On the Comprehensive Protected Area for Underwater Cultural Heritage in the South China Sea

WANG Jing

Abstract: As cultural heritage exists as the legacy of human-nature interaction,underwater cultural heritage may be seen as an integral part of the marine ecological and environmental system in the broad.The rules of international law governing underwater cultural heritage include the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage,the 1982 United Nations Convention on the Law of the Sea,the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage,etc.However,there is a lack of implementation mechanism;particularly,for the protection of underwater cultural heritage in trans-boundary waters or those with disputed jurisdiction,there is an obvious gap in international law.In this context,it is of significance to try to build a comprehensive protected area for the protection of underwater cultural heritage and establish relevant rules of international law by referring to the more mature system and practice of marine protected areas in the practice of international law of the sea,considering the characteristic of underwater cultural heritage,which is combined with marine living resources.The underwater cultural heritage in the South China Sea,including ancient trade shipwrecks,constitutes an important part of the regional cooperation between China and ASEAN States and the establishment of a regional maritime community with a shared future.ASEAN has always emphasized cultural cooperation,and underwater cultural heritage protection is among the limited areas of cooperation in its framework agreement with UNESCO.China’s involvement in this cooperation will perpetuate the interaction and cultural and social ties that have long existed between neighboring countries in these waters.In this regard,China and ASEAN countries can,following the spirit of “exploration,discussion and cooperation” advocated in the Declaration on the Conduct of Parties in the South China Sea in 2014,champion regional cooperation in the protection of marine resources based on in situ conservation of underwater cultural heritage and establish systems and practices of preventive zoning and protection.This will contribute to curbing the illegal salvage and destruction of underwater cultural heritage in the waters related to neighboring States in the South China Sea in violation of the above-mentioned Conventions,curb disorderly exploitation,reconcile disputes,and promote harmonious development of the region.

Key Words:Convention on the Protection of the Underwater Cultural Heritage;In situ conservation;Marine protected areas;Regional cooperation

The 2001 UNESCOConvention on the Protection of the Underwater Cultural Heritage(hereinafter “2001 Convention”) recognizes underwater cultural heritage as an integral part of the cultural heritage of humanity and a particularly important element in the history of peoples,nations,and their relations with each other concerning their common heritage,and notes that all States should undertake the responsibility to protect and preserve underwater cultural heritage and refrain from commercial exploitation.As the South China Sea Route of the Maritime Silk Road has served as China’s passage to the West by sea since the Han Dynasty,the South China Sea has been a sea where cooperation and exchange have flourished since ancient times.The underwater cultural heritage in this area bears witness to the historical interactions between States around the South China Sea,carries peopleto-people ties,and records the significant historical traces of building a community with a shared future for mankind through the Belt and Road Initiative.As such,it is the common obligation of the international community to cooperate in protecting the underwater cultural heritage.Nevertheless,today still exist so many commercial salvage activities seeking the economic value of underwater cultural heritage in the South China Sea region that violate the spirit of the2001 Convention.The actors ignore their public value in archaeological,historical,cultural,environmental and scientific dimensions as human heritage,as well as the case that some types of cultural relics are highly perishable when removed from the water environment.Therefore,it is particularly urgent to protect the underwater cultural heritage in the South China Sea.There exist a range of differences and contradictions among States around the South China Sea in the protection of underwater cultural heritage as a result of their varied domestic laws and different processes of accession to the2001 Convention.Quite a few scholars cite the Western view that focuses on maritime law and national ship rights to argue that Chinese wrecks should be protected through commercial salvage.Others argue for the protection of underwater cultural heritage only based on the vision of cooperation in the South China Sea and the literal meaning of neighboring countries’ legislation on cultural heritage,but overlook the feasibility of cooperative protection for underwater cultural heritage.1LI Jinhui,An Analysis and Revelation Underwater Culture Heritage Protection Policy of the Neighboring Countries of the South China Sea,Pacific Journal,Vol.19:6,p.72-84 (2011);SUN Nanshen &SUN Wen,Analysis on Legal Issues of the Return of Submarine Historical Relics and Its Enlightenment: From the Perspective of Spanish Shipwreck Case,Journal of Shanghai University of Finance and Economics,Vol.14:6,p.30-37 (2012).(in Chinese)The ownership of underwater cultural heritage is complex,and the international rules are not clear.In particular,there has not yet been a statute for sunken warships and ships of other States that are prone to disputes.Moreover,the archaeological policies of States around the South China Sea are influenced by ingrained nationalism.In this context,before a more mature document is formed at the level of international law,it is of great practical significance to explore international cooperation in the protection of underwater cultural heritage by establishing a regional comprehensive protected area for underwater culture heritage with reference to the theory and practice of delineating marine protected areas.

I.Necessity of Constructing a Protected Area for Underwater Cultural Heritage in the South China Sea

The South China Sea,a central area of the ancient Maritime Silk Road,houses vast amount of underwater cultural heritage such as Chinese and foreign shipwrecks from different periods,which are distributed across the border and in the South China Sea or on ASEAN coasts.Given the great differences in laws and practices of underwater heritage protection among countries and uneven underwater heritage protection,there is a real necessity and urgency to establish a regional comprehensive underwater heritage protected area aimed at cooperation,sharing and public benefit,which is in line with the characteristics of concentrated distribution of underwater cultural heritage in the region and suitable for in-situ conservation.

A.Rich and Diverse Underwater Cultural Heritage in the South China Sea: Witness to the Once Booming Ancient Maritime Silk Road

In prehistoric times,humans used primitive boats to navigate along the island chain,and the semi-closed sea of the South China Sea was advantageous to the interaction of the ancients living in this region.2SUN Guangyin,History of Ancient Chinese Navigation,China Ocean Press,2005,p.37-45.(in Chinese)Arab and India enjoyed the geographical advantage for sea trade as their locations bridged Europe and Asia,and they were earlier to master the technology of navigation adapted to the monsoon,thus controlling the Strait of Malacca—the western gateway in the South China Sea that connects East Asia,Southeast Asia and the Indian Ocean waters.Although China had ways to seek Western treasures since the Qin and Han dynasties,3As early as in the Qin Dynasty,the Chinese government began to develop Lingnan region(today’s Guangxi and Guangdong Province in South China).The sea route leads to India as recorded in the Book of Han · Geography and The Periplus of the Erythraean Sea formed a sea passage connecting the East and the West.A large number of cultural relics from India and Persia can be seen in Hepu Han Tombs and other sites.From the types of unearthed cultural relics and tributary records of later ages,it can be seen that Chinese rulers’intercourse with foreign countries mainly served their needs for luxuries.as well as the official initiative of seven voyages to the West implemented by Zheng He in the Ming dynasty,China was a late participant in maritime trade due to its traditional policy of emphasizing farming and restraining commerce.As a result,the ancients moved by sailing ships utilizing the monsoon winds mainly in the South China Sea,and did not tend to choose long-distance routes to avoid high trade costs and risks.Chinese silk,porcelain,tea and spices from Southeast Asia were mostly shipped to the West via the South China Sea through intermediary trade;these commodities were also transported to the world by European merchants in the age of Great Navigation.This led to an incomparable amount of sunken underwater cultural heritage of Chinese origin in this region in contrast to other regions along the Maritime Silk Road.Therefore,China’s underwater cultural heritage has the following three characteristics: mostly distributed in the South China Sea,mostly from historical trade,and spreading in a relatively concentrated area overlapping with shipwreck locations.

