Yingying Jing & Juan Li. Coastal Management, Volume 47, Issue 1. 2019.
Introduction
The South China Sea is a semi-enclosed sea that is surrounded by several states (such as China, Vietnam, Malaysia, Indonesia and Philippines) with conflicting claims to islands and maritime zones (Tonnesson 2000). The South China Sea which was served as a major sea-lane through which culture and business have spread to the world, has a history, such as the ancient Maritime Silk Road (Nordquist, Moore and Fu 2006). In recent years, the geo-political situation of the South China Sea becomes increasingly contested as representedby the international arbitration between The Philippines and China. The Paracel Islands are disputed between China and Vietnam, and the following States claim islands and/or maritime zones in the Spratly Islands; Philippines, Malaysia, Brunei, Vietnam and China (Tonnesson 2000). The South China Sea and the adjacent sea areas were a prosperous center of ancient maritime civilization where the Eastern maritime civilizations met their Western counterparts, were also terminal points of numerous historical ocean voyages with a large number of remains of sunken ships from ancient China and other countries (Liu and Fu 2013). The volume of submerged underwater cultural heritage is an asset for human kind, which justifies their preservation. The disputes and strategic gaming for territorial claims in the South China Sea region are high priorities for states. Despite the unsettled disputes, there seems to be substantial agreement that underwater cultural heritage in this area should be protected not only for the benefit of each state but also for the benefit of humankind. The dispute in the South China Sea has history and intensifies in recent years with the submission of the Philippines to the International Court of Justice in 2013. All selected disputed states intend to seek best interest of themselves.
According to the National Museum of China, there are thousands of shipwrecks in the South China Sea (Li and Fang 2007; National Museum of China (中国国家博物馆) 2013). The underwater cultural heritage now is insufficiently protected and is under threat of being salvaged (People.cn (人民网) 2013; SoHu News (搜狐新闻) 2011; Zhao (赵锋) 2017). This article will discuss the question of ownership protection of underwater cultural heritage in the South China Sea by analyzing legislation of selected three states (including China, Vietnam and Philippines). The three states selected for examination in this article are active in the territorial disputes in the South China Sea. There are disputes over islands and maritime delimitation between China and the other two states. To defend claims to islands in the South China Sea, these states have taken many initiatives, such as patrol by military vessels, fishing in disputed areas, exploitation of natural resources and resorting to international arbitration (Zhao 2013; Dutton 2011; Gao 1994). Under such situation, how the underwater cultural heritage will be protected and preserved becomes problematic in this sea area, especially the ownership issue which will be discussed in this article. This article will mainly discuss legislation for underwater cultural heritage in China, Vietnam and Philippines, analyzing provisions of ownership respectively and proposing issues and suggestions. There are two parts of this article. Part one first introduces legislation on ownership of underwater cultural heritage of the selected states. Part two addresses the potential ownership disputes for underwater cultural heritage between China, Vietnam and Philippines. Also, there are suggestions for resolving the disputes.
The Protection of Underwater Cultural Heritage under International Law
According to the 2001 United Nations Rducational, Scientific and Cultural Organization Convention on the Protection of the Underwater Cultural Heritage (hereinafter UCHC), underwater cultural heritage is defined as “All traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years.” Pipelines and cables placed on the seabed, as well as installation other than pipelines and cables, placed on the seabed and still in use, shall not be considered as underwater cultural heritage. However, because of high technology development, underwater cultural heritage has become easier to access. Threats from commercial salvage and underwater activity cause damage and destruction to underwater cultural heritage. Therefore, the protection of those valuable sites and objects becomes a vital issue. Internationally, there are mainly two conventions related to underwater cultural heritage, the YEAR United Nations Convention on the Law of the Sea (hereinafter UNCLOS) and the UNESCO Convention on the Protection of Underwater Cultural Heritage (hereinafter UCHC).
The UNCLOS is the first international comprehensive convention in light of resovling isseus of seas. There are two articles of the UNCLOS that relates to underwater cultural heritage, Article 149 and Article 303. Even though there are only two articles relate to underwater cultural heritage, there two articles provide information on protection of underwater cultural heritage in the territorial waters, Area, and contiguous zone. UNCLOS defines that coastal state has exclusive right in its territorial waters. Therefore, underwater cultural heritage in this area is owned by the coastal state. In the Area, as provides in 149, member state has obligation on protection. In the contiguous zone, coastal state needs to protect underwater cultural heritage in this sea area and has right to control traffic of underwater cultural heritage if removal of underwater cultural heritage results in an infringement within its territory or territorial sea of the law and regulations under Article 33 of the UNCLOS. However, there is mention of underwater cultural heritage in the Exclusive Economic Zone and on the continental shelf.
