Legal Loopholes

Present laws do not adequately protect underwater heritage. A brief look at the history of the law of the sea shows why.

Prior to 1958, coastal states enjoyed sovereignty over their internal waters, extending to the low-water line, and over the adjacent belt of territorial sea (in most cases) to three nautical miles from the low-water line. The only other maritime zone over which they had any kind of jurisdiction or control was the contiguous zone, situated adjacent to the territorial sea and of variable breadth. It was not relevant to cultural heritage. At that time, the idea of claiming sovereign rights over the continental shelf was still in its infancy and the area lying seaward of the three-mile limit was generally regarded as the high seas. Under the general principle of the freedom of the high seas, states and their citizens were free to engage in any activities not forbidden by specific rules of international law.

Then, the coastal state needed only to adopt national legislation applicable out to the three-mile limit of the territorial sea to protect specific sites. However, the advent of SCUBA during the Second World War, and its increasing use by divers from the late 1950s, opened up a gap between technology and law which has not been closed.

Responsible Exploration

Apart from SCUBA, sonar, remote-operated vehicles, underwater video cameras and manned submersibles have now opened up the whole of the world ocean, including, in particular, the outer continental shelf and the deep sea-bed. It is precisely in these areas that much of the still-to-be explored cultural heritage is situated. For chemical and biological reasons, wrecks in deeper areas tend to be exceptionally well preserved and it is all the more necessary that new law should be put in place to ensuretheir responsible exploration.

Since the 1950s there have been two major conferences which codified and developed the law of the sea. The Geneva Conference in 1958 produced four Conventions on the Law of the Sea but made no reference to underwater cultural heritage. It did give general recognition to the concept of the legal continental shelf but accorded to coastal states only "sovereign rights" enabling them to explore and exploit the "natural resources" of the shelf a term clearly excluding cultural heritage.

The second conference was the Third United Nations Conference on the Law of the Sea (UNCLOS III) which produced the UN Convention on the Law of the Sea in 1982. The UN Convention runs to 320 articles but only two of them concern underwater heritage.

Article 149 covers "all objects of an archaeological and historical nature found in the area", that is, the sea-bed of the oceans lying seaward of the outer limit of the continental shelf – a zone for which the Convention established a sea-bed mining regime to be administered by an international authority. Article 149 is a well-intentioned attempt, based on Greek and Turkish proposals, to ensure that objects found in this area "shall be preserved or disposed of for the benefit of mankind as a whole, particular respect 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". Although an early draft accorded a regulatory role to the authority, the final version of Article 149 omitted any reference to the authority and no clue is given as to how in practice such objects are to be preserved or disposed of for humanity's benefit.

The only other relevant provision is found in Article 303. This article embodies the admirable – but somewhat general – principle that states have the duty to protect objects of an archaeological and historical nature found at sea and have to cooperate for this purpose. It also employs a very complicated legal fiction to enable the coastal state to punish treasure hunters who remove objects from the sea-bed of the contiguous zone, which may extend out to a maximum of 24 nautical miles from the coast. Unfortunately, 303 also goes on to say that nothing in the article affects the law of salvage or other rules of admiralty. This, of course, raises considerable difficulties for the substantial lobby which feels that salvage law (which allows the salvor to recover a reward for saving goods "in peril of the sea") should have no place in relation to cultural heritage.

It would be quite misleading to give the impression that no law exists for the protection of the underwater cultural heritage other than the framework articles of the UN Convention. A great many countries have legislation to protect historic shipwrecks and other relics in territorial seas. More recently, a number of states have assumed legislative powers to control underwater excavation – whether on the continental shelf, the exclusive economic zone or the contiguous zone. The difficulty is that there is little uniformity in this legislation and no consensus on the underlying rules of international law.

Obviously this is an intolerable situation and action is urgently required to close the gap between the threat which technology has created and the degree of protection the law provides.

by Prof. Edward Brown

Director, Centre for Marine Law and Policy, U.K.

Published in UNESCO Sources, February 1997

Published on Nordic Underwater Archaeology, Mar '99, by permission from UNESCO