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Defining ‘underwater cultural heritage’
The International Journal of Nautical Archaeology (2002) 31.1: 3–11 doi:10.1006/ijna.2002.1022
Defining ‘underwater cultural heritage’ Craig J. S. Forrest TC Beirne School of Law, University of Queensland, St. Lucia QLD 4072, Australia The newly adopted United Nations Education, Scientific and Cultural Organization’s Convention on the Protection of the Underwater Cultural Heritage provides the first universal protection regime for this value archaeological resource. A central difficulty in concluding this Convention was defining underwater cultural heritage. This article considers the development of the definition agreed upon and analyses its utility in providing for a pragmatic and effective protection regime. 2002 The Nautical Archaeology Society Key words: UNESCO, convention, protection, international law, underwater cultural heritage.
Introduction n 2 November 2001, the General Assembly of the United Nations Education, Scientific and Cultural Organization (UNESCO) adopted the Convention on the Protection of the Underwater Cultural Heritage (UNESCO, 2001). This Convention completes a quartet of cultural heritage protection conventions adopted by UNESCO, but is the first to provide a universal protection regime for underwater cultural heritage. Determining exactly what constitutes the ‘underwater cultural heritage’ for the purposes of the Convention was a difficult and controversial process, and the resulting definition has owed much to previous attempts to resolve similar issues regarding terrestrial cultural heritage. This article will consider the varying definitions of cultural heritage in conventional international law and introduce the newly agreedupon definition of underwater cultural heritage.
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Process of defining ‘cultural heritage’ A general principle of the Convention declares that States’ Parties ‘shall preserve underwater cultural heritage for the benefit of humanity in conformity with the provisions of this Convention’ (article 2.3). Implicit in this general principle, is the assumption that it is possible to determine what the underwater cultural heritage actually comprises. The terms ‘underwater’, ‘culture’, and ‘heritage’ are individually susceptible to various 1057–2414/02/010003+09 $35.00/0
interpretations that are made no easier by their amalgamation. In particular, the term ‘culture’ is an all-embracing term that applies to every aspect of contemporary society. While the term ‘heritage’ denotes that which is received from predecessors, it does little to narrow the scope of the term ‘cultural heritage’. Indeed, the term ‘heritage’ has been described as a nomadic term that travels easily . . .. It sets up residence in streets broad and narrow, royal palaces and railway sidings . . .. It stages its spectacles in a promiscuous variety of venues, turning maltings into concert-halls, warehouses into studio flats . . .. Medieval castles automatically qualify for its protective mantle, as do Roman forts and Martello towers . . .. (Hutter & Rizzo, 1997: 307).
All that we are is an expression of the culture that we inherited, and which we may manipulate and pass on to future generations. Thus, the term cultural heritage is not susceptible to exacting interpretation. Nevertheless, there are aspects of what we have inherited from our predecessors that we might not wish to manipulate and which we may choose to pass on to future generations unaltered. Various schemes have been based on definitions of ‘cultural heritage’ or ‘cultural property’ that, though not definitive of the terms, illustrate those aspects of the cultural heritage that may be selected for differential treatment. The process of selecting material for legal protection is complex and has been considered in some detail by R. J. Carmen. He argues that the process 2002 The Nautical Archaeology Society
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of protecting archaeological material does not begin with attributing a value to the material and then, as a result of this value, granting it legal protection. Instead, he argues that the process begins with a socially induced predilection to seek to protect a certain class of material, and from this, a legal regime is structured in such a way that a legal value can be attributed to the material (Carmen, 1993: 34). Thus, while it is impossible to objectively define the term ‘cultural heritage‘, the term does convey a broad understanding as to what might be contained within its scope. Such a process was clearly evident in the drafting of the Underwater Cultural Heritage Convention, in that cognisance was taken of the broad understanding of what might constitute the ‘underwater cultural heritage’. Much of this was derived from existing conventional international law. The decision to protect the underwater cultural heritage was therefore based on a rather opaque vision of what would be protected. Clarity was needed, however, in the Convention to ensure a pragmatic and effective protection regime.
Conventional international law definitions of ‘cultural heritage’ Given the subjectivity in defining the term ‘cultural heritage’, it is no easy task determining exactly what heritage is to be subjected to differential treatment. Yet, a number of international conventions and recommendations have been agreed upon that purport to preserve cultural heritage, and it is, therefore, instructive to consider these. From these conventional definitions of ‘cultural heritage‘, the values attributed to the cultural heritage are given a legal value, elevating this selected material above other material. Manifestations of cultural heritage were traditionally dealt with in law as property. The term ‘cultural property’ was first used in an international legal context in the 1954 Hague Convention on the Protection of Cultural Heritage in the Event of Armed Conflict, which defined cultural property to include: movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important 4
collections of books or archives or of reproductions of the property defined above.
This definition introduced a significance requirement, that the ‘cultural property’ be of ‘great importance’, not just to the particular nation in whose territory the property is located, but to all humankind. This necessarily restricts the definition considerably. However, each State Party is left to determine this requirement and nominate the property to be protected. It is also noteworthy that the property is to be ‘important’ rather than be of ‘value’, as the latter might suggest a commercial value rather than of cultural value. Included in the property to be protected are the buildings which house movable cultural property, such as libraries, museums and archives. Whilst article 1(a) provides protection of objects on an individual basis, article 1(c) provides protection to groups of buildings, such as historic city centres. To this extent, the object to be protected is a large area that may encompass a number of important individual cultural heritage sites and individual objects, both movable and immovable. The 1954 Hague Convention was the first truly international convention to attempt to protect the cultural heritage and so this definition of ‘cultural property’ was the first to reach some international consensus on what should be protected. Because it aimed at protection of ‘cultural property’ that could be damaged in times of war, the definition was naturally restricted to include only those objects that could conceivably be at risk during these times. This was further limited to only those objects that are important; ensuring that a multiplicity of protected sites would not undermine the protection regime and incur the ‘military necessity’ exception on numerous occasions. This exception allows a State Party to disregard its duties to refrain from exposing cultural heritage to danger only in circumstances where military imperatives exist. The term ‘cultural property’ appears in the 1968 UNESCO Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works. It is defined in fairly narrow terms, as the aim of the recommendation is to protect cultural heritage, particularly immovable cultural heritage that may be affected by building operations. The designation ‘property’ is particularly evident in those treaties and recommendations whose aim it is to stem the flow of illicit cultural heritage. The 1970 UNESCO Convention on the Means of Prohibiting and
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Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property attempts to list a number of categories of cultural heritage which may be of importance to a State and which could be illicitly excavated and transferred to another State. This definition has been criticized for being overly broad and vague. It is important to note that each State has the mandate to determine which objects it considers to be of importance and liable for inclusion in the definition, subject to the extensive list of categories. Similarly, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, though referring to objects rather than property, defines these as those which, on religious or secular grounds, are of importance for archaeology, prehistory, literature, art or science and belong to one of the categories listed in the Annex to the Convention.
