Los actores internacionales.
2. Criterios de clasificación de los actores internacionales.
Whilst the protection and preservation of underwater wrecks, flooded cities and othersites are onlyslightly connected to the topic ofmarine environmentandpollutionfromships,theyfeatureinsuchissuesandit maybehelpfultoincludeafewwordsaboutthem.TheUNESCOConven- tionontheProtectionoftheUnderwaterCulturalHeritage38(UCHConvention)
wasmainlydebatedanddraftedbyagroupof‘experts’inthisfieldand, comingoutoftheUNESCO39organisationratherthantheIMOorLawof
Seaarenas,thedebatesandthedraftingoftheconventionhadlessinput frommaritimeorinternationallawoftheseaskillsthanisdesirable.This isreflectedinthedraftingandthesubstanceoftheconvention,whichhas weaknesses.Despitethis,itisdirectedtoanimportantend.
The UCH Convention is comprised of an Introduction, 35 articles and an annex. Its objective is ‘to ensure and strengthen the protection of underwater cultural heritage’ and state parties commit themselves to its protection.40 UCH items are defined as items underwater for at least 100
years and excludes pipelines and cables and installations still in use.41
The UCH Convention provides that state parties direct that the UCH
Convention rules be applied in their internal waters, archepelagic waters
and territorial sea over which waters they have complete sovereignty. They may regulate them in their contiguous zone and, in doing so, shall apply the provisions of the UCH Convention.42
The UCH Convention is very government oriented and directed and attempts to fairly well exclude the private sector taking any initiative. State parties are to require that their nationals and vessels under their flag shall report all UCH to them and also to the coastal state when the
36 Article II(4). Appendix I lists species threatened with extinction; Appendix II lists species which may become so threatened and Appendix III lists those species identified for the purpose of preventing their undue exploitation.
37 Article II(5).
38 The General Conference of the United Nations Educational, Scientific and Cul- tural Organisation (UNESCO) meeting in Paris from 15 October to 3 November 2001, at its 31st session, agreed on this convention. The convention and its back- ground may be seen from the UNESCO website, at <www.unesco.org>.
39 United Nations Educational, Scientific and Cultural Organization. 40 Article 2(1), (2).
41 Article 1. 42 Articles 7, 8.
site is in the latter’s EEZ or on its continental shelf. State parties are to report them to the UNESCO Director-General and the coastal state if the latter has not already been notified. The Convention also provides that ‘no authorization shall be granted for an activity’ in the EEZ or the continental shelf except as provided in the UCH, and goes on to set out that the rules of the UCH shall be applied ‘as provided in inter- national law’ including UNCLOS.43 There are similar provisions about
the ‘Area’.44 Seizure of the discovered items is the required penalty for
UCH items recovered in ‘its territory’ that were not subjected to the UCH
Convention rules.
There are quite a number of contentious issues raised by the UCH
Convention. One is that it provides that the preservation in situ ‘shall be
considered as the first option’ and that UCH items should not be ‘com- mercially exploited’.45 This flies in the face of many good arguments to
the contrary and that they should both be options only and not direc- tives.
Another anomaly is that the UCH Convention is to be applied and interpreted ‘in a manner consistent with international law’ including UNCLOS46 but that underwater cultural heritage is not subject to the law
of salvage or of finds (derelict)47 unless it is ‘authorized by the competent
authorities’ and conforms to the UCH Convention and ‘ensures that any recovery … achieves its maximum protection’.48
On the other hand UNCLOS provides that objects of archaeological and historical nature in the ‘Area’ (the deep sea bed) should be ‘pre- served or disposed of for the benefit of mankind’.49 But note that this is a
provision restricted to the ‘Area’, which is extremely deep water, where- as most of the accessible underwater heritage is in the shallower waters. There is already a bureaucratic structure established for the Area so another may not be warranted. UNCLOS also provides that states have a duty to ‘protect objects of archaeological and historical nature’ and that they shall cooperate and they may assume, to control traffic in them, that removal from the contiguous zone without approval could result in an infringement of their laws and regulations (applying in their territory or territorial sea). Further and most importantly, UNCLOS expressly
43 Articles 9, 10. 44 Articles 11, 12.
45 Article 2(5), (7), and Annex Rule 1. 46 Articles 2(5), 3.
47 ‘Finds’ is the USA term for derelict in English maritime law, which occurs with a wreck being recovered in whole or part where there is no owner. Salvage occurs where there is an owner. For a description of the law of salvage, see White M (ed), Australian Maritime Law (Federation Press, 2nd ed, 2000) Chapter 9; and Davies M and Dickey A, Shipping Law (Law Book Co, 3rd ed, 2004) Chapter 20. 48 Article 4.
