Legal Mechanisms for Protecting the Underwater Cultural Heritage in the Area: A Critical Look at the Role of International Seabed Authority

Document Type : Research Paper

Author

Assistant Professor, Department of Law, Faculty of Humanities, Islamic Azad University, Qaemshar Branch, Qaemshahr, Iran

Abstract

One of the issues addressed by the UNCLOS is the protection of the underwater cultural heritage in the Area. Article 149 not only has many shortcomings and ambiguities but also lacks any solution or framework for the implementation of the measures provided for therein. The "International Seabed Authority" has not been introduced as a competent organ for the implementation of these measures. The UNESCO's 2001 Convention provides two mechanisms for "Reporting and Notification" and "Protection" for ancient and historical objects and the Authority is merely informed and consulted without being able to exercise competence in this regard. Given this international organization's extensive powers to explore and extract resources of Area and close connection between "Activities in the Area" and archaeological activities, the question is what is the role of the Authority in protecting underwater cultural heritage in the Area? In this research, an attempt is made to answer this question with a descriptive-analytical approach and by examining and analyzing the measures and mechanisms prescribed in documents. The findings show that under the UNCLOS and the UNESCO's 2001 Convention, in the absence of effective role of Authority, the issue of protection of underwater cultural heritage has been left to the Flag-States. In contrast, the recent decisions of this organization indicate the practical necessity of having and exercising such powers by it.

Keywords

References

Arend, Anthony Clark (1984) “Archaeological and Historical Objects: The International Legal Implications of UNCLOS III”, Journal of International Law, Vol.22, No.4, pp.777-804.
Blake, Janet E. (2015) International Cultural Heritage law (Cultural Heritage Law and Policy), Oxford University Press.
Cogliati-Bantz, Vincent P. & Forrest, Craig J S. (2013) “Consistent: the Convention on the Protection of the Underwater Cultural Heritage and the United Nations Convention on the Law of the Sea”. Cambridge Journal of International and Comparative Law, Vol. 2, No. 3, pp. 536-561.
Dromgoole, Sarah (2003) “2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage”, The International Journal of Marine and Coastal Law, Vol. 18, No. 1, pp. 59-91.
Dromgoole, Sarah (2010) “Revisiting the Relationship between Marine Scientific Research and the Underwater Cultural Heritage”, The International Journal of Marine and Coastal Law, Vol. 25, No. 1, pp. 33–61.
Dromgoole, Sarah (2015) Underwater Cultural Heritage and International Law, Cambridge University Press.
Frigo, Malnio (2004) “Cultural Property v. Cultural Heritage: A ‘Battle of Concepts’ in International Law?”, International Review of the Red Cross, Vol. 86, No. 854, pp. 367-378.
Galenskaya, Liudmila (1986) “International Cooperation in Cultural Affairs”, Vol. 198, in Collected Courses of the Hague Academy of International Law, The Hague Academy of International Law, pp. 265-331.
Hayashi, Moritaka (1996) “Archaeological and Historical Objects under the United Nations Convention on the Law of the Sea”. Marine Policy, Vol. 20, No. 4, pp. 291-293.
Oda, Shigeru (1976) The International Law of the Ocean Development-Basic Documents, Vol. II, 2nd Printing, Sijhoff, Leiden.
O'Keefe Patrick J. & Nafziger, James A. R. (1994) “The Draft Convention on the Protection of the Underwater Cultural Heritage”, Ocean Development and International Law, Vol. 25, No. 4, pp. 391-418.
O'Keefe, Patrick J. (2002) Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage, Institute of Art and Law.
Oxman, Bernard H. (1988) “Marine Archaeology and the International Law of the Sea”, Columbia-Volunteer Lawyers Association Journal of Law and the Arts, Vol. 12, pp. 353-371.
Pinto, M.C.W. (1986) “Emerging Concepts of the Law of the Sea: Some Social and Cultural Aspects”, UNESCO Impact of Science and Technology, pp. 335-345.
Proelss, Alexander (ed.) (2017) United Nations Convention on the Law of the Sea: A Commentary, München, Oxford and Baden-Baden, C. H. Beck/Hart/Nomos.
Scovazzi, Tullio (2017) “The Relationship between Two Conventions Applicable to Underwater Cultural Heritage” in James Crawford, Abdul G. Koroma, Said Mahmoudi, Alain Pellet (ed.) The International Legal Order: Current Needs and Possible Responses: Essays in Honour of Djamchid Momtaz, Brill-Nijhoff, pp. 504-518.
Strati, Anastasia (1995) The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea, The Hague, Kulwer Law International.
Vadi, Valentina Sarah (2009) “Investing in Culture: Underwater Cultural Heritage and International Investment Law”, Vanderbilt Journal of Transnational Law, Vol. 42, No. 3, pp. 853-904.
 
Reports
Strati, Anastasia (1999) Draft Convention on the Protection of the Underwater Cultural Heritage: A Commentary, Prepared for UNESCO, UNESCO Doc. CLT-99/WS/8.
Report of the Secretary-General of the International Seabed Authority under Art. 166, Paragraph 4, of the United Nations Convention on the Law of the Sea, ISBA/8/A/5, June 2002.
 
Cases
Fisheries Jurisdiction Case (United Kingdom v. Iceland), ICJ, Judgment, ICJ Reports, 1974.
Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), ICJ, Judgment, ICJ Reports, 1974.
 
Documents
"Archaeological and Historical Treasures on the Sea-Bed and Ocean Floor Beyond the Limits of National Jurisdiction", Doc. A/AC.138/SC.I/L.21 of 28 March.
"Draft Article on Protection of Archeological and Historical Treasures", Doc. A/AC.138/SC.I/L.25 of 14 August 1973.
ISA, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, ISA Doc. ISBA/6/A/18 (2000), Annex (Polymetallic Nodules Regulations).
ISA, Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, ISA Doc. ISBA/16/A/12/REV.1 (2010), Annex (Polymetallic Sulphides Regulations).
ISA, Regulations on Prospecting and Exploration for Cobalt-Rich Ferromanganese Crusts in the Area, ISA Doc. ISBA/18/A/11 (2012), Annex (Cobalt-Rich Ferromanganese Crusts Regulations).
ISA, Report to Members of the Authority and all stakeholders, available at https://www.isa.org.jm/files/documents/EN/ Survey/ Report-2015.pdf.
UNESCO Secretariat, ‘Feasibility Study for the Drafting of a New Instrument for the Protection of the Underwater Cultural Heritage’, presented to the 146th Session of the UNESCO Executive Board, Paris, 23 March 1995, Doc. 146 EX/27.
Journal of Legal Studies
Volume 12, Issue 3 - Serial Number 37
November 2020
Pages 127-157

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