Bilateral or Multilateral Agreements between States for the Settlement of Dispute over Ownership of Underwater Cultural Heritage:Background,Ownership Clauses,and Implications for China

CHEN Ruida

Abstract: Due to the conflict of laws on the ownership of underwater cultural heritage (UCH) and the limitations of the current international law system,it has long been difficult for states to agree on a solution to the disputes over the ownership of UCH.The principle of international consultation and cooperation plays an important role in dispute resolution through treaty-based means.Firstly,the subject of ownership in such treaties includes states,individuals,or neither of both nor common ownership of mankind.Secondly,with regard to the attribution of ownership rights,current treaties following the principle of joint exploitation,adopt a model clause by combining the ownership of the state of origin and the jurisdiction of the coastal state,to promote an equitable division of ownership.In addition,relevant international agreements also provide an exemption clause for the guarantee of ownership.As a country with rich UCH,China can take into consideration the legislating structure of the existing treaties,take an active part in international negotiation,and make full use of international cooperation to declare national positions and complement the lack of domestic legislation,to protect China’s UCH at an international level.

Key Words:Underwater cultural heritage;Ownership;Bilateral or multilateral agreements;Joint exploitation

I.Introduction

The underwater cultural heritage (UCH) slumbering in the deep sea,records the vivid history of human navigation as well as the development of marine civilization,such as commodity trade,revolutionary wars,natural disasters,and even colonial plunder and slave trade.1The significance of underwater cultural heritage,UNESCO (5 Dec 2021),http://www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/protection/protection/significance-of-uch/.With the development of the modern law of the sea,UCH is of great historical,cultural,and scientific significance,so as is its legal status.However,with the advancement of diving technology and out of commercial interests,UCH has not only become treasure junks for the hunters,but also one of the marine resources that states are competing for.The ownership of UCH has therefore caused tension between related states.

Ownership is treated as “the greatest possible interest in a thing which a mature system of law recognizes”,2Sarah Dromgoole,Underwater Cultural Heritage and International Law,Cambridge University Press,2013,p.96.including that of UCH.Although according to archaeologists,the past of human civilization does not belong to anyone,it represents the cultural heritage of every life on the earth today or in the future,making all human community equal,3Brian Fagan,The Oxford Companion to Archaeology,Oxford University Press,1996,Introduction;Ben Juvelier,“Salvaging” History: Underwater Cultural Heritage and Commercial Salvage,American University International Law Review,Vol.32:5,p.1036(2017).cultural heritage which was created in a specific territory,under geographical and cultural background,is national by nature,and only with clear ownership and sufficient legislative guarantees can the interests of all humankind to enjoy and protect cultural heritage be truly safeguarded.4John Henry Merryman,Cultural Property Internationalism,International Journal of Cultural Property,Vol.12:1,p.11-39 (2005).However,due to the complexity of the concept of ownership and the difficulty of reconciling related national interests,the settlement of disputes over the ownership of UCH is faced with many difficulties.The current international conventions fail to provide an effective way to the issue,and even explicitly exclude it from its scope of application,leaving it to civil law,domestic law,and private international law.5The UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage,Frequently Asked Questions,UNESCO (5 Dec 2021),http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/FAQ_en.pdf,p.9.

For the current transnational disputes over the ownership of UCH,states tend to settle them through diplomatic channels,and many examples have been formed.6Supra note 2,Sarah Dromgoole,p.140.With regard to specific sunken ships,other sunken objects,or underwater sites,disputed States signed bilateral or multilateral agreements (or memorandums of understanding) to decide the rights and obligations between the parties,in terms of the acquisition,the establishment of ownership,control,and protection of related UCH.This paper will focus on dispute resolution,and analyse the current international agreements for the ownership of UCH,to explore the legal background of such “direct adjustment method” for the conflicts of laws about UCH,the principles of the ownership clauses,and reflecting on the advantages and limitations of such bilateral or multilateral practice,in order to seek the possible way for China to resolve transnational dispute over the ownership of UCH through bilateral or multilateral mechanism.7The term “underwater cultural heritage” in international conventions and “underwater cultural relics” in the Chinese legal context do not differ in connotation,but differ in extension depending on the applicable legal basis,and are used interchangeably in this paper depending on the context,or replaced as a whole as UCH.For example,according to the 2001 UNESCO Convention,“underwater cultural heritage” means all traces of human existence having a cultural,historical,or archaeological character which has been partially or totally under water,periodically or continuously,for at least 100 years such as: (i) sites,structures,buildings,artifacts,and human remains,together with their archaeological and natural context;(ii) vessels,aircraft,other vehicles or any part thereof,their cargo or other contents,together with their archaeological and natural context;and (iii) objects of prehistoric character.According to the Regulations of the People’s Republic of China Concerning the Administration of the Protection of Underwater Cultural Relics,the term“underwater cultural relics” referred to these Regulations denotes the human cultural heritage that has historic,artistic and scientific values and that remains in the following waters: (a) All the cultural relics of Chinese origin,or of unidentified origin,or of foreign origin that remain in the Chinese inland waters and territorial waters;(b) Cultural relics that are of Chinese origin or of unidentified origin that remain in sea areas outside the Chinese territorial waters but under Chinese jurisdiction according to the Chinese law;(c) Cultural relics of Chinese origin that remain in sea areas outside the territorial waters of any foreign country but under the jurisdiction of a certain country,or in the high seas.The provisions in the preceding paragraphs shall not cover objects that have remained underwater since 1911 that have nothing to do with important historical events,revolutionary movements,or renowned personages.

Before carrying out this research,it is necessary to clarify the meaning of the following concepts: (a) Ownership.Firstly,the word “ownership” is a concept under private law,which stands for the exclusive control and domination of an object,representing an absolute right.However,because cultural heritage contains not only property value,but also cultural value,the control and domination of it must be limited within a certain boundary in order to comply with the domestic managing and protecting rules,such as those prohibiting illegal salvage,exporting or,illegally trading,making the ownership right to be relative.To conclude,the current concept of ownership is justified within the limits of being consistent with public interest,and for the general cultural interests of the society,which therefore has to shift from being absolute to relative.8SHI Shangkuan,Property Law Theory,China University of Political Science and Law Press,2000,p.59.(in Chinese)The ownership of UCH discussed in this paper is also both absolute and relative.This feature not only affects the subject of ownership and the identifying methodology,but also affects its content and its performance.

