The international cooperation promoted by the 2001 Convention is based on information sharing and a joint protection effort. This international cooperation mechanism thus offers effective protection of underwater cultural heritage while respecting the international law of the sea.
The United Nations Convention on the Law of the Sea (UNCLOS) regulates the law of the sea and defines maritime boundaries, including beyond national jurisdiction. With regard to the protection of underwater heritage, Articles 149 and 303 of UNCLOS oblige States Parties to protect underwater heritage, without providing for the details. The 2001 Convention is an international treaty specific to the protection of underwater heritage, which, according to its Art.3, is to be interpreted and applied in the context of and in conformity with the United Nations Convention on the Law of the Sea. Although autonomous, the 2001 Convention and UNICLOS are two international legal instruments that articulate the protection of underwater cultural heritage.
In accordance with international law, the regulation by maritime zones allows the 2001 Convention to facilitate and improve cooperation between States Parties. The 2001 Convention does not affect the jurisdiction of the State or its territorial sea areas: States have the exclusive right to regulate and authorize activities directed at underwater cultural heritage present in their internal waters, archipelagic waters and territorial sea. In international waters where State jurisdiction is reduced, the 2001 Convention does not affect national sovereignty and does not define maritime zones.
Inland waters, archipelagic waters and territorial sea
According to Article 7 of the 2001 Convention, States Parties have the exclusive right to regulate activities in their internal waters, archipelagic waters and territorial sea. The Convention, in accordance with its fundamental principles, does not affect the rights and obligations of States.
Article 2.4 commits States Parties to cooperate to take all necessary measures to protect underwater cultural heritage.
Exclusive Economic Zone, Continental Shelf and the Zone
Within the Exclusive Economic Zones (EEZs) and on the Continental Shelf, the coastal State has limited jurisdiction. The High Seas and the High Seabed - otherwise known as the Area - beyond these areas are international waters. The Area is non-appropriable and is the common heritage of mankind.
In international waters, States have personal jurisdiction over ships flying their flag. Each State is free to determine the conditions of registration and granting of nationality. However, there must be a substantial link between the ship and the State. The flag State has jurisdiction over a collision or other incident on the high seas, but the State of nationality of the person responsible may have jurisdiction.
Articles 9 and 11 of the 2001 Convention establish a specific regime of international cooperation encompassing declaration, consultation and coordination for the implementation of measures for the protection of the heritage discovered in the EEZ, on the Continental Shelf and in the Area.
State cooperation mechanism
In order to make protection effective in the EEZ, the Shelf and the Area, the 2001 Convention establishes an international coordination and cooperation mechanism for its States Parties.
Coordination between States
- Territorial waters
In territorial waters there are no mandatory reporting and coordination mechanism, as these waters fall under the exclusive jurisdiction of the State concerned. However, States Parties cooperate under Article 2.2 of the Convention.
- EEZ, Continental Shelf and Zone
Depending on the location of the underwater cultural heritage (EEZ, Continental Shelf and the Area), the following main provisions apply:
- Each State Party to the Convention shall adopt measures to ensure that its nationals and vessels flying its flag do not engage in any activity directed at underwater cultural heritage in a manner inconsistent with the provisions of the 2001 Convention.
- Each State Party to the Convention shall request that its nationals and vessels report discoveries and activities concerning underwater cultural heritage located in the EEZ, on the Continental Shelf and in the Area and inform the other States Parties thereof.
- A "Coordinating State" is designated and coordinates cooperation and consultation between States Parties and issues authorisations, acting on behalf of all States Parties concerned and not in its own interest.
- States Parties shall take measures to prevent illicit trafficking in illegally exported and/or recovered underwater cultural objects and to seize them, if found on their territory.
Cooperation system and declaration
The cooperation and reporting system applies only in the EEZ, the Continental Shelf and the Area. In their joint efforts to prevent undesirable activities and regulate desirable ones, the cooperation and reporting system follows several steps:
- Reporting requirements : States Parties are required to request reports on underwater cultural heritage discoveries and activities by their nationals and vessels flying their flag ;
- Notification : States Parties shall notify UNESCO of such discoveries and planned activities. With regard to discoveries and activities in the Area, States Parties shall notify such reports to UNESCO and to the Secretary-General of the International Seabed Authority ;
- Declaration of interest : The Director-General of UNESCO notifies the States Parties of this information and they may declare their interest in being consulted ;
- Consultation : the notified States Parties agree on the measures to be taken under the coordination of a Coordinating State under Article 10 of the Convention,
- Taking action: the Coordinating State takes action as agreed by all consulted States Parties.
Many threatened sites, such as the Titanic or the Skerki Banks off the Tunisian coast, require special protection. The mechanism of international cooperation as defined by the Convention offers legal assistance provided by one State Party to the Convention to another.
The example of the Skerki Banks
The site of the Skerki Banks (or the Esquerquis Bank) is located in an area of high sea in the central Mediterranean, north of the Strait of Sicily, between the latter and Tunisia. This central location has placed it, for several millennia, at the heart of the exchange networks in theMediterranean.
Protection of the underwater cultural heritage of the Skerki Banks
The fragility of the heritage of the Skerki Banks was notified to UNESCO by Italy at the beginning of 2018. Subsequently, eight States Parties to the 2001 Convention, namely Algeria, Croatia, Egypt, France, Morocco, Spain and Tunisia, together with Italy, expressed their interest in being consulted on ways toensure the effective protection of the site. In so doing, eight States, from both shores of the Mediterranean, are currently joining forces to protect this heritage, as provided for in the 2001 Convention.
Under Article 10 of the Convention, Tunisia is the coordinating State insofar as the submerged archaeological features are located on its continental shelf.
A Coordinating Committee, composed of States Parties that have expressed an interest in being consulted on ways to ensure protection, has been established to support the initiative. Each State is represented by a designated focal point within a relevant department. The Coordination Committee is responsible for developing strategies and action plans to achieve the objectives of the initiative.
The establishment of this cooperation mechanism represents a real opportunity for these Mediterranean States to protect an underwater heritage beyond their territorial seas.