The UCHC, which was adopted in 2001 and came into force in 2009, is the first specific international instrument to directly and comprehensively address issues related to the protection of underwater cultural heritage. The UCHC is centered on four key principles: an obligation to preserve underwater cultural heritage; in situ preservation as the preferred option; noncommercialization of underwater cultural heritage; and cooperation among States. The in situ preservation of underwater cultural heritage should be considered as the first option before allowing or engaging in any further activities (UCHC, Article 2(5)). This principle ensures that activities directed at underwater cultural heritage must use nondestructive techniques and survey methods in preference to recovery of objects (Bautista 2012). After years of sinking, underwater cultural heritage integrated with the surrounding environment, any directive activity may break such consistency. Therefore, the in situ principle is finalized in the UCHC. Even though in situ preservation is preferenced, there is no complete prohibition of excavation of underwater cultural heritage in certain instances. Furthermore, the UCHC provides comprehensive rules concerning activities directed at underwater cultural heritage. The Rules are also considered as one of the achievements of the UCHC. In the project of building of regional capacity in the Asia Pacific, the Annex of the Rules are used as directions (UNESCO, Training Manual for the UNESCO Foundayion Course on the Protection and Management of Underwater Cultural Heritage in Asia and Pacific 2012), the Rules contained in the Annex of the UCHC constitute the widely accepted standards, even if a State has not signed and ratified the UCHC, such as the United Kingdom (Department for Culture Media and Sport, UK, 2014).
The UCHC addresses most aspects of underwater cultural heritage. However, it does not address the issue of ownership. It can be interpreted that the ownership of underwater cultural heritage is left to determination of domestic law of state (Dromgoole 2015, 117). The approach that there is no mention of ownership of underwater cultural heritage can avoid dispute between states (UNESCO, The UNESCO Convention on the Protection of the Underwater Cultural Heritage). However, the issue of ownership concerns states because of the value of underwater cultural heritage.
Even though there is no discussion or provision relating to ownership, it cannot be dismissed because if there is a discovery of underwater cultural heritage, who could claim right and how to preserve it will concerns for states, especially in the disputed sea area like the South China Sea. The current maritime dispute between China and surrounding states intensifies the protection of underwater cultural heritage because state can claim different rights in different sea areas. In 2013, a French-Philippine team exploited a Chinese shipwreck in the South China Sea where both China and Philippines claim (Guilford 2013). China sent marine-surveillance vessel and issued instructions to drive the team away from the waters (Guilford 2013; Erickson and Bond 2015). With the development of the technology, the underwater cultural heritage will become more accessible in the South China Sea; the ownership issue will be more acute. Therefore, it is necessary to make an analysis of this problem according to disputed states’ legislation and propose recommendations of resolution.
Introduction of South China Sea
Vietnam held naval exercises near the disputed maritime area with China, such as the naval activities in 2011 in the South China Sea (CCTV 2011; Thayer 2011; Rustandi 2016; Kurlantzick 2015); Vietnam also proposed to discuss the dispute with China in the Association of Southeast Asian Nations and supported fishing around the disputed waters in the South China Sea. The dispute between China and Philippines is also intense. Philippines submitted the dispute between China and Philippines in the South China Sea to the Permanent Court of Arbitration. Philippines also undertakes military activities, such as patrolling and civil activities to demonstrate its right in the South China Sea. China has challenged other national claims in the South China Sea by building islands, commencing oil and gas drilling, sending military patrols and fishermen into disputed areas as well.
However, the underwater cultural heritage in the South China Sea is threatened by environmental change and human activities. Besides commercial shipwrecks, there are also military ships sunk in the South China Sea from the two World Wars. In order to ensure the protection of those underwater sites, identification of ownership is essential. This issue may cause further disputes between China and the selected states in the South China Sea because of different provisions related to underwater cultural heritage.
Protection of Underwater Cultural Heritage in China
China is a coastal state of about 18,000 kilometers of coastline. There are thousands of valuable underwater remains of interest to China. The protection underwater cultural heritage in China started from the case of Geldermalsen which was discovered and salvaged by Mike Hatcher and then sold in Amsterdam in 1986. The products sold originated from China but the government of China could do nothing to prevent the salvage and sale of the underwater remains because there was no legislation that China can claim right at that time (Liu 2014). After this, the necessity of protection of underwater cultural heritage in Chinese waters was studied and many actions taken. In 1987, the first underwater archeology organization was established in China which aims at studying and developing underwater archeology (Liu 2014). In 1989, the specific legislation Regulations of the PRC Concerning the Administration of the Work for Protection of Underwater Cultural Relics (the Regulation) was enacted and played its role on protecting underwater cultural heritage.