(b) Bilateral or multilateral agreement.According to the Vienna Convention on the Law of Treaties,a treaty is an international written agreement concluded between countries and subject to international law,regardless of whether it is contained in a single instrument or two or more related instruments,and regardless of its specific name.9Art.2(1) of Vienna Convention on the Law of Treaties.Therefore,international treaties about UCH,judging from its number of contracting parties and purpose,include both international or regional conventions that regulate UCH in a general sense;10For example,the United Nations Convention on the Law of the Sea,the UNESCO Convention on the Protection of the Underwater Cultural Heritage;Draft European Convention on the Protection of Underwater Cultural Heritage,Buenos Aires Draft Convention on the Protection of Underwater Cultural Heritage,etc.or bilateral or multilateral agreement about specific UCH by two or more states to resolve the dispute over the ownership as well as jurisdiction rights.The examination in this paper is limited to the latter,which is also subjected to the regulations of the Vienna Convention.As the carrier of ownership clauses,these agreements are unified substantive law path and direct adjustment method to deal with the ownership of UCH.It is equivalent in content,to a contract signed by private sectors on the ownership of a property,wherever the parties are sovereign countries,which is then legally binding as international law.11See Barry E.Carter &Alan S.Weiner,International Law,translated by FENG Jiehan,The Commercial Press,2015,p.114.(in Chinese)

II.Legal Background

Generally speaking,the complexity of ownership of UCH and the diversity of domestic legislation leads to conflicts of laws,and dispute of UCH is hard to be effectively resolved by suing to domestic court.On the other hand,current international UCH conventions keep silent on this issue,causing significant uncertainty in the settlement of dispute through international mechanism.However,the principle of international conciliation and cooperation on the protection of UCH advocated by the United Nations Convention on the Law of the Sea (UNCLOS)and the Convention on the Protection of Underwater Cultural Heritage (hereinafter“the2001 Convention”) provides possibility for States to resolve their dispute through bilateral or multilateral mechanism.

A.Conflict of Laws on Ownership

The different value orientation of domestic law,and the various ownership system of UCH are the main causes of conflict of laws,which are mainly manifested in that between coastal states and states of origin.12The author divides the disputed parties into the “state of origin” and the “coastal state” on the basis of claiming the ownership of UCH.Among them,the state that claims for the ownership of UCH based on certain cultural,historical,and ethnic ties is the state of origin,including the flag country and the state of nationality;based on the connection with the sovereignty or jurisdiction of the state (such as the sinking site is located in the waters under the jurisdiction of the country),the state that claims the ownership of UCH is a mainly coastal state,which has no direct historical and cultural connection with cultural heritage.In addition,the unexpected location of UCH and the limitations of legislative jurisdiction also make it difficult to resolve the disputes over the ownership of UCH through domestic law or judicial organs.13Especially for UCH that enjoys state immunity,such as warships and governmental vessels,domestic courts are reluctant to actively exercise jurisdiction,even if the interests of their nationals are involved.For example,in the salvage case of the Spanish naval frigate Mercedes,the U.S.salvage company Odyssey Marine Exploration,Inc.sued the U.S.court for ownership of the salvage from the sunken ship.The court found that the case was involved the sunken ship that enjoys state immunity,and there is no exception to the jurisdiction of the Foreign Sovereign Immunity Act,so it refused to exercise jurisdiction.See Odyssey Marine Exploration,Inc.v. Unidentified Shipwrecked Vessel and Others,675 F.Supp.2d 1341,1138-44 (M.D.Fla.2010).

Firstly,there is conflict between States as to whether to recognize the rights of the original owner.It is generally believed that the UCH belongs to its previous owner,and the sinking of it does not necessarily results in the loss of ownership.14Supra note 2,Sarah Dromgoole,p.106.Therefore,domestic law usually grants identifiable owners with right to claim for the ownership of UCH.Identifiable owners include natural persons,legal persons,and their successors of rights and obligations.According to the Abandoned Shipwreck Act of 1987,the United States asserts title to any abandoned shipwreck that is embedded in submerged lands of a State,15See Section 6 of the Abandoned Shipwreck Act of 1987.which means it does not claim ownership over shipwreck whose owner is clear and has not explicitly abandoned it.On the contrary,other States stipulate that neither the original owners nor their heirs have legal basis to claim for the ownership of UCH.For example,according to Italian Code of the Cultural and Landscape Heritage,cultural property found underground or in sea beds by whomsoever and howsoever,shall belong to the State.16Art.91 of Legislative Decree 22 January 2004,n.42 Code of cultural and landscape heritage,pursuant to article 10 of the law of 6 July 2002,no.137.

Secondly,by acknowledging the ownership of the original owner,if the original owner cannot be identified,the UCH becomes ownerless and enters into public domain.Different States claim ownership according to different standings and connecting factors.On the one hand,based on the territorial jurisdiction,coastal State claims to first occupy the UCH that is within its territorial waters.According to Article 241 of the Merchant Shipping Act 1995 of the United Kingdom,“Her Majesty and Her Royal successors are entitled to all unclaimed wreck found in the United Kingdom or in United Kingdom waters except in places where Her Majesty or any of Her Royal predecessors has granted the right to any other person”.17Art.241 of Merchant Shipping Act 1995.On the other hand,state of origin may also claim for the ownership of the UCH based on its historical and cultural link to the heritage,especially for those having been sunk in the territorial waters of other states,to establish jurisdictionin rem.18In the dispute between Finland and Russia over the sinking of the Vrouw Maria,Russia claimed that it was the heir to the property rights of the empire and requested the restoration of the ownership of the artwork from the shipwreck because of its specific cultural connection with Russia. Supra note 2,Sarah Dromgoole,p.109-110;National Board of Antiquities,The Vrouw Maria Underwater project 2009-2012 final report,museovirasto (5 Dec 2021),https://www.museovirasto.fi/uploads/Arkisto-ja-kokoelmapalvelut/Julkaisut/vrouw-maria-final-report.pdf.In this case,the conflict between coastal state and state of origin constitutes the main conflict of laws concerning the ownership of the UCH.

In addition,because of the territoriality of domestic legislation,which constitutes a negative conflict,the sovereignty of regulative law is normally limited to the internal waters and territorial waters of the state.However,for the contiguous zone,exclusive economic zone,and continental shelf beyond the territorial sea,state only enjoys jurisdiction over specific matters in accordance with the UNCLOS,which does not necessarily include the regulation of UCH.According to the UNCLOS,state has no sovereignty on the high seas,thus making the legal status of UCH more ambiguous.19Art.89 of the United Nations Convention on the Law of the Sea: No State may validly purport to subject any part of the high seas to its sovereignty.Although Article 149 of the UNCLOS provides that all objects of an archaeological and historical nature found in the Area shall be preserved or disposed of with particular regard being paid to the preferential rights of the state or country of origin,or the state of cultural origin,or the state of historical and archaeological origin,it is still difficult to directly conclude that the UCH in the Area belongs to the above three types of states.20During the meeting of the drafting of the Convention,the core of the discussion concerning this article by the delegations was on the management and disposal of cultural property in the Area.The delegations from Turkey and Greece mentioned in their proposals that the“state of origin” or “state of cultural origin” has the priority to obtain these items,and the authority has the right to obtain these items if these states fail to exercise the priority and to dispose of such items.It can therefore be seen that the state of origin mentioned in Article 149 has at least a certain degree of power to determine the ownership and disposal of the UCH in the Area.In addition,although Article 303.3 of the UNCLOS stipulates that any provision of this article does not affect the rights of the identifiable owner,the relationship between this article and Article 149 and whether the priority of the state of origin should take into account the right of identifiable owners,are needed to be further discussed.See ZHAO Qing,Research on the Priority of the Country of Origin for Archaeological and Historical Relics in the Area,Graduate Legal Science,Vol.31: 2,p.125 (2016).(in Chinese)UNCLOS does not further clarify what means a “country of origin”,“a country of cultural origin” or “a country of historical and archaeological origin”,the relationship between which is prone to dispute itself.

B.The Lack of International Conventions on Ownership

There are two comprehensive conventions relating to UCH,the UNCLOS,and the2001 Convention.However,neither of them deals with the ownership of UCH.

