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UNESCO Impact Review February 2014

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UNESCO Impact Review February 2014 The UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001 An Impact Review for the United Kingdom Final Report February 2014 Acknowledgements The preparation of this report was undertaken by the UK UNESCO 2001 Convention Review Group which comprises: • John Gribble, Director, Sea Change Heritage Consultants Limited • Dr Antony Firth, Director, Fjordr Limited • Mike Williams, Honorary Professor, Institute of Archaeology, University College London and Visiting Research Fellow, Plymouth Law School, University of Plymouth • David Parham, Senior Lecturer: Maritime Archaeology, Bournemouth University • Dr Simon Davidson, Coastal and Marine, Wessex Archaeology • Tim Howard, Policy Manager, Institute for Archaeologists • Dr Virginia Dellino-Musgrave, Hampshire and Wight Trust for Maritime Archaeology • Ian Oxley, Historic Environment Intelligence Analyst (Marine) • Mark Dunkley, Maritime Designation Adviser, English Heritage. The content and text of this report was developed over the course of 2011 and 2012 and was based on a wide range of specialist input. Preliminary results were presented at the British Academy / Honor Frost Foundation Scoping Day on Managing Maritime Heritage in International Waters, held on 22 January 2013 and feedback received was included in the first draft of the Papers circulated to members of the Review Group in March 2013. Further feedback and comments were received during a limited consultation held in June and July 2013, which included a Consultative Meeting held at the British Academy on 4 July. We are indebted to all those who took the time to contribute to discussions and consultations in the course of preparing this document. This project was funded by English Heritage (Project 6454 Main) and the Honor Frost Foundation and was administered by the United Kingdom National Commission for UNESCO. The views expressed in this report are not a statement of English Heritage policy in respect of the UNESCO Convention on the Protection of the Underwater Cultural Heritage. This report can be cited as follows: UK UNESCO 2001 Convention Review Group, 2014, The UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001: An Impact Review for the United Kingdom, ISBN 978-0-904608-03-8. 1 2 Contents Abbreviations .....................................................................................................................5 Executive Summary ...........................................................................................................7 Introduction ......................................................................................................................11 History and Development of the 2001 UNESCO Convention ......................................15 Note on Maritime Jurisdictional Zones .........................................................................29 Paper 1. Compatibility: The UNESCO 2001 Convention and the United Nations Convention on the Law of the Sea 1982 ........................................................................35 Paper 2. Sunken Warships and State Vessels ..............................................................41 Paper 3. Significance: The meaning of underwater cultural heritage, activities directed at underwater cultural heritage, the application of the Rules, and their implications for managing underwater cultural heritage in the UK ............................55 Paper 4. Impact: A Clause-by-Clause Review of the Implications of Ratification .....71 Appendix 1.1: UK Explanation of Vote on the UNESCO Convention on the Protection of the Underwater Cultural Heritage, 31 October 2001 .............................87 Appendix 2.1: Royal Navy Loss List (1605 - 1945) .......................................................89 Appendix 2.2: Detailed Breakdown of Royal Navy Losses by Country and Century 97 Appendix 2.3: Breakdown of Royal Navy Losses in International Waters by Sea / Ocean ..............................................................................................................................101 Appendix 4.1: Review of the Substantive Clauses of the 2001 Convention ............103 Appendix 4.2: List of Administrative Clauses of the 2001 Convention ....................115 3 4 Abbreviations AMAA 1979 Ancient Monuments and Archaeological Areas Act 1979 CAVV Advisory Committee on Issues of Public Law (The Netherlands) CoE Council of Europe CS Continental Shelf CZ Contiguous Zone DCOOA 2003 Dealing with Cultural Objects (Offences) Act 2003 DOALOS United Nations Division for Ocean Affairs and Law of the Sea EEZ Exclusive Economic Zone ICOMOS International Council on Monuments and Sites ICUCH International Committee on the Underwater Cultural Heritage