The Challenges of Underwater Cultural Heritage Protection in the South China Sea

The Challenges of Underwater Cultural Heritage Protection in the South China Sea

Yodsapon Nitiruchirot*

Underwater Cultural Heritage (hereinafter “UCH”) is, undeniably, important for the humankind. For instance, it is a useful tool for the study of history and our ancestors’ civilization. Because of such importance, UCH should be well protected. UCH protection has been provided in the United Nations Convention on the Law of the Sea 1982 (LOSC) and the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage (hereinafter “2001 Convention”) which is known as a specific law for protecting UCH. There are a number of controversial issues related to UCH. Among them, the disputes over the UCH in the South China Sea (SCS) are most debatable. Connecting the Andaman Sea and the Pacifc Ocean, the SCS was historically used as a seaborne trade route. Therefore, it is predicted that the SCS may be rich in submerged archaeological objects. However, the protection of UCH in the SCS sometimes seems to be overlooked. Hence, the risk of the UCH in the SCS being lost is high. Against this backdrop, this article points out three challenges facing UCH protection in the SCS. First, the relevant provisions under LOSC are not sufficient to protect UCH in the SCS, and all the States surrounding the SCS, except Cambodia, have not ratified the 2001 Convention, which is a comprehensive treaty designed to preserve UCH. Second, the SCS involves complex sovereignty and delimitation disputes. Lastly, the domestic laws adopted by the States surrounding the SCS are not mutually compatible. Considering these challenges, the author suggests that, in order to enhance UCH protection in the SCS, these surrounding States should ratify the 2001 Convention, conclude regional agreements, and harmonize their national

South China Sea; United Nations Convention on the Law of the Sea 1982; UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001; Underwater Cultural Heritage

I. Introduction

To date, there has been no consensus in the academia on the definition of the “South China Sea (SCS)”. Some argue that the definition of the SCS should exclude the Gulf of Thailand,①Chistopher Linebaugh, Joint Development in a Semi-Enclosed Sea: China’s Duty to Cooperate in Developing the Natural Resources of the South China Sea, Columbia Journal of Transnational Law, Vol. 52, No. 2, 2013-2014, p. 548; Robert Beckman, The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea, The American Journal of International Law, Vol. 107, 2013, p. 143; Jeffrey Bader, Kenneth Lieberthal, and Micheal McDevitt, Keeping the South China Sea in Perspective, p. 4, at https://www.brookings.edu/wp-content/uploads/2016/06/south-china-sea-perspective-baderlieberthal-mcdevitt.pdf, 17 October 2016.while some are of the opinion that the Gulf of Thailand should be included in the SCS defnition.②Nengye Liu, Prevention of Vessel-Source Pollution in the South China Sea: What Role Can China Play?, Asia Pacific Journal of Environmental Law, Vol. 15, 2013, p. 147; Liana Talaue-McManus, Transboundary Diagnostic Analysis for the South China Sea, at http://www.unepscs.org/components/com_remository_files/downloads/Transboundary_ Diagnostic_Analysis_SCS.pdf, 17 October 2016; Christopher C. Joyner, The Spratly Islands Dispute in the South China Sea: Problems, Policies, and Prospects for Diplomatic Accommodation, in John C. Baker and David G. Wiencek eds., Cooperative Monitoring in the South China Sea, London: Praeger Publishers, 2002, p. 55; Mark J. Valencia, The South China Sea: Hydrocarbon Potential and Possibilities of Joint Development, Oxford: Pergamon Press, 1980, p. 1063.Nevertheless, according to the interpretation on the defnition, it could be said, to some extent, that the meaning of the term depends on the purpose of using it. For example, when used in respect of legal title or sovereignty and maritime border, the scope of the SCS should exclude the Gulf of Thailand. On the other hand, when we use it in respect of marine environmental protection or conservation of marine living resources, the term of the SCS shall include the Gulf of Thailand according to the concept of semi-enclosed sea contained in Article 123 of the United Nations Convention on the Law of the Sea 1982 (hereinafter “LOSC”).③Zou Keyuan, Joint Development in the South China Sea: A New Approach, The International Journal of Marine and Coastal Law, Vol. 21, Issue 1, 2006, p. 83.

The Underwater Cultural Heritage (hereinafter “UCH”) protection is moresimilar to the matter of marine environmental protection and conservation of marine living resources than maritime border. Therefore, the term of the SCS in this article should be interpreted widely to include the Gulf of Thailand. The States or regions bordering the SCS include Brunei,④“Brunei” is used here for convenience instead of the formal name Negara Brunei Darussalam.Cambodia, Chinese Mainland and Taiwan, Indonesia, Malaysia, the Philippines, Thailand, and Vietnam.

Connecting the Andaman Sea and the Pacifc Ocean, the SCS was historically used as a seaborne trade route, which is also called “Maritime Silk Road”.⑤China Daily, 2 July 2004.More than 2,000 sunken ships are estimated to exist in the SCS.⑥Qu Jinliang, Protecting China’s Maritime Heritage: Current Conditions and National Policy, Journal of Marine and Island Cultures, Vol. 1, Issue 1, 2002, p. 47, at http://ac.els-cdn. com/S2212682112000042/1-s2.0-S2212682112000042-main.pdf?_tid=f5e5dee2-94d1-11e6-b7f4-00000aab0f6c&acdnat=1476754197_c51d0a2248dd24c24fb214a6902dedfb, 10 October 2016.And some major archaeological events have been staged in the SCS area.

