Significance of Belgian Legislation on the Protection of Underwater Cultural Heritage as a Reference to the Amendment of China's Pertinent Regulations

LIN Zhen

Abstract: Regulation of the People’s Republic of China Concerning the Administration of the Work for the Protection of Underwater Cultural Relics(hereinafter referred to as the “Regulation”) is currently being amended.Meanwhile, China is considering acceding to the UNESCO Convention on the Protection of Underwater Cultural Heritage (hereinafter referred to as the“Convention”). Amendments to the Regulation should therefore take the provisions under the Convention into account so as to conform to the spirit of the Convention as far as possible. There are 60 States Parties to the Convention to date. Among them, Belgium is one of the few States that have already reenacted relevant laws in accordance with the Convention upon accession. Although China has not yet joined the Convention, the influence that its provisions might have on the nation’s domestic legislation should be adequately accounted for when the Regulation is being amended. In this regard, it is important that China understand the adjustments that Belgium and other States Parties have made to their domestic legislations as well as the rationale of such adjustments.

Key Words: Legislation of China; Underwater cultural heritage; Legislation of Belgium

Following the amendment of the Law of the People’s Republic of China on the Protection of Cultural Relics, the Regulation of the People’s Republic of China Concerning the Administration of the Work for the Protection of Underwater Cultural Relics (hereinafter referred to as the “Regulation”) is also being revised.The Exposure Draft on the Revised Regulation was released on 11 February 2018.At the same time, China is considering acceding to the UNESCO Convention on the Protection of Underwater Cultural Heritage (hereinafter referred to as the“Convention”). In this perspective, amendments to the Regulation should therefore take the provisions under the Convention into account so as to conform to the spirit of the Convention to the maximum extent. In fact, after the adoption of the Convention, many countries, even those who have not yet joined, have taken pertinent provisions under the Convention into account when revising their relevant legislation.1For example, Malaysia’s National Heritage Act 2005 was greatly affected by the UNESCO Convention on the Protection of Underwater Cultural Heritage 2001 (hereinafter referred to as the “Convention”). National Heritage Act 2005, at http://www.hbp.usm.my/conservation/laws/nationalheritageact.htm, 30 September 2018.

To date, there are 60 States Parties to the Convention, but not all of them have made amendment to relevant domestic legislation accordingly. Although they have already acceded to the Convention, some States Parties have not yet amended relevant domestic laws so as to be fully in conformity with the provisions under the Convention. Belgium is one of the few countries that have reenacted relevant national laws in accordance with the Convention. Belgium acceded to the Convention on 5 August 2013. Three months later, the Convention entered into force for Belgium, which then decided to abolish its 2007 Law on the Discovery and Protection of Shipwrecks2Law on the Discovery and Protection of Shipwrecks, the Kingdom of Belgium, at http://www.ejustice.just.fgov.be/cgi_loi/loi_a.pl?imgcn.y=4&sql=dd+=+date%272007-04-09%27+and+nm+contains+%272007014194%27&language=fr&rech=&tri=dd+as+rank&numero=1&table_name=LOI&caller=image_a1&row_id=1&cn=2007040951&fromtab=loi&imgcn.x=61&DETAIL=2007040951/F&nm=2007014194&la=F&pdf_page=7&pdf_file=http://www.ejustice.just.fgov.be/mopdf/2007/06/21_1.pdf, 30 September 2018. (in French)and to draft a new law to implement the Convention.3At https://www.lachambre.be/kvvcr/pdf_sections/newsletter/53-131-plenum-laws15F.pdf,30 September 2018. (in French)The resultant Draft Law on the Protection of the Underwater Cultural Heritage was approved by the House and Senate of Belgium on 20 March, and 27 March 2014, respectively.4At http://www.lachambre.be/kvvcr/showpage.cfm?section=/flwb&language=fr&cfm=/site/wwwcfm/flwb/flwbn.cfm?legislat=53&dossierID=3397, 30 September 2018. (in French)On 18 April of the same year, the Law on the Protection of the Underwater Cultural Heritage (hereinafter referred to as the “2014 Law”)was adopted by the Belgian government.5Law on the Protection of the Underwater Cultural Heritage (hereinafter referred to as the “2014 Law”), at http://www.unesco.org/culture/natlaws/media/pdf/belgium/belg_loipatsub14_frorof, 30 September 2018. (in French)

China has not yet joined the Convention. Nonetheless, it should consider the impact that the Convention will have on itself in the future. In this regard, a thorough examination of the adjustments that States Parties have made to their domestic legislation after acceding to the Convention, as well as the rationales underpinning such adjustments, will provide some guidance on how China can best amend the Regulation.

