PRIFYSGOL BANGOR / B
ANGOR UNIVERSITY
The British ratification of the Underwater Heritage Convention: Problems
and Prospects
Roberts, Hayley
International & Comparative Law Quarterly
DOI:
10.1017/S0020589318000210
Published: 01/10/2018
Peer reviewed version
Cyswllt i'r cyhoeddiad / Link to publication
Dyfyniad o'r fersiwn a gyhoeddwyd / Citation for published version (APA):
Roberts, H. (2018). The British ratification of the Underwater Heritage Convention: Problems and
Prospects. International & Comparative Law Quarterly, 67(4), 833-865.
https://doi.org/10.1017/S0020589318000210
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10. Aug. 2022
1
THE BRITISH RATIFICATION OF THE UNDERWATER HERITAGE
CONVENTION: PROBLEMS AND PROSPECTS
HAYLEY ROBERTS*
The UNESCO Convention on the Protection of the Underwater Cultural Heritage
2001 came into force in 2009, providing a much-needed international legal
framework for the protection of underwater cultural heritage (UCH). This paper
explores the reasons why the UK has neglected to ratify the Convention and why
accession should now be prioritized. In doing so, the article reconciles the UK’s
stance with the agreement; moving the State into a position where it can reconsider
ratification. In this context, it examines the definition of UCH and the purpose of
the Convention, the extension of sovereign immunity for wrecked warships, and the
likelihood of creeping coastal State jurisdiction beyond the competences conferred
by the UN Convention on the Law of the Sea. This transformative analysis moves
forward the debate on these issues and is of international significance to States that
have been similarly hesitant to ratify the Convention until now.
I. INTRODUCTION
For primarily technological reasons, historic shipwrecks have only relatively recently
emerged as a distinct regulatory problem. It is just in the last 60 years, with the increase
of SCUBA diving and related technology, that the need for a legislative framework to
protect underwater cultural heritage (UCH) has become more prevalent. The discovery
of a number of Spanish galleons in the 1970s brought about a new era of treasure
hunters,
1
highlighting the increasing vulnerability of underwater heritage and raising
the profile of ‘commercial archaeology’, where this new science was used to recover
artefacts and sell them for profit.
The UN Convention on the Law of the Sea 1982 (UNCLOS)
2
was drafted to
codify and develop international law relating to the sea, setting out a tiered system of
regulation in its maritime zones. This provides that the level of jurisdiction that States
have over archaeological objects depends on their geographical location. Generally, the
closer an object is to a State, the greater the degree of legislative and enforcement
jurisdiction the State may exert. However, UNCLOS largely fails to address the specific
needs of UCH and only refers to it in two broad articles.
3
*Lecturer in Public International Law at Bangor University. The author would like to thank Alison
Mawhinney and Yvonne McDermott Rees for their invaluable comments on earlier drafts of this article,
and Ulrike Guerin for providing some statistical information. Many thanks also to the anonymous
reviewers at ICLQ, and to Elfyn Roberts for listening to countless monologues on the subject matter.
Any errors are, of course, the author’s own.
1
For example, the Nuestra Senora de Atocha. See Treasure Salvors I 569 F.2d 330, 337 (5
th
Circuit
1978).
2
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16
November 1994) 1833 UNTS 396 (UNCLOS).
3
Arts 149 and 303, UNCLOS. Art 149 provides that all objects of an archaeological nature found in the
Area shall be preserved or disposed of for the benefit of mankind as a whole. Art 303 provides that States
have the duty to protect objects of an archaeological nature found at sea and shall cooperate in doing so.
The latter also creates a legal fiction to give coastal States jurisdiction over such heritage in the
contiguous zone.
2
Shipwrecks in internal waters and the territorial sea will be subject to the laws
of the coastal State, and although Articles 149 and 303 provide some protection in the
Area and the contiguous zone respectively, UNCLOS is silent on how UCH should be
managed in these zones. This leaves a clear geographical gap where archaeological
objects are left vulnerable to unregulated interference; a legal vacuum thus exists for
the protection of UCH in a large expanse of water, stretching from the seaward limit of
the contiguous zone
4
to the outer boundary of the exclusive economic zone (EEZ).
5
As
a result, UNCLOS has been heavily criticized for promoting a ‘freedom of fishing’ for
such objects.
6
The UNESCO Convention on the Protection of the Underwater Cultural
Heritage 2001 (UNESCO Convention)
7
was introduced to provide a much-needed
international framework to properly regulate interference with UCH in all maritime
zones. The Convention has found support for its general principles amongst most
States, however ratification has been slow amongst major maritime powers and the UK
is yet to become a party. At the time of signature, the UK had many concerns with the
Convention that it viewed as barriers to ratification, stating later that it ‘has ceased to
discuss, yet alone explore, with interested parties the possibility of modifying its stance
in the future.’
