favour,
countries
and
but
also
maritime
several
powers
among
were
the
satisfied
with the final outcome of the negotiations5.
To explain the merit of the CPUCH a basic consideration
must be made. Any attempts to deal with the cultural heritage
at sea have inevitably to face an unexpected obstacle, that is
Art. 303 of the United Nations Convention on the Law of the Sea
(Montego Bay, 1982)6. This provision is not only incomplete, but
also counterproductive. It can be understood in a sense that
undermines
cultural
the
very
heritage.
objective
Such
a
of
protecting
clearcut
the
assumption
underwater
about
the
deficiencies of Art. 303 requires some elaboration.
2. The UNCLOS Regime
The
UNCLOS
regime
relating
to
the
underwater
cultural
heritage is based on the following scheme.
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".
For example, Australia, Canada, China, Japan, New Zealand,
the Republic of Korea voted in favour. Among the member States
of the European Community (at that time), 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.
5
6
Hereinafter: the UNCLOS.
3
A) Two General Obligations
Art. 303, para. 1, sets forth two very general obligations
of protection and cooperation which apply to all archaeological
and historical objects, wherever at sea they are found:
«States have the duty to protect objects of an
archaeological and historical nature found at sea and
shall co-operate for this purpose».
Due to its rather broad content, Art. 303, para. 1, does
not say very much. Nevertheless, some legal consequences can be
drawn from it. A State which knowingly destroyed or allowed the
destruction of elements of the underwater cultural heritage
would be responsible for a breach of the obligation to protect
it.
A State which persistently refused any request by other
States to establish some forms of cooperation aiming at the
protection of the underwater cultural heritage could also be
held
responsible
of
an
internationally
wrongful
act.
An
obligation to cooperate is not devoid of legal meaning. It
implies a duty to act in good faith in pursuing a common
objective and in taking into account the situation of the other
interested States. As remarked by the International Court of
Justice in the judgement of 20 February 1969 on the North Sea
Continental Shelf cases,
«the parties are under an obligation to enter into
negotiations with a view to arriving at an agreement, and
not merely to go through a formal process of negotiation
as a sort of a prior condition for the automatic
application of a certain method of delimitation in the
absence of agreement; they are under an obligation so to
conduct themselves that the negotiations are meaningful,
which will not be the case when either of them insists
upon
its
own
position
without
contemplating
any
4
modification of it»7.
B) Cigarette Smugglers, Clandestine Immigrants
and Infectious Patients
While underwater cultural heritage located within internal
maritime waters, archipelagic waters and territorial sea is
subject to the jurisdiction of the coastal State8, Art. 303,
para.
2,
UNCLOS
specifically
relates
to
archaeological
and
historical objects located within the 24-mile zone set forth by
Art. 33 UNCLOS (the contiguous zone):
«In order to control traffic in such objects, the
coastal State may, in applying article 33, presume that
their removal from the sea-bed in the zone referred to in
that article without its approval would result in an
infringement within its territory or territorial sea of
the laws and regulations referred to in that article» [=
customs,
fiscal,
immigration
or
sanitary
laws
and
regulations].
Art. 303, para. 2, does give some rights to the coastal
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 v. 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 question of the regime of State vessels and aircraft
will not be discussed here. According to certain States, such
as the United States, the flag State retains title indefinitely
to its sunken craft, wherever it is located, unless title has
been expressly abandoned or transferred by it. Other States
believe that there is no reason to envisage two different kinds
of underwater cultural heritage. On the question, with special
reference to the Spanish galleons, see AZNAR GOMEZ, La
protección
international
del
patrimonio
subacuático
con
especial referencia al caso de España, Valencia, 2004.
8
5
State. But the content of these rights is far from being clear,
as the wording of the provision gets entangled in mysterious
complications. As provided for in Art. 33, in the contiguous
zone,
which
is
located
between
the
external
limit
of
the
territorial sea (12 n.m., in the case of most States) and 24
n.m.,
the
fiscal,
coastal
State
immigration
or
may
exercise
sanitary
control
purposes.
for
If
customs,
literally
understood, para. 2 suggests that the removal of archaeological
and
historical
determine
a
objects
violation
located
of
in
the
domestic
contiguous
provisions
zone
relating
can
to
matters which have little or nothing to do with the cultural
heritage, such as smuggling, public health and immigration.