The 1989 Regulations provide protection on several aspects, such as ownership, establishment of a protective buffer zone, obligation to report discovery of underwater cultural heritage, standards for management of activities directed to underwater cultural heritage, as well as reward and punishment for violation of the rules. The provision of ownership was prioritized to be advanced at the time of adoption. The Regulations (Articles 2 and 3) claim ownership of all the cultural relics of Chinese origin, or of unidentified origin, or of foreign origin that remain in the Chinese inland waters and territorial waters; cultural relics that are of Chinese origin or of unidentified origin that remain in sea areas outside the Chinese territorial waters but under Chinese jurisdiction according to the Chinese law; cultural relics of Chinese origin that remain in sea areas outside the territorial waters of any foreign country but under the jurisdiction of a certain country, or in the Area. The detailed provisions on the issue of ownership are deemed an effective approach on protection of underwater cultural heritage. The government of China encourages establishment of a protected zone for underwater cultural heritage site which is threatened and needs to be protected where it is located. Any threatening activities to underwater cultural heritage are forbidden around the protected zone. There is no further explanation of the distance of the protection zone, which is left to be determined by the government. There is a reporting obligation that “Any units or individuals who discover underwater cultural heritage should report to the State Administration for Protection of Cultural Relics or to the administrative departments for cultural relics in the localities.” Archaeological exploration and excavation activities with respect to underwater cultural heritage shall have, as their objective, the protection of cultural relics and scientific research. Such provision excludes commercial salvage of underwater cultural heritage in the China waters.
The Regulations provide a sound system to safeguard underwater relics. However, there is an issue of underwater cultural heritage which is located in the disputed maritime zones. If the underwater cultural heritage has origins from China or from unidentified owner, China claims the right to its ownership under the Regulations. If China does so, for the underwater cultural heritage unidentified, other states in the South China Sea may also claim ownership, therefore, there will an issue with another state which may also claim the same right in the disputed maritime seas. It is unclear whether China can claim any marine cultural heritage for “all” unidentified origin beyond national jurisdiction.
Protection of Underwater Cultural Heritage in Vietnam
Vietnam is a coastal state, and its seafaring activities have been extensive for a long history (Staniforth 2012). Vietnam a state of the South East Asia and it is also a state on the route of the “Maritime Silk Route” that ran from China to the west through the South China Sea (Staniforth 2012). The first Vietnamese underwater heritage operation at the Con Dao (Vung Tau) shipwreck, found at a depth of 40 m in waters south of Vietnam, began in 1990 (Goran 2016). After this, four more underwater operations were conducted by the Vietnam government with cooperation with a state-owned commercial company for recovery of artifacts (Goran 2016; Flecker 1992).
Since 2008 an interdisciplinary team of researchers and academics that includes specialists in archeology, surveying, geophysical research, paleo-landscape and historical studies from the USA, Australia, Canada, and Japan has been working at the site of the Bach Dang battle of 1288 A.D. in cooperation with researchers from the Institute of Archaeology (IA) at the Vietnamese Academy of Social Sciences (VASS) with the support of the Quang Ninh Province Management Board and the cooperation of the Yen Hung district (MUA).
In 2012, the Nautical Archaeology Society (NAS), which is a non-governmental organization for protection of underwater cultural heritage, gave permission for a pilot program of NAS training to be conducted in Vietnam (at no cost) on a “one-off” basis (Staniforth 2012). NAS Training was conducted at the Institute of Archaeology building in Hanoi, over a three-day period during November/December of 2012 (Staniforth 2012). The NAS Training program in Vietnam has been designed to increase awareness at the local, provincial, and national levels about the extent and nature of Vietnam’s underwater and maritime cultural heritage as well as about underwater and maritime archeology (Staniforth 2012). With the assistance of partners, sponsors and contributors, NAS training has been provided free of charge to more than 100 Vietnamese students, government agency personnel, archeologists and others in order to raise awareness of underwater cultural heritage and maritime archeology in Vietnam (Staniforth 2012).
Although Vietnam is relatively new to development of underwater archeology, and even although it lacks the funding to sustain such projects, the country has made reasonable progress (Flecker 2002). In 2001, the government of Vietnam enacted the Law on Cultural Heritage for protection of cultural heritage (Wu (邬勇) and Wang (王秀卫) 2013). The cultural heritage is divided into intangible and tangible elements, comprising intellectual and material products with historical, cultural and scientific value that are passed on from generation to generation in the Socialist Republic of Vietnam, without specific mention of underwater cultural heritage. Article 6 can be interpreted as related to underwater cultural heritage. For the important issue of ownership, the 2001 Law provides “All cultural heritage located under the surface of the mainland, on islands, internal waters, territorial waters, areas of special maritime economic rights, or on the ocean floor of the Socialist Republic of Vietnam belongs to the public cultural heritage of the people” (Cultural Heritage Law 2009 (Vietnam), Article 6). Undoubtedly, within the territorial waters, the government of Vietnam has exclusive rights over underwater cultural heritage. The areas of special maritime economic rights and on the ocean floor could be interpreted as exclusive economic zone and continental shelf. This means the government of Vietnam also claims rights over underwater cultural heritage in the exclusive economic zone and on continental shelf of the Vietnam regardless origin.
