Varmer on Underwater Cultural Heritage law

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Ole Varmer, International Section, Office of General Counsel, NOAA has written a technical examination of Underwater Cultural Heritage law: Closing the Gaps in the Law Protecting Underwater Cultural Heritage on the Outer Continental Shelf, 33 Stan.Envtl.L.J. 251 (2014). From the abstract:

The public interest in protecting our human environment is reflected in the international and domestic laws that preserve our natural and cultural heritage. Under international law, as reflected in the Law of the Sea Convention (LOSC), nations have a duty to protect our underwater cultural heritage (UCH) and cooperate for that purpose. While the LOSC recognizes that a coastal state or nation may exercise its jurisdiction over the activities of a foreign flagged vessel or nationals to protect the natural heritage within its 200 nm Exclusive Economic Zone (EEZ) and on its continental shelf, the coastal state jurisdiction is limited to the 24 nm contiguous zone in regard to cultural heritage. As such, there has been a perceived “gap” in protection of UCH on that portion of the continental shelf beyond the 24 nm contiguous zone. In order to address this gap and further delineate the duty to protect under the LOSC, nations negotiated the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage (2001 UNESCO Convention).

Even though the United States is not a party to either of these conventions, there are a number of United States statutes that address the duty to protect our natural and cultural heritage consistent with these conventions and the practice of nations. While the U.S. has demonstrated leadership in protecting natural and cultural heritage in all of the maritime zones, there are gaps in protection, particularly on the U.S. Outer Continental Shelf (OCS). This essay provides a brief summary of the applicable international and U.S. federal laws that protect UCH, identifies the gaps in protection on the U.S. OCS, and then makes some recommendations on how to fill those gaps in a manner consistent with international law. First, however, there is some background on information on what UCH is, where it is located, who is interested in it and why it should be preserved for present and future generations as matter of law and policy.

And as always, if you have a draft or an article related to art law, antiquities law, or cultural heritage generally, please consider posting a draft on SSRN or another open access site.

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