The vast amount of underwater cultural heritage is a reflection of historical trade condition and the physical evidence of the interactions of population,species,technologies,cultures,and ideas,representing an international trait.41996 ICOMOS Charter on the Protection and Management of Underwater Cultural Heritage“By its very character the underwater cultural heritage is an international resource.A large part of the underwater cultural heritage is located in an international setting and derives from international trade and communication in which ships and their contents are lost at a distance from their origin or destination.”The hull of the Cirebon shipwreck may have been built in Indonesia,and the objects recovered include Yue kiln celadon,Thai fine pottery,Malay Peninsula tin ingots,Middle Eastern glassware,Indian and Sri Lankan gems,as well as Buddhist and Muslim artifacts and other daily necessities and personal belongings of the crew.5Adi Agung Tirtamarta,Documentary of Salvage of Shipwrecks in the 10th Century at the Seabed of Cirebon,translated by XIN Guangcan,Palace Museum Journal,Vol.31:6,p.151-154 (2007).(in Chinese)The ownership of the underwater cultural heritage in the South China Sea is more difficult to clarify,both in terms of rights in rem,as emphasized by the cooperative mechanism of the2001 Convention,and in terms of their national,cultural or historical origins.First,the underwater cultural heritage is the creation of or reflects the joint participation of Chinese ancients living around the present-day South China Sea and the foreign visitors in China.Second,there is a lack of records of the cargoes carried by tributary trade and small private trade ships,except for those with company documents.Third,there were so many changes in regime and territory during the historical period that it is difficult to determine the exact State to which the artifacts belong,except for those with clear markings.In practice,China has yet to reclaim the Chinese porcelain and other underwater cultural heritage of Chinese origin but found in the waters of other States.

In the middle of the Ming Dynasty,Europeans entered the Indian Ocean via the Cape of Good Hope in Africa and arrived in Guangzhou via the South China Sea.In the late Ming Dynasty,they arrived in the Americas and Mexico via the Philippines from Guangzhou.The South China Sea saw the sinking of Portuguese,Spanish,French,Dutch and British colonial ships from the 15th to 19th centuries.Although in theOdyssey Marine Exploration,Inc v Unidentified,Shipwrecked Vessel,6United States District Court for the Middle District of Florida,675 FSupp2d 1126;US Supreme Court docket No.11-1067,566 U.S.1005,132 S.Ct.2379.the Spanish galleon and its seized cargo of Peruvian silver coins were awarded to the State of origin,the U.S.’ admiralty court held that the wreck was not engaged in a commercial activity based on the “overall act”,and thus the judgment thatOdysseywas a warship was controversial.7David J.Bederman,Rethinking the Legal Status of Sunken Warships,Ocean Development and International Law,Vol.31:1-2,p.97 (2000);M.M.Losier,The Conflict Between Sovereign Immunity and the Cargo of Sunken Colonial Vessels,The International Journal of Marine and Coastal Law,Vol.33:3,p.528-557 (2017).Moreover,the State’s colonial ship used privately by the crew thereof did not undertake a State’s act,and a companyowned shipwreck or a locally authorized colonial act should not be considered representation of State role as in the aforementioned jurisprudence,and should be regarded as underwater cultural heritage rather than a State property.Before the legal attributes of shipwrecks of State colonial acts and the aforementioned hierarchy of rights are determined,in situ conservation rather than salvage allocation of cultural objects is more appropriate.

B.The Worrying Situation of Underwater Cultural Heritage in the South China Sea: Illegal Salvage,Fraudulent Sale and Commercial Exploitation

In the second half of the last century,the underwater cultural heritage of the South China Sea suffered serious damage from illegal salvors and commercial companies.The latter salvaged shipwrecks including Chinese wooden sailing ships,Southeast Asian sailing ships,Arabian sailing ships and Spanish galleons,and the artifacts salvaged were mostly ancient Chinese porcelain.The Vung Tau,Ca Mau,and Binh Thuan shipwrecks were discovered in Vietnamese waters.The Intan,Cirebon,Batu Hitam and Tek Sing shipwrecks,as well as the Geldermalsen shipwreck,a milestone in the history of underwater cultural heritage that gave rise to the beginning of the underwater archaeology industry in China,were discovered in Indonesia.The San Diego shipwreck was discovered in the Philippines.8LIU Miao &HU Shuyang,Shipwrecks,Porcelain and the Maritime Silk Road,Social Sciences Academic Press (China),2016,p.10-12.(in Chinese)As millions of artifacts rarely seen on land were auctioned off or destroyed for commercial gain,historical information contained in the underwater cultural heritage also perished.Although commercial salvage avoided announcing where the wrecks were found,it can be identified that objects salvaged were from Huangyan Island,and wrecks found in western Luzon,western Palawan,and western Sabah,Malaysia all carried Chinese porcelain.9TONG Xin,Findings and Research of Shipwrecks of 9th to 14th Century in the South China Sea and Southeast Asian Waters,in Underwater Cultural Heritage Protection Center of National Cultural Heritage Administration of China ed.,Studies of Underwater Archaeology Vol.2,Shanghai Classics Publishing House,2016,p.45-101.(in Chinese)States nearby have also carried out excavations on the islands and in surrounding waters over which China has claimed sovereignty.For example,relics including Chinese porcelain discovered on the Investigator Wreck in the northeastern part of Yuya Ansha are stored in the National Museum of the Philippines,among other places.10Marie-France Dupoizt,The Ceramics of the Investigator Shipwreck,paper presented at Symposium on Chinese Export Ceramics Trade in Southeast Asia,12-14 March 2007.Recent years have seen the spread of nationalism as countries such as Vietnam and the Philippines eagerly maximize their maritime rights and interests,while the sovereignty claims of the countries concerned do not budge.States occupying the islands and reefs in the South China Sea have deliberately destroyed China’s underwater cultural heritage,part of the State’s historical evidence.11CAI Yanhong,Underwater Cultural Relics Salvage in China Tend to be Conducted by Groups and Companies,Legal Daily,15 December 2011.(in Chinese)In this context,the underwater cultural heritage in the South China Sea is in urgent need of preventive protection,which should be implemented through other existing means of cooperation.

