Introduction
Underwater cultural heritage (UCH) represents a unique and irreplaceable record of human history, encompassing shipwrecks, submerged settlements, and other artifacts lying beneath the world’s oceans, seas, and lakes. These remnants provide insight into ancient trade routes, naval warfare, and societal practices of civilizations long past. However, the protection of UCH faces significant challenges due to the jurisdictional complexities of maritime environments, the technological demands of underwater exploration, and the rising threat of commercial exploitation and looting. Recognizing these issues, the international community adopted the Convention on the Protection of the Underwater Cultural Heritage in 2001 (hereafter referred to as the 2001 UCH Convention) under the auspices of the United Nations Educational, Scientific and Cultural Organization (UNESCO). This treaty establishes a robust framework for the preservation and management of UCH, emphasizing international cooperation and the principle of in situ preservation.
This article explores the mechanisms and legal principles enshrined in the 2001 UCH Convention, focusing on its provisions for safeguarding underwater heritage. It examines how states can legally enter into treaties under the Convention’s framework, delving into the procedural and substantive obligations outlined in its articles. Additionally, it considers the interplay between international and domestic legal systems by discussing the monist and dualist approaches to treaty incorporation into national law, using a hypothetical state as a case study. Finally, the article addresses the relationship between the 2001 UCH Convention and the Vienna Convention on the Law of Treaties (VCLT) of 1969, assessing whether the former operates under the latter’s principles and how this relationship might guide other states in engaging with the 2001 UCH Convention.
The 2001 UCH Convention: A Framework for Preservation
Adopted on November 2, 2001, by the General Conference of UNESCO, the 2001 UCH Convention emerged as a response to the growing threats to underwater cultural heritage. Its primary objective, as outlined in Article 2, is to ensure and strengthen the protection of UCH for the benefit of humanity. The Convention defines UCH in Article 1 as “all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years.” This broad definition includes shipwrecks, artifacts, and even submerged landscapes, reflecting the diverse nature of underwater heritage.
One of the cornerstone principles of the 2001 UCH Convention is the preference for in situ preservation, as articulated in Article 2(5). This principle advocates for UCH to be left undisturbed in its underwater environment unless intervention is necessary for scientific, cultural, or protective purposes. The Convention also establishes rules for activities directed at UCH, requiring that such activities adhere to internationally accepted archaeological standards, as detailed in the Annex to the Convention. States Parties are obligated under Article 5 to use their best efforts to prevent or mitigate activities that may damage UCH within their jurisdiction, while fostering international cooperation under Article 6 to protect heritage in areas beyond national jurisdiction.
Furthermore, the Convention addresses jurisdictional challenges by delineating responsibilities in different maritime zones. Under Article 7, States Parties have the exclusive right to regulate activities directed at UCH within their internal waters, archipelagic waters, and territorial sea. In the Exclusive Economic Zone (EEZ) and on the continental shelf, Articles 9 and 10 establish a reporting and coordination mechanism, involving the coastal state and other interested parties, to ensure heritage protection. For the high seas, or “the Area,” Article 11 mandates collective responsibility, encouraging States Parties to collaborate through UNESCO to safeguard UCH.
Legal Mechanisms for Entering into Treaties under the 2001 UCH Convention
The 2001 UCH Convention, as an international treaty, operates within the broader framework of international law governing treaty formation and participation. While the Convention itself does not explicitly outline the procedural steps for a state to become a party (as this is generally governed by overarching international legal norms), it specifies in Article 26 that it is open for signature by all states, whether or not they are members of UNESCO. Article 27 further provides for ratification, acceptance, approval, or accession, allowing states to formally express their consent to be bound by the treaty through these mechanisms. Entry into force for a state occurs, as per Article 27(2), on the date of deposit of its instrument of ratification, acceptance, approval, or accession, provided the Convention itself has entered into force internationally, which it did on January 2, 2009, three months after the twentieth instrument of ratification was deposited (Article 27(1)).
