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§ 2.5. A substantiation of necessity of acceptance of additions and changes to the Convention on protection of an underwater cultural heritage of 2001

In spite of the fact that the Convention of 2001 is the major international legal certificate, unique, in own way, devoted to protection of objects PKN, this document has a number of defects. According to John Kimballa, «despite the laudable purposes, the Convention on protection of an underwater cultural heritage has considerable lacks which, possibly, will interfere with that it was effective either in immediate prospects, or in the long-term plan» 155.

In a general view lacks of the Convention of 2001 are reduced to the following:

1) inconsistent positions of norms of some articles;

2) presence of blanks in a number of positions that creates additional problems of protection of an underwater cultural heritage.

3) inconsistent positions and defects of some Rules;

Among inconsistent positions of norms of the Convention of 2001 it is necessary to note the following:

1. The definition formulation of "an underwater cultural heritage» Convention item 1.

2. Stated in item 7 of item 2 of the Convention of 2001 a principle forbidding commercial operation PKN: «the Underwater cultural heritage should not be maintained in commercial objectives».

Nevertheless, according to materials of the International scientific colloquium under the factors influencing on PKN, for the last few years to commercial operation have undergone more than 300 fragments of the large ship-wrecks containing enough of artefacts to fill museums. Unfortunately, artefacts have been sold for reception прибыли156.

155 Kimball, John D. Living with the Convention on the Protection of the Underwater Cultural Heritage//New Jurisdictions Odyssey Marine Exploration Papers. – 2013. – № 13. – THE RIVER 12.

156 See: International Scientific Colloquium on the factors impacting underwater cultural heritage. Brussels 13 to 14 December 2001//UNESCO. – 2011. – 11 p.

However, as fairly marks nejl Wander, the Convention of 2001 cannot contain the positions eliminating economic value of objects. Hапротив, the interdiction of commercial operation can even recover illegal trade, increase global demand for an underwater cultural heritage and cause lifting of the prices for underwater artefacts to space высоты157.

Marina Sokal notices, that the USA are disturbed by a damage which ratification of the Convention of 2001 can put to economic interests of the prospering commercial and recreational industry дайвинга158.

One of founders and the main chief executive of the company

«Odyssey Marine Exploration» (further - «OME»), specialising on investigation and archeological excavations of deep-water ocean ship-wrecks, Greg Stemm approves, that the state resources are insufficient for rescue of objects of ship-wrecks, and refusal of bonus system or of the property on the found valuable cargo negatively will be reflected in the private initiative on investment similar проектов159. Being based on own experience, Greg Stemm considers, that it is necessary to use private funds, especially in a present economic situation.

He hopes, that in due course UNESCO and the state-participants of the Convention of 2001 will review formulations

«Cultural, historical or archaeological character» and «commercial operation» to develop more rational policy of management of ship-wrecks and collections, and will give to the public and a private sector due in respect of their responsibility and ability to store an underwater cultural heritage человечества160.

157 Brodie, Neil. Export Deregulation and the Illicit Trade in Archaeological Material//Legal Perspectives on Cultural Resources edited by Jennifer R. Richman and Marion P. Forsyth. – United States: Altamira Press. – 2004. – THE RIVER 85 – 99.

158 Sokal, Marina Papa. Op. cit. P. 22.

159 See: Stemm, Greg. Protecting the Past: UNESCO Versus the Private Collector//Odyssey Marine Exploration Papers. – 2013. – № 13. – THE RIVER 17.

160 Op. cit. P. 17.

Thus, in overwhelming majority of cases foreign authors hold the opinion, that the formulation of item 7 of item 2 of the Convention of 2001 set forth above belittles the economic importance of objects PKN.

It is necessary to notice, that the Information complete set of UNESCO

«The convention of UNESCO on protection of an underwater cultural heritage of 2001» gives an explanation to item 2 item 7. It brings a certain compromise, on the one hand, between the commercial operation of objects leading to gamble by artefacts and their irrevocable dispersal, and, on the other hand, social and economic aspect of value PKN. However the explanation represents the mutually exclusive formulation: «with a view of trade or gamble and its irrevocable dispersal, it is not necessary to treat a Principle forbidding commercial operation of an underwater cultural heritage (item 2 item 7) as forbidding» 161.

All foreign experts in the field of international law and archeology agree in opinion, that objects PKN besides the archaeological, historical and cultural importance represent also commercial value, and, hence, can make profit, paying back the big expenses on their rescue, lifting and restoration.

Thus it is necessary to take into consideration, that sale of underwater artefacts from auctions, first, leads to their dispersal, subsidence in private collections, and in some cases, and irrevocable loss; secondly, makes smaller profit, than exhibiting of the same artefacts in museums; thirdly, eliminates the is social-public importance of objects PKN and the underwater artefacts representing museum value.

For example, according to UNESCO, «commercial lifting of 200 boxes of the most thin Chinese porcelain from a place of wreck of the Dutch trading ship"Geldermalsen", led to destruction of remains of the ship, has brought after their sale at 16 million auction $ the USA. If this porcelain has been placed in a local museum this cultural heritage could

161 Information complete set «the Convention of UNESCO on protection of an underwater cultural heritage of 2001»//UNESCO. – 2006. – with. 8.

To bring to local community on a constant basis of 16 million $ the USA annually »162.

All above-stated allows to draw a conclusion that item 7 of item 2 demands change of the formulation which would allow to keep economic importance PKN. We offer the following possible formulation of item 7 of item 2: «What image would not organise management of an underwater cultural heritage, it should not aggrieve to the heritage».

3. Demands changes and item 3 formulation. Item 7. In a context: «In the arhipelazhnyh waters and territorial sea, in realisation of the sovereignty and recognising the standard international practice, the state-participants, for the purpose of cooperation with the relation of the most effective ways of protection of the state vessels and flying machines, inform on detection of such state vessel giving in to identification or a flying machine the state of the flag which is the participant of the present Convention, and, in corresponding cases, other states having communication giving in to check with given object especially communication of cultural, historical or archaeological character».

A number of sea powers, including the Russian Federation, at Meeting on acceptance of the Convention of 2001 has opposed such edition of item 3 of item 7 and demanded change of the formulation with «should inform» (in the original text of the Convention of 2001 in English language «should inform») on «are obliged to consult». The formulation «should inform», in - the first, brings uncertainty of primary actions of the state-participant which have found object, in relation to object; secondly, can restrain the law of the flag and other states having communication giving in to check with object; thirdly, threatens

162 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. The appendix I – With. 14.

Operation of rescue of object in case of emergency necessity. For example, the state-participant which has found PKN, can not have possibilities of rescue of object own forces. In this case "informing", instead of consultations, can represent threat for object.

4. Item 9 which provides concerns inconsistent articles of the Convention of 2001, what states will have the primary control over concrete operation or activity with object PKN in IEZ or on a continental shelf of the state or the state-participant. Especially sharply there can be a question on the reporting of finds under

"National" flag of the state. For many expeditions, researches or commercial vessels not a rarity when passengers and members of crew are citizens of tens different countries. What to do in case a find the citizen of one of the 2001 which have signed the Convention of the countries during swimming on a vessel of the state which have flying the flag not signed it has found out? In that case at once there will be a question on observance by this citizen of confidential relations with vessel crew.

Item 1 (b) item 9 provides in IEZ or on a continental shelf of other state-participant two variants of granting of the information:

«(i) the state-participants demand, that the citizen or the ship master informed their and mentioned other state-participant on such detection or such activity;

(ii) As an alternative variant the state-participant demands, that the citizen or the ship master informed it on such detection or activity, and provides fast and effective transfer of this information to all other state-participants ».

In our opinion, the given formulations of alternative variants of granting of the information and notices in IEZ and on a continental shelf do not solve a question on inadvertent or unforeseen detection of object PKN, for example, the vessels which anchor has unexpectedly touched object of ship-wreck. In such cases not to be exposed

To sanctions, ship-owners can hide the information on detection of object PKN and not transfer to its state-participants.

In our opinion, some question causes also item 9 item 5 in the formulation

«Communication giving in to check», namely: «Any state-participant can declare to the state-participant, in the exclusive economic area or on which continental shelf there is an underwater cultural heritage, the interest in participation in consultations concerning ways of maintenance of effective protection of this underwater cultural heritage. Such statement should be based on giving in check of communication of cultural, historical or archaeological character, with the given underwater cultural heritage».