The Annex contains a list almost identical to that of the 1970 UNESCO Convention, and, with the element of importance included as a criterion for inclusion in the definition, suffers from the same interpretation problems as the latter. Each convention has adopted a definition to suit its particular aim. The definitions of ‘cultural property’ in the conventions that have attempted to stem the trade in illicit cultural heritage have been extensive, attempting to mention specifically every conceivable object that could possibly be the object of illicit trade. As cultural heritage susceptible to illicit trade inevitably comprizes movables with commercial value, these have featured prominently in the definition as ‘property’. On the other hand, the 1976 UNESCO Recommendation Concerning the International Exchange of Cultural Property adopts a broad and rather vague definition of ‘cultural property’ as the aim is to ensure that as many objects as possible can be exchanged without hindrances. As is thus evident, the term ‘cultural property’ includes a wide range of material objects. However, the classification of these material objects in law as ‘property’ has been criticized. Property, in the common law system, is a fundamental concept around which important politico-philosophical concepts have been developed. Property can be subdivided, in the common law system, as real or personal. Further divisions could include movable and immovable, tangible and intangible, public and private, and intellectual property (Reichelt, 1985: 67). These divisions may not occur in other legal systems, and the extent to which an object of cultural importance falls within any particular
category may be uncertain. The fundamental policy behind property law has been to protect the wide-ranging rights of the owner. In particular, the common law concept has a particular commercial perspective that entitles the owner of property to exclusive rights to alienate, to exploit, to exclude others, and even to destroy it. The extensive rights that may be given to the owner may be such that other interests in the property are entirely ignored. However, in all legal systems, the rights of the individual have been restricted in favour of broader public interests. In terms of cultural property, the right of the owner could be restricted if the value of the cultural property to the public is perceived as being of greater importance. Therefore, the owners’ rights could be restricted by import or export controls, prohibition against destruction, zoning of cities to protect important sites, and registration in registers. The term ‘property’ will be associated, therefore, with different rights in different jurisdictions, and the terminology could cause confusion as to the exact nature of the cultural object (Prott & O’Keefe, 1984: 197–202). As the term ‘property’ emphasizes the commercial value of the cultural object, it may appear to be the primary value in the object whilst relegating the cultural value of the object to secondary importance. This approach is obviously not conducive to protection (Prott & O’Keefe, 1992: 311). It has been argued that not only are the manifestations of a culture evident in material objects, but also they may be in the form of intangibles. These intangibles may take the form of patterns of behaviour, rituals, ceremonies, oral history, folklore, music, dance, and knowledge of skills. They may also include the knowledge and information that may be attached to a material cultural object, such as how and when it was used, how it was made, for whom it was made. Although some of these intangibles may be recognized in terms of intellectual property law, most will not be regarded as property, and in law may not be the object of any rights. The notion of the ‘cultural heritage’ has, therefore, been advanced as being more appropriate than the notion ‘cultural property’, as it will not only take into account the intangible manifestations of culture, but also remove the political and legal connotations that attach to the term ‘property’. The use of the term ‘heritage’ is important in that it introduces a temporal dimension to the concept: the idea that it is to be preserved for the next generation. 5
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The first time that the notion of ‘heritage’ was associated with cultural objects was, surprisingly, also in the 1954 Hague Convention. Article 1 stated that the cultural property to be protected would include ‘movable or immovable property of great importance to the cultural heritage’. It was not, therefore, used as a collective term delimiting the property to be protected. The term heritage was first used in this sense in the 1956 UNESCO Recommendation on International Principles Applicable to Archaeological Excavations, which refers to the ‘archaeological heritage’. It is unfortunate that later international agreements were not able to follow the terminology of this agreement, one of the earliest international agreements to protect the cultural heritage, in using the term ‘heritage’ rather than ‘property’. Although this definition is restricted to ‘archaeological heritage’, within that context, it is very broad, in that it includes any object recovered from an archaeological excavation, including an underwater excavation, which is considered to be of importance by the State in whose territory the cultural heritage is situated. The phrase ‘cultural heritage’ was first used as a collective term delimiting the objects to be protected in an international convention in the 1972 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage. This definition is limited in that the convention is to apply only to immovables, such as monuments and sites. However, with the introduction of the term ‘cultural heritage’, the definition of the objects to be protected has become broader and more conceptual in nature than those of ‘cultural property’. This is evident in the 1969 Council of Europe Convention on the Protection of the Archaeological Heritage, which defines those objects that shall be considered as the ‘archaeological heritage’ in the following terms: For the Purposes of this Convention, all remains and objects, or any other traces of human existence, which bear witness to epochs and civilisations for which excavation or discoveries are the main source or one of the main sources of scientific information, shall be considered as archaeological objects.
This definition is framed in very broad terms, with no attempt to define the objects themselves, but rather concerns the relationship between the object and its scientific usefulness. The revised 1992 European Convention on the Protection of the Archaeological Heritage restricts the broad 1969 definition to a certain extent by giving a 6
number of examples of what these archaeological objects could include. The definition includes reference to examples of objects, such as ‘structures, groups of buildings, developed sites and movable objects’ while also including broad significance criteria, such as ‘the preservation of which help to retrace the history of mankind and its relation with the natural environment’. The inherent distinction between the terms ‘cultural property’ and ‘cultural heritage’ has yet to be grasped or consistently applied in conventional international law. The 1985 European Convention on Offences Relating to Cultural Property contained a definition of ‘cultural property’ but referred to the ‘cultural heritage’ in the preamble, suggesting that ‘cultural property’ is a subdivision of ‘cultural heritage’. It is thus evident from existing international conventions that there is no definitive definition of ‘cultural heritage’ or its content. Each convention has formulated a relatively unique definition to fit its purpose. However, three main structures are evident. On the one extreme is a very general definition, which may be given more specific content by the States’ Parties. This, however, tends to create problems of interpretation. On the other extreme, there may be an exhaustive list of cultural heritage, effectively narrowing the protection to only those included. This results in ‘gaps’ appearing. A median is a definition that, though couched in general terms, includes a list of examples as a guide. It is clear that the new UNESCO Convention is designed to address one particular issue in relation to the protection of cultural heritage in general and cannot hope to provide a definitive definition of underwater cultural heritage, much less one for ‘cultural heritage’. Thus, the definition does not, and cannot, determine what is underwater cultural heritage, but only what underwater cultural heritage will be subject to the protective regime.
Development of a definition of ‘underwater cultural heritage’ Underwater cultural heritage is merely an environmentally confined category of cultural heritage. Initial preservation regimes, therefore, simply included it within the definition of terrestrial cultural heritage. For example, the 1956 UNESCO Recommendation on International
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Principles Applicable to Archaeological Excavations included underwater cultural heritage within its scope and is the first international instrument to provide some recognition of the need to preserve underwater cultural heritage. This formula has been followed in a number of subsequent instruments, such as the 1985 European Convention on Offences Relating to Cultural Property. This Convention contains an extensive definition of what objects make up the ‘cultural heritage’ and specifically states that the Convention will apply whether these objects are found on land or under water. Underwater cultural heritage there was dealt with as a necessary extension of jurisdiction to preserve terrestrial cultural heritage. A similar regime was applied in 1992, when, partly as a result of a failure of the Council of Europe to adopt the 1985 Draft European Convention on the Protection of the Underwater Cultural Heritage, the European Convention on the Protection of the Archaeological Heritage was revised to extend the definition of the archaeological heritage to include that found under water. The recognition of underwater cultural heritage as having preservation needs that transcend those of terrestrial cultural heritage was an important step towards the development of an international preservation regime, and arose as an issue during negotiation of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Included in that Convention were two articles that addressed the protection of ‘objects of an archaeological and historical nature’.
