1 10 5 https://apconf-much.org/proceedings/files/original/d1bf79948ef8c5ea4ab6bfbb0ab452b3.mp4 a92049f3f62334ebc016ebec566e7107 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Session 15: Legal Framework for the Protection of the Underwater Cultural Heritage Subject The topic of the resource Video interview with Session 15 chair Dr. Craig Forrest. Description An account of the resource The legal framework for the protection of the underwater cultural heritage has gained momentum throughout the Asia-Pacific with a number of States turning their attention to this issue. For some this is due to concerns raised though specific incidents that have damaged or destroyed the underwater cultural heritage or the information that could be gleaned from its excavation, whilst for others, it follows from consideration being given to the UNESCO Convention on the Protection of the Underwater Cultural Heritage. This session considers the Legal Framework for the Protection of the Underwater Cultural Heritage in a number of Asia-Pacific states. The objectives of session are to explore the various national approaches and to seek aspects of commonality and uniformity that provide frameworks for other state that have not yet addressed the issue. Creator An entity primarily responsible for making the resource Dr. Craig Forrest Moving Image A series of visual representations that, when shown in succession, impart an impression of motion. Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Video interview with Session 15 chair Craig Forrest. Description An account of the resource The legal framework for the protection of the underwater cultural heritage has gained momentum throughout the Asia-Pacific with a number of States turning their attention to this issue. For some this is due to concerns raised though specific incidents that have damaged or destroyed the underwater cultural heritage or the information that could be gleaned from its excavation, whilst for others, it follows from consideration being given to the UNESCO Convention on the Protection of the Underwater Cultural Heritage. This session considers the Legal Framework for the Protection of the Underwater Cultural Heritage in a number of Asia-Pacific states. The objectives of session are to explore the various national approaches and to seek aspects of commonality and uniformity that provide frameworks for other state that have not yet addressed the issue. Creator An entity primarily responsible for making the resource Craig Forrest Date A point or period of time associated with an event in the lifecycle of the resource 6/12/2014 Asia-Pac Session 15 2014 https://apconf-much.org/proceedings/files/original/590e307c15d1d6877b22c95c5da8b1b1.pdf 91c01c2dd35f0d663626052d3c3f67ed PDF Text Text A Model Law to Implement the Convention on the Protection of the Underwater Cultural Heritage and its Possible Application in Plural Legal Regimes in Pacific Small Islands States: A Case study of Solomon Islands Craig Forrest1 and Jennifer Corrin2 Centre for Public International and Comparative Law TC Beirne School of Law University of Queensland Brisbane Australia 4072 Email: c.forrest@law.uq.edu.au1 Email: j.corrin@law.uq.edu.au2 Abstract A strategy for promoting the adoption of the Convention on the Protection of the Underwater Cultural Heritage, is the adoption of a Model Law; one that also promotes uniformity, consistency and ease of use. This, however, is a challenge in the Pacific. Solomon Islands, for example, like most Pacific island nations, has a plural legal regime. That is, customary law operates in conjunction with the common law, a legacy of Solomon Islands’ colonial past. Legal pluralism raises significant difficulties for the protection and management of cultural heritage, and is especially challenging when the maritime areas beyond the low water mark are involved. This paper considers the barriers to protection of underwater cultural heritage raised by legal pluralism and the further difficulties encountered when considering Solomon Island’s possible ratification on the 2001 Convention on the Protection of the Underwater Cultural Heritage. It considers whether a Model Law might be a useful tool in this endeavour. Keywords: Underwater cultural heritage, Convention, 2001, Law, Legal, Framework, Pacific, Solomon Islands, The underwater cultural heritage of Solomon Islands The very nature of Pacific Island peoples means that Solomon Islands has a rich maritime heritage. Unfortunately, few underwater remains of pre-colonial vessels have survived, though terrestrial examples exist (van Tilburg, 2011). Indeed, the largest water craft in the British Museum is a war canoe from New Georgia (Hess et al., 2009). Nevertheless, other heritage, such as underwater caves and sacrificial sites used for shark or crocodile worship, are numerous, especially in the coastal waters of certain 1 �islands, such as Malaita (Lidimani, 2011). There are also submerged islands and villages, inundated by the changing sea levels as well as in the construction of artificial islands such as Langa Langa Lagoon and Lau Lagoon in Malaita Province and Roviana Lagoon in the Western Province (Guérin et al., 2010). Perhaps the most famous historic shipwreck in Solomon Islands is that of the Boussole, commanded by Jean-François de Galaup, Comte de La Pérouse, lost in 1788 off the island of Vanikoro. The best known wrecks in Solomon Islands, however, are those of the Second World War. So numerous are they that the waters between Guadalcanal and Savo and Florida Islands are known as Iron Bottom Sound. The Protection of Wrecks and War Relics Act 1980 restrict access to (including diving) and interference with these vessels (and aircraft) and associated objects, subject to obtaining a licence from the relevant Ministry (Corrin and Forrest, 2013). Such a license is only to be granted to a person who can satisfy the Minister that they are competent and properly equipped to carry out excavation or salvage operations in a manner appropriate to the historical importance of the wreck. Further, limited protection is provided by the Protected Areas Act 2010. This Act defines areas which may be declared as protected to include an area which possesses significant ‘cultural resources’ or ‘merits protection under the Convention Concerning the Protection of World Cultural and Natural Heritage’ [s 10(1)]. No other national legislation protects the remaining body of underwater cultural heritage in Solomon Islands, and beyond its territorial sea, a problem the 2001 Underwater Cultural Heritage Convention is designed to address. The Convention on the Protection of the Underwater Cultural Heritage The Convention on the Protection of the Underwater Cultural Heritage came into force in 2009, almost eight years after its adoption, and currently only has 45 States parties. Moreover, of these 45 States, few have significant underwater cultural heritage (UCH) within their waters, and even fewer are significant maritime powers that have lost vessels in the oceans of the world. The reasons for the slow take up of the Convention have been dealt with elsewhere (Dromgoole, 2013) but include debate concerning the consistency between the Convention and the 1982 UN Law of the Sea Convention (Cogliati-Bantz and Forrest, 2013); the lack of immunity offered to wrecked sovereign vessels; and the non-application of salvage law. That said, recent ‘ratifications’ do 2 �include maritime States such as France and those with significant wrecks in their waters, such as Belgium, who together with States such as Spain, have an important impact on the manner in which the Convention will ultimately be implemented and applied. It is hoped that more States will follow the lead of these recent ratifications, but for the Convention to be effective, it requires much broader participation by States, particularly in geographical regions such as the Asia-Pacific. The Convention provides an agreed minimum standard for recovery of UCH and sets out the jurisdictional structures and core principles upon which the regime is built, such as noncommercialisation of this heritage, supremacy of in situ preservation, and the encouragement of non-intrusive and non-destructive public access. But above all, the Convention is based on the principle of State co-operation. Without such co-operation, protection beyond the territorial sea is difficult, if not impossible. Accordingly, the Convention can only work if all the States with an interest in a particular wreck, for example, are party to the Convention. This problem is exacerbated in the Asia-Pacific region given the close proximity of many different island nations, and the ability to avoid one jurisdiction and use another as a safe-haven when directing activities at UCH. The Convention is somewhat unusual in its structure with an Annex as an integral part of the Convention. Whereas the Annex addresses archaeological standards in some detail, the Convention itself is designed to set out principles, rights and duties that require implementation, and detail, from each ratifying State. The Convention is not a self-executing convention in the sense that is does not provide rights and duties that can easily be incorporated into a State’s national legal system without some form of implementing legislation that provides a detailed protective regime. The Convention, in seeking to harmonise principles, merely provides the skeleton or framework and each State is required to add body to that structure. There is therefore a tension inherent in the implementation of this Convention: the need for harmonisation across jurisdictions given that the Convention is structured on the basis of State co-operation, whilst at the same time giving States the freedom to implement the Convention in ways that make is workable in that particular State. The great difficulty then is to identify the best mechanism through which these international norms, binding on each State, may be translated and transformed into a national protective regime that is effective as the basis 3 �for State co-operation. One possible mechanism is the use of a model law that can play a transformative role, particularly within a particular geographical region. The transformative function of a Model Law A model law is a legislative text that is recommended to States for enactment as part of their national law (Faria, not dated). Model laws are used to harmonise and unify law, and have been used by a range of international organisations, including UNESCO, UN Commission on International Trade Law (UNCITRAL) and the International Institute for the Unification of Private Law (UNIDROIT) (Siehr, 2012). Essentially the model law sits somewhere on the spectrum between the generality of the norms of international conventions and the specificity of the national legislation. It plays a mediating role in the transformation process from international norms to national law. The extent of that process is dependent on where in that spectrum the model law is to sit. And that is dependent on a range of factors, including the States involved in the drafting of the model law, the specificity of the international norms themselves and the differences in the legal structures of various implementing States (particularly in the same geographical area where this is important to the international context, as it is in this case). The use of model laws in this transformative role has been championed for a number of reasons. By having a more detailed agreed upon instrument, the implementation of the intentional norms is more likely to be applied, interpreted and enforced consistently between jurisdictions (Pistor, 2002). Moreover, the resulting national legislation is also more likely to achieve quality measures of legislation such as its enforceability, consistency, comprehensibility, transparency and accessibility (Poloko, 2012; Muylle, 2003). It also saves time in that the national drafting process is shortened through the collective drafting of the model law. It also allows for the pooling of expertise, particularly where the subject matter of the international norms may be of a technical nature; as is the case with the Annex of the Convention. This is perhaps particularly pertinent in the Pacific, given the limited number of technical experts as well as the limited number of experienced legislative drafters. This has led to a general failure to introduce legislation in many Pacific Islands State to meet their obligations under regional and international conventions. This shortage prompted the member States of the Pacific Islands Forum Secretariat, of which Solomon Islands is one, to 4 �establish a legal drafting unit within the Forum Secretariat in 2006. Its core mandates include provision of legislative drafting assistance to Forum countries in relation to national legislative agendas and in response to the Pacific Plan and any other relevant initiatives. There is already a precedent for the drafting of model laws by the Unit, as in 2008 it completed a Regional Model Law on Customs. Prior to the establishment of the Unit, the Forum Secretariat was a partner in the drafting of the Model Law for the Protection of Traditional Knowledge and Expressions of Culture in 2002. Solomon Islands has not yet developed national law based on this model (Pacific Islands Forum Secretariat; not dated). The use of model laws in drafting national legislation does, however, have shortcomings. Model laws that lie close to national legislation in terms of specificity may lack a certain amount of democratic legitimacy. It is “a legislative process which may be far removed from those which it affects and in a sense negates trends towards bringing government closer to the people by way of regionalisation and devolution” (Poloko, 2012). The risk lies in implementing a model laws that achieves international uniformity but lacks efficacy in the national legal system. As such, in drafting a model law, consideration needs to be given to the difficulties that might arise in giving national (or even local) effect to the resulting national legislation. Whilst a model law is not, in itself, a legislative instrument, and therefore need not be duplicated in its entirety in the implementing legislation, any divergence will undermine the very purpose of the model law: uniformity and harmonization. Nevertheless, it has the advantage of flexibility and the ability to accommodate national variation in its implementation (Faria, not dated). The drafting of a Model law The quality of the national legislation that implements the model law is naturally dependant on the quality of the model law itself. In drafting the model law, consideration must be given to the criteria used to ascertain the legislative quality: being its enforceability, consistency, comprehensibility, transparency, plainness, accessibility and clarity (Poloko, 2012; Muylle, 2003). This then will also impact on the generality or specificity of the model law. These criteria would have to be applied in the drafting of a model law implementing the Convention in the Pacific. 