The Legal Viability of the 2001 UNESCO Underwater Cultural Heritage Convention

Thomas Street, 2006 National Sea Grant Fellow, Office of the Assistant Administrator, National Ocean Service1

In 2001, the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted an international convention focused upon the governance of Underwater Cultural Heritage (UCH).2 Currently, ten States have become signatories to the UNESCO UCH Convention: Panama, Bulgaria, Mexico, Nigeria, Croatia, Paraguay, Portugal, Spain, Libya, and Lithuania, with the agreement coming into force after ratification by twenty States. The agreement is applicable in the maritime zones created by the 1982 United Nations Convention on the Law of the Sea (UNCLOS). In fact, the UNESCO UCH Convention was drafted in large part to address the lack of specificity inherent in the two provisions of UNCLOS that extended to UCH.

UNCLOS provides for eight maritime zones. The first maritime zone is interior waters, which are those waters located landward of the baseline, as established under Articles 5 and 7. The second maritime zone is the territorial sea. Article 3 provides each coastal State with the ability to designate a territorial sea not to exceed 12 nautical miles (NM), as measured from the baseline. The third maritime zone is the contiguous zone. Article 33 allows a coastal State to declare a contiguous zone to no more than 24 NM from the baseline. The fourth maritime zone is the Exclusive Economic Zone (EEZ). Article 56 notes that the EEZ extends to “the waters superadjacent to the seabed and of the seabed and subsoil [not to exceed 200 NM from the baseline . . . ] The fifth maritime zone is the continental shelf, which pursuant to Article 76, is that area of the “seabed and subsoil . . . that extend[s] beyond the territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 [NM] from the baselines . . . where the . . . continental margin does not extend up to that distance.” In two situations (provided for by Article 76), the continental shelf may extend beyond this distance. The sixth maritime zone is the high seas. The high seas are those aspects of the oceanic water column not located in the EEZ, territorial sea, archipelagic waters, or in the internal waters of any State. The seventh maritime zone is the Area, composed of the mineral resources of the seabed and subsoil located beyond the jurisdiction of any State. The eighth and last maritime zone is archipelagic waters. Archipelagic waters are those areas of the ocean that fall within the baselines of an archipelagic State, pursuant to Articles 46-50.

As indicated above, UNCLOS has two provisions that relate to the UCH. Article 149 provides that archeological resources found in the Area are to be “preserved or disposed” for the benefit of humanity as a whole, with particular regard paid to States with a historical or cultural link. Of the four subprovisions of Article 303, two are of paramount importance to this issue. The first, Article 303(2), allows States to exercise indirect authority over UCH located in the contiguous zone by “presum[ing] that their removal from the seabed would result in an infringement” of pertinent laws of its territory or territorial sea. The second, Article 303(4), notes that “[t]his article is without prejudice to . . . other international agreements and rules of international law regarding the protection of objects of an archeological or historical nature.”

The United States and other major maritime powers (mainly the industrialized States of Europe, as well as Russia) have great concern with the legal viability of the UNESCO UCH Convention and do not support its implementation.3 These concerns are largely grounded upon two main considerations: the treatment of warships and enhanced coastal State jurisdiction in alleged contravention to UNCLOS. Focusing upon the latter issue, this article will specifically analyze whether the UNESCO UCH Convention can be considered legally viable in light of UNCLOS in accordance with the Vienna Convention on the Law of Treaties.

