On April 1, 2022, the revised “Regulations of the People’s Republic of China on the Protection and Management of Underwater Cultural Relics” (hereinafter referred to as the “Regulations”) officially came into effect. In the past year, the Regulations, in response to the actual needs of China’s cultural relics and archaeology cause, and paying full attention to international practice, not only help build a socialist legal system with Chinese characteristics, but also escort the international governance of underwater cultural heritage Conservation International.
The key points of the revision of the Regulations, such as underwater cultural relics protection areas, archaeological projects related to maritime construction, and maritime law enforcement, will play a fundamental, stable, and long-term guarantee role in China’s cultural heritage cause.
China has always attached great importance to public values such as archaeology, history, culture, and science, and is responsible for the international governance of underwater cultural heritage. The 1989 Regulations, as one of the few regulations aimed at the protection of underwater cultural heritage, have been fully recognized and supported by the international community. On the other hand, underwater cultural heritage is a new member in the field of cultural heritage, and it also entered the negotiation of the United Nations Convention on the Law of the Sea late without specific rules. In particular, as sunken ships and cargo are traditional objects of admiralty law, foreign courts have repeatedly judged the ownership and salvage rights of historical sunken ships, and disorderly salvage and private possession of underwater cultural heritage run counter to this just cause of common interests of human society. The above situation of international legal rules for underwater cultural heritage makes it necessary for China to promote and lead relevant international governance. In the context of major changes in the world and times, protecting the vast cultural heritage of the ocean and preserving the memories of the past for human society is an important aspect of facing unprecedented global challenges.
The protection of underwater cultural heritage is a powerful lever for the construction of foreign-related legal system
The underwater cultural heritage is located in an ocean connected world, with a natural mission of enhancing the influence of Chinese civilization and promoting Chinese culture to the world. The underwater cultural heritage of China in waters beyond national jurisdiction is of great significance for the development of cultural relics and the maintenance of national maritime rights. Global ocean governance has entered a new stage of structural adjustment and order change, with countries engaging in a game of institutional discourse and rulemaking dominance. The interests of traditional Western maritime powers in underwater cultural heritage such as historical sunken ships are not consistent with those of China. The ocean is a new growth point for competing for discourse in international affairs and maintaining international leading position. Underwater cultural heritage was only widely recognized by the international community in the 1950s with the development of marine technology, leaving a rare space for the interpretation of international rules.
In the waters under national jurisdiction, coastal countries strengthen their claimed control through various means, and in the waters beyond national jurisdiction, the construction of international legal rules is deepening. As an important tool for the protection and management of marine environment and resources, the International Union for Conservation of Nature.The marine protected areas cover historical and cultural factors, and the trend is to establish large-scale marine protected areas. The high seas protected areas established through cooperation among regional countries, as well as the protected and managed objects of the Antarctic protected areas, also include underwater cultural heritage. Although the monopoly of traditional maritime powers on international governance has gradually disintegrated, developing countries need to explore ways to transform their own demands into decision-making rights in practice to promote governance system reform. The revision of the Regulations not only covers the territorial waters of internal waters, waters with rights under Chinese law, open sea areas, and other jurisdictional waters outside of foreign territorial waters, but also distinguishes relevant administrative provisions such as underwater cultural heritage discovery reports, protection zoning, and archaeological approval implementation based on different nature of sea areas. This can effectively safeguard the national rights related to underwater cultural heritage in China’s entire sea area and promote international governance practices.
Underwater cultural heritage is a component of China’s excellent traditional culture, and culture, as one of the sustainable development goals of the United Nations, is gradually integrating into other natural conservation, socio-economic and other goals under this framework. The theme event of “Oceans and History” at the 2017 United Nations Oceans Conference demonstrated the importance and future trend of protecting underwater cultural heritage. The modernization level of China’s national governance system and governance capacity has significantly improved, and the ideas and measures reflected in the revision of the Regulations have helped to transform the community with a shared future for mankind from freehand brushwork to meticulous painting.
