<<
>>

§ 1.2. A parity of institutes «underwater cultural heritage», "cultural heritage" and «a natural heritage»

Protection of the world cultural heritage is closely connected with activity of UNESCO and, first of all, with acceptance of the Convention on protection

47 For example, Sacred Senot in Mexico, Chichen-Itsa.

The world cultural and natural heritage of 1972 (further – the Convention of 1972) 48.

The Main objective of the given international treaty was attraction of the international tools for revealing, protection and comprehensive support of outstanding monuments of world culture and unique natural objects. In 1976 the Committee and Fund of the world heritage have been organised, and now the list of the World heritage includes 1007 objects, among which 779 cultural, 197 natural and 31 mixed объект49.

The term "cultural heritage" has been formulated for the first time in the Convention on protection of the world cultural and natural heritage of 1972 of Item 1 of the above-stated international treaty under "cultural heritage" defines:

«- Monuments: products of architecture, a monumental sculpture and painting, elements or structures of archaeological character, an inscription, a cave and group of elements which have outstanding universal value from the point of view of history, arts or sciences;

- Ensembles: groups of the isolated or incorporated structures, the architecture, unity or communication with which landscape represent outstanding universal value from the point of view of history, arts or sciences;

- Noteworthy places: products of the person or joint creations of the person and the nature, and also a zone, including the archaeological noteworthy places representing outstanding universal value from the point of view of history, an aesthetics, etnologii or anthropology ».

The term «a natural heritage» is formulated in item 2 of the Convention of 1972 and means:

«- The natural monuments created by physical and biological formations or groups of such formations, having outstanding universal value from the point of view of an aesthetics or a science;

48 Presidium of the Supreme body of the USSR ratified the Convention of 1972 in 1988

49 According to UNESCO for September, 2014

- Geological both physiographic formations and strictly limited zones representing an area of kinds exposed to threat of animals and plants, having outstanding universal value from the point of view of a science or preservation;

- Natural noteworthy places or strictly limited natural zones having outstanding universal value from the point of view of a science, preservation or natural beauty ».

In spite of the fact that in the given definitions the term «the underwater cultural heritage» is not mentioned, following logic it is possible to approve, that monuments, ensembles and the noteworthy places being under water and having outstanding universal value from the point of view of history, art or a science, too concern a cultural heritage.

According to definition of item 1 of the Convention of 2001 the underwater cultural heritage is understood as all traces of human existence having cultural, historical or archaeological character which partially or completely, periodically or constantly are under water throughout not less than 100 years.

We have considered necessary to carry out the comparative analysis of legal categories "cultural heritage", «a natural heritage» and «an underwater cultural heritage» by the criteria used in formulations of given concepts: value (importance), degree of scope of objects (selectivity), localisation (geographical criterion), an origin, integrity, authenticity (authenticity) and time criterion.

1. Criterion of the importance. According to the convention of 1972, objects of a cultural heritage should have scientific (archaeological, anthropological, historical, aesthetic, ethnographic) and art value. Objects PKN, according to item 1 of the Convention of 2001, should have «cultural, historical or archaeological character». Thus, the objects of a cultural heritage which are on

To land, and objects PKN are comparable by archaeological and historical criteria of the importance.

2. Criterion of selectivity. According to the convention of 1972 in a case with the World heritage it is a question of protection not everything, and only «outstanding universal» cultural and natural values. On the contrary, in the definition formulation «an underwater cultural heritage» item 1 of the Convention of 2001 is a question of protection of "all traces» the human existence, being under water more than 100 years. From this follows, that categories "cultural heritage" and «a natural heritage» are more selective in relation to the objects unlike a category

«An underwater cultural heritage».

3. Geographical criterion. Objects of the world cultural and natural heritage are on a land, while objects PKN are localised («partially or completely, periodically or constantly») under water. In it the basic difference between two institutes of the right – «the World cultural and natural heritage» and «an underwater cultural heritage» which forms also different approaches to protection, to preservation and management объектами50 consists.

4. Criterion of an origin. Comparing the term formulation

"Cultural heritage" (item 1 of the Convention of 1972) and the term formulation

«An underwater cultural heritage» (item 1 of the Convention of 2001), it is possible to draw a conclusion, that objects of a cultural heritage just as objects PKN have the anthropogenous nature: they are directly connected with activity of the person or places of its stay that makes related these categories of the right.

