1. A meeting of governmental experts was held at the Headquarters of UNESCO Paris from 29 June to 2 July 1998, to study the draft convention on the Protection of the Underwater Cultural Heritage. The meeting was organized by the Secretariat and brought together 122 experts from 58 States representing different regions of the world, as well as from the Division for Ocean Affairs and the Law of the Sea (DOALOS), Office of Legal Affairs of the United Nations; the International Maritime Organization (IMO); and observers from a non-member State, non-governmental organizations such as the Cultural Heritage Law Committee of the International Law Association (ILA), the World Underwater Federation (CMAS), the International Centre for Conservation, Rome (ICCROM), and the International Committee on Underwater Cultural Heritage of the International Council on Monuments and Sites (ICOMOS). The participants were invited to present their observations on the draft convention on the Protection of the Underwater Cultural Heritage jointly prepared by UNESCO and DOALOS, in consultation with IMO.

2. The meeting took place in two stages. On Monday 29 June 1998, a small committee composed of six Member States met in accordance with Resolution 29C/21 adopted by the twenty-ninth session of the General Conference of UNESCO (November 1997). These States (Colombia, Denmark, Mozambique, Philippines, Poland and Tunisia) had previously been proposed by the Director-General and approved by the Executive Board to constitute the core group. They elected Mr Carsten Lund (Denmark) as Chairman and Mr Maharlika Cuevas (Philippines) as Rapporteur. On the proposal of the Chairman, the participants discussed the provisions of the draft convention which they thought would require most attention in the course of the next three days: in particular, the definition of underwater cultural heritage (content, time period, concept of abandonment), the exclusion of warships, the jurisdiction of coastal States beyond the contiguous zone, and the relationship between the ICOMOS International Charter on the Protection and Management of the Underwater Cultural Heritage and the draft convention. From 30 June to 2 July 1998, the meeting was opened to all governmental experts for a more detailed examination of the draft convention to be submitted to the General Conference at its 30th session (1999).

3. In his opening statement the representative of the Director-General Mr. Mounir Bouchenaki, Director of the Division of Cultural Heritage, welcomed the participants and, in view of the severe looting of wrecks and underwater sites, stressed the urgency of adopting an international instrument designed to protect underwater cultural heritage. In his opinion, the current legal regime, as contained in particular in the United Nations Convention on the Law of the Sea 1982 (UNCLOS), did not provide sufficient protection to underwater cultural heritage. In addition, he pointed out the fact that States did not have adequate financial resources to safeguard this heritage. He also mentioned the importance of underwater archaeology as for the knowledge of the past.

4. Mr Carsten Lund (Denmark) and Ms Solange Macamo (Mozambique) were elected Chairman and Rapporteur of the meeting respectively. The representatives of Colombia, Philippines, Poland and Tunisia were elected as Vice-Chairmen.

5. After a brief introduction of the process undertaken by UNESCO leading to the draft convention, jointly submitted to the meeting by UNESCO and DOALOS, in consultation with IMO, the Chairman briefed the participants on the major issues identified during the meeting of the restricted group as requiring a thorough discussion.

7. It was pointed out that underwater cultural heritage was less well known, defined and regulated than cultural heritage on land. Some experts argued that historic wrecks should remain the property of the States in whose waters they were found so as to preserve them for the common benefit of mankind. One expert asked for the protection of the rights of indigenous peoples over their underwater cultural heritage. The general remarks were concluded by an urgent appeal from one of the participants to the group of experts for the need of transmitting underwater cultural heritage intact to future generations. In general, the experts unanimously stressed the necessity of adopting a Convention for the protection of the underwater cultural heritage. Many experts saw it as an urgent matter, while some others stressed the need for adequate time to deal with the complex issues involved.

8. The discussion of the draft convention article by article started with the definition of underwater cultural heritage . While the period of 100 years for a submerged object to be considered underwater cultural heritage was preferred by some, others recommended the adoption of a 50-year limit. Some experts proposed that 1945 be adopted as the temporal limit so as to include in the definition of underwater cultural heritage all objects from the first half of the century having a historical or archaeological value. It was pointed out that deciding how to assess this value and determining the competent authority to undertake such judgement would still be a problem.

