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§ 1.4. Classification of the factors representing threat for objects of an underwater cultural heritage

In the Information complete set of UNESCO «the Convention of UNESCO on protection of an underwater cultural heritage of 2001» is said, that the threat which has hung over an underwater cultural heritage, increases.

«Fast development of means for carrying out of researches opens access to a sea-bottom more and more, and its operation and trade in the subjects found by the sunk ships and flooded objects, becomes the widespread and rather favourable activity. Sea archaeological monuments are exposed to plunder, and in many cases it leads to loss and even destruction of valuable scientific and cultural materials» 67.

One of the most serious factors aggrieving PKN, the increasing availability of objects thanks to technical achievements is. In 1942-1943 Jacque-willows Cousteau and Emil Ganjan have invented «the automatic respiratory device for the underwater researches, working on compressed air» 68. It has given the chance to skin-divers to fall to the remains of underwater objects located on depth to 300 m.

Modern devices allow to reach still the big depths. As

66 is more detailed - Appendix E of the given dissertational research see.

67 Information complete set of UNESCO «the Convention of UNESCO on protection of an underwater cultural heritage of 2001»//UNESCO. – 2006. – with. 1.

68 Cousteaus, ZH., F.Djuma. In the silence world / Abbr. the lane with English – M: Young guards, 1957. – With. 5.

Marks ЮНЕСКО69, in 1989 the Japanese submarine «Sinkaj 6500» has fallen on depth of 6526 m. Further this record has been beaten: the piloted Japanese bathyscaphe "Kajko" in 1995 has reached record depth of 10 911 m. the Aqualung, tiny submarines, eholokator, the hydrolocator, air photography and other technical achievements are widely applied in research and search of the sunk ships and settlements. Underwater works start to be led and robots-arheologami70. However such availability of the big depths leads to plunder of objects PKN and drawing of the irreparable damage by it.

Marauding and vandalism are one of the most destructive factors of  destruction of objects PKN. According to UNESCO in the beginning of 1974 all known sunk vessels at coast of Turkey have been already plundered. From 600 ancient vessels which have sunk at coast of France, untouched remained only 5%71. For last thirty years more than 160 remains of large historical vessels, including "Titanic", have undergone to plunder therefore it has been stolen and sold more than 500 000 artefacts. Thus cases of vessels have appeared completely destroyed.

According to James Nafzigera, the situation with participation of "Titanic" underlines sharp necessity for stabler legal regime for protection of ship-wrecks, their cargoes and other aspects underwater cultural наследия72.

One more negative factor is «souvenir gathering», which John Broduoter allocates in the separate factor and connects it with desire of the skin-diver with itself an underwater artefact to take simple for memory about remarkable погружении73.

69 See: the Information complete set «the Convention of UNESCO on protection of an underwater cultural heritage of 2001»//UNESCO. – 2006. – with. 2.

70 Kondratov, A.M. Atlantis search on a shelf. – L: gidrometeoizdat, 1988. – With. 3.

71 See: the Information complete set «the Convention of UNESCO on protection of an underwater cultural heritage of 2001»//UNESCO. – 2006. – with. 2 – 3.

72 See: Nafziger, James A.R. Historic Salvage Law Revisited//Ocean Development and International Law. – 2000. – Vol. 31. – Issue 1–2. – THE RIVER 81 – 96.

73 See: Broadwater, John D. Protecting Our Underwater Cultural Heritage: International, National and State//National Marine Sanctury Program. National Oceanic and Atmospheric Administration, October 2007. – P. 4.

Divers-foreigners are engaged in quite often souvenir gathering, in particular in Croatia «the basic infringers of the legislation on the sea are not local population, and tourists» 74.

One more negative factor is growing commercial operation PKN which includes sale, acquisition or barter of objects. Dispersal of artefacts is closely connected with it as a result of moving of a find from a place of detection for the purpose of sale, resale or illegal export abroad. As an example the history with the bronze Ancient Greek sculpture which has been found out by two Italian fishermen in 1964 In Italy at coast Fano from a bottom of Adriatic sea can serve the Greek bronze statue of an epoch ellinizma («the Athlete from Fano») has been lifted. Among possible authors name most Лисиппа75. According to Lindel prott and P.Dzh. O'Kif before to be sold in a museum, the find has replaced several owners and has crossed borders of four states: at first it has come into the hands of the seller of antiques, then has been bought by the South American collector who has sold to its English firm. Then the statue has got to the German dealer works of art which has restored it for the purpose of resale, and in 1977 the sculpture was got by Gett's museum in California for 5 million dollars. Thus, the masterpiece of Ancient Greek art has been lost for Греции76.