International legal rules related to underwater cultural heritage still need to be improved and improved
As a new thing, the construction of international law for underwater cultural heritage is still insufficient. Therefore, national legislation and bilateral and multilateral treaties are important practices of international governance for underwater cultural heritage Conservation International.
The 1982 United Nations Convention on the Law of the Sea provided the basic framework for the international community to protect underwater cultural heritage, and established the national obligation to protect underwater cultural heritage as a general provision. However, the protection of underwater cultural heritage is not a key issue during the negotiation of the Convention. The final provisions are the interests of all mankind, recognition of the rights of owners and admiralty law, giving priority to cultural relics or countries of origin of culture, history and archaeology in the high seas area, and coastal countries’ control over cultural relics removed from the Contiguous zone. However, admiralty law still takes precedence, and the different rights and levels related to underwater cultural heritage are not clear, so there are legal gaps and interpretation application problems.
The 2001 UNESCO Convention for the Protection of Underwater Cultural Heritage (hereinafter referred to as the “Underwater Convention”) refined the principles and systems for international cooperation in the protection of underwater cultural heritage, with resistance to commercial development and advocacy for in-situ protection as its unique general principles. However, the avoidance of conflicts of interest between coastal and flag states makes the coordinating state system of the convention vague and vague, making it difficult to implement. When there is a conflict between international law such as the United Nations Convention on the Law of the Sea and the Underwater Convention, prioritizing its application also hinders the implementation of its protection principles and measures..It provides compensation to sunken shipwreckers to encourage the rescue of goods and ships facing the risk of loss at sea. How the traditional principles of admiralty law apply to underwater cultural heritage is a new topic of the Salvage Law and the Law of Discovery. Although there are judicial practices that exclude or limit the application of the principles of maritime law to historical sunken ships, there are many instances of the application of the opposite laws in adjudication. The 1989 International Salvage Convention stipulates that the contracting parties can apply to the preservation of underwater cultural heritage, which is an important step forward for the international community towards the protection of underwater cultural heritage. However, from the perspective of international commercial arbitration, the United States and other recent judicial practices, the practice of admiralty law for the protection of underwater cultural heritage still needs guidance and stability.
Article 123 of the United Nations Convention on the Law of the Sea advocates for coordinated cooperation among coastal states in the semi closed sea. The Underwater Convention encourages contracting parties to protect underwater cultural heritage through bilateral, multilateral, regional, and other agreements. However, the regret of the failure of the European Convention for the Protection of Underwater Cultural Heritage still needs to be remedied. In recent years, many countries have formed the concept of applying national legislation, underwater archaeological standards, and underwater cultural heritage to the actual salvage of sunken ships on the high seas through open international agreements, which further demonstrates the importance of national legislation for the international governance of underwater cultural heritage.
The Regulations pave the way for international governance of underwater cultural heritage
In the trend of increasing ocean development intensity, in addition to rescuing underwater cultural heritage that is on the brink of destruction, it is also necessary to increase preventive protection and management to preserve precious cultural heritage stocks for cultural relics and archaeology. Preventive protection of underwater cultural heritage and emphasis on social utilization are indispensable parts of building a scientific and complete “Five in One” overall layout and a “Four Comprehensives” strategic layout. From the perspective of the value composition of underwater cultural heritage, the definition of it in the Underwater Convention includes background context, which is the international community’s recognition of the importance of archaeological information and related natural factors. From the perspective of protection and management, the distribution area of historical sunken ships is relatively concentrated, often competing with the demand for sea use such as navigation and fishing, and marine protected areas. Underwater cultural heritage is suitable for zoned protection and management.
The proportion of underwater cultural heritage in cultural relics protection units is relatively low. In addition to regional protection and management through the National Archaeological Site Park, the practice of underwater cultural relics protection areas should also be promoted. The revision of the “Regulations” has refined the legal provisions for underwater cultural relics protection zones, and added Article 7, which includes the basic standards, adjustment basis, and basic protection measures for the delineation and publication of underwater cultural relics protection zones. It is clear that this protection and management method has the elements of “water areas that require overall protection”.