5 �1. Enforceability: the model law would need to take into account the practical consideration needed to give effect to the Conventions’ articles. 2. Consistency and Comprehensibility: the model law would need to be drafted using concepts, language and structures that give effect to the international morns but which are also consistent with national legal structure and legislation and can be understood in that national context. In geographical area such as the pacific, this might necessitate a more abstract generalised model law that take into account the differences in national legal structures. 3. Transparency and Accessibility: requires the involvement, or at least consultation, between the drafters of the model law and those responsible for the national drafting and administration of the implementing legislation. These cautionary points are particularly pertinent in the Pacific, and particularly in relation to States such as Solomon Islands. As a case study, Solomon Islands provide a cautionary seascape within which to consider the use and application of a model law to implement the UCH Convention. Implementation in legally pluralistic States: Solomon Islands Solomon Islands, like most other Pacific Island nations, has a plural legal regime. State law co-exists with customary laws, which are largely unwritten. Customary laws have been given formal recognition in the Constitution, but do not depend on the State for their validity. For many Solomon Islanders they are the only laws they will ever encounter. There is a stark distinction between State law and customary laws. In the customary sphere, the distinctive features of the ‘legal’ and ‘social’ orders are inextricably intertwined. The State system, on the other hand, is based on the common law, which is a foreign model. Its laws and legal institutions are largely legal transplants. There is a longstanding debate in transplant theory as to whether it is only rules that are transplanted or whether it is law and its surrounding culture. It has been argued that the success of a transplanted law depends on the type of law involved, with culturally specific laws being the least likely to succeed (Kahn-Freund, 1974, 5-6). In the context of Solomon Islands, the objection to transplants is well stated by Gatu: A Solomon Islander is a unique Melanesian, and whatever laws or regulations are passed should be made to suit the Melanesian lifestyle. ... Too often both 6 �expatriates and Melanesians (especially politicians) make the same mistakes over and over again by trying to implant or impose foreign laws and concepts on Melanesians and expect them to adhere to such changes with a wave of the magic wand (1977: 98) Model laws are subject to many of the same objections as legal transplants, in that they are not drafted specifically for a country. However, unlike transplants, a model law is not intended to be applied blindly, without modification or supplementation to accommodate local circumstances. However, like transplants, model laws are particularly problematic in plural legal regimes. It is not only the cultural setting of the law that may differ, but also the legal setting. Each of the two legal systems may prescribe a different rule for the same situation. Each may also differ in its approach to process and proof, the appropriate relief and the penalties which may be imposed. Enforceability may also be an issue, particularly given the logistics of Solomon Islands. In practice, particularly in remote areas, traditional leaders may be the only effective authority. Where legal systems overlap, care must be taken not to introduce laws which will exacerbate tensions between the different systems. This is particularly the case where State and customary norms are radically different, which may well be the case in relation to cultural heritage. The complexities arising from legal pluralism in this area are well illustrated by the disagreement of State and traditional authorities over ownership of the land (or sea) on which tangible cultural heritage is situated or through which it may be accessed. The State law is contained in the Land and Titles Act (Cap 133) and the common law, constituted by decisions of Solomon Islands courts. The Act acknowledges the supremacy of customary laws in relation to customary land (which constitutes 87% of the total land area). It states that, ‘The manner of holding, occupying, using, enjoying and disposing of customary land shall be in accordance with the current customary usage applicable thereto, and all questions relating thereto shall be determined accordingly’ [s 239(1)]. However the legislation does not expressly state whether ‘customary land’ includes reefs or foreshore, and recourse must therefore be had to the common law on this point. 7 �Unfortunately, the cases are conflicting. At one time, the High Court regarded the issue as governed by the common law, and accordingly, areas below high watermark were regarded as belonging to the Crown (Allardyce v Laore 1990). However, according to the latest High Court decision (Combined Fera Group v Attorney General 1997) reefs and foreshore may be under customary management if it can be proved that this was the case prior to 1 January 1969. This means that if customary owners have undisputed evidence that they owned an area on which cultural heritage is situated or accessed before that date they may be able to establish a legal right to ownership. Customary laws differ significantly from place to place in Solomon Islands, so it is not possible to state categorically what these laws say about reef and foreshore. One fundamental point of difference is that ‘ownership’ is not an adequate term to describe the rights and obligations of members of customary society regarding their land, which are intimately bound up in an intricate web of relationships. The customary concept of land-holding recognises multi-layered rights of ownership and use. It may be more accurate to refer to ‘rights to use’ than to ownership, but even this does not give the full picture (Corrin, 2008). What can be said is that customary land tenure includes tenure of the land below high water mark. Such tenure carries with it the right to control the use of the marine area and resources, including heritage resources. Solomon Islands Law Reform Commission has considered this matter in some detail. The Commission’s 2012 report recommends amending the definition of customary land in the Land and Titles Act to include land below the low watermark up to the limit of Provincial boundaries ([1.26]). It also recommends abolishing the need to prove ownership prior to 1 January 1969 and relying on proof of current customary usage ([1.26]). To date, these recommendations have not been implemented. If implemented they will have significant consequences for the national government in attempting to implement the Convention in its territorial waters below the high watermark. Another important aspect of legal (and cultural) pluralism to be taken into account is the authority of traditional chiefs, who play a rule not only in making, but also in administering and enforcing customary laws. The Constitution of Solomon Islands puts an onus on Parliament to legislate for the inclusion of traditional chiefs in provincial governance (s 114). 8 �Provincial governments It is also important to bear in mind that legislative reform in Solomon Islands may be in the form of national or provincial legislation. Provincial governments may make laws in the form of ordinances on matters devolved to provinces or ‘incidental to or consequential on’ such matters (s 31(1)). Devolved areas include ‘Historical remains’ (Provincial Government Act 1997, Sch 3, para 2). In the original Act, passed in 1981, the Protection of Wrecks and War Relics Act 1980 was excluded from the devolved powers. The extent of this exclusion is unclear, but this is now academic as it does not appear in the 1997 Act. Provincial Ordinances only have effect within the province, and provincial governments are specifically precluded from making laws affecting Solomon Islands’ international obligations (s 31(4)). Nevertheless, given the political and practical importance of provincial governments, it is important to bear their role in mind when drafting model laws. It is also necessary to take into account the existing provincial initiatives. Guadalcanal and Western Province both have policy frameworks on culture, although these are fairly rudimentary (Guadalcanal Policy Statement on Culture 1987; Western Province Policy on Culture 1989). However, five provinces have Ordinances providing some degree of protection for cultural heritage. These are the Guadalcanal Province Protection of Historic Places Ordinance 1985; the Malaita Province Preservation of Culture Ordinance 1995; the Makira-Ulawa Council (Prevention of the Sale of Traditional Artifacts) Bylaws 1977; the Temotu Province Preservation of Culture Ordinance 1993; and the Western Province Preservation of Culture Ordinance 1989. The Moli Ward Chiefs Council Ordinance 2010 provides a more recent and locally specific example of a piece of sui generis legislation, drafted within Guadalcanal Province to regulate the use of ‘traditional practices or heritage’. This is defined to include, ‘song, chant, dance costume or clothing, ritual, ceremonial object or practice, folklore, painting, carving, art, weapon, architecture, traditional knowledge and any other authentic activity or object attributed to the customs and traditions of Moli Ward.’ Conclusion While sui generis legal solutions are always the preferred option, the drafting of a Model Law for the implementation of the Convention in the Pacific has much to offer. It is both 9 �resource and time efficient and its inherent flexibility in its transformative role is capable of addressing individual State’s particular circumstances. That’s said, the drafting a Model Law with sufficient flexibility to address the distinctive features of a State such as Solomon Islands is not without significant challenges. Solomon Islands’ rich cultural heritage, illustrated by its linguistic and tribal diversity (there are, for example, 65 different languages in Solomon Islands), and the peculiar nature of its legal and social systems, requires input from Solomon Islanders as well as from technical experts on maritime archaeology and the functioning of the Convention. References Allardyce v Laore [1990] SILR 174 Combined Fera Group v Attorney General (Unreported, High Court, Solomon Islands, Palmer J, 19 November 1997) Cogliati-Bantz, B., and Forrest, C., 2013. Consistent: The Convention on the Protection of the Underwater Cultural Heritage and the United Nations Convention on the Law of the Sea. Cambridge International and Comparative law Journal, Vol. 2 (3): 1-26. Corrin, J., 2008. Customary Land and the Language of the Common Law. Common Law World Review, Vol. 37: 305 - 333. Dromgoole, S., 2013. Reflections on the Position of the Major Maritime Powers with Respect to the UNESCO Convention on the Protection of the Underwater Cultural Heritage. Marine Policy, Vol. 38: 116-123. Faria, J. A. E., Legal Harmonization through model laws: The experience of the United Nations Commission on International Trade Law (UNCITRAL), retrieved 28 December 2013, from http://www.justice.gov.za/alraesa/conferences/2005sa/papers/s5_faria2.pdf. Forrest, C., and Corrin, J., 2013. Legal Pluralism in the Pacific: Solomon Island’s World War II Heritage. International Journal of Cultural Property, Vol. 20: 1-21. Gatu, B., 1977. Dispute settlement in the Solomon Islands. In G. Powles, R. Crocombe, and M. Pulea, (Ed.), Pacific Courts and Justice, Institute of Pacific Studies, Fiji: 98-100. Guérin, U., Egger, B., and Penalva, V., 2010. Underwater Cultural Heritage in Oceania. UNESCO, Paris. Hess, M., Robson, S., Miller, F. S., Were, G., Hviding, E., and Berg, A. C., 2009. Niabara - The Western Solomon Islands war canoe at the British Museum - 3D documentation, virtual reconstruction and digital repatriation. Berg, Arne Cato 2009 15th International Conference on Virtual Systems and Multimedia: proceedings: VSMM 2009 Vienna Austria, retrieved 15 December 2013, from http://discovery.ucl.ac.uk/1305320/1/1305320.pdf. 10 �Kahn-Freund, O., 1974. Uses and Misuses of Comparative Law. Modern Law Review, Vol. 37 MLR: 1 - 27. Lidimani, D. B., 2011. Cultural Mapping Report: Solomon lslands. Secretariat of the Pacific Community, Fiji. Muylle, K. J., 2002. Improving the Effectiveness of Parliamentary legislative procedures. Statute Law Review, Vol. 24 (3): 169-186. Poloko, L., 2012. Drafting of legislation in compliance with model laws. LLM Thesis, Institute of Advanced Legal Studies, University of London. Siehr, K., 2012. Model Laws for Implementing International Conventions - The Implementation of the 1970 UNESCO Convention on Cultural Property. Max Planck Private Law Research Paper No. 12/25. Solomon Islands Law Reform Commission., 2012. Review of the Law that Applies to Land below High Water Mark and Low Water Mark (Solomon Islands Law Reform Commission, 2012). Pacific Islands Forum Secretariat. Legislative Drafting, retrieved 8 January 2014, from http://www.forumsec.org/pages.cfm/political-governance-security/legislative-drafting/. Van Tilburg, H., 2011. Historic Period Ships in the Pacific Ocean. In A. Catsambis, B. Ford and D. L. Hamilton (Eds.), The Oxford Handbook of Maritime Archaeology, Oxford University Press, Oxford Watson, A., 1976. Legal Transplants and Law Reform. Law Quarterly Review,Vol.79- 84 Biography Craig Forrest is a reader in law and Director of the Marine and Shipping Law Unitat the University of Queensland. He was a member of the South African UNESCO delegation that drafted and adopted the 2001 Convention and has participated in a number of UNESCO workshops on the implementation of the Convention. In 2013 he assisted in drafting a Model Law for the implementation of the Convention in the Caribbean. He is a member of the International Law Association's Cultural Heritage Law Committee and is editor of the Australian and New Zealand Maritime Law Journal. Jennifer Corrin is Director of the Centre for Public, International and Comparative Law, University of Queensland, and currently an Australian Research Council Future Fellow undertaking research on law reform and development in plural legal regimes. Jennifer has published in the areas of South Pacific law, customary law, human rights, court systems, evidence, land law, constitutional law and contract. Current projects include the status of French law in former colonies; carbon rights in Melanesia; and legal pluralism and theories of law. Jennifer is on the Editorial Boards of the Journal of Legal Pluralism, and the Journal of South Pacific Law. 11 � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Session 15: Legal Framework for the Protection of the Underwater Cultural Heritage Subject The topic of the resource Video interview with Session 15 chair Dr. Craig Forrest. Description An account of the resource The legal framework for the protection of the underwater cultural heritage has gained momentum throughout the Asia-Pacific with a number of States turning their attention to this issue. For some this is due to concerns raised though specific incidents that have damaged or destroyed the underwater cultural heritage or the information that could be gleaned from its excavation, whilst for others, it follows from consideration being given to the UNESCO Convention on the Protection of the Underwater Cultural Heritage. This session considers the Legal Framework for the Protection of the Underwater Cultural Heritage in a number of Asia-Pacific states. The objectives of session are to explore the various national approaches and to seek aspects of commonality and uniformity that provide frameworks for other state that have not yet addressed the issue. Creator An entity primarily responsible for making the resource Dr. Craig Forrest Document A resource containing textual data. Note that facsimiles or images of texts are still of the genre text. Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource A Model Law to Implement the Convention on the Protection of the Underwater Cultural Heritage and its Possible Application in Plural Legal Regimes in Pacific Small Islands States: A Case study of Solomon Islands Description An account of the resource A strategy for promoting the adoption of the Convention on the Protection of the Underwater Cultural Heritage, is the adoption of a Model Law; one that also promotes uniformity, consistency and ease of use. This, however, is a challenge in the Pacific. Solomon Islands, for example, like most Pacific island nations, has a plural legal regime. That is, customary law operates in conjunction with the common law, a legacy of Solomon Islands’ colonial past. Legal pluralism raises significant difficulties for the protection and management of cultural heritage, and is especially challenging when the maritime areas beyond the low water mark are involved. This paper considers the barriers to protection of underwater cultural heritage raised by legal pluralism and the further difficulties encountered when considering Solomon Island’s possible ratification on the 2001 Convention on the Protection of the Underwater Cultural Heritage. It considers whether a Model Law might be a useful tool in this endeavour. Creator An entity primarily responsible for making the resource Craig Forrest Jennifer Corrin, in Van Tilburg, H., Tripati, S., Walker Vadillo, V., Fahy, B., and Kimura, J. (eds.) Date A point or period of time associated with an event in the lifecycle of the resource 5/20/2014 Asia-Pac Session 15 2014 https://apconf-much.org/proceedings/files/original/b90b4d72322545aa886b4402544d37f6.pdf 60402e662dbd39fbae88a644ddab0e09 PDF Text Text Protecting the Underwater Cultural Heritage in the waters surrounding Hong Kong Steven Gallagher Associate Professor of Practice in Law Professional Consultant The Chinese University of Hong Kong Email: stevegallagher@cuhk.edu.hk Abstract Since its colonial founding in 1841 Hong Kong has been a vibrant centre for international trade and commerce. Its strategic location at the head of the Pearl River made it a perfect location for maritime trade. Before this the waters surrounding Hong Kong’s 200 plus islands were the notorious hideouts of pirates seeking to plunder the rich merchant vessels trading between China and its South East Asian neighbours. The waters around Hong Kong are only now being fully explored for their cultural heritage. Professionals and amateurs are seeking the resting places of infamous pirate wrecks and the wrecks of their victims. Harbor developments and sea fortifications are being examined. However, the continued expansion of Hong Kong as a trading centre and the shortage of land for development places many underwater areas that may have significant heritage information at risk. Developments and land reclamation in the world famous Victoria Harbor have raised concerns locally and internationally. The building and expansion of the Chek Lap Kok Airport and the building of the Hong Kong-MacauZhuhai Bridge have given archaeologists opportunity to discover evidence of Hong Kong’s underwater cultural heritage but have also raised concerns regarding its damage and destruction. This paper considers the protection Hong Kong’s laws provide for the underwater cultural heritage in the face of threats from building projects, reclamation, increased traffic in established sea routes and the establishment of new commercial sea routes. Keywords: Hong Kong, underwater cultural heritage, law, Guangdong, legal framework Introduction Archaeologists have discovered evidence of human occupation of Hong Kong dating back 6,000 years to the Neolithic period (The Chinese University of Hong Kong, 2013). Discoveries suggest that Hong Kong has always been a sea trading area with the concentration of its population on its coastline e.g. Lantau, Sai Kung, Tuen Mun and the Kowloon Peninsula. Hong Kong’s position at the mouth of the Pearl River, close to the trading port of Guanzhou (previously Canton), made it useful for the trade in tea, silk, 1 �porcelain and eventually opium. The many islands and the rich trade passing through these waters have also made the area a haven and rich plundering waters for pirates. The Portuguese, the first Europeans to pass regularly through these waters, referred to the islands of Hong Kong as ‘the islands of thieves’. The problem of piracy in the area led to the Great Clearance Order of 1661–69, when the inhabitants of coastal Guandong were ordered to move inland to prevent them from having any contact with pirates and perhaps providing aid to them. The area of Hong Kong was virtually deserted and only a small proportion of the original residents are said to have returned when the Emperor rescinded the order (Hayes, 1974). However, the coastal settlements around Hong Kong gradually re-established and benefitted from the opening up of Canton for the tea and opium trade (HSU, 2000); the islands of Hong Kong became watering, victualing and smuggling points. Piracy also continued with notorious local pirate chiefs controlling vast fleets in these waters, for example Cheung Po Tsai (17961820). After the First Opium War (1839-1842) the British took Hong Kong Island as a Crown Colony and it became the base for European trade in the area. Archaeological and historical study of the underwater cultural heritage in Hong Kong The importance of the sea to the history and development of Hong Kong and the cultural heritage of the people oft is reflected in their beliefs and custom; for example the prevalence of Tin Hau temples and the dragon boat festivals which occur throughout the region. The recognition of the importance of Hong Kong’s maritime history is reflected in two dedicated museums (Maritime Museum and the Museum of Coastal Defence) and legislation such as the Protection of the Harbour Ordinance (Cap. 531), which recognises that ‘the harbour is a special public asset and a natural heritage of the Hong Kong people’ (Society for the Protection of the Harbour Ltd v. Town Planning Board [2004] 1 HKLRD 396). Discoveries of evidence of Hong Kong’s maritime cultural heritage have been made during the development of the infrastructure of Hong Kong including a Ming Dynasty (1368-1644 AD) shipwreck that is now located within the High Island Reservoir. Archaeological investigation during the building of the new airport at Chep Lak Kok, 2 �Lantau Island, has resulted in evidence of coastal settlement in the region. Although no thorough archaeological exploration of the waters of Hong Kong has yet been carried out, in 2009 the Lord Wilson Heritage Trust, provided financial support for the Hong Kong Underwater Heritage Group to analyse and consolidate data for 300 Hong Kong sites in a wrecks database (Jeffery et al., 2013). Concern for underwater cultural heritage is driven by the problems related to the shortage of land in Hong Kong. Hong Kong consists of approximately 1,104 km2 (426 square miles) of land including over 200 islands. Its hilly terrain results in only some 25% of its landmass being developed for habitation with concentration mostly along the coastline. Official population figures of seven million people make it one of the most densely populated areas in the world (Census 2011). The constant reclamation of land from the sea, infrastructure projects in, under or over the sea, and the huge amount of sea traffic in the area endanger the underwater cultural heritage. The legal framework for the protection of underwater cultural heritage in Hong Kong Hong Kong is a Special Administrative Region of the People’s Republic of China (PRC) and operates under the ‘One Country, Two Systems’ political system, which permits the region to use the common law until 2047. Hong Kong claims territorial waters to a distance of 3 nautical miles (5.6 km). Although there are many statutes which may indirectly affect the protection of underwater cultural heritage in Hong Kong, there are two statutes which form the basis of protection for underwater cultural heritage in Hong Kong: the Antiquities and Monuments Ordinance (AMO) (Cap. 53), which provides the basis for all statutory protection of cultural heritage wherever situated in Hong Kong; and the Environmental Impact Assessment Ordinance (Cap. 499). The Antiquities and Monuments Ordinance was gazetted in 1971 and came into effect in 1972. AMO therefore predates the common usage of the term “cultural heritage” and so refers to “relics”, “antiquities” and “monuments”. AMO provides “for the preservation of objects of historical, archaeological and