UNESCO Convention on the Protection of the Underwater Cultural Heritage

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The UNESCO Convention on the Protection of the Underwater Cultural Heritage, adopted by the UNESCO General Conference on 2 November 2001 (2001 Convention) is an important international treaty aimed at saving the underwater cultural heritage.

To date only 14 countries have ratified the convention. It enters into force only after the 20th signature.

Background

Cultural heritage on land has in the last decades benefited from national and international protection. Nevertheless, the looting of underwater cultural heritage is increasing rapidly and it still remains largely unprotected. Due to improved diving technology, art markets and collectors along with treasure hunters turn more and more to objects coming from the seabed.

The cultural treasures covered by the oceans are immense. Over three million undiscovered shipwrecks are estimated to be spread across the ocean floor. Remnants of ancient civilization, like the ruins of the Alexandria lighthouse in Egypt, and whole cities, such as Jamaica’s Port Royal, lay under the waves.

Underwater cultural heritage is invaluable testimony to ancient civilizations. A shipwreck as well as an underwater ruin is a time capsule waiting to be unlocked. In many cases it is of great historical and cultural importance.

However many national laws do not adequately protect such heritage and wrecks or ruins located in international waters are even still entirely unprotected.

History

In 1982 the important United Nations Convention on the Law of the Sea (“UNCLOS”) codified the need for its States Parties to protect underwater cultural heritage under the term “archaeological and historical objects”. It obliged States Parties to protect such objects, but did not specifically regulate and articulate such protection. However, it left expressively room for a specific international regulation for the protection of underwater cultural heritage.

In 1993 UNESCO resolved to look into drafting a new convention for the protection of underwater cultural heritage. By 1996 they settled on the need for a legally binding instrument. A group of experts met in Paris to work on a draft convention in 1998, then again in 1999 with major differences expressed on whether the jurisdiction of coastal states was on the continental shelf or the contiguous zone and sovereignty of foreign wrecks located in territorial waters.

Accordingly, the 2001 Convention was adopted by the UNESCO General Conference. It is the response of the international community to the looting and destruction of such heritage. The 2001 Convention offers a high international standard of protection of such heritage. It consists of a comprehensive legal framework and protection regime providing appropriate legal, administrative and operational measures adopted by States Parties according to their respective capabilities.

General principles of the 2001 Convention

States Parties to the Convention shall preserve underwater cultural heritage for the benefit of humanity, and take action therefore.

For the purposes of the 2001 Convention “Underwater Cultural Heritage” means all traces of human existence having a cultural, historical or archaeological character, which have been partially or totally under water, periodically or continuously, for at least 100 years.

The first principle of the Convention is that underwater cultural heritage shall be protected from being commercially exploited for trade or speculation. This principle is not to be understood as preventing professional archaeology, the deposition of heritage recovered in a research project or preventing salvage activities or actions by finders as long as the requirements of the Convention are fulfilled. Indeed an important compromise between protection and operational needs has been achieved in the 2001 Convention, as any activity relating to underwater cultural heritage to which the Convention applies shall not be subject to the law of salvage or law of finds, unless it is authorized by the competent authorities; is in full conformity with the Convention; and ensures that any recovery of the underwater cultural heritage achieves its maximum protection.

A second important principle is the preference of the preservation in situ of underwater cultural heritage (i.e. the current location on the seabed). It is considered by the Convention as the first option. Other activities may however be authorized for the purpose of making a significant contribution to the protection or knowledge of underwater cultural heritage. The preference given to in situ preservation as the first option stresses the importance of the historical context of the cultural object and its scientific significance; and recognizes that such heritage is under normal circumstances well preserved under water owing to the low deterioration rate and lack of oxygen and therefore not necessarily per se in danger.

Important to know is that because he 2001 Convention does not intend to rewrite the history of seafaring and navigation, it does not regulate the issue of ownership of wrecks or ruins between the States concerned.

The 2001 Convention sets a high standard of protection for underwater cultural heritage that shall be common to all its State Parties. It applies only among States that have ratified the Convention. Each State, if it so wishes, may ensure an even higher standard of protection than foreseen by the Convention.

The 2001 Convention represents a lex specialis, i.e. a regulation specific to underwater cultural heritage. It does not prejudice the rights or duties of states under international law, including the United Nation Convention on the Law of the Sea (“UNCLOS”). Every state may become a party to the 2001 Convention, regardless of whether it is a State party to UNCLOS or not. According to the Convention depending on the current location of the underwater cultural heritage, specific regimes for cooperation between coastal and flag states (and exceptionally other concerned states), are applicable:

States Parties have the exclusive right to regulate activities in their internal and archipelagic waters and their Territorial Sea;

Within their Contiguous Zone States Parties may regulate and authorize activities directed at underwater cultural heritage; and

Within the Exclusive Economic Zone, or the Continental Shelf and within the Area (i.e. the waters outside national jurisdiction), a specific international cooperation regime encompassing notifications, consultations and coordination in the implementation of protective measures is established in the 2001 Convention.

The Convention contains many more important regulations. For instance it contains regulations against the illicit trafficking of cultural property and on Training in underwater archaeology. The transfer of technologies and information sharing shall be promoted and public awareness shall be raised concerning the value and significance of the underwater cultural heritage.

A most important part of the Convention is its ANNEX – it contains operation schemes for interventions underwater and is internationally recognized as the reference document in the discipline of underwater archaeology.

References

See also

• Underwater archaeology

References

• UNESCO Underwater Cultural Heritage Website
• UNESCO Culture Website

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