ILA International Law Association JNAPC Joint Nautical Archaeology Policy Committee LOSC United Nations Convention on the Law of the Sea MCAA 2009 Marine and Coastal Access Act 2009 MHF Maritime Heritage Foundation MMO Marine Management Organisation MPS Marine Policy Statement MSA 1995 Merchant Shipping Act 1995 NGO Non-governmental organisation nm nautical miles NMR National Monuments Record (now the National Record of the Historic Environment (NRHE)) OME Odyssey Marine Exploration PWA 1973 Protection of Wrecks Act 1973 STAB Scientific and Technical Advisory Body UNESCO United Nations Educational, Scientific and Cultural Organisation UKHO United Kingdom Hydrographic Office 5 6 Executive Summary In 2001, at the time of the vote on the UNESCO Convention on the Protection of the Underwater Cultural Heritage, the UK Government reaffirmed the great importance that it attaches to the preservation of underwater cultural heritage: ‘There are many historic wrecks lying on the seabed in the waters off our shores and there are wrecks of British origin all over the world’. In consequence, the UK Government stated its commitment to a global convention for the protection of underwater cultural heritage. Unfortunately, the UNESCO Convention did not resolve a number of concerns raised by the UK, and the UK was unable to vote in its support. Time has since passed. The threats to underwater cultural heritage that motivated the Convention have intensified as technology has advanced, and the UK has become directly embroiled in some of the complex cases that have resulted. The Convention itself - to some surprise - has not only entered into force but has been ratified by an increasing number of states who shared concerns similar to the UK in 2001. Irrespective of whether the UK becomes party, there is now a global convention on the protection of underwater cultural heritage that has widespread support and is a feature of the framework of international law with which the UK must deal. Against this background, UK UNESCO 2001 Convention Review Group has carried out a detailed examination of the 2001 Convention. In particular, it has revisited the concerns raised by the UK in 2001 in the light of subsequent discussion, the development of state practice internationally, and changes in the UK’s own legal and policy frameworks. The Review Group has also considered what the legal, administrative and policy implications might be if the UK were to decide to ratify the 2001 Convention, to establish what difficulties might be presented by ratification. The substance of the review is set out in four papers below: • Paper 1: Compatibility • Paper 2: Sunken Warships and State Vessels • Paper 3: Significance • Paper 4: Impact This review presents a balanced, factual account of the impact on the UK of giving effect to its original commitment to a global convention. The following conclusions can be drawn from the review: • The concerns raised by the UK in 2001 are no longer as problematic as they might have appeared in the closing stages of negotiating the Convention. • The 2001 Convention has entered force but has not given rise to state practice at odds with UK interests. 7 • Legal opinion and widespread support for ratification - even amongst countries that formerly shared concerns similar to the UK - is consolidating the 2001 Convention’s status as a specialised mechanism for underwater cultural heritage wholly within the international legal framework provided by the United Nations Convention on the Law of the Sea (LOSC). • Changes in UK domestic provisions mean that the UK is already compliant with many aspects of the 2001 Convention. • Although some legal and administrative changes are required, these will not fundamentally expand or extend the existing regulation of marine activities. • Ratification is unlikely to require significant additional resources; the 2001 Convention provides a template for systematically addressing some administrative tasks that are currently conducted ad hoc, so implementation may present potential savings. The key messages from each of the four papers are: Paper 1: Compatibility with the United Nations Convention on the Law of the Sea 1982 • The UK was concerned that the extension of Coastal State jurisdiction with respect to underwater cultural heritage might lead to ‘creeping jurisdiction’ over other matters, which the UK would find unacceptable. • Although provisions in the 2001 Convention can be read as giving Coastal States enhanced powers in Exclusive Economic Zones and on Continental Shelves, these provisions can also be read as simply giving effect to State Parties’ existing powers with respect to ships flying their flag or to their own nationals. • The interpretation that these provisions do not alter the overall settlement achieved by the LOSC
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