Marine Policy, Vol. 20, No. 4, pp.
297-307, 1996
Pergamon
In 1994 the International Law Associa-
tion forwarded to UNESCO for consid-
eration a draft Convention on the Pro-
tectlon of the Underwater Cultural Herlt-
age. A m o n g o t h e r m a t t e r s , t h i s
attempts to deal with the complex jurls-
dlctlonal Issues Inherent In protection
of the heritage beyond the territorial
sea--ieaues raised but not satisfactor-
Ily solved by the United Nations Con-
vention on the Law of the Sea 1982. A
"Charter for the Protection and Man-
agement of the Underwater Cultural
Heritage" prepared by the International
Council on Monuments and Sites Is
annexed to the Draft Convention. This
sets out the archaeological principles
applicable to dealings with sltea on the
seabed. Copyright © 1996 Eleavler Sci-
ence Ltd
Patrick J O'Keefe, 6 Villa des Entre-
preneurs, Paris 75015, France. Tel: (33.1)
45 78 60 05. Fax: (33.1) 45 75 41 18.
1This definition is based on that in the
European Convention on the Protection of
the Archaeological Heritage (Revised)
1992.
Copyright(~) 1996ElsevierScienceLtd
Printed in Great Britain. All rights reserved
0308-597X/96$15.00 + 0.00
SO308-597X(96)O0018-8
Protecting the
underwater cultural
heritage
The International Law Association
Draft Convention
Patrick J O'Keefe
The underwater cultural heritage consists of traces of h u m a n activity
f r o m past epochs. The preservation and study of these traces should
help to retrace the history of humanity and its relation with the natural
environment. Excavations and discoveries and other methods of re-
search into humanity and the related environment should be the main
sources of information. 1 The most c o m m o n such traces of h u m a n
activity are shipwrecks but there are in some parts of the world remains
of constructions such as buildings and h a r b o u r protections that have
disappeared beneath the water.
As a source of information, shipwrecks have a particular importance:
in most cases everything on the wreck site was on the vessel when it sank
and has a relationship to everything else there. It is often referred to as a
'time capsule'. But these sites are finite. T h e r e are only a certain
n u m b e r of shipwrecks of great importance for retracing the history of
humanity. Once they are excavated the information they contained lies
only in the a r c h i v e - - t h e artefacts recovered and the written record. It is
essential that these wrecks be treated with the greatest respect and
according to established archaeological principles.
Unfortunately, such wrecks are often the target of unscrupulous
divers who care little for the information they contain. Some indeed had
treasure on board. Others had cargo such as ceramics which today is
valuable because of its rarity. Others have items which can only be used
as personal m e m e m t o e s . T h e r e have been numerous cases of wrecks
destroyed by the single-minded pursuit of such desires and the destruc-
tion is exacerbated as constantly improving techniques and equipment
allows access to deeper areas.
297
ILA Draft Convention: P J O'Keefe
It must not be taken that all divers act in this way. Indeed, the
majority are respectful of the underwater environment and the wrecks it
contains. Many protect sites and help with archaeological projects.
H o w e v e r , there are also those who disregard the public benefit in
pursuit of what they regard as their exclusive interests.
In these circumstances, an effective legal system is needed, not to
deny all wrecks to all divers, but to establish a f r a m e w o r k within which
the greatest possible amount of knowledge of the past can be preserved.
Law is an educative tool and a well drafted piece of legislation should
have this in aim as well as regulatory functions. H o w e v e r , there is no
legal system at all in place for a significant portion of the world's
underwater cultural heritage.

Jurisdiction
The problem is that portion which lies outside the territorial sea of
coastal States. With some exceptions, it is freely available to those who
have the means to exploit it.
All States have a territorial sea which, depending on the State, is
usually between three and 12 nautical miles in breadth. Within that zone
most States have some controls on activities affecting the underwater
cultural heritage, or an aspect of it. T h e r e may be specific legislation--
such as the United Kingdom Protection o f Wrecks A c t 1973; the general
legislation on antiquities may have a section on underwater f i n d s - - f o r
example, the Norwegian A c t o f 9 June 1978 No. 50 Concerning Cultural
Heritage; or the general legislation applies equally to heritage on land
and under the sea. The situation is not perfect and m a n y laws could be
improved, but at least there is some protection.
Beyond the territorial sea there is chaos. Some attempt was made to
deal with the problems in the United Nations Convention on the L a w o f
the Sea 1982. The end result was two provisions which can serve as a
base for amplification and expansion to an effective regime of protec-
tion for the underwater cultural heritage.