Treaties and Treaty Interpretation
Treaties are perhaps the most important element of the modern international system and are necessary as they provide the mechanism by which States can interact with each other in a manner which entails “binding” obligations. Modern treaty law is codified by the Vienna Convention on the Law of Treaties (Vienna Convention) and is predicated upon long-existing customary international law. It is important to note that even as the United States has not acceded to the Vienna Convention, it accepts its provisions as evidence of binding customary international law. International treaty law provides a two-step methodology that addresses the possible reconciliation of successive treaties relating to the same general subject area, as is the case with the UNESCO UCH Convention and UNCLOS. The first step attempts to reconcile successive varying international agreements through interpretation so that both of the agreements can coexist. Under this method, “[a] harmonizing approach to the interpretation of two colliding treaties follows a relatively soft approach in order to coordinate agreements . . . If two treaties can be brought into harmony by an interpretation that coordinates their contents,” more formal conflict resolution methods need not be invoked.4 If this attempt fails, the second step utilizes the protocols of the Vienna Convention on the Law of Treaties, largely Article 30, to determine the legal priority and viability of each international agreement vis-à-vis the other. In regards to this second rule, Article 30 of the Vienna Convention is clear that first priority must always be given to the intent of the parties as expressed by any conflict and compatibility clause.5 In this regard, Article 30 of the Vienna Convention notes, in part, that “[w]hen a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.” As the UNESCO UCH Convention has a provision which states that “[t]his Convention shall be interpreted and applied in the context of and in a manner consistent with international law, [including UNCLOS,]” this analysis will focus upon the legal status of the UNESCO UCH Convention under contemporary international treaty law in relationship to UNCLOS, the treaty that codifies most international oceans law.

The first step in treaty resolution attempts to reconcile agreements through interpretation. Attempting to interpret UNCLOS and the UNESCO UCH Convention so as to allow both to be executed is seemingly impossible due to explicit grants of authority in the UNESCO UCH treaty not provided for by UNCLOS. To be successful, the contents of both treaties need to be successfully harmonized so that the execution of one does not frustrate the intent and purposes of the other. As a baseline, it is important to remember that UNCLOS is considered to be the pre-eminent international agreement relating to the oceans with definitive limits placed upon the rights of States in each maritime zone. In balancing the interests of coastal and maritime States, UNCLOS provides tightly constrained grants of jurisdiction which state the explicit limits to which their powers extend in each maritime zone. In its broad delegation to coastal States to “regulate and authorize activities directed at [UCH]” in regards to the contiguous zone or “prohibit or authorize any activity directed at” UCH in terms of the EEZ or continental shelf, the UNESCO UCH Convention clearly attempts to provide enhanced coastal State jurisdiction contrary to UNCLOS.

As reconciliation proves impossible, the second step in treaty analysis utilizes relevant provisions of the Vienna Convention to assess the legal priority and viability of pertinent instruments. Guidance for this is provided by Article 30 of the Vienna Convention which notes, in part, that “[w]hen a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.” As the UNESCO UCH Convention states “[t]his Convention shall be interpreted and applied in the context of and in a manner consistent with international law, [including UNCLOS,]” the following analysis, as to each maritime zone, will illustrate how the UNESCO UCH Convention is fatally conflictive and cannot validly be applied in the context of UNCLOS.

Internal Waters, the Territorial Sea, and Archipelagic Waters
UNCLOS establishes the sovereign status of a State’s internal waters. With the UNESCO UCH Convention’s requirement that detailed archeological standards apply to UCH even within internal waters, the sovereignty of a coastal State is clearly impinged. This issue also extends to the territorial sea and archipelagic waters. In both of these additional zones, States are accorded sovereignty, subject to a number of limitations relating to innocent passage. Consequently, any affirmative requirement that archeological standards be applied in these maritime zones impinges upon coastal State sovereignty in a manner not prescribed by UNCLOS.

The Contiguous Zone
It is very likely that the provisions of the UNESCO UCH Convention relating to the contiguous zone “prejudice[s] the rights, jurisdiction and duties of States” under UNCLOS. As illustrated above, UNCLOS does not grant direct regulatory jurisdiction for coastal States over UCH in the contiguous zone, but rather provides indirect regulatory authority over UCH by equating removal from that zone as being a violation of pertinent laws of the territorial sea or a State territory. By directly extending powers to “regulate and authorize” activities related to UCH, the UNESCO UCH Convention consequently impacts the rights and jurisdiction of States as provided by UNCLOS.

