Environment and development
in coastal regions and in small islands
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Coastal management sourcebooks 2

Legal principles for protecting the underwater cultural heritage

LYNDEL V. PROTT
Chief, International Standards Section
Division of Cultural Heritage
UNESCO

Introduction

UNESCO has been interested in the protection of underwater cultural heritage for a long time. Its first Recommendation in 1956 was expressly extended to cover it; since then, UNESCO has published two books on the subject: one in 1972, Underwater Archaeology: A Nascent Discipline and one in 1981, Protection of the Underwater Heritage. Its journal Museum International has published three issues of relevance: one on port museums, in 1990, and two on maritime museums, in 1996. The February 1997 issue of UNESCO Sources is devoted to the underwater cultural heritage, with a striking picture of one of the finds off Qait Bey on the front cover.

Because most of the underwater cultural heritage was not accessible and therefore not threatened until the discovery of the self-contained underwater breathing apparatus (SCUBA), legal principles related to it have only been developed since the 1940s. However, they have not yet been incorporated into the relevant international and national law.

International law

Looking first at the international system, there are several UNESCO recommendations for the protection of cultural heritage, developed by experts from the relevant disciplines and provide guidance for national legislation.

The very first of these Recommendations to be developed was the Recommendation on International Principles Applicable to Archaeological Excavations 1956. It sets out basic provisions such as the requirement for excavation permits, conservation, publication and placement of finds primarily in the museums of the host country. It is notable that Principle 1 defines excavation as:

Any research aimed at the discovery of objects of archaeological character, whether such research involves digging of the ground or systematic exploration of its surface or is carried out on the bed or in the sub-soil of inland or territorial waters of a Member State.

Another UNESCO recommendation of importance for regulating the situation confronting the preservation of Alexandria’s underwater cultural heritage is that on the Preservation of Cultural Property Endangered by Public or Private Works 1968, Principle 20 provides:
(a) There should be a co-ordinating or consultative body, composed of representatives of the authorities responsible for the safeguarding of cultural property, for public and private works, for town planning, and of research and educational institutions, which should be competent to advise on the preservation of cultural property endangered by public or private works and, in particular, on conflicts of interest between requirements for public or private works and the preservation or salvage of cultural property.
(b) Provincial, municipal or other forms of local government should also have services responsible for the preservation or salvage of cultural property endangered by public or private works. These services should be able to call upon the assistance of national services or other appropriate bodies in accordance with their capabilities and requirements.
....  
(d) Administrative measures should be taken to co-ordinate the work of the different services responsible for the safeguarding of cultural property with any other department or service whose responsibilities touch upon the problem of the preservation or salvage of cultural property endangered by public or private works.

Yet another UNESCO Recommendation is relevant: that pertaining to the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property 1964. This is relevant because removal of individual elements of the important finds being made under water can distort the archaeological record, so control of access to prevent unauthorized activities is therefore essential.

These principles seem particularly relevant to the protection of the important archaeological sites of Alexandria. The obligation of Member States of UNESCO is to study standard-setting Recommendations adopted by the General Conference, to transmit them to their local authorities and to report on their implementation, or on the reasons why they have not been implemented. In many cases, such recommendations have provided a useful guide for national governments in resolving dilemmas over the protection of particular sites, since they represent the best professional expertise at the time they were drawn up.

There are, of course, also the UNESCO Conventions to look at. Two of those concerned with the protection of the cultural heritage are particularly relevant here. The first is the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970, which provides international mechanisms for the control of international trade in illegally removed cultural property.

Mention has also been made of the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage 1972. I will address its possible relevance further on.

National jurisdiction to protect underwater cultural heritage

Some States rely on their general legislation for protection of cultural heritage. Newer legislation tends to make express provision for underwater cultural heritage to be included in its ambit (for example, Spain’s 1985 legislation), but quite a lot of national legislation is applied simply by way of interpreting general terms on excavation, protection of archaeological sites etc. without further reference. The Egyptian Antiquities Act would thus appear to apply in this fashion.

Other States have quite specific legislation directed expressly to the underwater cultural heritage alone – Australia, France, the United Kingdom and the United States are all in this situation. Often, a State decides to create some kind of special status for an underwater site. The Australian legislation is quite interesting in this regard since it provides for sites which are underwater or partly on land and in the sea.

Other solutions have been to use National Parks legislation, or to create marine reserves. On one occasion in the United States, powers were used in respect of a restricted site supervised by the defence forces as part of coastal security. Because of powers under such legislation, the defence forces can be very useful colleagues in the protection of the cultural heritage. To do so, of course, they have to be properly briefed in the importance of the heritage and what kind of activity they have to watch for.

