International law and the preservation of underwater cultural heritage

Abstract

In 1997, the General Conference of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) directed the Secretary-General of that organisation to prepare the first draft of a convention on the protection of the underwater cultural heritage. At the submission of this thesis the draft is still under negotiation, and a fourth Meeting of Governmental Experts is to be convened in early 2001 to continue deliberations. This thesis seeks to achieve three objectives. Firstly, it seeks to critically evaluate the extent to which the structure and provisions of the UNESCO draft convention provide a basis for an effective, reasonable and enforceable preservation regime. Chapter 1 considers the value of the underwater cultural heritage to contemporary society, the regimes proposed to 'protect' these values and the conflict that has developed between the realisation of the economic and archaeological value of the underwater cultural heritage. Chapter 2 examines previous attempts to structure a preservation regime for underwater cultural heritage in international waters and introduces the UNESCO draft convention. It further critically evaluates the rationale for preservation expressed in the draft, the principles that underpin it and its scope. Chapter three critically assesses the proposed preservation regime, paying particular attention to the manner in which it attempts to resolve the conflict identified in chapter 1. Chapter 4 considers the jurisdictional structure proposed in the draft and the extent to which it conflicts with existing international law, particularly the 1982 United Nations Convention on the Law of the Sea. The second objective of the thesis, considered in chapter 5, is to critically assess the process of drafting and negotiating this draft, particular attention being paid to the extent to which the process has tended to weaken the substantive provisions of the preservation regime. Finally, in chapter 6, the thesis considers those principles that may emerge from this process and be contained in the draft, and which may be utilised in the future to further develop an effective, reasonable and enforceable preservation regime. This consideration is undertaken in the context of an evolving international law, which offers opportunities for the reorientation of the principles of the draft so as to give effect to the proposition that the underwater cultural heritage is the common heritage of humanity. It is hoped that this thesis may prove valuable to those involved in the continuing negotiations to formulate a preservation regime for underwater cultural heritage and contribute to the implementation of the most powerful preservation provision contained in the draft convention - education.