by He Shuzhong
We have established conventions in areas of the protection of cultural heritage in the
event of armed conflict, preventing illicit traffic, protection of the "world heritage", and the
return of stolen cultural property. We also have some important international organizations working
on the protection of cultural heritage, such as UNESCO. However, all of the above focus only on
land-based heritage. We still have no international convention or international organization for the
protection of underwater cultural heritage, an area in much greater need of protection in the
interest of humanity.
What kind of underwater cultural heritage convention do we need? Needless to say, some underwater cultural heritage lies in internal waters, archipelagic waters, and the territorial sea. As one of the principles of such a convention, states have the duty to protect this heritage in the interest of humanity; they must take all necessary measures to prohibit and prevent its illicit excavation and commercial exploitation and establish standards for the protection and management of underwater cultural heritage. These should be formulated by the appropriate international organization. A future convention should stress the duties in these areas of the States Parties.
Much of the underwater cultural heritage is in the Exclusive Economic Zone (EEZ) and on the continental shelf. In addition, much of it entirely escapes any national control, since it is located on the outer reaches of the continental shelf or deep seabed. What can future convention do about this part of the underwater heritage?
We must refer once again to the United Nations Convention on the Law of the Sea, "the culmination of over 14 years of work involving participation by more than 150 countries representing all regions of the world, all legal and political systems, all degrees of socio-economic development." The Law of the Sea Convention was not written specifically to apply to underwater cultural heritage and has only two provisions that pertain to it: "States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose" (Article 303(1) of the General Provisions of the Convention); and "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" (Article 149 of the Convention on the Area, which basically means the deep seabed). Of course, these provisions are not sufficient for the protection of underwater heritage and will not be the general principles of the future convention, but they are very important ideas demonstrating the universal basic reaction to the underwater heritage.
In fact, it is necessary for a future convention to clearly define the following principles. The cultural heritage in the EEZ, on the continental shelf, and in the Area (meaning the seabed under the high seas), belongs to humanity. No State shall claim or exercise sovereignty over the cultural heritage. All rights in cultural heritage are vested in humanity as a whole, on whose behalf the appropriate international organization shall act. Cultural heritage is not subject to alienation, and cultural heritage recovered from these areas may be alienated only in accordance with the future convention and the rules, regulations, and procedures of the related international organization. The rules and regulations of the related international organization shall pay particular attention to the preferential rights concerning cultural heritage of the coastal state in the EEZ and on the continental shelf and the preferential rights of the state of cultural origin for the cultural heritage in the Area. States Parties shall have the responsibility of ensuring that activities affecting the cultural heritage, whether carried out by States Parties or by natural or juridical persons that possess the nationality of States Parties or are effectively controlled by them or their nations, shall be carried out in conformity with a future convention. The same responsibility applies to international organizations for activities they carry out that affect the cultural heritage.
Thus, the protection of the underwater cultural heritage, especially that heritage lying outside of national control, requires an international organization. Because the exploration of underwater heritage demands much more information and a much higher level of technology than does the exploration of land-based heritage, it is much more difficult for States to prohibit and prevent the illicit excavation and commercial exploitation of the underwater heritage than it is to protect land-based heritage. Because large corporations from the developed countries have not been able to protect the heritage in the EEZ, on the continental shelf, and on the deep seabed in the interest of all humanity, and because it is necessary that "particular regard be paid to the preferential rights" of the State of origin, UNESCO should cooperate with the International Seabed Authority (ISA) to establish an underwater cultural heritage center.
In the new century, people will think more highly of the protection of cultural heritage, and at the same time, the underwater cultural heritage will face even greater threats from even more sophisticated underwater technology. The duty of the State regarding this protection will be much more clearly defined, and a special international organization will protect the common heritage in the name of humanity. We need this kind of convention.
There are in total about 20,000 underwater archaeological sites in China. As on land, some of the underwater cultural heritage is also illegally excavated. At the beginning of 1999, archaeologists working underwater near Huaguang Island of the Xisha Islands in the South China Sea discovered a historic shipwreck of the Song Dynasty (AD960-1279) together with a large area of drifted antiquities. To their surprise, they also found two large holes made by explosives, which had also seriously damaged other parts of the site. It is thought that this attack probably happened several years ago. This archaeological site is located so far from the mainland that it draws attention to the serious situation of the underwater archaeological heritage of China.
Cultural Heritage Watch (CHW), Beijing, China
published on Nordic Underwater Archaeology Jan '03, rev jul '05
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