For a hypothetical state—referred to here as “State X”—to legally enter into the 2001 UCH Convention, it must follow the procedural requirements set forth in Articles 26 and 27. State X would need to sign the Convention (if the signature period remains open or through subsequent procedures) and deposit an instrument of ratification, acceptance, approval, or accession with the Director-General of UNESCO, who serves as the depositary under Article 28. Additionally, State X must ensure that its domestic legal and constitutional processes align with these international obligations. This involves adhering to its internal requirements for treaty-making power, which are often vested in the executive or legislative branches, depending on its constitutional framework.
Beyond procedural entry, State X would be bound by the substantive obligations of the Convention upon becoming a party. For instance, under Article 16, it must impose sanctions for violations of measures adopted to protect UCH, ensuring that its domestic legal system can enforce such penalties. Similarly, under Article 18, State X would be required to seize UCH illicitly recovered within its jurisdiction and take measures for its preservation, demonstrating how treaty commitments translate into practical legal obligations at the national level.
Monist vs. Dualist Approaches: Incorporating Treaties into National Law in State X
The manner in which international treaties like the 2001 UCH Convention are integrated into a state’s domestic legal system depends on whether the state follows a monist or dualist approach to international law. In a monist system, international law and domestic law form a single legal order, meaning that treaties, once ratified, automatically become part of national law without the need for additional legislative action. In contrast, a dualist system treats international and domestic law as separate spheres, requiring treaties to be explicitly transformed or incorporated into national legislation before they can have domestic legal effect.
For the purposes of this analysis, let us assume that State X operates under a dualist legal framework, a common approach among many states with a tradition of parliamentary sovereignty or distinct separation between international commitments and domestic enforceability. In a dualist system like that of State X, the ratification of the 2001 UCH Convention would not automatically grant it domestic legal force. Instead, State X’s government would need to enact specific legislation to incorporate the Convention’s provisions into national law. This might involve drafting a statute that mirrors the obligations under Articles 5, 7, and 16 of the Convention, such as creating regulatory frameworks for protecting UCH in its territorial waters or establishing penalties for illicit recovery.
The dualist approach in State X could present challenges in implementing the 2001 UCH Convention, particularly if domestic political or legal constraints delay the passage of necessary legislation. For instance, if State X’s legislature prioritizes other issues or faces opposition to allocating resources for underwater heritage protection, the Convention’s principles might remain unenforceable at the national level despite formal ratification. Moreover, discrepancies could arise between the international obligations accepted by State X and the domestic laws enacted, potentially leading to incomplete compliance with the Convention’s standards.
In contrast, if State X were a monist state, the process would be more streamlined, as ratification of the Convention would directly confer legal authority to its provisions within the national legal system, assuming no constitutional reservations or declarations were made under Article 30 of the Convention. However, even in monist systems, practical implementation might require additional administrative or regulatory measures to ensure compliance with complex obligations, such as those involving international cooperation under Article 6.
Relationship Between the 2001 UCH Convention and the Vienna Convention on the Law of Treaties (1969)
The Vienna Convention on the Law of Treaties (VCLT), adopted in 1969, serves as the foundational international legal instrument governing the formation, interpretation, and termination of treaties. It codifies customary international law on treaties, providing rules for how states express consent to be bound, interpret treaty provisions, and resolve disputes. Given its comprehensive scope, the VCLT is often considered the “treaty on treaties” and applies to all international agreements between states unless explicitly stated otherwise.
The 2001 UCH Convention does not explicitly declare itself to be a party to or governed by the VCLT. However, as the VCLT reflects customary international law in many of its provisions, it inherently influences the application and interpretation of the 2001 UCH Convention. For instance, the rules on treaty ratification and accession outlined in Articles 11 to 15 of the VCLT align with the procedural mechanisms for joining the 2001 UCH Convention under its Articles 26 and 27. Similarly, the VCLT’s principles on treaty interpretation (Articles 31-33), which prioritize the ordinary meaning of treaty text in light of its object and purpose, would guide states in understanding and applying the obligations of the 2001 UCH Convention, such as the principle of in situ preservation.
The applicability of the VCLT to the 2001 UCH Convention is significant for states like State X and others considering accession. Even if a state is not a party to the VCLT, many of its provisions are binding as customary international law, meaning they provide a default framework for treaty engagement. For non-parties to the VCLT or states with reservations to certain provisions, the general principles of good faith and pacta sunt servanda (treaties must be observed), as enshrined in Article 26 of the VCLT, remain applicable and relevant to commitments under the 2001 UCH Convention.