Sites with a special status

It would seem that Egypt has legislation in force that can be used to protect the Alexandrian sites. The Antiquities Act No. 117 of 1983 (and its 1992 amendments) has already been mentioned; the Law on the Environment No. 4 is also relevant; and the Law on Natural Protectorates would appear to give the possibility of creating a special status for the sites by declaring them natural protectorates.

Mention has been made of the possible nomination of the Qait Bey/Pharos site for the World Heritage List according to the Convention on the Protection of the World Cultural and Natural Heritage 1972. However, this has to be treated cautiously. The World Heritage Committee has never, so far, accepted an underwater site for inscription. This seems to be due to a variety of deterrents: the practical difficulties of delimitation; the provision of a buffer zone; monitoring; and devising an adequate management plan. None of these requirements is easy to meet, even for land sites, and is much more difficult for underwater sites. The ICOMOS (International Council of Monuments and Sites) Sub-Committee on the Underwater Cultural Heritage is in favour of their inclusion in the World Heritage List, but the World Heritage Committee will have to be convinced that it is appropriate and that proper management of such sites is possible.

Inscription on the List inevitably brings greatly increased tourism and it can be a threat to the survival of the site. This is why the Committee has developed a procedure of close scrutiny of at least 18 months before a site is judged appropriate for listing, even if it is not eliminated at an earlier stage. If the Committee is not satisfied that all the requisite safeguards are in place, it may be delayed until they are.

Law in the making

The international community is taking an increasing interest in the underwater cultural heritage, and in 1994 UNESCO received the Buenos Aires draft convention on the protection of the underwater heritage prepared by the International Law Association (ILA). This text has been studied by a group of experts called together by UNESCO and commented on by States. Following the reports of the meeting and of States’ comments, the UNESCO General Conference decided, in November 1997, that UNESCO should draft an international convention on the subject, and a further meeting of governmental experts will be held during 1998. However, the discussions have so far focussed on protection in the area beyond the territorial jurisdiction of the coastal State and this is not an issue in the case of the sites off Alexandria, so I will not go into further detail on its provisions. According to the United Nations Convention on the Law of the Sea 1982, a State has jurisdiction over its territorial sea (not to exceed 12 nautical miles) and can take control of underwater heritage out to 24 nautical miles. There is not yet general agreement on jurisdiction over underwater cultural heritage in the area beyond that, although some States have asserted it (e.g., Australia over the continental shelf and Morocco, in a Dahir of 1981, over the Exclusive Economic Zone – out to 200 nautical miles). However, in connection with the ILA’s Buenos Aires draft, the Sub-Committee on the Underwater Cultural Heritage of the ICOMOS International Committee on Archaeological Sites drafted a Charter on the Protection and Management of the Underwater Cultural Heritage which was adopted at the Plenary Conference of ICOMOS held in Sofia in 1996. These are principles devised by the experts in the subject to set international standards of best practice. The considerations included are important and the text is annexed to this document.

Setting priorities

However, no law can be efficient without two factors: a proper national policy that establishes the priorities; and adequate enforcement. As the 1968 Recommendation discussed above makes clear, co-ordination of policy is essential on important sites, since it is evident that there are often many national and local authorities involved in one way or another with a site. France regulates its programme of underwater archaeology at 4-year intervals, enabling changes to be made in the light of new discoveries, completion of earlier projects, particularly threatened sites etc. In establishing such a programme, it is necessary to have adequate information – first an inventory of known sites and potentially archaeologically rich areas, then an assessment of their relative historical/archaeological importance and, of course, an evaluation of their significance for the cultural dimension of development.

Imaginative protective solutions

If it is decided that these sites have a great potential for development in the cultural dimension, then imaginative protective solutions can be found. There are several possibilities. One that has been mentioned is an underwater museum. There are certain areas where tourists go as divers for leisure, and some of these sites are mixed sites where, for example, coral has grown over an old shipwreck. Some of them are administered as underwater parks. The existing ones are mostly concerned with shipwrecks and natural areas and the Lighthouse site is different: it is an outstanding monumental site. But an underwater museum is more than this and would need very careful planning and development. Another possibility is a mixed land-sea site; this could provide a very interesting tourist experience. Maritime museums are well developed in many areas of the world where it has been decided to raise the underwater finds, but this would not be desirable where the remains are immovable, such as the old port installations in the Eastern Harbour of Alexandria.