Interpretation of the term ‘objects of an archaeological and historical nature’ Both articles 149 and 303 of UNCLOS refer to ‘objects of an archaeological and historical nature’, but these terms are not defined in the Convention. As such, the terms are vague and ‘unfortunately emphasise objects instead of archaeological sites and their contexts’ (Elia, 2000: 44). Nor is it certain whether the terms should be read conjunctively, as in the Chinese, English, and French texts, or disjunctively, as in the Spanish, Arabic, and Russian texts (Nordquist, 1989: 160). As the English terms refer to disciplines that, though related, are quite distinct in nature, it is submitted that the terms should be read disjunctively. Strati argues that the term ‘archaeological and historical’ should be
defined to include both movables and immovables older than 100 years (Cycon, 1985: 83; Barrowman, 1987: 231–246; Strati, 1995: 182). The justification for the age limit is based on a number of arguments. First, a number of national cultural heritage laws, both general and specific to underwater cultural heritage, use the 100-year age limit or a fixed time varying from 1600 (Hong Kong, Antiquities and Monuments Ordinance 1971) to 1937 (Gambia, The Monument and Relics Act No. 8 of 1974). The use of the 100-year time limit is also apparent in a number of international conventions and recommendations, including the 1970 UNESCO Convention and the 1985 European Convention on Offences Relating to Cultural Property. Second, since an early draft of article 149 included reference to a term of 50 years, the presumption is that the drafters intended the articles to apply to objects of a relatively recent origin. Third, Strati argues that archaeology is not necessarily related to objects of prehistory and that there is nothing in the travaux preparatoires to indicate that such a restrictive interpretation was intended (Strati, 1995: 180). Oxman disagrees and argues that ‘the provisions were not intended to apply to modern objects whatever their historical interest’ and that article 149 ‘at least suggests the idea of objects that are many hundred of years old’ (Oxman, 1981: 241). He suggests that the articles should apply only to objects older than the fall of the Byzantine Empire (1453), though he does concede that this could be adjusted to take into account important historical landmarks of the Americas, such as the fall of Tenochtitlan (1521) or Cizo (1533) (Oxman, 1988: 365). Similarly, Arend argues that the ‘objects must at least be old enough that the laws of salvage do not apply to them’. This, he states, means that ‘there is no person, legal or natural who might be able to claim title to the objects in question’ (Arend, 1982: 779). Fourth, Strati argues that the recent trend in attempts to preserve underwater cultural heritage and the recognition of this in UNCLOS should allow for a broad definition so as to cover all objects more than 100 years old. While there is clearly no unanimous agreement on this issue, it does appear as if the trend in both national and international protection measures tend to be inclusive in scope, covering objects that have been submerged for more than 100 years as objects of an archaeological and historical nature. The definition of underwater cultural heritage has emerged from this trend. 7
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New definition of ‘underwater cultural heritage’ Underwater cultural heritage is defined in the new UNESCO Convention as all traces of human existence having a cultural, historical or archaeological character which have been partially or totally underwater, 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. (b) Pipelines and cables placed on the seabed shall not be considered as underwater cultural heritage. (c) Installations other than pipelines and cables, placed on the seabed and still in use, shall not be considered as underwater cultural heritage.
The origins of this definition lie in the development of a definition in the failed 1985 Draft European Convention on the Protection of the Underwater Cultural Heritage, which was used by the International Law Association (ILA) in drafting the Convention that was forwarded to UNESCO for consideration (O’Keefe & Nafziger, 1994: 391–418). It is constructive, therefore, to consider these earlier definitions and the subsequent debate during negotiation at UNESCO regarding the inclusion of a significance requirement to limit the scope of the definition. The 1985 Draft European Convention contained a definition of underwater cultural heritage that excluded reference to the 100-year period, with the result that the definition was overly inclusive and ambiguous, and was so widely defined that it would include both significant and insignificant objects. It appeared that any object that was evidence of human existence and was found under water would be regarded as underwater cultural heritage. For example, this could include, presumably, a bottle thrown into the sea one day and recovered the next (Bederman, 1999: 332). While the definition of underwater cultural heritage was overly broad, the article delimiting the scope of the Convention did include a limitation to underwater cultural heritage that had been under water for over 100 years. As such, this age requirement was not a defining criterion, and only determined what underwater cultural heritage 8
would be subject to the provisions of the Convention. The ILA Draft Convention proposed an almost identical definition of underwater cultural heritage. The official comment to the ILA draft stated that the definition and scope of the convention were ‘designed to make it easier for administrators and courts to decide if something is covered by the Convention or not’ and was ‘an efficient means of separating out material which is more likely to be important from that which is less likely’ (O’Keefe & Nafziger, 1994: 406). When UNESCO considered the ILA draft, it was decided to limit the scope of the definition of underwater cultural heritage by including reference to the 100-year limit in the definition, rather than simply in defining the scope of the protection regime. Despite this improvement in clarity, the original UNESCO definition was criticized as being vague in that it did not introduce any qualitative measure of an object’s significance and merely assumes that the object’s age is most likely to define its archaeological, cultural, or historical significance. This was compounded by the fact that the 100-year time period is somewhat arbitrary and based more on administrative pragmatism than on archaeological, cultural, or historical significance. There was, therefore, a call from a number of States for the inclusion of significance criteria that would apply to underwater cultural heritage that had been submerged for over 100 years. The inclusion of the phrase ‘cultural, historical, or archaeological character’ as a qualifying criterion for underwater cultural heritage was included late in the negotiation process as an attempt to draw a compromise between those States that advocated blanket protection for all underwater cultural heritage and those that proposed that only significant underwater cultural heritage be subject to the protection regime. Not all traces of human existence found under water are of archaeological importance, including some traces that are over 100 years old. Archaeological value is a relative concept, and some traces may be more valuable than others. The management of underwater cultural heritage requires that resources be allocated differentially, depending on the relative archaeological significance of the various individual underwater cultural heritage. The question that arose at UNESCO was whether this determination of significance should be a factor that delimits the scope of the convention, or whether it simply should be an aspect of the management of this resource. While some States