The establishment to "giving in check of communication» between the state and found object PKN is serious international legal problem. Often there are situations at which at once some states apply for one object as each of them has defined (cultural, historical or archaeological) communication with it and can give, according to item 9, the information on «giving in check of communication».

Also are available «... Complexities with definition of destiny of an archeological find in a case when, for example, the origin state has ceased to exist historically» 163.

There are problems and with definition of an accessory of subjects from the sunk ship which transported the stolen property from another's country, and has sunk, for example, in present IEZ or on a continental shelf of other state.

Problems with the proof to "giving in check of communication» arise and in a case when the ship transported valuable cargo from the colony which is now the independent state, has sunk and is based in

163 Martynenko, I.E.value of positions of the Convention of UNESCO about protection of an underwater cultural heritage for formation of the national legislation on protection of a historical and cultural heritage//Problems of studying and preservation of a sea heritage of Russia: the First International scientifically-practical conference. – SPb.: a Terra-Baltic. – 2010. – on October, 27-30th. – with. 163.

IEZ or on a continental shelf of the third state.

As bright example state difference about treasures of the military ship «Nuestra the Seigneur de las a Mercedes» can serve. Earlier the right to valuable cargo was declared by the Great Britain which has considered, that it has been taken from the trading British ship which has sunk near to Cornwall. After specification of area of a raising of values the British authorities from the claims have refused. Later the right to cargo of a vessel and illegality of its export have declared the authorities of Peru as coins which were by the ship, have been rapped out in this country. In the answer Spain has underlined, that in 1804 of Peru still was the Spanish colony and consequently coins belonged Spanish короне164.

Cases of similar disputes are not individual, and the question on their settlement within the limits of international law remains opened.

5. Following disputable position of the Convention of 2001 is item 10

«Protection of an underwater cultural heritage in the exclusive economic area and on a continental shelf» which provides a koordinatsionno-consulting state mode.

According to norm of item 3 of item 10, each time when there is the new object PKN, all countries which have signed the Convention of 2001, are obliged to notify other state-participants on a find. During this moment they acquire the right to register the interests in quality of "the co-ordinating state». Thus the unique requirement to interested persons to become «the co-ordinating state» «communication giving in to check» with object which happens difficultly is to establish for the reasons stated above. It leads to state differences about the right to object and its cargo.

Besides, within the limits of a mode established by item 10 of the Convention of 2001, any co-ordinating state can declare the disagreement with actions on object that can prevent its archeological excavations and rescue.

164 is more detailed - see: Stepanets, V.Ispanii can manage the sunk treasures on half-billion dollars//the World of diving and adventures. – on June, 6th 2009. – (History and archeology).

6. Also item 13 positions «Sovereign immunity» about action of the military ships of other state vessels or the military flying machines which have found out object PKN are inconsistent. The formulation of the second position of given article infringes upon interests of large sea powers that has caused protests of their representatives, including delegations of the Russian Federation, at negotiations on acceptance of the text of the Convention of 2001 we Will consider both positions of item 13: « The military ships and other state vessels or the military flying machines possessing sovereign immunity, used in the non-commercial objectives, functioning in a usual mode for them and not engaged in the activity directed on an underwater cultural heritage, are not obliged to inform 10, 11 and 12 present Conventions on detection of an underwater cultural heritage as it is offered articles 9. At the same time the state-participants by acceptance of the appropriate measures which are not mentioning operation or operational possibilities of the military ships and other state vessels or military flying machines, possessing sovereign immunity and used in non-commercial objectives, provide observance with them in that measure in what it is reasonable and practically realizable, positions of articles 9, 10, 11 and 12 present Conventions ».

In our opinion, both positions of item 13 are mutually exclusive in the formulations and represent the compromise between interests of large sea powers and a duty to inform on detection of object PKN according to instructions of the item of item 9, 10, 11 and 12. In this connection while the Convention of 2001 will oblige the military ships and other state vessels or military flying machines to inform on detection PKN, large sea powers will not sign it. Thus, the formulation of the second position of item 13 is an obstacle to the introduction of large sea powers into the Convention of 2001

6. Item 21 positions «Preparation in area are disputable also

Underwater archeology », providing cooperation of the state-participants« in preparation of experts in the field of underwater archeology, in working out of methods of preservation of an underwater cultural heritage and, on the adjusted conditions, a technological transfer, concerning an underwater cultural heritage ». To difficultly itself to present cooperation of France in transfer of new technologies to such countries-participants of the Convention of 2001, as Haiti or Albania. In the given formulation, in our opinion, item 21 position in practice not vypolnimo. And at the counter party can not be the experts owning modern technologies. In this case transfer of new technologies is possible only on vozmezdnoj to a basis, instead of as cooperation. Cooperation is possible in working out of new technologies.

It is necessary to notice, that in practice of realisation UNCLOS there was a steady tendency in the field of a technological transfer on fishery and preservation of the environment on a gratuitous basis and is exclusive on market conditions – the technologies, concerning investigations and workings out of resources sea дна165.

So, section 5 of the Agreement on realisation of the Part of XI Convention of the United Nations on a marine law of 1994 establishes, that «the enterprise, and also the developing states wishing proibresti technology of deep-water working out of a sea-bottom, aspire to get such technology on fair and reasonable commercial conditions». «Speech, thus, goes not about free transfer, and about technology acquisition» 166.

Special consideration is deserved by the mode of sea spaces established by the Convention of the United Nations on a marine law of 1982, and requirements of the Convention on protection of an underwater cultural heritage of 2001

Item 3 of the Convention of 2001 establishes, that «Anything in the present

165 See, for example: Nouses, A.N.modern line of development of a legal regime of the International area of a sea-bottom: dis. … kand. jurid. Sciences. – M, 2010. – 199 with.

166 Gureev S.A., Zenkin I.V., Ivanov G.G.Mezhdunarodnoe a marine law: the Manual. Norm, 2011. – With. 182.

The convention does not put a damage to the rights, jurisdiction and duties of the states on international law, including the United Nations Organization Convention on a marine law. Interpretation and application of the present Convention are carried out in a context and according to international law, including the United Nations Organization Convention on a marine law ».

Proceeding from sense of given article, the Convention of 2001 does not put the purpose to change delimitation of the sea zones established by other international agreements, including UNCLOS, or to change jurisdiction or sovereign rights of the states. As Patrick O'Kif marks, the given position establishes, that supporters of the Convention of 2001 regard it, as corresponding UNCLOS167.

Nevertheless, in case of contradiction occurrence between these two agreements, the last should have a priority. Moreover, according to the second offer of item 3, position of the Convention of 2001 should be interpreted and applied according to UNCLOS.

It has special value for pacific settlement of the disputes, concerning interpretations or applications of the Convention of 2001 So if the coastal state abuses the rights fixed in subitem: 2 and 4 items 10 of the Convention of 2001, for the purpose of maintenance of protection of an underwater cultural heritage outside of its territorial sea, action of such state can be challenged court of competent jurisdiction or arbitration on the ground that UNCLOS does not give to the coastal states absolute jurisdiction concerning the archaeological and historical objects found in IEZ and a continental shelf.

In spite of the fact that substantive provisions of the Convention of 2001 are directed on activity regulation in exterritorial waters with a view of maintenance of uniformity of standards in all sea zones, data

167 O \'Keefe, Patrick J. Shipwrecked Heritage: a commentary on the UNESCO Convention on Underwater Cultural Heritage//Institute of Art and Law. – 2002. – P. 206.

Positions also are applicable and for territorial sea and other waters taking into account the sovereignty of the coastal state. This position contains in item 7: «the State-participants in realisation of the sovereignty have the exclusive right to regulate and resolve the activity directed on an underwater cultural heritage, in the inland waters, arhipelazhnyh waters and territorial sea».

In realisation of the sovereignty the coastal state has the right to regulate and resolve activity in the inland waters, arhipelazhnyh waters and territorial sea under condition of observance of positions UNCLOS and other norms of international law. Many states use this right according to the national legislation regulating activity, directed on an underwater cultural heritage.

