جستجوی مقالات مرتبط با کلیدواژه "underwater cultural heritage" در نشریات گروه "فقه و حقوق"

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.

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.

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.

The convention adopted in UNESCO on protection of underwater cultural heritage prescribed that the sunken state vessels and warships, whether regarded as cultural heritage or otherwise, shall remain under exclusive sovereignty of the flag state, unless it abandons and/or explicitly waives its rights and title to such vessels. Nonetheless, the relationship between costal and flag states shall take form on cooperation basis. Meanwhile, although excluded from the text of the convention, there are ancient set of rules and principles (e.g. the law of finds and the salvage law) which in certain conditions (consent or authorization of the competent states involved) may be applicable to marine issues, namely exploration operations and recovery of underwater cultural heritage or sunken vessels.