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have argued that the scope of the convention should be restricted to underwater cultural heritage that is deemed significant, the majority of States prefer a system of blanket preservation. However, the justification for both these approaches appeared to be the same in that the proponents argued that their particular approach was the most effective way to manage underwater cultural heritage. There was thus a conflict over the nature of the management of underwater cultural heritage. The strongest proponents of the view that the scope of the Convention should be limited to underwater cultural heritage which is archaeologically significant, include the US and UK. The US has stated that the term ‘all traces of human existence’ is ‘too broad both legally and as a management tool, and a ‘‘significance’’ criterion should be added’ (USA, 2000). This position was proposed on the basis that few States could possibly have the management capacity and resources to preserve all underwater cultural heritage that might fall within this definition. This particular view is coloured by that State’s national management structure and legislation for the preservation of underwater cultural heritage. Thus, questions of significance must be considered within a system that allows for private recovery of underwater cultural heritage that is not deemed significant. State funding is allocated only to underwater cultural heritage deemed significant, whereas private funding may be directed towards the recovery of all other traces of human existence. However, funding would be required for the determination of whether any particular underwater cultural heritage is significant. In a State such as the UK, in which the National Inventory of Maritime Archaeology lists approximately 30,000 sites dating from AD 1200, it would be extremely costly to investigate each wreck (Keith, 2000: 274). As such, significance is narrowly construed, so that, at present, only 53 wrecks are currently regarded as being of sufficient significance to be protected. Thus, the significance of underwater cultural heritage is a reflection of the capacity or political willingness of the State to provide funding for the management of the underwater cultural heritage. This is certainly not conducive to a regime that will preserve underwater cultural heritage for the benefit of humankind, as the determining factors are limited to a particular State. It is submitted that the use of a regime of blanket preservation is probably the more cost-effective management regime for underwater
cultural heritage. In giving effect to the principle of in-situ preservation endorsed in the Convention, blanket preservation allows a State to fulfil its duty to preserve underwater cultural heritage in its territory by ensuring that the underwater cultural heritage is not disturbed. There is no cost associated with determining whether the underwater cultural heritage is of significance, because this is presumed. While the allocation of funding will be dependent on a significance requirement, this will be undertaken on the basis that all underwater cultural heritage already receives the benefit of in-situ preservation. To propose that only significant underwater cultural heritage should be preserved in situ entails the costly and time-consuming task of determining significance before preservation can be authorized. In a system that presumes that underwater cultural heritage is not significant, and allows recovery by private individuals until such time as the underwater cultural heritage is deemed significant, the risk arises that the significance requirement could be determined too late for an in-situ preservation regime to be applied (Henderson, 2001: 4). At the same time, a risk arises of infringing rights granted to the individual before this finding of significance (Fletcher-Tomenius & Williams, 1999: 145–153). For these reasons, it is unfortunate that the phrase ‘cultural, historical or archaeological character’ has been introduced as the risk arises that some State Parties may interpret this as a significance requirement. An interpretation more conducive to the spirit of the Convention would be to acknowledge that prima facie all traces of human existence over 100 years old have a cultural, historical, or archaeological character and are subject to the protection regime until such time as the contrary is proven. This allows the overriding principle of in-situ preservation to prevail. This definition does differ from some UNESCO conventions in that it is designed with a practical objective as opposed to an abstract contemplation and, unlike many of the conventions dealing with terrestrial cultural heritage, is broadly defined and primarily concerned with the environment in which the cultural heritage is found rather than what constitutes underwater cultural heritage. ‘All traces of human existence’ would include all objects that provide evidence of humanity’s past. The listed objects serve only as examples of those most likely to be found under water and fall within the definition of underwater cultural heritage. However, it does have the effect of 9
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raising a rebuttable presumption that these listed objects are underwater cultural heritage. Although it has been argued that this definition is too broad (Bederman, 1999: 332), it has also been criticized for being too narrow in that it only applies to traces of human existence and does not provide any scope for inclusion of cultural landscapes or palaeontology (AIA, 1998: 538–544). A problem that may arise with the 100-year period is that it is not entirely clear from which point this time period is measured. As one of the aims of the Convention is to promote in-situ preservation, it may be presumed that this should be calculated from the time that any activity directed at the underwater cultural heritage is contemplated, and not merely from the time of discovery. Thus, the determination of the time period should work in favour of preservation of underwater cultural heritage. Early drafts of the Convention included a paragraph (article 1(1)(b)) that stated that: Notwithstanding the provisions of paragraph 1(a), a State Party may designate certain traces of human existence within its jurisdiction as underwater cultural heritage even though they have been underwater for less than 100 years.
This would have allowed a State Party to decide that an object that has been underwater for less than 100 years was of historical interest and could merely declare a recently sunken vessel to be underwater cultural heritage, and the provisions of the Convention would apply, including the prevention of commercial salvage. There was no requirement for a State to show cause as to why the particular object should be preserved. This would have enabled each State Party unilaterally to alter the definition of underwater cultural heritage and effectively mean that the temporal requirement was not an essential element of the definition. This would have resurrected the unduly wide scope that existed in the ILA draft and 1985 Draft European Convention. For the sake of definitional certainty, it would have been preferable to have declared that a State could apply the provisions of the Convention to a vessel that does not constitute underwater cultural heritage solely because it has not been under water for the last 100 years. The original ILA definition did not specify that this power related only to vessels in the State Party’s territory. Following objections from a 10
number of States, the application of article 1(1)(b) was limited to areas within the coastal State’s jurisdiction. In areas beyond the coastal State’s jurisdiction, objects that have been submerged for less than 100 years could not have been protected under the Convention, as no State would have the power to utilize article 1(1)(b). It was, therefore, unfortunate that an object’s preservation would have depended not on its significance but on its location and result in an unfortunate duality of regimes. In order to overcome this, it would have been preferable for an international organization, such as UNESCO, to be granted the authority to make such determinations for objects beyond coastal State jurisdiction. States’ Parties could have proposed vessels for preservation, much as States propose sites for protection under the World Heritage Convention. Unfortunately, the chosen route was to delete article 1(1)(b) entirely. This was due mainly to the recognition that States have the inherent power to protect any wreck irrespective of its age in waters under its jurisdiction, and that by eliminating this provision altogether, it was ensured that no object can be designated as underwater cultural heritage unless it has been under water for at least 100 years.
Conclusion The conclusion of the Convention on the Protection of the Underwater Cultural Heritage is an important development in the protection of this valued resource and, in particular, in furthering an understanding as to what manifestations of our cultural heritage should be selected for differential treatment. While the definition of what is to be protected lacks some clarity, and profers the possibility of introducing a significance requirement in some States’ interpretations, it generally provides a sufficiently wide net to catch the most of what is regarded as archaeologically and historically valuable that is found beneath the oceans. Although the Convention is not yet in force, it is anticipated that the 20 States Parties required to bring it into force will quickly ratify the Convention. How these States Parties will implement their international duties, and, in particular, how the definition of underwater cultural heritage will be interpreted, will determine what future generations can point to as their underwater cultural heritage.
