UNESCO: DRAFT CONVENTION ON
UNDERWATER CULTURAL HERITAGE
At the Executive Council meeting held in Toledo in September 2000 this UNESCO project was discussed. Patrick Griggs and Frank Wiswall reported on the background to this project and pointed out that many of the provisions in the draft convention were inconsistent with the rights of salvors under the 1989 Salvage Convention. Members of the Council were informed of the report which John Kimball of the US Maritime Law Association had prepared on this subject and Patrick Griggs drew attention to a Draft Protocol to the Salvage Convention 1989 which had been drafted by the late Geoffrey Brice Q.C. The purpose of this Protocol was to accord to items of cultural importance found beneath the sea a degree of protection but always respecting the well established law of salvage.
The Executive Council decided to invite the existing International Working Group, chaired by Professor Japikse (Netherlands) to consider the Brice Protocol and report to the Singapore Conference whether the Protocol was an appropriate way of dealing with the undoubted problem of protecting the cultural heritage without unreasonably restricting the rights of salvors. Assuming a positive report it was resolved that an International Sub-Committee would be set up to develop the Draft Protocol and explore ways of implementing it.
The text of the Draft Protocol is published below:
Draft Protocol to the Salvage Convention 1989
(on the basis of a draft prepared by the late Geoffrey Brice, QC)
THE PARTIES TO THE PRESENT PROTOCOL,
CONSIDERING that it is desirable to amend the International Convention on Salvage done at London on 28 August 1989
HAVE AGREED as follows:
For the purpose of this Protocol:
1. "Convention" means the International Convention on Salvage, 1989.
2. "Organization" means the International Maritime Organization.
3. "Secretary-General" means the Secretary-General of the Organization.
Article 1, subparagraph (a) of the Convention is replaced by the following text:
(a) Salvage Operation means any act or activity to assist a vessel or any other property (including services to or involving historic wreck) in danger in navigable waters or in any other waters whatsoever.
The following text is added as subparagraphs (c)-1 and (c)-2 in Article 1 of the Convention:
(c)-1 Historic wreck means a vessel or cargo or artefacts relating thereto including any remains of the same (whether submerged or embedded or not) of prehistoric, archaeological, historic or other significant cultural interest.
(c)-2 Damage to the cultural heritage means damage to historic wreck including damage or destruction at the salvage site of any significant information relating to the wreck or in its historical and cultural context.
The following text is added as subparagraph (k) in Article 13 paragraph 1 of the Convention:
(k) in the case of historic wreck, the extent to which the salvor has:
i) protected the same and consulted with, co-operated with and complied with the reasonable requirements of the appropriate scientific, archaeological and historical bodies and organizations (including complying with any widely accepted code of practice notified to and generally available at the offices of the Organization);
ii) complied with the reasonable and lawful requirements of the governmental authorities having a clear and valid interest (for prehistoric, archaeological, historic or other significant cultural reasons) in the salvage operations and in the protection of the historic wreck or any part thereof and
iii) avoided damage to the cultural heritage.
Article 18 of the Convention is replaced by the following text:
The effect of salvor's misconduct
A salvor may be deprived of the whole or part of the payment due under this Convention to the extent that the salvage operations have become necessary or more difficult because of fault or neglect on his part or if the salvor has been guilty of fraud or other dishonest conduct. In the case of historic wreck, misconduct includes a failure to comply with the requirements set out in Article 13 paragraph (k) or causing damage to the cultural heritage.
Article 30, paragraph 1(d) of the Convention is replaced by the following text:
(d) when the property involved is historic wreck and is wholly or in part in the territorial sea (including on or in the seabed or shoreline) or wholly or in part in inland waters (including the seabed and shoreline thereof).