8
Stakeholders have been working to compel the UK to ratify the Convention for
a number of years, including the European Commission, which encouraged member
States to ratify in 2006,
9
and the United Nations General Assembly in 2016.
10
Two
meetings at Burlington House,
11
held in 2005 and 2010, were dedicated to promoting
the UK’s acceptance of the treaty resulting in the Burlington House Declaration.
12
In
2013, the British Academy and the Honor Frost Foundation convened a joint Steering
Committee of archaeologists and UCH experts, resulting in the publication of an
independent Impact Review
13
by the UK UNESCO 2001 Convention Review Group.
14
4
If a State even decides to claim a contiguous zone in the first place. The UK, for example, does not.
5
States have the right to claim a territorial sea not exceeding 12 nautical miles from the baseline (Art 3
UNCLOS), a contiguous zone not exceeding 24 nautical miles from the baseline (Art 33 UNCLOS) and
an EEZ not exceeding 200 nautical miles from the baseline (Art 57 UNCLOS). Baselines are determined
in accordance with Arts 5-7 UNCLOS.
6
See generally, T Scovazzi ‘The Law of the Sea Convention and Underwater Cultural Heritage’ (2012)
27 IJMCL 753. Art 303 also upholds the law of salvage.
7
Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered
into force 2 January 2009) UNESCO Doc.31C/Resolution 24; (2002) 41 ILM 37.
8
MV Williams, ‘UNESCO Convention on the Protection of the Underwater Cultural Heritage: An
Analysis of the United Kingdom’s Standpoint’ (The UNESCO Convention for the Protection of the
Underwater Cultural Heritage: Proceedings of the Burlington House Seminar, London, October 2005)
10.
9
EC Green Paper, ‘Towards a future Maritime Policy for the Union: A European Vision for the Ocean
and Seas (Brussels, 7 June 2006) Doc. COM (2006) 275 final, Volume II – Annex, 48.
10
UNGA Res A/RES/71/257. This is a turnaround indeed, as UNGA initially failed to endorse the
Convention’s final text.
11
The meetings were attended by delegates from UK Government departments, national heritage
agencies and key voluntary bodies.
12
The Burlington House Declaration asks the Government to ratify the Convention. For the full text of
the Burlington House Declaration, see <
http://www.jnapc.org.uk/Burlington%20House%20Proceedings%20final%20text.pdf>.
13
UK UNESCO 2001 Convention Review Group, ‘The UNESCO Convention on the Protection of the
Underwater Cultural Heritage 2001: An Impact Review for the United Kingdom’ (2014) ISBN 978-0-
904608-03-8.
14
Comprising underwater archaeologists and policy experts within the field. The Final Report of the
Review provides a balanced analysis of administrative and policy implications in ratifying the
Convention, ibid 12.
3
A Briefing Note on the case for UK ratification was published subsequently in March
2014,
15
building on the work of the Impact Review and highlighting the importance of
safeguarding UK interests in historic shipwrecks around the world.
16
In 2015, a Policy
Brief published by the UK National Commission for UNESCO
17
recommended that
the UK Government should reevaluate whether it should ratify the Convention.
18
There was renewed hope in March 2016 when the Government made a
commitment to review its position on the Convention.
19
However, on 31 October 2017,
the Department for Digital, Culture, Media and Sport (DCMS) made a disappointing
announcement that will surely come back to haunt it. The Government noted that it has
had to reconsider its priorities and its ability to carry out a review in the light of
changing circumstances. It stated, ‘we have decided to defer the review while we focus
our efforts and resources on delivering new and more immediate priorities’, but that it
remains committed to reviewing its position when priorities and resources permit.
20
Strengthening and safeguarding the protection of underwater heritage is an
immediate priority. Technological developments have made shipwrecks increasingly
accessible – and increasingly vulnerable – to interference by treasure hunters and
salvors.
21
A Royal Navy Loss List,
22
published in 2014, indicated that there are over
4,747 Royal Navy wrecks from the period 1600-1945 in oceans all over the world. The
assessment also shows that as many as two-thirds of these wrecks are World War I and
World War II losses. As these wrecks reach the 100-year threshold to fall within the
remit of the UNESCO Convention, and so eligible for greater protection, ratifying the
Agreement becomes more significant than ever. Treasure salvors, metal looters and
grave robbers are not moved by government priorities.
Against this background, this paper rigorously examines the validity of the three
main reasons that have historically been put forward by the UK to justify its non-
ratification of the Convention: that the Convention contains an overly broad definition
of UCH, erodes the sovereign immunity principle for wrecked warships, and
incorporates a creeping coastal State jurisdiction. This analysis intends to place the UK
in a more cognizant position from which to review ratification, and given that these are
also the most common objections raised by maritime States, this article aims to unpack
those key arguments whilst considering their broader significance. In the context of the
UK’s most recent standpoint on the Convention, this paper also continually maintains
15
2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage: the case for UK
ratification (March 2014) < http://honorfrostfoundation.org/wp/wp-content/uploads/2016/04/2001-
Convention-The-Case-for-Ratification-FINAL.pdf>.
