The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention: GARABELLO : 9789041122032: Book: History: eCampus.com

The 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage represents a major step forward in the field of international law. New archaeological rules as well as a comprehensive co-operation system among the States concerned are set up by the new Convention. Despite the negative attitude assumed by few States at the moment of voting for the text of the Convention, this new international instrument is welcome by the great majority of States.
This volume focuses on the main aspects of the Convention. It is divided in two parts, to describe the situation before and after the adoption (and the forthcoming into force) of the Convention. In the first part the contradictions resulting from the regime established under the 1982 United Nations Convention on the Law of the Sea are analysed together with the undesirable results of the application of the rules of admiralty (law of salvage and law of finds) to the underwater cultural heritage. In the second part the negotiation process is described, both in its general aspects (the myths surrounding the draft) and in its specific results (the drafting of each single provision).

Foreword

Abbreviations

PART I The Regime of Underwater Cultural Heritage Before the 2001 UNESCO Convention

(80)

1. A Contradictory and Counterproductive Regime

(16)

Tullio Scovazzi

1. An unexpected obstacle.

(1)

2. The UNCLOS regime:

(6)

A) two general obligations;

(1)

B) cigarette smugglers, clandestine immigrants and infectious patients;

(1)

C) the benefit of mankind as a whole;

(1)

D) a legal vacuum;

(1)

E) an invitation to looting;

(1)

F) prospects for a better regime.

(1)

3. The CPUCH as a defensive tool:

(5)

A) the rejection of the law of salvage and finds;

(1)

B) the exclusion of a "first come, first served" approach for the heritage found on the continental shelf;

(3)

C) the strengthening of regional cooperation.

(1)

4. Concluding remarks.

(4)

2. The Application of "Salvage Law and Other Rules of Admiralty" to the Underwater Cultural Heritage: Some Relevant Cases 19

Tullio Scovazzi

1. A rather unconvincing statement (to say the least).

(1)

2. The Melqart of Sciacca.

(1)

3. The Dutch East India Company vessels:

(7)

A) the agreement between Australia and the Netherlands;

(2)

B) the salvaging of the Geldermalsen.

(5)

4. The British warships:

(4)

A) "women and children first" (the Birkenhead);

(2)

B) the search for the Erebus and the Terror;

(2)

5. The United States warships:

(6)

A) the first ironclad ship (the Monitor);

(2)

B) the bell of the Alabama;

(4)

6. The Saga of the Spanish Galleons:

(22)

A) the Nuestra Se�ora de Atocha;

(4)

B) the apotheosis of salvors (the admiral ship of the 1715 Plate Fleet);

(9)

C) being embedded in the sand (the Santa Rosa/ea and others);

(4)

D) the revenge of Spain (the Juno and the La Galga).

(5)

7. The saga of the Titanic:

(15)

A) the loss and the discovery;

(3)

B) the R.M.S. Titanic Memorial Act of 1986;

(2)

C) the granting of salvor rights;

(1)

D) the salvor against the competing salvor;

(1)

E) the salvor against the photographer;

(1)

F) the salvor against the tour operator;

(3)

G) the salvor against the United States;

(1)

H) the Titanic artefacts will be sold;

(2)

I) Mr. Ballard's view.

(2)

8. The Skerki Bank deep sea project.

(2)

9. Conclusion (why it may be better if Columbus' wrecks are not found).

(4)

PART II The 2001 UNESCO Convention

(126)

3. Negotiating the Convention on Underwater Cultural Heritage: Myths and Reality

(6)

Arid W. Gonzalez

1. First myth: on the nature of the Convention.

(2)

2. Second myth: on the object of the protection.

(1)

3. Third myth: on the role of the Convention.

(1)

4. Back to reality?

(2)

4. The Negotiating History of the Provisions of the Convention on the Protection of the Underwater Cultural Heritage

(104)

Roberta Garabello

1. Introduction. Overview of the negotiation process.

(4)

2. Preliminary questions:

(2)