In 2005, a Decree on Management and Protection of Underwater Cultural Heritage consisting of 44 articles, was passed. The laws work as protective umbrella for the underwater cultural heritage, aiming at providing activities of managing and protecting underwater cultural heritage in the Vietnam seas. According to the Decree, underwater cultural heritage is defined as “Tangible cultural heritage existing under water and having historical, cultural and/or scientific values.” It is a relatively complete instrument, including definition, ownership, discovery, management, excavation, preservation, responsible, cooperation, commendation, reward, etc. The Decree provides activities of managing and protecting underwater cultural heritage, including cultural heritage in the inland waters, internal waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf of Vietnam (Decree on Management and Protection of Underwater Cultural Heritage 2001 (Vietnam), Article 1). On the issue of ownership, Vietnam takes one-size-fits-all approach that “All underwater cultural heritages having different origins and existing in the inland waters, internal waters, territorial sea, contiguous zone, exclusive economic zone and the continental shelf of Vietnam shall belong to the ownership of the Socialist Republic of Vietnam.”
The Decree of 2005 provides international cooperation in activities directed to underwater cultural heritage to International cooperation will also contribute to underwater cultural heritage of Vietnam origin in foreign state’s waters. For disputes over underwater cultural heritage, the Decree encourages respect for national independence and sovereignty through agreement and equality. Of most concern of the Decree is the inclusive right of underwater cultural heritage in the exclusive economic zone and on continental shelf. In the disputed sea areas, if both Vietnam and another state claims ownership, the question would be how to solve the conflict. The ownership of underwater cultural heritage relates to sovereignty and the issue of ownership should be addressed carefully. If this instrument is strictly implemented, the underwater cultural heritage in Vietnam will be preserved.
Protection of Underwater Cultural Heritage in Philippines
The Philippines is an archipelago composed of approximately 7,107 islands, with combined coastlines of 36,289 km, the fifth longest coastline in the world. It is surrounded by large bodies of water; the West Philippine Sea to the west, the Philippine Sea that stretches to the Pacific Ocean on the east, the Sulu Sea to the southwest and the Celebes Sea to the south (Orillaneda and Ronquillo 2011). The Philippines is well endowed with shipwrecks (Flecker 2002). Ceramic laden Chinese and Southeast Asian ships plied the archipelago since at least as early as the 12th century (Flecker 2002). Manila formed the western terminus of the Manila Galleon trade which lasted for 240 years from 1571 to 1811 (Flecker 2002).
In order to protect and preserve national cultural property, in 1966, Philippines enacted “Cultural Properties Preservation and Protection Act, R.A. 4846” which was amended by the “Presidential Decree 374” in 1974 (National Museum Operations Manual). Sec. 3(o) of Republic Act of No. 4846 expressly illustrates that “For purposes of Republic Act No. 4846 government property covers all lands and marine areas including those covered by license or special permits and those owned or administered by government-owned or controlled corporations, institutions or agencies” (Republic Act No. 4846 (Philippines), Sec. 3(o)). Government property could be interpreted so that underwater cultural properties fall under the jurisdiction of the Republic Act No. 4846. However, this Act focuses more on management, excavation, export, etc. of government property under control of the National Museum.
In the Presidential Decree No. 374, Section 3 provides a more specific definition of cultural property “Cultural properties are old buildings, monuments, shrines, documents, and objects which may be classified as antiques, relics, or artifacts, landmarks, anthropological and historical sites, and specimens of natural history which are of cultural, historical, anthropological or scientific value significance to the nation; such physical, anthropological, …, vehicles or ships or boats in part or in whole” (Presidential Decree No. 374 (Philippines), Sec. 3(a)). In definition of archeological sites, the Decree introduces them as places which may be underground or on the surface, underwater or at sea level which contains fossils, artifacts and other cultural, geological, botanical, zoological materials which depict and document evidence of paleontological and pre-historic events (Presidential Decree No. 374 (Philippines), Sec. 3(j)). Therefore, underwater cultural heritage is included in the Presidential Decree No. 374.