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References AIA, 1998, Comments of the Archaeological Institute of America on the UNESCO Draft Convention on the Protection of the Underwater Cultural Heritage. International Journal of Cultural Property, 7: 538–544. Arend, A. C., 1982, Archaeological and historical objects: Implications of UNCLOS III. Virginia Journal of International Law, 22: 777–803. Barrowman, E., 1987, The recovery of shipwrecks in international waters. Michigan Yearbook of International Legal Studies 1987: 231–246. Bederman, D., 1999, The UNESCO Draft Convention on Underwater Cultural Heritage: A critique and counter-proposal. Journal of Maritime Law and Commerce, 30: 331–354. Carman, R. J., 1993, Valuing Ancient Things: Archaeology and Law in England. Unpublished Ph.D. thesis, University of Cambridge. Cycon, D. E., 1985, Legal and regulatory issues in marine archaeology. Oceanus, 28: 78–84. Delgado, J. P. (Ed.), 1997, Encyclopaedia of Underwater and Marine Archaeology. London. Elia, R. J., 2000, US Protection of underwater cultural heritage beyond the territorial sea: problems and prospects. INJA, 29: 43–56. Fletcher-Tomenius, P. & Williams, M., 1999, The draft UNESCO/DOALOS Convention on the Protection of underwater cultural heritage and conflicts with the European Convention on Human Rights. INJA, 28: 145–153. Henderson, G., 2001, Significance assessment or blanket protection? INJA, 30: 3–4. Hutter, M. & Rizzo, I. (Eds), 1997, Economic Perspectives on Cultural Heritage. London. Keith, D. H., 2000, Going, going—gone! In L. V. Prott, E. Planche, & R. Roca-Hachem, (Eds), Background Materials on the Protection of the Underwater Cultural Heritage, vol. 2 UNESCO. Nordquist, M. H., 1989, United Nations Convention on the Law of the Sea 1982: A Commentary, 5. Dordrecht, The Netherlands. O’Keefe, P. & Nafziger, J. A. R., 1994, The Draft Convention on the Protection of Underwater Cultural Heritage. Ocean Development and International Law, 25: 391–418. Oxman, B. H., 1981, The Third United Nations Conference on the Law of the Sea: the Ninth Session. American Journal of International Law, 75: 211–256. Oxman, B. H., 1988, Marine archaeology and the International Law of the Sea. Columbia VLA Journal of Law and the Arts, 12: 353–372. Prott, L. V. & O’Keefe, P. J., 1984, Law and the Cultural Heritage: Volume 1, Discovery and Excavation. Abingdon, UK. Prott, L. V. & O’Keefe, P. J., 1992, Cultural Heritage or Cultural Property. International Journal of Cultural Property, 1: 307–320 Reichelt, G., 1985, International protection of cultural property. Uniform Law Review, 1: 43–153. Strati, A., 1995, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea. Publications on Ocean Development, 23. London. Toman, J., 1996, The Protection of Cultural Property in the Event of Armed Conflict. Dartmouth, UK. UNESCO 2001, Document 31 C/24, 3 August 2001 USA, 2000, Comments of the United States of America on Selected Articles being considered in working group one. Distributed at the 200 meeting, 4 July 2000.
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Defining ‘underwater cultural heritage’ Craig J. S. Forrest TC Beirne School of Law, University of Queensland, St. Lucia QLD 4072, Australia The newly adopted United Nations Education, Scientific and Cultural Organization’s Convention on the Protection of the Underwater Cultural Heritage provides the first universal protection regime for this value archaeological resource. A central difficulty in concluding this Convention was defining underwater cultural heritage. This article considers the development of the definition agreed upon and analyses its utility in providing for a pragmatic and effective protection regime. 2002 The Nautical Archaeology Society Key words: UNESCO, convention, protection, international law, underwater cultural heritage.
Introduction n 2 November 2001, the General Assembly of the United Nations Education, Scientific and Cultural Organization (UNESCO) adopted the Convention on the Protection of the Underwater Cultural Heritage (UNESCO, 2001). This Convention completes a quartet of cultural heritage protection conventions adopted by UNESCO, but is the first to provide a universal protection regime for underwater cultural heritage. Determining exactly what constitutes the ‘underwater cultural heritage’ for the purposes of the Convention was a difficult and controversial process, and the resulting definition has owed much to previous attempts to resolve similar issues regarding terrestrial cultural heritage. This article will consider the varying definitions of cultural heritage in conventional international law and introduce the newly agreedupon definition of underwater cultural heritage.
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Process of defining ‘cultural heritage’ A general principle of the Convention declares that States’ Parties ‘shall preserve underwater cultural heritage for the benefit of humanity in conformity with the provisions of this Convention’ (article 2.3). Implicit in this general principle, is the assumption that it is possible to determine what the underwater cultural heritage actually comprises. The terms ‘underwater’, ‘culture’, and ‘heritage’ are individually susceptible to various 1057–2414/02/010003+09 $35.00/0
interpretations that are made no easier by their amalgamation. In particular, the term ‘culture’ is an all-embracing term that applies to every aspect of contemporary society. While the term ‘heritage’ denotes that which is received from predecessors, it does little to narrow the scope of the term ‘cultural heritage’. Indeed, the term ‘heritage’ has been described as a nomadic term that travels easily . . .. It sets up residence in streets broad and narrow, royal palaces and railway sidings . . .. It stages its spectacles in a promiscuous variety of venues, turning maltings into concert-halls, warehouses into studio flats . . .. Medieval castles automatically qualify for its protective mantle, as do Roman forts and Martello towers . . .. (Hutter & Rizzo, 1997: 307).
All that we are is an expression of the culture that we inherited, and which we may manipulate and pass on to future generations. Thus, the term cultural heritage is not susceptible to exacting interpretation. Nevertheless, there are aspects of what we have inherited from our predecessors that we might not wish to manipulate and which we may choose to pass on to future generations unaltered. Various schemes have been based on definitions of ‘cultural heritage’ or ‘cultural property’ that, though not definitive of the terms, illustrate those aspects of the cultural heritage that may be selected for differential treatment. The process of selecting material for legal protection is complex and has been considered in some detail by R. J. Carmen. He argues that the process 2002 The Nautical Archaeology Society
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of protecting archaeological material does not begin with attributing a value to the material and then, as a result of this value, granting it legal protection. Instead, he argues that the process begins with a socially induced predilection to seek to protect a certain class of material, and from this, a legal regime is structured in such a way that a legal value can be attributed to the material (Carmen, 1993: 34). Thus, while it is impossible to objectively define the term ‘cultural heritage‘, the term does convey a broad understanding as to what might be contained within its scope. Such a process was clearly evident in the drafting of the Underwater Cultural Heritage Convention, in that cognisance was taken of the broad understanding of what might constitute the ‘underwater cultural heritage’. Much of this was derived from existing conventional international law. The decision to protect the underwater cultural heritage was therefore based on a rather opaque vision of what would be protected. Clarity was needed, however, in the Convention to ensure a pragmatic and effective protection regime.
Conventional international law definitions of ‘cultural heritage’ Given the subjectivity in defining the term ‘cultural heritage’, it is no easy task determining exactly what heritage is to be subjected to differential treatment. Yet, a number of international conventions and recommendations have been agreed upon that purport to preserve cultural heritage, and it is, therefore, instructive to consider these. From these conventional definitions of ‘cultural heritage‘, the values attributed to the cultural heritage are given a legal value, elevating this selected material above other material. Manifestations of cultural heritage were traditionally dealt with in law as property. The term ‘cultural property’ was first used in an international legal context in the 1954 Hague Convention on the Protection of Cultural Heritage in the Event of Armed Conflict, which defined cultural property to include: movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important 4
collections of books or archives or of reproductions of the property defined above.
This definition introduced a significance requirement, that the ‘cultural property’ be of ‘great importance’, not just to the particular nation in whose territory the property is located, but to all humankind. This necessarily restricts the definition considerably. However, each State Party is left to determine this requirement and nominate the property to be protected. It is also noteworthy that the property is to be ‘important’ rather than be of ‘value’, as the latter might suggest a commercial value rather than of cultural value. Included in the property to be protected are the buildings which house movable cultural property, such as libraries, museums and archives. Whilst article 1(a) provides protection of objects on an individual basis, article 1(c) provides protection to groups of buildings, such as historic city centres. To this extent, the object to be protected is a large area that may encompass a number of important individual cultural heritage sites and individual objects, both movable and immovable. The 1954 Hague Convention was the first truly international convention to attempt to protect the cultural heritage and so this definition of ‘cultural property’ was the first to reach some international consensus on what should be protected. Because it aimed at protection of ‘cultural property’ that could be damaged in times of war, the definition was naturally restricted to include only those objects that could conceivably be at risk during these times. This was further limited to only those objects that are important; ensuring that a multiplicity of protected sites would not undermine the protection regime and incur the ‘military necessity’ exception on numerous occasions. This exception allows a State Party to disregard its duties to refrain from exposing cultural heritage to danger only in circumstances where military imperatives exist. The term ‘cultural property’ appears in the 1968 UNESCO Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works. It is defined in fairly narrow terms, as the aim of the recommendation is to protect cultural heritage, particularly immovable cultural heritage that may be affected by building operations. The designation ‘property’ is particularly evident in those treaties and recommendations whose aim it is to stem the flow of illicit cultural heritage. The 1970 UNESCO Convention on the Means of Prohibiting and
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Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property attempts to list a number of categories of cultural heritage which may be of importance to a State and which could be illicitly excavated and transferred to another State. This definition has been criticized for being overly broad and vague. It is important to note that each State has the mandate to determine which objects it considers to be of importance and liable for inclusion in the definition, subject to the extensive list of categories. Similarly, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, though referring to objects rather than property, defines these as those which, on religious or secular grounds, are of importance for archaeology, prehistory, literature, art or science and belong to one of the categories listed in the Annex to the Convention.