Article 149 relates to the " A r e a " :
All objects of an archaeological and historical nature found in the Area shall be
preserved or disposed of for the benefit of mankind as a whole, particular regard
being paid to the preferential rights of the State or country of origin, or the State
of cultural origin, or the State of historical or cultural origin.
Article 303(2) refers to objects of an archaeological and historical
nature found in the contiguous zone i.e. between the territorial sea
boundary and 24 nautical miles.
2. In order to control traffic in such objects, the coastal State may, in applying
article 33, presume that their removal from the sea-bed in the zone referred to in
that article without its approval would result in an infringement within its
territory or territorial sea of the laws and regulations referred to in that article.
In the first place, those few States that have sought to implement the
fictional jurisdiction under Article 303(2) have just extended the
application of their basic legislation to 24 nautical miles: for example,
D e n m a r k and France. Secondly, the provisions leave a gap. The " A r e a "
consists of the "sea-bed and ocean floor and subsoil thereof, beyond the
limits of national jurisdiction". Consequently, the only provision ap-
plying between the outer edge of the contiguous zone and the limits of
national jurisdiction is Article 303(1):

298

2UNESCO Doc 28 C/39, 4 October 1995:
'Preliminary Study on the Advisability of
Preparing an International Instrument for
the Protection of the Underwater Cultural
Heritage'--Annex, Observations by
States, p 1.
3B.H. Oxman, 'The Third United Nations
Conference on the Law of the Sea: The
Ninth Session (1980)', American Journal
of International Law, Vol 75, 1981, pp
211-241.
ILA Draft Convention: P J O'Keefe
States have the duty to protect objects of an archaeological and historical nature
found at sea and shall co-operate for this purpose.
This is obviously inadequate. We are in effect dealing with the continen-
tal shelf where many important wrecks are to be found. As Germany,
for example, has noted, this geographical gap in coverage needs to be
bridged. 2
The terminology used in both Articles is confused. What is meant in
Article 149 by the phrase "shall be preserved or disposed of"? Surely it
is not intended to dispose of these objects? And the "objects of an
archaeological and historical nature" that are the subject of the Arti-
cles? According to Oxman an earlier version of this ("archaeological
objects and objects of historical origin") was intended to apply to
objects many of hundreds of years old. 3 There is little to support this
conclusion apart from a reference to what must have been the confused
arguments of one delegation. In any event, it is completely contrary to
current archaeological and historical scholarship as well as contrary to
the practice of States in their territorial seas.
In the absence of adequate provision in the Convention some States
have extended their jurisdiction to the continental shelf. Australia and
Ireland do this for historic wrecks. Spain's general legislation on the
c u l t u r a l h e r i t a g e d o e s also. O t h e r S t a t e s - - f o r e x a m p l e , T h e
Netherlands--require any persons working on their continental shelves
under licence to report discoveries of the cultural heritage.
International Law Association
The International Law Association is a private non-governmental
organization of persons interested in international law. Founded in
1873, it has its headquarters in London and over 40 branches world-
wide. Its major academic activities are conducted through a number of
international committees. In 1988 the Association formed a Committee
on Cultural Heritage Law. This has members from Algeria, Australia,
Canada, China, Denmark, Ecuador, France, Germany, Greece, Hun-
gary, India, Italy, Japan, Netherlands, Mexico, United States and the
United Kingdom. Members are government officials, academics, con-
sultants, judges, private legal practitioners. Several are legal advisers to
governments on heritage matters. Many have a special interest in the
underwater cultural heritage and have worked closely with archaeolo-
gists over a long period of time. The Chairman is a Fellow of the Society
of Antiquaries of London.
Convention on the Protection of the Underwater Cultural
Heritage
The Committee took as its first task the preparation of the above
Convention. In this it was encouraged by Article 303(4) of the United
N a t i o n s C o n v e n t i o n on the L a w o f the Sea wherein the drafters of that
Convention recognized the possibility of a more comprehensive regime
applying to underwater cultural heritage coming into existence at a later
stage:
This article is without prejudice to other international agreements and rules of
international law regarding the protection of objects of an archaeological and
historical nature.
299
ILA Draft Convention: P J O'Keefe
During the course of drafting, there were extensive consultations with
other persons interested in the field. In 1992 the then draft was
presented to a meeting in Sydney of the International Committee on
Underwater Cultural Heritage of the International Council for Monu-
ments and Sites (ICOMOS). A paper describing the proposals was
discussed by E u r o p e a n archaeologists and parliamentarians from Bel-
gium, France and Italy at a meeting in Ravello, Italy, May 1993. Persons
representing the Comit6 Maritime International were regularly pro-
vided with draft documents. The Law of the Sea Office at the United
Nations Organization and the International Maritime Organization
were notified of the work under way but at the time exhibited little
interest.