In 1986, an astonishing auction, named “the Nanking cargo (Geldermalsen shipwrecks)” was held in the Netherlands.⑦Liu Lina, A Chinese Perspective on the International Legal Scheme for the Protection of Underwater Cultural Heritage, at http://www.themua.org/collections/fles/original/7aa041be 256dde0ecdb7d04bccec34a3.pdf, 16 January 2016.In the same year, a Song Dynasty business ship named Nanhai No. 1 was found in Yangjiang, Guangdong Province.⑧Zhu Huayou and Ren Huaifeng, Protection of Underwater Cultural Heritage in the South China Sea and Regional Cooperation, in Myron H. Nordquist, John Norton Moore and Kuen-chen Fu eds., Recent Developments in the Law of the Sea and China, Leiden/Boston: Martinus Nijhof f Publishers, 2006, p. 485.During September 15-25, 1990, a sunken ship from the early Qing Dynasty was found at Baoling Port.⑨Zhu Huayou and Ren Huaifeng, Protection of Underwater Cultural Heritage in the South China Sea and Regional Cooperation, in Myron H. Nordquist, John Norton Moore and Kuen-chen Fu eds., Recent Developments in the Law of the Sea and China, Leiden/Boston: Martinus Nijhof f Publishers, 2006, p. 484.Then, in 2003, an American veteran secretly transported thousands of Chinese cultural relics that were excavated in the SCS to America⑩Zhu Huayou and Ren Huaifeng, Protection of Underwater Cultural Heritage in the South China Sea and Regional Cooperation, in Myron H. Nordquist, John Norton Moore and Kuen-chen Fu eds., Recent Developments in the Law of the Sea and China, Leiden/Boston: Martinus Nijhof f Publishers, 2006, p. 484.On May 1, 2004, more than 1700 pieces of Chinese porcelain produced in Zhangzhou City during the Wanli Period of the Ming Dynasty, which were found by a Vietnamese fsherman in an ancient Chinese sunken vessel in the SCS severalyears ago, were auctioned in Australia.①Zhu Huayou and Ren Huaifeng, Protection of Underwater Cultural Heritage in the South China Sea and Regional Cooperation, in Myron H. Nordquist, John Norton Moore and Kuen-chen Fu eds., Recent Developments in the Law of the Sea and China, Leiden/Boston: Martinus Nijhof f Publishers, 2006, p. 485.In 2006, fshermen discovered a shipwreck at a depth of 20 meters in Koh Kong province.②Nady Phann, History and Current Status of Underwater Cultural Heritage in Cambodia, at http://www.themua.org/collections/fles/original/d77fe4436f35606533d74d9fe994f70a.pdf, 4 April 2016.In 2009, Hainan Provincial Bureau of Cultural Heritage conducted an archaeological survey in the SCS.③At http://www.kaogu.cn/en/backup_new/new/2013/1026/42636.html, 4 April 2016.On June 1, 2010, Yuan Dynasty blue and white porcelain was discovered in ancient sites near Xisha Islands.④At http://www.kaogu.cn/en/backup_new/new/2013/1026/42636.html, 4 April 2016.By 2012, Chinese archaeologists have discovered 12 new sites around Xisha Islands in the SCS.⑤At http://www.kaogu.cn/en/News/New_discoveries/2013/1026/43034.html, 4 April 2016.

Sadly, UCH in the SCS have been undergoing illegal excavation and looting. They are not sufficiently protected or preserved. In this context, this article aims to point out three challenges facing the protection of UCH in the SCS and suggest some approaches to improve the current situation.

II. The Issue Concerning International Laws Applicable to the Protection of UCH in SCS

As we know, the LOSC and the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage (hereinafter “2001 Convention”) play an important role in UCH protection, however, the two conventions may not be applied to protect UCH in all sea areas. In this connection, this section attempts to analyze the application of these conventions to the protection of UCH in the SCS.

A. The LOSC

The LOSC was finally adopted on 30 April 1982 by 130 in favour, fouragainst, with eighteen abstentions and eighteen unrecorded⑥For the distribution of the votes, see Bernard H. Oxman, The Third United Nations Conference on the Law of the Sea, in René Jean Dupuy and Daniel Vignes eds., A Handbook on the New Law of the Sea, Leiden/Boston: Brill Nijhof f, 1991, p. 243. Some documents recorded that seventeen States abstained. However, it would seem that an abstention by Liberia, which was initially unrecorded, was not counted in the abstention number. By including Liberia’s abstention, that number should be eighteen. As of 10 October 2014, 166 States have ratifed the LOSC.and was opened for signature on 10 December 1982. The Convention entered into force on 14 November 1994 in accordance with its Article 308. Being the constitution of the oceans, it is comprised of 320 articles along with 9 annexes. Despite a number of provisions stipulated in this convention, only two articles relate to UCH protection, namely, Articles 149 and 303.

Article 149 is contained in “Part XI: The Area”, it is hence applicable merely to the UCH protection within the scope of the Area.⑦The LOSC, Article 1(1): “The Area means the sea-bed and ocean foor and subsoil thereof, beyond the limits of national jurisdiction.”According to this article, the objects of an archaeological and historical nature shall be preserved or disposed of for the beneft of mankind as a whole. These objects cannot be encompassed within the common heritage of mankind principle or undertaken by International Seabed Authority (ISA), because they are not natural resources but man-made resources.

With respect to Article 303, in the course of the travaux préparatoires, in 1979, the delegation of Greece submitted a proposal stating that the sovereign right of coastal State should be extended to include rights regarding the discovery and salvage of any “object of purely archaeological or historical nature on the seabed of its exclusive economic zone (EEZ) or under its continental shelf.”⑧Lucius Calfshch, Submarine Antiquities and the International Law of the Sea, Netherlands Year Book of International Law, Vol. 13, 1982, p. 16.However, it was opposed by three maritime powers: the US, the UK and the Netherlands, for the reason that it seemed like extending the rights of coastal States known as creeping jurisdiction. In order to reach a compromise, Article 303 of the LOSC was adopted.

Paragraph 1, Article 303 of the LOSC provides that States have the duty to protect and cooperate to protect objects of an archaeological and historical nature found at sea. This article is included in the Part XVI of the Convention, which is headed “General Provisions”. This means that the article applies to all sea areas. This provision is broad and abstract, and seems to be more like a political declaration that imposes no specifc duties on States Parties.

In order to control traffic in objects of an archaeological and historical nature found in the contiguous zone, according to Article 303(2), a coastal State is allowed to presume that the removal of objects from its contiguous zone without its approval would amount to an infringement within its territory or territorial sea of customs, fscal, immigration or sanitary regulations.⑨Sarah Dromgoole, Underwater Cultural Heritage and International Law, Cambridge: Cambridge University Press, 2013, p. 287.However, what does Article 303(2) permit the coastal State to do is still vague. Moreover, in this Convention, the coastal States are not entitled to protect UCH on their continental shelf or in their EEZ.

Most of the States surrounding SCS, except Cambodia, are parties to the LOSC.⑩Brunei ratified on 5 November 1996, China ratified on 7 June 1996, Indonesia ratified on 3 February 1986, Malaysia ratified on 14 October 1996, the Philippines ratified on 8 May 1984, Thailand ratified on 15 May 2011, Vietnam ratified on 25 July 1994, at http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications. htm#TheUnitedNations, 17 March 2016.The LOSC may be applied to protect UCH in the SCS, however, the LOSC is complicated in itself and not complete as discussed above.

B. The 2001 Convention

In 1985, three years after the LOSC was adopted, the Titanic was discovered and a number of artefacts on board were illegally recovered afterwards, which demonstrated that the prevailing international law on UCH protection was somewhat ambiguous and insufficient to protect UCH.

