The notions of ‘preferential right’ and ‘interest’ of sates in the protection of the underwater cultural heritage

Abstract

The notions of preferential right and interest of states are not alien to general international law or the law of the sea and, as hypothesis, there is a subtle and plausible trend to prefer the later before the former when addressing the legal regime of global commons. Considering the underwater cultural heritage (UCH) as a possible component among these commons, this article discusses how to build up a legal regime protecting UCH progressively abandoning the presence of rights and its substitution by the notion of interest. A quest for the holders of this interest and their identification in casu through the revisited notion of verifiable link, the content and extent of their legal capacities and the responsibilities these stakeholders may have ⎯particularly states⎯, and the legal regime governing all these issues are the purpose of these pages. This article will discuss first the notion of preferential right as used in international law and the law of the sea, in general, followed by the study of the presence and projection of that notion in current international legal texts governing UCH. The same scheme of analysis will be followed when addressing the notion of legal interest and its performance as an operative concept both at the general level of international law and the law of the sea and, later, how this notion may be creating a new legal and political canvas for the protection of UCH.