The draft was finalized in 1994 and adopted by the 66th ILA
Conference held at Buenos Aires that year. Acting under Resolution of
the Conference, the Secretary-General of the Organization forwarded
the Draft Convention and the Committee's Reports to U N E S C O for
consideration.

Definitions
"Underwater cultural heritage" for the purposes of the Draft Conven-
tion comprises all underwater traces of human existence provided these
have been lost or abandoned and have been underwater for at least 100
years. Certain aspects of the heritage are singled out for special mention
so as to draw the attention of the law-maker and administrator. Wrecks
and their cargoes are particularly emphasized. The archaeological and
natural context of these traces are stressed for it is here that the major
archaeological interest lies. A similar stress is to be found in the
European Convention on the Protection of the Archaeological Heritage
(Revised) 1992.
This definition is an application of the 'blanket' approach used by a
number of States. It does not mean that all wrecks, for example, sunk
more than 100 years ago have to be treated the same way. The key to
this is the "Charter for the Protection and Management of the Under-
water Cultural Heritage" referred to below. The Charter lays down the
archaeological standards to be applied in dealing with underwater
cultural heritage. These will vary according to the significance of the
site.
The Draft Convention avoids the complex issues associated with
ownership by restricting its application to "abandoned" underwater
cultural heritage--usually wrecks. A definition of this term is incorpo-
rated in the text. The underlying notion is that abandonment takes place
when the technology for reaching the wreck has existed for 25 years but
the owner has not utilized it in recovery operations. In cases where the
technology does not yet exist, the owner has to make assertions of
interest every 50 years in order to keep the claim afloat.
The Draft Convention does not apply to the wrecks of warships. The
decision to exclude these was taken after studying the attitude of major
maritime powers expressed in treaties and other actions regarding such
wrecks. It was obvious that those States regarded their ownership and
control of these wrecks as subsisting even though more than a century
had passed; notwithstanding that, other States may have control over
access to the wreck because of its position within territorial waters. The
subject raises serious and complex issues of sovereign immunity which
were beyond the scope of the Draft Convention.

300
 ILA Draft Convention: P J O'Keefe
Jurisdiction
It was obvious when the Committee commenced work that jurisdiction
would be a difficult matter to deal with. On the one hand there were the
provisions of the United Nations Law o f the Sea Convention and on the
other the developing practice of States taking control of cultural
heritage on the continental shelf. It was felt that the practice had
progressed to the point where States should have this as an option.
Consequently, the Draft provides for a "Cultural Heritage Z o n e " which
a State may establish, if it so wishes, up to the outer limit of its
continental shelf. But for States which didn't want to exercise the option
and for operations in the " A r e a " , there would have to be another
jurisdictional basis.
In the exercise of territorial jurisdiction, States can forbid the use of
their territory for what they regard as unacceptable conduct. In reliance
on this power, the Draft requires a State to prohibit "its territory or any
other areas over which it exercises jurisdiction" from being used in
support of activities damaging the underwater cultural heritage. This is
only partially effective. It could easily be evaded until the time when all
States in a region became party to the C o n v e n t i o n - - a process which
could take decades.
A n o t h e r possibility was to use the universally recognized jurisdiction
that States have over ships flying their flag. But this in itself is not
enough. Normally only vessels of a certain size fly a flag and so these
would not be affected. Also, as is well known, certain registries are not
particularly interested in enforcing laws applying to their flag vessels.
Consequently, the decision was taken to require States to exercise
jurisdiction over their nationals. This is already done by some States in
respect of particularly egregious conduct by those nationals. Perhaps the
closest parallel is the Protection o f Military Remains Act 1986 under
which the United Kingdom protects the site of British vessels and
aircraft that sank or crashed on military service, even if the site be in
international waters. It is an offence for British nationals to take any
action in respect of such a site without a licence.
Proceeding on these bases, the Draft requires a State Party to prohibit
its nationals and ships of its flag from activities affecting underwater
cultural heritage in respect of any area which is not within a cultural
heritage zone or territorial sea of another State.

The Charter
It was never the intention to prohibit all activity affecting all underwater
cultural heritage as some persons have alleged on the I N T E R N E T . The
purpose was to require underwater cultural heritage to be treated
according to archaeological principles. This may mean that some sites
can be disturbed provided those principles are observed; others are
freely available for any type of exploration and removal of material; yet
others are not to be touched.
