The importance of the UNESCO Convention on the Protection of the Underwater Cultural Heritage
Contractors, shipowners and insurers engaged in wreck removal operations must consider many factors as they develop their plans. But how many give proper consideration to the UNESCO Convention on the Protection of the Underwater Cultural Heritage (PUCHC), which came into force in 2009? It is something of which those in the industry should be aware, since it could be a trap, and an expensive one, for the unwary.
The provisions of the PUCHC have received little attention in the books on salvage and wreck removal, largely because it did not meet with much approval in the early years after 2001. But now 45 States have ratified the Convention, including Belgium, France, Spain, Portugal and Italy and so a considerable part of the European Atlantic and Mediterranean seaboards are affected by its provisions. These areas are “wreck rich”.
The object of the Convention is to preserve, amongst other things, wrecks which are more than 100 years old having a “cultural, historical or archaeological character”. There is no further definition and it is best, therefore, to treat any wreck of more than 100 years as coming within the Convention. The main objective of the Convention is the preservation, in situ, of any wreck to which it applies, and the main targets of its provisions are those who wish to exploit historic wrecks for commercial gain. It applies to wrecks in the territorial sea, contiguous zone, EEZ and on the Continental Shelf of a State Party, though there are also provisions affecting wrecks on the high seas, “the Area”. The Convention also imposes complex reporting and control provisions.
By Article 4 of the Convention any activity relating to such wrecks is not subject to the law of salvage or finds unless authorised by the competent authorities, is in conformity with the Convention and ensures any recovery affords the wreck maximum protection. Since preservation in situ is the guiding principle it is unlikely permissions for recovery of a wreck to which the Convention applies will be forthcoming.
Why then should those concerned in the removal of a recent wreck pay attention to the Convention? The answer lies in its Article 5. This provides that each State Party shall use the best practicable means to prevent or mitigate any adverse effects that might arise from activities under its jurisdiction incidentally affecting Underwater Cultural Heritage (UCH). The Article is aimed at legitimate activities which may affect a relevant wreck and requires a State Party to do its best to avoid or mitigate a negative impact. It recognises that different States have different means at their disposal. The sophisticated European States have regulatory frameworks in place which they can utilise to compel a contractor to use a methodology which will either protect an historic wreck or mitigate the impact of a removal operation on a historic wreck. Elsewhere, however, the legal framework to compel a contactor in this way may be non-existent. There is likely to be inconsistency in the application of the convention.
Wrecks are usually required to be removed from shallower water where the wreck constitutes a hazard to navigation. However, concern about environmental impact means that these days States often require the removal of bunkers or hazardous or potentially polluting cargo from a wreck in deeper water in the EEZ or on the Continental Shelf. If these activities might affect a historic wreck Articles 9 and 10 of the Convention will also have an impact.
Article 9(1) requires a citizen or vessel of any State Party which discovers a wreck in its EEZ or on its Continental Shelf or those of another State Party to report the discovery. Thus a Belgian national or Belgian Flag vessel doing a removal operation in Italian jurisdiction will be required to report the finding of a historic wreck. Such a report is likely to trigger the protection provisions of Article 10 if any activity poses an immediate threat to the UCH. This will involve the appointment of a Coordinating State.
In this connection Article 10(4) is far reaching. It provides that, without prejudice to the duty of all States’ Parties to protect underwater cultural heritage by way of all practicable measures taken in accordance with international law, to prevent immediate danger to the underwater cultural heritage, the Coordinating State may take all practicable measures, and/or issue any necessary authorizations in conformity with the Convention to prevent any immediate danger to the underwater cultural heritage, whether arising from human activities or any other cause. Importantly, the authorities may insist on any measures deemed necessary without prior consultation.
In taking such measures, assistance may be requested from other States Parties. Therefore the discovery of a historic wreck next to one from which a pollutant or bunkers are to be removed could cause considerable delay and expense to the contractor if he is required by the authorities to take measures to protect the underwater cultural heritage. Article 10(4) will apply in all circumstances where the UCH is affected, irrespective of whether a report has been made under Article 9(1).
What might the authorities require to be done? Obviously any answers to this question are speculative but in a climate where preservation of historic and archaeological wrecks is the norm, such measures are likely to be expensive. Adaptation of any removal plan or extraction of what may be recovered before the site is seriously damaged is at one end of the spectrum, whilst complete recovery and removal of the historic wreck lies at the other end: it is conceivable that a zealous State could well require a Contractor to undertake really substantial activity such as the complete and careful removal of a historic wreck before carrying out work on a nearby, modern wreck if it were feasible.
Whether and what permissions are required will depend upon the regulatory regime of the State in whose jurisdiction the removal operation is to be carried out. It is not safe to assume that permissions granted by one department will be valid as regards other regulatory departments. Hence it is necessary to make proper inquiries if there is any suspicion that the removal operation of whatever kind might be in an area where there is a UCH concern. Indeed, thorough investigation of the relevant UCH environment should, as a matter of course, form part of the situation analysis conducted by would-be contractors as they consider their methodology and whether or not to tender for a wreck removal, partial wreck removal or cargo or bunker recovery operation.
In an era when there is already much concern about the escalating cost of wreck removal the potential for the requirements of PUCHC to increase the complexity and duration of operations is very real with consequent increases in cost. It is a matter which will undoubtedly be of concern to shipowners and to the P&I Clubs.