Under the UNCLOS logic, it is only as a consequence of the
competences
cigarette
patients
that
it
can
smugglers,
that
competences
the
for
already
clandestine
coastal
the
exercise
immigrants
State
protection
in
can
of
dealing
and
exercise
the
with
infectious
some
underwater
other
cultural
heritage located within 24 n.m. from the shore. The wisdom of
such a logic, which implies that underwater cultural heritage
cannot be protected per se, is not fully convincing, to say the
least.
Other problems arise from the wording of Art. 303, para.
2,
if
literally
understood.
The
coastal
State,
which
is
empowered to prevent and sanction the "removal from the seabed" of objects of an archaeological and historical nature, is
apparently
defenceless
if
such
objects,
instead
of
being
removed, are simply destroyed in the very place where they have
6
been found9. Again, it is difficult to subscribe to the logic of
such a conclusion.
All the textual complications of Art. 303, para. 2, are
probably due to the obsession of the drafters of the UNCLOS to
avoid any words that might give the impression of some kind of
coastal State jurisdiction beyond the territorial sea (horror
jurisdictionis, to say it in Latin). Rather than laying down a
substantive regime to deal with a new concern, such as the
protection
of
the
underwater
cultural
heritage,
the
UNCLOS
seems more interested in paying tribute to abstractions, like
the attachment of some States to the almost theological dogma
of freedom of the seas.
In any case, even if the spectre of cigarette smugglers,
clandestine immigrants and infectious patients does not seem
the ideal way to transmit the message, from Art. 303, para. 2,
the
conclusion
may
be
drawn
that
the
coastal
State
can
establish a 24-mile so-called archaeological zone where it can
apply its legislation for the aim of protecting the relevant
objects10.
C) The Benefit of Mankind as a Whole
A specific provision of the UNCLOS (Art. 149) deals with
the underwater cultural heritage found on the seabed and ocean
floor beyond the limits of national jurisdiction (the so-called
Area):
Destroyed by a company
exploitation, for instance.
9
holding
a
license
for
oil
In fact, a number of countries have already created such
a zone.
10
7
«All objects of an archaeological and historical
nature found in the Area shall be preserved or disposed of
for the benefit of mankind as a whole, particular regard
being 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».
Art. 149 appears rather vague in its content and devoid of
details that could ensure its practical application. It however
shows
a
preference
for
those
uses
of
archaeological
and
historical objects that promote the "benefit of mankind as a
whole". Private interests, such as the search for and use of
the
objects
for
trade
and
personal
gain,
are
given
little
weight, if any.
Some
categories
of
States
which
have
a
link
with
the
objects (namely, the State of cultural origin, the State of
historical and archaeological origin, the State or country of
origin tout court11) are given preferential rights, although
Art. 149 does not specify the content of these rights and the
manner in which they should be harmonized with the concept of
"benefit of mankind as a whole".
D) A Legal Vacuum
While specific UNCLOS provisions apply to the space within
24 n.m., on the one hand, and to the Area, on the other, there
is no clarification in the UNCLOS about the regime relating to
the
archaeological
and
historical
objects
found
on
the
The imprecise wording of Art. 149 gives rise to some
textual doubts. Should the State of historical origin be at the
same time also the State of archaeological origin 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?
11
8
continental shelf or in the exclusive economic zone12, that is
the
space
located
between
the
24-mile
limit
of
the
archaeological zone and the Area. It is however clear that the
rights
of
the
coastal
State
on
the
continental
shelf
are
limited to the exploration and exploitation of the relevant
"natural resources", as explicitly stated in Art. 77, para. 1,
of UNCLOS, and cannot be easily extended to man-made objects13,
such as those belonging to the underwater cultural heritage14.
This
legal
vacuum
greatly
threatens
the
protection
of
cultural heritage, as it brings into the picture the abstract
idea of freedom of the seas15. It could easily lead to a "first
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 the Italian national hero, Mr. Giuseppe Garibaldi,
which is found floating in the exclusive economic zone of the
United States or Uruguay, countries where Mr. Garibaldi had
lived in certain periods of his life. Embarking on another
effort of imagination, one could also think of an ancient
little statue which has been eaten by a fish or cetacean
swimming in the exclusive economic zone.