In order for this system to work there would have to be a standard
against which assessments could be made. A "Charter for the Protection
and Management of the Underwater Cultural Heritage" has been
produced by the I C O M O S International Committee on Underwater
Cultural Heritage and is annexed to the Draft Convention.
T h e r e is an innovation in that the Draft Convention allows I C O M O S
to revise the Charter from time to time and these revisions are binding
on States Party. The purpose is to allow the standards to be updated as

301
ILA Draft Convention: P J O'Keefe
4A. Thorncroft, The Nanking Cargo, Ham-
ish Hamilton, London, 1987, p 162.
302
archaeological and technical developments occur while avoiding the
protracted and complicated procedures involved in amending an inter-
national convention. On the other hand, if that were all, States would
find themselves bound by provisions to which they had not consented.
Accordingly, there is a qualification whereby, within six months of the
effective date of the revision, States may notify the Director-General of
U N E S C O that they refuse to accept it. This could mean that over time
States will come to apply different standards. However, it was felt that
the provision effectively balanced the interests of States with the need
for ease of revision. The technical nature of many amendments also
means that it is unlikely States would object.
The Draft Convention provides that the prohibitions referred to
above do not apply when what is done is in accordance with the Charter.
It is highly possible that there will be disputes on this point. The Draft
Convention requires States to establish means of resolving these. No
specific method is set out because States have such a wide variety of
existing procedures for settling disputes of a similar nature and would
want to fit whatever was done within them.
Seizure of heritage
The Draft Convention requires a State Party to seize underwater
cultural heritage which is brought within its territory when this has been
excavated or retrieved in a manner not conforming with the Charter.
The provision is clearly intended to encourage persons to comply with
the terms of the Charter. Certain objects part of shipwrecks and other
sites often have great monetary value--"treasure" in popular terminol-
ogy. This does not have to be gold and precious stones but can consist of
ceramics or rare artifacts. Fines and even imprisonment are unlikely to
deter some persons from excavating for such material to the detriment
of all other aspects of the heritage associated with it. Consider the
following description of one salvor's operations:
Hatch has to recover as much as possible as quickly as possible, preferably in
one season, before rivals infringe on the site, and costs escalate out of the
control of even very wealthy individuals and into the realms of red-tape-bound
institutions and governments. He cannot spend time marking down the location
of every single object on a wreck, in three dimensions. On the "G" he did a
rough archaeological survey, and John Bremmer's pictures provided useful
data. But photographs also played into the hands of Hatch's critics. One shot
shows a diver prising open a chest, while a plank disappears into the deep. On
the plank are Chinese characters. EIistorians would dearly like to know the exact
text of that inscription. 4
Perm its
The Draft Convention provides for States Party to issue permits
allowing entry into their territory of underwater cultural heritage
provided this has been, or will be, excavated or retrieved in compliance
with the Charter. The provision was intended for the protection of
persons who wanted to excavate a site and be sure that they would not
have any objects found there seized when brought to shore.
The permit system would cast certain administrative and supervisory
burdens on States Party. For example, States may issue a permit before
the excavation takes place, provided the authorities are satisfied that
future actions will comply with the Charter. This implies that the State
should then supervise the work in order to ensure that it is done
correctly; but the supervision has to be done professionally. It is not
 1LA Draft Convention: P J O'Keefe
enough to put a policeman or even two on board a vessel and expect
them to k e e p the permit holder to the p r o p e r standards. The supervision
must be done by qualified archaeologists and related professionals such
as conservators. T h e y must also have the power to ensure the work
proceeds in accordance with the Charter.
In practice, any person wanting to excavate should apply for a permit
in advance. The Draft Convention does allow for the possibility of
seeking a permit after the objects have been raised and the excavator
wants to bring them ashore. But the burden would then be on the
excavator to prove that the work had been properly done. It would not
be an impossible task, but could only be discharged effectively if a
detailed record were kept of the excavation i.e. if it were done in
accordance with the standards of the Charter. Logically, it would m a k e
m o r e sense for the excavator to obtain a permit in advance.

Penal sanctions
Although it was recognized that penal sanctions have only limited
effectiveness, there is provision for them in the Draft Convention.
States Party give an undertaking to impose them although their nature
and content are left to the individual State.

Salvage
U n d e r w a t e r cultural heritage to which the Draft Convention applies is
specifically excluded from application of the law of salvage. Article
303(3) of the United Nations Convention on the L a w o f the Sea does
refer to salvage:
Nothing in this article affects the rights of identifiable owners, the law of salvage
or other rules of admiralty, or laws and practices with respect to cultural
exchanges.