Since 1986, “Policy guidelines for underwater archeology applications to explore and to excavate in Philippines waters” were drafted (Ronquillo 2013). They have, in the succeeding years, undergone several improvement and revisions (Ronquillo 2013) resulting in the specific legislation related to underwater cultural heritage (Protection of Underwater Cultural Heritage Act of 2004) which was enacted in the 13th Congress. It defines underwater cultural heritage as both movable and immovable, include all shipwrecks, sunken vessels at least 100 years old and all things therein, hulls and underwater archeological artifacts; places of ancient tent settlements or vestiges of an ancient civilization; dockyards, piers, aqueducts, tanks, wells; monuments, fragments, shards, or original documents found under water dating from prehistoric times and any other object of scientific, cultural, religious, archeological, anthropological or paleontological interest to the Philippines (Section 3(f) (Protection of Underwater Cultural Heritage Act of 2004). This definition includes much kinds of underwater cultural heritage. These found in territorial waters, regardless of origin, belong to State (Protection of Underwater Cultural Heritage Act of 2004; Section 6). The 2001 Act applies to Philippines waters which includes all waters around, between and connecting the islands of the Philippines archipelago within the territorial sea extending up to 24 nautical miles measured from the straight baselines in accordance with Republic Act No. 3046 as amended by Republic Act No. 5446 (1961) (Protection of Underwater Cultural Heritage Act of 2004, Section 3(a)). There is no provision concerning protection of underwater cultural heritage beyond territorial waters, such as exclusive economic zone and continental shelf. Such a legal gap may lead to damage and looting of underwater treasures.
In 2009, the National Cultural Heritage Act of 2009 was enacted to protect underwater cultural heritage. Article II Section 3 (d) provides “Archaeological Area” shall refer to any place, whether above or underground, underwater or at sea level, containing fossils, artifacts, and other cultural, geological, botanical, zoological materials which depict and document culturally relevant paleontological, prehistoric and/or historic event. The underwater cultural heritage is included in the national legislation, which represents the Philippines government puts the protection of underwater cultural heritage on the national level, and reveals its attitude on providing sufficient protection for underwater cultural heritage.
On the issue of ownership, the Republic Act No. 5546 provides that:
the Constitution of the Philippines describes the national territory as comprising all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on December 10, 1898, the limits of which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on November 7, 1900. And in the treaty concluded between the United States and Great Britain on January 2, 1930, and all the territory over which the Government of the Philippine Islands exercised jurisdiction at the time of the adoption of the Constitution (Republic Act No. 5546 (Philippines) 1961).
Section 30(a)(1) of the National Cultural Heritage Act of 2009 provides “All cultural property found in terrestrial and/or underwater archeological sites belongs to the State.” According to definition of archeological area which refers to any place, whether above or underground, underwater or at sea level, containing fossils, artifacts, and other cultural, geological, botanical, zoological which depict and document culturally relevant paleontological, prehistoric and/or historic events, underwater cultural heritage found in Philippines’ sea area belongs to the State. However, there is no further detail about whether the Act applies to the exclusive economic zone or on the continental shelf, and claimed seabed area. If it applies, any discovery of underwater cultural heritage will belong to the State. Under such assumption, government of Philippine could claim underwater cultural heritage found in the sea area where it claims its sovereignty in the South China Sea. If underwater cultural heritage discovered there can be identified as to origin, and the state of origin claims ownership there could be conflict or dispute over ownership of found underwater cultural heritage.
Ownership Conflict of Underwater Cultural Heritage in the South China Sea
The divergence of laws on the protection of underwater cultural heritage between states in the South China Sea, as well as the unsettled nature of the maritime disputes in the surrounding seas of that area, may cause issues with regard to the protection of underwater cultural heritage, especially concerning issues of ownership underwater cultural heritage. Determining which state the underwater cultural heritage belongs to, not only concerns the value of underwater cultural heritage itself, but may also concern the national interest, as certain underwater cultural heritage may have national value. Therefore, identifying underwater cultural heritage in the South China Sea and finding the appropriate solutions to deal with said underwater cultural heritage becomes more important in light of the current maritime disputes.
Because of the current situation of the South China Sea, the three states have disputes over sovereignty of island and overlapping maritime boundaries of the exclusive economic zone and continental shelf. The issues in the South China Sea have intensified in recent years. Under such circumstances, the protection of underwater cultural heritage becomes more difficult. Who could claim ownership the discovered underwater cultural heritage is an issue. If the disputed state, such as Vietnam or China, claims its ownership, who really is the owner is problematic.