Item 7 item 2 adds to already existing international legal mode position that the state-participants of the Convention demand application of Rules of the Convention to the activity directed on an underwater cultural heritage in these waters.

However item 7 has two positions, contradicting UNCLOS. The first concerns item 3, concerning detection of the identified sunk state vessels and planes in territorial sea or arhipelazhnyh waters. The second - to term application "exclusive" in item 1 of given article. The impression is made, that the right of the coastal state to regulate and resolve activity in territorial sea and arhipelazhnyh waters is unconditional. It contradicts item 3 of item 2 and the item

3 items 49 UNCLOS which establish, that the sovereignty of the coastal state in these areas are carried out with observance of the rights given to one states by others according to positions UNCLOS or other norms of international law.

The right of the innocent passage and the right arhipelazhnogo pass on sea corridors usually have no special relation to a question of protection PKN, in

Difference from rules of the international law, concerning sovereign immunity.

Thus, term inclusion "exclusive" in item 1. Item 7 is disputable because aggravates a problem of the status of the sunk ships located in coastal waters of other states.

In connection with the above-stated, to the states which did not ratify the Convention of 2001, it will be carefully necessary to review the national legislation on a heritage for reduction of its positions in conformity from item 7 item 2. The states not only should be convinced that their legislation corresponds to Convention Rules, but also that its purpose will be adjusted with the wide definition of an underwater cultural heritage established by the Convention of 2001

The national legislation of the various states, concerning heritages, has different approaches to concept PKN and of some cases is limited only to the sunk ships. Besides, the national legislation can include also positions which will not be adjusted with Convention Rules, in particular concerning commercial operation of objects PKN.

In some states, especially with the federal form of a state system, there is a difficult system of the corresponding legislation, and the question on its revision or addition can lead to certain complexities. Work on maintenance of conformity of the national legislation can keep those states which already have effective system of protection PKN from ratification of the Convention of 2001. C other party when the states begin protection of an underwater cultural heritage with "blank leaf", the Convention of 2001 can be considered as the valuable guide to action.

Protection of an underwater cultural heritage in inland waters, arhipelazhnyh waters and territorial sea of the state-participants is established in item 7 of the Convention of 2001 of Item 1 of given article defines, that

«The state-participants in realisation of the sovereignty have the exclusive right to regulate and resolve the activity directed on an underwater cultural heritage, in the inland waters, arhipelazhnyh waters and territorial sea».

The given position obviously confirms the sovereignty of the state-participants in corresponding sea zones. As consequence, in the inland waters, arhipelazhnyh waters and territorial sea each state-participant remains unique "trustee" of an underwater cultural heritage. Thus, unlike a case when objects PKN have been found in IEZ or on a continental shelf, the coastal state which is the party to the convention of 2001, is not obliged to consult to other states concerning security measures of the given objects.

It is necessary to notice, that while item 7 item 1 speaks about "right" of the state-participants to regulate and resolve the activity directed on an underwater cultural heritage in the inland waters, arhipelazhnyh waters and territorial sea, it does not mean, that according to the agreement protection of objects PKN in these areas is uncontrollable. On the contrary, item 4 of item 2 of the Convention establishes, that

«The state-participants, depending on circumstances separately or in common, accept according to the present Convention and international law all appropriate measures necessary for protection of an underwater cultural heritage, using for this purpose the best practically applicable means available at their order depending on the possibilities».

Thus, the agreeing states are obliged to protect objects PKN found in their internal and arhipelazhnyh waters and territorial sea. Besides, according to item 2 of item 7, the state-participant demand, that a Rule, concerning the activity directed on an underwater cultural heritage, were applied in their inland waters,

arhipelazhnyh waters and territorial sea. Thus, this obligation operates even in the areas falling under the sovereignty of the state-participants.

Item 8 of the Convention of 2001 concerns objects PKN which is in a contiguous zone: «Without damage to articles 9 and 10 and in addition to them, and also according to point 2 of article 303 of the Convention of the United Nations Organization on a state-participant marine law in the contiguous zones can regulate and resolve the activity directed on an underwater cultural heritage. Thus they demand application of Rules».

Like item 2 of item 303 UNCLOS, cт. Allowing character has 8 Conventions of 2001 by the nature. Nevertheless, the state-participants of the Convention of 2001 should operate under the guidance of item 8, i.e. Application of Rules of the Convention are obliged to demand.

According to item 303 item 2 the coastal state can assume, that process of extraction of objects in the contiguous zone without its approval will lead to infringement within its territory or its territorial sea customs, fiscal, immigration or sanitary rules. Therefore the coastal state can carry out the control for the purpose of prevention of infringement or punish for such infringement.

It is necessary to notice, that only the small number of the states has incurred the obligation to use the given position. It is connected by that for today the mode of sea spaces has settled so that the coastal states are not inclined to its expansion.

Besides, item 8 of the Convention of 2001 demands from the states using jurisdiktsionnyj the mechanism, established item 2 of item 303 UNCLOS, not only maintenance of extraction PKN, according to Rules of the Convention of 2001 Instead of the term "extraction" the given article applies the formulation: «the activity directed on the underwater

Cultural heritage ».

On the other hand, item 8 of the Convention of 2001 establishes, that its application should be «according to item 2 of item 303 of the Convention of the United Nations Organization on a marine law», and does not use the ambiguous formulation «including international law», used in other positions of the Convention of 2001

In this connection item 8 should be interpreted so that the powers established by given article, were not beyond the powers established by item 2 of item 303 UNCLOS.

Item 8 of the Convention of 2001 develops positions of item 2 of item 303 UNCLOS. The formulation «without damage to articles 9 and 10 and in addition to them», used in its beginning, serves as a reminder that the contiguous zone is a part of a continental shelf and IEZ.

However the formulation "without damage to" is disputable as makes impression, that to the coastal state can be demanded in some cases of consultation of other interested states before to operate according to item 8 of the Convention of 2001

Mode of a continental shelf and IEZ, mentioned in stst. 9 and 10, underlies all system of international treaties. It is necessary to notice, that «the main feature of this mode consists that in the specified zone of the right and jurisdiction of the coastal state, and also the right and freedom of other states are established absolutely accurately and Therefore it is erroneous to consider as definitely corresponding positions of the Convention of 1982, that the mode of the exclusive economic area can be established by the coastal state at own discretion» 168.

Item 9 of the Convention of 2001 establishes an order of granting of the information and the notice; item 10 establishes protection and an order of consultations. Volume and structure of these articles, complexity of their formulations

168 World ocean. The International legal mode. The basic problems. Kolodkin A.L., Gutsuljak V. N, Bobrova J.V., the Statute, 2007. – With. 86.

Are the certificate of difficulties which the experts developing mechanisms of the control over activity have faced, directed on an underwater cultural heritage, in the above-stated zones.

CH. 1 item 9 provides, that «all state-participants bear responsibility for protection of an underwater cultural heritage in the exclusive economic area and on a continental shelf according to the present Convention». The given position reflects the general duty established in item 1 of item 303 UNCLOS - to protect an underwater cultural heritage in all areas of the sea. It has something in common with the approach ch. 1 item 9 of the Convention of 2001 which establishes, that each state-participant bears responsibility for protection of the underwater cultural heritage found not only in own waters, but also in waters of other states worldwide.

The subsequent points of item 9 establish system of the reporting and the notice on any detection of object PKN, and also any intention to participate in the activity directed on an underwater cultural heritage, located on a continental shelf or in the exclusive economic area. A starting point for such system is that the state-participant is obliged to demand from its citizens or the ship master floating under its flag, to inform on any detection of an underwater cultural heritage or any intention to lead the activity directed on PKN, in the IEZ or a continental shelf, either in IEZ or on a continental shelf of other state-participant.

It is necessary to notice, that a question on the one to whom such reports should be given and who has the right to demand the report, is one of the most disputable aspects of the Convention of 2001 All reports should be transferred the General director of UNESCO who should make immediately the information accessible to all state-participants. Any state-participant can declare interest in consultations concerning ways of maintenance of effective protection of an underwater cultural heritage,

But on a basis to "giving in check of communication» with this heritage.