This provision should not be interpreted to prevent later Conventions
from modifying or excluding the law of salvage. It refers specifically to
the operation of Article 303 and would a p p e a r to have been inserted as a
safeguard in case of any derogation in that Article. This interpretation is
consistent with the reservation allowed States in the International
Convention on Salvage 1989; namely, that the Convention does not
apply to maritime cultural property of prehistoric, archaeological or
historic interest situated on the seabed. By allowing such a reservation
the Salvage Convention specifically recognizes that the United Nations
Convention on the L a w o f the Sea does not prevent exclusion of salvage
law.
The rationale for excluding salvage law is that its bases are at odds
with the preservation of cultural heritage. Salvage is a commercial
operation to rescue vessels in danger. Quite apart from whether wrecks
on the seabed are 'in danger', much archaeological excavation involves
material of no possible commercial value. Excavating to archaeological
standards in most cases will m e a n that there is no profit even if all the
material remains are sold. Consequently, there is a temptation for profit
seekers to extract the commercially valuable material as fast as possible
to the detriment of everything else.
A few miles north of Margate, where the Thames estuary runs into the North
Sea, two East Indiamen lay on the seabed, the Albion grounded in 1765 and the
Hindustan in 1803.
Both ships, outward bound on their last voyage, had been laden with bullion

303
ILA Draft Convention: P J O'Keefe
CAnon, 'All at Sea and Undefended', Brit-
ish Archaeological News, 1994, (Septem-
ber), p 6.
Appendix
Resolution 8 on Cultural Heritage Law adopted by the International Law
Association at its sixty-sixth Conference, Buenos Aires, 1994 la
The 66th Conference of the Interna-
tional Law Association held in Buenos
Aires, Argentina, 14-20 August 1994:
Noting the Final Report of the Com-
mittee on Cultural Heritage Law relat-
304
to buy spices, silks and porcelain from the East. The bullion was recovered soon
after sinking; but the ships themselves, with their fittings and less valuable
contents, were left undisturbed in the water.
Then a few years ago, salvage men came--sea-borne scrap merchants armed
with mechanical grabs for fast, efficient retrieval of "scrap" from the seabed. Up
came ribs and decks, torn from the wreckage, the planks broken in the jaws of
the grab. Up came iron guns, ship's barometers, surgical equipment, delftware
drug jars with original ointment and hundreds of other items.
Everything was dumped in a Custom's warehouse in Ramsgate. There it lay
for a year while, by direction of the Merchant Shipping Act, an owner was
sought. None was found; and the wreckage, returned to the salvage men, was
put up for auction. The finds were dispersed into the antiques trade. 5
Certain courts in the United States, when giving a salvor exclusive
possession of a wreck, have indicated that compatibility of the excava-
tion with archaeological standards will be taken into account when
fixing the ultimate reward. This has grave problems. In most cases the
court will have to proceed on the salvor's evidence of how the
excavation was conducted; logically, the salvor would be unlikely to
produce evidence against his interest. Moreover, a site cannot be put
back together after an excavation. Is the court going to refuse to award
any salvage for an excavation which does not conform to archaeological
standards? Finally, if the salvor has to excavate to those standards, why
apply salvage law? Why not use a form of administration which is
accustomed to dealing with these issues? Some may argue that the
salvage system encourages finders to reveal what they have discovered.
But this also applies to the system devised in the Draft Convention.
Conclusion
The Draft Convention has received a mixed reception from the interna-
tional c o m m u n i t y . Some see it as e n c r o a c h i n g on e n t r e n c h e d
positions--such as those on jurisdiction--having nothing whatever to do
with the underwater cultural heritage per se. Others regard the United
Nations Convention on the L a w o f the Sea as being the last word on the
matter. Yet others refuse to countenance anything that would hinder
their ability to do what they want with the underwater cultural heritage.
There is much dissemination of misinformation and disinformation.
What is needed is education in the values involved and a positive
attitude to counter the above. Survival of the greatest possible portion
of the underwater cultural heritage should be the objective. Only when
a framework capable of achieving this has been devised should other
interests come into play.
ing to the Draft Convention on the Adopts the text of the Draft Conven-
Protection of the Underwater Cultural tion, to be known as the Buenos Aires
Heritage, and the comments and sug- Draft Convention on the Protection of
gestions made at the working session the Underwater Cultural Heritage;
of the Committee;
Notes that the 141st session of the

Executive Board of U N E S C O in May
1983 invited the Director-General of
U N E S C O to make a study of the
technical and legal aspects of an in-
strument on the underwater cultural
heritage, that the International Law
Association has observer status with
U N E S C O , and that the Committee
has formulated the Draft Convention
in terms appropriate to a U N E S C O
Convention;
Requests the Secretary-General to for-
ward the Draft Convention, together
with the Committee's Reports on its
work, to U N E S C O for consideration;
Notes that the Committee has com-
pleted its work on the legal protection
of the underwater cultural heritage
and expresses the view that the Com-
mittee should pursue its mandate by
preparing a study of the way in which
international instruments for the pro-
tection of the cultural heritage origin-
ate, including a comparison of re-
levant instruments and an examina-
tion of the increasingly complex net-
work of intergovernmental and non-
governmental organisations involved
in creating those instruments and
progressively developing international
law.
