محمد رضوی راد

Considering the growing number of human casualties that peacekeeping operations have entailed in recent years, protection and support for peacekeeping forces have drawn further attention. There are fundamental questions in this regard. What are the measures and mechanisms of the international legal system to protect UN peacekeepers? How successful have they been in protecting these forces? This descriptive-analytical study hypothesized that the international legal system used the Security Council resolutions, the Status of Forces Agreement (SOFA), the Convention on the Safety of United Nations and Associated Personnel (1994), the Geneva Conventions of 1949, the Rome Statute of the International Criminal Court (1998), and other documents to devise certain mechanisms and measures for protecting UN peacekeepers. Nevertheless, these mechanisms and measures have failed to yield efficient and satisfactory outcomes as expected. Although all member states are obliged to obey the resolutions of the UN Security Council, the wording and tone of some of these resolutions do not oblige the member states to do so. The SOFA is a bilateral agreement with a limited scope of action in most cases. Moreover, the Convention on the Safety of United Nations and Associated Personnel is a multilateral agreement that has not been welcomed and supported properly by member states, especially those that host UN peacekeepers. Finally, it is difficult to generalize the provisions and protocols of the Geneva Conventions (1949) and the Rome Statute of the International Criminal Court (1998) to the issue of protecting UN peacekeepers.

In the process of UN peacekeeping operations and in the process of conducting peacekeeping missions in war and occupied territories; Crimes may be committed against women that require prosecution. On the other hand, it should be noted that women and children are exposed to victims, including sexual victims, due to their poor physical condition. According to numerous reports to the United Nations through female victims and sex victims, UN peacekeeping forces appear to be a new and serious threat to women and even to war. Children in areas of the host State are considered. Therefore, in this article and through the descriptive-analytical method, we seek to answer this key question: What challenges and obstacles does the prosecution and punishment of UN peacekeepers for committing crimes of sexual violence against women during peacekeeping operations face? The findings of this article show that according to Article 7 of the Rome Statute, the possibility of applying the jurisdiction of the International Criminal Court to the crime of sexual violence against women by UN peacekeepers faces major challenges and obstacles. In fact, the distinction of the present research compared to other related researches is the exploration, finding and detailed analysis of the current capacities of the international legal system for the prosecution and trial of the mentioned criminals.

The 1982 Convention on the Law of the Sea has devoted one of its provisions to protect the underwater cultural heritage in the contiguous zone. Article 303(2), contains a legal presumption in favor of the coastal state on removing the cultural heritage from the bed of contiguous zone. The relation of this article with article 33 has led to ambiguities and various interpretations on the legal nature of coastal state’s jurisdiction over this maritime zone. Some authors have spoken about the limited jurisdiction of the coastal state and some others on its broader jurisdiction over "objects of archaeological and historical nature" on the bed of Contiguous Zone. In the meantime, some put forward the theory of "24-mile archaeological zone" and pose some arguments to defend it. Article 8 of the 2001 UNESCO’s Convention on the Protection of Underwater Cultural Heritage, albeit with a lot of complexity and ambiguity, does not seem to support broad jurisdiction or the theory of a "24-mile archaeological zone".

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.

One of the issues addressed by the UNCLOS is the protection of the marine environment. The major challenge in this respect is that the Convention has in most cases only referred to general principles and requirements and has not specified more detailed rules and specific environmental standards. This can create many practical problems for States Parties in fulfilling their environmental obligations. The reasons for this include avoiding the practical difficulties and difficulties caused by the amendment and updating of this Convention in order to comply with the newer standards. The approach taken in UNCLOS is to refer to the rules and standards contained in other instruments, such as the “International Convention for the Prevention of Pollution from Ships (MARPOL)”, which is much simpler to amend and update. The challenge is the legal status of the rules and standards in the recent Convention for the States Parties to UNCLOS, since; the convention has never explicitly referred to this document. However, these rules and standards seem to be binding for States Parties to UNCLOS, such as the provisions of the MARPOL.