First of all, there are specific problems with positions about the reporting provided in ch. 1 items 9. It concern the item b which provides rendering account from citizens or vessels under the flag of one state-participant concerning detection PKN or the activity connected with it, in IEZ or on a continental shelf of other state-participant. The given question is rather problematic. It is illustrated by that fact, that the item b establishes two alternative processes for such отчетности169.

Both alternatives are stated by formulations which in each of positions are ambiguous. Direct interpretation of point (i) together with a parenthetic clause can be understood in such a manner that the given position obliges citizens or vessels under the flag of the state-participants which have found out an underwater cultural heritage, or intending to be engaged in the activity directed on an underwater cultural heritage, to inform on detection or intention as well to the coastal state.

At such interpretation the coastal state can be considered only as the addressee of the report instead of as the state, having the right to demand the report.

At the same time the point (i) can be understood so, that the reference to "state-participants" includes also the coastal state. In this case the coastal state will have the right to demand the report that can be considered as granting to the coastal state new jurisdiktsionnogo the rights over a foreign vessel and citizens on its continental shelf and in IEZ.

The formulation of alternative process of the reporting stated in point (ii), also is ambiguous. The given position can be understood so, that the state-participants are obliged to demand from own citizens and the flag state to inform on a find only to Them. With

169 is more detailed - paragraph 2.4 see. The given dissertational research.

Other party, under the formulation "state-participant" the coastal state can get, and in this case it has the right to demand the report. Thereby, it is given to the coastal state new jurisdiktsionnoe the right.

Offers on amendment in the text of the Convention of 2001 to eliminate an ambiguity of the given position, have been dismissed, since the majority of participants of discussion on acceptance of the text of the Convention wished to have possibility of alternative interpretations of the given position.

The following problem concerns the competence given by the Convention of 2001, the co-ordinating state. As it was mentioned above, the given international treaty does not use the term «the coastal state». Nevertheless, the status of the co-ordinating state gives the chance to the coastal states to play the important role concerning objects PKN located in IEZ and a continental shelf.

After the information on detection of an underwater cultural heritage or planning of the activity directed on it, mechanisms which accurately would regulate the further actions are received, necessary. Item 10 establishes the given mechanisms.

Key position of this article is item 2: «the State-participant, in the exclusive economic area or on which continental shelf there is an underwater cultural heritage, has the right to forbid or resolve any activity directed on an underwater cultural heritage, for prevention of infringement of its sovereign rights or the jurisdiction, established by international law, including the United Nations Organization Convention on a marine law».

Item 10 item 2 grants to the state-participant the right to forbid or resolve the activity directed on PKN to it IEZ or a continental shelf provided that of it «sovereign rights or jurisdiction» according to international law, including UNCLOS, are under the threat.

Concerning IEZ and continental shelf UNCLOS gives the coastal state of the right to natural resources, both live, and lifeless. In IEZ the given international treaty also gives to the coastal states of the right and jurisdiction concerning creation and use of artificial islands, installations and constructions, sea scientific researches, protection and preservation of the sea environment.

Item 2 of item 10 of the Convention of 2001 establishes, that in case the activity directed on an underwater cultural heritage, creates threat to sovereign rights or to jurisdiction, the coastal state can forbid or resolve such activity.

The given position obviously confirms communication between an underwater cultural heritage and natural resources, and it provides possibility to the state-participants to take measures under the prevention of the activity directed on PKN, for the purpose of protection of natural resources.

Establishing, that the coastal state «has the right to forbid or resolve» the activity, the given position by that gives the chance to the coastal state to be convinced not simply, that activity are spent according to the established standards, but also to realise a preservation principle in situ by activity suppression in general.

If the state knows, that there is a threat of infringement of its rights it through the procedures of the notice established in item 9 or a different way, has the bases for suppression of infringements until competent bodies will not define, whether it is valid is justified.

Considering, that the Convention of 2001 defines an underwater cultural heritage as «all traces of human existence» which were under water within not less than 100 years, in many cases PKN becomes an integral part of the sea environment and, hence, any intervention in it will influence natural resources. Even when there is no obvious negative influence, it seems improbable, that the state will be

To challenge the actions undertaken by other state for the purpose of protection sovereign прав170.

In conditions when item 10 item 2 cannot be applied, or the state does not intend it to use, subitems c 3 on 6 items 10 provide the alternative scheme of management with the activity directed on an underwater cultural heritage.

The given scheme is based on consultations between the coastal state and the state-participants which have declared giving in check of communication with an underwater cultural heritage, for the purpose of revealing and the coordination of the best means of granting of protection for PKN. Position provides appointment of the coastal state or other state as "co-ordinating". Among other, from this state realisation of the adjusted protective measures and delivery of necessary permissions concerning such adjusted measures can be demanded. It also can carry out any necessary preliminary researches and should give out all necessary permissions for such work. Results of such researches should be transferred the General director of UNESCO who should make the information

"Immediately accessible to other state-participants. In all actions, according to item 10, the co-ordinating state should operate« on behalf of all state-participants as a whole, instead of in own interests ».

One of the most disputable positions of item 10 consists that when the underwater cultural heritage is under the threat «direct danger», the co-ordinating state can take measures before carrying out of consultations of other interested states. According to item 10 threat can arise «owing to activity of the person or any other reasons, including marauding». From the given formulation not clearly, that particularly is meant «any other reasons».

170 O \'Keefe, Patrick J. Shipwrecked Heritage: a commentary on the UNESCO Convention on Underwater Cultural Heritage//Institute of Art and Law. – 2002. – P. 90.

The structure of a phrase which begins with words «activity of the person» and comes to an end with the term "marauding", means only anthropogenous negative influence. However besides anthropogenous negative factors there are not anthropogenous factors, including natural character which can represent «direct danger» to object PKN and demand acceptance «all practically realizable measures».

Thus, if to start with direct interpretation of item 10 it turns out, that the given position does not include not anthropogenous factors and if to apply extensive interpretation to the formulation

«Any other reasons» it is possible to assume, that experts meant the factors which are not concerning activity of the person by other reasons.

For danger prevention the co-ordinating state should accept «all practically realizable measures» and-or give out all necessary permissions according to the Convention of 2001 As well as in all actions undertaken by the co-ordinating state, according to item 10 of the Convention of 2001, any actions should be made on behalf of the state-participants as a whole and, owing to item 3, should be adjusted with international law, including UNCLOS. Thus, these measures should correspond to the general international law and stst. 14, 15 and 16 Conventions of 2001

Item 10 structure is that, that subitem 3, 4, 5 and 6 it is possible to interpret in a logic sheaf from item 2 of given article, and it is possible to consider item 2 as the independent position which has been torn off from subitem 3-6. In particular there is a question, whether the coastal state operating according to item 2 can, forbidding or resolving the activity breaking its sovereign rights and jurisdiction to address to other state-participants which have declared the interest and follow other procedures stated in subitem with 3 on 6.

Subitems 3-6 are applied to all circumstances when the underwater cultural heritage was revealed or when the state intends

To direct the activity on an underwater cultural heritage in IEZ or a state-participant continental shelf. Nevertheless, the advisory procedures stated in these points can contradict the right of the coastal state to operate with a view of prevention of infringement of its sovereign rights and jurisdiction that is indirectly fixed in UNCLOS, and also in item 2 of item 10 of the Convention of 2001

To difficultly itself to present, that in this case the coastal state consults to other interested states and carries out only the adjusted measures of protection. For this reason it is necessary to consider, that item 10 item 2 is independent position. Nevertheless, considering, that all scheme of the Convention of 2001 is based on a cooperation principle between the state-participants, the coastal state can feel morally obliged to carry out consultation of other interested states before to take measures according to item 2 of item 10 of the Convention of 2001

Taking into consideration that fact, that the Convention of 2001 «does not put a damage to the rights, jurisdiction and duties of the states on international law», including UNCLOS which item 3 gives possibility to these states to approve, that their statements correspond to usual international law. Item 10 item 2 also assists in this respect. It concerns sovereign rights or jurisdiction of the coastal states in zones which are regulated «according to norms of international law», including UNCLOS.

However item 10 item 2 gives possibility of distribution of sovereign rights and jurisdiction of the states on a continental shelf and in IEZ on cases which are not provided UNCLOS.