Buenos Aires Draft Convention
on the Protection of the
Underwater Cultural
Heritage 2a
Preamble
The States party to the present Con-
vention,
Acknowledging the importance of the
underwater cultural heritage as an in-
tegral part of the cultural heritage of
humanity and a particularly important
element in the history of peoples, na-
tions, and their relations with each
other concerning their shared herit-
age;
Noting growing public interest in the
underwater cultural heritage;
Perceiving that growing threats to the
underwater cultural heritage include
increasing construction activity, ad-
vanced technology that enhances iden-
tification of and access to wreck, ex-
ploitation of marine resources, and
commercialisation of efforts to recov-
er underwater cultural heritage;
Determining that the u n d e r w a t e r
cultural heritage may be threatened by
irresponsible activity and that there-
fore cooperation among States, sal-
vors, d i v e r s , their o r g a n i z a t i o n s ,
marine archaeologists, museums and
other scientific institutions is essential
for the protection of the underwater
cultural heritage;
Considering that exploration, excava-
tion, and protection of the underwater
cultural heritage necessitates the ap-
plication of special scientific methods
and the use of suitable techniques and
equipment as well as a high degree of
p r o f e s s i o n a l s p e c i a l i z a t i o n , all of
which indicates a need for uniform
governing criteria;
Recognising t h a t the u n d e r w a t e r
cultural heritage belongs to the com-
mon heritage of humanity, and that
therefore responsibility for protecting
it rests not only with the State or
States most directly concerned with a
particular activity affecting the herit-
age or having an historical or cultural
link with it, but with all States and
other subjects of international law;
Bearing in mind the need for more
stringent supervision to prevent any
clandestine excavation which, by des-
troying the environment surrounding
underwater cultural heritage, would
cause irremediable loss of its historical
or scientific significance;
Realising the need to codify and pro-
gressively develop the law in con-
formity with international rules and
practice, including provisions in the
1982 United Nations Convention on
the Law of the Sea;
Convinced that information and multi-
d i s c i p l i n a r y e d u c a t i o n a b o u t the
underwater cultural heritage, its his-
torical significance, serious threats to
it, and the need for responsible diving,
d e e p - w a t e r e x p l o r a t i o n and other
activity affecting the u n d e r w a t e r
cultural heritage, will enable the pub-
lic to appreciate the importance of the
u n d e r w a t e r c u l t u r a l h e r i t a g e to
humanity and the need to preserve it;
and
Committed to improving the effective-
ILA Draft Convention: P J O'Keefe
ness of measures at international and
national levels for the preservation in
place or, if necessary for scientific or
protective purposes, the careful re-
moval of the heritage that may be
found beyond the territorial sea;
Have agreed as follows:
Article 1: Definitions
For the purposes of this Convention:
1. " U n d e r w a t e r cultural heritage"
means all underwater traces of
human existence including:
(a) sites, structures, buildings,
artifacts and human remains,
together with their archaeolo-
gical and natural contexts; and
(b) wreck such as a vessel, air-
craft, other vehicle or any part
thereof, its cargo or other con-
tents, together with its
a r c h a e o l o g i c a l and n a t u r a l
context.
2. Underwater cultural heritage shall
be deemed to have been "aban-
doned":
(a) whenever technology would
make exploration for research
or recovery feasible but ex-
ploration for research or re-
covery has not been pursued
by the owner of the heritage
within 25 years after discovery
of the technology; or
(b) w h e n e v e r no t e c h n o l o g y
would reasonably permit ex-
ploration for research or re-
covery and at least 50 years
have elapsed since the last
assertion of interest by the
owner in the underwater cultu-
ral heritage.
3. "Cultural heritage zone" means all
the area beyond the territorial sea
of the State up to the outer limit of
its continental shelf as defined in
accordance with relevant rules and
principles of international law.
4. "Charter" means the "Charter for
the Protection and Management of
the Underwater Cultural Heritage"
p r e p a r e d by the I n t e r n a t i o n a l
Council for Monuments and Sites
(ICOMOS) and annexed to this
Convention.
