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Going against the UNCLOS (in One Specific Instance)

Wednesday, 20 February 2019
by Tullio Scovazzi, Professor of International Law, University of Milano-Bicocca, Milan, Italy
Going against the UNCLOS (in One Specific Instance)
1. The UNCLOS

There is no doubt that the United Nations Convention on the Law of the Sea (Montego Bay, 1982; UNCLOS) is a cornerstone in the process for the codification of international law. It was described as a “constitution for oceans”, “a monumental achievement in the international community”, “the first comprehensive treaty dealing with practically every aspect of the uses and resources of the seas and the oceans”, as well as an instrument that “has successfully accommodated the competing interests of all nations”[1]. However, there is at least one specific matter where the UNCLOS regime was seen as leading to very unsatisfactory results. A new instrument of universal scope was adopted to better address this matter. It is the Convention on the Protection of the Underwater Cultural Heritage (Paris, 2001; CPUCH)[2].

It appears that the regime provided by the UNCLOS for underwater cultural heritage is fragmentary, being composed of only two provisions included in different parts of the convention, namely Art. 149 (in Part XI, “The Area”) and Art. 303 (in Part XVI, “General provisions”). Moreover, the two provisions are in a conceptual contradiction one with the other.

On the one hand, Art. 149 is based on the assumptions that the heritage must be preserved and used for the benefit of mankind and that preferential rights should be granted to certain States having a link with it:

All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin”.

On the other hand, Art. 303 can be interpreted, at least in its English text, as an implicit invitation to the looting of the underwater cultural heritage, especially the heritage found on the continental shelf:

1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose.
2. In order to control traffic in such objects, the coastal State may, in applying article 33 [= the contiguous zone], presume that their removal from the sea-bed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article [= customs, fiscal, immigration or sanitary laws and regulations].
3. Nothing in this article affects the rights of identifiable owners, the law of salvage and other rules of admiralty, or laws and practices with respect to cultural exchanges.
4. This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature”.

Art. 303, para. 3, gives priority to “the law of salvage and other rules of admiralty”, without clarifying the meaning of this expression. In many countries, the notion of salvage is referred to the attempts to save a ship or its cargo from imminent marine peril, but it is not intended to apply to sunken ships that, far from being in peril, have been definitively lost for hundreds or thousands of years. Contrarily, in a minority of common law countries, and in particular in the United States[3], the notion of salvage law has been enlarged by court decisions to cover also an activity, the so-called treasure salvage, that has very little to do with ships in peril. American courts apply admiralty law in an extra-territorial manner, to grant salvors and finders rights over wrecks and properties found at sea, wherever they are located. This results in the application of a first-come-first-served or freedom-of-fishing approach to underwater cultural heritage, serving the interest of private commercial gain at the detriment of the objective of research on, and exhibition of, underwater cultural heritage for public interest. If this is the case, a State which has a cultural link with certain objects found underwater could be deprived of any means for preventing the pillage of its historical and cultural heritage.

2. The CPUCH

The CPUCH was adopted within the framework of the UNESCO (United Nations Educational, Scientific and Cultural Organization). It builds on the assumptions contained in Art. 149 UNCLOS and basically aims at preventing the risk of a freedom of pillage regime arising from Art. 303, para. 3, UNCLOS. It provides in general that States Parties are bound to “preserve underwater cultural heritage for the benefit of humanity” (Art. 2, para. 3) and that “underwater cultural heritage shall not be commercially exploited” (Art. 2, para. 7). Although it does not totally ban the law of admiralty, including law of salvage and law of finds, the CPUCH regime has the practical effect of preventing all the undesirable effects of the application of this kind of rules:

“Any activity relating to underwater cultural heritage to which this Convention applies shall not be subject to the law of salvage or law of finds, unless it:
(a) is authorized by the competent authorities, and
(b) is in full conformity with this Convention, and
(c) ensures that any recovery of the underwater cultural heritage achieves its maximum protection” (Art. 4).

As regards the underwater cultural heritage found in the continental shelf, for which no provision can be found in the UNCLOS, the CPUCH sets forth a procedural mechanism, based on the three steps of reporting, consultations and urgent measures. It envisages the participation of the States having a verifiable link to the heritage[4], which are bound to consult on on how best to ensure the protection of the heritage.

3. Reconciliation?

Given the evident conflict between Art. 303, para. 3, UNCLOS and Art. 4, CPUCH (not to mention conflicts between other provisions of the two treaties), those States that are parties to both treaties[5] are called to determine what provision applies. 

Where successive treaties relating to the same subject-matter are applicable, Art. 30 of the Convention on the Law of Treaties (Vienna, 1969) provides for the following regime:

“1. (...) the rights and obligations of States parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs.
2. When 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.
3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 
4. When the parties to the later treaty do not include all the parties to the earlier one:
a) as between States parties to both treaties the same rule applies as in paragraph 3;
b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations”.

Accordingly, the questions to be addressed seem to be the following: 
a) whether a provision of the earlier treaty and a provision of the later one relate to the same subject-matter;
b) if so, whether one of the two treaties specifies that it is subject to the other; 
c) if this is not the case, whether and to what extent the relevant provisions in the two treaties are incompatible, considering that, whenever possible, the provisions should be interpreted according to a meaning that leads to their reconciliation[6]
d) finally, if reconciliation between the provisions of the two treaties is not possible, the provision of the latter treaty applies.