Potential Dispute of Ownership of Underwater Cultural Heritage between Vietnam and China
Regarding the ownership of underwater cultural heritage in the different marine zones, Vietnam adopts a policy of uniformity in inland waters, internal waters, territorial waters, the contiguous zone, the exclusive economic zone and on the continental shelf. According to the Law on Cultural Heritage 2001, the state exercises unified management over the cultural heritage, which state ownership; it recognizes and protects forms of collective ownership, joint ownership of the community, private ownership and other forms of ownership over cultural heritage according to the provisions of law (Law on Cultural Heritage 2001 (Vietnam), Article 5). All cultural heritage under the ground, in the mainland, on islands, in the inland waters, territorial waters, exclusive economic zone or on the continental shelf of Vietnam therefore come under the state’s ownership (Law on Cultural Heritage 2001 (Vietnam), Article 5). This means ownership belongs to the state, which means that the state can claim its rights over them, such as excavation, or authorization, ignoring the state of origin of the underwater cultural heritage. If there is a discovery of valuable shipwreck, Vietnam government has right to claim its right over it and can take measures of excavation and preservation.
According to the 2005 Decree, the ownership of underwater cultural heritage in Vietnam is a “one size fits all” approach, namely that regardless of the origin of underwater cultural heritage which exists in the inland waters, internal waters, territorial sea, contiguous zone, exclusive economic zone, and the continental shelf, that property will come under the ownership of the Socialist Republic of Vietnam by providing: “The ownership of underwater cultural heritage shall be determined on the following principles:
- All underwater cultural heritage having different origins and existing in the inland waters, territorial sea, contiguous zone, exclusive economic zone and the continental shelf of Vietnam shall belong to the ownership of the Socialist Republic of Vietnam.
- The determination of ownership of underwater cultural heritage of Vietnamese origin, which lie beyond the areas defined in Clause 1 of this Article, shall be based on the provisions of the Law on Cultural Heritage and international treaties to which the Socialist Republic of Vietnam has signed or acceded” (Decree on Management and Protection of Underwater Cultural Heritage (Vietnam), Article 4).
Article 5(1) of the 2005 Decree provides the respect of other kinds of ownerships by stipulating that:
The state performs the unified management of underwater cultural heritage under ownership of all the people; recognise and protect forms of collective ownership, common ownership of communities, private ownership and other forms of ownership of underwater cultural heritage under the provisions of law (Decree on Management and Protection of Underwater Cultural Heritage (Vietnam), Article 5(1)).
Even although Article 5 of the 2005 Decree defines different kinds of ownership, the state controls all management of underwater cultural heritage as is provided in Article 5 of the Decree. Maybe there is a potential issue between the two Articles 4 and 5 of the 2005 Decree. For the underwater cultural heritage of Vietnam origin in the Area or in foreign state’s waters, the issue of ownership will be determined based on the 2001 Act and international treaty. This may raise a potential issue of Articles 4 and 5 of the 2005 Decree that on the one hand the state claims all ownership to all underwater cultural heritage within the waters under its jurisdiction; on the other hand, the state also respects other kinds of ownership. Such inconsistency may lead to a situation that when there is underwater cultural heritage of foreign state in Vietnam waters, i.e., whether the foreign state could claim the right of the discovered underwater cultural heritage as state of origin. Vietnam has right to claim ownership according to Article 4 of the 2005 Decree, whether or not the right of the foreign state will be respected is a problem.
The “one size fits all” approach to underwater cultural heritage seems straightforward. But the situation in the South China Sea is different. Vietnam and China are Southeast Asia’s principle protagonists in the South China Sea dispute (Schofield and Storey 2009). Both Vietnam and China asserts sovereignty over both the Parcel and Spratly islands based on historical usage dating back to, at least, the 17th century (Schofield and Storey 2009). Since 1975, Vietnam has claimed the Paracel and Spratly Islands based on historical claims of discovery and occupation (Emmers 2010). In 1977, Vietnam established an Exclusive Economic Zone of 200 nautical miles (Emmers 2010). Vietnam’s claim to a continental shelf and a 200 nautical miles exclusive economic zone overlaps with rival claims that have been made by China (Tønnesson 2000). China also enacted its Law of the PRC on the Exclusive Economic Zone and the Continental Shelf which claims a 200 nautical mile exclusive economic zone and continental shelf. The width of the South China Sea between China and Vietnam is less 400 nautical miles, therefore, there is a salient overlapping of these waters.
If there is any discovery of unowned underwater cultural heritage in a claimed exclusive economic zone, e.g., in the vicinity of the disputed islands, determining who owns that underwater cultural heritage becomes problematic, because both states claim ownership in the exclusive economic zone and on the continental shelf. But the difference, insofar as the overlapping exclusive economic zone and continental shelf is concerned, is that China is only concerned with underwater cultural heritage of Chinese origin and unidentified origin in the exclusive economic zone or on the continental shelf; where Vietnam claims all forms of underwater cultural heritage, regardless of its origin. Therefore, when underwater cultural heritage of Chinese origin or unidentified origin is discovered in the disputed sea area, both China and Vietnam could claim their rights over it, which in turn means that determining who has ownership and rights becomes a pivotal issue. This may further adds to the tensions between China and Vietnam in this particular sea area. Ownership is crucial for the protection of underwater cultural heritage, as confirming the ownership will contribute to proper and suitable measures for underwater cultural heritage’s protection.