The Annex contains a list almost identical to that of the 1970 UNESCO Convention, and, with the element of importance included as a criterion for inclusion in the definition, suffers from the same interpretation problems as the latter. Each convention has adopted a definition to suit its particular aim. The definitions of ‘cultural property’ in the conventions that have attempted to stem the trade in illicit cultural heritage have been extensive, attempting to mention specifically every conceivable object that could possibly be the object of illicit trade. As cultural heritage susceptible to illicit trade inevitably comprizes movables with commercial value, these have featured prominently in the definition as ‘property’. On the other hand, the 1976 UNESCO Recommendation Concerning the International Exchange of Cultural Property adopts a broad and rather vague definition of ‘cultural property’ as the aim is to ensure that as many objects as possible can be exchanged without hindrances. As is thus evident, the term ‘cultural property’ includes a wide range of material objects. However, the classification of these material objects in law as ‘property’ has been criticized. Property, in the common law system, is a fundamental concept around which important politico-philosophical concepts have been developed. Property can be subdivided, in the common law system, as real or personal. Further divisions could include movable and immovable, tangible and intangible, public and private, and intellectual property (Reichelt, 1985: 67). These divisions may not occur in other legal systems, and the extent to which an object of cultural importance falls within any particular
category may be uncertain. The fundamental policy behind property law has been to protect the wide-ranging rights of the owner. In particular, the common law concept has a particular commercial perspective that entitles the owner of property to exclusive rights to alienate, to exploit, to exclude others, and even to destroy it. The extensive rights that may be given to the owner may be such that other interests in the property are entirely ignored. However, in all legal systems, the rights of the individual have been restricted in favour of broader public interests. In terms of cultural property, the right of the owner could be restricted if the value of the cultural property to the public is perceived as being of greater importance. Therefore, the owners’ rights could be restricted by import or export controls, prohibition against destruction, zoning of cities to protect important sites, and registration in registers. The term ‘property’ will be associated, therefore, with different rights in different jurisdictions, and the terminology could cause confusion as to the exact nature of the cultural object (Prott & O’Keefe, 1984: 197–202). As the term ‘property’ emphasizes the commercial value of the cultural object, it may appear to be the primary value in the object whilst relegating the cultural value of the object to secondary importance. This approach is obviously not conducive to protection (Prott & O’Keefe, 1992: 311). It has been argued that not only are the manifestations of a culture evident in material objects, but also they may be in the form of intangibles. These intangibles may take the form of patterns of behaviour, rituals, ceremonies, oral history, folklore, music, dance, and knowledge of skills. They may also include the knowledge and information that may be attached to a material cultural object, such as how and when it was used, how it was made, for whom it was made. Although some of these intangibles may be recognized in terms of intellectual property law, most will not be regarded as property, and in law may not be the object of any rights. The notion of the ‘cultural heritage’ has, therefore, been advanced as being more appropriate than the notion ‘cultural property’, as it will not only take into account the intangible manifestations of culture, but also remove the political and legal connotations that attach to the term ‘property’. The use of the term ‘heritage’ is important in that it introduces a temporal dimension to the concept: the idea that it is to be preserved for the next generation. 5
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The first time that the notion of ‘heritage’ was associated with cultural objects was, surprisingly, also in the 1954 Hague Convention. Article 1 stated that the cultural property to be protected would include ‘movable or immovable property of great importance to the cultural heritage’. It was not, therefore, used as a collective term delimiting the property to be protected. The term heritage was first used in this sense in the 1956 UNESCO Recommendation on International Principles Applicable to Archaeological Excavations, which refers to the ‘archaeological heritage’. It is unfortunate that later international agreements were not able to follow the terminology of this agreement, one of the earliest international agreements to protect the cultural heritage, in using the term ‘heritage’ rather than ‘property’. Although this definition is restricted to ‘archaeological heritage’, within that context, it is very broad, in that it includes any object recovered from an archaeological excavation, including an underwater excavation, which is considered to be of importance by the State in whose territory the cultural heritage is situated. The phrase ‘cultural heritage’ was first used as a collective term delimiting the objects to be protected in an international convention in the 1972 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage. This definition is limited in that the convention is to apply only to immovables, such as monuments and sites. However, with the introduction of the term ‘cultural heritage’, the definition of the objects to be protected has become broader and more conceptual in nature than those of ‘cultural property’. This is evident in the 1969 Council of Europe Convention on the Protection of the Archaeological Heritage, which defines those objects that shall be considered as the ‘archaeological heritage’ in the following terms: For the Purposes of this Convention, all remains and objects, or any other traces of human existence, which bear witness to epochs and civilisations for which excavation or discoveries are the main source or one of the main sources of scientific information, shall be considered as archaeological objects.
This definition is framed in very broad terms, with no attempt to define the objects themselves, but rather concerns the relationship between the object and its scientific usefulness. The revised 1992 European Convention on the Protection of the Archaeological Heritage restricts the broad 1969 definition to a certain extent by giving a 6
number of examples of what these archaeological objects could include. The definition includes reference to examples of objects, such as ‘structures, groups of buildings, developed sites and movable objects’ while also including broad significance criteria, such as ‘the preservation of which help to retrace the history of mankind and its relation with the natural environment’. The inherent distinction between the terms ‘cultural property’ and ‘cultural heritage’ has yet to be grasped or consistently applied in conventional international law. The 1985 European Convention on Offences Relating to Cultural Property contained a definition of ‘cultural property’ but referred to the ‘cultural heritage’ in the preamble, suggesting that ‘cultural property’ is a subdivision of ‘cultural heritage’. It is thus evident from existing international conventions that there is no definitive definition of ‘cultural heritage’ or its content. Each convention has formulated a relatively unique definition to fit its purpose. However, three main structures are evident. On the one extreme is a very general definition, which may be given more specific content by the States’ Parties. This, however, tends to create problems of interpretation. On the other extreme, there may be an exhaustive list of cultural heritage, effectively narrowing the protection to only those included. This results in ‘gaps’ appearing. A median is a definition that, though couched in general terms, includes a list of examples as a guide. It is clear that the new UNESCO Convention is designed to address one particular issue in relation to the protection of cultural heritage in general and cannot hope to provide a definitive definition of underwater cultural heritage, much less one for ‘cultural heritage’. Thus, the definition does not, and cannot, determine what is underwater cultural heritage, but only what underwater cultural heritage will be subject to the protective regime.