The2001 Conventiondirectly omits the issue of ownership out of its scope of application,leaving it to be dealt with by domestic law.There are two reasons behind.Firstly,the UCH is not only “property”,which mainly presents its economic value,but also “heritage”,which is more about cultural value.The value orientation of the2001 Conventionis closer to the latter than the former.21Nicola Ferri,The Right to Recovered Underwater Cultural Heritage: The Neglected Importance of Article 149 of the UN Law of the Sea Convention,in Silvia Borelli &Federico Lenzerini eds.,Cultural Heritage,Cultural Rights,Cultural Diversity: New Developments in International Law,Martinus Nijhoff Publishers,2012,p.253.The main purpose of the Convention is to ensure and strengthen the protection of UCH,rather than to resolve the dispute between its State parities over private rights.22Supra note 2,Sarah Dromgoole,p.96.Secondly,the legal system of ownership involves the distribution between states and private sectors,as well as the traditional maritime rules such as salvage laws,the negotiation of which is time-consuming.23FU Kuen-chen &SONG Yuxiang,The Protection of Underwater Cultural Heritage by International Law-An Analysis of the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage,Law Press,2006,p.213.(in Chinese)When the interests and propositions of various states are difficult to reconcile,in order to improve the efficiency of negotiation and to make the Convention acceptable to more states,the ownership issue was temporarily shelved.Therefore,the2001 Conventiononly solves the problem of protection,but not the ownership.In addition,the conflicts between domestic laws also make it easier for dispute to be settled through conciliation and negotiation case by case.24Anastasia Strati,The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea,Springer,1995,p.85.

It is worth noting that many important underwater archaeological sites are in fact historical warships and thus their ownership disputes are among the most prominent.25Craig Forrest,An International Perspective on Sunken State Vessels as Underwater Cultural Heritage,Ocean Development &International Law,Vol.34:1,p.43 (2003).Although Article 2.8 of the Convention emphasises that it does not alter the rights of any state over its vessels and aircraft,the2001 Conventiondoes not clarify the legal status of sunken warships and governmental vessels for whether sovereign immunity still applies,which is one of the reasons why major UCH powers such as the United Kingdom,the United States,and the Netherlands have not acceded to the2001 Convention.26Sean D.Murphy,United States Practice in International Law,Volume 2: 2002-2004,Cambridge University Press,2011,p.134.In this regard,the commonly agreed holding developed by state practice is that warships and governmental vessels belong to the state in perpetuity,regardless of the sea in which they were sunk,unless expressly abandoned by the state.27William V.Dunlap,Ownership of Underwater Cultural Heritage,Journal of Maritime Law&Commerce,Vol.49:3,p.426 (2018).One of the reasons why the United States and France did not sign the Convention immediately after its adoption was that the Convention did not contain this principle.28The then U.S.President Clinton issued a statement in 2001 on the policy of the U.S.government to protect sunken warships,stating that unless the ownership is waived or transferred in accordance with the authorization or instructions of Congress,the United States retains ownership of its sunken national aircraft indefinitely.The United States recognizes the rules of international law,that is,the ownership of foreign sunken ships can only be transferred or waived in accordance with the laws of foreign flag states.William J.Clinton,Statement on United States Policy for the Protection of Sunken Warships,Weekly Compilation of Presidential Documents,1 January 2001,Vol.37:3,p.195;It is worth noting that France formally ratified the 2001 Convention in 2013.As an important maritime power,France’s ratification plays an important role in enhancing the credibility of the convention.See UNESCO,France ratifies the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage,(18 May 2021),http://www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/dynamic-content-single-view/news/france_ratifies_the_unesco_2001_convention_on_the_protection/.

C.The Principle of International Negotiation and Cooperation

Although the current international conventions on UCH do not solve the relevant problems,international negotiation and cooperation are the trend of UCH protection,and also lay an important foundation for solving international dispute over its ownership.It is one of the basic principles of dispute resolution to determine the ownership of UCH through consultation between disputed states.29JIANG He &YU Jia,Conflicts of Ownership of Historic Wrecks in International Law:From the Perspective of Protecting Underwater Cultural Heritage,Xiamen University Law Review,Vol.25:1,p.80-96 (2015).

As the main multilateral conventions regulating UCH,the UNCLOS and the2001 Conventionboth attach great importance to international cooperation.Under Article 303.1 of the UNCLOS,State parties are obliged to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose.30Art.303(1) of the United Nations Convention on the Law of the Sea.As a general provision of the UNCLOS,this obligation should obviously apply generally to UCH in all maritime areas.31ZHAO Yajuan,The International Legal System for the Protection of Underwater Cultural Heritage: On the Relationship between the Three Multilateral Treaties on the Protection of Underwater Cultural Heritage,Wuhan University International Law Review,Vol.5:1,p.93-127 (2007).(in Chinese)Especially for the UCH in the Area,international cooperation can not only avoid the improper extension of legislative jurisdiction,but also provide timely and effective protection.In addition,Article 303.4 stipulates that this article is without prejudice to other international agreements and rules of international law concerning the protection of archaeological and historical objects,32Art.303(4) of the United Nations Convention on the Law of the Sea.which provides flexible space for cooperation between states through bilateral or multilateral mechanisms.

The2001 Conventionalso encourages State parties to pursue their activities through bilateral or multilateral mechanisms.According to Article 6 of the Convention,State parties are encouraged to conclude bilateral,regional,or other multilateral agreements for the preservation of UCH,which may ensure better protection than the Convention itself.332001 Convention,Art.6(1) of Convention on the Protection of the Underwater Cultural Heritage.From the literal meaning of the provisions,the content of cooperation proposed by the Convention is mainly the cooperative exploitation and preservation of UCH,as well as the prevention of damage and illegal salvage,but not the obligation of international consultation on the settlement of ownership issues.However,for the purpose of this article,solving the ownership problem is conducive to the smooth exploitation and operation activities.In fact,although the Convention provides for exceptions to the exclusion of law of salvage and law of finds by Article 4,its conditions are difficult to meet,which to some extent prevents private salvors from acquiring ownership.34Supra note 23,FU Kuen-chen &SONG Yuxiang,p.214.(in Chinese)As a response,State parties should clarify the ownership of UCH in bilateral or multilateral agreements.In addition,Article 6.3 of the2001 Conventionfurther states that the Convention shall not modify other bilateral,regional or multilateral agreements concluded by the State parties before the adoption of the Convention,in particular to the rights and obligations relating to the protection of wrecks provided for in agreements consistent with the purposes of this Convention.352001 Convention,Art.6(3) of Convention on the Protection of the Underwater Cultural Heritage.Before the entry into force of the Convention,the relevant State parties have already carried out international practices to resolve disputes over specific UCH,as well as the rights and obligations related to ownership agreed,which fall beyond the scope of the Convention,but are respected and applied as long as they are consistent with the objective and purpose of the Convention.Finally,from the perspective of the settlement of international dispute in a peaceful way,Article 25 of the2001 Conventionregards consultation as the preferred option,which is in line with the current trend of international dispute resolution.36GUO Yujun ed.,Research on the Protection of Cultural Heritage from the Perspective of International Law and Comparative Law,Wuhan University Press,2011,p.324.(in Chinese)

