Ensuring the Protection of the submerged Heritage of World War I - The UNESCO 2001 Convention
In many countries, national law provides protection for some or all submerged heritage of a certain age. For instance, the British ‘Protection of Military Remains Act 1986’ designates many World War I vessels as protected sites. Similarly, the Netherlands “Monuments and Historic Buildings Act 1988" gives all archaeological sites a basic level of blanket protection and allows for the designation of specific archaeological sites. Currently, six underwater sites have been designated for enforced protection. Belgium and France have equally protective regulations.
A problem is, however, that national law only applies as far as a State has jurisdiction.
States have full jurisdiction in their Territorial Sea, but this jurisdiction is limited in their Exclusive Economic Zone (EEZ). On the High Seas and in the Area, States generally only have jurisdiction over their own nationals and vessels flying their flag. Exceptions are recognized in some cases for the remains of State vessels. Nevertheless, the further away from the coast a submerged archaeological site is located, the more difficult it becomes for a State to prohibit any destruction which may be caused to a site by a vessel sailing under another State’s flag. Therefore, the cooperation of Flag States is crucial outside of a State’s Territorial Sea. This problem has been sadly demonstrated in the case of the recovery of artefacts from the Lusitania. In that case, the British judge ruled that there was no protection afforded by an English tribunal to a wreck lying outside of the UK’s territorial waters, even if the recovered items were subsequently brought within the United Kingdom's jurisdiction.
The existing law of the sea does not sufficiently protect the underwater cultural heritage.
The United Nations Convention on the Law of the Seas, UNCLOS, contains two regulations referring to underwater cultural heritage, Articles 149 and 303. However, both were last minute introductions and remain general in their formulations. Art. 149 stipulates a not nearer detailed protection of underwater heritage in the “Area”, i.e., “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”. Art. 303 sets a general obligation for States to protect their underwater cultural heritage - however, it only gives them effective protective powers up to the limits of the Contiguous Zone, i.e., up to 24 miles from the coast. In the large space between the Area and the Contiguous Zone, i.e., the remaining EEZ and on the Continental Shelf, underwater cultural heritage remains unprotected. Even worse, Article 303.3 of UNCLOS stipulates that “Nothing in this article affects … the law of salvage or other rules of admiralty…”. UNCLOS leaves therewith room for the commercial destruction of underwater heritage. It has even been criticized as constituting an “invitation to looting”.
The pre-existing legal vacuum is rectified by the UNESCO 2001 Convention. The Convention offers comprehensive legal protection to underwater cultural heritage and sets ethical principles and scientific guidelines for its research.
UNCLOS leaves express room for the UNESCO 2001 Convention in Article 303.4. The 2001 Convention formulates a comprehensive and universal protection regime. It explicitly prohibits unscientific activities which intrude and destroy underwater cultural heritage sites without respect to the need to protect and preserve them. The Convention covers all waters and maritime zones, greatly extending the legal protection of underwater cultural heritage. A special added value is the scientific regulation of activities directed at underwater cultural heritage set by the Convention’s Annex.