5. Criterion of integrity. According to the convention of 1972 objects of a cultural and natural heritage should satisfy to criterion of integrity in the form of monuments, ensembles or well remained noteworthy places. For underwater objects it is enough to represent only «a trace of existence of the person» that it was

50 the complex of actions for preservation, use, popularisation and protection of such objects, and also carrying out of various examinations is meant management of cultural objects.

It is recognised by object PKN, thus, for them the criterion of integrity, unlike objects of the world cultural and natural heritage, is not applied.

6. Time criterion. With reference to objects of a cultural heritage the time criterion is not used, as there is a wide scatter at the age of objects. Also the time criterion is not applied to objects of a natural heritage which owing to the origin can total age millions years.

On the contrary, for concept «an underwater cultural heritage» the given criterion is one of defining. It characterises time of stay of object under water after flooding: that the object has been ranked as objects PKN, it should be under water more than 100 years. Thus the age of objects PKN can be various, but, proceeding from sense of definition, not less than 100 years.

Thus, one of basic distinctions in the approach to categories «World cultural and natural a heritage» and «an underwater cultural heritage», following from localisation of objects (a finding on a land or under water), consists in impossibility of application of time criterion to objects of the world cultural and natural heritage, and presence of the given criterion at objects PKN.

Here it is necessary to underline, that the time criterion established by norm of item 1 of the Convention of 2001, excludes from objects PKN valuable artefacts, including objects of the Second World War. In this connection, it is offered to review time criterion for objects PKN towards reduction of time of stay of object under water (from 100 years till 50 years), and also otnosti to objects PKN objects of the cultural heritage which was settling down on a land which owing to different circumstances have appeared under water during the newest time.

7. Criterion of authenticity. In spite of the fact that authenticity is not mentioned neither in definition of item 1 of the Convention of 1972, nor in Convention item 1

2001, it is necessary criterion for object reckoning to the world cultural or natural heritage. It in an equal measure concerns and objects PKN.

Thus, rather-legal analysis of concepts «World cultural and natural heritage» and «an underwater cultural heritage» has shown, that the given categories have the general defining criteria, such as:

- The importance of objects (historical and archaeological);

- The origin connected with activity of the person, places or traces of its stay;

- Authenticity (authenticity).

The same conclusion follows from the analysis of cultural criteria for objects of the World heritage. Till 2005 objects of the World heritage were selected on the basis of 6 cultural and 4 natural criteria. In addition to the Convention of 1972 on February, 2nd, 2005 UNESCO has accepted the Management on performance of the Convention on protection of the world heritage, established the uniform list from ten criteria which taking into account development of the concept of the World heritage is regularly reviewed by Committee of the World heritage. Now, that the object became object of the World heritage, he should answer one of 10 criteria:

I. to be product of the creative genius of the person;

ii. To reflect importance of interrelation of the human values existing during the certain period of time or within certain cultural area, and development of architecture or technology, monumental art, town-planning or landscape planning;

iii. To be unique or, at least, the exclusive certificate of cultural tradition or the civilisation which existing or have disappeared;

iv. To represent the outstanding sample of type of a structure,

Architectural or technological ensemble or the landscape illustrating the important stage (stages) in history of mankind;

v. To represent the outstanding sample of traditional human settlement, land tenure or use of the sea, characteristic for this or that culture (or cultures), interactions between the person and an environment, in particular, if there is a danger of destruction under the influence of irreversible changes;

vi. To be directly either significantly connected with events or traditions, ideas or beliefs, literary works and the arts, representing outstanding world property (according to Committee of the World heritage, the given criterion it is preferable for using in a combination to other criteria);

vii. To include the unique natural phenomena or territories of exclusive natural beauty and aesthetic value;

viii. To represent outstanding examples of reflexion of the basic stages of history of the Earth, including traces of an ancient life, significant geological processes which continue to occur in development of forms of the terrestrial surface, essential geomorphological or fiziko - geographical features of a relief;

ix. To represent outstanding examples important, proceeding and now the ecological and biological processes occurring in evolution and development land, fresh-water, coastal both sea ekosistem and communities of plants and animals;

x. To include natural areas of the greatest importance and value from the point of view of preservation in them of a biological variety, including the areas of vanishing species representing outstanding world property from the point of view of a science and preservation of the nature »51.