This relationship informs other countries on how to properly enter into treaties with or under the framework of the 2001 UCH Convention. States must ensure that their domestic processes for treaty-making align with the principles of consent and formal expression as outlined in the VCLT, even if they are not formal parties to it. Moreover, states engaging with the 2001 UCH Convention should consider potential conflicts between treaty obligations and domestic law, a common issue addressed by the VCLT in Article 27, which states that a party may not invoke internal law as justification for failure to perform a treaty obligation. This principle underscores the importance of harmonizing national legal frameworks with international commitments, a lesson applicable to all states seeking to protect UCH through the 2001 Convention.
Challenges and Opportunities in Implementing the 2001 UCH Convention
While the 2001 UCH Convention provides a comprehensive legal framework for the protection of underwater cultural heritage, its implementation faces several challenges. One significant issue is the limited number of States Parties to the Convention, with many major maritime nations yet to ratify or accede. This creates gaps in global coverage, particularly in regions with rich underwater heritage but limited state commitment to the Convention’s principles. For State X, whether dualist or monist, joining the Convention could signal leadership in this area, encouraging broader international participation.
Technological and financial constraints also hinder effective implementation. Underwater archaeology requires specialized equipment, expertise, and funding, which may be beyond the capacity of many states, including State X if it is a developing nation. The Convention addresses this through provisions for capacity-building and technical assistance under Article 21, but practical access to such support depends on international cooperation and funding mechanisms, which are often inconsistent.
Jurisdictional conflicts represent another challenge, particularly in areas beyond national jurisdiction where multiple states or entities may claim interests over UCH. The coordination mechanisms under Articles 9 and 10 attempt to mitigate such conflicts, but their success relies on the willingness of States Parties to collaborate. For State X, navigating these complexities would require not only domestic legal adjustments but also diplomatic engagement to ensure compliance with the Convention’s cooperative spirit.
Despite these challenges, the 2001 UCH Convention offers significant opportunities for preserving cultural heritage and fostering international solidarity. By becoming a party, State X could benefit from shared knowledge, technical expertise, and global recognition as a steward of human history. The Convention’s emphasis on public awareness and education under Article 20 also provides a platform for engaging local communities and stakeholders in the protection of UCH, enhancing cultural identity and tourism potential.
Conclusion
The 2001 Convention on the Protection of the Underwater Cultural Heritage stands as a landmark instrument in the global effort to safeguard the irreplaceable treasures lying beneath the world’s waters. Through its detailed provisions, including Articles 1, 2, 5, 7, 9, 10, 16, 18, 20, 21, 26, and 27, it provides a clear legal and ethical framework for states to protect UCH while navigating the complexities of maritime jurisdiction and international cooperation. For a hypothetical State X, entering into this treaty involves not only procedural adherence to international norms but also the critical task of aligning domestic legal systems—whether through a monist or dualist approach—with the Convention’s obligations.
The relationship between the 2001 UCH Convention and the Vienna Convention on the Law of Treaties (1969) further underscores the importance of adhering to established principles of treaty law, even in the absence of explicit reference. This connection offers valuable guidance for other states on engaging with the 2001 UCH Convention, emphasizing the need for good faith, clear consent, and alignment between international commitments and national capabilities. Ultimately, the preservation of underwater cultural heritage requires a collective effort, underpinned by robust legal frameworks and a shared commitment to protecting humanity’s submerged past for future generations.
References
- UNESCO. (2001). Convention on the Protection of the Underwater Cultural Heritage. Adopted by the General Conference of UNESCO on 2 November 2001. Paris: UNESCO.
- United Nations. (1969). Vienna Convention on the Law of Treaties. Adopted on 23 May 1969, entered into force on 27 January 1980. Vienna: United Nations Treaty Series, vol. 1155, p. 331.
- Dromgoole, S. (2013). Underwater Cultural Heritage and International Law. Cambridge: Cambridge University Press.
- Garabello, R., & Scovazzi, T. (Eds.). (2003). The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention. Leiden: Martinus Nijhoff Publishers.
- O’Keefe, P. J. (2002). Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage. Leicester: Institute of Art and Law.