12
As also stated by the International Law Commission 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" (U.N., Yearbook
of the International Law Commission, 1956, vol. 2, p. 298).
13
It seems too eccentric to assume (as assumed in a
judgment rendered on 21 December 1983 by the United States
District Court, District Maryland, in 577 F. Suppl. 597) 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.
14
15
Art. 59 UNCLOS (Basis for the resolution of conflicts
9
come, first served" approach. Availing himself of the principle
of freedom of the sea, any person on board any ship could
explore the continental shelf adjacent to any coastal State,
bring any archaeological and historical objects to the surface,
become their owner under a domestic legislation (in most cases,
the flag State legislation16), carry the objects into certain
countries and sell them on the private market. If this were the
case, there would be no guarantee that the objects are disposed
of for the public benefit rather than for private commercial
gain or personal benefit. Nor could a State which has a direct
cultural link with the objects prevent the continuous pillage
of its historical heritage. The danger of freedom of fishing
for
underwater
cultural
heritage
is
far
from
being
merely
theoretical17.
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". In fact, 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 (see MIGLIORINO, Submarine Antiquities and the Law of
the Sea, in Marine Policy Reports, 1982, p. 1).
In this regard, the problems posed
convenience must be taken into consideration.
16
by
flags
of
See, as regards the story of the expeditions made by Mr.
Ballard in the Mediterranean and the various stories of Spanish
galleons looted by treasure hunters, SCOVAZZI, The Application
of "Salvage Law and Other Rules of Admiralty to the Underwater
Cultural Heritage, in GARABELLO & SCOVAZZI, op. cit., p. 20 and
38.
17
10
During the negotiations for the UNCLOS some countries were
ready to extend, under certain conditions, the jurisdiction of
the coastal State to the underwater cultural heritage found on
the
continental
submitted
in
shelf.
1980
by
For
instance,
Cape
Verde,
an
informal
Greece,
Italy,
proposal
Malta,
Portugal, Tunisia and Yugoslavia provided as follows:
«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»18.
The
already
States
rejection
mentioned
(horror
of
this
fear
of
kind
of
creeping
jurisdictionis)19,
proposals,
due
jurisdiction
by
led
to
the
legal
to
the
coastal
vacuum
resulting from the present UNCLOS regime.
E) An Invitation to Looting
The danger of uncontrolled activities is aggravated by
Art.
303,
obligations
para.
of
3,
UNCLOS,
protection
of
which
subjects
archaeological
the
and
general
historical
objects and international cooperation to a completely different
set of rules:
«Nothing in this article affects the rights of
identifiable owners, the law of salvage and other rules of
admiralty, or laws and practices with respect to cultural
Informal proposal by Cape Verde, Greece, Italy, Malta,
Portugal, Tunisia and Yugoslavia (U.N. doc. A/CONF.62/C.2/
Informal Meeting/43/Rev. 3 of 27 March 1980).
18
19
Above, para. 2 B.
11
exchanges».
In fact, salvage law and other rules of admiralty are
given
an
overarching
conflict
between
cultural
heritage,
status
the
on
by
the
UNCLOS.
If
objective
to
protect
the
the
one
hand,
and
the
there
is
a
underwater
provisions
of
salvage law and other rules of admiralty, on the other, the
latter
prevail,
as
they
are
not
affected
by
any
of
the
paragraphs of Art. 30320.
There is no clarification in the UNCLOS about what the
expression "the law of salvage and other rules of admiralty"
means. In many countries, the notion of salvage ("sauvetage",
in French) is only related to the attempts to save a ship or
property carried by it from imminent marine peril on behalf of
its
owners.
submerged
But
it
has
archaeological
never
sites
been
or
to
intended
ancient
to
apply
sunken
to
ships
which, far from being in peril, have been definitively lost.
