International legal protection for Underwater Cultural Heritage
For decades (in fact since the advent of recreational scuba-diving in the 1950s) efforts have been made by individuals and organisations around the world to find a satisfactory legal means to regulate activities affecting underwater cultural heritage (UCH) located in international waters (in other words, areas over which no individual State has sovereignty). The particular focus of attention has been UCH lying on, or embedded in, the seabed of the geological continental shelf: with advances in marine technology, such material has become ever more vulnerable to human interference.
By virtue of their sovereignty over the territorial sea, individual States have a right to regulate interference with UCH situated in that maritime zone (generally extending to 12 nautical miles from the coast), provided they do not interfere with the right of innocent passage of foreign ships. However, beyond the limits of the territorial sea, the question of how UCH can be afforded protection from harm caused by human activity becomes subject to the vagaries and complexities of international law.
The UN Convention on the Law of the Sea 1982 (the so-called ‘Constitution for the Oceans’) makes some provision for UCH (referred to in the Convention as “objects of an archaeological and historical nature”) in Articles 149 and 303. However, this provision is widely regarded as inadequate. Article 303(1) imposes a duty on States to protect UCH in whichever maritime zone it is located and Article 303(2) gives States the right to regulate the removal of UCH in the contiguous zone (which extends from 12-24 nautical miles). However, the provisions do not provide any jurisdictional means for the coastal State to take action to ensure that activities beyond 24 nautical miles are conducted in accordance with internationally acceptable archaeological standards.
UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001
The UNESCO Convention 2001 is the product of 13 years of preparatory work. It came into force on 2 January 2009 and is binding on States that are party to the Convention (for an up-to-date list of ratifications, see the UNESCO website.
The 2001 Convention is designed to provide a comprehensive global legal framework to govern UCH located in waters of a maritime character and to ensure that activities which are directed at UCH are conducted in accordance with internationally accepted archaeological standards.
Those standards are enshrined in ‘Rules’ set out in the Convention’s Annex. (The Rules, based on the ICOMOS International Charter on the Protection and Management of Underwater Cultural Heritage, are an integral part of the Convention and have the same status as the rest of the treaty.)
The Convention defines UCH broadly to include: “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” (Art. 1(1)(a)). (Pipelines and cables, as well as other installations placed on the seabed which are still in use, are excluded from the definition.)
The Convention’s core general principles and objectives are:
- States Parties to the Convention shall cooperate in the protection of UCH (Art. 2(2)).
- UCH shall be preserved for the “benefit of humanity” (Art. 2(3)).
- Preservation in situ shall be considered “as the first option” before activities directed at UCH are permitted (Art. 2(5)).
- Recovered UCH shall be deposited, conserved and managed so as to ensure its long-term preservation (Art. 2(6)).
- UCH shall not be commercially exploited (Art. 2(7)). States Parties shall ensure that proper respect is afforded to all discovered human remains (Art. 2(9)).
- Responsible non-intrusive access to in situ UCH shall be encouraged, except where incompatible with its protection and management (Art. 2(10)).
While the Convention is mainly concerned with activities “directed at” UCH, including invasive archaeological activity and treasure hunting, it also makes useful provision relating to activities “incidentally affecting” UCH, such as commercial construction projects and other marine development activities.