Law and the Underwater Heritage
Prott, Lyndel V., O'Keefe, Patrick J., UNESCO Courier
Law and the underwater heritage
An international consensus is developing that States should take special steps to ensure the protection of their underwater heritage. Apart from international agreements by which States have undertaken actively to ensure the protection of the cultural heritage generally, such as the European Convention on the Protection of the Archaeological Heritage; Unesco Convention for the Protection of Cultural Property in the Event of Armed Conflict; Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; Unesco Convention Concerning the Protection of the World Cultural and Natural Heritage; OAS (Organization of American States) Convention on the Protection of the Archaeological, Historical and Artistic Heritage of the American Nations, there is also a Unesco Recommendation which deals specifically with the underwater cultural heritage. This is the Recommendation on International Principles Applicable to Archaeological Excavations (1956). It applies to "any research aimed at the disovery of objects of archaeological character" whether on land "or on the bed or in the subsoil of inland or territorial waters of a Member State".
The Recommendation includes some detailed provisions on the control of excavations, the admission of foreigners for archaeological work, the keeping of a central register of important sites, the formation of collections, disposal of finds, rights and duties of the excavator, documentation of excavations and the suppression of clandestine excavations. The Recommendation, according to the Constitution and Rules of Procedure of Unesco, obliges Member States of Unesco to implement it and to report the methods taken to give effect to it. European and other States bordering the Mediterranean should also be aware of a major initiative of the Council of Europe to strengthen legal protection of the underwater cultural heritage in the European and Mediterranean areas.
In studying all these materials, States may not only feel a responsibility or an obligation to legislate promptly on this issue, but will also find guidance as to the type of provisions that should be included.
There are two legislation schemes which have been very widely used to provide permanent legal protection: these are, first, the extension of general antiquities legislation to underwater finds and, second, the drafting of special legislation solely to cover submarine antiquities (meaning those under the sea) or other antiquities under water where these are significant. Certain schemes have been based on the extension of other types of legislation to cover the underwater cultural heritage: most of these apppar to have some disadvantage.
The major advantage in having specific legislation on the underwater cultural heritage is the practical one of easy accessibility. For the most part, those who do damage to shipwrecks are divers, fishermen or employees of oil or cable-laying companies involved in underwater operations. Many of these have little legal knowledge.
Divers, both amateur and professional, and particularly those interested in shipwrecks, are often said to be of indepedent character, resourceful and sceptical of authority. They come from a variety of backgrounds, from the highly educated to the lowly. …