沈没船保護をめぐる規範生成の現段階 : 二国間条約、地域条約を素材に

抄録

The UNESCO Convention on the Protection of the Underwater Cultural Heritage will enter into force on 2nd January 2009 (It shall enter into force three months after the date of the deposit of the 20th instrument in accordance with Article 26). On the other hand, the Agreement Concerning the Shipwrecked Vessel RMS Titanic adopted by America, France, England and Canada is also likely to enter into force within a couple of years. To regulate shipwrecks in waters outside territorial waters, maritime law (especially salvage law and finds law) has been applied for a long time. Particularly in waters quite distant from coastal states, because of undeveloped marine technology, the need of regulating wrecks was not taken into consideration as an actual problem. A series of discussions in the first United Nations Conference on the Law of the Sea (1958) showed us this. In fact, at the stage of drafting "Convention on the Continental Shelf," the legal coastal regulation had nothing to do with regulating wreckages. The United Nations Convention on the Law of the Sea article 303(2) provides that the coastal States may prohibit the removal of objects of an archaeological and historical nature from the sea-bed in their contiguous zone. Therefore, wrecks in the waters outside the contiguous zone remained to be unregulated. We call the waters "International Waters." In this International Waters, only a few states which are equipped with advanced maritime technology and salvage methods have applied maritime laws to grant rewards to salvors. Acknowledging this way of thinking, only extremely limited number of states would create international norms on regulating shipwrecks in international waters. The historical importance of shipwrecks has often been undermined by some salvors' dynamiting them in pursuit of financial profit. In this situation, European States started making their own norms since the late 1970's, feeling much stress on discussing vague articles about regulating wrecks in the third United Nations Conference on the Law of the Sea (UNCLOS III). This European action eventually led to adopting of the UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001) under UNESCO. This Convention defines submerged objects or objects of an archaeological and historical nature as underwater cultural heritage. Moreover, coastal states are entitled by the Convention to take civil and penal sanctions against any possible infringement. Considering aforementioned tendency, this paper argues the effectiveness of international norms focusing particularly on a bilateral and regional treaties. Specifically, the details of three treaties will be examined: first, The Agreement between Australia and the Netherlands Concerning Old Dutch Shipwrecks (1972); secondly, the Agreement between the Republic of Estonia, the Republic of Finland and the Kingdom of Sweden regarding the M/S Estonia (1995); and finally, the Agreement Concerning the Shipwrecked Vessel RMS Titanic, 5 January 2000. The 1972 Agreement set up the method of dividing rights and cost so that shipwreck artifacts may be distributed with less problem. When the Agreement between the Republic of Estonia, the Republic of Finland and the Kingdom of Sweden regarding the M/S Estonia (1995) was concluded after the United Nations Convention on the Law of the Sea entered into force, it addressed the regulation regarding the continental shelf as a sea-bed of high seas as far as shipwrecks were concerned, without prejudice to the sovereign rights framework. Moreover, by examining the development in the discovery of the Titanic and its subsequent international legal making process, how European oriented norms had been absorbed will be discussed. Finally, the significance of forming international norms by bilateral and regional treaties in light of international legal effectiveness will be emphasized.