I. Major Provisions of the 2014 Law of Belgium

Belgium’s underwater cultural heritage (hereinafter referred to as “UCH”)is mainly located in the North Sea. Although the Belgian coastline is relatively short, Belgium possesses a considerable number of underwater cultural relics near its shore, including about 280 shipwrecks lying in its territorial sea.6Draft Law on the Protection of Underwater Cultural Heritage, Belgian House of Representatives, at http://www.lachambre.be/FLWB/PDF/53/3397/53K3397001.pdf, 30 September 2018. (in French)Historically,Antwerp and Ostend were two important international seaports. The Flanders Region was a major battlefield in the First and Second World Wars. For instance,the Zeebrugge Raid of the First World War took place in this region. As a result of these historical events, the waters of Belgium contain many ancient wrecked merchant freighters such as the ships of the Dutch East India Company7Ministerial Order on the Protection of the Wreck of the Wooden Vessel in Front of the Ostend Coast as Underwater Cultural Heritage, at http://www.etaamb.be/fr/arreteministeriel-du-30-septembre-2014_n2014014750.html, 30 September 2018; Ministerial Order on the Protection of the Wreck Site on the Buiten Ratel Sandbank as Underwater Cultural Heritage, at http://www.etaamb.be/fr/arrete-ministeriel-du-12-septembre-2016_n2016014316.html, 30 September 2018; Ministerial Order on the Protection of the Wreck of ‘t Vliegent Hart as Underwater Cultural Heritage, at http://www.etaamb.be/fr/arreteministeriel-du-12-septembre-2016_n2016014321.html, 30 September 2018. (in French)as well as a notable number of early and mid-twentieth century warships.8Ministerial Order on the Protection of the Wreck of the HMS Brilliant as Underwater Cultural Heritage, at http://www.etaamb.be/fr/arrete-ministeriel-du-12-septembre-2016_n2016014317.html, 30 September 2018; Ministerial Order on the Protection of the Wreck of the HMS Wakeful as Underwater Cultural Heritage, at http://www.etaamb.be/fr/arreteministeriel-du-13-mai-2014_n2014014608.html, 30 September 2018; Ministerial Order on the Recognition of Three Sunken Ships as Underwater Cultural Heritage, at http://www.ejustice.just.fgov.be/cgi/article_body.pl?language=fr&caller=summary&pub_date=18-04-11&numac=2018011377, 30 September 2018. (in French)Belgium has demonstrated an emphasis on the importance of the protection of its UCH and,accordingly, has passed a series of laws and regulations to enhance it, including the aforesaid 2014 Law. This section will introduce the major provisions of the 2014 Law with regard to UCH’s definition, jurisdiction, ownership, warships and other State vessels, and international cooperation. Also, it will attempt to expose the rationales behind these provisions.

A. Definitions

Belgian government has changed considerably in its understanding of the term UCH. This shift can be easily noticed by comparing the terms employed by the 2007 Law on the Discovery and Protection of Shipwrecks and the 2014 Law respectively. The 2007 Law defined “Protected Shipwrecks” as “all the wrecks and objects with historical or archaeological value in its territorial sea”.9Law on the Discovery and Protection of Shipwrecks, the Kingdom of Belgium, Art. 16. (in French)This definition is narrower than the currently-used concept of “cultural heritage” in that it only mentions the protection of cultural relics themselves, putting the surrounding environment at a disadvantage, which however is equally of archaeological value.

The definition of UCH in the 2014 Law is generally in conformity with the provisions of the Convention.10Art. 2 of the 2014 Law provides that: For the purposes of the application and execution of the present Law, “discoveries” mean any discovery of traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, such as: (a) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context; (b) vessels,aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (c) objects of prehistoric character. If the person who has discovered any item listed above has good reason to believe that it is underwater cultural heritage and has not yet registered it in accordance with Article 7, such an item could be deemed as a “discovery” under the Law.The wording is basically consistent with Article 1(1)(a) of the Convention. However, it is noteworthy that Article 2 of the 2014 Law contains no provision concerning the criterion of 100 years under the Convention.11In accordance with the Convention, “underwater cultural heritage” means all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least one hundred years such as - (a) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context; (b) vessels, aircraft, other vehicles or any part thereof,their cargo or other contents, together with their archaeological and natural context; and(c) objects of prehistoric character. A careful comparison between the 2014 Law and the Convention tells that, the definition of UCH under Article 3 of the Law is very similar to the one under the Convention, with the sole difference lying in the time criterion of 100 years.According to Article 3 of the 2014 Law, the 100-year criterion applies only to all traces of human activities having a cultural, historical or archaeological character that are found in the exclusive economic zone (EEZ) or on the continental shelf of Belgium. No such standard or requirement has been made under the 2014 Law concerning the UCH found within its territorial sea. Consequently, the traces which are discovered in its territorial waters do not have to be under water for at least 100 years to be classified as UCH.