III.Analysis of Ownership Provisions in Bilateral or Multilateral Agreements

At present,states have harmonized the issue of ownership of UCH through a series of bilateral or multilateral practices.37See e.g.,Historic Shipwrecks Act 1976,1976 Austl.Acts No.190,Schedule 1,Agreement between the Netherlands and Australia concerning Old Dutch Shipwrecks (ANCODS bilateral agreement);Agreement between the Government of the United States of America and the Government of the French Republic concerning the Wreck of the CSS ALABAMA,U.S.-Fr.,Oct.30,1989,T.I.A.S.No.11687;Agreement between the Government of the United States of America and the Government of the French Republic recording the Wreck of La Belle;Exchange of Notes between South Africa and the United Kingdom concerning the Regulation of the Term of Settlement of the Salvaging of the Wreck HMS Birkenhead;Memorandum of Understanding between the Governments of Great Britain and Canada pertaining to the Shipwrecks HMS Erebus and HMS Terror (5,8 August 1997);Exchange of Notes Constituting an Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Italy regarding the Salvage of H.M.S.“Spartan”.In terms of the objects,these agreements can be divided into two categories: one is aimed at warships of one state sunk in the territorial waters of the other,where the controversy lies in the contradiction between the ownership of the flag state and the jurisdiction of the coastal state,and cooperation in the exploitation on the basis of respect of sovereign immunity of the flag state;38Supra note 2,Sarah Dromgoole,p.338.the other is mainly aimed at merchant ships and their sites,where the aim is to reconcile the rights and interests claimed between the coastal state and the state of origin,through combined application of the principle of territoriality and the principle ofin remconnection,in order to harmonize the relations between the disputed states and to distribute ownership rights appropriately.As both types of treaty include the addressment of the owner’s status,ownership rights,and its guarantee,this section examines the design of clauses by analysing the texts.

A.Owner

With the exception of the clearly identified,such as warships,UCH is usually owned by state when the owner cannot be found.However,among states where salvage law applies,private salvor may also be eligible owner.As the validity of the treaty extends to all people within the territorial jurisdiction of the State parties,it can establish rights and obligations for the citizens and private sectors of the State parties.They are usually the original owners and their successors,or commercial salvage companies.Furthermore,due to the speciality and international influence of the subject matter in dispute,the States parties may also agree to waive their right to claim exclusive ownership,and to jointly develop and protect the UCH for the benefit of humanity as a whole.Thus,in current bilateral or multilateral agreements addressing ownership of UCH,there are three main types of ownership: state ownership,separation of private and state ownership,or exclusion of ownership of specific subject.

1.State

In bilateral or multilateral agreements between states dealing with ownership of UCH,the government of the State party is the most common owner.By agreement the State parties delineate the ownership of the disputed property and the scope of exercise of rights as well as creating rights or obligations for its citizens.However,as ownership of UCH does not extinguish merely because of its sinking,UCH whose owners can be identified remains in principle with its original owner or heirs.Under this condition,there are three possibilities for a state to be the identifiable owner of the UCH: First,state enjoys original ownership of warships,governmental vessels,and craft in its capacity as flag state or state of registration,as determined by sovereignty.Second,state where an enterprise is registered,inherits the property of the enterprise to which the original ship belongs as a successor in rights and obligations,and thus acquires ownership of the sunken property as well.Third,state acquires ownership of a merchant vessel sunk for the purpose of transporting the wounded in war by way of war insurance payments.On the other hand,where the owner is not identifiable,the UCH will become ownerless and enter into public domain,and state may also claim ownership on the basis of a territorial jurisdiction orin remconnection,which usually requires an explicit claim by domestic law.

State ownership of sunken warships is recognised in current international practice.For example,in the case of the French naval auxiliaryLa Belle,discovered in 1995 in the Gulf of Texas,the French government formally declared ownership of the wreck in 1997,being recognized by the government of the United States.39U.S.-France Agreement regarding the Sunken Vessel La Belle,The American Journal of International Law,Vol.97:3,p.688-689 (2003).The Agreement between the Government of the United States of America and the Government of the French Republic recording the Wreck ofLa Belle(hereinafter“theLa BelleAgreement”) was signed in 2003 to make arrangements for the custody and study of the wreck in question.40Agreement between the Government of the United States of America and the Government of the French Republic recording the Wreck of La Belle,31 March 2003.In its statement on the signing of the Agreement,the U.S.Department of State declared that the Agreement reflected an important principle of international law that,unless expressly waived,identifiable government wrecks belong to the state and that right is not extinguished by the passage of time.41U.S.Department of State Press Release on U.S.-France “LaBelle” Agreement Signed March 31,(18 May 2021),https://2001-2009.state.gov/g/oes/ocns/26820.htm.

When claiming ownership of UCH,a state is acting as owner in the sense of private law,42XU Jintang,Several Thoughts on Legal Issues Related to Submarine Sunken Objects,China Ocean Law Review,Vol.1:2.p.220-232 (2005).(in Chinese)and thus civil legal relations such as inheritance and gift are applicable.One of the most representative cases of state-based succession is the 1972 Agreement between the Netherlands and Australia concerning Old Dutch Shipwrecks (hereinafter “the ANCODS Agreement”).43Agreement between the Netherlands and Australia concerning Old Dutch Shipwrecks.The ownership clause adopted in the Agreement was designed to serve as a model for the resolution of disputes over the ownership of UCH for future generations.The case concerned an ancient shipwreck of the former Dutch East India Company found off the coast of Western Australia.The Dutch government claimed ownership of the wreck as the rightful heir to the property of the East India Company,based on the principle that an estate of vacant succession belongs to the state.44According to jurisprudence,property of vacant succession belongs to the state or the king or a town or other public organization.The state may acquire the ownership of the property as the last heir,or because the king has the right to the unowned property.See Martin Wolf,Private International Law (2nd edn.),LI Haopei &TANG Zongshun (trans.),Peking University Press,2009,p.639.(in Chinese)Australia,on the other hand,argued that the wreck had been deemed to have been implicitly abandoned due to the passage of time and the inactivity of the owner,and that it had acquired title based on the pre-emption of sovereignty of the coastal state.45Supra note 2,Sarah Dromgoole,p.110.The dispute was eventually resolved by way of an agreement between the two parties to distribute the uninherited UCH with different connecting factors.

The acquisition of ownership of UCH by a state is not only a solution to the problem of ownership,but also a consideration for the effective preservation and management of cultural heritage.Even if a government does not directly acquire ownership of UCH,it may also exercise other types of ownership rights,including,for example,the right to explore,exploit,protect and salvage the UCH.In 2013,the U.K.government entered into a memorandum of understanding with the U.S.National Park Service regarding the wreck of theHMS Fowey.46National Park Service Signs Agreement with Great Britain to Protect 18th-Century Shipwreck,NPS (27 Aug 2013),https://www.nps.gov/bisc/learn/news/fowey-agreement.htm.The wreck hit the reef and sank in 1748 off Miami.The MOU recognises the British ownership of the wreck and the right of the U.S.National Park Service to continue its preservation in accordance with its policies,the Sunken Military Craft Act of 2004 and the2001 Convention.In conclusion,from the perspective of cultural heritage protection,granting state ownership is more conducive to the proper preservation of cultural heritage and to preventing and combating illicit salvage,trafficking,and destruction of cultural heritage.

