Protecting and managing underwater cultural heritage: the 2001 Unesco Convention

• Author: James A R Nafziger
• Position: Thomas B Stoel Professor of Law and Director of International Programs, Willamette University College of Law
• Pages: 78-83

PROTECTING AND MANAGING

UNDERWATER CULTURAL HERITAGE:

THE 2001 UNESCO CONVENTION

JAMES A R NAFZIGER*

Protecting and managing historic wreck and other underwater cultural

heritage clearly requires international cooperation. Much of the heritage lies

under international waters - as with the RMS Titanic

—

or is otherwise at

issue among countries because of the mobility of shipping activity over the

centuries. For example, the status of

a

sunken vessel may be disputed between

the flag state and a state within whose territorial waters the wreck may lie.

Examples include imperial Spanish wrecks in the Caribbean and Dutch vessels

in Asian and Australian waters that sank while plying the East Indies trade.

Unfortunately, one of the biggest voids in both maritime law and

international cultural property law has involved the underwater heritage. Until

recently, the law has been more "at sea" than "of the sea."

Since ancient times, general maritime law, including a regime of salvage

and finds, has shaped decisions in national admiralty courts. Until recently,

it had been supposed that this common law of the seas was capable of governing

the underwater heritage even though it was not a "mystic over-law," in the

words of former United States Justice Oliver Wendell Holmes. As rapid

advances in science and technology began to overtake the capacity of general

maritime law to protect the physical and cultural environment, however,

confidence in the ability of that body of law to resolve international issues

related to the status and protection of the underwater heritage began to ebb.

In particular, as accessability to historic wreck and other underwater cultural

Thomas B Stoel Professor of Law and Director of International Programs, Willamette University

College of Law. Professor Nafziger is Chair of the Cultural Heritage Law Committee of the

International Law Association (ILA). He served as Rapporteur of its first project, the Buenos Aires

Draft Convention on The Protection of the Underwater Cultural Heritage. He also participated as

a member of the ILAs Observer delegation during negotiations of the UNESCO Convention,

which is based on the Buenos Aires instrument. This is an edited version of a paper delivered by the

author at the 2003 Caribbean Regional Conference of the International Law Association held on

26-29 March, 2003 in Barbados.