For Keeping or for Keeps? an Australian Perspective on Challenges Facing the Development of a Regime for the Protection of Underwater Cultural Heritage

By Johnson, Constance | Melbourne Journal of International Law, December 2000 | Go to article overview

For Keeping or for Keeps? an Australian Perspective on Challenges Facing the Development of a Regime for the Protection of Underwater Cultural Heritage


Johnson, Constance, Melbourne Journal of International Law


[Early next year the international community will hold the latest in a series of meetings to consider a pressing issue concerning the world's cultural heritage--the Draft Convention on the Protection of the Underwater Cultural Heritage ('Draft Convention'). The Draft Convention, which is being negotiated under the sponsorship of United Nations Educational, Scientific and Cultural Organisation, is directly concerned with the abundance of shipwrecks and other archaeological objects lying beneath the seas of the world. Many of these objects carry a wealth of historical information by virtue of their state of preservation and having lain undisturbed. However, despite their significance, no effective regime of protection exists for these objects. The Draft Convention is an attempt to remedy this situation, and Australia's contribution to its development has increased markedly over the last few years. Nevertheless a number of significant issues are yet to be resolved: the definition of underwater cultural heritage, the demarcation of jurisdiction between coastal, port and flag states regarding underwater cultural heritage activities, and the application of salvage law. Australia has particular issues concerning, for example, the underwater cultural heritage of indigenous peoples and the status of certain pre-existing domestic legislation such as the Historic Shipwrecks" Act 1976 (Cth). While these issues await resolution, the advancing tide of technology, swiftly increases' the vulnerability of the very objects the Draft Convention seeks to protect.]

CONTENTS

I   Introduction
II  The Australian Context
      A Australia's Interest in Underwater Cultural Heritage Sites
      B Bilateral Agreement between Australia and the Netherlands
      C Domestic Legislation and UNCLOS
III Issues Confronting Resolution of the Draft Convention
      A Definition of 'Underwater Cultural Heritage'
      B Draft Convention's Regime of State Rights and Obligations
      C Application of Salvage Law
          1 Current Position
          2 Rationale for the Exclusion of Salvage Law
          3 Application to Specific Cases
      D Regional Agreements
      E Exclusion of Warships
      F Extent of the Draft Convention's Conformit with UNCLOS
IV  Conclusion

I INTRODUCTION

The world is becoming increasingly aware of the wealth of history, in the form of shipwrecks and archaeological objects, which lies beneath its seas and oceans. With advances in technology this history is becoming increasingly accessible. However, as access to these sites increases, so too does their vulnerability to physical destruction. By its very nature, underwater cultural heritage with a strong historical or cultural link to particular modern states may be located in international waters far from its place of origin. The issue is therefore very much one of international concern. With this in mind, the international community is currently negotiating, under the sponsorship of the United Nations Educational, Scientific and Cultural Organization ('UNESCO'), its first multilateral treaty specifically concerned with the protection of underwater cultural heritage. The Draft Convention on the Protection of the Underwater Cultural Heritage ('Draft Convention') (1) sets out states' obligations and rights in this area, and provides an annex which establishes a charter of rules or archaeological standards for the conduct of these activities. (2) With the Draft Convention most recently considered in July 2000, (3) the challenge is to reach a finalised outcome in time to appropriately balance the opposing issues of protection and exploitation--a challenge in which Australia is playing an increasing role.

II THE AUSTRALIAN CONTEXT

Australia, alongside 83 other states, (4) recently participated in the July 2000 consideration of the Draft Convention--the Third Meeting of Governmental Experts on the Draft Convention on the Protection of Underwater Cultural Heritage--held in Paris in July 2000. …

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