The formulation of position of item 2 of item 10 concerning protection of sovereign rights and jurisdiction also is problematic. At first sight it can seem simple transfer of the rights of the state-participant, however the reference on «sovereign rights and jurisdiction in cases,

Provided by international law, including UNCLOS »is disputable. Item 10 item 2 establishes, that the states can have sovereign rights and the jurisdiction, beyond that is provided in UNCLOS, and grants to the coastal states the right to undertake action for prevention of infringement of its sovereign rights and jurisdiction.

«All practically realizable measures can take the formulation and-or to give out all necessary permissions» it is possible to consider as expansion of jurisdiction of the coastal state. It means, that the coastal states can supervise activity which can potentially break such rights and jurisdiction.

It is necessary to stop on one more disputable position of item 10 - item 4 according to which to the co-ordinating state the right to accept «all practically realizable measures» is granted, in case of need, before consultations for prevention of "direct danger», threatening to an underwater cultural heritage.

Here there are two problems: first, measures can be undertaken even prior to the beginning of consultations, thereby undermining concept

«The co-ordinating state», realising the adjusted measures; in - the second, the formulation of item 4 does not concretise and does not limit measure which can be undertaken the co-ordinating state.

It is impossible to disagree that «... The volume of the rights of the coastal state in the exclusive economic area has the limited character, i.e. The state can carry out only those rights and duties which are provided in the Convention of 1982 Differently, no coastal state can apply in the exclusive economic area for realisation of any right which is not established by Convention positions (for example, to supervise foreign navigation, to carry out the customs or sanitary control etc.» 171. As marks V.V. Golitsin, with acceptance of the Convention of the United Nations

171 World ocean. The International legal mode. The basic problems. Kolodkin A.L., Gutsuljak

On a marine law of 1982 extensive sea spaces have appeared under jurisdiction of the coastal states. «At the same time the convention is the document reflecting the compromise between positions of various groups of the states, participating in its development. Thereupon positions of the Convention on expansion of jurisdiction of the coastal states and a recognition behind them the rights to establish the exclusive economic areas in width to 200 n miles are balanced with its other positions which purpose is to prevent, how much it is possible, cases of wrong application by the coastal states of those new rights which they have received under the Convention, protecting thereby interests of other states, in particular concerning traditional kinds of use of sea spaces» 172.

In the legal literature at parity discussion between two contracts concerning IEZ sending to item 59 UNCLOS173 sometimes becomes. It gives a basis for the resolution of disputes, arising between interests of the coastal state and any other state, or the states concerning questions on which UNCLOS does not give the rights or jurisdiction to the coastal state or other states.

The right to search and return objects PKN as it is represented, is the uncertain right in this connection any dispute connected with such activity, should be solved «on the basis of justice and in the light of all relevant circumstances, taking into account importance of the mentioned interests for each of the parties, and also for the international community as a whole» 174.

It is possible to approve, that this position UNCLOS can promote strengthening of the role given by the Convention of 2001 coastal

Century N, Bobrova J.V., the Statute, 2007. – With. 90.

172 Golitsin, V.V. Primenenie of procedure of immediate clearing of a vessel and crew in cases of pollution of sea//environment the International marine law. Articles of memory of A.L.Kolodkina =International

law of the sea. Essays in memory of A.L/Kolodkin / Sost. R.A.Kolodkin, S.M.Punzhin. – M: the Statute, 2014. – with.

148 – 163.

173 See: Dromgoole, S. Underwater Cultural Heritage and International Law. Part of Cambridge Studies in International and Comparative Law//Cambridge University Press. – 2013. – P. 300.

174 Convention of the United Nations on a marine law (Montego Bay, on December, 10th, 1982)//SZ the Russian Federation. – 1997. – № 48 from December, 1st.

To the states as the co-ordinating state, at least, concerning IEZ.

Archaeological importance of Area («a bottom of the seas and oceans and its bowels outside of action of national jurisdiction») has been recognised by UNESCO as the feasibility report for document working out on protection of the underwater cultural heritage published in 1995 году175.

Here it is necessary to notice, that «as regulation of use of Area and its resources some restriction of the rights of the separate states is marked, and the special order of activity of the states in Area so a certain balance of relations between the states and mankind is created in some cases is established: any state cannot apply for the sovereignty concerning Area and any state cannot apply for Area minerals differently, as according to XI.» 176.

In spite of the fact that item 149 UNCLOS establishes a duty to keep the archaeological and historical objects found in Area, this position who and as will bear responsibility for preservation of objects does not concretise questions on the one. The convention of 2001 aspires to eliminate the given blank. The mode established for Area in the item of item 11 and 12, is similar to a mode for IEZ and a continental shelf, stated in the item of item 9 and 10.

Item 11 item 1 establishes, that the state-participants bear responsibility for protection of an underwater cultural heritage in Area according to the Convention of 2001 and item 149 UNCLOS. Concerning terms "preservation" or "use" of objects of item 149 UNCLOS the impression is made, that objects should be already found and even

175 UNESCO Secretariat, «Feasibility Study for the Drafting of a New Instrument for the Protection of the Underwater Cultural Heritage», presented to the 146th Session of he UNESCO Executive Board, Paris, 23 March 1995, Doc.146 EX/27, para.10.

176 Shinkaretsky, of the Expanded continental shelf: between the state and the general heritage of mankind//the International marine law. Articles of memory of A.L.Kolodkina =International law of the sea. Essays in memory of A.L/Kolodkin / Sost. R.A.Kolodkin, S.M.Punzhin. – M: the Statute, 2014. – With. 101.

Are taken, before the duty on their preservation and use «for the blessing of all mankind» will become effective.

On the other hand, the duty established in item 1 of item 11, reflects an overall aim of the Convention of 2001, namely: a priority of preservation of the found out objects in situ. Item 11 establishes system of the reporting and the notice on detection of an underwater cultural heritage or on intention to participate in the activity directed on it, in Area. The State-participant demands, that the citizen or the ship master informed it on such detection or the activity directed on PKN in Area.

The states are obliged to inform the Secretary general of the international body on a sea-bottom and the General director of UNESCO who is obliged to make immediately such reports accessible to all state-participants of the Convention of 2001

The states which statements are based on giving in check of communication, can declare the interest to carry out consultations rather the most effective ways of protection of an underwater cultural heritage.

Item 12 establishes an order of consultations and the protection, similar to what is stated in item 10 subitem 3-6. Nevertheless, concerning Area the General director of UNESCO invites all state-participants which have declared the interest, to carry out consultations rather the most effective ways of protection of an underwater cultural heritage and to appoint «co-ordinating state» for the purpose of realisation of the adjusted measures of protection.

For participation in consultations the International body on a sea-bottom can be invited. If the coastal state does not operate as co-ordinating, it is quite probable, that the state which has declared giving in check of communication with object PKN will be the co-ordinating state or the state to which the report has been given, or.

As well as concerning a continental shelf and IEZ, координирующee the state, according to the Convention of 2001, should carry out the adjusted measures on protection and to give out all necessary permissions concerning these measures. Also it can carry out any necessary preliminary researches and should give out necessary permissions.

According to item 12 item 3 all state-participants, and not just the co-ordinating state or the state having communication giving in to check with object PKN, can take all possible measures, in case of need, even before consultations if the underwater cultural heritage is threatened with direct danger. Unlike item 10 in item item 3

12 it is not underlined, that measures should be accepted according to international law, however, considering complex character of item 3 of the Convention of 2001, it is necessary to consider, that these measures should it correspond.

In practice it means, that activity which can be undertaken according to item 12 item 3, is established in item 14 item, 15 and 16

Conventions of 2001

The mode established in the item of item 11 and 12, is stated according to the item

149 UNCLOS. Besides item 11 item 1 establishes, that any actions undertaken by the state-participants according to the item of item 11 and 12, there should correspond to item 149 UNCLOS, items b cт. 12 establishes, that in acceptance of measures the co-ordinating state should operate «for the blessing of all mankind, on behalf of all state-participants».

Thus, establishing, that the co-ordinating state does not operate on its own behalf, the given position does not correspond with a principle fixed in item 149 UNCLOS: the underwater cultural heritage found in Area, remains or used for the blessing of all mankind.