Against this backdrop, the International Law Association (ILA) shifted its focus of attention to the issue of UCH protection in 1988. The ILA produced a draft which was later forwarded to UNESCO in 1994. After due consideration, the 2001 Convention was fnally adopted on 2 November 2001 by the Plenary Session of the 31st General Conference.①Kuen-chen Fu, Essays on International Law of the Sea, Xiamen: Xiamen University Press, 2004, p. 47.The main body of the text contains thirty-fve articles and the Annex includes an additional thirty-six rules. To date, 46 States have ratifed and 5 States have acceded to this Convention.②UNESCO, List Name of Deposit of Instrument on Convention on the Protection of the Underwater Cultural Heritage, at http://www.unesco.org/eri/la/convention.asp?KO=13520& order=alpha, 25 October 2015.And it entered into force on January 2, 2009 by virtue of Article 27 of the 2001 Convention.

The objective of the 2001 Convention is to preserve UCH for the beneft of humanity,③The LOSC, Article 2(3).which is identical with the objective of Article 149 of the LOSC that aims to preserve or dispose UCH for the beneft of mankind.④“Humanity” and “Mankind” mean all the people in the worldCooperation,⑤The 2001 Convention, preamble cl. 10, Articles 2(2), 19 and 21.noncommercial exploitation,⑥The 2001 Convention, preamble cl. 5, Article 2(5) and Rule 2 of the Annex.and in situ preservation⑦The 2001 Convention, Article 2(5) and Rule 1 of the Annex.are fundamental principles of the 2001 Convention.

For the issues in respect of the application of salvage law or law of fnds, the 2001 Convention provides that,

any activity relating to underwater cultural heritage to which this Convention applies shall not be subject to the law of salvage or law of fi nds, 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.⑧The 2001 Convention, Article 4.

This provision seems to be contrary to Article 303(3) of the LOSC; however, actually, it is not. This is because Article 303(4) articulates the idea that “without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature”.⑨Kuen-chen Fu, Essays on International Law of the Sea, Xiamen: Xiamen University Press, 2004, p. 48.

The 2001 Convention provides for dif f erent legal regimes of UCH protection in dif f erent maritime zones.

1. Maritime Spaces Subjecting to Coastal State Sovereignty

States Parties “have the exclusive right to regulate and authorize activities directed at UCH in their internal waters, archipelagic waters and territorial sea.”⑩The 2001 Convention, Article 7(1).Nonetheless, when exercising its sovereignty over an underwater State vessel or aircraft that is within its territorial sea, or archipelagic waters, but not within its internal waters, a coastal State should inform the fag State Party, and if applicable, other States with a verifable link, with respect to the discovery of the identifable State vessels and aircraft within the coastal State’s territorial sea or archipelagicwaters.①The 2001 Convention, Article 7(3).

2. Contiguous Zone

The 2001 Convention provides that the States Parties may regulate and authorize activities directed at UCH within their contiguous zones. In so doing, they shall require that the Rules be applied.②The 2001 Convention, Article 8.This provision appears to contribute to the legislative jurisdiction of coastal States over its contiguous zone on UCH protection. But in fact, the legislative jurisdiction of coastal State is limited to the removal of objects of an archaeological and historical nature from the sea-bed in the contiguous zone, in conformity with the annexed Rules. Moreover, this provision reminds that contiguous zone is also a part of EEZ. The coastal State can act to prohibit or authorize activities directed at UCH in its EEZ and on its continental shelf to prevent damaging natural resources by virtue of Article 10(2) of the 2001 Convention,③Sarah Dromgoole, Underwater Cultural Heritage and International Law, Cambridge: Cambridge University Press, 2013, p. 290.for example.

3. EEZ and Continental Shelf

EEZ is an area beyond and adjacent to the territorial sea, not extending beyond 200 nautical miles from the baseline of the territorial sea.④The LOSC, Articles 55, 57.The concept of EEZ comprises the seabed and its subsoil, the waters superjacent to the seabed, as well as the airspace above the waters. In the EEZ, the coastal State has “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources.”⑤The LOSC, Article 56(1).On the other hand, continental shelf comprises “the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines” by virtue of Article 76(1) of the LOSC. The coastal State has sovereign right over its continental shelf for the purpose of exploring and exploiting natural resources.

That is to say that both EEZ and continental shelf are established to protect natural resources, excluding UCH which is man-made resources. Therefore, coastal States have no jurisdiction over the UCH in their EEZs and on their continental shelves under the LOSC. This led to the adoption of the 2001 Convention to bridge the gaps.

Realizing the concerns of maritime powers on the creeping jurisdiction, the 2001 Convention created a new mechanism to protect UCH in the EEZ and on the continental shelf. The mechanism comprises three steps: 1) reporting and notifcation, 2) consultation, and 3) implementation and authorization.

a. Reporting and Notif i cation

A State Party shall require its national or the master of the vessel fying its fag to report discovery of UCH or intention to engage in activities directed at UCH located in its EEZ or on its continental shelf, pursuant to Article 9 paragraph 1(a) of the 2001 Convention.

A State Party shall also require the national or the master of the vessel to report discovery of UCH or intention to engage in activities directed at UCH located in the EEZ or on the continental shelf of another State Party (1) to it and to that other State Party, or (2) to it and shall ensure the rapid and ef f ective transmission of such reports to all other States Parties by virtue of Article 9 paragraph 1(b) of the 2001 Convention.

Moreover, a State Party shall notify the Director-General of discoveries or activities reported to it under paragraph 1 in accordance with Article 9 paragraph 3 of the 2001 Convention.

b. Consultation

The coastal States shall consult all States Parties which have declared their interest in being consulted on how to ensure the ef f ective protection of the underwater cultural heritage in question.⑥The 2001 Convention, Articles 10(3) and 9(5).In case no States declare their interest under Article 9 paragraph 5 of the 2001 Convention, the coordinating State should be the coastal State. In contrast, if the coastal State expressly declares that it does not wish to coordinate the consultations, the coordinating State should be appointed by the States Parties that declared their interest.⑦The 2001 Convention, Article 10(3)(b).

c. Implementation

After the process of consultation, the coordinating State shall implement the measures of protection which have been agreed by the consulting States and shall issue all necessary authorizations for such agreed measures. Additionally, the coordinating State may conduct any necessary preliminary research on the UCH.⑧The 2001 Convention, Article 10(5).The coordinating State shall act on behalf of the States Parties as a whole but not for its own interest.⑨The 2001 Convention, Article 10(6).In case of preventing immediate danger to UCH, the coordinatingState may take all practicable measures, and/or issue any necessary authorizations.⑩The 2001 Convention, Article 10(4).Notably, the Coordinating State System is the result of compromise between the States proposing the notion of extending coastal States’ jurisdiction and the States opposing that proposal.

