Preliminary Report on the Fourth Meeting of Governmental Experts on the Draft Convention on the Protection of the Underwater Cultural Heritage, UNESCO, Paris, March 26 -April 6 2001

PRELIMINARY REPORT ON THE FOURTH MEETING OF GOVERNMENTAL EXPERTS ON THE DRAFT CONVENTION ON THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE, UNESCO, PARIS, MARCH 26 – APRIL 6 2001

Dorrick Gray (Senior Representative, Central America and the Caribbean – Jamaica National Heritage Trust)

Introduction

The Fourth Meeting of Governmental Experts on the Draft Convention on the Protection of the Underwater Cultural Heritage was opened by the Director General of UNESCO, Koichiro Matsuura who stressed the need for governmental experts to agree on the draft so that it can be submitted for adoption at the next session of the General Conference of UNESCO’s Member States in October this year. He further urged all 250 participants from 97 countries to reach a consensus on the issues, i.e. what is acceptable to as many countries as possible, and not what would be ideal for one individual state. He emphasized that in negotiations of this nature the perfect is the enemy of the good, urging delegates to use the time and opportunity to have an important, effective, and unique instrument to protect an important aspect of heritage which is under serious threat.

At the start of the session delegates elected Carsten Lund of Denmark as Chairman of the meeting. He chaired the three previous meetings since 1989. Despite the progress made in the previous meetings some important issues were left to be resolved:

Whether to place sunken warships under the Convention
How to deal with underwater cultural heritage located on the continental shelf
Whether rivers and lakes should be covered by the convention.
In arriving at a consensus on many of the articles in the Convention, delegates were faced with the challenges of having to integrate different concerns including the respect for existing international laws touching on the 1982 Convention of the Law of the Sea, particular interest of countries, cultural, historical, archaeological, environmental, and scientific considerations.

The Informal Draft Negotiating Text worked out by Chairman Lund was used as the base document for discussion. Although significant progress was made in the sometimes-gruelling discussions, we were not able to finalize an approved draft at the end of the meeting. The Director General of UNESCO therefore proposed a continuation of the Fourth Meeting in Paris between July 2 and 9, 2001, to iron out the few but important remaining issues.

The following articles were adopted with changes:

Article 1 – Definitions
New Article 2 – Objectives and General Principles
Article 5 – Relationship to law of salvage and law of finds
Article 6 – Activities incidentally affecting Underwater Cultural Heritage
Article 7 – Bilateral, regional or other multilateral agreements
Article 8 – Underwater cultural heritage in the internal waters, archipelagic waters and territorial sea
Article 18 – Collaboration and Information – sharing
Article 19 – Education
Article 20 – Training in Underwater Archaeology
Article 21 – Competent Services
Article 22 – Meeting of the States Parties
Article 23 – Scientific and Technical Advisory Body – deleted
Article 24 – Secretariat of the Convention
Article 26 – Federal State clause-deleted
Article 29 – Amendments
Article 30 – Denunciation
Article 31 – The Rules
Article 32 – Authoritative texts
ANNEX (WP 18)
Despite a series of informal group meetings to come up with a compromise draft for all to agree, the meeting was unable to arrive at a consensus on the issue of warships and jurisdictional issues related to who should have the primary responsibility for the protection of the Underwater Cultural Heritage (UCH) in the Exclusive Economic Zone and on the Continental Shelf.

Underwater Cultural Heritage in the EEZ and on the Continental Shelf

The main differences in the positions are that some states want the coastal states to have primary responsibility for the protection of the UCH in the EEZ and the continental shelf, while others were opposed to the coastal states having primary responsibility.

Warships

On this issue a number of states supported the view that this article should be deleted from the draft for the following reasons:

All vessels including warships, over 100 years old are already included under the definition of underwater cultural heritage in Definitions, Article 1, ii.
The question of ownership will not be addressed by this Convention.
The treatment of all UCH is addressed elsewhere by the provisions of the Convention and the Annex.
The questions of sovereign immunity rights and war graves are already addressed in other international instruments, including UNCLOS.
The issue of jurisdiction is being dealt with in other articles of this Convention.
On the other hand, others felt that this Article should be included. These states felt that a ship is always a ship and ownership is not relinquished by the condition or location of the ship or shipwreck. The Secretariat was therefore asked to come up with a compromise draft, which will be discussed in, plenary at the next continuation meeting in July.

It is clear the significant progress was made on many issues despite not having a final draft. Major discussions will have to be held on the two most significant and remaining issues: warships and UCH on the continental shelf.