Rightful Ownership with Respect to Underwater Cultural Heritage

Abstract

The concept of ‘Underwater Cultural Heritage’ as per Article 1 of the UNESCO Convention on Protection of Underwater Cultural Heritage can be defined as ‘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 a hundred years.’ The controversy that has primarily evolved in this respect is the establishment of ownership rights in such property. The ambiguity arises on account of three issues, i.e. whether under water cultural heritage belongs to the country of origin, or whether the ‘law of finds’ apply to such property or whether it is known to be the common heritage of all mankind. Disputes relating to this subject matter have been on a rise due to the fact of its valuable and historical nature. International law encompassing this issue is critical for at the national level the main body of laws involved in protection of Underwater Cultural Heritage has been described as a legal labyrinth and as such preservation of underwater remains cannot be based on national legislation alone. It must be supplemented by rules of International Law. The prevailing view is that a binding international instrument is essential for the protection of Underwater Cultural Heritage and as such the 2001 UNESCO Convention has not gained enough momentum to be treated as customary international law due to insufficient number of state parties. My aim through this research paper is firstly to establish proper ownership rights in Underwater Cultural Heritage and secondly to investigate into the adequacy of the UNESCO Underwater Cultural Heritage Convention. Furthermore in my research, I will try to explore and elaborate on the similarities and dissimilarities between Underwater Cultural heritage and Cultural Heritage and their interchangeability under their respective UNESCO Conventions. Through this I will be trying to evaluate the viability of restitution of Underwater Cultural Heritage to the country of origin or to the country with the strongest cultural or historical link.