If it is established, that the state-participant has communication giving in to check, and, thereby, is qualified as the party which will be invited for participation in process of consultations (item 12) «the special

The attention should is given to the preferential rights of the states of a cultural, historical or archaeological origin »177. In acceptance of measures the co-ordinating state should give« special attention »to such rights.

In spite of the fact that the state which is not the party to the convention of 2001, has the preferential rights according to item 149 UNCLOS, possibility directly to participate in process of consultations will not be given to it.

However, when actions are undertaken by the co-ordinating state, be right such state should are taken into consideration.

The mode of Area stated in the item of item 11 and 12, does an emphasis on a post of the General director of UNESCO which operates as the channel for all reports and co-ordinates statements for interest of the states having giving in check of communication with object PKN. Besides, he keeps in contact with the International body on a sea-bottom. The International body role on a sea-bottom, according to UNCLOS consists in the control of the activity connected with investigation and working out of mineral resources of Area. Stated at conference «UNCLOS III» the offer that the International body on a sea-bottom should have the direct relation to an underwater cultural heritage, was not принято178. Thus, the Convention does not provide, that the International body on a sea-bottom should be responsible for regulation of the activity directed on PKN in Area. According to positions of the given Convention he should be notified on finds, and also can take part in consultations on security measures concerning the found objects.

Taking into consideration what find out an underwater cultural heritage in Area the organisation which has made contract with can

177 Items 4 of item 1 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.

178 See: Strati, A. The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea. – The Hague, London, Boston: Martinus Nijhoff Publishers, 1995. – P. 164.

The international body on a sea-bottom for the purpose of carrying out of investigation and working out of mineral resources, and also that activity of this organisation can threaten objects PKN, International body participation on a sea-bottom in practice can be rather useful.

According to item 12 item 7 no state-participant does carry out and does not resolve the activity directed on the state vessel or a flying machine in Area without the consent of the state of a flag. Unlike position in the relation of the state vessels and the flying machines located in other sea zones, item 7 of item 12 does not cause doubts.

Thus, specified above the formulation of some positions of the Convention of 2001 can be interpreted, as attempt to change the right of the states which are not participants of the given contract. In particular a number of positions of item 10 and item 12 can be interpreted as resolving regulation of activity of citizens and vessels under the flag of the states which are not the state-participants.

During negotiations on acceptance of the text of the Convention of 2001 a number of sea powers, in particular the Great Britain, Germany, the Netherlands, Norway, Russia, the USA and France, have let know, that they have serious objections concerning the positions, the states concerning to jurisdiction. In some statements made official delegations of these states, it was specified, that the text of the future Convention changes the balance established UNCLOS, between the equal rights of the coastal state and the flag state. The convention of 2001 includes inconsistent positions which threaten the fragile balance of jurisdiction reached in the Convention of the United Nations on a marine law.

Thus, analyzing the above-stated, it is possible to draw a conclusion, that the Convention of 2001 contains positions which can be interpreted as granting coastal and to the co-ordinating state of the additional rights which have been not provided in UNCLOS. Thereby, on

To practice the mode of sea spaces established by the Convention of the United Nations on a marine law of 1982 for a contiguous zone, IEZ and a continental shelf and Area can change.

Besides, the Convention of 2001 does not provide, that the International body on a sea-bottom can be responsible for regulation of the activity directed on an underwater cultural heritage in Area, that, in our opinion, is serious omission as it is the unique mechanism in which frameworks it is possible to solve problems of activity of the states in this part of the World ocean.

The special attention is deserved also by the analysis Corrected Conventions of 2001

1. The rule 1 is approved, that by the activity directed on an underwater cultural heritage, nevertheless «can be resolved with a view of considerable assistance to protection or the contribution to expansion of knowledge of an underwater cultural heritage or increase of its importance». A number of foreign authors considers, that the formulation Corrected 1 actually resolves actions over object PKN. In particular Phillip Castro states fear, that the Rule 1 will lead «to uncontrollable actions concerning an underwater cultural heritage, kumovstvu and even to corruption» 179.

2. The rule 2 provides, that: «Commercial operation of an underwater cultural heritage with a view of trade or gamble or its irrevocable dispersal in a root are incompatible with protection and appropriate management of an underwater cultural heritage. The underwater cultural heritage is not a subject of trade, the purchase, sale or barter as the commercial goods». Thus, this position of the Rule 2 forbids commercial operation of objects PKN.

However during acceptance of the Convention of 2001 the Rule 2 has encountered hot resistance of delegations of the USA and the United Kingdom which consider a private sector in sphere of trade in resources

179 Castro, Filipe. Op. cit. P. 8.

Ship-wrecks as lawful and diligent. After long debate to the Rule 2 two more points have been added:

«a) granting of services of professional archeologists or other necessary services, character and which purpose completely correspond to the present Convention and which are carried out on the basis of the permission of competent departments;

b) the premise on storage of the underwater cultural heritage taken during the research project according to the present Convention provided that such premise does not put a damage on storage scientific or a cultural value or integrity of the taken objects and does not lead to their irrevocable dispersal, that it corresponds to positions of rules 33 and 34 and is carried out on the basis of the permission of competent departments ».

Thus, these two additions, inherently, contradict the Rule 2. Formulations «granting of services of professional archeologists» in the project and «a premise on storage of an underwater cultural heritage», and without instructions of terms and a storage place, represent "opening" for commercial operation of objects PKN. In our opinion, these additions are clear to change in the intentions the Rule 2 and mean, that artefacts can be bought, sold, obmeneny, etc.

3. The contradiction contains also the Rule 9 which provides, that:

«Prior to the beginning of any activity directed on an underwater cultural heritage, the design documentation represented to competent departments for reception of the permission and the corresponding expert estimation» prepares.

The given position causes some fears that there is a danger of damage, plunders or destructions of the found artefact still during this period while the design documentation will prepare. Therefore in the Rule 9 entering of the additions, concerning is desirable for the organisation of protection of the found object prior to the beginning of preparation of the design documentation.

4. The rule 17 is rather disputable, as provides «beforehand before carrying out of any activity appropriate financing in volume, sufficient for realisation of all stages of the project, including preservation, documenting and storage of the taken artefacts, and also preparation and distribution of reports».

Proceeding from sense of the given formulation, the Rule 17 provides financing in full prior to the beginning of the project that can lead to waste of money resources not to destination. It is often impossible to allocate quickly from the state budget or in the area of UNESCO the necessary sum because of high cost of saving projects.

Besides, the Rule 17 also demands appropriate financing in volume, sufficient for storage of the taken artefacts, however in it duration is not reserved neither a place of storage of artefacts, nor conditions of their storage. As storage can be vaguely long, as a matter of fact, the Rule 17 assumes infinite financing, that in practice is not realizable.

We consider, that financing of the museums possessing collections of underwater artefacts, and also financial support of private collections can be one of constructive decisions in the given situation. Anyway, «appropriate financing» in sufficient volume of museum collections has the direct relation to the Rule 17.

5. The rule 18 provides «ability acknowledgement to finance the project up to its end, as, for example, a financial guarantee». However at high cost of similar projects problematic their financing at the expense of public funds now is represented. Even for the countries developed economically is vysokobjudzhetnaja expense article.

At the same time, item 14 of the Convention of 2001, forbidding commercial operations with objects, seriously limits possibility of a recoupment of the project on rescue and a raising of objects PKN. We agree with opinion

Lizy Bouman, that «... If such financial award is outlawed, stimulus at the rescuer finds out and restore historical ship-wreck can to disappear, having left cultural treasures untouched on an ocean floor» 180.

6. The rule 24 which provides preservation realisation according to operating professional norms, causes some question, namely:

1) What «operating professional norms» mean?

2) What states? In each country they different if at all is. Underdeveloped countries hardly have in stock professional tools for preservation of object PKN as have no necessary experts in the given area and have no developed professional norms of preservation.

7. The rule 26 which provides the program of documentary maintenance «according to the professional norms operating concerning the archaeological documentation», causes similar remarks.

8. The rule 31 provides drawing up of the reports including:

«a) a statement of the purposes;

b) a statement of the used methods and means;

c) a statement of the reached results;

d) the basic graphic and photographic documentation on all phases of activity;

e) recommendations concerning preservation and storage of object and any moved underwater cultural heritage; and

f) recommendations concerning the future activity ».