On
common
the
law
contrary,
tradition
in
the
a
minority
concept
of
of
other
salvage
countries
law
has
of
been
enlarged by some court decisions to cover activities which have
very little to do with the traditional sphere of salvage. For
example, the United States Court of Appeals for the 4th Circuit
in a decision rendered on 24 March 1999 (case R.M.S. Titanic,
Inc. v. Haver) stated that the law of salvage and finds is a
"venerable law of the sea". It was said to have arisen from the
custom among "seafaring men" and to have "been preserved from
Luckily enough, the drafters of the UNCLOS did
subject to salvage law and other rules of admiralty
heritage found in the Area which falls under Art. 149.
20
not
the
12
ancient Rhodes (900 B.C.E.), Rome (Justinian's Corpus Juris
Civilis) (533 C.E.), City of Trani (Italy) (1063), England (the
Law of Oleron) (1189), the Hanse Towns or Hanseatic League
(1597),
and
France
(1681),
all
articulating
similar
principles"21. Coming to the practical result of such a display
of legal erudition, the law of finds seems to mean that "a
person who discovers a shipwreck in navigable waters that has
been long lost and abandoned and who reduces the property to
actual
or
constructive
possession
becomes
the
property's
owner". The application of the law of salvage, which appears to
be something different from the law of finds, is also hardly
satisfactory, as it gives the salvor a lien (or right in rem)
over the object. Yet the expression "the law of salvage and
other rules of admiralty" simply means the application of a
first-come-first-served
or
freedom-of-fishing
approach
which
can only serve the interest of private commercial gain.
The fact remains that the body of "the law of salvage and
other rules of admiralty" is today typical of a few common law
systems, but remains a complete stranger to the legislation of
other countries. Because of the lack of corresponding concepts,
the very words "salvage" and "admiralty" cannot be properly
translated into languages different from English. In the French
official text of the UNCLOS they are rendered with expressions
(droit de récupérer des épaves et (...) autres règles du droit
maritime)
which
have
a
broader
and
different
meaning.
No
International Legal Materials, 1999, p. 807. For the
details of the judicial "saga" of the Titanic see SCOVAZZI, The
Application (quoted avove, note 17), p. 60.
21
13
Italian lawyer (with the laudable exception of a few scholars)
would
today
know
what
the
"law
of
salvage
and
finds"
is,
despite the fact that the cities of Rome and Trani, which are
said to have contributed to this body of "venerable law of the
sea", are located somewhere in the Italian territory. Nor is it
clear how a "venerable" body of rules, that is believed to have
developed
in
times
when
nobody
cared
about
the
underwater
cultural heritage, could provide today any sensible tool for
dealing with the protection of the heritage in question. All
the lofty and almost theological expressions employed by the
supporters of the law of salvage and the law of finds ("return
to the mainstream of commerce", "admiralty's diligence ethic",
"venerable law of the sea", etc.) are doubtful euphemisms. They
dissimulate
approach
a
first-come-first-served
based
on
the
destination
or
of
freedom-of-fishing
underwater
cultural
heritage for the exclusive purpose of private commercial gain.
This worsens the already sad picture of Art. 303 of the
UNCLOS. Does this provision, while apparently protecting the
underwater cultural heritage, strengthen a regime which results
in the destination of much of this heritage for commercial
purposes? Does Art. 303 give an overarching status to a body of
rules that cannot provide any sensible tool for the protection
of
the
heritage
in
question?
The
doubt
is
far
from
being
trivial22.
"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
22
14
F) Prospects for a Better Regime
It
would
be
difficult
to
find
elsewhere
so
many
obscurities and contradictions as can be found in the UNCLOS
regime of the underwater cultural heritage23. If the protection
of the underwater cultural heritage is to be achieved "for the
benefit of mankind as a whole" (as stated in Art. 149), why are
salvage law and the other rules of admiralty, which only serve
the purpose of private benefit and commercial gain, granted an
overarching status (as stated in Art. 303, para. 3)? If the
underwater cultural heritage is to be protected everywhere (as
stated in Art. 303, para. 1), why is an evident gap left open
as regards the heritage located on the continental shelf24?
