46 INTERNATIONAL ANDNATIONAL LAWSRELATING TOARCHAEOLOGYUNDERWATER
the high seas’ applies. However, for some resources, for
example the minerals of the deep sea-bed and living
resources such as fish stocks, UNCLOS regulates what each
state can do and establishes a system in which each state
can share in those resources. During negotiations on the
Convention, it was decided that underwater cultural
heritage should not be included in the definition of
resources, so that, in principle, the freedom of the high
seas applies in regard to the search, survey and excava-
tion of underwater cultural heritage found in this area.
The Convention did, however, declare in Article 149 that
‘all objects of an archaeological and historical nature
found in the Area shall be preserved or disposed of for
the benefit of mankind as a whole, particular regard
being paid to the preferential rights of the state or coun-
try of origin, or the state of cultural origin, or the state
of historical or archaeological origin’. Unfortunately, the
Convention did not define any of the terms used in
Article 149 and generally international lawyers have
agreed that this Article is too vague and imprecise to act
as a regulatory provision. Therefore, on the high seas and
the deep sea-bed, all states have the right to search for,
survey and excavate underwater cultural heritage and
can authorize their nationals and vessels flying their flag
to do so. The only possible exception to this is the right
of other states to prohibit disturbance of state-owned
non-commercial vessels that have sunk, under the inter-
nationally recognized principle of sovereign immunity.
The continental shelf: The continental shelf extends
from the shallows of the territorial seas down to the deep
sea-bed. The length of the continental shelf varies geo-
graphically. In the case of coastal states that have very long
continental shelves, the state can make a claim for up to
350 nautical miles from the baseline used to calculate the
territorial sea or 100 nautical miles from the 2500-metre
isobath. Due to the complexity of these and associated rules,
states must submit their proposed delineation of the
continental shelf to a special commission established
under UNCLOS. In cases where the continental shelf is
short, the state can claim up to 200 nautical miles, even
if the actual shelf is shorter than that. Each coastal state
is given the exclusive right to explore and exploit the nat-
ural resources of this area. Underwater cultural heritage
was not included in the definition of ‘natural resources’
so that the coastal state does not have the exclusive right
to regulate the search, survey or excavation of sites on the
continental shelf. Article 303 of the Convention, however,
requires states to ‘protect objects of an archaeological
and historical nature found at sea and shall co-operate for
this purpose’. In order to give effect to this requirement,
a number of states have extended their jurisdiction so as
to regulate underwater archaeology on their continental
shelves. These include Australia, Ireland, Seychelles,
Cyprus, Spain, Portugal, Norway and China. While these
may appear to be contentious claims, no other state has,
to date, objected to these extensions of jurisdiction. It is
therefore important to note that if a project is to take place
within 350 nautical miles of the coast, one of the coastal
states may impose a regulatory regime on the operation.Exclusive economic zone: The exclusive economic
zone was created to allow coastal states the exclusive
right to exploit the natural resources of the seas up to
200 nautical miles from the baseline used to calculate the
territorial sea. Other states will continue to have certain
freedoms in this zone, such as freedom of navigation,
over-flight, laying of submarine cables and marine scientific
research. Underwater archaeology is not regarded as
marine scientific research and is therefore not automat-
ically regarded as a freedom of the high seas in this zone.
The right to regulate underwater archaeology is therefore
uncertain, and is the basis of continued debate between
a number of states. Both Morocco and Jamaica, for
example, claim jurisdiction to regulate underwater
archaeology in their exclusive economic zones. Most
other states, however, do not.Contiguous zone: The contiguous zone is an area
adjacent to the territorial sea in which the coastal state has
limited control to prevent or punish infringements of its
custom, fiscal, sanitary or immigration laws. The max-
imum breadth of this zone is 24 nautical miles from the
coastal baseline. Article 303 of the Convention allows a
coastal state to consider the recovery of any underwater
cultural heritage from this zone as having taken place in
the coastal state’s territorial seas, thus giving the coastal
state the exclusive right to regulate such activities. A
number of states have extended their national legislation
to take into account underwater archaeology in this
zone. The United States is the most recent state to have
done so, having declared a contiguous zone in 1999. This
increasing tendency means that if a project is to take place
within 24 nautical miles of the coast, it is likely that the
coastal state will regulate these activities.Territorial sea: The territorial sea extends up to 12 nau-
tical miles from the coastal baseline. In this zone, the coastal
state has the exclusive right to regulate all activities relat-
ing to underwater archaeology. The nature of these regu-
latory laws differs from state to state, and a number of
these will be considered in a later section.THE REGIME IN INTERNATIONAL WATERS
The Law of the Sea (UNCLOS) therefore stipulates that
in the territorial seas and contiguous zone, the coastal state