However the given list does not contain the most important position: statements of the detailed (multifactorial) description of found object PKN, preliminary and its definitive estimation archaeological,

180 Bowman, Lisa J. Op. cit. P. 41.

The historical, cultural importance, and also examination of market cost. The similar defect Corrected 31 can promote (and promotes) to plunders during the operations spent with found PKN. Thus, the analysis considered above disputable articles and Rules of the Convention of 2001 shows persevering necessity of their completion and revision in a number of positions, and also maintenance of conformity of the activity directed on objects PKN, international

To archaeological standards.

It is necessary to notice, that now in international legal protection of an underwater cultural heritage there is a number of the serious problems which have been not mentioned by the Convention of 2001 Nevertheless, they demand the legal decision. We consider necessary to stop on their analysis in the given work.

First, the given international treaty does not provide an appropriate legal protection for the sunk military ships and flying machines. He creates such mode at which the coastal state it is only urged to notify the flag state on a find.

The coastal state has the exclusive jurisdiction over the arhipelazhnymi waters and territorial sea, and the Convention of 2001 encourages the coastal states to inform the flag state on detection of its state vessel, including the military man.

However any archaeological establishment, a private concern reconnoitering sector, or the commercial offshore company practically cannot operate found object PKN if it represents the military ship or a submarine. It will inevitably lead to the conflict between the state of a flag and the coastal state-participant which will declare the rights to the found object.

It is necessary to notice, that such states as the Great Britain, Spain, Russia, the USA and France never will give the rights to the sunk military ships.

This circumstance is reflected by practice of state differences. So, in the beginning of 2000th the Ministry for Foreign Affairs of Sweden has officially presented Latvian Pеспублике claims on a legal status of remains of the ship-wrecks laying in marine belt of Latvia. Claims concerned not only the property rights to the ships which were lost under the Swedish flag at coast of Latvia, but also to the cargoes which had the Swedish origin. In particular it was a question of the Swedish historical monuments, for example, sculptures of heraldic lions from a town hall. To 1944 of a sculpture were taken out by Hitlerites from Narva the ships which were then are sunk by the Soviet aircraft.

It is necessary to notice, that the Swedish monuments of an epoch of occurrence of Narva in the Swedish kingdom after 1704 at first belonged to Russian empire, and then the Estonian republic. Under laws and customs of war as a trophy, they are the property of that country which has sunk the ship, that is СССР181.

Similar disputable situations will arise constantly concerning objects of ship-wrecks, first of all, the British, Spanish, Dutch and Portuguese military ships of the colonial period which are scattered across all World ocean.

Oliver Daum illustrates the given problem on an example of legal aspects of an accessory presumably last German plane which has remained in the world of times of the Second World War - Do 17 «the Flying pencil». The plane has been lifted in 2008 by the British expedition from a bottom La - Mansha where was based in the British territorial sea.

After preservation it has been exposed in museum RAF (Air Armed forces) in Kosforde (England), however neither mass media, nor rescue party reports, museum RAF have not given any data concerning the property rights to this object.

181 Official site of the project «Secret of the sunk ships» [the Electronic resource]//URL: http://www.baltic-sunken-ships.ru/. – reference Date: 21.06.2014.

Oliver Daum considers, that the plane belongs to Germany, as to the assignee of the Third Reich, and the United Kingdom not in the right to refuse under legislative grounds in sending Do 17 on the historical native land.

By the developed tradition the coastal state has no property rights to the sunk warships and planes. At the same time, according to item 17 UNCLOS and the corresponding customs which have developed in international law, the coastal state can participate on lawful basises at a distance caused infringement of navigation of the wrecked military ship or the plane, or for the purpose of prevention of a damage to the sea environment.

However Do 17 did not represent any danger neither to navigation, nor to ecology of what Oliver Daum does a conclusion that the British rescue party has taken the plane for the purpose of its placing in a museum. As between Germany and the Great Britain there is no bilateral agreement on regulation of similar problems, and German state bodies and do not solve this problem the question on an accessory of the rights on Do 17 within the limits of international law remains открытым182.

Secondly, one more, and not solved problem, the problem of due respect for remains of military ship-wrecks which often represent military burial places is. Item 9 of item 2 of the Convention of 2001 provides, that «the State-participants provide due respect for all human remains which are in sea waters», but according to time criterion in 100 years and more object stay under water the norm of item 2 does not extend on the ships, submarines and flying machines of times of the Second World War. Objects of the First

182 Daum, Oliver. Who Owns Sunken WWII German Military Aircraft? Uncertainties in the Law of Underwater Cultural Heritage [the Electronic resource]//EJIL Analysis. – July 16. – 2013. – URL: http://www.ejiltalk.org/who-owns-sunken-wwii-german-military-aircraft-uncertainties-in-the-law-of-underwater-cultural-heritage/. – reference Date: 21.06.2013.

World war only since 2014 items 1 of the Convention of 2001 have started to get under definition of objects PKN

It is obvious, that from the ethical and moral points of view to use objects PKN which is tombs of pilots and seamen, it is impossible, not speaking already about use of remains of military wrecks for tourist diving, and this rule is necessary for bringing in the international acts.

Till now sharply there is a question on marauding suppression on similar objects because subjects from the lost military ships including personal things of crew, can represent antiquarian value.

The problem of ecological safety closely borders on this problem at visiting by divers of the sunk military objects containing containers with poisonous and explosives.

Thirdly, still there is unresolved a question on proceeding uncontrolled activity on objects PKN and infringement of all archaeological norms of extraction and preservation of underwater artefacts.

Destroying action of environment on finds is known at their extraction from under water in this connection a number of foreign and domestic authors in the works defends necessity of preservation of objects PKN in situ in quality «time capsules» 183, and also because of low intensity of destruction.

To the sharp criticism activity of "black" archeologists »was subjected by Phillip Castro. He writes, that« interests of hunters behind treasures are combined either with meanness, or with lack of information, either with naivety, or with egoistichnostju, and this situation promotes development of the sanctimonious relation »184.

183 See: Dromgoole, S. Protection of historic wreck: the UK aproach//International Journal of Estuarine and Coastal Law. – 1989. – № 4. – II. – THE RIVER 106.

184 Castro, Filipe. Op. cit. P. 8.

There is also one more negative side in the given problem. Recently professional archeology often work on objects PKN together with «hunters behind treasures», carrying out treaty obligations with the governments. However only few private companies and the persons involved in performance of projects, publish reports. But also the published reports have very much poor quality: data indistinct, it is bad or it is incomplete district plans are presented, there is no full catalogue of the found artefacts, the taken objects are badly stored, there is no their estimation market стоимости185. All it promotes damages, plunders and dispersal of an underwater cultural heritage.

In many regions of the world the powerful damage is put to a national underwater cultural heritage by divers-visitors from other countries. For example, in Norway visitors fans-skin-divers did not observe the code of divers, the British skin-divers showed hyperactivity in the Mediterranean, and the American command of divers spent regular inspection of valuable fragments of ship-wrecks at coast Turtsii186.

Thus, interests of archaeological community in the intention to rescue irreplaceable objects PKN conflict to interests of community of sports diving. We agree with opinion Sary Dromgul, that the Convention of 2001 and has not solved the given problem, from - for what this international treaty has not received broad support large sea держав187.

Fourthly, still sharply there is a question on destruction of objects PKN as a result of industrial activity (civil work, working out of minerals) and a fishing craft and tralenija. For example, in gulf of Finland last years were carried out

185 Op. cit. P. 7.

186 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 98.

187 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). – THE RIVER 33.

Large-scale projects on building and modernisation of ports and a lining of underwater communications. According to P.E.Sorokin and A.V.Stepanova, the majority of these works it was spent without preliminary podvodno-archaeological inspection of water areas that could lead to a damage to objects cultural наследия188.

Fifthly, the legal form of relations of an accessory of valuable cargo from the found object of ship-wreck and fair compensation of all participants of a rescue operation is not solved. As a rule, budgetary funds on detection, extraction and preservation of objects does not suffice. Especially sharply this problem costs in the states with insufficiently developed infrastructure, including in what have signed the Convention of 2001

For example, Mark Stanifort describes a case, when in 2009 because of a lack of means the Government of Cambodia could not prevent plunder by fishermen of the Chinese vessel (presumably XV-XVI century of century), found in a province Kokh Kong. The government has found out and has dug out a vessel in 2006, however there were no means and experience to dispatch worldwide notifications about a find with the request for the help in carrying out saving операции189.

