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§ 1.1. Term use «an underwater cultural heritage» in international law and the Russian legislation

The term «an underwater cultural heritage» has been entered into international law by the Convention on protection of an underwater cultural heritage of 2001 and fixed in item 131. One of advantages of the formulation of item 1, in our opinion, reckoning to objects PKN along with objects and a natural environment is.

Natural landscapes influence culture of the people living in given region: define character of crafts, architecture of dwellings, features of clothes, a life, tradition and, finally, intelligence of the nation. In this role of landscapes specified in the works in 1922 of h.p. Берг32, and L.N.Gumilev (1968 33.

At the same time, it is necessary to notice, that definition PKN item 1 of the Convention of 2001 has essential lacks and is the most criticised in foreign and domestic scientific circles article of the given international treaty.

First, it does not give the answer to a question: whether it is possible to consider as an underwater cultural heritage objects which were on a land and ancient sculptures, which were considered as culture monuments, for example, картины34, at transportation or owing to other unforseen causes

31 «) the Underwater cultural heritage means 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, such as:

(i) Objects, constructions, buildings, artefacts and human remains together with their archaeological and natural environment;

(ii) Vessels, flying machines, other vehicles or their any parts, their cargo or

Other contents, together with their archaeological and natural environment; and

(iii) Subjects of prehistoric character ».

32 See: Berg, h.p. Nomogenez, or evolution on the basis of laws – Petrograd, 1922. – 306 with.

33 See: Gumilev, L.N.historical geography as ethnography: the report//It is reported on February, 17th, 1966 It is published «Reports of a geographical Society of the USSR». – 1968. - Vyp. 3. – with. 193 – 202.

34 Till XX century of a picture for transportation on the sea at first turned in losinuju a skin, then stacked in lead tubes, free space filled in with wax then tubes tightly soldered. Now pictures are transported in tight containers that allows to provide their safety even in case of a long finding under water.

(And-or deliberate actions) have appeared under water presently, instead of 100 years ago? In our opinion, follows, as they already were a mankind cultural heritage still before have appeared under water.

We agree with Marina Papa Sokal's statement, that: «Limiting value per 100-years automatically excludes earlier objects, such as: relics of two world wars, or other objects having special historical value, such as“ Titanic ”» 35. The time criterion «not less than 100 years» allows to manipulate age of finds in mercenary motives that leads to plunder, sale and dispersal of the valuable objects which age of stay under water constitutes less than 100 years.

To keep similar objects PKN, a number of the states have legislatively established shorter time criterion.

For example, the legislation of Ukraine establishes time criterion of stay of object under water in 60 years and более36, and the internal legislation of Australia on underwater cultural heritage The Historic Shipwrecks Act (1976) defines, that «the ships which have sunk in the Australian waters or within a continental shelf of Australia, and being under water from

75 years, appear historical ship-wreck, the territory round it appears a protective zone, or a historical relict... »37.

It is impossible to disagree with S.M.Fazlullina's statement that

«For the Russian Federation as objects of an underwater cultural heritage, apparently, it is necessary to consider all objects formed till 1946 To other, later, to objects it is necessary to concern proceeding from a context of their occurrence» 38. Because the volume of pollution of the sea environment continues to increase, deterioration and damage of objects PKN

35 Sokal, Marina Papa. International law for the protection of the underwater cultural heritage: can our past be salvaged?//Culture Without Context. – London, Spring 2005. – № 16. – THE RIVER 20 – 23.

36 CH. 1. Techniques of researches of an underwater cultural heritage of Ukraine (report №3 from 22.02.2005)//National Academy of sciences of Ukraine, Archeology Institute, Department Underwater

Heritages of Ukraine. Kiev. – 2005.

37 Sect 4A, Part II of The Historic Shipwrecks Act, 1976//Office of Legislative Drafting, Attorney-General’s Department, Canberra. – 2001.

38 Fazlullin, S.M.approach to management of an underwater 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. 209.

Occurs more intensively, than it was supposed earlier. As «pollution consequences were not originally so obvious» 39, it is obviously necessary to lower duration of a finding of objects PKN under water it is necessary till 50th years to minimise negative influence on them of environment.

It is necessary to note, what not all objects which have appeared at the bottom of more 100 years ago, preservations are worthy. In particular according to Sary Dromgul «for the Convention it would be more preferable to take for a basis

«The criterion of the importance», for example, as the Convention concerns an underwater cultural heritage, - «the archaeological importance»,

"Value", "importance" »40.

