VietNamNet Bridge - Along with submitting an application to UNESCO for the recognition of the “Silk Road on the sea” as a world heritage, China has stated that it would conduct excavations of sunken ships around the islands of Hoang Sa and Quan Anh, parts of Vietnam’s Hoang Sa (Paracel) Archipelago. China also began a conservation plan on the islands of Huu Nhat and Da Bac of Vietnam’s Hoang Sa Archipelago early this year.

Hoang Sa Island in Vietnam's Hoang Sa Archipelago.

In fact, the rights and obligations of the countries in the protection and preservation of underwater cultural heritage are defined clearly in a number of important international treaties, of which the most important are the UN Convention on the Law of the Sea 1982 (UNCLOS 1982), the UNESCO Convention on the Protection of World Cultural and Natural Heritage 1972 (UNESCO Convention 1972) and the UNESCO Convention on Underwater Cultural Heritage 2001 (UNESCO Convention 2001).

First, it should be noted that at present both Vietnam and China are not members of the 2001 UNESCO Convention, therefore this Convention has no binding for both countries. In this case, only the UNCLOS 1982 and the UNESCO Convention 1972 will be applied.

The UNESCO Convention 1972 sets the obligations of member states in verifying and conserving cultural heritage within their territory. China’s act of adding the antiques and heritage located in the waters of the Hoang Sa and Truong Sa archipelagoes of Vietnam in its conservation programs and seeks UNESCO’s world heritage title recognition for them is totally inconsistent with the spirit of the UNESCO Convention 1972.

For jurisdictional purposes UNCLOS recognizes five main maritime zones: 1/ Internal waters, territorial sea, contiguous zone, continental shelf and an Exclusive Economic Zone (EEZ); and the high seas.

UNCLOS is primarily concerned with trade, fishing rights, commercial exploitation of natural resources in the seabed, and environmental protection. As a result, only two articles of UNCLOS refer directly to underwater cultural heritage.

Article 303 declares that “States have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose”. This article also gives coastal states limited rights to protect cultural heritage within the contiguous zone.

Article 149 of UNCLOS states that “all objects of an archaeological and historical nature found in the Area [that is, on the seabed underneath the high seas] shall be preserved or disposed of for the benefit of mankind as a whole, 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 should be noted that although the coastal state has sovereign rights, ie the priority right of exploitation and use of "natural resources" in the EEZ and continental shelf, this term does not include the archaeological and historical artifacts.

Thus, most scholars agree that the freedom of the high seas regulations will be applied to the behavior relating to artifacts. Then, the legitimate interests of all stakeholders must be taken into account in accordance with the spirit of Article 59 of UNCLOS 1982, under which the conflict of interests between coastal states and other countries will be decided on the basis of equality and the relevant circumstances, taking into account the interests of the related parties and the international community.

Currently, through the statement of Chinese officials, the Silk Road on the sea profile that China intends to submit to the UNESCO, includes the waters of the Hoang Sa and Truong Sa archipelagoes of Vietnam. Under the provisions of UNCLOS 1982, China has no right to unilaterally excavate antiquities and implement conservation programs or seek UNESCO’s recognition as world heritage.

China has no right to monopolize heritage

Although the antiquities and artifacts are located in any waters, the most important obligation set for state members by the UNCLOS 1982 is cooperation to protect the underwater cultural heritage. This is a mandatory legal obligation, under which when a country refuses or ignores the request or suggestion of other countries to protect and preserve underwater heritage, this country will be responsible for international legal liability.

These provisions show that a country cannot conduct any unilateral action related to underwater artifacts and culture. In contrast, scholars have asserted that the claims and interests of other countries should be considered in the process of conservation or use of the underwater heritage.

The UNESCO Convention 2001 (though not binding to Vietnam and China) also clearly stipulates and emphasizes the obligation of cooperation and consultation with the concerned country. This confirms the general spirit of international law for the salvaging and exploration of underwater heritage to enhance spirit of cooperation between the parties.

Thus, we can see whether the legal status of the waters that China planned excavation or the waters of the Silk Road that China intends to submit to UNESCO is, international law has specified that China has no right to monopolize the artifacts and implement these activities unilaterally.

Moreover, the area where China applies for UNESCO’s recognition as world heritage and intends to conduct conservation programs is the disputed waters with other neighboring countries, including Vietnam. In the disputed area, the UNCLOS 1982 stipulates that the parties are obliged to negotiate and if possible, apply temporary measures to avoid changing the status quo.

Article 300 of the Convention also sets out obligations for member states to apply the Convention in good faith and not to abuse their freedoms under the Convention.

China's actions are clearly opposite with these requirements, which once again shows China’s disregard of international law.

To be continued

Nguyen Ngoc Lan - Tran Hoang Yen

Ms. Nguyen Ngoc Lan is lecturer of the International Law Faculty at the Vietnam Diplomatic Academy. Ms. Tran Hoang Yen is currently a PhD student at the Institute of Maritime Law of the University of Utrecht, the Netherlands. The authors would like to express sincere thanks to Dr. Nguyen Dang Thang for his suggestions for this article.