4. The Area

Article 11(1) of the 2001 Convention provides that States Parties have a responsibility to protect UCH in the Area, in conformity with the terms of the Convention and with Article 149 of the LOSC. The UCH protection system in the Area is close to the UCH protection system in the EEZ and on the continental shelf. A State Party is obliged to require its national, or master of a vessel fying its fag, to report any discovery of UCH or an intention to engage in activities directed at UCH in the Area.①The 2001 Convention, Article 11(1).Then, the States shall notify such reports to the Director-General of UNESCO and also to the Secretary General of ISA.②The 2001 Convention, Article 11(2).The Director-General of UNESCO shall promptly make available to all States Parties any such information provided by all State Parties.③The 2001 Convention, Article 11(3).States Parties with a verifable link to the UCH concerned may declare an interest in being consulted on how to ensure the ef f ective protection of that UCH.④The 2001 Convention, Article 11(4).

Furthermore, Article 15 of the 2001 Convention prescribes that States Parties shall take measures to prohibit the use of their territory in support of any activity directed at UCH which is not in conformity with this Convention. States Parties shall take all practicable measures to ensure that their nationals and vessels fying their flag do not engage in any activities directed at UCH in a manner not in conformity with this Convention, by virtue of Article 16.

Cambodia is the only State surrounding the SCS which is a party to the 2001 Convention.⑤Nady Phann, History and Current Status of Underwater Cultural Heritage in Cambodia, at http://www.themua.org/collections/fles/original/d77fe4436f35606533d74d9fe994f70a.pdf, 28 January 2016.Hence, the Convention cannot be applied to other surrounding States under the pacta tertiis rule provided in the Article 34 of the 1969 Vienna Convention on the Law of Treaties.

The sources of international law, in accordance with Article 38 of the Statute of the International Court of Justice, include not only conventional law but alsocustomary international law and general principles. However, at present, it is not easy to prove the existence of customary international law and general principles concerning UCH protection. The author holds that some general principles can be indirectly applied to the protection of UCH in the SCS, such as the principle of good faith and equity principle.

III. The Issue of the Disputes in the SCS

Being one of the waters with the highest political sensitivity, the SCS involves a lot of disputes in the nature of both sovereignty and delimitation. This section will explore the disputes in the SCS and analyze the problems which may arise from such disputes.

A. Areas Involving Sovereignty Disputes

Some areas of the SCS involve territorial sovereignty disputes, which could lead to problems in the exercise of sovereignty to protect UCH located in those areas.⑥Pratas Islands and Macclesfeld Bank were excluded in this article.These areas are related to the sovereignty disputes concerning some SCS islands. Specifcally, the Paracel Islands (Xisha Qundao in Chinese)⑦Marwyn S. Samuels, Contest for the South China Sea, Virginia: Routledge, 1982, p.183.are claimed by China and Vietnam;⑧Robert Beckman, China, UNCLOS and the South China Sea, at http://cil.nus.edu.sg/wp/wpcontent/uploads/2009/09/AsianSIL-Beckman-China-UNCLOS-and-the-South-China-Sea-26-July-2011.pdf, 18 October 2016.the Spratly Islands (Nansha Qundao in Chinese)⑨Bob Catley and Makmur Keliat, Spratlys: The Dispute in the South China Sea, Farnham: Ashgate Publishing, 1997, p. 3.are claimed in their entirety by China and Vietnam, and some features of the Spratly Islands are also claimed by Malaysia and the Philippines. Brunei has established a maritime zone that overlaps a southern reef of Spratly Islands, but it has not made any formal claim.⑩Robert Beckman, China, UNCLOS and the South China Sea, p. 3, at http://cil.nus.edu.sg/ wp/wp-content/uploads/2009/09/AsianSIL-Beckman-China-UNCLOS-and-the-South-China-Sea-26-July-2011.pdf, 18 October 2016.Scarborough Shoal (Huangyandao in Chinese) is claimedby the Philippines and China,①Robert Beckman, China, UNCLOS and the South China Sea, p. 3, at http://cil.nus.edu.sg/ wp/wp-content/uploads/2009/09/AsianSIL-Beckman-China-UNCLOS-and-the-South-China-Sea-26-July-2011.pdf, 18 October 2016.and Sabah②Orlando M. Hernando, The Philippine Claim to North Borneo (Master of Arts Thesis), Kansas: Kansas State University, 1966, p. 7.is claimed by Malaysia and the Philippines.

B. Areas with Undelimited Maritime Boundary

The areas with undelimited maritime boundary mainly refer to the areas involving disputes over the delimitation of territorial sea, which would cause problems to the exercise of sovereignty and jurisdiction. Article 9 of the 2001 Convention provides for the duty of the national of a State Party or the master of the vessel fying its fag to report to it of their discovery or intention to engage in activities directed at UCH located in its EEZ or on its continental shelf and other States’ EEZ or continental shelf. Since there are disputes over the delimitation of EEZ or continental shelf in the SCS, there will be problems regarding the implementation of the duty of coastal State under the Coordinating State System of the 2001 Convention, when all the SCS surrounding States ratify this convention.

The areas whose maritime boundaries have not been delimited in the SCS can be divided into two groups - the zones subject to provisional agreements and the overlapping areas concerning which no agreements have been reached. The former group includes the overlapping areas claimed by Malaysia and Thailand in the Gulf of Thailand,③The two States have long been trying to solve the problem regarding the overlapping area. On 21 February 1979, Thailand and Malaysia signed the Memorandum of Understanding between the Kingdom of Thailand and Malaysia on the Establishment of a Joint Authority for Exploitation of Resources of the Seabed in a Defined Area of the Continental Shelf for the Two Countries in the Gulf of Thailand (hereinafter “MOU 1979”). The MOU 1979 provides for the joint developing area, and also prescribes that the Joint Authority of Malaysia-Thailand shall be established under Article III. Both parties shall negotiate to delimit the boundary of the continental shelf within the ffty-year period. If this cannot be achieved, the MOU 1979 shall continue after the expiry of the said period.the areas claimed both by Cambodia and Vietnam in the Gulf of Thailand,④Article 2 of the Agreement on Historic Waters of Vietnam and Kampuchea, 7 July 1982, provides that the two countries will hold at a suitable time negotiations in order to delimit the maritime frontier between the two countries in the historical waters which is defned in Article 1 of the Agreement.the overlapping areas claimed by Malaysia and Vietnam in the Gulfof Thailand,⑤The two States applied the concept of joint development to the Memorandum of Understanding between Malaysia and the Socialist Republic of Vietnam for the Exploration and Exploitation of Petroleum in a Defned Area of the Continental Shelf Involving the Two Countries, which was signed on 5 June 1992, instituting a joint exploitation regime for the“Defned Area” in the Gulf of Thailand.the overlapping areas claimed by Malaysia, Thailand and Vietnam in the Gulf of Thailand,⑥In 1999, Vietnam, Thailand and Malaysia agreed on the principle of joint development for a small overlapping area. The arrangement covers an area of approximately 256 sq nm of the Malaysia-Thailand Joint Development Zone. Nevertheless, no agreements have been made on most of the remaining overlapping maritime zones.the overlapping maritime zones claimed by Cambodia and Thailand in the Gulf of Thailand,⑦The two countries concluded Memorandum of Understanding between the Royal Government of Cambodia and the Royal Thai Government Regarding the Area of Their Overlapping Maritime Claims to the Continental Shelf, on 18 June 2001. The MOU 2001 aims to divide the overlapping area into two areas, and to attempt, through further negotiations, to defne maritime border for the northern Area I as well as to agree upon a treaty for joint development of the hydrocarbon resources in the southern Area II.the overlapping zones claimed by China, the Philippines and Vietnam in the SCS,⑧The three States signed the 2005 China-Philippines-Vietnam Provisional Arrangement, Joint Marine Seismic Surveys (South China Sea), on 14 March 2005 (no longer in force). The arrangement covers the areas over 143,000 sq km in the South China Sea, near the disputed Spratly Islands. It was framed as a “pre-exploration study solely to collect, to process and to analyze seismic data and no drilling and development involved”. However, the text of the agreement was not made public.and the latter includes the overlapping zones claimed by Chinese Mainland and Taiwan and the Philippines in the SCS.