C.Differences in the Legal Systems and Practice of States Around the South China Sea: Disadvantageous to the Protection of Underwater Cultural Heritage for the Public Good of Humanity

TheRegulation of the People’s Republic of China on the Administration of the Protection of Underwater Cultural Relics,which is aimed at scientific research and protection of underwater cultural heritage,strictly prohibits unauthorized underwater archaeological activities12Art.15 of Regulation of the People’s Republic of China on the Administration of the Protection of Underwater Cultural Relics: Unauthorized underwater cultural relics archaeological investigation,exploration,excavation and other activities are strictly prohibited.It is strictly forbidden for any individual to carry out underwater cultural relics archaeological investigation,exploration,excavation and other activities in any form.and guarantees the protection of underwater cultural heritage in the waters to which China claims rights.TheMaritime Traffic Safety Lawof the People’s Republic of Chinastipulates that sunken vessels and sunken objects in waters under China’s jurisdiction shall not be salvaged or dismantled without the approval of the competent authorities.TheMeasures of the State Council for the Administration of Foreign Investors’ Participation in theSalvage of Sunken Vessels and Objects in Coastal Waters of Chinaexcludes “sunken ships and sunken objects identified as cultural relics” from those to be salvaged,which also effectively supports the protection of underwater cultural heritage.In contrast,the legislation of other States around the South China Sea protects only the cultural heritage with historical value limited to their own nations and also permits splitting profit from commercial salvage.Their selection of other States’shipwrecks and sunken objects as profit-making objects driven by self-interest destroys the underwater cultural heritage of Chinese origin,and is detrimental to the protection of human cultural heritage.

The 2009National Cultural Heritage Actof the Philippines states that the purpose of cultural preservation is to preserve their national identity and that national significance refers to maintaining national unity through protecting the historical and other values embedded in cultural heritage.13Section 3(ac),Art.II of National Cultural Heritage Act of 2009,Republic of the Philippines:“Nationally significant” shall refer to historical,aesthetic,scientific,technical,social and/or spiritual values that unify the nation by a deep sense of pride in their various yet common identities,cultural heritage and national patrimony.The 2005National Heritage Actof Malaysia protects the objects of importance to the country’s history.Although the government agencies of both States have taken measures such as registration and establishment of protected areas for underwater cultural heritage,they have a limited range of objects and serve selective protection purposes.

In Malaysia,the government commissioners permit the salvage and excavation of underwater cultural heritage,and grant ownership after charging for the salvage operation.The National Museum of the Philippines is in charge of licensing salvage and excavation of underwater cultural heritage and reviewing the sale and exit of the salvaged cultural relics,but it still acquires sunken vessels and objects for exhibition or sale through salvage companies.Indonesia’s 2009 Presidential Regulation No.12,which replaced the 2007 Regulation No.19 on theUtilization of Valuable Cargo Raised from Sunken Ships,14Appointment of the National Committee and the Utilization of Valuable Cargo Raised from Sunken Ships.and the Regulation Decree No.48 onGuidelines for Management of Underwater Heritage Culture and Tourism,reflects the trend of protecting and utilizing underwater cultural heritage.In particular,according to the 2010Law on Cultural Property,underwater cultural heritage exploration shall be carried out by research institutes or local government agencies.Any investigation and excavation shall be subject to government permission,and foreigners and institutions shall not possess or own underwater cultural heritage.However,Indonesia’s National Committee of Salvaging and Exploring Valuable Objects Retrieved from Sunken Ships,which has been run by the Minister of Maritime Affairs and Fisheries since 1989,remains the key regulatory body for shipwreck salvage.Moreover,transportation authorities of other States around the South China Sea can also approve the salvage of sunken vessels,making it difficult to eliminate profit-making salvage of underwater cultural heritage.

In addition,the ownership and jurisdiction prescribed by China’s legislation are in conflict with those of Vietnam and other States.Vietnam’sDecree on Management and Protection of Underwater Culture Heritageof 2005 provides that all underwater cultural heritage in its waters are owned by its entire people.The Malaysian legislation and Brunei’sAntiquities and Treasure Trove Actof 2002 also grant governments absolute rights in rem over underwater cultural heritage.Thailand governs the underwater cultural heritage on the continental shelf in accordance with theAct on ancient monuments,antiquities,objects of art and national museums B.E.2504of 1961.

As can be seen from the above,the object-oriented cooperation in the South China Sea suffers from the problems of inconsistent objects and conflicting rights.Therefore,it is necessary to advocate the concept of underwater cultural heritage,and emphasize their significance to the marine environment and ecological resources,as well as their relevance to regional interactions in history and folk beliefs.Given that history and culture serve as the ties of regional cooperation and dispute mitigation,measures based on the protection of underwater cultural heritage will come to an easier agreement,and strategies proposed taking into account the characteristics of underwater cultural heritage and their conservation and management will be easier to implement,so as to seek for common interests in the construction of a comprehensive protected area for underwater cultural heritage.

II.A Preliminary Investigation of the International Law Sources of Constructing a Protected Area for Underwater Cultural Heritage in the South China Sea Region

From the perspective of international law,theConvention Concerning the Protection of the World Cultural and Natural Heritage(hereinafter “World Heritage Convention”),theUnited Nations Convention on the Law of the Sea(UNCLOS),the2001 Convention,etc.,provide norms of varied extent for the legal protection of underwater cultural heritage,but none of them farsightedly set forth norms for the construction of protected areas for underwater cultural heritage cooperation on the high seas,sea areas beyond national jurisdiction and in trans-boundary sea areas.The protection of underwater cultural heritage is therefore difficult to implement.Given that cultural heritage is an object in the marine environment in a broad sense,it is beneficial and feasible to build cooperative protected areas for underwater cultural heritage by drawing on various successful practices of the international law of the sea in relation to Marine Protected Areas (MPAs) and following the spirit of“consultation and negotiation”,“peaceful settlement of disputes” and “exploration,discussion and cooperation” in fields such as “marine environmental protection”advocated in theDeclaration on the Conduct of Parties in the South China Sea.