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" (The
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 & SRONG (eds.), Background
Materials on the Protection of the Underwater Cultural
Heritage, Paris, 1999, p. 176.). For other critical remarks
about the results of the application of this body of law see
THROCKMORTON, The World's Worst Investment: The Economics of
Treasure Hunting with Real Life Comparisons, paper published in
1990 and reprinted in PROTT & SRONG, op. cit., p. 181. But see
also the different views expressed by HOFFMANN, Sailing on
Uncharted Waters: The U.S. Law of Historic Wrecks, Sunken
Treasure and the Protection of Underwater Cultural Heritage, in
SCOVAZZI
(ed.),
La
protezione
del
patrimonio
culturale
sottomarino nel Mare Mediterraneo, Milano, 2004, p. 297.
"The regimes for underwater archaeology resulting from
the Convention are complicated and not complete" (NORDQUIST,
ROSENNE & SOHN, United Nations Convention on the Law of the Sea
1982 - A Commentary, vol. V, Dordrecht, 1989, p. 161).
23
The fact that the UNCLOS regime
satisfactory seems implicitly acknowledged
made by the Netherlands on 28 June 1996 on
UNCLOS: "Jurisdiction over objects of an
historical nature found at sea is limited
24
is far from being
in the declaration
ratification of the
archaeological and
to articles 149 and
15
As a further surprise, it may be added that prospects to
find some remedy to the unsatisfactory regime of the UNCLOS
could be drawn from para. 4 of Art. 303 itself. Under this
paragraph, Art. 303 does not prejudice "other international
agreements
and
protection
of
rules
of
international
objects
of
an
law
archaeological
regarding
and
the
historical
nature"25. There is no reason why future agreements, such as the
CPUCH, should not be covered by this provision. In other words,
the UNCLOS itself seems to allow the drafting of more specific
treaty regimes which can ensure a better protection of the
underwater
cultural
heritage.
The
UNCLOS
itself
seems
to
encourage the filling of the gaps and the elimination of the
contradictions that it has generated.
3. The CPUCH as a Defensive Tool
The CPUCH may be seen as a reasonable defence against the
results of the contradictory and counterproductive regime of
the UNCLOS. The basic defensive tools are three, namely: the
elimination of the undesirable effects of the law of salvage
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".
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? To try to give an answer to the question, which is a
consequence of the plethora of contradictions embedded in Art.
303, does not seem a sensible exercise.
25
16
and
finds;
the
exclusion
of
a
"first
come,
first
served"
approach for the heritage found on the continental shelf; the
strengthening of regional cooperation.
A) The Rejection of the Law of Salvage and Finds
While most countries participating in the negotiations for
the CPUCH concurred in the rejection of the application of the
law of salvage and finds to underwater cultural heritage, a
minority of States were not prepared to accept an absolute ban.
To achieve a reasonable compromise, Art. 4 (Relationship to law
of salvage and law of finds) of the CPUCH provides as follows:
«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».
This provision is to be understood in connection with Art.
2, para. 7, of the CPUCH ("underwater cultural heritage shall
not be commercially exploited") and with the rules contained in
the
annex,
which
form
an
integral
part
of
the
CPUCH.
In
particular, under Rule 2 of the Annex,
«the commercial exploitation of underwater cultural
heritage for trade or speculation or its irretrievable
dispersal
is
fundamentally
incompatible
with
the
protection and proper management of underwater cultural
heritage. Underwater cultural heritage shall not be
traded, sold, bought or bartered as commercial goods».
The practical effect of the CPUCH regime is the prevention
of all the undesirable effects of the application of the law of
salvage and finds. Freedom of fishing for archaeological and
historical objects is definitely banned. This seemed generally
acceptable to all the States participating in the negotiation.
17
B) The Exclusion of a "First Come, First Served" Approach
for the Heritage Found on the Continental Shelf
The
majority
negotiation
of
were
the
ready
to
countries
extend
participating
the
jurisdiction
in
the
of
the
coastal State to the underwater cultural heritage found on the
continental shelf or in the exclusive economic zone. However, a
minority
of
States
jurisdiction
of
territorial
sea
assumed
coastal
would
that
States
have
the
beyond
altered
extension
the
the
limit
delicate
of
the
of
the
balance
embodied in the UNCLOS between the rights and obligations of
the coastal State and those of other States. Such a difference
of positions proved to be a thorny question.