The rationale behind Article 3 of the 2014 Law could be found in Bill No.3397 passed by the Belgian House of Representatives.12At https://www.lachambre.be/kvvcr/pdf_sections/newsletter/53-131-plenum-laws15F.pdf,30 September 2018. (in French)A State enjoys sovereignty over its territorial sea. Any State has thus the right to enact laws to manage the UCH situated within its territorial sea. Accordingly, Belgium has the right to establish higher standards to enhance the protection of the UCH lying in its internal waters and territorial sea. In both sea areas, the UCH falling under the protection scope of the 2014 Law of Belgium is much more than those covered by the Convention, which is however consistent with the purpose of the Convention,i.e., to provide maximum protection to UCH. As of the traces found in the EEZ or on the continental shelf of Belgium, only those which have been submerged under water for not less than 100 years are deemed as UCH protected by the 2014 Law. However, considering that it does not have sovereignty over its EEZ or on its continental shelf, the Government of Belgium has reviewed its domestic laws so as not to conflict with existing international rules and domestic laws of other countries. In this regard, when drafting the 2014 Law, it also duly considered the potential impact that the provisions on the protection of UCH in the aforesaid areas would have on the interest of the international community.

B. Jurisdiction

The 2014 Law, with regard to the scope of its application, states that:

The present law shall apply to: 1. articles discovered within the limits of the territorial sea of Belgium; 2. articles discovered in Belgium’s exclusive economic zone or on its continental shelf which have been submerged under water for not less than 100 years.

As this provision shows, the 2014 Law is applicable to not only the UCH found in the territorial sea of Belgium but also to that found in its EEZ or on its continental shelf. However, with regard to the UCH discovered in its EEZ or on its continental shelf, the Law can only be applied to that UCH having been under water for at least 100 years. In contrast, the 2007 Law on the Discovery and Protection of Shipwrecks only applies to the shipwrecks found in the territorial waters of Belgium.13Law on the Discovery and Protection of Shipwrecks, the Kingdom of Belgium, Art. 2.Therefore, as compared with the 2007 Law, the 2014 Law has extended the jurisdiction of the Belgian government.

C. Ownership

The Convention is silent on the question of who shall have the ownership over a piece of UCH. The 2014 Law of Belgium, instead, contains detailed provisions on the matter. Article 10 of the 2014 Law articulates that Belgium may claim ownership over any UCH that is found in its territorial waters, EEZ or on its continental shelf, without prejudice to the right of the original owner to claim ownership upon proof of identity.14The 2014 Law, Art. 10.Particularly, the ownership of warships and other State vessels would be accorded to their flag States.

D. Warships and Other State Vessels

Provisions laid down in Article 6(2), paragraph 2 of the 2014 Law are rather similar to those of the Convention. These provisions ensure that ownership over warships and other State vessels will be duly accorded to their flag States.Accordingly, the provisions oblige Belgium to conduct consultations with flag States Parties on the protection of such wrecks while reserving the right to take all the necessary measures to prevent any immediate danger, including looting,before consulting the flag States.15The 2014 Law, Art. 6(2), para 2.This provision of the 2014 Law is undoubtedly in conformity with Articles 7 and 10 of the Convention.16Art. 7(3) of the Convention provides: within their archipelagic waters and territorial sea,in the exercise of their sovereignty and in recognition of general practice among States,States Parties, with a view to cooperating on the best methods of protecting State vessels and aircraft, should inform the flag State Party to this Convention and, if applicable, other States with a verifiable link, especially a cultural, historical or archaeological link, with respect to the discovery of such identifiable State vessels and aircraft. And Art. 10(4) of the Convention states: without prejudice to the duty of all States Parties to protect underwater cultural heritage by way of all practicable measures taken in accordance with international law to prevent immediate danger to the underwater cultural heritage, including looting,the Coordinating State may take all practicable measures, and/or issue any necessary authorizations in conformity with this Convention and, if necessary prior to consultations,to prevent any immediate danger to the underwater cultural heritage, whether arising from human activities or any other cause, including looting. In taking such measures assistance may be requested from other States Parties.In comparison with previous legislation of Belgium,17Law on the Discovery and Protection of Shipwrecks, Art. 7(2), para. 2, stipulates that, for a warship or a State vessel which at the time of sinking was used solely for government but not commercial purposes, the official in charge may allow salvage of such wrecks only after obtaining a special authorization directly from its flag State.the jurisdiction of Belgium, as a coastal State,has obviously been expanded to some extent in this regard.

E. International Cooperation

Article 8(1), paragraph 3 of the 2014 Law states that with respect to the UCH found within the EEZ or on the continental shelf of Belgium, the official in charge of UCH protection may, if necessary, consult the State that has made a declaration to Belgium in accordance with Article 9(5) of the Convention. And the Convention Article 9(5) provides:

Any State Party may declare to the State Party in whose exclusive economic zone or on whose continental shelf the underwater cultural heritage is located its interest in being consulted on how to ensure the effective protection of that underwater cultural heritage. Such declaration shall be based on a verifiable link, especially a cultural, historical or archaeological link, to the underwater cultural heritage concerned.