A.Deficiencies and Gaps in UNCLOS,the World Heritage Convention and the 2001 Convention Regarding the Construction of Protected Areas for Underwater Cultural Heritage

The international law on cultural heritage protection is mainly aimed at the control of illegal activities such as stealthy excavation and smuggling of cultural relics.TheWorld Heritage Conventionis a symbol of the international community’s recognition of the linkage between cultural heritage,environment and society,but the in situ conservation is limited to the territory of the member States thereto in terms of application.In addition,as underwater cultural heritage is a new thing found with the advancement of marine science and technology,the international law of cultural heritage still focuses on traditional land-based cultural heritage,and the international law of underwater cultural heritage protection shows obvious limitation of focusing on the intrinsic value of cultural objects.15It is called “archaeological and historical objects” in the text of UNCLOS,and “objects”refer to the properties of underwater cultural heritage as objects.Hence,the protection of underwater cultural heritage lacks a comprehensive international legal framework.

The protection of underwater cultural heritage was not a key concern of UNCLOS negotiation,with only Articles 149 and 303 providing for the protection of underwater cultural heritage,i.e.,“objects of archaeological and historical nature” found at sea shall be preserved,and the coastal States have the right to remove the “objects of archaeological and historical nature” in the contiguous zone.16See Arts.149,303 of the United Nations Convention on the Law of the Sea.The underwater cultural heritage in the international seabed area (“the Area”) is under the jurisdiction of the International Seabed Authority (ISA).17LIU Changxia &FU Tingzhong,Protection of Underwater Cultural Heritage Originating from China outside U-shaped Line in South China Sea: Regime,Dilemma and Countermeasure,Chinese Journal of Law,Vol.34:2,p.99 (2013).(in Chinese)There is a lack of regulation on the underwater cultural heritage on the continental shelf beyond 24 nautical miles,in particular,lack of clarity on the content of the priority of the owner and the different States of origin,as well as the hierarchy between different rights,leaving legal gaps and problems of application.

The2001 Conventionspecifies international cooperation for the protection of underwater cultural heritage by establishing port State jurisdiction and coordinating State system,limiting the application of the law of finds and the law of salvage,18Art.4 of the Convention on the Protection of the Underwater Cultural Heritage: Any activity relating to underwater cultural heritage to which this Convention applies shall not be subject to the law of salvage or law of finds specified in Article 4,unless it: (a) is authorized by the competent authorities,and (b) is in full conformity with this Convention,and (c) ensures that any recovery of the underwater cultural heritage achieves its maximum protection.and resisting the commercial exploitation of underwater cultural heritage.19See Art.2(7) of the Convention on the Protection of the Underwater Cultural Heritage:Underwater cultural heritage shall not be commercially exploited;Art.2 of the Rules Concerning Activities Directed at Underwater Cultural Heritage: The commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage.Underwater cultural heritage shall not be traded,sold,bought or bartered as commercial goods.In addition to the national jurisdiction,it also stipulates the right of port State jurisdiction and prohibits the use of ports,artificial islands and facilities of States Parties by those who develop underwater cultural heritage in violation of this Convention.In terms of territorial jurisdiction,Art.7 the Convention on the Protection of the Underwater Cultural Heritage provides for the exclusive right of States Parties to regulate and authorize activities directed at the exploitation of underwater cultural heritage in their internal waters,archipelagic waters and territorial waters,subject to the provisions of the Annex to the Convention;Art.8 the Convention on the Protection of the Underwater Cultural Heritage provides that States Parties may,in accordance with Article 303 (2) of UNCLOS,regulate and authorize the exploitation of underwater cultural heritage within their contiguous zone,subject to the provisions of Arts.9 and 10 relating to the exclusive economic zone and continental shelf;Art.10 the Convention on the Protection of the Underwater Cultural Heritage provides that States Parties have the right to prohibit or authorize the exploitation of underwater cultural heritage located in their own exclusive economic zone or continental shelf in accordance with international law in order to protect their sovereign integrity and jurisdiction from interference.It gives the coastal State broader rights and provides for the Coordinating State model,which does not involve any expansion of ownership and jurisdiction.However,other states parties with cultural,historical or archaeological links to the underwater cultural heritage may act as coordinators only if the coastal state that is a contracting party renounces its role;Arts.11 and 12 provide for the jurisdictional responsibilities of Director-General of UNESCO and the International Seabed Authority for the protection of underwater cultural heritage in the international seabed area,and they shall designate the coordinating state.The foregoing articles have relevant provisions for the discovery reporting system.As a result of the principle of in situ conservation and the concept of minimum disturbance and non-invasive activities advocated by the2001 Convention,as well as its emphasis on environment and public access,the regional protection of underwater cultural heritage has become a matter of course.However,the difficult balance and deliberate ambiguity of UNCLOS between the rights of flag States and the jurisdiction of coastal States complicates the protection model.Moreover,the lack of provisions on the “associated States” to be involved in consultations on protection measures makes the protection of underwater cultural heritage passive and too general to be implemented.

InThe Underwater Cultural Heritage: Report of the Committee on Cultural and Educationof 1978,the Council of Europe proposed that coastal States should establish cultural protection zones within 200 nautical miles,which laid the foundation for future rules of international law on the protection of underwater cultural heritage in different sea areas.20John Roper,Council of Europe Committee on Cultural and Education,The Underwater Cultural Heritage: Report of the Committee on Cultural and Education,Council of Europe,1978.In the same year,the Council of Europe adopted the Recommendation 848 on underwater cultural heritage,which called for the drafting of a European convention on the underwater cultural heritage open for public signature and the negotiation between member States of the Council of Europe on the establishment of national cultural protection zones up to the 200-mile limit,and advocated coordination of actions taken in favor of the natural and cultural underwater heritage in the field of environmental protection.21Parliamentary Assembly,Council of Europe,Underwater Cultural Heritage,Recommendation 848 (1978),PACE website (4 Oct 1978),http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=14882&lang=en.However,it failed to be finalized due to the withdrawal of Turkey and Greece,two of the main promoters,as a result of maritime delimitation issues.In 1994,theDraft Convention on the Protection of the Underwater Cultural Heritageof the International Law Association (ILA) proposed the establishment of a cultural heritage area beyond the territorial sea of the coastal State to the outer edge of the continental shelf according to relevant rules and principles of international law,but it was not adopted.22Art.1(3) of Draft Convention on the Protection of the Underwater Cultural Heritage,Buenos Aires,20 August 1994.

The flag States concerned in the2001 Conventionare precisely the same maritime powers opposed to the extension of coastal State jurisdiction in UNCLOS.23Alexander Proelß ed.,United Nations Convention on the Law of the Sea: A Commentary,Beck/Hart,2017,p.1958;UNESCO,Preliminary Study on the Advisability of Preparing An International Instrument for the Protection of the Underwater Cultural Heritage,General Conference Twenty-eighth Session,1995.It is unrealistic to make changes for the protection of underwater cultural heritage in the exclusive economic zone and continental shelf jurisdictions for which UNCLOS has struck a delicate balance of interests,especially in the sea area where there are disputes over delimitation.However,it is not possible to implement in situ conservation of underwater cultural heritage only by stipulating protection obligations and cooperation mechanisms without operational-level regulations.Setting specific rules still relies on the advancement of conservation practices.