However in such approach there are certain difficulties. The importance of separate remains can be interpreted differently, that will cause disagreements concerning value of object. As an example here it is possible to mention, that in days of the USSR the state did not care of protection of the cultural heritage concerning religious cults. It has led to loss of valuable monuments of culture and art of religious appointment.

Besides, in our opinion, «the criterion of the importance» for underwater artefacts should not be limited them to "the archaeological importance». The importance of objects PKN – multiplane in this connection, and criteria of requirements to object should be versatile: along with the archaeological should be considered historical, scientific, scientifically - technical, economic, aesthetic, ethnographic and other kinds of the importance.

Secondly, from item 1 of the Convention of 2001 it is not clear, that the concept of an underwater cultural heritage carries to objects PKN, and that to «subjects of prehistoric character», about what "prehistoric" time goes in

39 Gureev S.A., Zenkin I.V., Ivanov G.G.Mezhdunarodnoe a marine law: the Manual. Norm, 2011. – With. 325.

40 Dromgoole, S. Underwater Cultural Heritage and International Law. Part of Cambridge Studies in International and Comparative Law//Cambridge University Press. – 2013. – P. 130.

Definition the speech, which time period are covered by the formulation.

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

About that the made definition too wide and indistinct, speaks Lowell Bautista. He considers, that the given formulation is problematic for maintenance of the standard of inclusion or an exception of object of the list of an underwater cultural heritage. In the literal sense it can be interpreted in such a manner that everything can be included in objects PKN, everything, and everything, that is under водой41.

Krejg Forrest also considers, that treatment of this definition not понятна42.

The expanded interpretation of the formulation can reach «all traces of human existence» absurd forms. So, David Bederman approves, that in a context of item 1 it can be extended even to the broken surfboard and to bank содовой43.

Fourthly, the formulation of item 1 of the Convention of 2001 includes in objects PKN only vehicles and their parts. In our opinion, it does not consider other scientific and technical objects which do not concern vehicles, but can represent scientific, technical or a cultural value.

Fifthly, the formulation of concept PKN does not include objects of not anthropogenous origin. However for the first time chairman ICOMOS Grem Хендерсон44 has specified in necessity of inclusion of similar objects for an underwater cultural heritage in 1996.

41 Bautista, Lowell. Op. cit. P. 23.

42 Forrest, Craig J. S. A new International Regime for the Protection of Underwater Cultural Heritage//International Comparative Law Quarterly. – 2002. – № 51 (3). – P. 523 – 524.

43 See: Bederman, David J. Op. cit. P. 143.

44 About the measures accepted for the purpose of studying of expediency of working out of the international certificate about protection

Sixthly, there are questions and to application of criterion of the importance. Item 1 formulation provides presence only one of three criteria at object - cultural, historical or archaeological, that in turn, can lead to loss of valuable artefacts. However objects PKN, as a rule, represent multiplane, universal interest.

Seventhly, definition does not give the answer to a question, what objects PKN should be protected first of all. At the same time, according to UNESCO, for all historical period of existence of mankind has sunk over three millions ships that demands arrangement of priorities in rescue объектов45.

Thus, the above-stated allows to draw following conclusions concerning the definition formulation «an underwater cultural heritage» Conventions of 2001 Definition in item 1 edition:

- Generalised, in it various kinds of objects are only listed, but their universal definition is not made;

- Does not include concrete properties and object signs, age of its occurrence, and also criteria of the importance for definition cultural, historical, archaeological, economic, etc. character of object;

- Does not consider possibility casual (accident, flooding) or deliberate (for example, flooding for the purpose of concealment) hit under water of objects of a cultural heritage after 1914 that creates threat for their rescue;

- Does not include in an underwater cultural heritage the sunk unique objects of scientific and technical character which can represent at the same time, both cultural, and a historical value;

- Does not establish, what objects first of all should get

Underwater cultural heritage: the report of the General director//Meeting of experts of UNESCO on May, 22-24nd, 1996, Paris//UNESCO. – 1997. I. – C. 2.

45 See: the Information complete set «the Convention of UNESCO on protection of an underwater cultural heritage of 2001»//UNESCO. – 1997. – with. 1.

Under a right protection.

The listed lacks of definition will complicate application of Rules of the Convention of 2001 to each concrete object and to create difficulties in realisation of its protection.