However, the territorial sovereignty disputes should be settled by the customary international law relating to the acquisition and loss of territory, and the boundary delimitation disputes should be solved under Articles 15, 74, and 83 of LOSC. In other words, the delimitation of territorial sea should be ef f ected by agreement or based on the equidistance/special circumstances rule. Meanwhile, the delimitation of EEZ or continental shelf should be ef f ected on the basis of equitable principles.

The disputing States have long been trying to solve such problems through both bilateral and regional level approaches, such as the 1976 Treaty of Amity and Cooperation in Southeast Asia and the 2002 Declaration on the Conduct of Parties in the South China Sea. Additionally, the Philippines tried to resolve disputes through judicial means. For example, in January 2013, the Philippines submitted arbitration on claim against China for violations of the LOSC after more than a decade of unsuccessful bilateral and multilateral negotiations over territorialclaims in the SCS.⑨Emma Kingdon, A Case for Arbitration: The Philippines’ Solution for the South China Sea Dispute, Boston College International and Comparative law Review, Vol. 38, Issue 1, 2015, p. 129.Finally, an Arbitral Tribunal issued its award in favour of the Philippines on 12 July 2016.⑩At http://www.pcacases.com/pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf, 17 October 2016.However, the award still cannot solve the dispute until now. These endeavors demonstrated that the SCS dispute cannot be solved simply, the settlement of which therefore may take a long time. Nonetheless, the issue on the protection of UCH in the SCS is actually an urgent matter. Hence, the author perceives that the bordering States should actively set aside disputes and collaborate with responsible bodies to protect UCH in the SCS.

IV. Problems Pertinent to the Domestic Laws of the States Surrounding the SCS

The States surrounding the SCS have various legal systems, namely, civil law system, common law system, and mixed legal system. For instance, Cambodia, China, Indonesia, Thailand, and Vietnam adopt civil law system, while Brunei and Malaysia apply common law system. And the mixed legal system is adopted by the Philippines. Since domestic laws of these States vary, problems would arise in respect of UCH protection in the SCS. This section aims to study the legislations of SCS bordering States and analyze the legal problems that may arise with regard to UCH protection.

Up to date, merely three States surrounding the SCS, i.e., China, the Philippines and Vietnam, have promulgated specifc laws on UCH protection. Chinese mainland issued the Regulations of the People’s Republic of China on the Protection of Underwater Cultural Relics (hereinafter “the 1989 Regulations”) on 20 October 1989,①Office of Policy, Law and Regulation, State Oceanic Administration ed., Collection of the Sea Laws and Regulations of the People’s Republic of China, 2nd edition, Beijing: China Ocean Press, 1998, pp. 461～465.which is a subsidiary legal norm under the 1982 PRC Law on the Protection of Cultural Relics (hereinafter “the 1982 Law).②Kuen-chen Fu, Essays on International Law of the Sea, Xiamen: Xiamen University Press, 2004, p. 22.Besides, the 2015 Law on Underwater Cultural Heritage Preservation (hereinafter “the 2015Taiwan Law”), which includes seven chapters and 44 articles,③Wendy Zeldin, Taiwan: Law on Protection of Underwater Cultural Heritage Adopted, at http://loc.gov/law/foreign-news/article/taiwan-law-on-protection-of-underwater-culturalheritage-adopted/, 4 April 2016; at http://www.moc.gov.tw/information_250_40686.html, 4 April 2016. (in Chinese)was adopted by the main legislative body of Taiwan, the “Legislative Yuan”, on November 24, 2015. The Philippines has the Protection of Underwater Cultural Heritage Act of 2004 (hereinafter “the Philippine Law 2004”), including 31 sections. Vietnam, on July 8, 2005, enacted the Decree No. 86/2005/ND-CP on Management and Protection of Underwater Cultural Heritage (hereinafter “the Vietnamese Decree 2005”). This decree entered into force on 23 July 2005 in accordance with its Article 43.

Except the three States mentioned above, other States bordering the SCS only have laws on cultural heritage protection, but not specifc laws on UCH protection. For instance, Brunei has the Laws of Brunei, Chapter 31, Antiquities and Treasure Trove Act 1967, amended in 1991, which includes ten parts and 44 sections (hereinafter “Brunei Antiquities and Treasure Trove Act 1967”). The law aims to control and preserve ancient and historical monuments, archaeological sites, remains and antiquities, and to regulate the laws relating to treasure trove. In 1996, the Law on the Protection of Cultural Heritage (hereinafter “1996 Cambodian Law”), modeling the 1992 Resolution on the Protection of Cultural Heritage, was adopted by the National Assembly of Cambodia to protect general cultural heritage. Then, in 2002, a Sub-decree on Enforcement of Cultural Heritage Protection (hereinafter “2002 Cambodian Sub-decree”) was adopted, focusing specifically on the protection of cultural property, including underwater artefacts.④Nady Phann, History and Current Status of Underwater Cultural Heritage in Cambodia, at http://www.themua.org/collections/fles/original/d77fe4436f35606533d74d9fe994f70a.pdf, 4 April 2016.Indonesia, previously, had the Act No. 5 Year 1992 on Cultural Heritage, which was replaced by the Act No. 11 Year 2010 on Cultural Heritage (hereinafter “Indonesian Law on Cultural Conservation”). The act includes 120 articles, aiming to preserve the national heritage and human being heritage by virtue of its Article 3(a). Malaysia has the National Heritage Bill 2005 (hereinafter “2005 Malaysian National Heritage Bill”) which consists of seventeen parts and 126 sections. The provisions related to UCH are provided in Part IX of the bill. This bill aims to conserve and preserve national heritage, natural heritage, tangible and intangible cultural heritage, underwater cultural heritage, treasure trove and other related matters. Thailand has the Act on Ancient Monuments, Antiques, Objects of Art and National MuseumsB. E. 2504 (1961), as last amended by the Act on Ancient Monuments, Antiques, Objects of Art and National Museums (No. 2), B. E. 2535 (1992) (hereinafter “Thai Ancient Monuments Act”). The main purpose of the Thai Ancient Monuments Act is to protect and preserve ancient monuments, antiques, objects of art and national museums which are under Thailand’s jurisdiction, both on land and under the sea⑤Not include continental shelf.The act consists of seven parts, covering ancient monuments, antiques and objects of art, national museums, archaeological fund, suspension and revocation of licenses, penalty, and transitory provisions. This section will point out some problems, at least three problems, which may arise in the application of domestic laws by the States surrounding the SCS.