Although underwater cultural heritage is defined differently by various international documents, it is generally based on two criteria: the "temporal criterion" and the "nature criterion." Among these documents are the 1982 Convention on the Law of the Sea and the UNESCO Convention on the Protection of the Underwater Cultural Heritage, adopted in 2001. The 1982 Convention did not provide a definition of underwater cultural heritage, but referred to it as "objects of an archaeological and historical nature". Such a description has many drawbacks and ambiguities and does not give a clear picture of this type of heritage. To fill this gap, the 2001 UNESCO Convention defines underwater cultural heritage as a combination of the "criterion of nature", which means having a cultural, historical or archaeological nature, and the "temporal criterion" of being underwater for 100 years. The main challenge with this definition is which of the two criteria takes precedence over the other. Although both criteria are equally important in the Convention, the standard of 100 years underwater seems to take precedence over the "standard of nature". Especially since some people believe that any object that has been underwater for 100 years has an archeological and historical nature in itself.

The State which commits wrongful act entails the international responsibility for it. This issue is recognized as one of the fundamental principles of international law. Typically, international responsibility is established as a result of commission wrongful act(s) by a State, but in certain circumstances, apart from the State conducted a wrongful act; another State(s) may be responsible as well. The "Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001" refers to these terms as "Aid and Assistance" and "Coercion". In general, these two concepts can be called "Assistant to commit an internationally wrongful act". The main issue regarding the assistance in internationally wrongful acts is how it is realized, the various forms of the assistance, and hence the limits of responsibility of the assistant. In fact, the main challenge of the present article is to present the hidden aspects of the responsibility of the assistant of the wrongful international acts and to analyze the impact of the precluding the wrongfulness of act which committed by State on the denial of the responsibility of the assistant.

In the field of commercial exploitation of underwater cultural heritage, the goal of commercial operators is to maximize profits with minimal cost and time, which is in conflict with archaeological principles requiring large investments and spending so much time. Today, due to the variety of commercial exploitation methods (which are no longer restricted to the sale of archaeological and historical objects), compromise between the goals of commercial operators and archaeologists is not unlikely. International documents have also adopted their own approach, some explicitly prohibiting any commercial exploitation of this heritage, and others implicitly prescribing it. The key question is raised on approach of the "UNESCO’s 2001 Convention on the Protection of Underwater Cultural Heritage". A detailed analysis of the provisions of the Convention indicates that it has almost prohibited the sale of archaeological and historical objects by adopting a retrogressive approach. The Convention's approach could have been more progressive in this field, in line with practical requirements, including the financing of future archeological projects.

Although much of the information derived from underwater remains is the result of activities whose primary object has not been the protection of underwater cultural heritage, UNESCO’s Convention on Underwater Cultural Heritage (2001), in principle, was not designed to address activities incidentally affecting underwater cultural heritage. Only article 5 of the Convention explicitly addresses this issue while these activities are implicitly referred to in several regulations. In maritime zones lying within 12 miles from the baseline, these activities are not subject to the provisions of the Convention and thus fall under the general provisions of the 1982 Convention. In those maritime zones beyond 12 miles, in practice, any activity may activate the reporting, notification and protection mechanisms of the treaty; there is no distinction between the types of state activities undertaken in these different maritime zones.

Salvors and finders seek to maximize the economic benefits of their actions while archaeologists seek to provide optimal conditions for the protection of underwater cultural heritage. The contradiction between the goals of these two groups is obvious and reconciling their conflicting goals is very difficult. National laws and international documents have taken two general approaches to this challenge: some of them completely prohibit the application of salvage law and the law of finds to underwater archaeological and historical remains, and others explicitly authorize the implementation of these laws in the field of underwater cultural heritage. In the meantime, The UNESCO Convention on the Protection of Underwater Cultural Heritage (2001) has tried to create a compromise between the conflicting positions of these two approaches. Article 4 of this Convention provides for the implementation of salvage law and law of finds subject to certain conditions. The compatibility of this provision with Article 303(3) of the 1982 Convention is ambiguous and its compatibility with the provisions of the International Convention on Salvage (1989) is possible under certain conditions.

The UN Convention on the Law of the Sea (1982) addressed the protection of underwater cultural heritage partly in the "Area" and "Contiguous Zone" while, in other maritime zones, the protection of related heritage remained under the general provisions of the Convention. With regard to these latter zones, because of the need to establish a "delicate balance" between the rights and jurisdictions of coastal and other States, protection of underwater cultural heritage in the exclusive economic zone and continental shelf is challenging and a matter of great importance and sensitivity. On the other hand, the UNESCO’s 2001 Convention which was developed in order to Compensate for the perceived deficiencies and gaps of the 1982 Convention regime with regard to protecting this heritage, because of disagreements over the rights and jurisdictions of coastal State, has provided for a complex and ambiguous, but also conservative mechanism, so that the general framework of 1982 Convention remains intact.