Potential Dispute of Ownership of Underwater Cultural Heritage between Philippines and China
Analyzing the law concerning underwater cultural heritage in Philippines, both the “Cultural Properties Preservation and Protection Act” and “Presidential Decree 374” do not deal specifically with underwater cultural heritage. They set up a protective mechanism for cultural property by establishing a registration system to regulate the import and export of cultural heritage (Wu (邬勇) and Wang (王秀卫) 2013). The specific underwater cultural heritage regulation is the Act Providing for the Protection and Conservation of All Objects of Underwater Cultural Heritage in Philippines Waters (the Protection of Underwater Cultural Heritage Act) of 2004, which provides for the protection and conservation of all underwater cultural heritage in Philippines waters and provides more information on underwater cultural heritage.
This 2004 Act applies to Philippines waters which means all the surrounding waters, between and connecting the islands of the Philippine archipelago and the territorial sea extend up to twenty-four (24) nautical miles, measured from the straight baselines in accordance with the Republic Act No. 3046, as amended by the Republic Act No. 5546 (1961) (Protection of Underwater Cultural Heritage Act of 2004 (Philippines). Further, all the waters within the limits set forth in the mentioned treaties have always been regarded as part of the territory of the Philippine Islands (Republic Act No. 5546 (Philippines), 1961). This means that the Philippines protect underwater cultural heritage which is located in the inland waters, territorial waters and contiguous zone. However, only the objects of underwater cultural heritage which have been underwater for at least 100 years in Philippines territorial waters belong to the state by stipulating in Section 6 of the 2004 Act that: “Upon approval of this Act, ownership of all objects of underwater cultural heritage in territorial waters, regardless of origin, is vested directly in the State.” For the ownership of underwater cultural heritage in the contiguous zone, there is no mention in the 2004 Act. There is also no further information on objects located in the exclusive economic zone, the continental shelf, or the Area.
The recent 2009 National Cultural Heritage Act reaffirms the Philippines’s ownership of cultural properties found in underwater archeological sites. There are two kinds of archeological area in the 2009 Act. For the mention of underwater cultural heritage, the archeological area refers to any place, whether above or underground, underwater or at sea level, containing fossils artifacts and other cultural, geological, botanical, zoological materials which depict and document culturally relevant paleontological, prehistoric and/or historic value. (National Cultural Heritage 2009 (Philippines), Sec. 3(d)). For the ownership of the underwater cultural heritage, Section 30(a)(1) of the 2009 Act stipulates: “All cultural properties found in terrestrial and/or underwater archaeological sites belong to the State.” However, there is no explanation of underwater archeological sites. Therefore, there is no specific provision relating to underwater cultural heritage in the contiguous zone, the exclusive economic zone, on the continental shelf and in the Area.
In the South China Sea, the Scarborough Reef, which is claimed by both China and the Philippines, is situated well within the exclusive economic zone of the Philippines (Elferink 2001). China asserts that the Scarborough Reef and its adjacent waters have been Chinese territory for generations and that it discovered the Shoal, incorporated it into its territory and exercised jurisdiction over it (Beckman 2012). The Philippines asserts that it has exercised effective occupation and effective jurisdiction over the Shoal since its independence in 1946 (Beckman 2012). To reinforce this claim, the Philippines points out that it built a lighthouse on the Shoal in 1965 and that is has conducted surveys and research in the waters surrounding the Shoal (Beckman 2012). Besides the dispute between Philippines and China over the Scarborough Reef, there is also over lapped exclusive economic zone in the South China Sea (O’Rourke 2017).
If the underwater archeological sites are interpreted as the underwater cultural heritage in where located in the waters under Philippines’ jurisdiction, there will be potential issue over protection of underwater cultural heritage in the claimed overlapping exclusive economic zone in the South China Sea. In 2013, Philippines-registered vessel took an exploration of a 13th century Chinese wreckage in the South China Sea (Erickson and Bond 2015; Guilford 2013; Page 2013). This case indicates the information that the location of the Chinese shipwreck may be in the disputed sea areas and Philippines claims ownership of Chinese shipwreck. The disputed sea areas in the South China Sea between China and Philippines includes the claimed overlapping exclusive economic zone. From this case, it can be interpreted that Philippines claims jurisdiction of underwater cultural heritage in the exclusive economic zone.