As these passages demonstrated, the relevant provisions of the 2014 Law are highly consistent with the principle of international cooperation as encouraged by UNCLOS Article 30318United Nations Convention on the Law of the Sea, Art. 303(1), reads: States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose.and the Convention.

In general, the 2014 Law demonstrates the commitment of the Belgian government to fulfilling its treaty obligations as a State Party to the Convention.In addition to the abovementioned Article 8(1), Belgium has established further provisions with the objective of abiding by the fundamental principles of the Convention, including the preservation in situ of UCH and prohibition of commercial exploitation.19Art. 6(1) of the 2014 Law provides that no excavation shall be carried out until permission is obtained from the official in charge of UCH protection. Article 15 prohibits the sale and possession of any UCH inconsistent with this law. Article 16 further provides that no Belgian vessel shall engage in any exploration or excavation of UCH in violation of the Convention. Article 8(3) also states that the protection of underwater cultural heritage through in situ preservation shall be considered as the first option. Where in situ preservation is impossible, activities directed at UCH shall be carried out following the provisions of the Annex to the Convention.From this perspective, it can be concluded that the law adopted by the Belgian government with regard to the protection of its UCH has been as truthful to the spirit of the Convention as practical in terms of adjusting some of its provisions to the country’s specific necessities, as illustrated by the 2014 Law’s deliberation on the matter of jurisdiction.

II. Significance of the 2014 Law as a Reference to the Amendment of the Regulation of China

China has a long history. It possesses rich cultural heritage, which includes ancient shipwrecks, cities, bridges, ports, hydrological stone carvings, modern warships and other submerged relics. Although the protection of UCH started late in China, it has developed rather rapidly into a system led by the central government.China has managed to conduct several major excavations by deploying underwater archaeology related resources with the assistance of local agencies. To date, this system has accomplished a series of significant achievements, most notably the extension of its operating area to the distant waters.20At http://www.uch-china.org/inchina.aspx, 15 July 2018. (in Chinese)Today, in line with the needs related to the construction of the “Twenty-First Century Maritime Silk Road”,China has established international cooperation with several States concerning UCH protection, which include joint archaeological excavations with Kenya and Saudi Arabia in their waters respectively.21At http://www.xinhuanet.com/world/2018-12/30/c_1123928294.htm, http://www.chnmuseum.cn/(S(2d4uwh55uyjqbg45tpah3ea1))/Default.aspx?TabId=1312&InfoID=9005 3&frtid=1243&AspxAutoDetectCookieSupport=1, 15 July 2018. (in Chinese)In terms of legislation, China is one of the few East Asian States which have enacted specific domestic laws for UCH protection. For example, the Regulation was adopted in 1989 by the Chinese government and has played an important role till most recently.

On 11 February 2018, in order to meet the current needs to protect underwater cultural relics, the National Cultural Heritage Administration of China released the Exposure Draft of Revised Regulation of the People’s Republic of China Concerning the Administration of the Work for the Protection of Underwater Cultural Relics (hereinafter referred to as the “Exposure Draft”).22Exposure Draft on the Revised Regulation of the People’s Republic of China Concerning the Administration of the Work for the Protection of Underwater Cultural Relics (hereinafter“Exposure Draft”), at http://www.sach.gov.cn/module/download/downfile.jsp?classid=0&fil ename=1802112038231995622.docx, 15 July 2018. (in Chinese)According to the notes penned by the National Cultural Heritage Administration, the amendments envisioned by the Exposure Draft have three main purposes: first, to revise the Regulation so that it matches with the changes made to the Law of the People’s Republic of China on Protection of Cultural Relics (hereinafter referred to as the “Law on Protection of Cultural Relics”); second, to cater to the needs of the new operations concerning the protection of underwater cultural relics; third, to improve the feasibility of the provisions under the Regulation.23Revision Explanations with Regards to the Exposure Draft, at http://www.sach.gov.cn/module/download/downfile.jsp?classid=0&filename=1802112038457578546.docx, 15 July 2018. (in Chinese)The revisions have also been influenced by the spirit and fundamental principles of the Convention.24Revision Explanations with Regards to the Exposure Draft, at http://www.sach.gov.cn/module/download/downfile.jsp?classid=0&filename=1802112038457578546.docx, 15 July 2018. (in Chinese)However, the Exposure Draft is still being discussed. Therefore, this section will explore the possible directions that the Exposure Draft might take by using the relevant Belgian legislation as a point of reference. This will be done by bearing in mind that, Belgium is a State Party to the Convention, whereas China has not yet acceded to the Convention. However, since the amendment to the Regulation has also the unstated purpose of respecting the standards established by the relevant international law, China cannot but take the provisions of the Convention into account so as to be well prepared for its accession. From this point of view, the amendment to the Regulation needs to be both forward-looking and consistent with the basic principles of the Convention while, at the same time, preserving some flexibility in the areas which have not yet been clearly specified in the Convention.Therefore, the flexible enforcement of the Convention by the Belgian government might provide some important guidance to China.