The EEZ and the Continental Shelf
It is also likely that the provisions of the UNESCO UCH Convention granting coastal States the right to allow or forbid any activity directed towards UCH in its EEZ or on its continental shelf “prejudice[s] the rights, jurisdiction and duties of States” provided by UNCLOS. UNCLOS provides extensive provisions governing the exploitation, conservation, management and exploration of natural resources located in the EEZ and continental shelf. On the whole, States are afforded more rights in the EEZ than on the continental shelf. As UNCLOS has already established the rights and duties of States in this zone, any attempt by the UNESCO UCH to extend rights not contemplated by UNCLOS into these zones is problematic.

There are two other problematic issues in regards to the EEZ and continental shelf. The first is the requirement of prior notification for activities directed at UCH and for discoveries in the EEZ and on the continental shelf of both the flag State or State of nationality as well as any third party States. The second is the allowance of emergency jurisdiction to a coastal State in regards to UCH located in its EEZ or on its continental shelf for stabilization purposes. Both of these considerations clearly affect the rights, duties, and jurisdiction of State-parties.

The Area
The majority of the UNESCO UCH Convention’s provisions as to the Area are a legally viable supplement to UNCLOS under international treaty law; however, there are some problematic components. The first is the granting of authority to States to engage in emergency remedial efforts for non-military UCH located in the Area. This is a grant of authority nowhere contemplated within UNCLOS. The second relates to the requirement that State parties require their nationals and vessels to provide prior notification of any activities directed at UCH and all discoveries, as discussed above.

Article 303(4) and the Future Development of UCH Management Measures
UNCLOS provides for detailed procedures by which subsequent agreements may be created and its relationship to any consequent agreements managed. In general, Article 311(3) requires that subsequent agreements not derogate from the basic principles underlying UNCLOS. However, Article 311(5) notes that Article 311 as a whole does “…not affect international agreements expressly permitted or reserved by other articles of the Convention.” In possible relationship to this, Article 303(4) expressly states that it “is without prejudice to other international agreements and rules of international law regarding the protection of an archeological and historical nature.” Some have argued that Article 303(4), in conjunction with Article 311(5), allows subsequent international agreements that relate to the UCH to derogate from the basic principles underlying UNCLOS (i.e., expanded coastal State jurisdiction). The viability of this argument is unclear through a plain interpretation of UNCLOS. The legislative history of Article 303, however, is quite clear that the drafters were very much against any expansion of coastal State jurisdiction in regards to UCH.

This issue, however, does not affect the UNESCO UCH Convention’s application in relation to UNCLOS, due to the former’s provisions stating that “[n]othing in this Convention shall prejudice the rights, jurisdiction and duties of States under international law, including [UNCLOS]. This Convention shall be interpreted and applied in the context of and in a manner consistent with international law, including [UNCLOS].” Consequently, as the UNESCO UCH Convention requires that it be interpreted in light of UNCLOS, it can be seen, based upon the analysis provided above, that the UNESCO UCH Convention is an invalid attempt at supplementing Articles 149 and 303 of UNCLOS pursuant to the Vienna Convention.

Endnotes
1. The views expressed in this paper are the author’s alone and do not necessarily represent the position of the United States government or the Sea Grant Law Center.
2. UCH is, in general, sunken shipwrecks and submerged archeological sites. See, Anastasia Strati, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea (The Hague: Martinus Nijhoff Publishers, 1995).
3. R. Blumberg, International protection of the underwater cultural heritage, in Recent Developments in the Law of the Sea and China, M. H. Nordquist, J. N. Moore, and K. Fu, eds. (Leiden: Martinus Nijhoff Publishers, 2006).
4. Rüdiger Wolfrum and Nele Matz, Conflicts in International Environmental Law (Berlin: Springer, 2003), 133.
5.Conflict and compatibility clauses are elements in international agreements that state the priority that other international agreements will play in regards to their interrelationship.