2.Private Person and State

In the international agreements of UCH,although the contracting party is sovereign state,it allows private persons to retain the ownership under specific conditions,that is,combination of private and state ownership.In states where the ownership of the original owner is recognized,the UCH,in principle,belongs to the original owner.It belongs to the state only when the owner cannot be identified.However,due to the long-time of sinking,it is difficult for the original owner to provide effective proof for his status,so the possibility of the original owner to claim for ownership is very limited.47Sarah Dromgoole &Nicholas Gaskell,Interests in Wreck,Art Antiquity and Law,Vol.2,p.103 (1997).

However,another kind of subject under private law,the salvors,is more likely to acquire the ownership of UCH by invoking the salvage law.Historically,matters related to underwater wrecks and sunken objects were mainly governed by maritime law before states had special legislation on UCH.For example,The Merchant Shipping Act of 1894 of the United Kingdom was not originally used to deal with UCH that was recognized as of cultural significance,but to resolve the compensation of salvors in maritime salvage.If the UCH is also regarded as a general maritime heritage applicable to the salvage rules of maritime law,then the ownership of it is able to be governed by the common law rule of “finder,keeper”,meaning that it will belong to that salvor or finder,or be auctioned off to pay for the salvage.Therefore,for the settlement over dispute years ago,even if the salvors cannot directly obtain the ownership of the salvage,they can still claim the proceeds of it.48See Art.546 of Merchant Shipping Act 1894.

In line with domestic law,the early agreements on UCH also reflect the protection of the interests of salvor and finder.For example,in the 1989 Exchange of Notes between South Africa and the United Kingdom concerning the Regulation of the Term of Settlement of the Salvaging of the WreckHMS Birkenhead(hereinafter “HMS BirkenheadExchange of Notes”),the parties specifically agreed that any gold coin recovered would be shared equally between the two governments,except that it is deemed to be privately owned or paid to the salvors under the existing salvage arrangement.49Exchange of Notes between South Africa and the United Kingdom concerning the Regulation of the Term of Settlement of the Salvaging of the Wreck HMS Birkenhead,Pretoria,22 September 1989.Coincidentally,Article 4 of the 1997 Memorandum of Understanding between the Governments of Great Britain and Canada pertaining to the shipwrecksHMS ErebusandHMS Terror(hereinafter“ErebusandTerroristMOU”) also stipulates that “any gold recovered from the wrecks,apart from coins considered to have been in private ownership,will after deduction of any share which may by law be due to any third party be shared equally between Canada and Britain”.50Memorandum of Understanding between the Governments of Great Britain and Canada pertaining to the Shipwrecks HMS Erebus and HMS Terror,5,8 August 1997.It can be observed that,without changing the ownership of the hull,private ownership is allowed at least for valuable goods therein,such as cargo and gold.

However,the tension between property rights and protection need,implies the predatory nature of business.51Geoffrey Lewis,Law and the Cultural Heritage by PJ O’Keefe and LV Prott,International Journal of Cultural Property,Vol.1:1,p.257-260 (1992).With the irreversible destruction of UCH by commercial salvage activities and the increasing awareness of UCH protection,the tradition of allowing private salvors to obtain salvage has been increasingly abandoned by international practice,and there is basically no room for the application of law of salvage and law of finds in the2001 Conventionas discussed above.52According to Article 4 of the 2001 Convention,“any activity relating to underwater cultural heritage to which this Convention applies shall not be subject to the law of salvage or law of finds,unless it: (a) is authorized by the competent authorities,and (b) is in full conformity with this Convention,and (c) ensures that any recovery of the underwater cultural heritage achieves its maximum protection”.The conditions can hardly be met.Even if the salvage law is applied,the salvors will only be paid a certain proportion of the value of the property recovered,but not be directly granted the ownership of all or part of the goods or even the sunken ship salvaged ashore.53Russel G.Murphy,The Abandoned Shipwreck Act of 1987 in the Millennium: Incentives to High Tech Piracy,Ocean and Coastal Law Journal,Vol.8:2,p.167-203 (2003).Therefore,in the development of the bilateral or multilateral mechanisms of UCH,the private ownership except the original owner will be gradually abandoned.

3.Exclusion of Ownership of a Specific Subject

In the current disputes over the ownership of UCH,the parties may also jointly waive their claims to the ownership by agreement and cooperate to exercise their rights to the preservation and management of cultural heritage,including for example,the exclusion of private unauthorized salvage activities.This kind of agreements follow the purpose and proposition of the2001 Conventionto protect UCH for the common benefit of mankind and to encourage State parties to take individual or joint measures in accordance with their specific circumstances and respective capabilities.542001 Convention,Arts.2(3)(4).It is also in line with the purpose of the Convention to limit the actual scope of application of law of salvage to a large extent.In such agreements,the dispute over ownership is not unresolved,but the balance of interests is achieved in a way that no state or private person can acquire ownership.

It is worth noting that this “compromise arrangement” does not mean that UCH will become the common property of all mankind and will be owned by all human beings.The concept of common ownership of mankind asserts that cultural property is part of the common cultural heritage of mankind,regardless of its origin or location,and does not give rise to exclusive property rights or subject to the jurisdiction of any state.55John Henry Merryman,Two Ways of Thinking About Cultural Property,The American Journal of International Law Vol.80:4,p.831-853 (1986).The reason is that cultural property of historical and archaeological significance should be protected for the benefit of all mankind,56Supra note 27,William V.Dunlap,p.426-427.which,however,does not prove the common ownership of mankind adversely.

To regard UCH as the common heritage of mankind is neither consistent with the requirements of substantive international law,nor compatible with the international practice.At the international level,the2001 Conventiondoes not exclude the right of State parties to coordinate the ownership of underwater disputed objects through domestic law or international agreements,that is,to acquiesce in the claim of state ownership.572001 Convention,mentioned in its preamble that UCH is “an integral part of the cultural heritage of humanity” and the “common heritage” of all peoples and nations,which,however,did not stipulate that state should give up ownership of UCH.In fact,it excludes the issue of ownership from the scope of discussion of the Convention,and leaves it to the domestic laws of the State parties,which acquiesced in the ownership of the UCH of individual party.The UNCLOS stipulates that,at least in the Area beyond national jurisdiction,resources are the common heritage of mankind,and their exploration and exploitation shall be carried out for the benefit of mankind as a whole,but only for natural resources.58Some scholars pointed out that Article 149 of the UNCLOS does not use the expression“the common heritage of mankind”,but the expression “for the benefit of all mankind”.Therefore,the status of cultural heritage in the international seabed area is obviously different from other natural resource.See SUN Wen,Research on International Legal Issues of Underwater Cultural Heritage,Nanjing University Press,2019,p.64-65.(in Chinese)At the domestic level,the policies,claims and transnational judicial practices related to UCH in various states are based on the premise that one of the parties has ownership of the disputed object.The internationalism of cultural heritage protection does not require any state to give up its ownership,but emphasizes that cultural heritage is not only the wealth of the state of origin,but also the common wealth of mankind,regardless of their ownership.It is indeed to emphasize the sharing and protection.59LI Yuxue,A Legal Interpretation of the “Common Cultural Heritage of Mankind”-From the Perspective of Cultural Relics Protection,Social Science Research,Vol.31:5,p.74 (2009).(in Chinese)