Because there is no clear provision on underwater cultural heritage in the Philippines’ exclusive economic zone, as well as the fact that China claims jurisdiction (including ownership) over underwater cultural heritage of Chinese or unidentified origin in the exclusive economic zone, when there is any discovery of valuable underwater cultural heritage of unidentifiable or of foreign origin near the Scarborough Reef or in the overlapped exclusive economic zone, the issue of who owns that underwater cultural heritage will naturally provoke tension between China and the Philippines. If there is no owner, either China or the Philippines could have jurisdiction over the discovered underwater objects. The problem is that, if China were to claims its rights, would the Philippines agree or would take measures to prohibit it? Or if the Philippines claims its rights, would China agree? If the event mentioned above about the underwater archeology of the Chinese shipwreck in the South China Sea represents the attitude of government of Philippines over protection of underwater cultural heritage in its exclusive economic zone, can we interpret that the Philippines government controls underwater cultural heritage in the exclusive economic zone of foreign state. If this is the case, the conflict will be more intensive because China also claims its right of underwater cultural heritage of Chinese origin in its exclusive economic zone including the disputed exclusive economic zone with Philippines.
Recommendations for Resolving Issues
In the South China Sea, under the current legislation, it may be interpreted that three states either claim ownership over underwater cultural heritage in their exclusive economic zone or on the continental shelf, or they have not enacted clear underwater cultural heritage legislation on this matter. Because there are unsettled territorial disputes among these states, and because China’s laws and regulation claim jurisdictional rights over the said underwater cultural heritage in the disputed areas, these constitute specific issues in the disputed areas. Due to the complexity of dispute in the South China Sea, the protection of underwater cultural heritage in that area is difficult. If this issue could not be addressed in a proper way, this issue will intensify the current situation of growing tension between China and disputed states in the South China Sea.
Because there is no bilateral agreement or multilateral agreement on the issue of underwater cultural heritage, this is seemed more difficult. Furthermore, none of the three states ratify the UCHC even this convention provides measures in light of underwater cultural heritage. Like in the case of the arbitration between China and Philippines. China always expresses its stance that it would like to resolve this dispute through negotiation and cooperation. Therefore, international cooperation seems a better approach for the preservation of underwater cultural heritage. I recommend the states develop a plan/agreement to cooperate to protect underwater cultural heritage. First, there states need to come to the negotiating table to discuss this issue and share their information on protection of underwater cultural heritage. Second, they could develop agreement, include issues of discovery, excavation, preservation and cooperation regarding underwater cultural heritage. Based on cooperation, in situ principle which is one of sprits of the UCHC needs to be considered as the first option. For the issue of ownership, states could also recognize that the state of origin of underwater cultural heritage should be respected. This is consistent with the principle of the UCHC. Setting up fund for protection of underwater cultural heritage is workable through cooperation among states. If the underwater cultural heritage could not be protected in situ and it is necessary to excavate the underwater cultural heritage, states can rely on the fund to afford the excavation and protection fees. For the underwater cultural heritage which is protected in the place where it is buried, the issue of ownership is easier because the potential dispute between states of the buried and protected underwater cultural heritage is left out. For those excavated and protected objects, where to protect them is necessary to decide among states. It may be possible to build a museum for the protected underwater cultural heritage in the state which has link with it because of the respect of state of origin. The cost of building the museum and running expenses needs to be supported by the states.
All the protection of underwater cultural heritage builds upon cooperation and communication among states. Otherwise, the underwater cultural heritage may be salvaged and sold in the world, we could not afford much loss of valuable underwater cultural heritage.
Conclusion
The South China Sea has been located right in the path of the Maritime Silk Road and the trade networks of Southeast Asian countries. There are numerous underwater remains; most are shipwrecks. However, these treasures have become the targets of salvors and looters because of their economic value. This indicates the situation of underwater cultural heritage in the South China Sea is urgent and proper protection for them should be taken immediately. According to analysis above, some states around the South China Sea have legislation for protection of underwater cultural heritage. National laws of states in the South China Sea generally provide protection on multiple aspects of underwater heritage protection, such as ownership, exploration and excavation, discovery reporting, cooperation, reward, and punishment.
Faced with the current extremely tense situation in the South China Sea, the protection of underwater cultural heritage seems to be afforded less attention in comparison with the potentially huge economic value of underwater gas, oil and other resources. It is necessary to work out measures for preserving valuable underwater remains before they are lost. The legal protection of underwater cultural heritage in the South China Sea is insufficient through limitations of each state’s efforts. Even worse, the disputes among states in the South China Sea has yet resolved. A better approach for protection of underwater cultural heritage is cooperation among states. Furthermore, there could be study and communication over technology of underwater archeology, information exchange and development of a united protection and monitoring system. The more cooperative approach taken by states, the better likelihood there is for preservation for underwater cultural heritage.