碩士 / 國立中山大學 / 中山學術研究所 / 88 / Abstract
Underwater cultural heritage can be classified into two categories: one is shipwrecks and isolated objects, and the other is submerged sites. It has been sealed underseas and maintaining balance with ambient marine environment, and holds lots of important archaeological and historical messages. With the application of meticulous principles and procedures of archaeology, it can be used for retracing human history and its relation with the natural environment. It has laid on the seabed for a long time and presents no problem for itself. However, inadequate salvage action by treasure seekers and curious people, as well as activities such as pipeline and cable-laying, fishing and tourism often impose irreversible damage to the underwater cultural heritage. Nowadays, how to construct a comprehensive legal regime for protecting underwater cultural heritage has become a pressing international issue. This study is to explore the issue from an international practice perspective, and to provide suggestions to the Government.
This study found that international ethos for protecting and managing underwater cultural heritage has shifted from concentrating on single object protection to the whole objects and the preservation of environment in situ, or even goes further to stress the participation of archaeologists in integrated conservation of archaeological heritage in order to reconcile the needs of archaeological heritage protection and development plans. After examining five international legal instruments, this study recognized the duties conferred upon coastal States as followings: 1. Establishing a national inventory for cultural heritage and an import-export permit system so to prevent illegal trafficking; 2. Reporting any accidental recovery of underwater cultural heritage to the authorities; 3. Taking proceedings against its nationals and ships of its flag conducting any activity destroying and damaging underwater cultural heritage in the high seas; 4. Establishing a single authority given primary responsibility for dealing with both land and underwater finds, and determining their significance; 5. Where underwater cultural heritage is of particular interest to another State, considering providing information about the discovery of heritage, as well as collaborating in the excavation, conservation, study and cultural promotion of the said heritage; 6. Taking all practicable measures towards the restitution of underwater cultural heritage located within its territory and territorial sea which has been illegally recovered in the territory and territorial sea of another State or illegally exported from such a State; 7. Establishing a reward system to compensate finders while the award is not necessarily linked to the commercial value of the find; 8. Excluding the application of salvage law and wreck law on underwater cultural heritage; 9. Other than delimitating archaeological reserves, in situ protection of underwater cultural heritage shall also be considered.
By analyzing four special domestic legislations of Australia, the PRC, the United Kingdom and France, this study observed that a special domestic legislation should encompass the following six elements: "protected objects," "the geographical extent and the content of national jurisdiction," "protective measures," "the reporting obligation of finders and reward system,"and "punishment." This study also found that, on the problem of conflicting uses of underwater cultural heritage, Chinese, Australian and French legislations only focus on the archaeological and historical uses of underwater cultural heritage, and leave the possible commercial and recreational uses untreated, while the British legislation takes into account various interests and uses.
Jurisdiction and ownership are the two core issues in the protection of underwater cultural heritage. By summarizing five international legal instruments and four special national legislations, this study found that the geographical extent of national jurisdiction over underwater cultural heritage has extended from territorial sea to 200 miles limits, or even to the continental shelf. Ownership problem of underwater cultural heritage has two aspects: private ownership problem (or domestic law level), and origin State ownership problem (or international law level). As far as the private ownership problem is concerned, both international legal instruments and four national legislations illustrate the spirit of honoring private ownership. On the other hand, none of international legal instruments incorporates provisions in relation to the origin State ownership problem, thus, leaves it open to the options of domestic legislation. The Australian/Netherlands Agreement concerning Old Dutch Shipwrecks, a bilateral agreement signed between coastal State and origin State, can provide a reference for solving this problem.
If the ROC Government intends to establish a more comprehensive legal regime for protecting underwater cultural heritage, it has to consider "protected object," "the geographical extent and content of national jurisdiction," "ownership problem, "as well as " finding, the exclusion of salvage law, and the establishment of a reward system, " and, at the same time, incorporates national claims for underwater cultural heritage into the Law on the Territorial Sea and the Contiguous Zone of the Republic of China and the Law on the Exclusive Economic Zone and Continental Shelf of the Republic of China. Besides, sensitizing general public with the cultural protection law, and the correct concepts for cultural objects protection, offering finders the opportunity of taking part in underwater archaeology studies, and considering the possibility of delimiting underwater cultural heritage protection zone are also necessary. With these efforts, the prehistoric and historic poems sealed underseas can be wholly presented or reconstructed, and acquire everyone''s respect and appreciation.
Keywords: Underwater Cultural Heritage, Ancient Shipwrecks, Submerged Sites, International Law of Sea, International Law
| Identifer | oai:union.ndltd.org:TW/088NSYSU043001 |
| Date | January 1999 |
| Creators | Yu-Tzu Lin, 林育賜 |
| Contributors | Nien-Tsu Alfred Hu, Ph.D., 胡念祖 |
| Source Sets | National Digital Library of Theses and Dissertations in Taiwan |
| Language | zh-TW |
| Detected Language | English |
| Type | 學位論文 ; thesis |
| Format | 152 |
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