Fishing craft and tralenie also put the irreparable damage to an underwater cultural heritage. For example, each square metre of a sea-bottom of the Italian coasts of Northern Adriactic Sea was protralen, at least, three times. On trope Sary Dromgul,

«Influence of a fishing craft on ship-wrecks is similar to agriculture influence on the ground areas with that difference that is not present any

74 Hobotnica 2010. Najvise kazni platili Talijani//Slobodna Dalmacija, 16.08.10. [The Electronic resource]//URL:

http://www.slobodnadalmacija.hr%C5%A0ibenik/tabid/74/articleType/ArticleView/articleId/112702/Default.aspx. – reference Date: 21.04.2014.

75 See: the Short chronicle of underwater archeology of the XX-th century. [An electronic resource]. – URL: http://www.e - reading.biz/chapter.php/1022256/113/Okorokov_-_ Sokrovischa_na_dne.html. – reference Date: 21.04.2014.

76 See: Prott, Lyndel, P. J. O \'Keefe. International legal protection of the underwater cultural heritage//Revue belge de droit international. 1978-1979. – Issue № 1. – THE RIVER 86.

Legal regulation for the first »77.

Environment influence also is one more factor causing damage, destruction or  destruction of objects. PKN it is endangered as a result of earthquakes, storm, fluctuations of temperature of water and air, changing currents, erosion of coast, climate changes. More and more frequent changes in a direction and force of a wind lead to change of sea currents and conditions of occurrence of ground deposits. The last kept human settlements under water within millenia, now they collapse, as a result objects of a heritage are bared, oxidised, washed away and move waves and течениями78.

Besides, last century mankind influence on environment has amplified, that negatively affects and a condition of objects of a cultural heritage, including underwater. This process is connected with uncontrollable development of a civilisation that has led to an overpopulation and problems in ecology.

Negative influence of the person on environment marks V.M.Dikusar: «more and more frequent there are phenomena of anthropogenous character, such as earthquakes, the hurricanes similar to that took place for the last few years to the USA, a tsunami, such as in South East Asia, carried away hundred thousand human lives, earthquake to Indonesia, volcanic eruptions, flooding and droughts» 79. All it negatively affects safety of objects of the cultural heritage located not only on a land, but also under water.

Works on creation of harbours, building of dams and other infrastructural constructions can change a direction of undercurrents and lead to sea-bottom erosion. Thus objects PKN, which

77 Dromgoole, S. Revisiting the relationship between marine scientific research and the underwater cultural heritage//The International Journal of Marine and Coastal Law. – 2010. – № 25 (1). – P. 43.

78 Boel, Niels. Op. cit. P. 7.

79 Dikusar, V.M.Mezhdunarodno-pravovye of a problem of preservation of the environment: avtoref. dis. … d - ra jurid. Sciences. – M, 2007. – With. 3.

Earlier were under a layer of earth, are bared, that leads to their gradual destruction. Many authors mark danger to objects PKN of development of the sea spaces connected with realisation of large-scale projects in economic сфере80.

It is possible to carry to negative factors under abnormal condition-deliberate удаление81 fragments of object PKN as a result of failures, casual damage by an anchor or damage of the object caused by bad buoyancy of a vessel or inept management by last, and also other similar reasons.

Also destroying influence on objects PKN is rendered by natural physical, chemical and biological factors. As a rule, the object which lays at the bottom of the sea without access of solar beams and is covered by several layers of ground adjournment, reaches stable anaerobnogo conditions. It leads to delay of processes of its material destruction. That is why objects which were long time in salty water and have been lifted from a bottom, endangered prompt destruction if to contact to their air not to subject to special processing and preservation. Sea salt which starts to crystallise in the course of object drying becomes the additional factor of destruction. Therefore, according to experts of UNESCO, extraction of subjects without appropriate processing simply becomes the certificate вандализма82.

Insufficient financing of protection and rescue of objects PKN concerns serious negative factors also. At average cost of rescue of the historical ship 30000$ in day, besides expenses of time, means and experience, to the majority of official bodies it not on

80 See, for example: CHudinov, A.I.feature of international legal and national protection of objects of underwater archeology at carrying out of community works//the Year-book of a marine law 2008. The anniversary edition to the 40 anniversary of Association of a marine law. – M: Linkor, – 2009. – With. 463 – 467.

81 Under abnormal condition-deliberate removal of fragments of object of an underwater cultural heritage to be spent for the purpose of liquidation of consequences of failure of a vessel or other vehicles, the localisation which have occurred in a place of the given object.

82 Information complete set «the Convention of UNESCO on protection of an underwater cultural heritage of 2001»//UNESCO. – 2006. – with. 2.

карману83.

There is also a number of the serious problems connected with insufficient legal base. In detail on their analysis we will stop in following heads of the given work.