Coastal zone governance is currently a key task for coastal countries, with the historical corridor primarily targeting underwater cultural heritage. Regions that enrich underwater cultural heritage resources can be prioritized for governance, relying on underwater cultural heritage to promote coordinated regional development, deepening regional and main functional area strategies, incorporating new urbanization strategies, and promoting regional layout and construction of national spatial systems with complementary advantages and high-quality development..The revision of the Regulations focuses on underwater archaeological investigation and excavation, forming five general forms, providing a clear legal basis for conducting archaeological work overseas. The second paragraph of the original Article 7 has been revised to Article 12, consisting of four paragraphs. According to the “Measures for the Management of Archaeological Work Involving Foreign Affairs” and other regulations, the application subject, materials, results, and other procedures have been clarified, providing clear and specific departmental legal provisions for international cooperation in underwater archaeology. Countries along the Maritime Silk Road, especially China’s surrounding sea areas, are deeply influenced by Chinese civilization, carrying historical trade and the common memory of historical events, and are the basis for international cooperation in underwater archaeology and underwater cultural heritage Conservation International.
The cooperative protection measures for underwater cultural heritage can be guided by open regionalism. Deepening maritime functional cooperation among neighboring countries requires more diverse and specific cooperation themes to enhance the integration of interests with neighboring countries. Through positive intentions, common concepts, and successful practices in the governance of regional underwater cultural heritage, we can reduce the negative impact of geopolitical factors on international governance. The legal construction of cultural heritage not only ensures the promotion of international cooperation in archaeological work and promotes Chinese culture, but also embodies the cultural and historical consensus of underwater cultural heritage. It also helps neighboring countries in China to explore and build regional order, which has pioneering significance in international law and relations.
The Regulations Assist in the International Governance of Underwater Cultural Heritage
The revision of the Regulations has laid a legal foundation for the high-quality development of cultural heritage protection in China in the new era. As the upper level law of the Regulations, the Cultural Relics Protection Law is being revised, and the comprehensive legislation of China’s marine legal system is gradually improving. The basic principles and implementation paths for cultural relics governance and marine governance are gradually becoming clear.
At present, we are in the governance stage of promoting the review, revision, and improvement of international rules related to the sea with significant deficiencies and obvious loopholes. As a new factor in maritime law, underwater cultural heritage has great potential. Deepening legal research on cultural heritage such as the Regulations is to create national and international practice accumulation that may lead to the formation of new customary international law. Promote the construction of “soft power” related to the sea, gradually enhance the core governance capabilities based on topic leadership and rule creation in key and strategic international governance issues, and further achieve modernization of national and international governance of cultural heritage in multiple aspects..At the same time, attention should also be paid to the correlation between the protection of underwater cultural heritage and international rules such as marine environmental protection and ecological resource conservation, marine scientific research, trade and investment, as well as the importance of closely following the legislative and judicial changes of underwater cultural heritage in Western and surrounding countries.
History and culture are the bonds of regional cooperation, and underwater cultural heritage is a natural object of international cooperation. The foreign legal environment is complex and ever-changing, and it is urgent to seize the international situation and opportunities. Against the backdrop of the development of the United Nations Convention on the Law of the Sea, international trends in the construction of marine protected areas, and legislative revisions and institutional reforms in China, it is timely to commit to regional underwater cultural heritage protection and international cooperation in underwater archaeology, and promote international governance of underwater cultural heritage. The report of the 20th National Congress of the Communist Party of China pointed out that many fields in China have achieved historic changes, systematic reshaping, and overall reconstruction. The revision and implementation of the “Regulations” reflect the guidance of comprehensive protection of heritage resources and coordinated economic and social development, accelerate the construction of a new development pattern, focus on promoting high-quality development, and assist in the international governance of underwater cultural heritage.
(Wang Jing)