Management asa continuing process

The management of a complex site such as the Qait Bey/Pharos site needs to be seen as a continuing process, and legal regulation must allow for this. At this one site, it is evident that coastal management will be a continuing issue and the collection of data to allow informed decisions on future conservation will need to be pursued. Archaeologists still have survey work to do, and the questions of conservation, interpretation and long-term management will need their input.

These issues will also need to be discussed with other governmental agencies likely to have some responsibility for the sites.

Conclusion

The legal issues relating to the protection of the Alexandrian underwater sites do not seem difficult to resolve. Egypt is fortunate in having good legislation in existence which either applies already to the sites or can easily be adapted to give them a special status.

On the other hand, the potential for recognition of the sites as having ‘outstanding universal value’ (the terminology of the World Heritage Convention) cannot be allowed to obscure the complex management decisions that will have to be made to ensure their continuation in that condition. This is a precondition for the development of a cultural tourism that will not damage the site and for any argument that could be made for the extension of the World Heritage listing to underwater sites.

Annex

The ICOMOS International Charter on the Protection and Management of Underwater Cultural Heritage
(ratified by the 11th ICOMOS General Assembly, held in Sofia, Bulgaria, from 5–9 October 1996)

Introduction

This Charter is intended to encourage the protection and management of underwater cultural heritage in inland and inshore waters, in shallow seas and in the deep oceans. It focuses on the specific attributes and circumstances of cultural heritage under water and should be understood as a supplement to the ICOMOS Charter for the Protection and Management of Archaeological Heritage, 1990. The 1990 Charter defines the ‘archaeological heritage’ as that part of the material heritage in respect of which archaeological methods provide primary information, comprising all vestiges of human existence and consisting of places relating to all manifestations of human activity, abandoned structures, and remains of all kinds, together with all the portable cultural material associated with them. For the purposes of this Charter, underwater cultural heritage is understood to mean the archaeological heritage which is in, or has been removed from, an underwater environment. It includes submerged sites and structures, wreck-sites and wreckage and their archaeological and natural context.

By its very character the underwater cultural heritage is an international resource. A large part of the underwater cultural heritage is located in an international setting and derives from international trade and communication in which ships and their contents are lost at a distance from their origin or destination.

Archaeology is concerned with environmental conservation; in the language of resource management, underwater cultural heritage is both finite and non-renewable. If underwater cultural heritage is to contribute to our appreciation of the environment in the future, then we have to take individual and collective responsibility in the present for ensuring its continued survival.

Archaeology is a public activity; everybody is entitled to draw upon the past in informing their own lives, and every effort to curtail knowledge of the past is an infringement of personal autonomy. Underwater cultural heritage contributes to the formation of identity and can be important to people’s sense of community. If managed sensitively, underwater cultural heritage can play a positive role in the promotion of recreation and tourism.

Archaeology is driven by research, it adds to knowledge of the diversity of human culture through the ages and it provides new and challenging ideas about life in the past. Such knowledge and ideas contribute to understanding life today and, thereby, to anticipating future challenges.

Many marine activities, which are themselves beneficial and desirable, can have unfortunate consequences for underwater cultural heritage if their effects are not foreseen.

Underwater cultural heritage may be threatened by construction work that alters the shore and seabed or alters the flow of current, sediment and pollutants. Underwater cultural heritage may also be threatened by insensitive exploitation of living and non-living resources. Furthermore, inappropriate forms of access and the incremental impact of removing ‘souvenirs’ can have a deleterious effect.

Many of these threats can be removed or substantially reduced by early consultation with archaeologists and by implementing mitigatory projects. This Charter is intended to assist in bringing a high standard of archaeological expertise to bear on such threats to underwater cultural heritage in a prompt and efficient manner.

Underwater cultural heritage is also threatened by activities that are wholly undesirable because they are intended to profit few at the expense of many. Commercial exploitation of underwater cultural heritage for trade or speculation is fundamentally incompatible with the protection and management of the heritage. This Charter is intended to ensure that all investigations are explicit in their aims, methodology and anticipated results so that the intention of each project is transparent to all.

Article 1 - Fundamental principles

The preservation of underwater cultural heritage in situ should be considered as a first option.

Public access should be encouraged.

Non-destructive techniques, non-intrusive survey and sampling should be encouraged in preference to excavation.

Investigation must not adversely impact the underwater cultural heritage more than is necessary for the mitigatory or research objectives of the project.

Investigation must avoid unnecessary disturbance of human remains or venerated sites.

Investigation must be accompanied by adequate documentation.

Article 2 - Project design

Prior to investigation a project must be prepared, taking into account :

The project design should be revised and amended as necessary.