9. After consulting the Bureau, the Chairman summarized the discussion by proposing either the adoption of a 50-year limit without the possibility for States to adopt a shorter period, or a 100-year limit allowing States to consider certain objects submerged for less than 100 years as underwater cultural heritage. This summary was accepted as the basis for future work.

10. As to the content of the concept of underwater cultural heritage, certain experts wanted to include expressly in the definition, cargoes lost at sea in general. Others felt that the definition "all traces of human existence" in Art. 1(a) was too broad. It was stressed that it would be desirable to establish a hierarchy of different cultural heritage. On the contrary, some experts wanted the definition not to be limited to human activity but to include also palaeontology. Two experts thought that the underwater cultural heritage of indigenous peoples should be included in the draft. Another expert said the draft convention should apply also to cultural landscapes.

11. After consultation with the Bureau, the Chairman asked that further work be done on the matter of cultural heritage of indigenous peoples and proposed that cargoes lost at sea be covered by the definition in Article 1(a)(i).

12. Differences of view appeared between lawyers and archaeologists regarding the concept of abandonment (Art. 2). Certain experts said that this concept did not exist in the domestic law of numerous countries, especially those in Latin America. For these reasons, some argued that the issue of abandonment should be dealt with in the context of the law of salvage.

14. One expert started the discussion on the importance of making the distinction between warships and other government ships because that issue affected the sovereign immunity of States. The same expert argued that it was very difficult to differentiate between government ships operated for commercial purposes and government ships operated for non-commercial purposes to which UNCLOS also granted immunities. These concerns were shared by another expert who spoke in favour of immunity of warships although establishing a time limitation. It was proposed that warships more than one hundred years old (several experts) or fifty (one expert and one observer) should be considered underwater cultural heritage to which the Convention would apply. According to this view, only more recent warships would benefit from immunity. Another expert, stressing that immunity was crucial, did not want a time limit. Some experts belonging to a same region declared that the exclusion of all warships from the field of application of the draft convention, together with the 100 year limit for other ships, would make the Convention meaningless in that region. Some other experts pointed out that the nationality of wrecks was often difficult to establish.

15. Some experts argued for the deletion of Article 2(2), since both the distinction between warships and commercial vessels as well as the link between historic wrecks and their States of origin were difficult to establish in practice. Article 29 of UNCLOS was mentioned as providing key elements for the definition of warships. Other experts emphasized that national legislation should have priority over the Convention and that, unless there was an express renunciation by flag States, those ships should be granted immunity. In this sense, one expert proposed that States be able to assert ownership over all their wrecks or to renounce them, regardless of how old they might be. Experts from another region claimed a special status for government ships, whose sovereign immunity should not be affected in any way by the draft convention.

16. While various experts emphasized the importance of ensuring immunity for warships and the special problem where such ships represented war graves, some experts thought that the existing international rules protected them sufficiently and did not see the need of addressing this issue again in the draft convention. In summary, two points of view were expressed: not mentioning warships in the draft convention, or setting up the conditions under which they would enjoy sovereign immunity. The Chairman suggested, as a possible compromise, that the Convention be applicable to warships and other government ships submerged for more than 100 years.

17. Many experts wanted to include in this article the principle of international cooperation mentioned in Article 13. One expert suggested to use stronger language requesting States to take all necessary measures in order to prevent commercial exploitation of underwater cultural heritage. Some experts took the view that such provision should appear in the Preamble.

20. There was broad agreement that Article 5 attempted to implement Article 303 of UNCLOS. Some experts stressed that control by a coastal State over activities on the continental shelf was a far more practical response to uncontrolled recovery than the flag state jurisdiction. On the contrary, for several participants, Article 5 amounted to the setting up of a new maritime zone and was therefore unacceptable to them since they viewed it as a revision of the regime established in UNCLOS. Two experts supported the addition of a paragraph providing for the conclusion of regional agreements for the protection of underwater cultural in enclosed or semi-enclosed seas.