palaeontological interest and for matters ancillary thereto or connected therewith”, to be effected by way of designating ownership in relics and declaration of “any place, building, site or structure” as a proposed monument or monument. Although AMO expressly refers to discovery as including finding in Hong 3 �Kong ‘in, on or under land or sea’ (s. 2), Amo was drafted when the limitations of underwater archaeology and the appreciation of underwater cultural heritage meant that the protection of the underwater cultural heritage was only cursorily considered, which is apparent as subsequent sections only refer to land: e.g. ss 2, 2A, 2B, 3, 5 and 8. The Environmental Impact Assessment Ordinance was gazetted in 1998 and has from its implementation been interpreted as necessitating consideration of the impact of proposed development of the seabed on cultural heritage. This interpretation was strengthened in 2007 after the Chief Executive’s Policy Address identified the protection of heritage and the requirement of Heritage Impact Assessments (HIA) as policy initiatives. The protection afforded the underwater cultural heritage in Hong Kong will be considered under two headings: protecting underwater cultural heritage from unauthorised excavation and removal, and protecting underwater cultural heritage before and during development. Protecting underwater cultural heritage from unauthorised excavation and removal AMO places restrictions upon the searching for and excavating of sites, antiquities and relics, and specifies what must be done when an antiquity is discovered either accidentally or after deliberate search. Whenever an antiquity is discovered, the discoverer or any person who knows of the discovery must report the discovery to the Authority, presently the Secretary for Development (s.2), or to a designated person, identify the antiquity or supposed antiquity if requested to, and take all reasonable measures to protect the antiquity (s.11(1)-(3). A designated person includes, ‘(a) the officer in charge of a police station; (b) a police officer of or above the rank of inspector; and (c) any person specified by the Authority by notice in the Gazette’. The person making the report of the discovery of an antiquity may be paid a reward by the Authority, with the prior approval of the Chief Executive (s. 11(4)). AMO further provides that no person may ‘excavate or search for antiquities’ unless they have a licence to do so (s.12a). Licences are granted by the Antiquities and Monuments Office under the direction of the Authority. 4 �AMO (s.2) defines an antiquity as: a. a relic; anda place, building, site or structure erected, formed or built by human agency before the year 1800 and the ruins or remains of any such b. place, building, site or structure, whether or not the same has been modified, added to or restored after the year 1799. Although this definition was arrived at with terrestrial discovery in mind the provisions also apply to underwater cultural heritage predating 1800 as discovery may be ‘in, on or under land or sea’ (s. 2). Once an antiquity has been discovered and reported to the Authority, the Authority may designate it a proposed monument and or declared monument. The protection AMO provides is not restricted to places, buildings, sites or structures predating 1800, however, as AMO provides that the Authority may declare any place, building, site or structure a proposed monument (s.2A).Declaration lasts for 12 months with the possibility of extension for a further 12 months (s.2B). Furthermore, the Authority may declare any place, building, site or structure “to be a monument, historical building or archaeological or palaeontological site or structure if the Authority considers it ‘to be of public interest by reason of its historical, archaeological or palaeontological significance” (s.3). The “place, building, site or structure” may be ‘in, on or under land or sea’ and is usually referred to as a “declared monument”. The status of “proposed monument” or “declared monument” provides protection for the site and anything contained within it. AMO empowers the Authority, with the prior approval of the Chief Executive, to authorise the fencing, repair, maintenance, preservation or restoration of any proposed monument or monument, and the excavate or search for relics in any proposed monument or monument and the removal of any relics thereby discovered (s. 5 (1)).These powers are limited when interfering with the property rights of owners or occupiers of the proposed monument or monument (s.5(3)). Compensation may be paid to the owner or occupier of monuments or proposed monuments if the Authority exercises these powers (s. 8). The Ordinance provides a restriction on excavation and interference with any proposed monument or declared monument by way of a permit scheme (s. 6). The scheme prohibits, amongst other acts, the excavation, carrying on of building or other works, depositing earth or refuse on or in 5 �a proposed monument or monument, and the demolishing, removing, obstructing, defacing or interfering with a proposed monument or monument, except in accordance with a permit granted by the Authority. Anyone refused a permit to carry out these acts may appeal to the Chief Executive within 14 days of notice of the refusal by the Authority. The Chief executive may confirm, vary or reverse the refusal. The Chief executive’s decision is final. Once a site is designated a proposed monument or declared monument no person may use a metal detector there to excavate and search for antiquities unless they have a licence from the Authority for these purposes (s.12aa).Furthermore no person may remove any relic ‘hitherto undiscovered from a proposed monument or monument, or collect or remove any object which he supposes to be a relic from the site of its discovery’ unless they have a licence which permits them to do so for the protection of the relic or supposed relic (s.12b). Section 2 defines "relic" as: a. a movable object made, shaped, painted, carved, inscribed or otherwise created, manufactured, produced or modified by human agency before the year 1800, whether or not it has been modified, added to or restored after the year 1799; and b. fossil remains or impressions… Every relic discovered in Hong Kong after the commencement of the AMO belongs to the Government of Hong Kong, although the Authority may disclaim ownership of the relic on behalf of the Government when common law principles would then apply (s.10). The licensing scheme (s.13 (2) provides that a licence may only be issued if the Authority is satisfied that the licensee ‘has had sufficient scientific training or experience to enable him to carry out the excavation and search satisfactorily; (b) has at his disposal sufficient staff and financial or other resources to enable him to carry out the excavation and search satisfactorily; and (c) is able to conduct, or arrange for, a proper scientific study of any antiquities discovered as a result of the excavation and search.’ A licence may be granted for a renewable period of 12 months (s.13 (3)), to enter land for the purposes of excavation and searching (s.14), it is accepted practice for such licences to be issued for marine exploration. A license may be cancelled but the 6 �licensee must have the opportunity of making representation as to why it should not be cancelled (s. 15). An applicant or licensee may also appeal by way of petition to the Chief Executive within 14 days of a decision to refuse or cancel a licence: (s. 16). It may include such conditions as the Authority considers appropriate, e.g. the conduct of any excavation and search, the reporting, mapping and documenting thereof, the use of a metal detector, the preservation of materials discovered, their removal, examination and return, and the making and delivery of casts, rubbings, squeezes and other reproductions’ (s. 13(6)). AMO provides penalties for those who: knowingly make ‘a false statement to the Authority or to a designated person as to the situation or circumstances of the discovery of an antiquity’; do not report the discovery of an antiquity; excavate or search for antiquities without a licence (including the use of metal detectors (as proscribed in s. 12aa)); do not identify an antiquity they have reported if so requested; wilfully obstructs the Authority, or any designated person authorized by him (s. 19(1)). On conviction the offences carry maximum penalties of HK$5,000 and imprisonment for 6 months. There is a presumption in criminal and civil proceedings that any relic or alleged relic proved to be in Hong Kong after the date of commencement of the Ordinance was discovered in Hong Kong after the date of commencement of the Ordinance (s. 20(1)).The possessor of the relic or presumed relic must prove that the relic or presumed relic was in their possession or the possession from someone from whom they obtained possession for six years before the commencement of the proceedings or was imported into Hong Kong (s. 21(1)). AMO also provides more serious offences of excavating, carrying on building or other works, or depositing earth or refuse on or in a proposed monument or monument; or demolishing, removing, obstructing, defacing or interfering with a proposed monument or monument. These offences are punishable on conviction with a maximum fine of HK$100,000 and imprisonment for 1 year. The definition of antiquity limits the protection of undiscovered sites and artefacts to those predating 1800. However, the designation of a site as a proposed monument or declared monument will protect the site from any excavation or the removal of any object. Any wreck postdating this period and not subject to statutory designation may be subject to the law of salvage. The Merchant Shipping (Collision Damage Liability and 7 �Salvage) Ordinance (Cap. 508) incorporated the International Convention on Salvage 1989, but Hong Kong has adopted the Reservation permitted in article 30(1) of the Convention, as specified in the Ordinance s 9 and Sch 1, Pt2, para 2(1)(a), that the provisions of the Convention do not apply ‘when the property involved is a maritime cultural property of prehistoric archaeological or historic interest and is situated on the sea-bed.’ Such property will be subject to the pre-existing Hong Kong common law of salvage. The Hong Kong Government is entitled to all unclaimed wreck within Hong Kong’s territorial waters, except where the right has been granted to some other person (Pierce v Bemis, The Lusitania [1986] QB 384). Protecting underwater cultural heritage before and during development The most worrying prospect for those concerned with the underwater cultural heritage in Hong Kong’s waters has been the continued expansion of Hong Kong into the sea and the major capital projects which have been undertaken in the seas. Contractors with the best intentions may never realise they have damaged underwater cultural heritage or may only realise there is an artefact or site which should be reported when major damage has already been inflicted on the integrity of a site. This concern has been reflected in Government policy to protect underwater cultural heritage. This policy has been described as “An excellent example of proactive management of underwater cultural heritage with relation to seabed development…” (Coroneos, 2006). The protection afforded underwater cultural heritage that may be damaged by building and development projects in Hong Kong is afforded by the Environmental Impact Assessment Ordinance (EIAO). Implemented in 1998, the EIAO specifies in its Technical Memorandum that Heritage Impact Assessments (HIA) should be carried out at the early planning stage of any required development. The EIAO specifies in Schedule 1 Interpretation that ‘environmental impact’ for a designated project includes an on-site or off-site change that the project may cause in the environment on cultural heritage or a structure, site or other thing that is of historical or archaeological significance’. Schedule 1 also defines a "site of cultural heritage" as “an antiquity or monument, whether being a place, building, site or structure or a relic, as defined in the Antiquities and Monuments Ordinance… and any place, building, site, or structure or a 8 �relic identified by the Antiquities and Monuments Office to be of archaeological, historical or palaeontological significance”. The EIAO Schedule 2 designates projects requiring HIA, which include: reclamation works (including associated dredging works) more than 1 ha in size with a boundary which is less than 500 m from the nearest boundary of an existing or planned site of cultural heritage; dredging operation which is less than 500 m from the nearest boundary of an existing or planned site of cultural heritage; sewage treatment works with an installed capacity of more than 5000 m3 per day and a boundary which is less than 200 m from the nearest boundary of an existing or planned site of cultural heritage; a sewage pumping station with an installed capacity of more than 2000 m3 per day and a boundary which is less than 150 m from an existing or planned site of cultural heritage; a drainage channel or river training and diversion works which discharges or discharge into an area which is less than 300 m from the nearest boundary of an existing or planned site of cultural heritage; All projects including new access roads, railways, sewers, sewage treatment facilities, earthworks, dredging works and other building works partly or wholly in a site of cultural heritage. Schedule 4 provides that any environmental permit granted may specify timing phasing or mitigation measures to mitigate the impact of a designated project. Mitigation measures include “processes, systems, practices, procedures or technologies for the conservation, preservation or protection of …sites of… cultural heritage importance”. The requirement for HIA was extended by the Chief Executive’s Policy Address of 2007 to cover any public works. Those undertaking HIA are required to engage “a qualified marine archaeologist” to “…identify whether there is any possible existence of sites or objects of cultural heritage, for example shipwreck, within any seabed areas that would be affected by the marine works of the Project” (Coroneos, 2006). The Technical Memorandum, Annex 19, provides ‘Guidelines for assessment of impact on sites of cultural heritage and other impacts’. These Guidelines explain that methodologies for assessing impact may vary depending on the site, and that there is ‘no quantitative standard in deciding the relative importance of these sites, but in general, sites of unique archaeological, historical or architectural value will be considered as highly significant. ’The Guidelines provide what must be done when undertaking the HIA: 9 �1. Baseline Study: to compile a comprehensive inventory of places, buildings, sites and structures of architectural, archaeological and historical value within the proposed project area; and to identify possible threats of destruction in whole or in part of sites of cultural heritage arising from the proposed project. 