A. Terms and Definitions

As it can be shown from the legislative changes adopted by Belgium and other States, the concept of UCH is now increasingly used to replace old terms such as“underwater cultural relics”, “shipwrecks” and “sunken objects”. According to its definition in the Convention, UCH encompasses much more than those old terms.In this perspective, to align the country with what is now a common trend in the international community, China’s legislators could replace the conceptual term of“underwater cultural relics” with that of “underwater cultural heritage”. Of course,the prerequisite for doing so is to make adjustments to the Law on Protection of Cultural Relics and, accordingly, use the term “cultural heritage” instead of “cultural relics”. As a matter of fact, two Chinese organizations in charge of UCH protection,namely the National Cultural Heritage Administration (國家文物局) and the National Center of Underwater Cultural Heritage (水下文化遺產(chǎn)保護中心)have already used the term “cultural heritage”, instead of “cultural relics” in their English names. Otherwise, the term “cultural relics” could be retained but include certain components of the concept of cultural heritage such as the archaeological and natural context of the heritage, which are generally excluded from what is understood to be a “physical object”. Ideally, this adjustment should occur in the Law on Protection of Cultural Relics first.

With respect to the definition of the underwater cultural relics, Article 2 of the Regulation states:

The term “underwater cultural relics” referred to in the Regulation means any human cultural heritage having historical, artistic and scientific values that remain in the following waters:

(1) all the cultural relics of Chinese origin, of unidentifiable origin, or of foreign origin that remain in Chinese internal or territorial waters;

(2) cultural relics that are of Chinese origin or of unidentifiable origin that remain in sea areas outside the Chinese territorial waters but under Chinese jurisdiction according to Chinese laws;

(3) cultural relics of Chinese origin that remain in the sea areas of any foreign State other than its internal and territorial waters, or in the high seas.

The provisions in the preceding paragraphs shall not cover objects that have remained underwater since 1911 but have nothing to do with important historical events, revolutionary movements or renowned personages.

The Exposure Draft did not make any changes to the abovementioned Article 2. As for the reasons, the National Cultural Heritage Administration explained that:“it is important to note that as China has not yet acceded to the Convention, no amendments have been made to the content of Articles 2 and 3 with regard to the scope of and the jurisdiction over underwater cultural relics.”25Revision Explanations with Regards to the Exposure Draft, at http://www.sach.gov.cn/module/download/downfile.jsp?classid=0&filename=1802112038457578546.docx, 15 July 2018. (in Chinese)This seems to admit the existence of a certain gap between China’s legislation and the Convention in the determination of the scope of cultural relics. All objects submerged after 1911 and before 1918 are protected by the Convention but not necessarily by the Regulation.It seems that the 100-year-criterion under the Convention was established without strict reasoning. In contrast, the critical date of 1911 under the Regulation was determined after careful consideration. It is said that this criterion was made for the purpose of excluding foreign warships that sank in China’s waters after 1911.26Cross-Strait Forum on Laws, Policies and Practices Relating to Underwater Cultural Heritage 2018, Keelung, 20-21 June 2018.However, as far as legislative means are concerned, it is entirely possible to use a separate article to make specific arrangements for such vessels (see Subsection D of this part for details).

After accession to the Convention, China can also use the Belgian legislation as a point of reference and, accordingly, set a limit of 100 years for the definition of UCH that is found in its EEZ or on its continental shelf while leaving the time criteria open ended with regard to the UCH discovered in its territorial sea. As a matter of fact, there is no need to artificially set any time limit for the UCH that is found in the territorial waters of a State, since its cultural and archaeological value should be the foremost criterion to determine whether it is worthy of protection.Conversely, for the UCH that is found in the EEZ and on the continental shelf,which does not fall within the territory of a given State, applicable international treaties should be considered so as to avoid potential conflicts. Lastly, since under the current Regulation, the article defining the term of underwater cultural relics includes both definition and application scope, it would be recommendable that the aforesaid article be divided into two articles, with one dedicated to definition, and the other to application scope.

B. Jurisdiction

Jurisdiction of States has always been a focus during discussions on legislative amendment. Article 3 of the current Regulation stipulates:

The underwater cultural relics stipulated in Article 2(1)&(2) belong to the State (China), and the State exercises jurisdiction over them; the State shall have the right to identify the owner of the underwater cultural relics specified in Article 2(3).

As mentioned above, on the ground that China has not yet joined the Convention, the Exposure Draft contains no amendment to the content of Articles 2 and 3 concerning the jurisdiction over underwater cultural relics. So, do the current provisions on jurisdiction in the Regulation of China conflict with the Convention?