In the famous case ofTitanic,a huge cruise ship sank in 1912,and its hull was found off the coast of Canada in 1985,which triggered the debate among archaeologists and salvors.In order to protect the integrity of the hull and the dignity of the human remains on board,the United States,France,Britain,and Canada signed the Agreement concerning the Shipwrecked VesselRMS Titanicin 2003.60Agreement concerning the Shipwrecked Vessel RMS Titanic,6 November 2003.The Agreement does not provide that ownership belongs to a certain party,but stipulates that no state can claim ownership.The State parties’ main consideration is practical: determining the ownership and legal status of a relatively short-lived and world-renowned sunken ship will face many difficulties.Any attempt to touch ownership would not only lead to potential claims by the descendants of the victims,but would also raise the question of who should own ownership if the original owner or heir could not be identified? Trying to solve this problem will increase the friction of interests between the State parties in the negotiation process.61Sarah Dromgoole,The International Agreement for the Protection of the Titanic: Problems and Prospects,Ocean Development and International Law,Vol.37:1,p.1-31 (2006).Therefore,in view of the complexity of ownership,the State parties finally agreed to set aside the discussion of ownership for the time being.However,the Agreement to exclude the ownership of specific subjects does not mean that other states other than the State parties have no right to salvage or claim rights over theTitanic.According to Article 1 of the2001 Convention,which provides that UCH should be sunk for at least 100 years,at the time of the signing the Agreement,the wreck ofTitanicdid not fall within the definition of UCH under2001 Conventionand could not be prohibited from commercial salvage in accordance with the Convention.The Agreement is therefore intended to go beyond the limitation of the Convention,not only to resolve potential disputes over the ownership,but also to set standards for the protection of sunken ships.

Similarly,in the 1995 Agreement between Finland,Estonia,and Sweden on the wreck of theM/S Estonia,the parties did not expressly claim ownership,but treated the remains and the surrounding area as the final resting place of the victims of the maritime disaster and accorded them full respect.62Art.1 of Finland,Estonia,and Sweden Agreement regarding the M/S Estonia.Signed at Tallinn on 23 February 1995,.The Agreement provides that the parties shall adopt domestic laws to criminalize the destruction of the wreck and its surrounding sites and prohibit any property claims arising therefrom.63Id,Art.4.To conclude,the main purpose of excluding the ownership of specific subjects in the agreements of UCH is to shelve disputes,promote cooperation,prevent private salvage and destruction,and protect it for the common interests of all mankind,rather than to create the legal effect of rendering the ownership to all mankind.

B.Ownership

As mentioned above,the differences among domestic laws result in the conflict of laws of ownership,which are mainly between coastal state and state of origin.Therefore,the dispute over the ownership of UCH should be settled in reconciling the conflict between the coastal state and the state of origin.The existing bilateral or multilateral agreements creatively adopt a compromise approach of combining“ownership of state of origin” with “rights sharing with coastal state”,following the value concept of “joint development”.

Pursuant to Article 1 of the ANCODS Agreement,“The Netherlands,as successor to the property and assets of the V.O.C.,transfers all its right,title and interest in and to wrecked vessels of the V.O.C.lying on or off the coast of the State of Western Australia and in and to any articles thereof to Australia which shall accept such right,title and interest”.64Art.1 of Agreement between the Netherlands and Australia concerning Old Dutch Shipwrecks,6 November 1972.Australia then recognizes the continuing interest of the Netherlands in the property acquired from the wreck,particularly for historical or other cultural purposes.These articles treat the ownership by two steps,which effectively coordinate the rights and obligations between the state of origin and the coastal state.Firstly,it recognizes the ownership of the wreck enjoyed by the Netherlands as the state of origin.At the time of the discovery of the wreck,compared with Australia,it was originally owned,and its legal basis was that the state automatically became its legal successor to the property that no one inherited after the extinction of the legal person,and acquired the ownership of the property.Secondly,the Dutch government disposed of the property as the owner and transferred its ownership and interests to Australia.Australia,therefore,became the successor and actual owner of the property.

The advantage of adopting a compromise approach is that it balances the claims of coastal state and state of origin,by not only respecting the historical and cultural ties of the state of origin to the cultural property,but also taking into account the rights of coastal state of management and control within its territory on the basis of sovereignty.At the same time,the provisions under the Agreement weaken the obstacles to the exercise of rights brought about by the contingency of the sinking site of UCH.On the one hand,it makes the ownership claim of the state of origin recognized and enforced by the coastal state and gains extraterritorial effect.On the other hand,it respects the legislation of cultural heritage protection of the coastal state and safeguards its judicial sovereignty and jurisdiction.Finally,the ownership is not absolute,and the state of origin still has the right to claim the subject matter,and carry out the protection and excavation work together with the coastal state,which embodies the basic principles of joint development,consultation and cooperation.Although the Agreement only regulates specific UCH,as a successful example,it has influenced the settlement of other international disputes over UCH.

Bilateral or multilateral agreements that take a similar ownership approach are the 1997ErebusandTerroristMOU and the 2003La BelleAgreement.According to Article 1 of theErebusandTerroristMOU,the United Kingdom,as the owner of the sunken ship,65HMS Erebus and HMS Terrorist are Royal Navy ships located in Canada,supra note 50.does not waive ownership or sovereign immunity when the wreck and cargo are underwater,and once the location and identity of the wreck are determined,will grant Canada ownership of all cultural relics found.66Id,Art.1.The right to grant Canada custody and control over the wreck and its cargo,as well as the discretion to investigate,discover,and salvage,is observed as the vesting of ownership and disposition in Canada as owner.According to article 2 of theLa BelleAgreement,the French government had no urgent need to return the wreck to its territory,but it had never abandoned or transferred it,and will continue to retain ownership of the wreck.The wreck is in the custody of the Texas Historical Commission for a period of 99 years from the effective date of the agreement,which,unless otherwise agreed,is automatically extended upon the expiration of that period.67Supra note 40,Art.2.In addition,the Agreement also stipulates that the French National Naval Museum will consult with the Texas Historical Commission to determine the arrangements for the preservation,research,archiving and exhibition of the wreck.68Id,Art.3.

C.Guarantee of Ownership

Bilateral or multilateral agreements on UCH are valid only for signatory states and not for other third parties.69Art.34 of Vienna Convention on the Law of Treaties.In other words,states,individuals and entities other than the contracting states and its nationals may still claim rights related to ownership after the conclusion of the agreement.In view of this,the contracting parties also consider including exemption provisions in the agreement,especially in the case of transfer or sharing of ownership,requiring the transferee to exempt the transferor from the responsibility of guarantee of ownership.The transferee shall provide relief to the transferor for the loss suffered by the transferor due to the defect of the right.For example,in the Exchange of Notes Concerning the Salvage of the Wreck ofHMS Spartan(hereinafter “SpartanExchange of Notes”)signed by the British and Italian governments in 1952,the case concerned a British Royal Navy ship that sank in the Gulf of Italy.70Exchange of Notes between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Italy regarding the Salvage of H.M.S.“Spartan”,6 November 1952.Article 1 of the Exchange of Notes stipulates that the British government agrees to accept the Italian government’s proposal to obtain 50% of the proceeds from the salvage of the sunken ship,which means,the agreement grants the salvage authority of the sunken ship to the coastal state,Italy,and the parties share the proceeds of the salvage.In addition,Articles 2 and 3 of the Exchange of Notes provide for the exemption of the British government from the defect of ownership of the wreck: “the Italian Government shall relieve Her Majesty’s Government in the United Kingdom of any liability in respect of ownership of the wreck ofHMS Spartan”.In the event of a claim by a third person based on any cause connected with the wreck,Italy shall indemnify the British Government for the loss thereby sustained.71Id,Arts.2,3.