B.Implications of Practice of International Law of the Sea for Establishing Underwater Cultural Heritage Protected Area in the South China Sea

Article 303 of UNCLOS establishes the obligation of States to cooperate in the protection of underwater cultural heritage with general provisions,and Article 74 and paragraph 3 of Article 83 thereof specify the purpose of cooperation in the implementation of undelimited sea areas.In the case of the underwater cultural heritage in disputed sea areas,it is extremely difficult to allocate ownership of,protect and manage underwater cultural heritage due to the long-standing disputes over maritime territorial sovereignty and maritime delimitation in the area.Moreover,unilateral actions taken by a State tend to arouse suspicion of other States,and it brings no good to resist cooperation for development.Nowadays,the South China Sea remains a vital waterway rich in oil and gas resources.During the long process of maritime delimitation,regional cooperation is of great significance to activities such as shipping,fishing,resource development,fights against piracy and smuggling for States in this region.Southeast Asian countries have filed their claims to rights in the South China Sea in succession and are competing to develop oil and gas resources in disputed sea areas in the South China Sea,which violates the obligation of “not to endanger or hinder”.Moreover,the involvement of States outside the region has worsened the already sensitive situation in the South China Sea.Therefore,it is urgent to make efforts to reach a practical interim arrangement.In view of the current actual control situation of islands,reefs and sea areas in the South China Sea,curbing the governmental actions of States in this region through protected areas is conducive not only to the protection of underwater cultural heritage and the preservation of marine resources,but also to the mitigation of regional disputes and the construction of a new model of regional cooperation,thus forming China’s regional leadership role to strengthen control over relevant sea areas.

Besides the jurisdiction based on the legal status of different marine zones,functional jurisdiction is also an important way for the protection of the marine environment,resource conservation,as well as the protection of the interests of human society as a whole.The protection of underwater cultural heritage provides a functional basis for the delimitation and expansion of marine protected areas in non-jurisdictional sea areas in the U.S.Specifically,the 1906Antiquities Actempowered the President of the U.S.to establish public areas as national monuments for protection and display of natural or cultural heritage without going through the public process.Accordingly,President Bush set up several MPAs on the islands and reefs of the Western and Central Pacific and in the adjacent waters.President Obama extended the range of the Pacific Ocean Islands MPAs from about 60 nautical miles out from the shoreline of the islands to 200 nautical miles,bringing the protected area to 2.02 million square kilometers.One of them,Papahānaumokuākea,is the largest MPA in the U.S.and one of the largest MPAs in the world,with outstanding universal value in terms of deep-sea life and Native Hawaiian cultural practices.In 2000,President Clinton exercised his presidential power to establish the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve with an area of approximately 340,000 square kilometers,which was replanned in 2006 as the Papahānaumokuākea Marine National Monument,covering 362,000 square kilometers of protected management of natural and cultural resources in the area,and achieved full protection of the entire sanctuary.24Papahānaumokuākea Marine National Monument,NOAA (11 Jan 2022),http://www.papahanaumokuakea.gov/.It was inscribed on the World Heritage List in 2010.It is both a natural and a cultural heritage site with shipwrecks,lighthouses,living remains of indigenous people and living heritage.Commercial fishing and resource extraction activities are banned in sea areas in the vicinity to meet the needs of underwater cultural heritage protection.The prohibition or restriction of fishing,energy exploitation and other activities in the protected area strengthens national control.The trait of protected areas of restricting development and utilization weakens the rights that other coastal States would otherwise enjoy,and increases the area for enforcement of maritime law and other forces.25QIU Jun,Reflections on the U.S.Plan to Expand the Large Marine Protected Areas in the Central Pacific Ocean,in JIA Yu &GAO Zhiguo eds.,Marine State Policy Research Anthology (2017),China Ocean Press,2017,p.100.(in Chinese)

Much of the international attention to MPAs is focused on the natural aspects.Underwater cultural heritage is mostly treated as an element of marine culture.26Bill Jeffery,World War II Underwater Cultural Heritage Sites in Truk Lagoon: Considering a Case for World Heritage Listing,The International Journal of Nautical Archaeology,Vol.33:1,p.106-121 (2004).The regulation of regional protection of underwater cultural heritage is reflected in the field of natural resources protection.27WANG Jing,A Brief Introduction to Underwater Cultural Heritage Protected Areas,China Cultural Heritage Scientific Research,Vol.11:3,p.17-23 (2016).(in Chinese)MPAs embody marine elements including underwater cultural heritage.28Antony Firth &Ben Ferrari,Archaeology and Marine Protected Areas,The International Journal of Nautical Archaeology,Vol.21:1,p.67-69 (1992).In 1988,the International Union for Conservation of Nature (IUCN) defined MPAs as part or all enclosed environment in any intertidal or low-tide zone protected by law or other effective means,including the overlying waters and associated flora and fauna,historical and cultural elements in the area.29Any area of intertidal or subtidal terrain,together with its overlying waters and associated flora,fauna,historical and cultural features,which has been reserved by legislation to protect part or all of the inclosed environment.See IUCN,17th Session of the General Assembly of IUCN and 17 IUCN Technical Meeting: Proceedings,San José,Costa Rica,1-10 February 1988,p.105.In 2008,IUCN defined a protected area as a clearly defined geographic space that is legally or otherwise recognized,established and managed to realize the longterm protection of natural environment in relation to ecological services and cultural values.30A protected area is a clearly defined geographical space,recognized,dedicated and managed,through legal or other effective means,to achieve the long-term conservation of nature with associated ecosystem services and cultural value.See IUCN,Nigel Dudley ed.,Guidelines for Applying Protected Area Management Categories,Switzerland,2008,p.8.In 2012,IUCN discussed the applicability of MPAs in this regard,and discussed that cultural values should not be protected as merely an attachment to natural values.31Jon C.Day,Nigel Dudley,Marc Hockings,Glen Holmes,Dan Laffoley,Sue Stolton,Sue Wells &Lauren Wenzel,Guidelines for Applying the IUCN Protected Area Management Categories to Marine Protected Areas,IUCN,2012,p.12-14.By the end of 2013,nearly 8,000 MPAs had been established globally,covering about 13 million square kilometers of sea area,creating the trend of establishing large-scale MPAs with an ecosystem approach.32CHU Jiansong,Study on the Management and Evaluation Indicator System for Large Marine Ecosystem,China Soft Science Magazine,Vol.27:7,p186-192 (2012).The Particularly Sensitive Sea Area (PSSA) Standards defined by the International Maritime Organization (IMO) contain ecological and social,regulate discharge from ships passing through the sea area.