According to the UNCLOS, the rights of coastal States over their EEZ and continental shelf are limited to sovereign rights and corresponding jurisdiction over natural resources and, technically speaking, do not extend to underwater cultural heritage. The Convention designed a very complex mechanism of “Coordinating State” to address the issue of jurisdiction over UCH found in the EEZ or on the continental shelf of a State.27Art. 10(3) of the Convention reads: where there is a discovery of underwater cultural heritage or it is intended that activity shall be directed at underwater cultural heritage in a State Party’s exclusive economic zone or on its continental shelf, that State Party shall: (a) consult all other States Parties which have declared an interest under Article 9,paragraph 5, on how best to protect the underwater cultural heritage; (b) coordinate such consultations as “Coordinating State”, unless it expressly declares that it does not wish to do so, in which case the States Parties which have declared an interest under Article 9, paragraph 5, shall appoint a Coordinating State. And its Art. 10(4) states: without prejudice to the duty of all States Parties to protect underwater cultural heritage by way of all practicable measures taken in accordance with international law to prevent immediate danger to the underwater cultural heritage, including looting, the Coordinating State may take all practicable measures, and/or issue any necessary authorizations in conformity with this Convention and, if necessary prior to consultations, to prevent any immediate danger to the underwater cultural heritage, whether arising from human activities or any other cause, including looting. In taking such measures assistance may be requested from other States Parties. In accordance with Art. 10(5), the Coordinating State: (a) shall implement measures of protection which have been agreed by the consulting States, which include the Coordinating State, unless the consulting States, which include the Coordinating State,agree that another State Party shall implement those measures; (b) shall issue all necessary authorizations for such agreed measures in conformity with the Rules, unless the consulting States, which include the Coordinating State, agree that another State Party shall issue those authorizations; (c) may conduct any necessary preliminary research on the underwater cultural heritage and shall issue all necessary authorizations therefore, and shall promptly inform the Director-General of the results, who in turn will make such information promptly available to other States Parties. Art. 10(6) provides: in coordinating consultations, taking measures, conducting preliminary research and/or issuing authorizations pursuant to this Article, the Coordinating State shall act on behalf of the States Parties as a whole and not in its own interest. Any such action shall not in itself constitute a basis for the assertion of any preferential or jurisdictional rights not provided for in international law, including the United Nations Convention on the Law of the Sea.On the one hand, the Convention seems reluctant to admit the extension of the jurisdiction of coastal States. On the other hand, it has to rely on coastal States for the management of UCH lying in such sea areas. This has resulted in significant differences in the provisions of different States Parties with regard to their jurisdiction over UCH discovered in their EEZ or on their continental shelf. Belgium, which has a large number of UCH of foreign origin in its waters, has therefore adopted the approach of expanding its jurisdiction while also acknowledging other States’ claims of rights as States of origin. This approach makes international cooperation possible for the protection of UCH in the waters of Belgium.

On the basis of different legal principles, China exercises jurisdiction over the underwater cultural relics of Chinese or unidentifiable origin that are found in its EEZ or on its continental shelf. In the first case, jurisdiction is legitimated by the right attached to being the State of origin. In the second, jurisdiction is legitimated on the ground that, as a coastal State, China is in the best position to provide maximum protection to these relics. As for the relics of Chinese origin that are found in the EEZ or on the continental shelf of other States, China’s claim of right to identify their owners stems from its right as the State of origin.

However, to date China has never claimed any rights over any underwater cultural relics of Chinese origin that have been found in other States’ waters. This has been the case in that the Regulation’s provisions for such an operation are hardly implementable. To overcome this issue, legislators may consider extending China’s jurisdiction to all the UCH found in its EEZ or on its continental shelf but also, following the Belgian case, reserve for the State of origin the right to provide consultation. On the basis of the principle of reciprocity, legislators could also reserve the same right for China with respect to the UCH of Chinese origin that is discovered in the EEZ or continental shelf of other States. China has a long history of prosperous international maritime trade, thus it cannot be excluded that there might be a certain amount of UCH of foreign origin lying in China’s EEZ or on its continental shelf. Likewise, it is very likely that some more pieces of UCH of Chinese origin are located in the EEZ or continental shelf of other States. This double reservation, if adopted, would also serve the prospective needs of UCH protection under the “Belt and Road Initiative” of China.

C. Ownership

There is no specific provision on the issue of UCH ownership in the Convention. To put it differently, the Convention may intentionally leave it blank to guarantee States Parties’ right to amend their national laws according to their interpretation of the Convention. Following accession to the Convention, Belgium passed a law to claim that the UCH found in its territorial sea, EEZ or on its continental shelf belong to Belgium, demonstrating that this provision does not violate its obligations under the Convention.