Investigation must be carried out in accordance with the project design. The project design should be made available to the archaeological community.

Article 3 - Funding

Adequate funds must be assured in advance of investigation to complete all stages of the project design including conservation, report preparation and dissemination. The project design should include contingency plans that will ensure conservation of underwater cultural heritage and supporting documentation in the event of any interruption in anticipated funding.

Project funding must not require the sale of underwater cultural heritage or the use of any strategy that will cause underwater cultural heritage and supporting documentation to be irretrievably dispersed.

Article 4 - Time-table

Adequate time must be assured in advance of investigation to complete all stages of the project design including conservation, report preparation and dissemination. The project design should include contingency plans that will ensure conservation of underwater cultural heritage and supporting documentation in the event of any interruption in anticipated timings.

Article 5 - Research objectives, methodology and techniques

Research objectives and the details of the methodology and techniques to be employed must be set down in the project design. The methodology should accord with the research objectives of the investigation and the techniques employed must be as unintrusive as possible.

Post-fieldwork analysis of artefacts and documentation is integral to all investigation; adequate provision for this analysis must be made in the project design.

Article 6 - Qualifications, responsibility and experience

All persons on the investigating team must be suitably qualified and experienced for their project roles. They must be fully briefed and understand the work required.

All intrusive investigations of underwater cultural heritage will only be undertaken under the direction and control of a named underwater archaeologist with recognised qualifications and experience appropriate to the investigation.

Article 7 - Preliminary investigation

All intrusive investigations of underwater cultural heritage must be preceded and informed by a site assessment that evaluates the vulnerability, significance and potential of the site.

The site assessment must encompass background studies of available historical and archaeological evidence, the archaeological and environmental characteristics of the site and the consequences of the intrusion for the long term stability of the area affected by investigations.

Article 8 - Documentation

All investigation must be thoroughly documented in accordance with current professional standards of archaeological documentation.

Documentation must provide a comprehensive record of the site, which includes the provenance of underwater cultural heritage moved or removed in the course of investigation, field notes, plans and drawings, photographs and records in other media.

Article 9 - Material conservation

The material conservation programme must provide for treatment of archaeological remains during investigation, in transit and in the long term.

Material conservation must be carried out in accordance with current professional standards.

Article 10 - Site management and maintenance

A programme of site management must be prepared, detailing measures for protecting and managing in situ underwater cultural heritage in the course of and upon termination of fieldwork. The programme should include public information, reasonable provision for site stabilization, monitoring and protection against interference. Public access to in situ underwater cultural heritage should be promoted, except where access is incompatible with protection and management.

Article 11 - Health and safety

The health and safety of the investigating team and third parties is paramount. All persons on the investigating team must work according to a safety policy that satisfies relevant statutory and professional requirements and is set out in the project design.

Article 12 - Reporting

Interim reports should be made available according to a time-table set out in the project design, and deposited in relevant public records.

Reports should include :

Article 13 - Curation

The project archive, which includes underwater cultural heritage removed during investigation and a copy of all supporting documentation, must be deposited in an institution that can provide for public access and permanent curation of the archive. Arrangements for deposition of the archive should be agreed before investigation commences, and should be set out in the project design. The archive should be prepared in accordance with current professional standards.

The scientific integrity of the project archive must be assured; deposition in a number of institutions must not preclude reassembly to allow further research. Underwater cultural heritage is not to be traded as items of commercial value.

Article 14 - Dissemination

Public awareness of the results of investigations and the significance of underwater cultural heritage should be promoted through popular presentation in a range of media. Access to such presentations by a wide audience should not be prejudiced by high charges.

Co-operation with local communities and groups is to be encouraged, as is co-operation with communities and groups that are particularly associated with the underwater cultural heritage concerned. It is desirable that investigations proceed with the consent and endorsement of such communities and groups.

The investigation team will seek to involve communities and interest groups in investigations to the extent that such involvement is compatible with protection and management. Where practical, the investigation team should provide opportunities for the public to develop archaeological skills through training and education.

Collaboration with museums and other institutions is to be encouraged. Provision for visits, research and reports by collaborating institutions should be made in advance of investigation.

A final synthesis of the investigation must be made available as soon as possible, having regard to the complexity of the research, and deposited in relevant public records.

Article 15 - International co-operation

International co-operation is essential for protection and management of underwater cultural heritage and should be promoted in the interests of high standards of investigation and research. International co-operation should be encouraged in order to make effective use of archaeologists and other professionals who are specialized in investigations of underwater cultural heritage. Programmes for exchange of professionals should be considered as a means of disseminating best practice.

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