Before acceptance of the Convention of 2001 international legal certificates did not provide the appropriate decision of all spectrum of questions of protection PKN. But also now, when the Convention of 2001 is accepted and ratified by a number of the countries, there are serious problems of protection of the objects, caused the national legislation.

First, in a number of the states protection of an underwater cultural heritage by the national legislation is not provided.

Secondly, according to UNESCO, in a number of the countries the legislation provides rigid requirements to protection of an underwater cultural heritage which can complicate not only access of divers to object, but also the admission of archeologists for the purpose of its research and консервации84.

Thirdly, there are distinctions in the maintenance and a range of application of national laws in the given area. Ulrike Koshtjal notices, that «while a heritage which is on a land, differs protection strengthening, plunder of our underwater heritage grows with menacing speed, and the national legislation remains rather non-uniform» 85.

Fourthly, one of serious problems of protection of objects PKN

The legal status of the found property is. The cultural values which have been found out in waters within frontiers, belong sometimes to the state, and sometimes to private persons. The national legislation of the majority of the countries keeps the property rights to found objects PKN for found, and some countries, for example, Greece and Turkey, provide, that the objects which have been found out in inland waters,

83 See: Bowman, Lisa J. Oceans apart over sunken ships: is the underwater cultural Heritage Convention really wrecking admiralty law?//Osgoode Hall Law Journal. – Spring 2004. – Vol. 42. – THE RIVER 38.

84 See: item 7 of the Convention on protection of the world cultural and natural heritage (Paris, on November, 16th, 1972)//UNESCO Normative acts on cultural heritage protection. – M: JUni the Print, 2002.

85 Koschtial, Ulrike. Beneath the water, Heritage in search of international protection//The UNESCO Courier. – 2009. – № 1. – THE RIVER 14.

Belong to the state. Thus the legislation of these countries provides essential awards for finds.

Fifthly, there are serious disagreements and different interpretations in acts of federative states and their members. This problem on an example of the USA lifts in works Sara Дромгул86.

Sixthly, terminological inconsistency between the national legislation and international legal certificates on protection of an underwater cultural heritage takes place.

The above-stated allows to draw a conclusion that there is a set of factors, including the legal character, representing threat for objects PKN.

The typical Data card of UNESCO for the register of an underwater cultural heritage of 2013 subdivides threats for PKN on:

- The dangerous activity aggrieving to object;

- The natural factors aggrieving to object;

- Human activity which can casually have fatal influence on object.

Let's consider the ordering offered by the Data card.

The dangerous activity aggrieving to object: marauding; cargo extraction; moving; intended destruction; environment influence; another.

The natural factors aggrieving to object: erosion; environment influence; oxidation influence; seismic activity; waves; others.

Human activity which can casually have fatal influence on object: extraction of mineral raw materials; pollution; tralenie;

86 See: Dromgoole, S., ed. The Protection of the Underwater Cultural Heritage: National Perspectives in Light of the UNESCO Convention 2001. – Leiden, Boston: Martinus Nijhoff Publishers. – 2006. – THE RIVER 313–350; Dromgoole, S. Underwater Cultural Heritage and International Law. Part of Cambridge Studies in International and Comparative Law//Cambridge University Press. – 2013. – 436 p.

Fishery; bottom deepening; civil work; change of a direction of currents; a construction of dams; другая87.

It is necessary to notice, that the given list of negative factors is not full and contains a number of discrepancies.

First, the factor is included in the register «the Dangerous activity aggrieving to object» «environment influence» which is, actually, by the natural factor (and it is absolutely fair then is listed among natural factors in section «the Natural factors aggrieving to object»). That had in this case in a kind composers of the Data card not clearly as "environment" cannot be engaged in "dangerous activity».

Secondly, the Data card contains literary words and word-combinations that is inadmissible for legal documents, namely:

1) «human activity» (a synonym – "anthropogenous");

2) «fatal influence» (synonyms – «negative influence»,

«Negative influence»).

Thirdly, in section «the Dangerous activity aggrieving to object» such factors, as «bottom deepening», «a construction of dams» which concern civil work are listed. In our opinion, it would be more logical to specify the given factors in the column "Civil work".

Thus, the Typical Data card of UNESCO for the register of an underwater cultural heritage of 2013 demands changes and additions.

The analysis of the foreign and domestic scientific literature has shown, that now there is no standard classification of the negative factors representing threat for objects PKN. It has allowed us to offer multifactorial classification, including by legal grounds which is presented in the Appendix.

Conclusions

87 See: Operative supervising principles for the Convention on protection of underwater cultural heritage CLT/CEH/CHP/2013/OG/H/1//UNESCO. – August 2013. – With. 31.