A. Incompatibility in the Def i nition of the Term of UCH

UCH includes three components: heritage, cultural and underwater. The word “heritage” implies something that has a value or quality which is worthy of protection so that it can be passed on to future generations. The word “cultural”suggests something that is related to human beings, and the word “underwater”implies something that is, or at least was, located underwater⑥Sarah Dromgoole, Underwater Cultural Heritage and International Law, Cambridge: Cambridge University Press, 2013, pp. 65～66.

Under the domestic laws of the States surrounding SCS, the defnitions of UCH are various. There are two kinds of age limit known as temporal criterion:⑦Sarah Dromgoole, Underwater Cultural Heritage and International Law, Cambridge: Cambridge University Press, 2013, pp. 90～91.the age of the objects and the period that they are submerged in water. The defnitions of UCH articulated in the domestic laws of these surrounding States can be divided into three groups: 1) the defnition that provides the age limit of object (applicable in Chinese mainland, Brunei, and Indonesia); 2) the defnition that provides time limit of submerged period (applicable in Malaysia and the Philippines); and 3) the defnition that provides no time limit of an object (applicable in Cambodia, Taiwan Area, Thailand, and Vietnam). The dif f erences in defnition mentioned above may cause the problem of nonconformity regarding the protection of UCH.

1. Concerning the Age Limit of UCH

The 1989 Regulations of Chinese mainland articulates the scope of UCH, by stating that “[t]he provisions in the preceding paragraph shall not cover objects thathave remained underwater since 1911 and that have nothing to do with important historical events, revolutionary movements or renowned personages”.⑧The Regulations, Article 2(2).In Brunei, although Section 2(1) of the Brunei Antiquities and Treasure Trove Act 1967, clearly defines ancient monument or antiquity by using the time limit, namely,“date prior to or reasonably believed to be prior to 1st January 1894”, it fails to provide any specifc defnition for UCH. In Indonesia, according to Article 5 of the Indonesian Law on Cultural Conservation, the cultural conservation object, cultural conservation building, or cultural conservation structure shall be “at age of 50 years or more” and “representing the style of minimum age of 50 years”. Nevertheless, it does not specifcally defne the term of UCH and thus the temporal criterion of submerged period cannot be applied.

2. Domestic Laws Which Have Set the Time Limit of Submerged Period for UCH

Malaysia provides the time limit of submerged period for UCH. Section 2 of the 2005 Malaysian National Heritage Bill invoked the defnition of UCH from the 2001 Convention. Therefore, the UCH in Malaysia shall have been “partially or totally under water, periodically or continuously, for at least one hundred years”. Section 3(f) of the Philippine Law 2004 stipulates that “[o]bjects of underwater cultural heritage, both movable and immovable, include all shipwrecks, sunken vessels at least 100 years old and all things therein, [h]ulls⑨The original word “lull” is believed to be a typo of “hull” by the author.and underwater archaeological artifacts; places of an Tent settlements or vestiges of an ancient civilization; dockyards, piers, aqueducts, tanks, wells; monuments, fragments, shards or original documents found under water dating from prehistoric times and any other object of scientifc, cultural, religious, archaeological, anthropological or paleontological interest to the Philippines.”

3. Domestic Laws Lacking Provisions with Respect to the Time Limit of UCH

Neither the 1996 Cambodian Law on Cultural Heritage Protection,⑩The 1996 Cambodian Law on Cultural Heritage Protection, Article 2(4).nor the 2002 Cambodian Sub-decree specifically defines the term of UCH, or provide for the age of objects or the time of submerged period.①The 2002 Cambodian Sub-decree, Article 2(4).The 2015 Taiwan Law mentions that the UCH should have been wholly or partially submerged underwater periodically or continuously. Nonetheless, the law neither provides the age of UCHnor the time of submerged period②The 2015 Taiwan Law, Article 3(1) states, “underwater cultural heritage refers to … that have been wholly or partially submerged underwater periodically or continuously.”The Thai Act on Ancient Monuments fails to enshrine the defnition of UCH specifcally. Moreover, the identifcation of antique or objects of art does not depend on the age of those objects, by virtue of Section 4 of the Thai Act on Ancient Monuments. Additionally, Article 3 of the Vietnamese Decree 2005 does not fx the age limit of UCH.

The cooperation among the States surrounding the SCS is crucial for the protection and preservation of UCH. However, according to the provisions concerning the aforementioned defnitions of UCH, it can be concluded that the SCS is facing challenges in the protection of UCH. Specifcally, the defnitions of UCH specifed in the domestic laws of those States still vary from States to States. And the absence of a uniform defnition of UCH may add to the difficulties in cooperation among those States when applying laws regarding the protection UCH in the SCS.

B. The Dispute over the Ownership of UCH

In respect of ownership, most of the States bordering SCS use the same norm to identify the ownership of UCH located in their maritime zones. That is, in case the ownership over a piece of UCH cannot be identified, its ownership will be vested in the coastal States.

Chinese mainland provides that it has title over all UCH lying in the Chinese inland waters and territorial waters as well as those of Chinese or unidentified origin in sea areas outside the Chinese territorial waters but under its jurisdiction.③Zhao Yajuan, On the Legal Basis of the UCH Protection on the Two Sides of Taiwan Strait - A Comparative Study of the Current Mainland UCH Law and the Related Taiwanese Draft Law, China Oceans Law Review, No. 2, 2010, p. 114.Moreover, China shall have the right to identify the owners of the underwater cultural relics of Chinese origin that remain in the high seas or sea areas beyond the territorial waters of any foreign State but under the jurisdiction by virtue of Articles 2 and 3 of the Regulations. Article 15 of the 2015 Taiwan Law provides that UCH discovered in internal water and territorial sea of Taiwan belongs to Taiwan, except those State vessels or aircraft whose ownership has been claimed by foreign States.