The IUCN’s definition was adopted by theConvention on Biological Diversity,which in 2004 defined a MPA as any defined area within or adjacent to the marine environment,including the waters it covers and associated flora,fauna and historical and cultural features,which is under the protection of legislation or other effective means,including customs,ensuring marine and/or coastal biodiversity enjoys a higher level of protection that is surroundings;33Marine and coastal protected area means any defined area within or adjacent to the marine environment,together with its overlying waters and associated flora,fauna and historical and cultural features,which has been reserved by legislation or other effective means,including custom,with the effect that its marine and/or coastal biodiversity enjoys a higher level of protection that is surroundings.See Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its Seventh Meeting,UNEP/CBD/COP/DEC/VII/5,Note 11,13 April 2004.and defined the broader term “marine and coastal protected area” (MCPA) as “an area within or adjacent to the marine environment,together with its overlying waters and associated flora,fauna,and historical and cultural features,which is under the protection of legislation or other effective means,including custom,ensuring marine and/or coastal biodiversity enjoys a higher level of protection than its surroundings”.34An area within or adjacent to the marine environment,together with its overlying waters and associated flora,fauna,and historical and cultural features,which has been reserved by legislation or other effective means,including custom,with the effect that its marine and/or coastal biodiversity enjoys a higher level of protection than its surroundings.See Areas of Biodiversity Importance: Marine Protected Area (MPA),Biodiversity a-z (11 Jan 2022),http://www.biodiversitya-z.org.In 2011,the Workshop on Ecologically or Biologically Significant Marine Areas(EBSA) in the Wider Caribbean and Western Mid-Atlantic Region held in Recife,Brazil mentioned the Mesoamerican Barrier Reef.It is comprised of 1000-km continuous barrier reefs parallel to the coast,starting at the northernmost Yucatan Peninsula in Mexico and extending through Belize and Guatemala all the way up to the Bay Islands in Honduras.It is home to an array of fauna and flora,numerous beaches,reefs,and fishing grounds,with cultural value.35Report of the Wider Caribbean and Western Mid-Atlantic Regional Workshop to Facilitate the Description of Ecologically or Biologically Significant Marine Areas,UNEP/CBD/SBSTTA/16/INF/7,23 April 2012;Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its Eleventh Meeting,CBD/COP/DEC/XIII/12,17 December 2016;World Heritage Convention,Belize Barrier Reef Reserve System,UNESCO (11 Jan 2022),http://whc.unesco.org/en/list/764#links.This area was influenced by the Aztec,Mayan and Indian civilizations,as well as the Inca Empire.The Mayans believed that water was a link between the underworld and the earth and carried reborn souls.The cave that collapsed at the top of the Yucatan Peninsula was once used as a place of sacrifice,leaving behind a large amount of underwater cultural heritage.

The authenticity and integrity emphasized by the Convention Concerning the Protection of the World Cultural and Natural Heritage is also consistent with the concept of in situ conservation of underwater cultural heritage and comprehensive MPAs.In 2005,the fifth criterion for the implementation of the World Heritage Convention evolved from “…a characteristic example of a significant,traditional style of architecture,method of construction,or human settlement” (Operational Guidelines1977) to “an outstanding example of a traditional human settlement,land use,or ocean exploitation which represents the interaction between a culture(or cultures) or humans with the environment” (Operational Guidelines2005).36World Heritage Convention,The Operational Guidelines for the Implementation of the World Heritage Convention,UNESCO (21 July 2021),http://whc.unesco.org/en/guidelines/.This demonstrates the importance given to underwater cultural heritage and its context and environment.In the same year,the World Heritage Committee adopted the “World Heritage Marine Program” to advocate the nomination of large marine areas within exclusive economic zones and MPA network.

The South China Sea is known as the Mediterranean Sea of Asia.The Mediterranean Sea is also a semi-closed sea with maritime space disputes and rich underwater cultural heritage,and is a pioneering place in the fields of maritime regional cooperation,underwater archaeology and protection of underwater cultural heritage.The establishment of various maritime functional zones by Mediterranean coastal States has facilitated the protection and management of marine resources and laid the foundation for reaching consensus on the delimitation of exclusive economic zones,besides for the sake of freedom of the high seas and fisheries interests.37Robin Churchill &Vaughan Lowe, The Law of the Sea,Manchester University Press,1999,p.100.France,Italy and Cyprus legislated for the protection of underwater cultural heritage in the Archaeological contiguous zone within 12 nautical miles outside the territorial sea.38European Commission,The Role of Maritime Zones in Promoting Effective Governance for Protection of the Mediterranean Marine Environment,ESO (1 Jan 2009),https://www.europeansources.info/record/the-role-of-maritime-zones-in-promoting-effectivegovernance-for-protection-of-the-mediterranean-marine-environment/.The Pelagos Sanctuary is a model for the protection of marine environment and resources between States and in areas beyond national jurisdiction.Although it is a marine mammal sanctuary,it is estimated to have substantial underwater cultural heritage as it is an area the historical route between France,Italy and Sardinia pass,and its conservation model can be drawn on for building regional protected areas for underwater cultural heritage.The functional sea areas under national jurisdiction are of practical significance for safeguarding and ensuring China’s rights and interests in the disputed sea areas.In contrast to the disputes arising from maritime delimitation in the Eastern Mediterranean Sea,the functional need in a semi-closed sea area somewhat avoids such contradictions and is changing the jurisdictional status quo in the Mediterranean Sea in a mild manner.39ZHENG Fan,Maritime Space Under Functional National Jurisdiction in Semi-closed Seas:A Review of the Mediterranean Practice and Implications for the Maintenance of China’s Maritime Rights in the South China Sea,Law Science Magazine,Vol.40:6,p.104-117(2019).(in Chinese)