2. Methodology: information should be assembled to assess the sites to provide detailed geographical, historical, archaeological, ethnographical and other cultural data. Sources for the assessment should include public records, published papers, ‘records, archival and historical documents as well as oral legends. ’If these sources prove inadequate then field surveys and site investigations shall be conducted to assemble the necessary data. 3. Impact Assessment: the presumption is for ‘preservation in totality’. However, if site constraints and other factors permit only partial preservation then ‘this must be fully justified with alternative proposals or layout designs which confirm the impracticability of total preservation.’ Total destruction is the ‘very last resort’ and ‘shall only be recommended with a meticulous and careful analysis balancing the interest of preserving the archaeological, historical, architectural and other cultural values as against that of the community as a whole.’ 4. Mitigation Measures: mitigation measures shall not be used to avoid total or partial preservation. These general requirements for undertaking HIA have been further refined for underwater purposes by the Antiquities and Monuments Office’s Guidelines for Marine Archaeological Investigation specifying the tasks necessary for a successful HIA, colloquially referred to, as Coroneos notes, as “the Four Commandments”: Task 1 Baseline Review; Task 2 Geophysical Survey; Task 3 Establishing Archaeological Potential; Task 4 Remote Operated Vehicle (ROV)/Visual Diver Survey/Watching Brief. The Baseline Review is the equivalent of the Baseline Study. The Geophysical Survey is usually conducted by marine geophysical contractors. These two tasks then feed into Task 3, Establishing Archaeological Potential, which identifies, or isolates, anomalies or 10 �areas of archaeological potential. If no anomalies or areas of archaeological interest are found then Task 4 is not required. Otherwise Task 4 requires the use of ROV and/or visual divers, depending of the nature of the anomaly or area of archaeological potential, to investigate. If archaeological material is discovered then the Antiquities and Monuments Office must be notified to seek guidance on its significance and the preparation of appropriate mitigation measures. Conclusion Hong Kong’s framework for the protection of underwater cultural heritage is relatively simple and seemingly effective. The development of Hong Kong’s coast and seabed is undertaken with a requirement for heritage impact assessments specifying high levels of investigation and protection by professional archaeologists. Generally, no one is allowed to search for antiquities in Hong Kong’s waters without a permit from the Secretary or Development. Any chance discovery of an antiquity must be reported to the Secretary for Development. Any relic discovered belongs to the Hong Kong Government. Once a site is identified then it may be protected by designation as a proposed monument or declared monument. Of course there is room for improvement in the legal framework protecting the underwater cultural heritage in Hong Kong. For example AMO could be updated in language and provisions to specify the importance of underwater cultural heritage. Further measures may be implemented to protect underwater cultural heritage in line with policy statements from Beijing that China will bring its domestic laws into line with the UNESCO Convention on the Protection of the Underwater Cultural Heritage (FU, 2003). References Census, 2001. Retrieved 20 Janary http://www.census2011.gov.hk/pdf/summary-results.pdf 2014. From The Chinese University of Hong Kong, 2013. China Unearthed, Soaring Phoenix Rising Dragon, Celebratory Exhibition for the 50th Anniversary of the Chinese University of Hong Kong. The Chinese University of Hong Kong Press, Hong Kong. Coroneos, C., 2006. The Four Commandments: The Response of Hong Kong SAR to the Impact of Seabed Development on Underwater Cultural Heritage. In R. Grenier, D. Nutley, and I., Cochran (Eds.), Heritage at Risk Special Edition, Underwater Cultural 11 �Heritage at Risk, International Council on Monuments and Sites (ICOMOS), Paris: 4648. Retrieved 20 January 2014. From http://www.international.icomos.org/risk/2006/fulldocan.pdf FU, Kuen-Chen, 2003. A Chinese Perspective on the UNESCO Convention on the Protection of the Underwater Cultural Heritage. International Journal of Marine and Coastal Law: 109-126. Hayes, J., 1974. The Hong Kong Region: Its Place in Traditional Chinese Historiography and Principal Events Since the Establishment of Hsin-an County in 1573. Journal of the Royal Asiatic Society Hong Kong Branch, Vol. 14: 108–135. HSU, Immanuel C. Y., 2000. The Rise of Modern China. Oxford University Press, Oxford. Jeffery, B., Li, M. L. H., Wong, P. P-K., Ho, L. W-C., Chan, T. S-M., Chow, G. S-M., Chan, R. K-Y., 2013. Recording and Documenting the Underwater Cultural Heritage of Hong Kong, Stage 1: a community maritime archaeology project. International Journal of Nautical Archaeology, Vol. 42 (2): 412- 419, retrieved 20 January 2014. From http://www.hkuhgroup.com/cms/ The Maritime Museum and the Museum of Coastal Defence, retrieved 20 January 2014. http://www.hkmaritimemuseum.org/ 1.php ; http://hk.coastaldefence.museum/en/section1- Biography Steven Gallagher is an Associate Professor and a Professional Consultant, The Chinese University of Hong Kong. He was called to the Bar of England and Wales in 2006 by Gray’s Inn after many years as an antiques dealer. Steven has taught Equity and Trusts for undergraduate level and masters’ students in England and Hong Kong, and on the Juris Doctor program in Hong Kong. In 2014 Steven began the first Cultural Heritage Law course in Hong Kong. Steven’s cultural heritage research interests include issues involving human remains, and the traffic in cultural heritage such as ‘wreck’ porcelain. 12 � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Session 15: Legal Framework for the Protection of the Underwater Cultural Heritage Subject The topic of the resource Video interview with Session 15 chair Dr. Craig Forrest. Description An account of the resource The legal framework for the protection of the underwater cultural heritage has gained momentum throughout the Asia-Pacific with a number of States turning their attention to this issue. For some this is due to concerns raised though specific incidents that have damaged or destroyed the underwater cultural heritage or the information that could be gleaned from its excavation, whilst for others, it follows from consideration being given to the UNESCO Convention on the Protection of the Underwater Cultural Heritage. This session considers the Legal Framework for the Protection of the Underwater Cultural Heritage in a number of Asia-Pacific states. The objectives of session are to explore the various national approaches and to seek aspects of commonality and uniformity that provide frameworks for other state that have not yet addressed the issue. Creator An entity primarily responsible for making the resource Dr. Craig Forrest Document A resource containing textual data. Note that facsimiles or images of texts are still of the genre text. Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Protecting the Underwater Cultural Heritage in the waters surrounding Hong Kong Description An account of the resource Since its colonial founding in 1841 Hong Kong has been a vibrant centre for international trade and commerce. Its strategic location at the head of the Pearl River made it a perfect location for maritime trade. Before this the waters surrounding Hong Kong’s 200 plus islands were the notorious hideouts of pirates seeking to plunder the rich merchant vessels trading between China and its South East Asian neighbours. The waters around Hong Kong are only now being fully explored for their cultural heritage. Professionals and amateurs are seeking the resting places of infamous pirate wrecks and the wrecks of their victims. Harbor developments and sea fortifications are being examined. However, the continued expansion of Hong Kong as a trading centre and the shortage of land for development places many underwater areas that may have significant heritage information at risk. Developments and land reclamation in the world famous Victoria Harbor have raised concerns locally and internationally. The building and expansion of the Chek Lap Kok Airport and the building of the Hong Kong-Macau-Zhuhai Bridge have given archaeologists opportunity to discover evidence of Hong Kong’s underwater cultural heritage but have also raised concerns regarding its damage and destruction. This paper considers the protection Hong Kong’s laws provide for the underwater cultural heritage in the face of threats from building projects, reclamation, increased traffic in established sea routes and the establishment of new commercial sea routes. Creator An entity primarily responsible for making the resource Steven Gallagher, in Van Tilburg, H., Tripati, S., Walker Vadillo, V., Fahy, B., and Kimura, J. (eds.) Date A point or period of time associated with an event in the lifecycle of the resource 5/20/2014 Asia-Pac Session 15 2014 https://apconf-much.org/proceedings/files/original/c4bcabafb2f4ee3f1aa223491fdcbb62.pdf dd1dc60b5c7f2643fac45787522dcd88 PDF Text Text New approach to protect the underwater cultural heritage in Sri Lanka Sanath Karunarathna Department of Archaeology (Regional Office - Southern Province) Galle, Sri Lanka Email: sanathgalle@yahoo.com Abstract In 2001 the Minister of Fisheries and Aquatic Resources Development passed a bill in the Parliament of Sri Lanka entitled the “Long–Term Management of Maritime Wrecks and Underwater Cultural Heritage of Sri Lanka”.. A committee, known as the Inter Ministerial Committee chaired by the Secretary of the Ministry of Fisheries, was formed to give effect to the bill. Four general meetings have been held and many important decisions have been taken, including stopping salvage and destroying wrecks. This is a very important step towards protecting of the UCH in Sri Lanka. Apart from this, the draft amendment for the Antiquity Ordinance no 9, 1940; brought into effect in 2012, provides that any vessels that had run aground more than one hundred years ago, or built more than one hundred years ago, shall be considered underwater cultural heritage. An amendment brought in 1998 for the same ordinance had extended the meaning by adding “found in the Sri Lankan waters”, bringing greater protection for UCH in Sri Lanka. The Sri Lankan Navy is assisting by giving coverage for protection as a whole and it was strengthened with the request of the Director General of Archaeology for stopping any attempt to destroy UCH in our waters. A newly formed department for protecting coastal zones is well educated for the prevention of any harmful activity on UCH. There are several other rules and regulations related to the protection of UCH in Sri Lanka, which will be covered in this paper. Key words: Sri Lanka, Underwater Archaeology, Heritage, Management, Trincomalee, Mannai, Godawaya Introduction Sri Lanka, which has been known around the world as a beautiful island in the Indian Ocean, was also famous for its naval activities since the beginning of the 1st century AD and its recently discovered, 2,000 year old archaeological evidence. It is