provides that these provisions do not affect the ‘rights of identifiable owners, the law of salvage or other rules of Admiralty, or of laws and practices with respect to cultural changes’.50
In short, the shortcomings that arise from the provisions of the UCH, that are relevant for present purposes, are:
(a) that the existing laws of salvage were ignored, or insufficiently reflected, in the UCH Convention. In particular the UCH Conven-
tion provides that the first option is to keep the items in situ, that
other international conventions and laws including UNCLOS are to be respected, when the two are inconsistent. Salvage of suitable underwater objects is desirable in many circumstances and this fundamentally differs from leaving the object in situ; (b) the UCH Convention provision that items ‘shall not be commer-
cially exploited’ is too wide. On its ordinary and natural meaning it prevents any commercial advantage in finding and developing any underwater cultural heritage objects, or even the sale from one museum or government agency to another. Commercial exploitation is encouraged in many cultural heritage areas on land and it is desirable that it be so under the sea. It should be one of the options and, in suitable cases, actively encouraged. The UNCLOS provision relating to ‘control of traffic’ is to be pre- ferred as it gives more flexibility to meet the various situations; (c) the drafting of the many provisions that are in conflict with
international law relating to wrecks in the EEZ and continental shelf of coastal states is unfortunate. No rights seem to be attri- buted to owners of such items but an assumption made that ownership does not lie with the true owner or any sufficient rights attach to the finder. This may well be counter-productive in that it will probably drive certain types of salvors and treasure seekers into clandestine activity and, if this happens, have the opposite effect to that intended. Further, those salvors and trea- sure seekers who would otherwise abide by the UCH Convention may well be deterred from spending money to find heritage wrecks which, as a result, may never be found.
These shortcomings, however, do not detract from the worthwhile aim of protecting underwater cultural heritage, including from irrespon- sible and predatory practices of some salvors. It is suggested that a revision of the UCH Convention is advisable and, this time, that the sal- vors, international maritime lawyers and the diplomats should be given a major part to play in it.
2. 7 Global Plan of Action; UN Environment Program
In discussing the general UN conventions and activities relating to the marine environment, the Global Action Plan for the Protection of the Marine Environment from Land-based Activities 1995 (GPA) should be mentioned.51 As the majority of the pollution of the seas comes from the
land52 and as the land-sourced pollution is much less regulated than that
from ships, it obviously requires attention from a GPA. Over 100 coun- tries have adopted the GPA at and since the Washington Declaration in 1995 and the United Nations Environment Program (UNEP) is the desig- nated secretariat. The action under UNEP has included regional work- shops, establishment of an information clearing house in The Hague, Holland, and steps by GESAMP53 to produce a global assessment of land-
based activities contributing to marine pollution and also to produce an assessment of the state of the marine environment.54
Thanks to a financial contribution from the Netherlands, the UNEP GPA Coordination office is housed in The Hague with its basic funding from the UNEP (Environment Fund). There is a UNEP Program based in the Philippines, which is active in various ways in the Asia Pacific region, including producing regular reports and newsletters.
2.8 SPREP 1993
The South Pacific Regional Environment Programme 1993 (SPREP)55 is an
important regional program in the Pacific Island region. It is composed of some 22 Pacific Island Countries (PICs) and four developed countries (Australia, France, New Zealand and the USA).56 It has developed from
its origins in a small program in the South Pacific Commission in the 1980s and became an autonomous body under its own convention from 1993, which came into force in 1995.
Not surprisingly, as PICs are, in the main, low lying and vulnerable to sea level rises, the major programs under SPREP are directed to environmental programs and regional coordination. The four main areas
51 Generally see the GPA website at <www.gpa.unep.org>. For some discussion from an Australasian point of view, albeit now somewhat dated, see Crawford J and Rothwell DR (eds), The Law of the Sea in the Asia Pacific Region: Developments and Prospects (Martinus Nijhoff Publishers, 1995).
52 The GPA website states that some 80% of the pollution load of the sea comes from land-based activities, but see Chapter 1 for discussion on, and some doubt about, this figure.
53 Group of Experts on the Scientific Aspects of Marine Environmental Protection; comprised of the IMO, FAO, International Oceanographic Commission, WMO, International Atomic Energy Agency, UN and UNEP.
54 Details are available on the GPA website at <www.gpa.unep.org>. The site also gives details of the international conventions of which SPREP is a member. 55 Done at Apia on 16 June 1993.
are regional coordination, environmental monitoring, climate change, waste and pollution management and future environment planning. The Agreement on SPREP establishes the SPREP Meeting as the plenary body, a secretariat and director with the Government of Samoa as the depositary57 and its head office in Apia, Samoa. It can be seen that it is
not a body directed solely towards the marine environment but, because of the importance of the sea to the PICs, marine environment protection and preservation plays a major role. Fortunately, as the populations of the various SPREP members is small and as the amount of shipping is fairly minor by world standards, the environmental pollution of the Pacific Island waters is low.
2.9 Conclusion
It may be seen from the UN managed environmental conventions, agreements and programs mentioned in this chapter that there are a number of overlapping entities. As well as those with a marine environ- ment focus there are numerous other international agreements and programs that deal with other aspects of the environment but touch on the protection and preservation of the marine environment. The major international conventions that relate to the regulation and protection of the marine environment from ships are, however, those under the management of the IMO and it is these to which the next chapter is directed.