Section 3(3) of the Brunei Antiquities and Treasure Trove Act 1967 provides that all discovered antiquities hidden beneath the surface of the ground or in the sea of Brunei shall be deemed to be the absolute property of the Government of HisMajesty; however, the act does not provide the defnition of the sea in this section. The definition of the sea in this section is still vague. It should be the breath of territorial sea under the Territorial Waters of Brunei Act, 1982, namely 12 nautical miles from the baseline.

Article 39 of the 1996 Cambodian Law provides that “moveable cultural property found by chance is public property”. This law also applies within Cambodian territory under Article 2 of the law. Unfortunately, the national territory defned in this Article 2 is quite vague, which may not include EEZ and continental shelf.

Article 15 of the Indonesian Law on Cultural Conservation prescribes that the cultural conservation object whose ownership is unknown shall be controlled by the State. It is not clear whether the word “controlled” in this article implies that the ownership is vested in the State or not. This article should be applied to the scope of Indonesian sea, river, lake, reservoir, well, and swamp pursuant to Article 4 of Elucidation to Law of the Republic of Indonesia Number 11 of 2010 concerning Cultural Conservation. However, the meaning of the word “sea” in this law is so vague that whether it includes EEZ and continental shelf is unclear.

The 2005 Malaysian National Heritage Bill provides that any UCH discovered during any, salvage or excavation works shall vest in the Commissioner and shall be listed in the Register,④2005 Malaysian National Heritage Bill, Section 66(1).then the commissioner shall cause to be posted a list of UCH in any port office within the district where the UCH was discovered,⑤2005 Malaysian National Heritage Bill, Section 66(2).and after one year, if no one claims the ownership, such property shall be the absolute property of the Federal Government.⑥2005 Malaysian National Heritage Bill, Section 66(5).In light of sections 2 and 65 of the 2005 Malaysian National Heritage Bill, the provision above applies to the territorial waters of Malaysia determined in accordance with the Emergency (Essential Powers) Ordinance No. 7 of 1969 [P.U.(A) 307A/1969].

Section 6 of the Philippine Law 2004 says, ownership of all objects of UCH found in territorial waters, regardless of origin, shall be vested with the State. Section 30(a)(1) of the Philippine National Cultural Heritage Act of 2009 provides that all cultural properties found in terrestrial and/or underwater archaeological sites belong to the State. Unfortunately, the act fails to provide the precise location of underwater archaeological sites, therefore it is not clear whether it includes the underwater archaeological sites located in the EEZ or on the continental shelf.

Section 24 of the Thai Act on Ancient Monuments provides that, antiques or objects of art buried in, concealed or abandoned within the Kingdom or the EEZ under such circumstances that no one could claim to be their owners shall, whether the place of burial, concealment, or abandonment be owned or possessed by any person, become the State’s property.

All UCH, regardless of its origin, situated in Vietnamese inland waters, internal waters, territorial sea, contiguous zone, EEZ, and continental shelf, belong to the Socialist Republic of Vietnam, pursuant of Article 4(1) of the Vietnamese Decree 2005. And the ownership of UCH of Vietnamese origin which lie beyond the areas defned in Article 4(1) shall be based on the provisions of Vietnam’s Law on Cultural Heritage and international treaties by virtue of Article 4(2) of the Vietnamese Decree 2005.

Most of the States surrounding the SCS claim that, regardless of the real ownership of the UCH, any UCH located in their internal water and territorial sea shall belong to them. Therefore, if the real ownership of the UCH discovered in internal water or territorial sea of those coastal States can be identifed, disputes between the coastal State and the real owner will occur.

Furthermore, in cases where the real ownership of the UCH cannot be proved and the UCH is located in the overlapping zone or areas involving sovereignty dispute, most of the bordering States would assert that the ownership of UCH located in their internal waters, territorial sea, EEZ or continental shelf shall belong to them. As a result, conficts could arise.

C. Disputes Concerning Jurisdiction over UCH in the SCS

Jurisdiction refers to “the power of the State under international law to regulate or otherwise impact upon people, property and circumstances and refects the basic principles of State sovereignty, equality of States and non-interference in domestic affairs.”⑦Malcolm N. Shaw, International Law (Sixed Edition), Cambridge: Cambridge University Press, 2008, p. 645.It takes two main forms: prescription (the making of law) and enforcement (implementation of the law by the judiciary or the executive).⑧Anthony Aust, Handbook of International Law (Second Edition), Cambridge: Cambridge University Press, 2010, p. 42.The claims to jurisdiction by States, recognized by international law, may be based on a few principles, including the territorial principle (spatiality principle), thenationality principle, the passive personality principle and the protective principle.⑨Anthony Aust, Handbook of International Law (Second Edition), Cambridge: Cam-bridge University Press, pp. 43～44.

When exercising jurisdiction under the domestic laws of the States surrounding the SCS over the UCH lying this sea area, disputes may arise. For example, Thai Ancient Monuments Act applies to all Thai maritime zones, including Thai’s EEZ by virtue of Article 7 and Article 24; and the 1996 Cambodian Law on Cultural Heritage Protection applies to the territory under Cambodian jurisdiction, which may include Cambodia’s EEZ in accordance with Article 2. As we know, there are overlapping maritime zones between Thailand and Cambodia in the Gulf of Thailand. If Thailand and Cambodia exercise their rights in these overlapping zones, the confict of jurisdiction between the two States must arise; and the same situation may occur, when other States bordering the SCS exercise rights at the same time in other disputing areas. Therefore, to apply the domestic laws of those surrounding States may lead to the disputes concerning jurisdiction over UCH in the SCS.

V. Approaches to Enhance UCH Protection in the SCS

As discussed above, so far there are at least three challenges facing UCH protection in the SCS, and the solutions in this regard are needed. Therefore, the author attempts to recommend the following three approaches to enhance UCH protection in the SCS.

A. Ratifying or Accepting the 2001 Convention

The 2001 Convention is recognized to be the specific convention on UCH protection concluded to plug the gap in the LOSC, and in so far has been ratifed by 55 States.⑩UNESCO, at http://www.unesco.org/eri/la/convention.asp?KO=13520&language=E&order =alpha#1, 9 April 2016.Even though, some maritime powers still concern that the extending jurisdiction of coastal State may affect the principle of freedom of the sea. However, it does not mean that the 2001 Convention is useless.