Development of a definition of ‘underwater cultural heritage’ Underwater cultural heritage is merely an environmentally confined category of cultural heritage. Initial preservation regimes, therefore, simply included it within the definition of terrestrial cultural heritage. For example, the 1956 UNESCO Recommendation on International
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Principles Applicable to Archaeological Excavations included underwater cultural heritage within its scope and is the first international instrument to provide some recognition of the need to preserve underwater cultural heritage. This formula has been followed in a number of subsequent instruments, such as the 1985 European Convention on Offences Relating to Cultural Property. This Convention contains an extensive definition of what objects make up the ‘cultural heritage’ and specifically states that the Convention will apply whether these objects are found on land or under water. Underwater cultural heritage there was dealt with as a necessary extension of jurisdiction to preserve terrestrial cultural heritage. A similar regime was applied in 1992, when, partly as a result of a failure of the Council of Europe to adopt the 1985 Draft European Convention on the Protection of the Underwater Cultural Heritage, the European Convention on the Protection of the Archaeological Heritage was revised to extend the definition of the archaeological heritage to include that found under water. The recognition of underwater cultural heritage as having preservation needs that transcend those of terrestrial cultural heritage was an important step towards the development of an international preservation regime, and arose as an issue during negotiation of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Included in that Convention were two articles that addressed the protection of ‘objects of an archaeological and historical nature’.
Interpretation of the term ‘objects of an archaeological and historical nature’ Both articles 149 and 303 of UNCLOS refer to ‘objects of an archaeological and historical nature’, but these terms are not defined in the Convention. As such, the terms are vague and ‘unfortunately emphasise objects instead of archaeological sites and their contexts’ (Elia, 2000: 44). Nor is it certain whether the terms should be read conjunctively, as in the Chinese, English, and French texts, or disjunctively, as in the Spanish, Arabic, and Russian texts (Nordquist, 1989: 160). As the English terms refer to disciplines that, though related, are quite distinct in nature, it is submitted that the terms should be read disjunctively. Strati argues that the term ‘archaeological and historical’ should be
defined to include both movables and immovables older than 100 years (Cycon, 1985: 83; Barrowman, 1987: 231–246; Strati, 1995: 182). The justification for the age limit is based on a number of arguments. First, a number of national cultural heritage laws, both general and specific to underwater cultural heritage, use the 100-year age limit or a fixed time varying from 1600 (Hong Kong, Antiquities and Monuments Ordinance 1971) to 1937 (Gambia, The Monument and Relics Act No. 8 of 1974). The use of the 100-year time limit is also apparent in a number of international conventions and recommendations, including the 1970 UNESCO Convention and the 1985 European Convention on Offences Relating to Cultural Property. Second, since an early draft of article 149 included reference to a term of 50 years, the presumption is that the drafters intended the articles to apply to objects of a relatively recent origin. Third, Strati argues that archaeology is not necessarily related to objects of prehistory and that there is nothing in the travaux preparatoires to indicate that such a restrictive interpretation was intended (Strati, 1995: 180). Oxman disagrees and argues that ‘the provisions were not intended to apply to modern objects whatever their historical interest’ and that article 149 ‘at least suggests the idea of objects that are many hundred of years old’ (Oxman, 1981: 241). He suggests that the articles should apply only to objects older than the fall of the Byzantine Empire (1453), though he does concede that this could be adjusted to take into account important historical landmarks of the Americas, such as the fall of Tenochtitlan (1521) or Cizo (1533) (Oxman, 1988: 365). Similarly, Arend argues that the ‘objects must at least be old enough that the laws of salvage do not apply to them’. This, he states, means that ‘there is no person, legal or natural who might be able to claim title to the objects in question’ (Arend, 1982: 779). Fourth, Strati argues that the recent trend in attempts to preserve underwater cultural heritage and the recognition of this in UNCLOS should allow for a broad definition so as to cover all objects more than 100 years old. While there is clearly no unanimous agreement on this issue, it does appear as if the trend in both national and international protection measures tend to be inclusive in scope, covering objects that have been submerged for more than 100 years as objects of an archaeological and historical nature. The definition of underwater cultural heritage has emerged from this trend. 7
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New definition of ‘underwater cultural heritage’ Underwater cultural heritage is defined in the new UNESCO Convention as all traces of human existence having a cultural, historical or archaeological character which have been partially or totally underwater, 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. (b) Pipelines and cables placed on the seabed shall not be considered as underwater cultural heritage. (c) Installations other than pipelines and cables, placed on the seabed and still in use, shall not be considered as underwater cultural heritage.
The origins of this definition lie in the development of a definition in the failed 1985 Draft European Convention on the Protection of the Underwater Cultural Heritage, which was used by the International Law Association (ILA) in drafting the Convention that was forwarded to UNESCO for consideration (O’Keefe & Nafziger, 1994: 391–418). It is constructive, therefore, to consider these earlier definitions and the subsequent debate during negotiation at UNESCO regarding the inclusion of a significance requirement to limit the scope of the definition. The 1985 Draft European Convention contained a definition of underwater cultural heritage that excluded reference to the 100-year period, with the result that the definition was overly inclusive and ambiguous, and was so widely defined that it would include both significant and insignificant objects. It appeared that any object that was evidence of human existence and was found under water would be regarded as underwater cultural heritage. For example, this could include, presumably, a bottle thrown into the sea one day and recovered the next (Bederman, 1999: 332). While the definition of underwater cultural heritage was overly broad, the article delimiting the scope of the Convention did include a limitation to underwater cultural heritage that had been under water for over 100 years. As such, this age requirement was not a defining criterion, and only determined what underwater cultural heritage 8
would be subject to the provisions of the Convention. The ILA Draft Convention proposed an almost identical definition of underwater cultural heritage. The official comment to the ILA draft stated that the definition and scope of the convention were ‘designed to make it easier for administrators and courts to decide if something is covered by the Convention or not’ and was ‘an efficient means of separating out material which is more likely to be important from that which is less likely’ (O’Keefe & Nafziger, 1994: 406). When UNESCO considered the ILA draft, it was decided to limit the scope of the definition of underwater cultural heritage by including reference to the 100-year limit in the definition, rather than simply in defining the scope of the protection regime. Despite this improvement in clarity, the original UNESCO definition was criticized as being vague in that it did not introduce any qualitative measure of an object’s significance and merely assumes that the object’s age is most likely to define its archaeological, cultural, or historical significance. This was compounded by the fact that the 100-year time period is somewhat arbitrary and based more on administrative pragmatism than on archaeological, cultural, or historical significance. There was, therefore, a call from a number of States for the inclusion of significance criteria that would apply to underwater cultural heritage that had been submerged for over 100 years. The inclusion of the phrase ‘cultural, historical, or archaeological character’ as a qualifying criterion for underwater cultural heritage was included late in the negotiation process as an attempt to draw a compromise between those States that advocated blanket protection for all underwater cultural heritage and those that proposed that only significant underwater cultural heritage be subject to the protection regime. Not all traces of human existence found under water are of archaeological importance, including some traces that are over 100 years old. Archaeological value is a relative concept, and some traces may be more valuable than others. The management of underwater cultural heritage requires that resources be allocated differentially, depending on the relative archaeological significance of the various individual underwater cultural heritage. The question that arose at UNESCO was whether this determination of significance should be a factor that delimits the scope of the convention, or whether it simply should be an aspect of the management of this resource. While some States
