• Problems Ahead: The UNESCO Convention on the Protection of Underwater Cultural Heritage
  • January 16, 2009 | Authors: John D. Kimball; Alan M. Weigel
  • Law Firm: Blank Rome LLP - New York Office
  • The United Nations Educational, Scientific and Cultural Organization (“UNESCO”) Convention on the Protection of the Underwater Cultural Heritage (“UCH”) has been  ratified by twenty States and will enter into force on January 2, 2009.  The States ratifying the Convention include: Barbados, Bulgaria, Cambodia, Croatia, Cuba, Ecuador, Lebanon, Libya, Lithuania, Mexico, Montenegro, Nigeria, Panama, Paraguay, Portugal, Romania, Saint Lucia, Slovenia, Spain and Ukraine. 

    The UNESCO Convention contains provisions that may have a significant impact on the operations of vessels flagged both by States Parties and non-States Parties:

    • The Convention broadly requires States Parties to take “all practicable measures” to ensure that their nationals and vessels flying their flag do not engage in  activities which are not in conformity with the Convention’s provisions and Rules.
    • The Convention also broadly requires States Parties to “use the best practicable means” at their disposal to prevent or mitigate activities that may inadvertently or incidentally physically disturb or otherwise damage UCH.
    • The Convention establishes broad authority to impose sanctions for violations of measures a State has taken to implement the Convention, “wherever they occur.”
    • For activities occurring within a State’s Exclusive Economic Zone, on the Continental Shelf and areas of the seabed outside of national jurisdiction, the master of any vessel flagged by a State Party who discovers or intends to engage in activities directed at UCH must report such discoveries or activities to the State Party in whose waters the activities take place.

    It remains to be seen how signatories to the Convention will implement these provisions, especially those concerning inadvertent or incidental activities affecting UCH. For example, vessels that inadvertently drag an anchor or a trawl net through a shipwreck could be at risk of sanctions. At a minimum, shipowners and managers of vessels flagged by States Parties should expect flag state inspections will include reviews of measures involving UCH activity and reports. Until some practice has been developed in this area, shipowners and managers of vessels flagged by, or operating in the jurisdiction of, States Parties should be aware of the potential risks and exercise caution when planning and conducting any underwater activities.

    The Convention also contains control-of-entry and non-use provisions that affect all vessels.

    • The Convention prohibits States Parties from permitting the entry into their territory, or the possession of UCH that was not recovered in compliance with the Convention’s provisions.
    • The Convention prohibits State Parties from permitting the use of their territory, including their maritime ports, by vessels that engaged in activity directed at UCH that was not done in compliance with the Convention.
    • The Convention authorizes the seizure of UCH found in a State’s territory that was recovered in a manner not in conformity with the Convention. 

    Accordingly, shipowners and managers of vessels involved in activities directed at UCH must be aware of which nations are States Parties when planning their vessel’s movements, including the designation of potential ports of refuge, otherwise they run the risk of inadvertently bringing their vessels within the Convention’s authority. Vessels that transport UCH artifacts, even possibly container vessels, also should be aware of the possibility of having cargo seized and sanctions imposed if they enter the jurisdiction of States Parties.

    Shipowners should consider the extent to which these requirements may affect their operations. One solution for avoiding them is to re-flag in a country which has not ratified the Convention.

    Please see the up-coming issue of Mainbrace (to be released January 2009) for a detailed article on the UNESCO Convention.