There is little doubt that warships have a special legal status on international law. A warship enjoys immunity and no State other than its flag State could exercise jurisdiction over it. According to the United Nations Convention on the Law of the Sea (UNCLOS),
“warship ” means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.
The UNESCO Convention on the Protection of the Underwater Cultural Heritage, adopted in 2001, hereinafter referred to as the “2001 Convention”, defines
“underwater cultural heritage ” 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 such as:(i) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context;(ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (ill) objects of prehistoric character.
Thus, warships that have been submerged for more than 100 years are also included in the definition of underwater cultural heritage (UCH). This raises a question about the legal status of such warships. And if the wreck of an ancient warship is located in the territorial sea of another State, how can we coordinate the interests of its flag State and the coastal State?
Generally, there is little doubt that State immunity continues to apply to recently sunken warships. However, when it comes to the immunity of warships that have been submerged for over 100 years, no express rules can be found in international law. This also stirred up considerable controversies among legal scholars. Some scholars argue that a sunken warship can not enjoy State immunity indefinitely. Could the wreck of a warship that has been submerged for a century maintain its legal status of warship? Could the principle of State immunity continue to apply to such a shipwreck as national security may no longer be an issue when it comes to a wrecked 16th century Spanish galleon or a wooden junk dating back to the Ming Dynasty? State practice differs tremendously in this domain and even the practice of one single State can vary from time to time.
In the academia, systematic research is absent regarding the legislations of China and ASEAN States on the legal status of sunken warships. The existing researches primarily focus on some specific provisions of the 2001 Convention and the positions of European and American maritime powers in this domain. In recent years, underwater archaeology developed rapidly in China, and the Chinese government raised the initiative to build the 21st-Century Maritime Silk Road. This new situation presents golden opportunities for the protection and management of UCH in the region along the Road. And the research on the positions of China and ASEAN States in this area becomes more meaningful.
This paper will first try to determine whether there are applicable rules of international law in this area, and then briefly analyze the relevant provisions under the 2001 Convention. After that, the paper will focus its analysis on the pertinent provisions of China and ASEAN States, and offer some legislative recommendations.
I. Rules of Customary Law
The formation of a customary rule requires both State practice and opinio juris. Examined in this light, the practice of States, especially those possessing abundant UCH, shows no consistency during the last few decades.
The United States has abundant warship wrecks that can be defined as UCH in its surrounding waters. At the meanwhile, it has a giant navy which has left a significant number of shipwrecks around the world during wars. In the South China Sea, we could still find the shipwrecks of U.S. navy which date back to the Second World War. The attitude of the U.S. towards the legal status of sunken warships may seem to be controversial from time to time. A series of contradictory court verdicts over the status of foreign sunken warships in waters of the U.S. show the lack of clearly defined rules in this domain. While the older cases seldom uphold a foreign State’s rights to its sunken warship, we have witnessed a tendency to respect such rights in more recent court verdicts, like those in the cases of Mercedes and Juno. The consideration behind these cases might be international comity and America’s growing interest in safeguarding its sunken warships located in other States, waters. Some U.S. governmental officials believe that State immunity may stop applying to those remains of warships sunken in the distant past as loss of title of the flag State over such ships can be implied, while State immunity should be accorded to more recent warships for security reasons. However, in reality, it is not always the case.
As to other States’ attitude towards this question, the United Kingdom is among those States who assert firmly their title to their sunken warships around the world, regardless of their sinking time. Nevertheless, in some cases, it also has to negotiate with the coastal States in whose territorial seas its shipwreck has been found and is obliged to give up some of its claims. For example, in the case of H.M.S. Birkenhead, a shipwreck lying in the territorial waters of South Africa, both the United Kingdom and South Africa claimed title to the sunken warship as well as the gold it carried. Finally, the two States reached an agreement to share any gold recovered from the shipwreck.
In general, State practice shows no consistency and continuity in this domain, let alone the existence of opinio juris. Therefore, many scholars, including the author, believe that no rule of customary international law has formed in this regard.法宝
II. Interpretation of the Relevant Provisions under the 2001 Convention
The UNCLOS is the most important international treaty in the field of the law of the sea. It, however, merely contains two articles (i.e., Arts.149&303) with respect to UCH protection. Furthermore, these two articles made no direct reference to the remains of warships; and they merely mention archaeological and historical objects found in the contiguous zone and the international seabed area, without mentioning other waters. The insufficiency of UNCLOS necessitates the creation of a special international treaty dealing with the protection of UCH.
At the beginning of the negotiations of the 2001 Convention, maritime powers have tried to exclude the application of the forthcoming convention to warships, seeking to maintain exclusive control over their sunken warships. One draft of the Convention states that “[t]his Convention shall not apply to the remains and contents of any warship, naval auxiliary, other vessel or aircraft owned or operated by a State and used, at the time of its sinking, only for non-commercial purposes." Excluding warships, an essential kind of vessels, from the application of the convention, would not facilitate the provision of maximum protection to UCH. Under this circumstance, the Group of 77 submitted the following proposal, which was later absorbed in Art.2(8) of the present version of the 2001 Convention:
Consistent with State practice and international law, including the United Nations Convention on the Law of the Sea, nothing in this Convention shall be interpreted as modifying the rules of international law and State practice pertaining to sovereign immunities, nor any State s rights with respect to its State vessels and aircraft.