The analysis of the cultural criteria of objects of the World heritage set forth above shows, that they can be applicable and for

51 Management on performance of the Convention on protection of the world heritage. WHC.99/2. С.74//the cultural heritage Center. – UNESCO. – February 2005. – With. 19.

Objects PKN. In particular it concerns criteria «i», «ii», «iii», «iv»,

«vi» and «vii». The criterion «v» also can be applied to objects PKN without the formulation "outstanding".

Thus, the majority of cultural urological criteria for objects of the World heritage can be applicable and by working out of cultural urological criteria for objects PKN.

The special attention is deserved by a question on differentiation of objects PKN and objects of an underwater paleontologic heritage. We consider, that found out under water fossilii (fossils) at the given stage of development of international law cannot be considered as objects PKN in spite of the fact that the given objects correspond to time criterion and criterion of localisation PKN (more than 100 years of stay under water), and also possess the archaeological, historical importance and authenticity. It is connected by that paleontologic objects do not possess the main criterion - an anthropogenous origin, that is are not traces of human existence as represent the rests or prints of animals and plants.

As to the main positions of the Convention on protection of the world cultural and natural heritage of 1972, - that they are conformable to main objectives of the Convention on protection of an underwater cultural heritage of 2001 in particular it concerns following positions:

1) the state sovereignty in which territory objects are located admits completely and respected. On them sovereign rights and positions of the national legislation completely extend;

2) maintenance, revealing, protection, preservation, heritage popularisation, first of all, is assigned to the state in which territory the object is located;

3) the international community is obliged to co-operate for protection of objects, assisting corresponding state under its request;

4) the states undertake not to make any actions which could cause a direct or indirect damage to a heritage.

Thus, the positions set forth above concerning institute of the World cultural and natural heritage, it is possible to carry to the full and to an underwater cultural heritage. It has given the basis to a number of experts of UNESCO to express opinion that «all objects in the deep-water Area, representing archaeological interest, should be proclaimed by a mankind cultural heritage» 52.

31st session of General conference of the UNESCO, passing in Paris from October, 15th till November, 3rd, 2001, recognised «great value of an underwater cultural heritage as component of a cultural heritage of mankind and especially important element of history of the people and nations, and also relations between them, concerning their general heritage» 53.

The underwater cultural heritage thanks to the scales and a variety of objects opens unlimited possibilities for such areas of a science and technics, as: the history, ethnography, archeology, ancient technologies, architecture etc. Many objects PKN are the material certificate of the important historical events, cultural and economic contacts in the past, migration of the people, structures of trade, manufacture and export. They bring the necessary specifications allowing from new positions to approach to the decision of istoriko-geographical problems.

Thanks to underwater researches it is possible to receive the valuable information on a design of vessels, technologies, art and истории54, to study the unique constructions which age totals from 6 to 9 thousand years which cannot be found out as a result of excavation on суше55.

It is impossible to belittle and economic aspect of value PKN. Also as well as tourist objects of a world cultural and natural heritage,

52 Resolutions of 29th session of General conference of UNESCO, Paris, on August, 5th, 1997//UNESCO.

– 1997. – WITH. 10.

53 Preamble of the Convention on protection of an underwater cultural heritage (Paris, on November, 2nd, 2001)//UNESCO Normative acts on cultural heritage protection. – M: JUni the Print, 2002.

54 See: Bass, D.Podvodnaja archeology / per with English – M: TSentrpoligraf, 2003. – With. 7.

55 See: Boel, Niels. Twenty Thousand sites under The sea//The UNESCO Courier. – 2009. – №.1. – P. 6 – 7.

Sea museums and underwater parks can be essential sources of economic prosperity of region, promote development of the infrastructure connected with placing and residing of travellers. For example, according to UNESCO, «the Sea museum in Western Australia visit in a year of 250 000 persons (from them - 70 % of visitors) which by available estimations bring to staff in a year of 26,5 million Australian $. Such economic mechanisms successfully work both in developing, and in the developed countries» 56. Thus, the underwater cultural heritage is the important tool for economic development and creation of intercultural dialogue.