23. In summary, two views were expressed. On the one side, some experts affirmed that compatibility of Article 5 with UNCLOS depended on the interpretation given to Article 303. In this sense it was recalled that although Article 303 of UNCLOS did not confer jurisdiction to coastal States for the protection of underwater archaeological heritage beyond the contiguous zone, it did not prohibit it either. On the other side, some experts contended that Article 5 was not in conformity with UNCLOS. The Chairman understood that all experts recognized the need to be imaginative in order to be able to protect underwater cultural heritage while ensuring that the draft convention is in conformity with UNCLOS.

25. One expert firmly supported the idea underlying this provision but noted that, as in the case of Article 6, its final adoption depended on the decision taken concerning Article 5. Another expert asked the Secretariat to delete the commentary on Article 7(2)(b) relating to the control exercised by the flag State in the EEZ. One expert would accept this article on condition that it was compatible with UNCLOS. Another expert noted that this article, if taken alone, would illustrate the problem of control. According to this expert it would be unrealistic to believe that a system of protection based on the flag State jurisdiction would prevent the looting of underwater cultural heritage from the continental shelf of third states. An observer emphasized the need to concentrate on practical means of control, which was the purpose of the Convention, rather than putting in place a slow and bureaucratic system.

26. Many participants pointed out that Article 8(2) was confusing and required redrafting, since, in its present form, the text would allow illegally retrieved underwater cultural heritage to enter lawfully the territory of another State. The fact that underwater cultural heritage may come from any region of the world has also to be taken into account. One expert indicated that the idea of permits for the importation of underwater cultural heritage into national territory may not be acceptable to every government.

27. Draft Article 9(1) was satisfactory to some experts; some other experts, however, suggested that the issue of jurisdiction should be resolved first. Regarding Article 10(1), one expert sought the insertion of civil penalties, while another preferred to omit the reference to criminal and administrative penalties. In Article 10(2), some experts wanted to keep only the first sentence or to retain the present drafting while replacing "This cooperation shall..." by "This cooperation may..." According to several experts, the mention of extradition (Art.10(2)) raised a difficult issue requiring careful study.

28. Some participants were of the opinion that the suggested system of notification would be too bureaucratic and were rather in favour of direct notification to a central authority (UNESCO). Another emphasized that Article 11(2) is not acceptable and impossible to apply: it is difficult to assess the interest of a State in a cultural object.

29. Article 12(1), was deemed to be confusing and it was pointed out that no mention was made of the place where the underwater cultural heritage was located. Furthermore, it was not clear whether the article was addressing only the heritage situated outside the zone of national jurisdiction of the coastal State. A clarification of the distinction made between cultural heritage (last words of Article 11(2)) and national heritage (last words of Article 12(1)) was requested as well. It was further pointed out that public benefit (Art. 12(1)) was different from the benefit of mankind (see Art. 149 of UNCLOS). One participant thought it would be difficult to reassemble a dispersed collection.

30. Concerning Article 12(2), the majority of experts agreed with its principles. One expert raised the issue of the ethical dimension of present and future knowledge of underwater remains and called for caution with respect to the notion of the commercial incentive. In this regard, such incentives as sale of television rights or paying school excursions were considered acceptable, however, such as sale of objects to finance bad excavation were not. Certain experts pointed out that commercial incentives were not totally bad. The ICOMOS observer opposed all commercial exploitation of the underwater cultural heritage as fundamentally incompatible with its preservation: trade and speculation in artefacts create urgency for excavation and hence the destruction of the heritage and its context.

31. It was further suggested that paragraph 2 of Article 12 be included in Article 7 because it related to obligations of the coastal State. Another expert proposed to bring the articles concerning the jurisdictional aspects together, to link Articles 12 and 18, and to link Articles 13 to 17 as well, in order to give the text more consistency.