During the negotiations, the chairman of Working Group 1
of the Group of Governmental Experts, trying to find a way out
of the deadlock rather than merely recording the statements and
re-statements of the opposing positions26, undertook to produce
a tentative proposal27. It was based on a three-step procedure,
namely:
reporting
of
planned
activities
or
discoveries;
consultations on how to ensure the effective protection of the
underwater cultural heritage; provisional protection measures.
The coastal State was entitled to coordinate the consultations
among the States which declared their interest28, unless it
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 doc. quoted above, note 26).
27
To
avoid
the
ghost
of
jurisdiction
jurisdictionis), the coastal State was not called
28
(horror
coastal
18
invited another State to act as coordinating State. Pending the
outcome of the consultations, all States Parties had to comply
with
the
provisional
protection
measures
adopted
by
the
coordinating State.
During the same session, a "non-paper" was proposed by
three unnamed delegations as a basis for discussion. Although
different for several aspects from the proposal of the chairman
of Working Group 1, the non-paper was also based on reporting
and
consultation29.
namely:
that
the
It
introduced
States
entitled
two
to
important
elements,
participate
in
the
consultations were those which had a "verifiable link" with the
underwater cultural heritage concerned; and that the coastal
State30
was entitled to impose requirements not in its own
interest but on behalf of all States Parties as a whole.
Both proposals were inspired by a spirit of compromise and
showed
an
effort
to
find
reasonable
solutions
based
on
procedural mechanisms, without insisting on a mere extension of
the jurisdiction of the coastal State. Both proposals led to
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).
UNESCO doc. WG.1/NP.1 of 5 July 2000 (reproduced also in
the doc. quoted above, note 26).
29
Again, the expression "coastal State" was not used in the
"non-paper" either.
30
19
the present Arts. 9 and
acceptable
by
the
10 of the CPUCH which were found
majority
of
the
States
engaged
in
the
negotiation. It is regrettable that, despite all the efforts to
reach
a
reasonable
compromise,
a
consensus
could
not
be
achieved.
It would be a difficult task to dwell upon all the nuances
of
provisions,
stratification
such
of
as
Arts.
proposals,
9
and
10,
resulting
counter-proposals,
from
a
last-minute
changes and "constructive ambiguities" which are not likely to
lead to an easily readable text. The essence of the regime is
the
three-step
procedure
(reporting,
consultations,
urgent
measures) it sets forth31.
As regards reporting, the CPUCH bans secret activities or
discoveries32. States Parties shall require their nationals or
vessels flying their flag to report activities or discoveries
to
them.
If
the
activity
or
discovery
is
located
in
the
exclusive economic zone or on the continental shelf of another
State Party, the CPUCH sets forth two alternative solutions:
«(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;
Under Arts. 11 and 12 CPUCH a similar (although not
identical) three-step procedure applies to the underwater
cultural heritage found in the Area.
31
For obvious reasons, the principle of transparency of
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).
32
20
(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 report to all other States Parties»
(Art. 9, para. 1, b)33.
While the wording leaves a certain margin of ambiguity,
the
"State
Party"
mentioned
in
sub-para.
(ii)
is
to
be
understood as the State to which the "national" belongs or the
State
of
which
the
"vessel"
flies
the
flag34.
This
interpretation is in conformity with the preparatory works of
the CPUCH35.
Information is also notified to the Director-General of
UNESCO
who
shall
promptly
make
it
available
to
all
States
Parties (Art. 9, paras. 4 and 5).
As regards consultations, the coastal State36 shall consult
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).
33
The ambiguity lies in the fact that the "State Party" in
question could also be understood as the coastal State.
34
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.
35
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.
36
21
all States Parties which have declared their interest in being
consulted on how to ensure the effective protection of the
underwater cultural heritage in question (Art. 10, para. 3, a,
and Art. 9, para. 5). The CPUCH provides that any State Party
may declare its interest in being consulted and that "such
declaration shall be based on a verifiable link, especially a
cultural, historical or archaeological link, to the underwater
cultural heritage concerned"37.
The
coastal
State38
shall coordinate the consultations,
unless it expressly declares that it does not wish to do so, in
which case the States Parties which have declared an interest
in being consulted shall appoint another coordinating State
(Art. 10, para. 3, b). The co-ordinating State shall implement
the
measures
of
protection
which
have
been
agreed
by
the
consulting States and may conduct any necessary preliminary
research on the underwater cultural heritage (Art. 10, para.
