Protection of Cultural Heritage in International Waters

States, in the exercise of their sovereignty, have the exclusive right to regulate and authorize activities directed at underwater cultural heritage in their inland waters, internal waters, archipelagic waters and territorial sea.

Beyond territorial waters, the jurisdiction of States is however strongly decreased and in international waters reduced with some exceptions only to jurisdiction over their own nationals and vessels flying their flag. This means that it becomes increasingly difficult to pursue pillagers or regulate industrial activities, the further an archaeological site lies out at sea. 

Within international waters, i.e. the exclusive economic zone (“EEZ”), the continental shelf and the Area, the 2001 Convention establishes hence an international cooperation scheme. It is based on a share of information and a cooperative protection effort. It allows an effective protection of underwater cultural heritage, while respecting international law of the sea. It offers a solution to jurisdiction gaps by legal assistance given from one State Party to the Convention to the other.

The 2001 Convention does not alter State jurisdiction or maritime zones. The Convention does not define maritime zones, other than the Area beyond national jurisdiction. It does thus also not affect national sovereignty.

Through this cooperation system, the 2001 Convention takes a significant place in the group of international legal instruments functioning beyond the borders of States and lives up to the task of protecting assets of importance to humanity in a global approach. It expressly regulates that the State, which coordinates protective measures under the Convention in international waters, does so for all States Parties and in the Area even for the benefit of humanity.

The system provided by the 2001 Convention can also be an excellent example for other efforts to protect assets of importance to humanity, such as fragile natural marine sites located in international waters.

Functioning of the cooperation in international waters

States Parties shall use according to the 2001 Convention in a common effort their respective legal powers to prevent undesired activities and regulate desired ones. The scheme in a general simplified overview stipulates for international waters (and only for these) that:

1. States Parties are required to request reports of discoveries and intended activities directed at underwater cultural heritage from their nationals and vessels flying their flag (reporting);
2. States Parties notify UNESCO, and in the Area also the Secretary-General of the International Seabed Authority, of such discoveries and planned activities (notification);
3. notified in turn by UNESCO, States Parties may then declare their interest to be consulted (declaration of interest);
4. under the coordination of a Coordinating State the consulting States Parties agree together on the measures to be taken (consultation); and
5. the Coordinating State takes the measures agreed upon by all consulting States (taking of measures).

To regulate this system, the Convention drafters have opted for a regulation by respective maritime zone. They begin with the contiguous zone, then regulate the EEZ and the Continental Shelf and finally regulate the Area.

The details and forms to be used for notifying discoveries of underwater cultural heritage in international waters or for planned activities regarding them as well as the declaration of interest to be consulted are available in the Convention’s Operational Guidelines.

• Operational Guidelines
• Notification Form
• Declaration Form

Relationship with the Law of the Sea

The UNESCO 2001 Convention and the United Nations Convention on the Law of the Sea (UNCLOS) regulate both matters in the ocean-space. It is hence important to understand their relationship.

There is a complementary relationship between them and both underline the obligation to protect underwater cultural heritage. While UNCLOS focuses however on jurisdictional and economic matters, the UNESCO Convention focuses on heritage protection only.

The 2001 Convention does not regulate any issue in contradiction to UNCLOS. The 2001 Convention and UNCLOS are rather fully compatible and there is an express obligation to always interpret the 2001 Convention in a positive manner, i.e. in consistency with UNCLOS contained in its Article 3. Both are Conventions of the UN system and form hence part of a harmonious body of legal instruments.

Please note  that the 2001 Convention does not contain regulations constituting any new jurisdictional claims (hence no ‘creeping’ jurisdiction).

• The harmony of the 2001 Convention with UNCLOS
• The independent status of the 2001 Convention and UNCLOS
• Powerpoint with presentation on UNCLOS relationship and podcast – Prof. Mariano Aznar