A particularly complex area of public international heritage law is the ‘‘law of the sea’’. Various international agreements and disagreements have existed for millennia over travel on and (since airplanes) over the oceans, access to sea (fisheries) and seabed resources, such as oil, as well as shipwrecks and other cultural materials on the floor of the sea. The ‘‘law of the sea’’ includes maritime or admiralty law, pertaining primarily to private shipping and various rights to salvage abandoned shipwrecks or cargo. It also includes public international law, which defines differential access to and use of the sea in relation to distances from coastlines, as well as travel thereon and resources within and under it. The 1982 UN agreement, the Convention on the Law of the Sea (UNCLOS), signed by 119 nations focuses on territorial waters, sea lanes, and underwater resources. The fact that several major nation-states (the US, the United Kingdom, West Germany, Israel, and Italy, and several others) are not parties to the treaty creates various complications for the protection and study of underwater cultural heritage.
The Convention defines a nation’s territorial waters as extending 12 nautical miles beyond its coastline. Beyond that limit, commercial or military ships or aircraft may move freely. A contiguous zone may extend out to 24 miles. Coastal nations have exclusive rights to fisheries resources out to 200 nautical miles, called the ‘‘exclusive economic zone’’; coastal nations with continental shelves have exclusive rights to oil, gas, and other natural, but not cultural, resources up to 200 nautical miles. Beyond the 200 mile limits are the high seas, traditionally not subject to national control - the ‘‘freedom of the seas’’.
Over the centuries, laws, treaties, and practices relating to salvage of shipwrecks and/or sunken cargoes, fluctuated widely, whether under the ‘‘high seas’’, or in or adjacent to territorial waters, however defined. The advent of systematic study of and attempts to protect underwater cultural resources after World War II highlighted problems of freedom to salvage versus scholarly study and protection and conservation of the resources. One complicating factor in the protection of underwater heritage is the issue of sovereignty. Government-owned vessels do not fall under the general laws of the sea. Warships are similar to embassies: they cannot be entered by local law-enforcement officials when anchored in foreign waters. If they sink they cannot be salvaged without the permission of the navy that owns them - whether they are in territorial, coastal, or international waters. The principle of sovereignty holds as long as the owning nation, or a recognized descendant nation, continues to exist. A second factor is that ships in international waters can only be salvaged if they are abandoned. If an owner or insurer exists and has not given up its interest in a vessel, a salvor must come to an agreement with that entity before proceeding with any salvage operation.
The 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage provides a framework for participating nation-states to deal with the issues. The convention recognizes the UNCLOS definitions of territorial, contiguous, and international waters, referring to the latter as the ‘‘Area’’. The convention aims to ‘‘preserve underwater cultural heritage for the benefit of humanity’’. It states that
The commercial exploitation of underwater culture heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of the underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods.
Ships flying the flags of signatory nations are obliged to report discoveries of shipwrecks and any illicit activities they observe in their own waters or the Area. Once reports are received by signatory governments, they ‘‘shall take measures to prevent the entry into their territory, the dealing in, or possession of, underwater cultural heritage illicitly exported and/or recovered’’.
In summary, national and international heritage laws, conventions, and other instruments have developed over many centuries. Since 1970, the ongoing emergence of a ‘global society’ has led to linkages of the heritage instruments of multinational organizations, nation-states and those of self-defined peoples in concerted attempts to protect and control places, objects, and ideas regarded as being part of the shared heritage of humanity or some significant portion thereof. Looting and trafficking in antiquities contravenes the basic idea of protecting, conserving, and sharing the human cultural heritage. The heritage is seen as existing both on land and beneath the seas.
Seealso: Antiquities and Cultural Heritage Legislation; Cultural Resource Management; Illicit Antiquities; World Heritage Sites, Types and Laws.
World History