China’s current legislation merely provides that it claims ownership over the underwater cultural relics that are found in its territorial waters, as well as the relics of Chinese or unidentifiable origin which are located in its EEZ or on its continental shelf. Currently, the Exposure Draft has made no amendment to this provision, which does not conflict with the Convention and may therefore be retained even after accession to the Convention. However, the portion of Article 3 of the Regulation that concerns the right to identify the owner of the cultural relics that are of Chinese origin but located in the EEZ or on the continental shelf of other States needs to be further clarified. As mentioned above, China has never claimed ownership over the relics located in other States’ waters, thus this provision has never been implemented. In practice, this right to identify the owner differs from jurisdiction and ownership. This right is, in fact, closer to those enjoyable by the State of origin as defined in Articles 9 and 10 of the Convention.28Art. 9(5) of the Convention: any State Party may declare to the State Party in whose exclusive economic zone or on whose continental shelf the underwater cultural heritage is located its interest in being consulted on how to ensure the effective protection of that underwater cultural heritage. Such declaration shall be based on a verifiable link, especially a cultural, historical or archaeological link, to the underwater cultural heritage concerned.Art. 10(3) states that where there is a discovery of underwater cultural heritage or it is intended that activity shall be directed at underwater cultural heritage in a State Party’s exclusive economic zone or on its continental shelf, that State Party shall: (a) consult all other States Parties which have declared an interest under Article 9, paragraph 5, on how best to protect the underwater cultural heritage; (b) coordinate such consultations as“Coordinating State”, unless it expressly declares that it does not wish to do so, in which case the States Parties which have declared an interest under Article 9, paragraph 5, shall appoint a Coordinating State.Unlike natural resources, UCH comprises artificially produced objects. In light of this distinction,the rights of the States of origin, as creators of UCH, are explicitly recognized in the Convention. However, as far as the Convention Articles 9 and 10 are concerned,the rights of States of origin are clearly exercisable by the States Parties, whereas their application for non-States Parties is not set in stone. After acceding to the Convention, China can further clarify its relevant rights by directly referring to Articles 9 and 10 of the Convention. Before that, however, the exercise of such rights may depend on the principle of reciprocity. Therefore, linking back the above discussion on jurisdiction, China could refer to Belgium’s legislation to claim ownership over all the UCH that is found in its EEZ or on its continental shelf, with the exception of State vessels and aircraft of foreign origin. On this basis, China can accommodate the rights of other States, as identifiable countries of origin, to the UCH that is found in the EEZ or continental shelf of China (such as the right to participate in protection and research), in order to guarantee China’s corresponding rights to the UCH that is found in the EEZ or on the continental shelf of other States.

D. Warships and Other State Vessels

A considerable number of foreign warships sank in the waters of Belgium in the First and Second World Wars and have been under water since then. As a result, Belgian domestic legislation contains detailed provisions for sunken warships and other State vessels that meet the definition of UCH. However, China has adopted a rather vague attitude towards this issue and, accordingly, has not set out any pertinent provision in its domestic laws.29LIN Zhen, Legal Status of Sunken Warships That Meet the Definition of Underwater Cultural Heritage in Territorial Waters: Legislations of China and ASEAN States, China Oceans Law Review, No. 2, 2018.This must change, given that a considerable number of foreign warships that meet the definition of UCH under the Convention are also lying in the waters of China. The legal status of these warships should be clearly defined in the pertinent Chinese legislation so as to spare administrative headache for all those whose work is in connection with UCH.

According to the existing legislation of China, China claims rights over: (a)all the cultural relics that are found in its internal waters and territorial sea; (b)the cultural relics of Chinese or unidentifiable origin that are located in the EEZ or on the continental shelf of China, and (c) the cultural relics of Chinese origin that are located in the sea areas of any foreign State other than its internal and territorial waters, or in the high seas. On the former two, China claims ownership and jurisdiction. Notably, China does not claim rights over sunken foreign warships that are found in its EEZ or on its continental shelf, which is consistent with the provisions of the Convention. Conversely, China claims ownership over the sunken warships and other State vessels that meet the definition of underwater cultural relics and are found in its territorial waters, regardless of their flag States. This principle has never been applied in practice since, to date, China has never carried out any archaeological excavation directed at a foreign State vessel.

Similarly, the Exposure Draft has not made any provision for foreign State vessels or aircraft. As discussed above, it is not a tenable solution to exclude foreign warships from the scope of underwater cultural relics by using the year 1911 as a time criterion to define underwater cultural relics. In the perspective of the author, to create an article specifying the legal status of sunken warships and other State vessels that meet the definition of underwater cultural relics would otherwise be feasible, which will provide practical guidance to those whose work is in connection with UCH. Moreover, the Convention does provide a viable solution:coastal States and flag States should cooperate in order to ensure the adequate protection of this particular category of UCH. China may also refer to Belgium’s domestic laws, which guarantee the protection of such vessels by means of consultation with the flag States while reserving the right for protective measures to be unilaterally taken in case of immediate danger.