With regard to UCH protection in the SCS, ratifcation and acceptance of the 2001 Convention by the States surrounding the SCS may bring some benefts. For example, the Coordinating State System under Articles 9 and 10 of this convention,which is a compromise between the concept of creeping jurisdiction and the principle of freedom of the sea, may enhance UCH protection in the SCS. At least it could enable States, in name of coordinating States, to legally exercise rights to protect UCH in their EEZ and on their continental shelf, and would facilitate coordination and cooperation among the States bordering the SCS in UCH protection in the SCS, such as sharing of information among States (Article 19) or the cooperation in the provision of training in underwater archaeology (Article 21).

B. Adopting Specif i c Agreement

Another way to enhance UCH protection is to conclude specific agreement, be it bilateral or multilateral. It should be noted that Article 303(4) of the LOSC①The LOSC Article 303(4) stipulates “[t]his article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature”.and Article 6 of the 2001 Convention②The 2001 Convention, Article 6(1) states “States Parties are encouraged to enter into bilateral, regional or other multilateral agreements or develop existing agreements, for the preservation of underwater cultural heritage”.allow States Parties to adopt bilateral, regional or other multilateral agreements. Therefore, adopting regional agreement should be an approach to protect UCH in the SCS. And some instances of regional agreements should be considered as a model for UCH protection.

The provisions of some regional agreements are similar to those of the 2001 Convention. The Siracusa Declaration on the Submarine Cultural Heritage of the Mediterranean Sea③R. Garabello and T. Scovazzi, The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention, Leiden/Boston: Martinus Nijhoff Publishers, 2003, pp. 274～275., a treaty concluded by the Mediterranean States on 10 March 2000, is a perfect example in this case. Article 1 of the Declaration provides that its objective is to ensure that the UCH in the Mediterranean is made known and preserved for the benefit of humankind. In addition, Article 5 of the Declaration emphasizes the non-commercial exploitation principle and Article 8 states that preservation in situ is the first option to protect UCH. The 2008 Code of Good Practice for the Management of the Underwater Cultural Heritage in the Baltic Sea Region (COPUCH)④At http://www.nba.f/en/File/701/copuch-ohjeistus.pdf, 18 October 2016.provides that its objective is to manage and preserve the unique UCH located in the Baltic Sea. The time criterion of 100 years for UCH under COPUCH is identical with that under the 2001 Convention. COPUCH alsoregards preservation in situ as the frst option to protect UCH, in accordance with its Article 4. Moreover, some projects concerning UCH protection in Baltic Sea were conducted, such as the Monitoring, Safeguarding and Visualizing North-European Shipwreck Sites Program⑤S. Tikkanen, MOSS: Common European Underwater Cultural Heritage - Challenges for Cultural Resource Management, in Jerzy Litwin ed., Baltic Sea Identity: Common Sea -Common Culture?, Gdańsk: Ministry of Culture of Poland, 2003, p. 188.and the Rutilus Project aiming to reduce the destruction of underwater heritage caused by man in the Baltic Sea.⑥P. Lejoneke and B. Varenius, The BUCH Programme and the Rutius Project, in Jerzy Litwin ed., Baltic Sea Identity: Common Sea - Common Culture?, Gdańsk: the Ministry of Culture of Poland, 2003, p. 188.

That is to say, the States surrounding the SCS may conclude regional agreement on UCH protection in this sea area by using the 2001 Convention as a model.

C. Harmonizing Domestic Laws

The incompatibilities of the domestic laws adopted by the States surrounding the SCS would cause problems when these States exercise jurisdiction or carry out cooperation on UCH protection in the SCS, therefore, harmonizing domestic laws is an important method to enhance UCH protection in the SCS, especially in the following aspects.

1. Harmonizing the Def i nition of UCH

The difference of definition of UCH may bring obstacles to cooperation on UCH protection in the SCS. In this connection, the States surrounding the SCS should negotiate to seek a standard definition and accordingly amend their own domestic laws.

Notably, the 100 years criteria under Article 1 of the 2001 Convention aims at avoiding conflicts of ownership between States by presuming that the objects submerged underwater more than 100 years were abandoned by the owner.

Nevertheless, the author believes that the UCH submerged underwater less than 100 years is still valuable in archaeological and historical studies. It is better to move out this time limit criteria, since ownership issue should not be kept under the carpet.

2. The Conf l icts Concerning the Ownership over UCH and the Exercise of Jurisdiction

Actually, the conflicts concerning the ownership over UCH and those inrespect of the exercise of jurisdiction are quite similar. It is natural that every State intends to provide in their domestic laws to maximally extend their rights and jurisdiction. However, if every State specifes its rights and jurisdiction in its domestic laws for its best benefts, conficts regarding the exercise of jurisdiction can simply occur. To prevent such problems, the author suggests that the States surrounding the SCS should conclude some agreements on these issues. Under this circumstance, these States should amend their national laws by adding exception clauses, in order to accommodate obligations under the agreements, which may be signed in the future, concerning the ownership of UCH and the exercise of jurisdiction in the overlapping maritime zone.

VI. Conclusions

To conclude, the result of this article indicates that UCH protection in the SCS are facing three fundamental problems.

Firstly, there are some issues with the international laws applicable to UCH protection in the SCS. Even though LOSC is considered as the constitution of the oceans, and all of the States bordering the SCS, except Cambodia, are parties to the LOSC, the convention only has two articles concerning UCH protection. Hence, it is not enough to protect UCH in the SCS. On the other hand, although 2001 Convention is an umbrella treaty on UCH protection, it was only ratifed by a State bordering the SCS - Cambodia. Because of this problem, the author argues that the SCS bordering States shall, at least, ratify the 2001 Convention. Additionally, these States should conclude regional agreements on UCH protection in the SCS for better results.

Secondly, disputes exist in the SCS concerning sovereignty and delimitation. They could lead to problems with respect to the exercise of rights to protect UCH, and may trigger difficulties in implementing the duties of State Parties to cooperate with others under the 2001 Convention.

Lastly, at least three issues on UCH protection in the SCS may arise when applying the domestic laws of the States surrounding the SCS. These issues could result in disputes and difficulties in collaboration among those States to protect UCH in the SCS. Hence, these States should harmonize their domestic laws.

* Yodsapon Nitiruchirot, Ph.D. Candidate at South China Sea Institute of Xiamen University and Lecturer at Mae Fah Luang University. E-mail: surino_juris@hotmail.com. The author is grateful to Assistant Professor LIN Zhen and Professor Kuen-chen FU for their comments on some issues covered in this paper. The views expressed in this paper remain the sole responsibility of its author.

© THE AUTHOR AND CHINA OCEANS LAW REVIEW

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