Principles

The main principles of the Convention are listed in Article 2 and include:

• 1. This Convention aims to ensure and strengthen the protection of underwater cultural heritage.
• 2. States Parties shall cooperate in the protection of underwater cultural heritage.
• 3. States Parties shall preserve underwater cultural heritage for the benefit of humanity in conformity with the provisions of this Convention.
• 5. The preservation in situ of underwater cultural heritage shall be considered as the first option before allowing or engaging in any activities directed at this heritage.
• 7. Underwater cultural heritage shall not be commercially exploited.

The Convention does not seek to regulate ownership of the underwater cultural heritage.

The Definition of Underwater Cultural Heritage

The Convention essentially provides a blanket protection for underwater cultural heritage. Underwater cultural heritage is defined broadly, and encompasses all traces of human existence that have been submerged for at least 100 years. The definition is contained in Article 1 of the Convention:

1. (a) “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 such as:

(i) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context;

(ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and

(iii) objects of prehistoric character.

The definition specifically includes traces like structures and prehistoric objects. These are sometimes ignored in national protection regimes, which often focus solely on shipwrecks. Also included is the environment that the heritage is located in, as this can provide archaeologists with vital information and is often just as important as the ‘traces’ themselves.

Despite being broad, the definition is still just a minimum requirement, and States Parties may widen it in their jurisdiction further if they wish. An even broader definition could include traces submerged for less than 100 years for example, palaeoecological evidence, or landscapes with no physical human traces, but which may have held significance to peoples in the past.

Protection Measures

The Convention uses a number of different methods to protect underwater cultural heritage. Some of these utilise the maritime zones delineated by the United Nations Convention on the Law of the Sea (UNCLOS).

These include a state cooperation scheme for reporting and protecting underwater cultural heritage beyond the territorial sea, as well as means such as the closure of ports, the imposition of sanctions and the seizure of material. Taken together these measures are intended to prevent looting by regulating the activities directed at underwater cultural heritage, increasing the logistical costs of acting contrary to the Convention, and removing the economic benefits of such actions. This system affords one of the main advantages of the Convention to ratifying states, a method of protecting underwater cultural heritage located beyond the normal boundaries of exclusive state jurisdiction.

Just as significant is the duty placed upon states to use the best practicable means at their disposal to prevent or mitigate activates that incidentally affect underwater cultural heritage. These activities could include oil (and other resource) extraction, trawling and development. They arguably pose an even greater threat to underwater cultural heritage than looting, but unlike looting, they are legitimate and necessary. The Convention therefore seeks to balance these interests by not preventing them outright, but still limiting the damage they do to underwater cultural heritage.

States also have to cooperate in capacity building and information, technology and expertise sharing. Capacity building includes training underwater archaeologists and establishing a national competent authority responsible for the protection, conservation and management of underwater cultural heritage. Increasing the ability of States Parties to manage and engage with their underwater cultural heritage is essential for its ultimate protection.

The Convention also attempts to raise public awareness through education and the promotion of public access to underwater cultural heritage. Access is encouraged to both underwater cultural heritage located in situ, and underwater cultural heritage that has been recovered (whether lawfully or illicitly). Raising public awareness will increase the desire to protect underwater cultural heritage. In turn this could ensure a greater political will to both more widely ratify, and properly implement the Convention.

The principle of cooperation permeates all of the above protection measures and goes to the heart of the Convention. It ensures that the protection of the underwater cultural heritage is mutual effort that stimulates mutual trust. This provides a much healthier basis for heritage protection than the unilateral and often guarded and nationalistic approach that went before.

Finally, the Convention’s Annex contains 36 Rules based on the International Council on Monuments and Sites (ICOMOS) 1996 Charter on the Protection and Management of Underwater Cultural Heritage which are to be applied to activities directed at underwater cultural heritage. These ‘Rules’ are the most widely recognised international standard of underwater archaeological best practice and their use will ensure consistency in archaeological practice worldwide.

Status

The 2001 Convention entered into force on 02 January 2009, 3 months after the 20th state – Barbados – deposited its instrument of ratification. It has gathered momentum since then, with 47 states having now ratified or accepted it. Notably February 2013 saw ratification by France, a powerful maritime nation that was one of a number of significant ‘flag’ states that did not support the final text of the Convention in 2001. Some other states that still feel they cannot ratify the Convention have nevertheless agreed to adhere to the Rules of the Annex, the UK being one such example. As the number of ratifications increases, the effectiveness of the Convention’s protection measures will also increase, safeguarding the underwater cultural heritage for future generations.

States Parties