5).
As
regards
urgent
measures,
Art.
10,
para.
4,
CPUCH
provides as follows:
«Without prejudice to the right of all States Parties
to protect underwater cultural heritage by way of all
practicable
measures
taken
in
accordance
with
international law to prevent immediate danger to the
underwater cultural heritage, including looting, the
Coordinating State may take all practicable measures,
and/or issue any necessary authorizations in conformity
with
this
Convention
and,
if
necessary
prior
to
consultations, to prevent any immediate danger to the
underwater cultural heritage, whether arising from human
activities or any other cause, including looting. In
37
made.
38
The attempt to define what is a "verifiable link" was not
See above, note 36.
22
taking such measures assistance
other States Parties».
may
The
State
right
of
the
coordinating
be
requested
to
adopt
from
urgent
measures is the cornerstone of the CPUCH regime. It would have
been illusory to subordinate this right to the conclusion of
consultations that are normally expected to last for some time.
It would also have been illusory to grant this right to the
flag State, considering the risk of activities carried out by
vessels
flying
the
flag
of
non-Parties
or
a
flag
of
convenience39. By definition, in a case of urgency a determined
State
must
be
entitled
to
take
immediate
measures
without
losing time in procedural requirements40.
The
CPUCH
clearly
sets
forth
that
in
coordinating
consultations, taking measures, conducting preliminary research
and issuing authorizations, the coordinating State acts "on
behalf of the States Parties as a whole and not in its own
interest" (Art. 10, para. 6). Any such action shall not in
itself constitute a basis for the assertion of any preferential
or jurisdictional rights not provided for in international law,
including the UNCLOS.
In any case, "a State Party in whose exclusive economic
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.
39
On the contrary, the draft resolution submitted by the
Russian Federation and the United Kingdom and endorsed by the
United States (quoted above, 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".
40
23
zone or on whose continental shelf underwater cultural heritage
is located has the right to prohibit or authorize any activity
directed
sovereign
at
such
rights
heritage to prevent interference with its
or
jurisdiction
as
provided
for
by
international law including the United Nations Convention on
the Law of the Sea" (Art. 10, para. 2, CPUCH). This could mean
that the coastal State can exercise broader rights if, for
instance, a wreck is embedded in the sand or is encrusted with
oysters,
molluscs
or
other
sedentary
living
resources
over
which it already exercises sovereign rights under the UNCLOS
provisions on the continental shelf41.
C) The Strengthening of Regional Cooperation
The
CPUCH
devotes
one
of
its
provisions
(Art.
6)
to
bilateral, regional or other multilateral agreements:
«1. States Parties are encouraged to enter into
bilateral, regional or other multilateral agreements or
develop existing agreements, for the preservation of
underwater cultural heritage. All such agreements shall be
in full conformity with the provisions of this Convention
and shall not dilute its universal character. States may,
in such agreements, adopt rules and regulations which
would ensure better protection of underwater cultural
heritage than those adopted in this Convention.
2. The Parties to such bilateral, regional or other
multilateral
agreements
may
invite
States
with
a
verifiable link, especially a cultural, historical or
archaeological link, to the underwater cultural heritage
The majority of countries participating in the
negotiation rejected the assumption, put forward by the United
States of America, 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!
41
24
concerned to join such agreements»42.
Art. 6 opens the way to a multiple-level protection of
underwater
cultural
heritage.
This
corresponds
to
what
has
already happened in the field of the protection of the natural
environment where treaties having a world sphere of application
are often followed by treaties concluded at the regional and
sub-regional level. The key to coordination between treaties
applicable at different levels is the criterium of the better
protection, in the sense that the regional and sub-regional
treaties are concluded to ensure better protection than the
protection granted by those adopted at a more general level.
The possibility to conclude regional agreements should be
carefully considered by the States bordering enclosed or semienclosed seas which are characterized by a particular kind of
underwater cultural heritage, such as the Mediterranean, the
Baltic, the Caribbean. For instance, in a declaration adopted
in Siracusa, Italy, on 10 March 200143, the participants to an
academic conference stressed that "the Mediterranean basin is
characterized
by
the
traces
of
ancient
civilisations
which
flourished along its shores and, having developed the first
seafaring techniques, established close relationships with each
other" and that "the Mediterranean cultural heritage is unique
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.