interesting to note here that carbon dating technique has confirmed that the sunken ship which was recovered from the Godawaya area is more than 2000 years old. The maritime archaeological heritage of Sri Lanka is enriched as the famous maritime silk route between Europe and Asia went past this island. As mentioned above there were several 1 �important harbors along the coastal belt. Some of these well-known ports are Mannai (Mannar) Trincomalee, Galle and Godawaya. According to the established archeological evidence, the maritime activities of this island were intensified after the colonization of the country. Most shipwrecks that have been found along the coast belonged to the Dutch and English period. The maritime exploration of Sri Lanka was started by the well-known scientist and author, Sir Arthur C Clarke and some of his colleagues in the 1960s. As such, the No. 9 ordinance of the Maritime archaeology of 1940 did not mention maritime archaeology. Moreover, the extent of the maritime zone was also officially decided and declared in 1976 by the Maritime zone law No. 22 which was ratified by the State Council. Until then, there was not any decision taken of ownership of the maritime resources in this area (The Act No. 73 of the cultural property in 1988). By taking all these things into consideration, the government introduced a new ordinance in 1976 called the Cultural Property Bill no. 73. It bans the exportation of any cultural property from Sri Lanka. Also it requires approval from the commission of archaeology for exporting any registered cultural property out of the country. Even today this law is valid and it functions under the Ministry of Cultural and Arts. So according to the law, any archaeological property situated on land as well as in the sea is regarded as a cultural property of Sri Lanka and so it is prohibited to export them. Also according to clause 2(1) in the first chapter of the Archaeological Ordinance of no. 9 in 1940, even where archaeological property in situated on private land, it nevertheless belongs to the State. If the person wants to keep it as his property he must prove ownership of that property. So, according to this clause it is a punishable crime to keep for oneself archaeological property which was from the territorial sea or removed from a ship. As there were some shortcomings in the main ordinance, it was revised again in 1998 by introducing the revised bill of the 194 ordinance. Basically, the sub-clause of the second clause of the 194 ordinance was revised. In the main ordinance, the territorial sea had not been regarded as part of the territory of Sri Lanka. It only mentioned the word “vilaka” (in a lake). Now it has been revised by using the word “deshayesamurdayathula” (inside the territorial sea of the country). So according to the Maritime zone law of No. 22 in 1976, the “deshayesamurdhayathula” means the 2 �territorial sea area belongs to Sri Lanka. As such, the archaeological ordinance provides the power and authority to protect and look after all the monuments and other archaeological artifacts in the country. Another revision was made to this bill. The phrase “the constructions made before 1850” was changed in order to cover constructions made more than one hundred years ago. So the relevant Minister could declare those constructions as the monuments from a Gazette notification, with the recommendation of the Director of Archaeology. According to the clause of this Act, a shipwreck in the sea could be declared a monument, including ships which were sunk, or built, more than one hundred years ago, and are regarded as archaeological monuments because a shipwreck is an immovable object. When a ship is sunk it is regarded as stuck at that place forever and can therefore be regarded as a monument. The artifacts found from the sea, however could be moved to another place. Also it doesn’t do any harm to its content by doing so. So, if we could make sure the relevant artifact is made before 1815 AD, it surely could be regarded as an artifact under the define terms. In 1998, the AIA law (Archaeological Impact Assessment) was introduced. According to this law, the relevant authorities who are going to start a new project should get an archaeological impact assessment done with the help of the Department of Archaeology before starting any project. The expenses for this assessment should be paid by the project itself, allocating about 1% from the total cost of the project. The Department would give its approval to carry on the project after assessing the result of it. They could apply conditions also if necessary. The revision of clauses of 43A and 43B has greatly helped to protect the cultural heritage on the land and at sea. For instance, many archaeological assessments have been done in the recent years, before starting several big projects such as the harbor airports and highways. In 2012, measures were taken to revise the Archaeological Ordinance again. The necessary drafts has been done and presented to the parliament for its approval. Because of this revision, the authority which was vested on the Minister to declare a construction as a monument which was built more than one hundred years ago has been removed and included that authority into the ordinance directly. It would help further to protect the artifacts in the land and also in the sea. Moreover, another very 3 �important rule has been introduced. The fine that could be charged for an offence relating to destroying the artifacts have been increased from 50,000 to one million rupees and a two year prison sentence has been made mandatory. So, it must be emphasized and reiterated here that the Sri Lankan government is very serious about protecting the archaeological heritage and has already taken very important and strict measures to affect this policy. On top of all these ordinances and laws, a new law has been introduced by the president and cabinet in 2011. According to this new law, it is prohibited to dissemble the parts of a shipwreck. The Minister of Fisheries and the Aquatic Resources presented a cabinet paper called, “Long term management of maritime works and underwater cultural heritage of Sri Lanka”. According to its directions, a new committee, called the inter-ministerial committee, was established. Approval must be sought from this committee if anyone wants to remove any sunken ship. Whilst the authority may give directions, it has to be done with the consent and recommendation of the archeological department, navy, ministry of fisheries and NARA (National Aquatic Resources Research & Development Agency) The following institutions are represented on the committee: 1. Ministry of defense 2. Ministry of National heritage 3. Ministry of cultural and arts 4. Ministry of fisheries 5. Ministry of Ports and highways 6. Ministry of economic development 7. Ministry of environment 8. Ministry of social services 9. National Aquatic Recourses Agency 10. Sri Lanka Navy 11. Department of Coastal Guard 12. Sri Lanka Police If anyone wants to remove a shipwreck they must make a written request to the committee. Committee decisions are final and absolute. Only one of these organizations has to object to a proposal to remove a shipwreck, for that proposal to be denied. So, it 4 �is clear the decision would be taken by deeply considering national interest. Sri Lanka has clearly understood the importance of working collectively to protect the underwater cultural heritage. Also, all the governmental institutions have the authority to control the removal of the relevant ship wrecks which is under their field of activity. Even according to the rules of the Navy, the Ministry of Fisheries, and the Coast Guard, it is illegal and prohibited to remove anything from the seabed and bring them to the shore without their permission. When we consider of all these measures it is very clear that Sri Lanka has already taken strict measures and implemented tough laws to protect the UCH. The relevant ordinance and acts have been revised several times whenever it is necessary and the penalties for the offenders also have been increased. It is important to note here that all the governmental institutions which are relevant to this field have come together to work as a group to achieve common goals. Because these laws and committees have placed such a high standard on our maritime culture, maritime technology is taught as a prominent subject in most universities in Sri Lanka. It will help to broaden the knowledge, understanding and the attitude of the younger generation about this field. Several high level official discussions also have been done to ratify the UNESCO convention. All these things related to this subject are coordinated by the division of the underwater archaeology of the Department of Archaeology, Ministry of National Heritage and the Maritime Archaeology Unit of the central cultural fund which is under the authority of the Ministry of Cultural and Arts. They are all doing a wonderful job to share the knowledge and their practical know how with academics. References Antiquities act, No.o9 of 1940. Antiquities (Amendment) act, No: 24 of 1998. Antiquities act Amendment –draft 2012. Cultural Property act, No: 73-of 1988. Nara act, No: 54 of 1981. Fisheries act, No 2 of 1996. Merchant Shipping act, 1972. Sri Lanka Port Authority Act, No 51 of 1979. 5 �UNESCO Convention. National principles of Archaeology in Sri Lanka. Coast Conservation act, No 57 - of, 1981. Maritime Zones Law, No: 22 of 1976. Cabinet Paper on. Long term management of underwater cultural heritage in Sri Lanka, No: 11/0127/532/004 of 2011. Convention on the Protection of the Under Water Culture Heritage, 2001. Biography Sanath Karunarathna is a Maritime Archaeologist in Sri Lankan, working as a Regional Exploration Officer in the Department of Archaeology of Sri Lanka. He is a visiting lecturer at the University of Ruhuna. He began Maritime Archaeological work in 2004 with the Avondster Project. Sanath participated in the UNESCO Maritime Archaeology field Schools held in 2006 and 2007. He is currently based in Galle working with the Archaeological Diving team of the Maritime Archaeology Unit. He has done NAS Part 1 and participated in the first foundation course in Thailand 2011. 6 � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Session 15: Legal Framework for the Protection of the Underwater Cultural Heritage Subject The topic of the resource Video interview with Session 15 chair Dr. Craig Forrest. Description An account of the resource The legal framework for the protection of the underwater cultural heritage has gained momentum throughout the Asia-Pacific with a number of States turning their attention to this issue. For some this is due to concerns raised though specific incidents that have damaged or destroyed the underwater cultural heritage or the information that could be gleaned from its excavation, whilst for others, it follows from consideration being given to the UNESCO Convention on the Protection of the Underwater Cultural Heritage. This session considers the Legal Framework for the Protection of the Underwater Cultural Heritage in a number of Asia-Pacific states. The objectives of session are to explore the various national approaches and to seek aspects of commonality and uniformity that provide frameworks for other state that have not yet addressed the issue. Creator An entity primarily responsible for making the resource Dr. Craig Forrest Document A resource containing textual data. Note that facsimiles or images of texts are still of the genre text. Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource New approach to protect the underwater cultural heritage in Sri Lanka Description An account of the resource In 2001 the Minister of Fisheries and Aquatic Resources Development passed a bill in the Parliament of Sri Lanka entitled the “Long–Term Management of Maritime Wrecks and Underwater Cultural Heritage of Sri Lanka”.. A committee, known as the Inter Ministerial Committee chaired by the Secretary of the Ministry of Fisheries, was formed to give effect to the bill. Four general meetings have been held and many important decisions have been taken, including stopping salvage and destroying wrecks. This is a very important step towards protecting of the UCH in Sri Lanka. Apart from this, the draft amendment for the Antiquity Ordinance no 9, 1940; brought into effect in 2012, provides that any vessels that had run aground more than one hundred years ago, or built more than one hundred years ago, shall be considered underwater cultural heritage. An amendment brought in 1998 for the same ordinance had extended the meaning by adding “found in the Sri Lankan waters”, bringing greater protection for UCH in Sri Lanka. The Sri Lankan Navy is assisting by giving coverage for protection as a whole and it was strengthened with the request of the Director General of Archaeology for stopping any attempt to destroy UCH in our waters. A newly formed department for protecting coastal zones is well educated for the prevention of any harmful activity on UCH. There are several other rules and regulations related to the protection of UCH in Sri Lanka, which will be covered in this paper. Creator An entity primarily responsible for making the resource Sanath Karunarathna, in Van Tilburg, H., Tripati, S., Walker Vadillo, V., Fahy, B., and Kimura, J. (eds.) Date A point or period of time associated with an event in the lifecycle of the resource 5/20/2014 Asia-Pac Session 15 2014 https://apconf-much.org/proceedings/files/original/f214cea47e96ed0cb72662b36c3994e2.pdf 65789552181ea20c5bcadfc3f2a19a80 PDF Text Text A Chinese Perspective on the International legal scheme for the Protection of Underwater Cultural Heritage Liu Lina School of Law Xi’an Jiaotong University China Email: liulina223@gmail.com Abstract With 18,000 km of coastline and plentiful streams and rivers, China has an extensive underwater cultural heritage (UCH), which preserves Chinese history and maritime civilization under the ocean as a kind of “time capsule”. After 20-years of development of underwater archaeology and the protection of UCH, China has set up a brand-new national protection system. This contribution first discusses the new development of the Chinese UCH legal system in the 21th century in three aspects: legal subject, legal object and legal content. Further it discussed the tremendous challenges faced by the Chinese legal system. Meanwhile, since its entry into force in 2009, the UNESCO Convention on the Protection of the Underwater Cultural Heritage (UNESCO 2001 Convention) has been gradually approved by more and more influential States who hold various and abundant UCH items. Part two explains the UNESCO 2001 Convention as the International Cooperation Scheme for Protection of UCH. Part three examines, from the Chinese perspective, the advantages and obstacles for a State that ratifies the UNESCO 2001 Convention. There is a final conclusion that argues that through the UNESCO 2001 Convention diverse national legal protection systems of the UCH have converged into an international cooperation legal instrument. Key words: Underwater Cultural Heritage (UCH); the Chinese UCH legal system; UNESCO 2001 Convention; International legal scheme; “Coordinating State” Introduction New developments and the challenges for the protection of UCH in China In 1986 an astonishing auction named “the Nanking cargo (Geldermalsen shipwrecks)” was held in the Netherlands. The auction contained more than 100 gold ingots and thousands of Chinese export porcelain from the "Geldermalsen" that had sunk in about 1752 in the South China Sea, and salvaged by Michael Hatcher. The auction raised more than £10 million (Jörg, 1986). The Chinese authorities were shocked to notice that there were no provisions in the Chinese legislation that addressed the salvage of UCH 1 �or to claim ownership of the UCH. In the same year, the Chinese Government decided to develop the capacity for underwater archaeology and it established the Underwater Archaeology Research Institute under the Chinese History Museum (now the Chinese National Museum). In 1989, the State Council passed legislation entitled the Regulations of the P. R. China on Protection and Administration of Underwater Cultural Relics (1989 Chinese UCH regulation). After more than 20 years of development Chinese authorities established a wholly new UCH administrative protection mechanism, aimed at providing professional protection for the entire UCH in China. The State Administration of Cultural Heritage (SACH) is responsible for managing and protecting all kinds of national cultural relics, including UCH. After that the National Conservation Center for Underwater Cultural Heritage (NCCUCH) got full confirmation from the SACH in order to fulfill its functions, especially in developing the national UCH excavations, conservation, research and cooperation with local governments and local underwater archeology institutes. There are mainly four regional UCH protective administration offices: the Ningbo Office in the Zhejiang province, the Fujian Office in the Fujian province, the Wuhan office in the Hubei province, and the Qingdao office in the Shandong province. The development of Chinese UCH legal system The appearance of local legislative subjects It is the local government that refines related local UCH regulations and formulates feasible operational guidelines after 2008. The Fujian province and the Guangdong Province contain most various UCH items in China, such as Nanhai I shipwreck, Nan’ao I shipwreck and Banyangjiao (Reef) I shipwreck. In 2009, the Fujian Provincial People's Congress revised the Fujian Province Protection and Administration of Cultural Relics Regulations by adding a new chapter on the protection of UCH, which was the first local regulation relative to UCH in China. In the same year, the Guangdong province enacted the Guangdong Provincial measure for the implementation of the P. R. China on Protection of Cultural Relic, which set up a new “underwater cultural relics reserves” in Art. 26 in order to protect scattered UCH objects along its continuous coastline. 2 �The particularity of the legal object In addition to wrecks, sites, artifacts and human remains, the “Chinese Maritime Silk Road Sites” and “Ming and Qing Dynasty Coast Defense Sites” are unique kinds of UCH in China. “The Chinese Maritime Silk Road” once provided unprecedented access by ancient China to the most distant destinations reached by maritime trade. And it can be seen as a promotion of friendly relations linking East and West. The "Maritime Silk Road" in China embraces four aspects: the ancient ports, oceanic routes, cargos, and wrecks, each of which has specific and abundant contents. These four aspects interrelate systemically in order to form the Chinese traces of marine exploitation ---- the said “Chinese Maritime Silk Road”. The “Ming and Qing Dynasties Coast Defense Sites” are the defense constructions and facilities erected by Chinese authorities in order to prevent invasion m of the Chinese territorial sea and coastal areas in Ming and Qing Dynasties (from 1368 to 1800AD). These coast defense sites are situated throughout 13 provinces, including Macao, Hong Kong and Taiwan, and are being actively considered by China for nomination as World Heritage sites. The extending of legal content in protection UCH The UCH protection began with the national UCH survey, which now extends from the coastline to internal waters, the territorial sea and the contiguous zone. The UCH survey from 2007-2011 covered the Bohai Sea, Yellow Sea, the East China Sea (including the Taiwan Strait), the South China Sea (including the Chinese jurisdiction area in the Paracel Islands and the Spratly Islands). They are all situated adjacent to China, and in the internal waters of China. It was a comprehensive and scientific national survey of UCH, named as the third national cultural relics investigation project. There are 108 supposed UCH sites. SACH and NCCUCH established the South China Sea UCH office and the Paracel Islands archaeological workstation in 2012. Excavation, preservation, protection and management are the main tasks of protection of UCH. With 20 years’ experience of UCH protection, the Chinese authorities are gradually forming different but more appropriate protecting approaches for each UCH site in China. Take Baiheliang UCH site for example, which is the world’s oldest hydrological inscription in the Yangtse River. After considering the Baiheliang UCH conditions, Chinese authorities decided to build a submerged museum for 3 �preservation of its UCH in situ, which is now the symbol of a submerged museum in the world (UNESCO Museums and Tourism, 2013). Another example of protection of UCH in China is the Shanhujiao (Reef) I shipwreck, located in the Paracel Islands. Chinese authorities had to scientifically excavate (from 2006 to 2008) and conserve these cultural relics on land for preserving its scientific and archeological value in a good condition. After the excavation of the Shanhujiao (Reef) I shipwreck, the NCCUCH and CACH started the preliminary experimental study on the conservation of ceramics, metal and wooden relics from Shanhujiao (Reef) I shipwreck. The Chinese National Museum and the CCUCH organized more than 10 training courses on diving skills, methodology of underwater archaeology, and the UCH conservation since the 1980s. Now, the CCUCH and archaeological team in the coastal cities in China have been able to fill the gaps left open over decades. Challenges in China’s UCH legal protection Firstly, from the 1980s, looting and illicit trafficking were rampant in the South China Sea. China’s underwater relics attract a growing number of Chinese fishermen who dived for these riches (Yanhong, 2011). With the development of underwater technology and human understanding of the deep ocean, different marine exploration companies from all over the world came to the South China Sea for salvaging and exporting relics along the Maritime Silk Road. “The Nanking Cargo” auction in Christie's in the Netherland’s was the main cause leading to the 1989 legislation. In April 2011 the Chinese authorities investigated UCH in the Paracel Islands and reported that 26 UCH sites (more than 50% of the UCH sites in the Paracel Islands) had been illegally destroyed and excavated. What is worse, there is a reasonable suspicion that some neighboring countries deliberately damaged Chinese UCH in the South China Sea. For instance, a Ming-dynasty shipwreck located near Huangyan (Scarborough Shoal) was commercially excavated and destroyed by two 2000 ton foreign vessels (Yanhong, 2011). Secondly, a huge number of Chinese UCH outside the Chinese territory was not preserved under the national legal UCH protection system. A frequent type of UCH were merchant ships of the British East India Company that once frequently carried Chinese goods, shipping out of South China Sea bypassing the Cape of Good Hope to Europe and even to Africa. In the Atlantic, Pacific and Arctic oceans a variety of 4 �shipwrecks prove this fact, such as the Mauritius shipwreck in the Cape Lopez of the Gulf of Guinea, the Manila galleon casa in the Gulf of California of the USA, the Goteborg shipwreck in the Swedish bay, and the Prince de Conty (France) in Loscat, Mediterranean (Chumming, 2003). In addition to shipwrecks that contained Chinese goods, Chinese experts discovered more and more Chinese shipwrecks outside China’s territory, such as nine Chinese shipwrecks in Lamu Islands, Kenya (Underwater Archaeology Research Centre, 2012). Thirdly, the Chinese UCH items are traded, sold, bought or bartered as commercial goods in eminent auctions. The most famous auction was the said “Nanking Cargo” in Christie's, Amsterdam in 1986. Then there was “The Vung Tau Cargo” auction in Christie's (Amsterdam) in 1992, “The Diana Cargo” auction in Christie's in Amsterdam in 1995, the “Tek Sing” (the China’s Titanic) auction in Stuttgart, Germany in 2000, and the “Made in Imperial China” auction in Sotheby's (Amsterdam) in 2007(Christie's Auction Catalog , Amsterdam). China has carried out the conservation of UCH for over 20 years and accumulated certain experience in practice and in theoretical research. The content, object, subject and the methods of protection of the UCH in China has changed a lot, but the national legislation is not effective in preventing illegal salvage or illicit export of the UCH outside the Chinese territorial sea. This is the proper time to explore the view on UCH outside of China, and to research an international legal approach to the protection of the UCH. The UNESCO 2001 Convention: the International Cooperation Scheme for Protection of UCH The UNESCO 2001 Convention, at the present time the most complete legal instrument for the protection of UCH, is far from being a powerful and popular international Convention. However, as the offshoot of the United Nations Convention on the Law of the Sea 1982 (UNCLOS), it indeed provides an effective international cooperation scheme for protecting UCH in different maritime areas, which does not change the limits of maritime areas or of the maritime power and jurisdiction of coastal states. Although the two principles of the UNESCO 2001 Convention, the principle of in situ preservation as the first option and the principle of non-commercial exploitation are based on the recognition of significance of the interplay between the UCH, its history and its context, 5 �this article aim to focus on the cooperation scheme which established the valuable and effective international legal instrument for Member States. UCH International Database Each State Party to the UNESCO 2001 Convention has the obligation to share UCH information with other States Parties concerning UCH. According to Art.19, that includes: discovery of heritage, its location, UCH excavation or UCH recovery contrary to this Convention. Therefore, the Secretariat of the UNESCO 2001 Convention suggests that States Parties submit to it national authority information to establish a worldwide UCH database. States parties are also able to disseminate UCH information to other appropriate regional, international databases, such as MACHU (to make information about our common UCH accessible to researchers, policymakers and the general public, originated by the European Union’s Culture 2000 program,), NAVIS I, NAVIS II (an open database of ancient ship supported by the European Commission Directorate