E. International Cooperation

With regard to international cooperation, Belgium directly incorporated the relevant provisions of the Convention into its legislation. Considering the UCH protection efforts undergoing currently in China, international cooperation is inevitable. And such cooperation seems necessary and welcome to the protection of both the UCH of foreign origin that is located in China’s EEZ or on its continental shelf and the UCH of Chinese origin that is located in other States’ EEZ or continental shelf.

So how should China legislate to ensure the protection of the cultural heritage mentioned above through international cooperation? Ever since 1989 when the Regulation was enacted, no underwater archaeological survey or excavation in cooperation with any other country has ever been conducted in China’s waters.Nonetheless, the revisions reflected in the Exposure Draft, essentially, would facilitate international cooperation, as Article 10(3) stipulates:

Foreign States, international organizations and foreign legal persons or natural persons, if they intend to conduct exploration or excavation activities in the waters under Chinese jurisdiction, shall do so in cooperation with the Chinese side, and shall submit their application therefor to the competent authorities under the State Council for approval.

Compared to the current Regulation,30Article 7(2) of the Regulation: foreign States, international organizations and foreign legal persons or natural persons that are to conduct archaeological exploration or excavation activities in the waters under Chinese jurisdiction shall do so in cooperation with the Chinese side, and shall submit their application therefor to the National Cultural Heritage Administration, which shall further submit it to the State Council of the People’s Republic of China for special approval.the abovementioned application process has been simplified. Specifically, a special permission by the State Council is no longer required. These changes reflect the willingness of China’s organizations or entities in charge of UCH protection to cooperate with their counterparts in other States.

However, further arrangements are needed to carry out international cooperation on a practical level. In this regard, it must be noted that the current provisions of the Regulation are only concerned with the protection of the underwater cultural relics found in the waters of China. No provisions have been made with regard to the protection of relics of Chinese origin that are located in the waters of other States. Since China has not yet acceded to the Convention, it cannot directly invoke the provisions of the Convention on international cooperation.Nevertheless, the Exposure Draft may add a separate article to support the rights of States of origin, including China’s right to identify the owner of the UCH of Chinese origin that is located in the EEZ or on the continental shelf of other States;in this way, international cooperation would be possible based on the principle of reciprocity.

III. Conclusion

While China is considering acceding to the Convention, the amendment of the Regulation has been underway with the intent to make it consistent with the fundamental principles of the Convention. In this regard, Belgium represents a very good example to follow, since Belgium is one of the few States to have enacted new laws in line with the Convention after accession. By conducting a thorough study and analysis of Belgium’s newly-adopted law on UCH protection, it was found that it is not an exact duplicate of the Convention. Rather, it presents several ad hoc modifications. On the one hand, the basic principles of the Convention, such as the principles of preservation in situ, prohibition of commercial exploitation and encouragement of international cooperation, are strictly adhered to. On the other hand, Belgium’s provisions on the matters of jurisdiction and ownership appear to be more focused on the preservation of its national interests, so as to provide maximum protection to UCH.

The Exposure Draft has made some adjustments to best deal with the newly emerging challenges and strengthen the feasibility of the Regulation. These changes appear to be respectful of the general principles of the Convention and would promote the protection of UCH in China. However, there is still room for improvement, especially in the provisions concerning the definition of UCH,jurisdiction, State vessels and aircraft meeting the definition of “UCH” and, lastly,international cooperation.

In the Exposure Draft, Articles 2 and 3 have remained the same as in the Regulation. They may possibly be amended in the future. In the current version of the Regulation, both the provision concerning the application scope and the one regarding the definition of the term “underwater cultural relics” are placed under Article 2. The study here conducted recommends for these provisions to be divided into two separate articles. As to Article 2, it is not recommended setting a time limit for all the underwater cultural relics that are located in China’s territorial waters. However, it is advisable to apply the Convention’s criterion of 100 years to the cultural relics that are situated in China’s EEZ or on its continental shelf.Furthermore, with reference to Belgium’s legislation, China may decide to extend its jurisdiction and ownership to cover all the UCH that is found in its EEZ or on its continental shelf (excluding State vessels and aircraft), while also reserving the rights of States of origin to provide consultation and participate in relevant discussions, therefore to create possibility for future cooperation. In line with the principle of reciprocity, China can claim right to the same with regards to UCH of Chinese origin that is located in the EEZ or on the continental shelf of other States. Lastly, the Exposure Draft should consider adding one more article that clearly defines the legal status of State vessels and aircraft of foreign origin that meet the definition of “underwater cultural relics” under the Regulation. Based on the lessons drawn from Belgium, the new article should ensure that China consults with the flag States over the effective protection of such vessels and aircraft,cooperates with them accordingly but also reserves the right to act unilaterally in cases of emergency.