In the case of the UNCLOS and the CPUCH, it is evident that Arts. 149 and 303 UNCLOS, on one hand, and the whole CPUCH, on the other, relate to the same subject-matter and that, consequently, the two regimes overlap. 

Coming to the question whether one of the two treaties specifies that it is subject to the other, Art. 3 CPUCH provides as follows: 

Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under international law, including the United Nations Convention on the Law of the Sea. This Convention shall be interpreted and applied in the context of and in a manner consistent with international law, including the United Nations Convention on the Law of the Sea[7].

This provision, which gives priority to the UNCLOS, is however balanced by Art. 303, para. 4, UNCLOS:

This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature”.

There is no reason why this provision should be referred only to agreements concluded before the adoption of the UNCLOS and not also to subsequent agreements, such as the CPUCH itself.  

The rather paradoxical situation of two treaties, each of them providing that it is subject to the other, is difficult to handle. An attempt to get out of the deadlock could be to assume that Art. 3 CPUCH leaves unaffected all the many UNCLOS provisions different from the two specifically related to underwater cultural heritage, namely Art. 149 and 303. The latter are superseded, insofar as they are in conflict with the CPUCH provisions, by the more specific and later CPUCH regime. This would be consistent with the general principle of law according to which the special rules prevail over the general rules (lex specialis derogat legi generali).     

The contradictions within the UNCLOS itself should also be emphasized and do not contribute to clarify the complex question that is being addressed. Art. 149 and Art. 303 are in conceptual contradiction with one another, as the former aims at the benefit of mankind and the latter at the benefit of finders and salvors.
 
Within Art. 303, para. 3 contradicts and thwarts para. 1, since the application of the law of salvage and other rules of admiralty can hardly lead to the protection of the underwater cultural heritage, but only to its commercial exploitation. Additional elements of contradiction are due to the presence of two non-prejudice clauses (para. 3 and para. 4) in the same provision. If there were a conflict between them – for instance if a treaty concluded under para. 4 banned the application of admiralty law to underwater cultural heritage – would this treaty by compatible with Art. 303? There is no logical answer to the question.

The fact that the subject of underwater cultural heritage was taken into consideration only in the last period of a negotiation that lasted for about ten years (from 1973 to 1982) cannot be a justification for such an unsatisfactory UNCLOS regime. When the question of protection of underwater cultural heritage was finally addressed, the UNCLOS drafters had other concerns in mind, in particular the preservation of the balances that other UNCLOS provisions had established[8]. Underwater cultural heritage was not a major concern for the UNCLOS drafters. 

The CPUCH may be seen as a reasonable defence against the contradictory and probably counterproductive regime of the UNCLOS. If the looting of the heritage is the result of the UNCLOS regime, it is the UNCLOS that is wrong on this matter, irrespective of all the bal¬ances that it wishes to preserve. 


ENDNOTES
  1. See KOH, A Constitution for the Oceans, in U.N., The Law of the Sea - Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, New York, 1983, p. xxiii.
  2. This short paper is based on SCOVAZZI, The Relationship between Two Conventions Applicable to Underwater Cultural Heritage, in CRAWFORD, KOROMA, MAHMOUDI & PELLET (eds.), The International Legal Order: Current Needs and Possible Responses – Essays in Honour of Djamchid Momtaz, Leiden, 2017, p. 504. For the opposite view that the UNCLOS and the CPUCH can be reconciled, see AZNAR, The Legal Protection of Underwater Cultural Heritage: Concerns and Proposals, in ESPOSITO, KRASKA, SCHEIBER & KWON (eds.), Ocean Law and Policy: 20 Years under UNCLOS, Leiden, 2017, p. 124.
  3. See SCHOENBAUM, Admiralty and Maritime Law, 4th ed., vol. II, St. Paul, 2004, p. 176. For example, according to the United States Court of Appeals for the Fourth Circuit in the decision rendered on 24 March 1999 in the case R.M.S. Titanic, Inc. v. Haver (in International Legal Materials, 1999, p. 807), the law of finds means that “a person who discovers a shipwreck in navigable waters that has been long lost and abandoned and who reduces the property to actual or constructive possession becomes the property’s owner”. In its turn, the law of salvage, which applies where the owner of the property is known, gives the salvor a lien (or right in rem) over it.
  4. The CPUCH does not define what is a “verifiable link”.
  5. Today, 167 States and one international organization are parties to the UNCLOS and 60 States are parties to the CPUCH.
  6. Under Art. 31, para. 3 c, of the Vienna Convention on the Law of Treaties, in the interpretation of a treaty provision account shall also be taken of “any relevant rules of international law applicable in the relations between the parties”.
  7. According to GARABELLO, The Negotiating History of the Convention on the Protection of the Underwater Cultural Heritage, in GARABELLO & SCOVAZZI, The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention, Leiden, 2003, p. 117, “Article 3 does hide what is probably the most controversial issue underpinning all the Convention, that is to say its relationship with the UNCLOS. (…) The problem was a ghost present as early as the very beginning of the negotiations (maybe even before)”.
  8. See OXMAN, Marine Archaeology and the International Law of the Sea, in Columbia Journal of Law and the Arts, 1988, p. 353.


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