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have argued that the scope of the convention should be restricted to underwater cultural heritage that is deemed significant, the majority of States prefer a system of blanket preservation. However, the justification for both these approaches appeared to be the same in that the proponents argued that their particular approach was the most effective way to manage underwater cultural heritage. There was thus a conflict over the nature of the management of underwater cultural heritage. The strongest proponents of the view that the scope of the Convention should be limited to underwater cultural heritage which is archaeologically significant, include the US and UK. The US has stated that the term ‘all traces of human existence’ is ‘too broad both legally and as a management tool, and a ‘‘significance’’ criterion should be added’ (USA, 2000). This position was proposed on the basis that few States could possibly have the management capacity and resources to preserve all underwater cultural heritage that might fall within this definition. This particular view is coloured by that State’s national management structure and legislation for the preservation of underwater cultural heritage. Thus, questions of significance must be considered within a system that allows for private recovery of underwater cultural heritage that is not deemed significant. State funding is allocated only to underwater cultural heritage deemed significant, whereas private funding may be directed towards the recovery of all other traces of human existence. However, funding would be required for the determination of whether any particular underwater cultural heritage is significant. In a State such as the UK, in which the National Inventory of Maritime Archaeology lists approximately 30,000 sites dating from AD 1200, it would be extremely costly to investigate each wreck (Keith, 2000: 274). As such, significance is narrowly construed, so that, at present, only 53 wrecks are currently regarded as being of sufficient significance to be protected. Thus, the significance of underwater cultural heritage is a reflection of the capacity or political willingness of the State to provide funding for the management of the underwater cultural heritage. This is certainly not conducive to a regime that will preserve underwater cultural heritage for the benefit of humankind, as the determining factors are limited to a particular State. It is submitted that the use of a regime of blanket preservation is probably the more cost-effective management regime for underwater
cultural heritage. In giving effect to the principle of in-situ preservation endorsed in the Convention, blanket preservation allows a State to fulfil its duty to preserve underwater cultural heritage in its territory by ensuring that the underwater cultural heritage is not disturbed. There is no cost associated with determining whether the underwater cultural heritage is of significance, because this is presumed. While the allocation of funding will be dependent on a significance requirement, this will be undertaken on the basis that all underwater cultural heritage already receives the benefit of in-situ preservation. To propose that only significant underwater cultural heritage should be preserved in situ entails the costly and time-consuming task of determining significance before preservation can be authorized. In a system that presumes that underwater cultural heritage is not significant, and allows recovery by private individuals until such time as the underwater cultural heritage is deemed significant, the risk arises that the significance requirement could be determined too late for an in-situ preservation regime to be applied (Henderson, 2001: 4). At the same time, a risk arises of infringing rights granted to the individual before this finding of significance (Fletcher-Tomenius & Williams, 1999: 145–153). For these reasons, it is unfortunate that the phrase ‘cultural, historical or archaeological character’ has been introduced as the risk arises that some State Parties may interpret this as a significance requirement. An interpretation more conducive to the spirit of the Convention would be to acknowledge that prima facie all traces of human existence over 100 years old have a cultural, historical, or archaeological character and are subject to the protection regime until such time as the contrary is proven. This allows the overriding principle of in-situ preservation to prevail. This definition does differ from some UNESCO conventions in that it is designed with a practical objective as opposed to an abstract contemplation and, unlike many of the conventions dealing with terrestrial cultural heritage, is broadly defined and primarily concerned with the environment in which the cultural heritage is found rather than what constitutes underwater cultural heritage. ‘All traces of human existence’ would include all objects that provide evidence of humanity’s past. The listed objects serve only as examples of those most likely to be found under water and fall within the definition of underwater cultural heritage. However, it does have the effect of 9
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raising a rebuttable presumption that these listed objects are underwater cultural heritage. Although it has been argued that this definition is too broad (Bederman, 1999: 332), it has also been criticized for being too narrow in that it only applies to traces of human existence and does not provide any scope for inclusion of cultural landscapes or palaeontology (AIA, 1998: 538–544). A problem that may arise with the 100-year period is that it is not entirely clear from which point this time period is measured. As one of the aims of the Convention is to promote in-situ preservation, it may be presumed that this should be calculated from the time that any activity directed at the underwater cultural heritage is contemplated, and not merely from the time of discovery. Thus, the determination of the time period should work in favour of preservation of underwater cultural heritage. Early drafts of the Convention included a paragraph (article 1(1)(b)) that stated that: Notwithstanding the provisions of paragraph 1(a), a State Party may designate certain traces of human existence within its jurisdiction as underwater cultural heritage even though they have been underwater for less than 100 years.
This would have allowed a State Party to decide that an object that has been underwater for less than 100 years was of historical interest and could merely declare a recently sunken vessel to be underwater cultural heritage, and the provisions of the Convention would apply, including the prevention of commercial salvage. There was no requirement for a State to show cause as to why the particular object should be preserved. This would have enabled each State Party unilaterally to alter the definition of underwater cultural heritage and effectively mean that the temporal requirement was not an essential element of the definition. This would have resurrected the unduly wide scope that existed in the ILA draft and 1985 Draft European Convention. For the sake of definitional certainty, it would have been preferable to have declared that a State could apply the provisions of the Convention to a vessel that does not constitute underwater cultural heritage solely because it has not been under water for the last 100 years. The original ILA definition did not specify that this power related only to vessels in the State Party’s territory. Following objections from a 10
number of States, the application of article 1(1)(b) was limited to areas within the coastal State’s jurisdiction. In areas beyond the coastal State’s jurisdiction, objects that have been submerged for less than 100 years could not have been protected under the Convention, as no State would have the power to utilize article 1(1)(b). It was, therefore, unfortunate that an object’s preservation would have depended not on its significance but on its location and result in an unfortunate duality of regimes. In order to overcome this, it would have been preferable for an international organization, such as UNESCO, to be granted the authority to make such determinations for objects beyond coastal State jurisdiction. States’ Parties could have proposed vessels for preservation, much as States propose sites for protection under the World Heritage Convention. Unfortunately, the chosen route was to delete article 1(1)(b) entirely. This was due mainly to the recognition that States have the inherent power to protect any wreck irrespective of its age in waters under its jurisdiction, and that by eliminating this provision altogether, it was ensured that no object can be designated as underwater cultural heritage unless it has been under water for at least 100 years.
Conclusion The conclusion of the Convention on the Protection of the Underwater Cultural Heritage is an important development in the protection of this valued resource and, in particular, in furthering an understanding as to what manifestations of our cultural heritage should be selected for differential treatment. While the definition of what is to be protected lacks some clarity, and profers the possibility of introducing a significance requirement in some States’ interpretations, it generally provides a sufficiently wide net to catch the most of what is regarded as archaeologically and historically valuable that is found beneath the oceans. Although the Convention is not yet in force, it is anticipated that the 20 States Parties required to bring it into force will quickly ratify the Convention. How these States Parties will implement their international duties, and, in particular, how the definition of underwater cultural heritage will be interpreted, will determine what future generations can point to as their underwater cultural heritage.
C. J. S. FORREST: DEFINING ‘UNDERWATER CULTURAL HERITAGE’
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