The potential third parties claiming property rights mainly include: (a) other states with actual cultural and historical connection with the UCH that claim the priority rights as the state of origin in accordance with the UNCLOS;(b)the original owner;(c) private commercial sectors who have carried out salvage activities before the signing of the agreement;(d) salvors from the third state who continue to carry out salvage activities after the signing of the agreement.Specifically,if the state of origin and the coastal state regard the UCH in question as ownerless in the agreement and allocate the ownership,it will need to deal with the compensation for the original owner and his heirs,focusing on the standard of compensation and whether relief is available only at the request of a third person.72Supra note 27,William V.Dunlap,p.440.The above-mentioned obligations will be assumed by the party that actually acquires the ownership of UCH as agreed,aiming at balancing the rights and obligations of the parties.If commercial salvage activities are involved,salvage activities that conform to the laws of the coastal state before the signing of the agreement shall also be recognized and the salvors shall be paid according to the salvage income.After the agreement is signed,the parties usually agree on the prohibition of private excavation and salvage activities without permission at the same time,which is valid in the territory of the parties,so it should also become the legal norm governing the citizens or other commercial sectors of third states engaged in salvage activities in the territory of the contracting parties.73The British government shall not enter into any rescue contract for the HMS Birkenhead,nor shall it object to the South African government maintaining its existing rescue arrangements for the sunken ship in accordance with applicable South African laws.Supra note 49.Commercial salvors will be restricted in their salvage activities after the agreement comes into effect.

IV.Reflections

An examination of existing bilateral or multilateral agreements for the resolution of disputes over ownership of UCH shows that the disputing counterparts usually focus on the balance of interests and follow the concept of joint exploitation,which facilitates the dispute resolution.Moreover,the ownership clause is only the basic content of the agreements,which also addresses specific issues such as the salvage,management,and protection of the disputed UCH,as well as the public accession of the salvaged objects.However,such agreements usually reflect only the consent and compromise of the parties and are not directly binding on third parties,thus limiting their actual scope of application.

A.Advantages

From the perspective of resolving disputes over the ownership of UCH,the advantages of the bilateral or multilateral mechanisms are mainly reflected in the following aspects:

Firstly,international agreement is a direct adjustment method to coordinate the conflict of laws on the ownership of UCH.The so-called direct adjustment method refers to a method of adjusting the rights and obligations between the parties in international civil and commercial relations by “substantive norms” which directly stipulate the rights and obligations of the parties.74HUO Zhengxin,Private International Law,China University of Political Science and Law Press,2nd ed.,2020,p.11-12.(in Chinese)As one of the normative manifestations of the direct adjustment method,the unification of substantive norms is conducive to avoiding the defects of the indirect adjustment method,that is,the “choice of laws rules”,such as low predictability and difficulty in balancing substantive justice.Although the subject of the dispute over the ownership of transnational UCH is the sovereign state,the object of the dispute is the ownership about private law,which can be solved by the adjustment method of private international law.

From the current legislation and practice over the ownership of UCH in various states,there are still great obstacles to guide the appropriate applicable law through general connecting factors and conflict rules,such as the obvious negative conflict of laws in various states,the importance of connecting factors is greatly affected by the legal status of the sea,and so on.75For example,in the territorial sea,more attention is paid to respect for the sovereignty of coastal state,and the application of coastal state’s laws is more advocated.In the contiguous zone,exclusive economic zone,continental shelf,and high seas,the priority of the state of origin is more valued.Therefore,to solve the conflict of laws of ownership of UCH through bilateral or multilateral agreements between states can directly clarify the rights and obligations of the contracting parties,and choose the ownership system that is most in line with the interests of the contracting parties according to their positions and propositions,which is more acceptable to the contracting parties and properly solves some special problems such as sovereign immunity.The design of the ownership clause in the current international agreements on UCH takes into account the priority of the state of origin and the jurisdiction of the coastal state,which is a compromise choice to coordinate the conflict of laws on the ownership of UCH.

To solve the disputes over ownership of UCH through bilateral or multilateral agreements can avoid the difficulties of litigation and the recognition and enforcement of judgment in the requested state due to the absence of law or insufficient evidence.76Irini Stamatoudi,Alternative Dispute Resolution and Insights on Cases of Greek Cultural Property: The J.P.Getty Case,the Leon Levy and Shelby White Case,and the Parthenon Marbles Case,International Journal of Cultural Property,Vol.23:4,p.433-457 (2016).As the principle of international consultation and cooperation has been accepted by more and more states,the ideal result is to reach a mutually acceptable arrangement to properly resolve disputes and avoid court proceedings.In the case of a state’s warship in particular,regardless of where it was sunk,existing treaty practice had shown that cooperation between states was the best solution.77Mariano J.Aznar,The Legal Protection of Underwater Cultural Heritage: Concerns and Proposals,in Carlos Espósito,et al.eds.,Ocean Law and Policy: 20 Years under UNCLOS,Brill Nijhoff,2016,p.146.

Secondly,bilateral or multilateral agreements between states are conducive to the development of international norms,especially the formation of customary international law.At present,there is no uniform norm of international law to regulate the ownership of UCH in the world.On the basis of the existing international conventions,the contracting parties strengthen the protection of UCH by concluding bilateral or multilateral agreements.In particular,the settlement of matters that do not fall within the scope of the Convention,such as ownership issues,will be conducive to promoting the realization of the general purpose of the Convention.78Supra note 2,Sarah Dromgoole,p.343.It is conducive to making up for the shortcomings of the Convention and laying the foundation for its amendment and improvement.

As an important source of international law,international custom is accepted as law as evidence of general practice.79ZHOU Gengsheng,International Law,Wuhan University Press,2007,p.10.(in Chinese)The state practice on UCH is one of the important ways to form the general practice of customary international law.First,an international agreement on UCH could develop into general practice among states.At present,states have a strong enthusiasm to deal with legal disputes over the ownership of UCH through diplomatic channels,and try to alleviate that contradiction between the sovereign immunity of the flag state and the jurisdiction of the coastal state in order to maximize the national interest.80Supra note 25,Craig Forrest,p.47.However,while the design of the provisions adopted in existing bilateral or multilateral agreements is similar,more state practice is needed to support it to become more general practice.Second,the determination of the ownership of UCH in the agreements needs to form theopinio jurisof general states.The formation of customary international law requires that states generally confirm the rules of conduct expressed in such practice as legally binding.81Supra note 79.At present,international agreements are only binding between the contracting parties,but the agreement of ownership among states may be accepted as a universally applicable rule in practice,such as taking into account the interests of coastal states and source states,especially the balance between ownership and jurisdiction,thus forming a general regulatory structure of ownership.