The social importance of objects PKN is comparable to the importance of objects of the World cultural and natural heritage. It consists in socially-educational activity of sea museums and underwater parks. For example, the museum-ship "Vasa" (Sweden) annually is visited nearby by 750 000 persons, and lifted from a bottom and "Mary Rose's" restored sunk British vessel have visited over 4 million человек57. Also objects PKN are of great importance for divers-fans.

It is impossible to underestimate a role of objects PKN as inhabitancies of underwater organisms. Many objects of ship-wrecks become in due course difficult ekosistemoj. This aspect of value of an underwater cultural heritage as artificial reef marks Lowell Баутиста58. By analogy here pertinently to give an example such natural object as the Big Barrier reef which in 1961 has been included in the list of the World heritage of UNESCO and is protected as natural property of mankind.

Revealing and protection of objects PKN demands carrying out of corresponding actions that promotes development of the boundary

56 About the measures accepted for the purpose of studying of expediency of working out of the international certificate about protection of an underwater cultural heritage: the report of the General director//Meeting of experts of UNESCO on May, 22-24nd, 1996, Paris//UNESCO. – 1997. – with. 20.

57 Sm: the Information complete set «the Convention of UNESCO on protection of an underwater cultural heritage of 2001»//UNESCO. – 2006. – with. 1 – 2.

58 See: Bautista, Lowell. Op. cit. P. 24.

Territories. Besides, any illegal activity concerning object PKN which is carried out by one state in territorial sea, to a contiguous zone, IEZ or over a continental shelf of other state, grants the right to pursue without delay a foreign vessel. The above-stated allows to conclude, that the underwater cultural heritage has also geopolitical value.

Thus, universal value of an underwater cultural heritage is expressed in following aspects: cultural, historical, archaeological, scientific and technical, ekobiologicheskom, economic, ethnographic, social and geopolitical. On the importance objects PKN are comparable to that role which is played by objects of the World cultural and natural heritage in development of a human civilisation.

At the same time it is impossible to deny existing distinctions in approaches to the organisation of a right protection of objects of the World cultural and natural heritage and objects PKN. Different management methods a cultural heritage which is on a land, and a heritage which is under water are required also. It in an equal measure concerns and restoration, preservation, storage and the account of objects. For underwater artefacts represents danger availability of the high technologies expanding possibilities of detection and access to them not of archeologists.

Nevertheless, all objects of a cultural, natural and underwater heritage demand the careful relation and protection as have the general threats in the form of negative influence surrounding среды59 and other adverse factors, including anthropogenous character.

The above-stated allows to draw a conclusion that the underwater cultural heritage is the isolated part of the World cultural and natural heritage of mankind, and its importance for the subsequent

1. 59 concept "environment" covers the elements connected with conditions of existence of the person, including Material elements of the nature (natural objects) and elements, is artificial created by the person in the course of its interaction with the nature. Egorov, S.A.dictionar of international law. 3 izd. The reslave. And dop. The statute, 2014. – With. 177.

Generations it is difficult to overestimate. Cultural heritage losses, including underwater, can lead to irreplaceable losses, to spiritual impoverishment of a society, culture and science pauperisation, negatively to be reflected in a social, public, cultural and scientific life of present and future generations.

<< | >>
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 § 1.2. A parity of institutes «underwater cultural heritage», "cultural heritage" and «a natural heritage»:

  1. § 1.1. Term use «an underwater cultural heritage» in international law and the Russian legislation
  2. § 2.2. The purposes and features of positions of the Convention on protection of an underwater cultural heritage of 2001
  3. § 2.4. The mechanism of the resolution of disputes, connected with an underwater cultural heritage
  4. § 1.4. Classification of the factors representing threat for objects of an underwater cultural heritage
  5. § 2.3. Problems of realisation of the Convention on protection of an underwater cultural heritage of 2001
  6. § 2.5. A substantiation of necessity of acceptance of additions and changes to the Convention on protection of an underwater cultural heritage of 2001
  7. § 3.2. An urgency of a problem of protection of an underwater cultural heritage for the Russian Federation
  8. § 3.3. Expediency of ratification by the Russian Federation Conventions on protection of an underwater cultural heritage of 2001
  9. the convention on protection of the world cultural and natural heritage of 1972
  10. § 1.3. Kinds and classification of objects of an underwater cultural heritage
  11. § 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