1. For today concept definition «an underwater cultural heritage» item 1 of the Convention of 2001 has essential lacks and is the most criticised in foreign and domestic scientific circles article of the given contract:

1) item 1 carries to PKN all traces of human existence. Proceeding from sense of the given formulation and age of finds (100 years and more) under objects PKN can fall the subjects which are not actually a cultural heritage;

2) item 1 formulation includes in objects PKN only vehicles and their parts, however does not consider other scientific and technical objects which do not concern vehicles, but can represent cultural, historical, archaeological or other value;

3) definition does not give the answer to a question, what objects PKN should be protected first of all.

2. From the maintenance of legal definition PKN existing nowadays does not follow, that objects of a cultural heritage and objects of a natural heritage which were on a land, but in a consequence have appeared owing to various circumstances under water, should be considered as objects of an underwater cultural heritage. Nevertheless change of a site does not reduce historical, cultural and other value of the given objects.

3. Comparative research of concepts «paleontologic object» and

«Object of an underwater cultural heritage» has allowed to prove a conclusion that the paleontologic objects found out under water cannot be considered as objects PKN in a context of item 1 of the Convention of 2001 In spite of the fact that the given objects correspond to time criterion and criterion of localisation PKN (100 years and more stay under water), and also have the archaeological and historical importance, they do not possess the main criterion of item 1 of the Convention of 2001, namely: are not traces of human existence as represent the rests or

Prints of animals and plants.

4. The comparative analysis of concepts "cultural heritage", «a natural heritage» and «an underwater cultural heritage» allows to draw a conclusion that the underwater cultural heritage is the isolated part of the World cultural and natural heritage of mankind. Similarity of concepts «the World cultural and natural heritage» and «an underwater cultural heritage» is shown in the general defining criteria, such as: the importance of objects (historical and archaeological); an origin connected with activity of the person, places or traces of its stay; authenticity (authenticity).

Differences of these concepts are degree of scope of objects and localisation, and also impossibility of application of time criterion to objects of the World cultural and natural heritage. Besides, various specificity of institutes «World cultural and natural heritage» and «an underwater cultural heritage» forms different approaches to protection, preservation and management of objects.

5. The analysis of the foreign and domestic scientific literature has shown, that the existing variety of objects PKN complicates their research and international legal protection. It demands ordering of objects which would allow not only it is better to investigate and organise them the account, but also in a complex to approach to working out of rules of law of protection. However now neither in foreign, nor in the domestic scientific literature of the standard classification of objects PKN does not exist.

6. The analysis of the foreign and domestic scientific literature has shown, that now there is no standard classification of the negative factors representing threat for objects PKN. The conclusion that the greatest threat represents the anthropogenous factor which can be expressed in not enough effective international legal protection of objects is drawn.

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A source: Anisimov IGOR OLEGOVICH. INTERNATIONAL LEGAL PROTECTION of OBJECTS of the UNDERWATER CULTURAL HERITAGE. The dissertation on competition of a scientific degree of the master of laws. Moscow,. 2014

More on topic § 1.4. Classification of the factors representing threat for objects of an underwater cultural heritage:

  1. § 1.3. Kinds and classification of objects of an underwater cultural heritage
  2. Chapter 1. Concept and classification of objects of an underwater cultural heritage of international law
  3. § 1.2. A parity of institutes «underwater cultural heritage», "cultural heritage" and «a natural heritage»
  4. Chapter 2. International legal protection of objects of an underwater cultural heritage
  5. Chapter 3. A condition and prospects of reduction of the organisation of protection of objects of an underwater cultural heritage in the Russian Federation in conformity with the international standards
  6. § 1.1. Term use «an underwater cultural heritage» in international law and the Russian legislation
  7. § 2.2. The purposes and features of positions of the Convention on protection of an underwater cultural heritage of 2001
  8. § 2.3. Problems of realisation of the Convention on protection of an underwater cultural heritage of 2001
  9. § 2.4. The mechanism of the resolution of disputes, connected with an underwater cultural heritage
  10. § 3.2. An urgency of a problem of protection of an underwater cultural heritage for the Russian Federation
  11. Anisimov IGOR OLEGOVICH. INTERNATIONAL LEGAL PROTECTION of OBJECTS of the UNDERWATER CULTURAL HERITAGE. The dissertation on competition of a scientific degree of the master of laws. Moscow,, 2014 2014
  12. § 2.5. A substantiation of necessity of acceptance of additions and changes to the Convention on protection of an underwater cultural heritage of 2001
  13. § 3.3. Expediency of ratification by the Russian Federation Conventions on protection of an underwater cultural heritage of 2001
  14. § 3.1. Value of experience of the foreign states for activity of the Russian Federation in the field of a right protection of an underwater cultural heritage
  15. 3.2 Features of privatisation of objects of a cultural heritage
  16. Chapter 3. Features of privatisation of the enterprises and objects of a cultural heritage
  17. the convention on protection of the world cultural and natural heritage of 1972