This provision, on the one hand, ensures that the measures and criteria for UCH protection laid down by the 2001 Convention and, particularly by its Annex - Rules Concerning Activities Directed at Underwater Cultural Heritage, could apply to the remains of warships that meet the definition of UCH. On the other hand, it is also the result of a compromise to the claims of maritime powers.
Art.1(8) of the 2001 Convention defines “State vessels and aircraft” as,
warships, and other vessels or aircraft that were owned or operated by a State and used, at the time of sinking, only for government non-commercial purposes, that are identified as such and that meet the definition of underwater cultural heritage.
Art.7(3) of the 2001 Convention states that,
Within their archipelagic waters and territorial sea, in the exercise of their sovereignty and in recognition of general practice among States, States Parties, with a view to cooperating on the best methods of protecting State vessels and aircraft, should inform the flag State Party to this Convention and, if applicable, other States with a verifiable link, especially a cultural, historical or archaeological link, with respect to the discovery of such identifiable State vessels and aircraft.
The meaning of Art.7(3) remains uncertain with regard to the legal status of sunken warships. One might ask what is the exact content of “general practice among States”. Does it equal to international comity or a customary rule which has already come into existence. Additionally, as many scholars rightly pointed out, when describing the coastal State’s obligation to inform the flag State, the Convention uses the word “should”，rather than the most generally used word “shall”. This probably implies that the Convention did not intend to impose upon the coastal State a legal obligation to inform the flag State. This vagueness might be a proof of reluctance of the Convention drafters to affirm or deny the existence of a customary rule with regard to the legal status of ancient wrecks of warships.
In practice, as many scholars argued, it is not easy for a coastal State to fulfill its obligation to inform the flag State. Actually, without sufficient investigation and recovery, it is quite difficult to determine the status of a ship which has been underwater for at least 100 years. In that case, before the end of such investigation and recovery work, the coastal State would find it challenging to discharge its obligation to inform the State concerned. On the other hand, the status of the flag State might have changed by the passage of time. For example, in some cases, no State is able to continue the claim of the original flag State; or the original flag State was divided into several States, or merged with another State to form a new one.
Therefore, maritime powers, like the United States, are dissatisfied with the relevant provisions of the 2001 Convention, since they believe that the Convention fails to provide sufficient protection to State vessels and aircraft, including warships. In reality, several agreements have been reached on the conservation of sunken warships of one State in another State’s territorial waters. The agreement between France and the United States regarding the sunken vessel La Belle is an example. While acknowledging French title over the ship, the two States have managed to work together for the best protection of the shipwreck. Australia and the Netherlands have also made arrangements for the protection of multiple V.O.C ships in Australian waters. The Netherlands transferred its property right over these shipwrecks to Australia but nevertheless retains its right to share the objects recovered, as long as the split does not result in their irreversible dispersal. Notably, there are also bilateral agreements denying the flag State’s title over the shipwrecks. In these agreements, the States concerned solely agreed to cooperate to remove the ship from seabed and share the objects recovered. Such agreements show that some States assert that ancient shipwrecks have been abandoned by their flag States.
Another question arises concerning the ownership of the cargo on board the warship. The 2001 Convention, Art.7(3) also takes into consideration the rights of “other States with a verifiable link, especially a cultural, historical or archaeological link, with respect to the discovery of such identifiable State vessels and aircraft”. Some States claim that the cargo on board should be considered a part of the shipwreck itself, this article, however, seems to point at another direction. In the case of Mercedes, Peru contended that the cargo on board the Spanish warship “physically, culturally and historically originat[ed] in Peru” and its rights should prevail over the Spanish rights on the basis of “prohibition against pillage of occupied countries”. The American district court dismissed the case, as it held that it did not have jurisdiction over it and suggested that Pern’s “challenges might be dealt with in another forum on another day.” The court did not deny any right that Peru might have over the cargo on board, to the contrary, it has to some extent acknowledged the existence of such rights.
III. Legislations of China and ASEAN States
A. Legislation of China
In Chinese waters, there exist large quantities of sunken warships which have witnessed fierce wars and conflicts raging on in this country for centuries. Among the identifiable shipwrecks, there are warships of the colonial powers dating more than 100 years ago and there are also more recent shipwrecks of the Japanese invaders. How to deal with the wrecks of these foreign warships? This remains a quite thorny question to Chinese authorities.
The Chinese government enacted in 1982 the Law of the People’s Republic of China on Protection of Cultural Relics (hereinafter “the 1982 Law”), which was amended in 1991,2002,2007 and most recently in 2013. The law establishes the basic standards to be followed to protect land and underwater heritage. Faced with serious looting of UCH during the 1980s, China promulgated the Regulation of the People’s Republic of China on the Protection of Underwater Cultural Heritage (hereinafter “the 1989 Regulation”)on 20 October 1989. Being China’s first instrument dealing this specific issue, the Regulation sets forth the basic rules for the protection of such heritage, and also contains detailed provisions on the jurisdiction and the ownership over such heritage.
China claims the ownership and jurisdiction over all the UCH found in its territorial waters, which includes, technically, the remains of foreign warships that meet the definition of UCH. Shipwrecks submerged underwater for less than 100 years could also be defined as UCH under Chinese legislation (Art.2 of the 1989 Regulation), therefore, even some recent shipwrecks