33. Summing up the discussion, the Chairman emphasized that Article 12(2) was a provision which had a bearing much larger than that of 12(1). The reference to commercial incentives for the excavation of underwater cultural heritage had as its purpose to come as close to the substance of the ICOMOS International Charter as possible. He noted that there seemed to be agreement that some commercial interests in archaeology could be legitimate and that it might be useful to establish a partnership (the basis of this principle is found in Article 12(2)). Article 12(1), provides a procedure for consultations, in addition, in many countries the normal rule would be to return the object to the State where it was illegally excavated. It is important that any unilateral decision by a State Party take into account the interests of another State Party.

34. One expert, establishing a link between Articles 13, 15 and 16 (education/training), expressed the view that the transfer of technology, already existing on an informal basis, should be institutionalized. Experts of several countries and the ICOMOS observer said that such cooperation should not be optional (paragraph 1) but mandatory. This obligation should, moreover, relate to discoveries both within but also outside the contiguous zone of 24 miles (the coastal State should cooperate with the other States concerned in the discovery). For another expert, the mandatory exchange of information provided for in this article might lead to disputes when the interest in a given heritage is shared by several countries. In this respect, one expert requested clarification regarding the scope of applicability of Article 13(1) since its application to the territorial sea would be a potential source of conflict. As to Article 13(2), the information process should be constructed differently so that every discovery be declared to UNESCO which would then inform the States.

35. Several experts recalled that one of the most important aspects in this draft convention was protection which, at its best, might well mean to leave the heritage where it was. However, such solution was not foreseen by Article 149 of UNCLOS. One expert expressed the view that removal and publicity should be carried out in accordance with Article 303(1) of UNCLOS in such a way that protection would become the first priority in any cooperation.

36. In his summary of the discussion on Article 13, the Chairman pointed out two important questions: did Article 13(1) apply only outside the territorial sea? and was the procedure for notification mandatory or optional?

38. With respect to the issue of notification, some participants questioned the relevance of the International Seabed Authority (ISA) whose principal task was prospecting, exploration, and the future exploitation of deep seabed resources. They considered that ISA already had too many responsibilities and did not benefit from archaeological expertise. Another view was that both UNESCO and ISA mechanisms could be used; in the case of ISA, it could be done through the mining code which was being developed and would be mandatory for all contractors (the present draft mining code requires notification of archaeological finds once a year). Several participants stressed the need for close cooperation between UNESCO and ISA, as well as the urgent need for cooperation among States to protect the underwater cultural heritage. It was also proposed to include the following points into any provision concerning the Area: underwater cultural heritage in the Area belongs to humanity; international cooperation should be increased through international organizations endowed with sufficient means; and every excavation should be authorized and supervised by international organizations, e.g. through a permit by UNESCO.

39. Following discussion on Articles 13 and 14, numerous experts and observers reflected on the need for adequate administrative structures, especially in connection with ISA.

40. One expert considered that Articles 13 and 14 were linked to Article 12 which raised the controversial question of the sale of underwater cultural heritage. In his opinion, only developed countries had sufficient resources to enforce the prohibition of sale. The least developed States would not be able to protect the heritage and prevent its commercialization.

41. Articles 15 and 16 were considered by many as crucial, particularly owing to the lack of specialized archaeologists, technicians, as well as resources for their training in a number of developing countries. It was pointed out that the draft Article 15 was too limited and that it should cover education, training and public awareness. Furthermore, some participants called for national information campaigns. One expert was of the opinion that States should also endeavour to prevent dissemination of deceptive scientific research incompatible with scientific principles. The interdisciplinary nature of research was highlighted and a view was expressed that education referred to archaeology as a university subject, and training , in contrast, to technical training.