TheProtocol on Mediterranean Specially Protected Areas,adopted in 1982,was the first protocol in the nature of maritime convention on territorial waters of the United Nations Environment Programme (UNEP),requiring the establishment of protected areas to form a MPA network.The Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean,adopted in 1995,replaced the previous Protocol and established more guidelines for management plans,stipulating that the Specially Protected Areas of Mediterranean Importance(SPAMIs) established contain cultural value and may be established in areas under national jurisdiction or on the high seas,and that underwater cultural heritage is an important vehicle for marine cultural value.Regional cooperation for the protection of underwater cultural heritage is never easy considering relevant practice in the Mediterranean Sea.The Siracusa Declaration on the Submarine Cultural Heritage of the Mediterranean Sea adopted in 2001 recommended again the application of a regional convention on the investigation and protection of underwater cultural heritage,the establishment of rights and obligations,the conclusion of bilateral or multilateral agreements and the creation of underwater protected archaeological sites or parks.40Arts.10,11 &12 of Siracusa Declaration on the Submarine Cultural Heritage of the Mediterranean Sea.In 2003,a roundtable on “Cooperation for the Protection of the Underwater Cultural Heritage in the Mediterranean Sea” was organized by the governments of Mediterranean States.During the conference,Italy proposed a regional convention draft for the protection of underwater cultural heritage,but no progress has been made so far.41Silvia Ciotti Galletti,Mediterranean Sea and the Protection of the Underwater Cultural Heritage,in Sami Nevala &Kauko Aromaa eds.,Organized Crime,Trafficking,Drugs,Selected papers presented at the Annual Conference of the European Society of Criminology,Academic Bookstore,2004,p.36.Nevertheless,these efforts have contributed to regional and international cooperation.For example,the Managing Cultural Heritage Underwater (MACHU) database has become an important platform for monitoring,warning and information sharing of underwater cultural heritage in the EU and globally.42Managing Cultural Heritage Underwater,machu (1 Jun 2021),http://www.machuproject.eu/.Also,the Monitoring,Safeguarding and Visualizing North-European Shipwreck Sites (MoSS)43Monitoring,Safeguarding and Visualizing North-European Shipwreck Sites,moss (1 Feb 2022),http://moss.nba.fi/.project carried out by Finland,Germany,Sweden,Denmark,the Netherlands and the UK provides examples of conservation,management and planning for underwater cultural heritage.

In summary,the practice of protected areas for underwater cultural heritage is limited to concepts,initiatives and individual cases,with certain trend and possibility of practice.This is partly due to the fact that underwater cultural heritage is not yet fully recognized and valued in international law and in the field of marine resource protection.2015 saw the inclusion of culture for the first time in the Sustainable Development Goals (SDGs).Within the same framework,cultural heritage and related areas such as climate (Goal 13),oceans (Goal 14) and biodiversity (Goal 15) constitute an impartible whole.In May 2017,the theme activity “Ocean without History?” was organized during the United Nations Conference on the Oceans,demonstrating the importance and trend of preserving underwater cultural heritage.44Ocean Without History?,UNESCO (1 Feb 2022),http://www.unesco.org/new/en/culture/themes/dynamic-content-single-view/news/unesco_organizes_event_an_ocean_without_history_on_th/.The bilateral and multilateral cooperation on marine environmental protection advocated by the Declaration on the Conduct of Parties in the South China Sea can be implemented through protected areas covering underwater cultural heritage,the designation of which is of fundamental significance to combating transnational cultural heritage crimes.The protection of underwater cultural heritage falls within the category of marine scientific research aimed at exploiting the multiple uses of the oceans “for any research and experimental work aimed at increasing human knowledge of the marine environment”.45Sarah Dromgoogle,Revisiting the Relationship between Marine Scientific Research and the Underwater Cultural Heritage,The International Journal of Marine and Coastal Law,Vol.25:1,p.33-61 (2010).Underwater archaeology is closely related to the development of marine exploration,marine information and resource exploitation.It sprung up in the 1950s with the invention of the self-contained underwater breathing apparatus.However,human salvaging and destruction of underwater cultural heritage also emerged.

III.Preliminary Ideas and Suggestions for the Construction of a Comprehensive Protected Area for Underwater Cultural Heritage in the South China Sea

A.Regarding the Underwater Cultural Heritage Protected Area as Practice in International Law of the Sea Similar to the Marine Protected Area for the Protection of Marine Environment and Ecological Resources

According to the2001 Convention,underwater cultural heritage means “all traces of human existence having cultural,historical or archaeological value,which have been partially or totally under water periodically or continuously,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,carried cargo or other contents,together with their archaeological and natural context;and (iii) objects of prehistoric sense.” The word “context” here means background and situation,which emphasizes the close relationship between cultural heritage and its symbiotic context,and the significance of the environment to the objects and information.46Ricardo J.Elia,US protection of underwater cultural heritage beyond the territorial sea:problems and prospects,International Journal of Nautical Archaeology,Vol.29:1,p.46(2000).The Xi’an Declaration,issued by the 15th General Assembly of the International Committee of Monuments and Sites (ICOMOS) in October 2005,emphasizes the importance of the environment for sites.Underwater cultural heritage is inseparable from its context,i.e.the water environment,natural landscape elements,etc.Environmental and natural elements are indispensable for explaining the origin,development,submergence and spreading process,preservation status and other information of the cultural heritage.A part of its authenticity,they are also helpful for scientifically understanding the information and value of relevatant underwater cultural heritage in other regions,and are important to the restoration of the historical society.The distribution patterns of underwater cultural heritage in different seabed topography,sediment,and current are also valuable for scientific speculation of underwater cultural heritage yet to be discovered.

As foreign objects,underwater cultural heritage often evolves into rich habitats.Algae and sedentary species need to attach to hard substrates.They build settlements on foreign objects and attract sedentary fish and predators,producing a positive effect on the survival of other species and biodiversity communities.For a long time,underwater cultural heritage and the surrounding environment have formed a stable and fragile equilibrium,where any changes will easily result in the decay of the artifacts.Meanwhile,acidification of water bodies and changes in biological species will also affect the preservation of underwater artifacts,and accordingly,the deterioration of underwater cultural artifacts will cause damage to its surrounding environment and biological resources.It is not uncommon to see marine environmental disasters caused by the disturbance of historical shipwrecks carrying hazardous substances such as fuel oil.The Charter on the Protection and Management of Underwater Cultural Heritage adopted by ICOMOS in 1996 recognizes that underwater cultural heritage should be coordinated with environmental protection and that underwater cultural heritage may be affected by changes in the shore,seabed,flow of current,sediment,pollutants and living and non-living resources.47Introduction of Charter on the Protection and Management of Underwater Cultural Heritage stated: “Archaeology is concerned with environmental conservation;in the language of resource management,underwater cultural heritage is both finite and non-renewable.If underwater cultural heritage is to contribute to our appreciation of the environment in the future,then we have to take individual and collective responsibility in the present for ensuring its continued survival.”“Underwater cultural heritage may be threatened by construction work that alters the shore and seabed or alters the flow of current,sediment and pollutants.Underwater cultural heritage may also be threatened by insensitive exploitation of living and non-living resources.”The Annex Rules Concerning Activities Directed at Underwater Cultural Heritage to the2001 Convention,which evolved therefrom,proposes in Rule 1 that “protection of underwater cultural heritage through in situ preservation shall be considered as the first option”,which serves as the core of relevant rules;Rule 10 stipulates that the project description should include the content of environmental policies;Rule 29 stipulates that “an environmental policy shall be formulated to ensure that the seabed and marine life are not unduly disturbed.” The integrated protection of underwater cultural heritage,marine environment and resources is a more scientific and reasonable approach.The balance of various interests and their relative importance should be considered.