42
43
Text in GARABELLO & SCOVAZZI, op. cit., p. 274.
25
in that it embodies the common historical and cultural roots of
many
civilizations".
They
consequently
invited
the
Mediterranean countries to "study the possibility of adopting a
regional
convention
investigation
cultural
and
heritage
that
enhances
protection
and
sets
of
the
forth
cooperation
Mediterranean
the
relevant
in
the
submarine
rights
and
prospects
for
obligations".
4. Conclusive remarks
It
is
not
likely
that
any
sensible
protecting the underwater cultural heritage may be drawn from
the contradictory and counterproductive regime embodied in the
UNCLOS, at least if it were literally read. The drafters of the
UNCLOS could not forecast the subsequent progress in underwater
technologies and the diffusion of treasure hunting activities
in many seas of the world. They probably did not feel that the
protection
of
the
underwater
cultural
heritage
was
to
be
considered an urgent need.
For its innovative and pragmatic character, the CPUCH is a
major
step
forward
in
the
progressive
development
of
international law. It has been criticized for the reason that,
irrespective of Art. 344, it departs from the regime embodied in
the UNCLOS45. Perhaps it partially departs. But it must be
"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".
44
45
See, for example, the intervention made on 28 November
26
stressed that the UNCLOS regime is so insufficient that it was
impossible to protect the underwater cultural heritage without
partially departing from it.
Variations from the UNCLOS regime are not a novelty. After
the adoption of the UNCLOS, two multilateral treaties have been
concluded which apparently "implement" the UNCLOS, namely the
1994 Agreement Relating to the Implementation of Part XI of the
UNCLOS and the 1995 Agreement for the Implementation of the
Provisions
of
the
UNCLOS
Relating
to
the
Conservation
and
Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks. In fact, as both agreements depart from the UNCLOS, the
politically prudent label of an "implementing agreement" can be
considered as a euphemism for the word "amendment" which would
have been more correct from a substantive point of view. The
reality is that, as it is itself a product of time, the UNCLOS
cannot stop the passing of time. It is therefore subject to a
process of evolution in the light of subsequent international
practice.
The establishment of an effective protection regime for
the
underwater
cultural
heritage
cannot
be
seen
as
an
encroachment on the principle of the freedom of the sea. Nor is
it the creation of other jurisdictional zones. It is difficult
to see how rules and entitlements on the underwater cultural
heritage found on the continental shelf could affect navigation
in the superjacent waters. The concept of freedom of the sea is
2001 by the delegate of the Russian Federation, Mr. Tarabrin,
at the United Nations General Assembly.
27
today to be understood not in an abstract way, but in the
context
of
relation
the
to
present
the
range
other
of
marine
potentially
activities
conflicting
and
uses
in
and
interests. Also the idea that the coastal State can exercise
rights on the oil found in its continental shelf corresponded,
when it was initially proposed46, to an encroachment on the
freedom of the high seas. Evident encroachments on the freedom
of fishing on the high seas can easily be found in the above
mentioned
1995
Straddling
and
Agreement, which
introduces
the
Highly
Migratory
innovative
idea
Fish
Stocks
that
States
which persistently undermine the measures agreed upon by the
others can be excluded from an activity taking place on the
high
seas.
In
this
case,
a
new
regime
was
considered
a
necessary tool to promote the conservation and sound management
of living marine resources and, as such, was found reasonable
by the great majority of States. Abstract principles and fears
of
creeping
jurisdiction
(horror
jurisdictionis)
were
not
sufficient to prevent the evolution of international law of the
sea and the drafting of reasonable legal responses to emerging
needs.
Similarly
effective
solutions
are
today
required
with
respect to the underwater cultural heritage. The protection of
the underwater cultural heritage is endangered by an increasing
number of unreported and unregulated activities which are the
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).
46
28
consequence of the improvement of underwater instruments and
technologies.
Should
there
remain
a
freedom-of-fishing-type
regime for objects of an archaeological and historical nature?
Do they deserve less protection than fish? The CPUCH provides
sensible answers to both questions.