Thus, the carried out analysis of the formulation of definition

«An underwater cultural heritage» has shown, that item 1 of the Convention of 2001 demands modification and additions.

We did not manage in the foreign legal literature to find any other definition PKN. In the Russian Federation concept «the underwater cultural heritage» legislatively is not fixed in the legal block regulating a cultural heritage, in the Sea doctrine of the Russian Federation for the period to 2020 года46. In this connection, being based on results of the analysis of item 1 of the Convention of 2001, we offer following definition of concept:

«The underwater cultural heritage means traces of existence of the person, answering to criteria of the archaeological, cultural, historical, scientific and technical and economic importance which partially or completely, periodically or constantly are under water throughout not less than 50 years, and also the objects which have sunk in last 50 years of a cultural heritage».

To an underwater cultural heritage, besides specified in item 1 of the Convention of 2001 of objects, constructions, buildings, artefacts and human remains together with their archaeological and natural environment; vessels, flying machines and other vehicles or their any parts, their cargo or other contents, together with their archaeological and natural environment, it is offered to carry:

- Sunk last 50 years owing to natural cataclysms or anthropogenous influence objects of the cultural heritage which has been not taken from under water;

- The sunk unique objects of scientific and technical character,

46 Cм.: the Sea doctrine of the Russian Federation for the period till 2020, Пр-1387 from July, 27th, 2001

//Sb. Documents MO the Russian Federation and the Navy. – 2002.

Representing historical and a cultural value;

- Underwater nature sanctuaries with traces of stay of the person or with traces of human activity (a cave, grottoes, senoty).

Here it is necessary to resort to a number of explanatories:

1. The formulation is included in the definition offered by us:

«Getting under criteria of" the archaeological, cultural, historical, scientific and technical and economic importance ». Working out of the listed criteria for objects PKN was not included into a problem of the given research as demands teamwork of a wide range of experts in the field of international law, archeology, cultural science, anthropology, history and other areas of a science and technics. Nevertheless, it is necessary for a priority establishment in protection of numerous and such objects PKN different in the importance. It will demand further additional scientific researches.

2. To «to underwater nature sanctuaries with traces of stay of the person», mentioned in item 1 of the Convention of 2001, underwater caves and grottoes with traces of stay of the person concern, for example, wall lists, etc. does not cause doubts, that they are objects of a cultural heritage. However along with the formulation «with traces of stay of the person» we have included in the definition set forth above the formulation «with traces of human activity» as there are underwater nature sanctuaries where the person, nevertheless, in them has been never found out traces of its activity, for example, религиозной47.

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

More on topic § 1.1. Term use «an underwater cultural heritage» in international law and the Russian legislation:

  1. Chapter 1. Concept and classification of objects of an underwater cultural heritage of international law
  2. § 1.2. A parity of institutes «underwater cultural heritage», "cultural heritage" and «a natural heritage»
  3. § 3.3. Expediency of ratification by the Russian Federation Conventions on protection of an underwater cultural heritage of 2001
  4. 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
  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. § 2.2. The purposes and features of positions of the Convention on protection of an underwater cultural heritage of 2001
  9. § 2.4. The mechanism of the resolution of disputes, connected with an underwater cultural heritage
  10. § 2.3. Problems of realisation of the Convention on protection of an underwater cultural heritage of 2001
  11. § 1.4. Classification of the factors representing threat for objects of an underwater cultural heritage
  12. § 2.5. A substantiation of necessity of acceptance of additions and changes to the Convention on protection of an underwater cultural heritage of 2001
  13. § 1.3. Kinds and classification of objects of an underwater cultural heritage
  14. Anisimov IGOR OLEGOVICH. INTERNATIONAL LEGAL PROTECTION of OBJECTS of the UNDERWATER CULTURAL HERITAGE. The dissertation on competition of a scientific degree of the master of laws. Moscow,, 2014 2014
  15. Discrepancy of the term of "norm of international law” in a formulation context ch. 4 items 15 of the Constitution of the Russian Federation
  16. 3.2 Features of privatisation of objects of a cultural heritage
  17. the convention on protection of the world cultural and natural heritage of 1972
  18. § 2.1. Concept of cultural values in international legal akyotah and in the international law doctrine.
  19. § 2. An international law role in structure modernisation kodifitsirovannyh certificates of the Russian legislation