42. In connection with Article 16, some stated that States, being not necessarily under the obligation to provide a training in archaeology, ought to take all steps to encourage it (Art. 16). In some States, training schemes had turned some former looters into allies and protectors. Mention was made of the excellent training course for amateurs by the Nautical Archaeology Society of the United Kingdom and of training model already prepared by the group on physical and chemical techniques used in archaeology, as part of the scientific action of the Commission of Science and Technology of the Council of Europe. The ICOMOS expert called for education to be undertaken at many levels: resource managers; the public at large; as well as local groups assisting in protection. The ICCROM observer noted the importance of developing an awareness of conservation in training. Recovery should be attempted only after proper evaluation of the conservation needs of found items.

43. It was also proposed to incorporate into Article 16 the idea of international cooperation and transfer of technology. One expert stressed the need to protect wrecks at the international level when budgetary means do not permit this at the local level.

44. In his summary of the discussion of Article 15, the Chairman said that it should be redrafted to make more apparent the role of the public. The discussion on Article 16 revealed a consensus with respect to the needs for archaeological training, international cooperation in such training and for transfer of technology.

45. The experts considered the standards established by the ICOMOS International Charter and the method of integrating it within the text of the Convention. One possibility was to attach the Charter as an annex to the Convention. Some experts voiced preferences for an Annex without much detail and not requiring major amendments. The other possibility was to include the operative principles of the Charter in the text of the Convention, especially in view of the fact that the Charter as a whole has non-legal and non-obligatory character and that many of its provisions were not only too detailed but were already reflected in the draft convention.

46. It was further stated that the instrument should be flexible enough to allow for future developments. This could be achieved by different means: by providing for a different amendment procedure for the Charter, less rigid than that for the Convention; by stipulating that a group of experts would meet annually to propose amendments to be submitted to States Parties; or by enabling a regular meeting of States Parties to consider every five years developments and propose amendments. Some experts favoured a streamlined procedure without much bureaucracy. Two experts were of the view that the persons chosen for the group of experts would have to be official representatives of the States Parties. Two experts preferred strengthening the silent procedure of Article 24(2); one expert noted that 24(2) could create problems if some States accept and others reject the amendments.

47. The IMO representative described the amendment procedure used for the International Convention for the Safety of Life at Sea 1974 (SOLAS) and the International Convention for the Prevention of Pollution from Ships 1973/78 (MARPOL) where all States Parties are invited to take part, and the proposed amendments are adopted by IMO. In the case of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (London Convention), scientists draft the amendments which are considered for adoption every second year by the meeting of States Parties. The ICOMOS observer proposed that the ICOMOS specialist committee be responsible for the permanent follow-up of the Charter and for the drafting of amendments which would be adopted by the General Conference of UNESCO.

48. While the experts were in favour of the provisions of the Charter including the provision concerning prohibition of commercial incentives, one observer said that national legislation of his State would allow recovery by commercial entities. Others proposed adding to the Charter rules on management such as impact assessment and rules for mitigation of impact.

50. Several experts expressed their wish not to rush the drafting of this new instrument. However, experts from one regional group as well as some others insisted on several occasions that the adoption of such an instrument was a matter of urgency.

XXII - Relationship to the International Salvage Convention 19897/

51. The IMO observer explained that the Salvage Convention is a private law Convention and its objectives are very different from those of this draft, which deals with international public law. The Salvage Convention should not, therefore, apply to historic wrecks. At the time of drafting of the Salvage Convention, some States required, for constitutional reasons, a provision expressly allowing for reservation in respect of historic shipwrecks. So far, eleven of the twenty-five States Parties have made this reservation. The majority of States also declared that any State, whether or not it made a reservation, would be entitled not to apply the Salvage Convention to historic wrecks.

52. Certain experts wanted the discussion to be focused on the issue of protection of the heritage and not on that of the sovereignty and interests of each State. The Chairman noted the general desire of the meeting to conclude a Convention as rapidly as possible in view of the non-renewable nature of the underwater cultural heritage and the looting occurring on a daily basis. The discussions identified possible areas of agreement, as well as certain problems still pending. There was unanimous agreement on the need of a second and possibly even a third meeting of experts as soon as possible. The Chairman anticipated that a second meeting of experts could be convened for more than three days prior to the General Conference in October 1999.