B.Limitations

However,for the international agreements only reflect the autonomy of the contracting parties and are not universally binding,their limitations are obvious:

Firstly,the relevant agreements are not legally binding on third states.As noted earlier,under the Vienna Convention on the Law of Treaties,a treaty does not create obligations or rights for a third state without its consent.82Art.34 Vienna Convention on the Law of Treaties.Therefore,these agreements cannot be applied in the case of ownership disputes arising from the salvage of UCH by nationals or vessels of third states.83Supra note 36,GUO Yujun ed.,p.334.Unless the dispute occurs within the coastal sovereign jurisdiction of the contracting parties,and the coastal state has transformed the treaty into domestic legislation to enforce it,the treaty should also regulate the salvage activities in the sea under its jurisdiction together with its relevant domestic law,and its application space is extremely limited.Because it is targeted only at specific wrecks and sunken objects,ownership of undiscovered sunken ships and other UCH in vast areas of the sea remains unsettled.From another point of view,although it is difficult to stipulate the ownership of UCH by agreement against third parties,in practice,the subjects involved in the negotiation and conclusion of agreements are usually coastal states or source states with direct interests in UCH,which have their own legal basis for claiming ownership,and are less likely to involve unrelated third states.The main purpose of the agreement is not to confront third parties,but to preserve,develop,and manage cultural heritage.The protection of cultural heritage should not be shelved and abandoned because of the validity of the ownership agreement.

Secondly,for international agreements oriented by commercial development and economic interests,the allocation of UCH to private salvors is not conducive to curbing commercial salvage activities,thus hindering the proper protection of cultural heritage.For example,the original purpose of the British Crown’s claim to the ownership of unclaimed sunken ships was to provide a source of revenue for the Treasury.84Supra note 2,Sarah Dromgoole,p.102.TheHMS BirkenheadExchange of Notes and theErebusandTerroristMOU,both referred to above,relate to the arrangement of salvage benefits,in particular the distribution of gold and other valuables.Such agreements treat UCH as sources of financial revenue and economic benefits,rather than cultural heritage,which will affect the effective protection of UCH.

V.Conclusion

China is not only a giant maritime state,but also a rich country of UCH.Since the 20th century,China’s UCHs have been stolen and destroyed severely,and the loss of cultural relics is also serious,especially in the South China Sea.85For example,in 1999,British businessman Michael Hatcher salvaged millions of Chinese porcelains on the shipwreck of the Tek Sing and auctioned them at a German auction house.See Discovery of the Tek Sing Cargo,kohantique (5 Dec 2021),http://www.koh-antique.com/discovery/teksing1.html.Since then,the importance of UCH protection has gradually attracted the attention of the legislature,but because some ancient sunken ships are not under China’s jurisdiction,China cannot extend its own legislation and jurisdiction over them.86For example,as for the Asian merchant ship Vung Tau discovered in the waters off Vietnam in 1989,nearly 3 million pieces of precious porcelain carried on board were auctioned at Christie’s auction,and 75% of the auction proceeds were eventually obtained by the Vietnamese government.See Christie’s Amsterdam B.V.,The Vung Tau Cargo: Chinese Export Porcelain,Christie’s,1992.It is often difficult to solve the problem of UCH protection only by domestic legislation,and there is no international legal practice on the ownership disputes of UCH by China.

Since China has not ratified the2001 Convention,which does not provide for the ownership of UCH,and the provisions of the UNCLOS on UCH are ambiguous,China lacks sufficient international legal basis to claim the ownership of UCH in its own waters or those originating from China but in other states’ water.In order to strengthen the protection of ownership and prevent the improper loss of cultural relics in China,China can strengthen consultation and cooperation with other states on UCH disputes based on the spirit of international cooperation under Article 303 of the UNCLOS,and resolve disputes through bilateral or multilateral mechanisms.

Firstly,the bilateral or multilateral agreements concluded or acceded to by China should reflect China’s position of sovereignty over its UCH.According to the Regulations of the People’s Republic of China concerning the Administration of the Protection of Underwater Cultural Relics (RAPUCR),China claims ownership and jurisdiction over all cultural relics found in its internal waters and territorial waters,regardless of their states of origin.87Arts.2(1),3 of Regulations of the People’s Republic of China concerning the Administration of the Protection of Underwater Cultural Relics.This provision does not set foreign warships as an exception,and China has not yet made a clear claim to the sovereign immunity of other states’ warships sunk in its territorial waters,which remains to be examined by practice.88LIU Lina,LIU Shuguang,From Difference to Convergence: A Comparative Analysis of the Development of the Legal Protection of the Underwater Cultural Heritage in China and the 2001 Convention,Comparative Maritime Law,Vol.52:167,p.149-165 (2013).From the perspective of reciprocity,at present,the major maritime powers generally recognize the sovereign immunity of sunk warships or government vessels of other states without express waiver.On the basis of insisting on the jurisdiction of the territorial sea,China can claim ownership of the cargo originating from China except for the hull,and cooperate with other states for the joint development and management of the heritage site.In addition,for other UCH,China can declare its position through international negotiations.On the basis of adhering to the ownership of UCH in China,the right of exploration and exploitation can be shared with the contracting parties,and even other ownership rights can be shared with the contracting parties,such as possession,custody,public display,etc.,to be fairly distributed through consultation.

Secondly,China can flexibly use bilateral or multilateral agreements to make up for the shortcomings of its domestic law.For the contiguous zone,exclusive economic zone,and continental shelf beyond the territorial sea,which belong to the jurisdiction of China only to some extent,the RAPUCR only claims ownership and jurisdiction over cultural relics originating from China or whose state of origin is unknown.89Art.2(2) of Regulations of the People’s Republic of China Concerning the Administration of the Protection of Underwater Cultural Relics.However,according to the provisions of Article 303.2 of the UNCLOS,coastal states have rights to prevent and combat trafficking of cultural property,at least within the contiguous zone,which does not restrict the origin and nature of the cultural property.90Art.303(2) of the United Nations Convention on the Law of the Sea.Therefore,for UCH of foreign origin in the contiguous zone,China still has jurisdiction over the illegal removal of them from the seabed,and there is no need to unilaterally restrict itself.91ZHAO Yajuan,Research on the UNESCO Convention for the Protection of Underwater Cultural Heritage,Xiamen University Press,2007,p.177.When China concludes agreements with other states on UCH in waters beyond its territorial sea,it can directly claim jurisdiction in accordance with the provisions of the UNCLOS as the basis for bilateral cooperation.In addition,for the sea areas under the jurisdiction of foreign states other than the territorial sea and the high seas,according to the RAPUCR,China only claims the right to identify the owner of the object,but there is no provision for UCH originating from China in the territorial waters of other states.92Art.2(3),3 of Regulations of the People’s Republic of China Concerning the Administration of the Protection of Underwater Cultural Relics.The main reason lies in the respect for the sovereignty and jurisdiction of other states,and China has no power and necessity to legislate extraterritorially.Therefore,by signing bilateral or multilateral agreements,China can effectively overcome the geographical restrictions of legislative power,which is more conducive to its claim of UCH originating from China in other states’ waters or high seas,which is especially of great significance for the protection of underwater cultural relics along the Maritime Silk Road.

In conclusion,bilateral or multilateral agreements between states to resolve the ownership of UCH play an increasingly important role in international practice.On the one hand,it helps to adjust the conflict of domestic laws.On the other hand,it makes up for the defects of international conventions.In terms of normative rules,it can properly coordinate the contradiction between ownership and jurisdiction.It also has important reference significance for China to carry out international legal practice for the protection of its UCH.