THE NOTIONS OF ‘PREFERENTIAL RIGHT’
AND ‘INTEREST’ OF SATES
IN THE PROTECTION OF
THE UNDERWATER CULTURAL HERITAGE
LAS NOCIONES DE “DERECHO PREFERENTE” E
“INTERÉS” EN LA PROTECCIÓN DEL PATRIMONIO
MARIANO J. AZNAR*
Summary: I. INTRODUCTION. II. PREFERENTIAL RIGHTS: 1. UCH IN LOSC: A) THE
DRAFTING OF ARTICLE 149 LOSC; B) A TEXTUAL INTERPRETATION OF ARTICLE
149 LOSC; 2. UCH BEYOND LOSC: A) DEFINING UCH; B) THE MANAGEMENT OF
UCH IN THE AREA; C) THE SUBJECTS OF THE PREFERENTIAL RIGHTS; D)
REMAINING OPEN QUESTIONS. III. INTEREST: 1. THE NOTION OF INTEREST…: A)
…IN INTERNATIONAL LAW…; B) …AND IN INTERNATIONAL HERITAGE LAW; 2.
INTEREST AND THE PROTECTION OF UCH; A) DETERMINING INTERESTS AND
IDENTIFYING THE INTERESTED SUBJECTS; B) IDENTIFYING INTERESTED
SUBJECTS AND THEIR RESPECTIVE LEGAL CAPACITIES; C) CONSEQUENCES OF
THE EXISTENCE OF THESE INTERESTS. IV. CONCLUDING REMARKS.
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 b efore 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 id entification 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.
Fecha de recepción del trabajo: 20 de o ctubre de 201 9. Fecha de aceptación de la versión final: 20 de
noviembre de 2019.
* Professor of Public International Law, Universitat Jaume I (email: firstname.lastname@example.org). This article was
prepared within R+D Project DER 2016-74841-R ("Instrumentos jurídicos en defensa de la integridad de
los bienes arqueológicos"). The author would like to thank Francesco Francioni and Craig Forrest for their
most valuable comments on an earlier draft of this article. The views expressed, however, are solely those
of the author, as are any errors. All websites were last accessed on 20 November 2019 .