2.1 Need for an international instrument and its form;

(2)

2.2. Role of UNESCO.

(1)

3. Negotiating history of the individual articles.

(98)

5. The Crucial Compromise on Salvage Law and the Law of Finds

193

Guido Carducci

1. The regime adopted and its importance.

193

(2)

2. The genesis of the regime: (private) comparative law difficulties and beyond.

195

(3)

3. Ownership, the Convention and some doubts on "spontaneous" salvage applied ex se on UCH.

198

(2)

4. The condition of "peril": should salvage law apply to UCH?

200

(3)

5. The condition of abandonment: should law of finds apply on UCH and on warships?

203

(4)

DOCUMENTS

a) Multilateral Treaties

1. United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982): Arts. 149 and 303

207

(2)

2. United Nations Conference on the Law of the Sea. Informal proposal by Cape Verde, Greece, Italy, Malta, Portugal, Tunisia and Yugoslavia of 27 March 1980: UN doc. A/CONF.62/C.2/Informal Meeting/43/Rev. 3

209

(1)

3. United Nations Convention on the Law of the Sea. Declarations made by Cape Verde, the Netherlands, Malaysia, Portugal and Bangladesh

210

(1)

4. International Convention on Salvage (London, 28 April 1989): Art. 30

211

(1)

5. UNESCO Convention on the Protection of the Underwater Cultural Heritage (Paris, 2 November 2001)

212

(18)

b) Documents Relating to the UNESCO Convention

6. International Law Association - Draft Convention on the Protection of Underwater Cultural Heritage (Buenos Aires, 20 August 1994)

230

(7)

7. Amendment to the draft UNESCO Convention proposed by Russia and United Kingdom and sponsored by the USA

237

(2)

8. Statements:

Remarks presented by the Government of Italy (July 2000)

239

(2)

Remarks prior to vote during debates in Commission IV on Culture, 29 October 2001, 31st Session of the General Conference, UNESCO: Argentina, Canada, Japan, the Netherlands

241

(4)

Statements on vote during Commission IV on Culture, 29 October 2001, 31st Session of the General Conference, UNESCO: Australia, Finland, France, Greece, Norway, Russian Federation, Sweden, Turkey, United Kingdom, United States of America, Venezuela

245

c) Bilateral Agreements

9. Agreement between Australia and the Netherlands Concerning Old Dutch Shipwrecks and Arrangement Setting Out the Guiding Principles for the Committee to Determine the Disposition of Material from the Shipwrecks of Dutch East India Company Vessels off the Coast of Western Australia (The Hague, 6 November 1972)

254

(5)

10. Exchange of Notes between South Africa and the United Kingdom Concerning the Regulation of the Terms of Settlement of the Salvaging of the Wreck of HMS Birkenhead (Pretoria, 22 September 1989)

259

(2)

11. Agreement between the Government of the United States of America and the Government of the French Republic Concerning the Wreck of the CSS Alabama (Paris, 3 October 1989)

261

(2)

12. Memorandum of Understanding between the Governments of Great Britain and Canada pertaining to the Shipwrecks HMS Erebus and HMS Terror (5, 8 August 1997)

263

(2)

13. Agreement between the Government of the United States of America and the Government of the French Republic regarding the Wreck of La Belle (Washington, 31 March 2003)

265

(2)

d) Other Materials

14. Recommendation 848 (1978) of the Parliamentary Assembly of the Council of Europe on the underwater cultural heritage

267

(3)

15. Recommendation 1486 (2000) of the Parliamentary Assembly of the Council of Europe on maritime and fluvial cultural heritage

270

(3)

16. Statement by the President of the United States on U.S. Policy for the Protection of Sunken Warships (19 January 2001)

273

(1)

17. Siracusa Declaration on the Submarine Cultural Heritage of the Mediterranean Sea of 10 March 2001, adopted during the international conference "Mean for the Protection and Touristic Promotion of the Marine Cultural Heritage in the Mediterranean"

274

(3)

Bibliography

277




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