Article 2: Scope of the Convention
1. This Convention applies to under-
water cultural heritage which has

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been lost or abandoned and is sub-
merged underwater for at least 100
years. A n y State P a r t y may,
however, protect underwater cultu-
ral heritage which has been sub-
merged underwater for less than
100 years.
2. This Convention does not apply to
any warship, military aircraft, nav-
al auxiliary, or other vessels or
aircraft owned or operated by a
State and used for the time being
only on government non-
commercial service, or their con-
tents.
Article 3: General Principle
States Party shall take all reasonable
measures to preserve u n d e r w a t e r
cultural heritage for the benefit of
humankind.
Article 4: Non-Applicability of Salvage
Law
Underwater cultural heritage to which
this Convention applies shall not be
subject to the law of salvage.
Article 5: Cultural Heritage Zone
1. A State Party to this Convention
may establish a cultural heritage
zone and notify other States Party
of its action. Within this zone, the
State Party shall have jurisdiction
over activities affecting the under-
water cultural heritage.
2. A State Party shall take measures
to ensure that activities within its
zone affecting the u n d e r w a t e r
cultural heritage comply at a mini-
mum with the provisions of the
Charter.
Article 6: Internal and Territorial
Waters
States Party shall transmit a copy of
the Charter to all relevant authorities
within their jurisdiction, requiring
them to take appropriate measures to
apply the Charter, at a minimum, to
activity within their internal and ter-
ritorial waters.
Article 7: Prohibition of the Use of
Territory in Support of Activities
Violating the Charter
No State Party shall allow its territory
or any other areas over which it exer-
cises jurisdiction to be used in support
306
of any activity affecting underwater
cultural heritage and inconsistent with
the criteria of the Charter. This provi-
sion shall apply to any such activity
beyond that State's territorial sea but
not within a territorial sea or cultural
heritage zone of another State Party.
Article 8: Prohibition of Certain Acti-
vities by Nationals and Ships
Each State Party shall undertake to
prohibit its nationals and ships of its
flag from activities affecting underwa-
ter cultural heritage in respect of any
area which is not within a cultural
heritage zone or territorial sea of
another State Party. The prohibition
shall not apply to activities affecting
the underwater cultural heritage that
comply with the Charter.
Article 9: Permits
A State Party to this Convention may
provide for the issuance of permits
allowing entry into its territory of
underwater cultural heritage exca-
vated or retrieved after the effective
date of this Convention so long as the
State has determined that the excava-
tion and retrieval activities have com-
plied or will comply with the Charter.
Article 10: Seizure of Heritage
1. Subject to Article 9, on the request
of any Party or on its own initia-
tive, each State Party, in accord-
ance with its constitutional proce-
dures, shall seize any underwater
cultural heritage brought within its
territory, directly or indirectly, af-
ter having been excavated or re-
trieved in a manner not conforming
with the Charter.
2. A State shall seize underwater
cultural heritage known to have
been excavated or retrieved from a
cultural heritage zone or territorial
sea of another State Party only
after obtaining the consent of that
State.
Article 11: Penal Sanctions
1. Each State Party undertakes to im-
pose penal sanctions for import-
ation of underwater cultural herit-
age which is subject to seizure
under Article 10.
2. Each State Party agrees to cooper-
ate with other Parties in the en-
forcement of these sanctions. Such
c o o p e r a t i o n , c o n s i s t e n t with
national procedures, shall include
but not be limited to, production
and transmission of documents,
making witnesses available, service
of process and extradition.
Article 12: Notification Requirements
and Treatment of Seized Heritage
1. Each State Party undertakes to
notify the State or States of origin,
if known, of its seizure of under-
water cultural heritage under this
Convention.
2. Each State Party undertakes to re-
cord, protect and take all reason-
able measures to conserve under-
water cultural heritage seized
under this Convention.
3. Each Party undertakes, wherever
possible, to keep underwater cultu-
ral heritage seized under this Con-
vention on display or otherwise en-
sure the fullest reasonable access to
it for the benefit of the public.
A r t i c l e 13: C o l l a b o r a t i o n and
Information-Sharing
1. Whenever a State has expressed a
patrimonial interest in particular
underwater cultural heritage to
another State Party, the latter shall
consider collaborating in the inves-
tigation, excavation, documenta-
tion, conservation, study and cultu-
ral promotion of the heritage.
2. To the extent compatible with the
purposes of this Convention, each
State Party undertakes to share in-
formation with other States Party
concerning underwater cultural
heritage, such as but not limited to,
discovery of heritage, location of
heritage, heritage excavated or re-
trieved contrary to the Charter or
otherwise in violation of interna-
tional law, p e r t i n e n t scientific
methodology and technology, and
legal d e v e l o p m e n t s relating to
heritage.
