Buenos Aires Draft Convention on the Protection of the Underwater Cultural Heritage

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Buenos Aires Draft Convention on the Protection of the Underwater Cultural Heritage

 

Article 5: Cultural Heritage Zone

1. A State Party to this Convention may establish a cultural heritage
zone and notify other States Party of its action. Within this zone,
the State Party shall have jurisdiction over activities affecting the
underwater cultural heritage.

2. A State Party shall take measures to ensure that activities within
its zone affecting the underwater cultural heritage comply at a
minimum with the provisions of the Charter.

Commentary

1. The jurisdiction of States over the underwater cultural heritage was
briefly discussed at the Third United Nations Law of the Sea Conference
(UNCLOS III). In Article 303 of the Convention, a legal fiction was created
to give States some control over excavations within but not beyond their
contiguous zones. This provision is widely regarded as ineffective and
insufficient for protection of the underwater cultural heritage. Moreover,
it pays no regard to inconsistencies in the current territorial jurisdiction
exercised by States over the underwater cultural heritage. Some States use
the contiguous zone as a benchmark (e.g. France); others the continental
shelf (e.g. Australia, Ireland, Spain); Denmark uses its 200-mile fishing
zone; and yet others use the Exclusive Economic Zone (e.g. Morocco). The
Convention allows each State Party to establish a “cultural heritage zone”
coextensive with the Continental Shelf (Article 1). This is compatible with
the 1992 European Convention on the Protection of the Archaeological
Heritage (Revised).

There is no obligation on a State to adopt a “cultural heritage zone”. If
a State wants to limit its control over underwater cultural heritage to a
three-mile territorial sea, it can do so and still become party to the
Convention.

2. Although the coastal State is considered to be the best agent under
international and domestic law for protecting the underwater cultural
heritage on the Continental Shelf , coastal States sometimes do not live up
to their obligations. Article 5(2) is designed, therefore, to prevent States
from simply declaring a cultural heritage zone and then doing nothing more.
The provisions of the Charter are regarded as minimum standards for
treatment of the underwater cultural heritage.

 

Article 6: Internal and Territorial Waters

States Party shall transmit a copy of the Charter to all relevant
authorities within their jurisdiction, requiring them to take appropriate
measures to apply the Charter, at a minimum, to activity within their
internal and territorial waters.

Commentary

The Convention does not attempt to control standards of archaeology in
internal waters or the territorial sea. A large number of States apply the
same rules to underwater archaeology in these areas as they do to land
archaeology. Consequently, any attempt to apply the requirements of the
Convention in the territorial sea, for example, would require those States
either to change their laws or to separate out the underwater aspects of
those laws. That would be beyond the stated scope of the Convention.
Nevertheless, in an attempt to further the implementation of minimum
standards, States Party are encouraged to apply the provisions of the
Convention and the criteria of the Charter to internal and territorial
waters.

Article 7: Prohibition of the Use of Territory
in Support of Activities Violating the Charter

No State Party shall allow its territory or any other areas over which it
exercises jurisdiction to be used in support of any activity affecting
underwater cultural heritage and inconsistent with the criteria of the
Charter. This provision shall apply to any such activity beyond that
State’s territorial sea but not within a-territorial sea or cultural
heritage zone of another State Party.

Commentary

The Committee considered a hypothetical excavation by a European group of
a wreck outside the “cultural heritage zone of Malaysia. Obviously, for the
salvors, the most convenient places for recreation, refuelling, obtaining
stores, and so on, would be Malaysia or perhaps Singapore. Without this
provision, even if all the countries of the region were party to the
Convention, it might impose no constraints on activities violating Charter
criteria.

Article 8: Prohibition of Certain Activities
by Nationals and Ships

Each State Party shall undertake to prohibit its nationals and ships of its
flag from activities affecting underwater cultural heritage in respect of
any area which is not within a cultural heritage zone or territorial sea
of another State Party. The prohibition shall not apply to activities
affecting the underwater cultural heritage that comply with the Charter.

Commentary

This prohibition is a core of the Convention. Past experience indicates that
nationality is a principal jurisdictional basis to enforce the Convention.
Nationality of the vessel used for a questionable activity is too uncertain;
for example, the vessel may be too small to require registration or
registration of the vessel in a flag-of-convenience state might also limit
effectiveness. An alternative might be universal jurisdiction, but extension
of its scope of activiting related to underwater cultural heritage is apt
to be too controversial.

States have been resorting to the nationality principle of jurisdiction more
frequently to deal-with situations where territorial jurisdiction is
ineffective. One relevant example is the Protection of Military Remains Act
1986, under which the United Kingdom protects the site of British vessels
and aircraft that sank or crashed on military service, even if the site be
in international waters. It is an offence for British nationals to take any
action in respect of such a site without a license.

This prohibition is not absolute. Activities affecting the underwater
cultural heritage as defined can be carried out provided they are done in
accordance with the provisions of the Charter. Material excavated under
these conditions would be allowed entry into States Party.

Article 9: Permits

A State Party to this Convention may provide for the issuance of permits
allowing entry into its territory of underwater cultural heritage excavated
or retrieved after the effective date of this Convention so long as the
State has determined that the excavation and retrieval activities have
complied or will comply with the Charter.

Commentary

Search for and possible excavation of underwater cultural heritage is often
expensive in terms of both time and money. Those undertaking such activities
need an assurance that any material raised will be allowed entry into a
State Party without the possibility of seizure. This Article gives a State
an optional power to issue permits providing for entry of material. Such a
permit could be issued before the work begins, subject to a condition that
activity be conducted in accordance with the provisions of the Charter. To
ensure this, the permit must make provision for supervision of the work.
However, the permit could be issued after the work was done, provided the
issuing State has been satisfied that the work was conducted in a manner
that complied with the Charter. In other words, the essential point is that
what is done must be in accordance with Charter. When, and if, the permit
is issued is a matter for individual States Party.

 

Conclusion

Notes

See Also

References and Further Reading

About the Author/s and Reviewer/s

Author: international

Mentioned in these Entries

Buenos Aires Draft Convention on the Protection of the Underwater Cultural Heritage 2, Buenos Aires Draft Convention on the Protection of the Underwater Cultural Heritage 2, Continental Shelf, Cultural Protection conventions, Exclusive Economic Zone.

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