The UNESCO Convention on the Protection of the Underwater Cultural Heritage, adopted by the UNESCO General Conference on 2 November 2001 (hereinafter the 2001 Convention) is an international treaty aimed at saving the underwater cultural heritage.
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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 in danger of pillaging and destruction 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.
However many national laws do not adequately protect such heritage and wrecks or ruins located in international waters are even still entirely unprotected. A court case ensuing from the looting of Clive of India's Gold from the wreck of the Doddington set important precedents for the convention.[1]
Since 1982 the important United Nations Convention on the Law of the Sea (“UNCLOS”) codifies that its States Parties need to protect underwater cultural heritage under the term “archaeological and historical objects”. It obliges States Parties to protect such objects, but does not specifically regulate and articulate such protection. However, it leaves expressly room for a specific international regulation for the protection of underwater cultural heritage.
In 1993 UNESCO resolved therefore to look into drafting a new convention for the protection of underwater cultural heritage. By 1996 its member States settled on the need for a legally binding instrument. A group of experts met in Paris to work on a draft convention in 1998,[2] 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.[3]
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.
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.
Main principles:
1. States Parties to the Convention pledge to preserve underwater cultural heritage for the benefit of humanity, and take action therefore.
2. Furthermore underwater cultural heritage will 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 2001 Convention are fulfilled. Indeed an important compromise between protection and operational needs has been achieved in the 2001 Convention. 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.
3. A further 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 preferred option. Recovery 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.
Furthermore the 2001 Convention 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.
The 2001 Convention contains in addition to the enumerated protection principles a State Cooperation mechanism:
According to the Convention and 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 is also encouraged and public awareness shall be raised concerning the value and significance of the underwater cultural heritage.
A important part of the Convention is its ANNEX – it contains the "Rules concerning activities directed at underwater cultural heritage", i.e. operation schemes for underwater interventions and is internationally recognized as the reference document in the discipline of underwater archaeology.
2001 Convention on the Protection of the Underwater Cultural Heritage [1]
UNESCO page on underwater cultural heritage [2]
UNESCO Frequently Asked Question on the 2001 Convention [3]