When budgetary funds do not support this protection at local level, rescuers are forced to bring the means in necessary researches underwater cultural наследия190. Here again sharply there is other problem: refusal of any bonus system of compensation of private persons and the companies which with risk for their capital, technical resources and even a life of people participate in rescue of object PKN, can lead to that private persons and the companies take the initiative in

188 Sorokin, P.E.Podvodnye archaeological objects in the Russian sector of building of the North European gas pipeline//Problems of studying and preservation of a sea heritage of Russia: the First International scientifically-practical conference. – SPb.: a Terra-Baltic. – on October, 27-30th 2010. – With. 190.

189 See: Staniforth, Mark, James Hunter, Emily Jateff. International Aproaches to Underwater Cultural Heritage//Maritime Law: Issues, Challenges and Implications. Series: Laws and Legislation. – Nova Publishers. – 2011. – THE RIVER 17.

190 Bowman, Lisa J. Op. cit. P. 41.

The hands.

In our opinion, too zatratnye operations for private investors should pay off. Absence of the regulating certificate, allowing to solve a question on fair compensation of all participants of detection of the sunk ship with valuable cargo and raisings of this cargo on a surface leads to plunder of an underwater cultural heritage, and also litigations.

Dispute between the Great Britain and Spain about the rights to cargo of the ship of Its Majesty can serve one of examples of such conflict

"Sasseks". The ship was lost at a storm in 1694, having onboard nearby 10 t gold, that is estimated today by the sum of an order 3,5 mlrd евро191. Since 1997 on 2000 the American company "OHM" has spent ship searches "Sasseks".

In 2001 it has been officially declared a find, then lawyers

«OME» have begun negotiations with the government of the Great Britain which is the proprietor of the ship of Its Majesty and cargo being on it. In 2005 the agreement has been reached. The English authorities have given to the American experts of the right to lifting of loads on the terms of division of the lifted gold between "OHM" and the government of the Great Britain.

Having received resolving documents, «OME» has directed to area of works the vessels, however they have been detained by a coast guard of Spain which authorities have demanded from «OME» to receive the permission to carrying out of salvage operations in the Spanish marine belt. In effect, this requirement meant claims of Spain for reception of a part of the lifted extraction. Now «OME» carries on negotiations already with the Spanish authorities.

By own strength to lift "Sasseks" on a surface Spain, the Great Britain cannot, therefore intervention «OME» in operation looks as the unambiguous offer to share the sunk treasures. Against participation «OME» on expedition the British have acted

191 Official site of the project «Secret of the sunk ships» [the Electronic resource]//URL: http://www.baltic-sunken-ships.ru/. – reference Date: 21.06.2014.

Archeologists who consider, that the foreign company has no right to lift the cargo having not only material, but also a huge historical value.

Other case with mentioned «OME» has received the permission in court of the State of Florida: two-year-old dispute between the USA and Spain because of treasures of the sunk Spanish military ship «Nuestra the Seigneur de las a Mercedes» has been solved in favour of Madrid. The court of the State of Florida has enacted to return 500 thousand gold and silver coins, and also a jewelry of Spain. Thereby the demand of American company "OME" which has found treasures from the sunk frigate in 2007 192 Treasure of gold and silver coins in weight in 17 t has been dismissed estimated in 500 million dollars. The court recognised, that cargo from the ship is the property of Spain as the Spanish party managed to give the materials proving a historical link with a frigate (photos with the image of guns and the weapon, the list of staff of the ship).

One of state difference examples results A.G.Ragunshtejn. It describes the conflict which has inflamed between Norway and the Netherlands because of a find of valuable cargo of the sunk Dutch vessel of the East Indian company, the wreck of the ship constructed in 1724 193 Place it was revealed in 1972 the Norwegian divers. From a bottom 500 kg of gold and silver in the form of coins have been lifted almost. Legal aids from both parties have allowed to settle dispute between two countries: 75 % of coins have got to the Norwegian submariners, 15 % treasury of Norway and 10 % - to the Netherlands.

However as a result of this opening in 1978 in Norway the novel according to which all vessels which have sunk in its marine belt become automatically more senior 100 years historical monuments has been published, and for their inspection it is required special свидетельство194. In the present

192 See: Odissey Marine Exploration Inc. v Unidentified shipwreck vessel and The Kingdom of Spain. Case

№. 8:07-CV-614-SDM-MAP.

193 is more detailed - see: Ragunshtejn, A.G.treasure of the lost ships. – M: Veche, 2011. – 352 with.

194 See: Acts of Norway [the Electronic resource]//URL: http://www.baltic-sunken - ships.ru/data/offline/rus/page133.html. – reference Date: 01.01.2014.

Time many states start to realise these aspects and provide licence agreements with divers on severe constraints, such as: presence of the international certificate, the experience and experience of deep-water immersings, knowledge of local language, a financial solvency, payment for the licence etc.

Conclusions

1. The major factors which have affected working out and acceptance of the Convention of 2001, were:

- Insufficient international legal protection of objects PKN;

- Their destruction as a result of industrial activity in coastal zones and at the bottom;

- High cost of projects on detection, lifting, preservation and protection of the objects, demanding the international cooperation.

2. Effective standards of international law in the field of protection of an underwater cultural heritage contain a number of lacks.

Among inconsistent positions of norms of the Convention of 2001 it is necessary to note a principle forbidding commercial operation PKN. In overwhelming majority foreign authors hold the opinion, that the formulation of item 7 of item 2 of the Convention of 2001 belittles the economic importance of an underwater cultural heritage. However objects PKN, besides the archaeological, historical and cultural importance, represent commercial value: they can make profit, paying back the big expenses on their rescue, lifting and restoration.

The above-stated allows to draw a conclusion that item 7 of item 2 demands formulation change that would allow to keep the economic importance of objects PKN.

3. The carried out analysis of item 3 of item 7 has revealed necessity of change of its formulation as, first, it brings uncertainty of primary actions of the state-participant which have found object, on

To the relation to object; secondly, can restrain the law of the flag and other states having communication giving in to check with object; in - the third, the formulation «should inform» threatens operation of rescue of object in case of emergency necessity.

4. The convention of 2001 also it is not deprived of some legal defects in the questions concerning:

- Jurisdictions of found out objects PKN in the sea zones defined by the Convention of the United Nations of 1982;

- Creations of a prohibited zone for the sunk warships and flying machines with explosive and poisonous substances;

- Destructions of objects PKN as a result of industrial activity (civil work, mining operations, a fishing craft and tralenija);

- Definitions of an accessory of valuable cargo from the found object of ship-wreck and fair compensation of all participants of a rescue operation.

5. The analysis of the mechanism of the resolution of disputes, connected with an underwater cultural heritage, has allowed to draw a conclusion on that, the International tribunal of the United Nations on a marine law is most suitable of operating structures body under the resolution of disputes, concerning an underwater cultural heritage.

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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 § 2.5. A substantiation of necessity of acceptance of additions and changes to the Convention on protection of an underwater cultural heritage of 2001:

  1. § 2.3. Problems of realisation of the Convention on protection of an underwater cultural heritage of 2001
  2. § 2.2. The purposes and features of positions of the Convention on protection of an underwater cultural heritage of 2001
  3. § 3.3. Expediency of ratification by the Russian Federation Conventions on protection of an underwater cultural heritage of 2001
  4. § 1.2. A parity of institutes «underwater cultural heritage», "cultural heritage" and «a natural heritage»
  5. § 3.2. An urgency of a problem of protection of an underwater cultural heritage for the Russian Federation
  6. § 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
  7. Chapter 2. International legal protection of objects of an underwater cultural heritage
  8. the convention on protection of the world cultural and natural heritage of 1972
  9. § 2.4. The mechanism of the resolution of disputes, connected with an underwater cultural heritage
  10. § 1.1. Term use «an underwater cultural heritage» in international law and the Russian legislation
  11. § 1.4. Classification of the factors representing threat for objects of an underwater cultural heritage
  12. 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