Underwater cultural heritage consists mostly of historical shipwrecks.Sunken ships are distributed in a relatively concentrated way and form a multi-point stack.In addition,cargoes are densely packed,so there may be many rare cultural relics in a single spot,which spread across a certain area with the seabed and current movement and the disturbance of trawling nets.Therefore,the protected area should not be set too small.Underwater cultural heritage is mostly located across administrative areas or outside of national jurisdiction,making it difficult to detect stealthy salvage and vandalism in a timely manner.Thus,zoning for preventive protection is necessary.Moreover,the distribution area of underwater cultural heritage mostly overlaps with shipping routes and ports,and therefore often competes with marine engineering,navigation,dredging or trawling operations,as well as MPAs.In this regard,underwater cultural heritage,which is suitable for in situ conservation together with related marine resources,which is more intensive and efficient in terms of administrative costs for maritime enforcement.

B.Feasibility and Significance of Building a Comprehensive Protected Area for Underwater Cultural Heritage in the South China Sea

Among the States around the South China Sea,except Cambodia,none of them has joined the2001 Convention.However,most of them have joined the UNCLOS,the Convention on Biological Diversity,and the World Heritage Convention,which provide protection mechanisms to support the protection of underwater cultural heritage.In the meantime,the construction of comprehensive MPAs in the South China Sea can be promoted through the protection of underwater cultural heritage.The following are possible ways to build comprehensive protected areas covering resources such as underwater cultural heritage in the South China Sea:

Underwater cultural heritage is associated with marine life and resources and closely related to marine environmental protection.It can serve as a factor in the protection of the marine environment and resources in the South China Sea.Moreover,in situ conservation of underwater cultural heritage is consistent with the goals and objectives of marine environmental protection and resource conservation,as well as conservation approaches such as the prohibition of restrictive practices.The project of Reversing the Environmental Degradation Trend in the South China Sea and Gulf of Thailand,which covers all coastal States around the South China Sea and most East Asian States,is a sustainable regional mechanism.The Gulf of Thailand,a pre-Malacca trade transit port,has significant value in terms of underwater cultural heritage conservation.The Network of Marine Protected Areas in the Sulu-Sulawesi Marine Ecoregion established by Malaysia,the Philippines and Indonesia,which has become a model of regional cooperation in the South China Sea to protect marine resources,and the Tubbataha Reefs Natural Park48World Heritage List,UNESCO (1 Feb 2022),http://whc.unesco.org/en/list/653;Tubbataha Reefs Natural Park,tbbt (1 Feb 2022),http://www.tubbatahareef.org/.in the Philippines,a world heritage site of more than 130 square kilometers southeast of Puerto Princesa,Palawan,are both located in the Sulu Sea,an important ancient trade route in the South China Sea,where there should be rich underwater cultural heritage.The documents are an important basis for zoning for preventive protection of underwater cultural heritage.The ASEAN Declaration of Heritage Parks adopted in 2003 set up a number of heritage parks in the South China Sea,providing a framework for the materialization of protected areas for underwater cultural heritage.Accordingly,Vietnam,the Philippines,Malaysia,Indonesia and Brunei all have set up marine-related protected areas or reserves,49LIU Dan,Difficulties of and Solutions for Marine Environmental Protection Cooperation in the South China Sea — Rebuttal of Relevant Arbitration Matters in the South China Sea Arbitration Case,Foreign Affair Review,Vol.34:5,p.113-140 (2017).(in Chinese)in which clues of underwater cultural heritage can be sorted out for comprehensive resource protection.

China has been actively facilitating practical cooperation with ASEAN States in the South China Sea,with gradual expansion of cooperation areas.The Plan of Action on China-ASEAN Cultural Cooperation (2014-2018) entered into in 2014 expanded cooperation to the protection of cultural relics.50ZHAO Yajuan,On Joint Protection of Historic Wrecks Littered along the Maritime Silk Road——from the Cooperation between China and ASEAN States,Jinan Journal(Philosophy &Social Science),Vol.38:9,p.58-63,130 (2016).(in Chinese)Among the 46 sites of the World Heritage Marine Program,only four of them involve cultural heritage.In these four sites,except the Papahānaumokuākea Marine National Monument,the other three do not involve underwater cultural heritage,as recorded in their documentation.World Heritage emphasizes diversity and balance.Underrepresented underwater cultural heritage may not only deepen people’s knowledge of related heritage,but also become a focus for nomination.The nomination of the Maritime Silk Road as a World Heritage Site can advance cooperation in underwater archaeology in the South China Sea,build a cultural circle of the Maritime Silk Road,51CAI Wu,Speech at the Second Meetings of ASEAN-China Ministers Responsible for Culture and Arts,China Culture Daily,5 May 2014,at 3.(in Chinese)and stimulate the development of local tourism,which is in line with the Vision for Maritime Cooperation under the Belt and Road Initiative.The Maritime Silk Road is an area where assembles shipwrecks and sunken objects,land-based and marine cultural heritage,cultural landscape,and the underlying marine environment and resources on which they are based.Hence,it can serve as an example of the construction of comprehensive protected areas.

In the absence of clear international rules for underwater cultural heritage,State practice as well as bilateral,multilateral and regional cooperation remain key approaches to advancing the construction of protection mechanisms for underwater cultural heritage.China’s legislation on cultural relics based on the principle of scientific research and protection has righteousness in line with the interests of human society as a whole.In possession of advantages of national institutions,specialized agencies and resources for the conservation of underwater cultural heritage,China has the ability to lead the cooperative protection of underwater cultural heritage in the South China Sea and has a voice in the construction of a grey zone for international rules.We should enhance the awareness of related fields,fill the gaps in the protection of cultural marine resources,522008 Framework for the National System of MPAs (U.S.) outlined the primary goal of cultural heritage marine resources,and the National Oceanic and Atmospheric Administration established the Cultural Heritage MPAs program in recognition of the potential for cultural resources to exist within federal MPAs or state MPAs established for natural heritage protection purposes.and push forward the research and selection of comprehensive MPAs as well as the development of related rules.The establishment of comprehensive MPAs embodies the purpose of UNCLOS to “promote the peaceful use of the seas and oceans,the equitable and effective utilization of marine resources,the conservation of living resources in the sea,and the study,protection and preservation of the marine environment,and promote economic and social advancement for all peoples around the world”.