General X), Shipwreck Asia Database (a regional shipwreck database, classified by the geographical regions, supported by the Toyota Foundation). The UCH Reporting and Notification System States Parties have a different reporting and notifying obligation in different maritime areas. But in the territorial sea or the archipelagic waters, the coastal States have only a soft obligation (“should”) to inform the flag State or other States with an effective link with UCH, with a view to protecting State vessels and aircrafts (Art. 7). In the Exclusive Economic Zone (EEZ), on the Continental Shelf (CS) or in the Area, each State Party have a definite obligation to report the UCH discoveries and activities to that other State Party accordingly, or to all other States Parties (in Art. 9 and Art. 11). UCH Coordination States scheme The UCH Coordination States scheme is regulated by Articles 9 to 12 of the UNESCO 2001 Convention. In the EEZ or on the CS, the “coordinating State” is the State Party in whose EEZ or on whose CS UCH is located “unless the State Party expressly declares that it does not wish to do so”. In that case the “coordinating State” is that which is based on a cultural, historical or archaeological link to the concerned UCH. By the same rule is to be decided a “Coordinating State” in the Area to issue all necessary 6 �authorizations for agreed measures on behalf of all interested States Parties. The right of a “Coordinating State” is to implement measures of protecting UCH, cooperation and consultation among States Parties and conduct their decisions. Assessment of the desirability and feasibility of UNESCO 2001 Convention in China Benefits for China to protect Chinese UCH The UNESCO 2001 Convention sets up reciprocal obligations between Member States and it designs at the same time UCH protective rights for its States Parties. Without this legal instrument States would be entitled only to a limited jurisdiction and sovereignty in their EEZ and on the CS according to international law. And in the Area, the doctrine of international law on freedom of the high seas provides that activities related to UCH found in the Area are to be governed by the flag State. First, UNESCO 2001 Convention entitles coastal States in Art.8 to protect UCH within their contiguous zone. In case that China becomes a State Party to this Convention, it would acquire a positive right in its favour to initiate activities on UCH in its contiguous zone, more than defensive activities to prevent removing UCH from contiguous zone in UNCLOS Art 303 (2). Secondly, the UNESCO 2001 Convention entitles States Parties to take all practicable measures to prevent immediate danger to UCH in the EEZ and on the CS. According to the UNCLOS, the coastal State and other States share different rights and jurisdiction, as governed by its Parts 5 and 6, while the UNESCO 2001 Convention can be seen to expand the traditional rights of coastal States. As a State Party to UNCLOS, China regulated the marine sovereign rights in the Law of the People's Republic of China on the Exclusive Economic Zone and the Continental Shelf (China EEZ and CS Law) mainly “for exploring, exploiting, conserving and managing natural resources” and “for conserving and managing the trans-boundary population, highly migrating fishes, marine mammals (in Art. 3 and Art. 6) in its EEZ. And the 1989 Chinese UCH regulation does not provide for the UCH protective provisions based on different marine zones. However UCH cannot be defined as a natural resource or a fishery activity. Hence, the Chinese authorities are now not entitled to take measures for prevention of immediate danger of UCH according to current Chinese national laws or regulations. If China becomes a State Party to the UNESCO 2001 Convention, it will be able to take any 7 �practicable and necessary measures or request other States Parties to handle looting or trafficking activities that happen in the Chinese EEZ in South China Sea. What is more important, the Operational Guidelines (draft) also provides possibility of cooperation of States Parties with other intergovernmental organizations, for example with Interpol, in order to prevent UCH excavations or recovery contrary to this Convention. Last but not least, the UNESCO 2001 Convention provides the effective international cooperation mechanism for all States Parties in protection of UCH. China should take advantage of the information-sharing forum (Art. 19), such as MACHU, to collect information with other State Parties about any Chinese shipwrecks discovered outside Chinese territory. Otherwise, underwater archaeology and UCH management are still recent sciences, especially for training of underwater archaeologists. China should ask the Scientific and Technical Advisory Body for developing of Chinese UCH excavation, management and protection methods, even for academic training on underwater archaeology, such as the Unit win network. Conformity with the existing Chinese UCH laws and regulations After consideration of the domestic relevant legislation and regulations, it can be concluded that there will be no conflicting clauses in the context of the currently ratified international cultural heritage agreements upon China’s ratification of the UNESCO 2001 Convention (including the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, ratified in 1989, the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage ratified in 1985, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects ratified in in 1996, the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage ratified in 2004 and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions ratified in 2007. Only the purpose of the International Convention on Salvage (1989) is contrary to UNESCO 2001 Convention. But recognizing the nature of UCH, China made a reservation on its Art. 30(1)(d) upon its ratification in 1993: China reserves the right not to apply the provisions of this Convention, “when the property involved is maritime cultural property of prehistoric, archaeological or historic interest and is situated on the sea-bed”. 8 �China only needs to review the principle of non-commercial exploitation in its national regulations in the light of the UNESCO 2001 Convention. The main problem is in the 1989 Chinese UCH regulation. It sets up the rule of exploitation and excavation activities of UCH in Art.7 in the way that: “archaeological exploration and excavation activities with respect to underwater cultural relics shall have, as their objective, the protection of cultural relics and scientific research … with approval by SACH”. It seems a prefect provision for regulating the excavation of the UCH for protection of cultural relics and scientific research. But according to it the objective of exploitation should be for instance scientific research under commercial excavation, such as the early excavation of RMS Titanic (Zekala, 2012). Therefore, the 1989 Chinese UCH regulation should confirm and clarify that any activities directed at UCH shall not consist of commercial exploitation or excavation. Conclusion The UCH protection is a recent scientific as well as legal issue for every nation. After analyzing the new developments in China, it becomes obvious that isolated national UCH legal systems still face problems in the effective protection of UCH. Every State should realize the significance of the exchange of the UCH legal and technical information for national underwater cultural resources. The 2001UNESCO Convention provides for its States Parties an effective international cooperation scheme. Therefore, individual inadequate national legal protection systems for UCH are destined to result into a cooperating international legal protection system. After evaluating the desirability and feasibility of the UNESCO 2001 Convention in China, it is beneficial for a State, like China, to protect national UCH under the legal instrument of the UNESCO 2001 Convention. Acknowledgements The author first likes to express her appreciation to “The China National Social Science Fund” which supported her “Research on Jurisdiction and Ownership of Chinese UCH (Project No. 13CFX094)”. The author also gratefully acknowledges valuable comments from Prof. Vladimir Đuro Degan on a previous version. 9 �References Christie's Auction Catalog , Amsterdam, http://www.sunkentreasurebooks.com/catalogs.htm, accessed 30, Dec.,2013 Chunming, W., 2003. Shipwrecks around China marine zone----Ancient sailing boat, ship technology and cargo. Jiangxi University Press, China.Jörg, C. J. A., 1986. The Geldermalsen History and Porcelain. Kemper Publisher, Groningen. Matthew, E. Zekala.,2012. Liability and Salvage: Titanic Jurisprudence in United States Federal Court, p1103, http://law.lclark.edu/live/files/11855-lcb163art8zekala.pdf, accessed 20 Dec 2013. Regulations of the P. R. China on Protection and Administration of Underwater Cultural Relics promulgated by Decree No. 42 of the State Council of the People's Republic of China on Oct 20, 1989. UNESCO, ‘Museums and tourism’, <http://www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/museumsand-tourism/>, accessed on 20 Dec. 2013. http://www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/researchand-training/unitwin-programme/#c492115, accessed 20 Dec. 2013. Underwater Archaeology Research Centre (China) et al., 2012. Major Discoveries of Sino-Kenyan Cooperative Underwater Archaeological Survey in Coastal Areas of Kenya in 2010. Journal of National Museum of China, Vol. 8: 88-99. Yanhong, Cai., 2011. Grouping and well-organizing is the new trend of illicitly excavating UCH in China, Legal Daily, Beijing, (15 Dec, 2011). Chunming,Wu., 2003. Shipwrecks around China marine zone----Ancient sailing boat, ship technology and cargo, Jiangxi University Press, China. Biography Liu Lina graduated with Master of Law from Aberdeen University, UK, and PhD in law and Governance from Xi’an Jiaotong University, China. Liu is a lecturer at Xi’an Jiaotong University. Liu is currently engaged in a national research project entitled “Research on Jurisdiction and Ownership of Chinese UCH” supported by The National Social Science Fund of China. 10 � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Session 15: Legal Framework for the Protection of the Underwater Cultural Heritage Subject The topic of the resource Video interview with Session 15 chair Dr. Craig Forrest. Description An account of the resource The legal framework for the protection of the underwater cultural heritage has gained momentum throughout the Asia-Pacific with a number of States turning their attention to this issue. For some this is due to concerns raised though specific incidents that have damaged or destroyed the underwater cultural heritage or the information that could be gleaned from its excavation, whilst for others, it follows from consideration being given to the UNESCO Convention on the Protection of the Underwater Cultural Heritage. This session considers the Legal Framework for the Protection of the Underwater Cultural Heritage in a number of Asia-Pacific states. The objectives of session are to explore the various national approaches and to seek aspects of commonality and uniformity that provide frameworks for other state that have not yet addressed the issue. Creator An entity primarily responsible for making the resource Dr. Craig Forrest Document A resource containing textual data. Note that facsimiles or images of texts are still of the genre text. Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource A Chinese Perspective on the International Legal Scheme for the Protection of Underwater Cultural Heritage Description An account of the resource With 18,000 km of coastline and plentiful streams and rivers, China has an extensive underwater cultural heritage (UCH), which preserves Chinese history and maritime civilization under the ocean as a kind of “time capsule”. After 20-years of development of underwater archaeology and the protection of UCH, China has set up a brand-new national protection system. This contribution first discusses the new development of the Chinese UCH legal system in the 21th century in three aspects: legal subject, legal object and legal content. Further it discussed the tremendous challenges faced by the Chinese legal system. Meanwhile, since its entry into force in 2009, the UNESCO Convention on the Protection of the Underwater Cultural Heritage (UNESCO 2001 Convention) has been gradually approved by more and more influential States who hold various and abundant UCH items. Part two explains the UNESCO 2001 Convention as the International Cooperation Scheme for Protection of UCH. Part three examines, from the Chinese perspective, the advantages and obstacles for a State that ratifies the UNESCO 2001 Convention. There is a final conclusion that argues that through the UNESCO 2001 Convention diverse national legal protection systems of the UCH have converged into an international cooperation legal instrument. Creator An entity primarily responsible for making the resource Liu Lina, in Van Tilburg, H., Tripati, S., Walker Vadillo, V., Fahy, B., and Kimura, J. (eds.) Date A point or period of time associated with an event in the lifecycle of the resource 5/20/2014 Asia-Pac Session 15 2014