3. Whenever feasible, each State Par-
ty shall use appropriate interna-
tional databases to disseminate in-
formation about underwater cultu-
ral heritage excavated or retrieved
contrary to the Charter or other-
wise in violation of international
law.

Article 14: Education
Each State Party shall endeavour by
educational means to create and de-
velop in the public mind a realization
of the value of the underwater cultural
heritage as well as the threat to this
heritage posed by violations of this
Convention and non-compliance with
the Charter.
Article 15: Revision o f the Charter
Revisions in the Charter by the Inter-
national Council for Monuments and
Sites shall be deemed to be revisions
in the annexed Charter, binding on
States Party except for those State
Parties that notify their non-
acceptance to the Director-General of
the United Nations Educational, Sci-
entific and Cultural Organization
within six months after the effective
date of a revision. UNESCO shall
inform the States Party of such revi-
sions prior to the effective date of the
revision.
Article 16: Dispute Resolution
1. States, on becoming Parties to this
Convention, undertake to establish
an internal procedure or proce-
dures for resolving disputes con-
cerning whether an activity result-
ing in excavation or retrieval of the
underwater cultural heritage did or
did not comply with the Charter.
2. Any dispute between two or more
States Party concerning the inter-
pretation or application of the pre-
sent Convention that is not settled
by negotiation shall, at the request
of one of them, be submitted to
arbitration. If, within six months
from the date of the request for
arbitration, the States Party are
unable to agree on the organization
of the arbitration, any one of those
States Party may refer the dispute
to the International Court of Jus-
tice, or a special chamber thereof,
by a request in conformity with the
Statute of the Court.
Article 17: Official Languages
This Convention is drawn up in Ara-
bic, Chinese, English, French, Rus-
sian and Spanish, the six texts being
equally authoritative.
Article 18: Ratification or Acceptance
1. This Convention shall be subject to
ratification or acceptance by States
Members of the United Nations
Educational, Scientific and Cultu-
ral Organization, in accordance
with their respective constitutional
procedures.
2. The instruments of ratification or
acceptance shall be deposited with
the Director-General of the United
Nations Educational, Scientific and
Cultural Organization.
Article 19: Applicability to Territorial
Units
1. If a State Party has two or more
territorial units in which different
systems of law are applicable in
relation to the matters dealt with in
this Convention, it may, at the time
of ratification, acceptance, approv-
al or accession, declare that this
Convention is to extend to all its
territorial units or only to one or
more of them, and may substitute
its declaration by another declara-
tion at any time.
2. These declarations are to be noti-
fied to the depository and are to
state expressly the territorial units
to which the Convention extends.
Article 20: Reservations, Understand-
ings and Declarations
1. The Director-General of the Un-
ited Nations Educational, Scientific
and Cultural Organization shall re-
ceive and circulate to all States
Party the text of reservations,
understandings and declarations
made by States at the time of rati-
fication or accession.
2. A reservation incompatible with
the objects and purposes of the
present Convention shall not be
permitted.
3. Reservations may be withdrawn at
any time by notification to that
effect addressed to the Director-
ILA Draft Convention: P J O'Keefe
General of the United Nations
Educational, Scientific and Cultu-
ral Organization, who shall then
inform all States. Such notification
shall take effect on the date on
which it is received by the Director-
General of the United Nations
Educational, Scientific and Cultu-
ral Organization.
Article 21: Accession by Nonmember
States
1. This Convention shall be open to
accession by all States not Mem-
bers of the United Nations Educa-
t i o n a l , Scientific and Cultural
Organization.
2. Accession shall be effected by the
deposit of an instrument of acces-
sion with the Director-General of
the United Nations Educational,
Scientific and Cultural Organiza-
tion.
Article 22: Entry into Force
This Convention shall enter into force
three months after the date of the
deposit of the tenth instrument of
ratification, acceptance or accession,
but only with respect to those States
which have deposited their respective
instruments of ratification, acceptance
or accession on or before that date. It
shall enter into force with respect to
any other State three months after the
deposit of its instrument of ratifica-
tion, accceptance or accession.
Article 23: Denunciations
1. Each State Party to this Conven-
tion may denounce the Conven-
tion.
2. The denunciation shall be notified
by an instrument in writing, depo-
sited with the Director-General of
the United Nations Educational,
Scientific and Cultural Organiza-
tion.
3. The denunciation shall take effect
six months after notification.
laReproduced with the kind permission of
the International Law Association.
2albid.
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