16
ibid 3.
17
United Kingdom National Commission for UNESCO, ‘UNESCO Convention on the Protection of
Underwater Cultural Heritage: Next steps for the UK government’ (March 2015) Policy Brief 17.
18
ibid 5.
19
DCMS, ‘The Culture White Paper’ (March 2016) 46. This was followed by a response to a written
parliamentary question in November 2016, which stated that the ‘Government remains committed to
reconsidering the case for ratification of the [Convention]’ and that a decision on timescales would be
made late Spring 2017 <http://www.parliament.uk/business/publications/written-questions-answers-
statements/written-question/Commons/2016-11-21/53922/>.
20
Department for Digital, Culture, Media and Sport written statement, HC Deb, 31 October 2017, cWS.
21
As examined in greater detail below in Part 3, a number of WWI wrecks from the Battle of Jutland
have already been salvaged for metal. Over the last few years, a number of British WWII wrecked
warships have also disappeared from the Java Sea, again salvaged for metal. See, for example, K Lamb,
‘Lost bones, a mass grave and war wrecks plundered off Indonesia’ The Guardian (London, 28 February
2018). Lamb reports that salvors have recovered the bones of Allied soldiers killed in action in WWII.
22
Final Report (n 13), Royal Navy Loss List, Annex 2.
4
that this volte-face is a regressive step and emphasizes the importance of prioritizing
ratification.
Section II will first outline the main provisions of the Convention and its
drafting history, before examining the three objections in detail in Section III. Section
IV offers some concluding remarks, arguing that the UK’s retrograde position on the
Convention should be promptly reassessed.
II. NEGOTIATING BACKGROUND & OUTLINE OF MAIN PROVISIONS
The Cultural Heritage Committee of the International Law Association (ILA) had been
working on a draft Convention since 1988 as a response to the growing concerns
regarding UCH, prior to transmitting the matter to UNESCO, which it felt was the most
appropriate body to take action. The UNESCO Executive Board at its 141
st
session
requested the Director-General to consider the feasibility of an international instrument
on the protection of UCH.
23
The resulting feasibility study noted that the ‘recent
accessibility of underwater wrecks has been followed by severe looting’
24
and that the
‘situation of the cultural heritage outside the territorial sea is now critical.’
25
It was also
observed that little time was spent on the issue during UNCLOS discussions, as it was
not dealt with until the final days of lengthy negotiations.
26
Amendments to both
UNCLOS and the UNESCO World Heritage Convention were considered,
27
but as
UNCLOS applies to general rules on the law of the sea, and the World Heritage
Convention applies to heritage of outstanding universal significance within a State’s
territory, neither was contemplated to be a good solution.
The UNESCO Executive Board convened a group of experts to debate the
proposals outlined by the study and report to the next General Conference. This group
of experts convened in May 1996 and consensus was reached that a new international
instrument was required. Upon the invitation of the 29
th
UNESCO General Conference,
the Director-General assembled a meeting of governmental experts and representatives
of international organizations to prepare a first draft.
28
The final text was adopted by
the General Conference and approved by States in 2001, despite the fact that they were
unable to reach unanimity on the whole text. Strong opposition was provided by Russia,
the USA
29
and Norway as they considered the Convention to be a radical departure
from the ‘delicate balance of UNCLOS.’
30
The Convention applies to UCH, as defined in Article 1(a); ‘“Underwater
cultural heritage” means all traces of human existence having a cultural, historical or
23
Decisions adopted by the Executive Board at its 141
st
Session, Paris, 17 June 1993 UNESCO Doc. 141
EX/Decisions, 34.
24
Feasibility Study for the Drafting of a New Instrument for the Protection of the Underwater Cultural
Heritage, Paris, 23 March 1995, UNESCO Doc.146 EX/27, para 9.
25
ibid para 27.
26
ibid para 13.
27
ibid paras 41-2. Convention Concerning the Protection of the World Cultural and Natural Heritage
(adopted 23 November 1972, entered into force 15 December 1975) 1037 UNTS 151.
28
Decision on the Report by the Director-General on the Reinforcement of UNESCO’s Action for the
Protection of the World Cultural and Natural Heritage, UNESCO document 141 EX/SR 15 para 15.
29
Despite not being a member of UNESCO at that time.
30
R Garabello, ‘The Negotiating History of the Convention on the Protection of the Underwater Cultural
Heritage’ in R Garabello & T Scovazzi (eds), The Protection of the Underwater Cultural Heritage before
and after the 2001 UNESCO Convention (Martinus Nijhoff Publishers 2003) 92.