- Underwater cultural heritage
Convention on the Protection of the Underwater Cultural Heritage
3.1The Convention on the Protection of the Underwater Cultural Heritage (UCH Convention) is the first comprehensive treaty on underwater cultural heritage (UCH). Key elements include the protection and preservation of UCH that has been underwater continuously or periodically for at least 100 years, preferably in situ (in the original place) including through the cooperation between States Parties. The UCH Convention encourages States Parties to sign up to bilateral, regional, or multilateral agreements on UCH and adopt rules and regulations to ensure its protection. The UCH Convention contains provisions relating to public awareness of UCH, education, research, training in underwater archaeology, and the exchange of technology. Further, the UCH Convention contains an Annex of Rules concerning activities directed at UCH (Annex Rules).
Background
Australia’s role in the adoption
3.2The UCH Convention was adopted on 2 November 2001 and entered into force on 2 January 2009. The UCH Convention’s depository is the Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO). As of 27 January 2023, the UCH Convention has 72 States Parties.
3.3Australia was involved in negotiations for the UCH Convention and in developing the text. The Australian Underwater Cultural Heritage Intergovernmental Agreement 2010 (UCH Agreement) notes that Australia supported the drafting and final form of the UCH Convention as well as the principles in the annex to the UCH Convention.
3.4Dr Andrew Viduka has published on Australia’s involvement with the drafting of the UCH Convention. Dr Viduka noted that ‘many people throughout Australia, including Australian Government officers, by their actions, publications and research, have encouraged improvements to Commonwealth legislation in Australia and consideration for ratification.’
3.5Evidence to the inquiry also noted the involvement of Australia in the development of the UCH Convention.
Australia’s prominence in the field
3.6In addition to Australia’s role in developing the UCH Convention, Australia has been said to be a leader in the field. UCH in Australia comprises that derived from Aboriginal and Torres Strait Islander peoples (as discussed below), as well as UCH from Australia’s military and colonial history. The Australasian Underwater Cultural Heritage Database contains historical and environmental information regarding underwater heritage sites located in Oceania and Southeast Asian regions, for example shipwrecks, sunken aircraft, and other types of underwater heritage sites. This database is the register for protected UCH pursuant to the Underwater Cultural Heritage Act 2018 (Cth) (UCH Act) outlined below. It also serves as an avenue for the public to submit notifications and permit applications under the UCH Act.
3.7Dr Andrew Viduka and Mr Grant Luckman explained that ‘Australia is one of few countries in the world that actively manages artifacts in public possession that were removed from shipwreck sites prior to their declaration as protected.’ Dr Viduka and Mr Luckman further state that Australia is also ‘one of few countries in the world to have conducted a national amnesty … for [UCH] artifacts recovered by the public prior to their declaration of protection’.
3.8Inquiry submissions acknowledged Australia as a leader in the field of UCH. In terms of the quantity of UCH in Australia, the Queensland Heritage Council submitted that there were ‘8000 wrecks throughout Australian waters that have come into existence … including over 1800 in Queensland’s waters, which relate to our ongoing maritime and underwater cultural heritage.’
3.9At the public hearing, Mr Graeme Henderson, former Director of the Western Australian Maritime Museum, noted that ratification would be ‘a wonderful opportunity for Australia to really lead the world.’ The Department of Climate Change, Energy, the Environment and Water (DCCEEW) similarly told the Committee that ratification would ‘position Australia to be well placed within the Indo-Pacific region to show leadership, exchange knowledge and do capacity building training in maritime archaeology, maritime archaeological conservation of sites and artefacts and [UCH] management.’
Existing legal framework
Domestic laws and policy
3.10In Australia, the UCH Act, which replaced the Historic Shipwrecks Act 1976 (Cth) to align Commonwealth legislation with the UCH Convention, contains a framework for the protection and management of Australia’s UCH. The UCH Act is now administered by DCCEEW. The Australian Underwater Cultural Heritage Compliance Strategy, sets out key elements of the Department’s approach to achieving compliance with respect to the UCH Act. The operational guidelines inform the day-to-day operation of Australia’s UCH program.
3.11Further, the Australian Heritage Strategy considers ways in which Australia’s heritage sites can be better identified and managed to ensure their protection. Objective 5 supports improving heritage policy and process alignment across all levels of government. One of the proposed actions of this strategy is to ratify the UCH Convention.
3.12The Commonwealth is responsible for UCH in Commonwealth waters and shipwrecks in coastal waters. It is the responsibility of the states and the Northern Territory to manage all UCH in their coastal waters and all waters landward of the territorial sea baseline, aside from shipwrecks. These responsibilities were clarified in the UCH Agreement and the UCH Act.
3.13The UCH Agreement ‘establishes roles and responsibilities for the identification, protection, management, conservation and protection’ of UCH. The UCH Agreement commits states and the Northern Territory to ensuring that their legislation is compatible with amended Commonwealth legislation. Further, through the Australian Historic Shipwrecks Program, the Australian Government works with the states, Northern Territory, and the Norfolk Island government agencies to jointly administer and manage UCH located adjacent to coasts.
3.14Inquiry submissions noted that the UCH Convention generally aligns with Australia’s domestic legislation as outlined in the UCH Act. At the public hearing, DCCEEW clarified that the UCH Act ‘broadly aligns with the convention’ and added that ‘[w]e require enabling provisions to be put in, so there is drafting required … and the introduction of new legislation’.
International law
3.15As noted, the UCH Convention is the first comprehensive treaty on UCH. Prior to the UCH Convention, international laws relating to UCH were not as comprehensive nor clearly set out. The United Nations Convention on the Law of the Sea (UNCLOS) addresses the protection of UCH but does not provide the detail of the UCH Convention, rather it points to a future agreement on the topic that would clarify the area.
3.16UNCLOS provides a ‘comprehensive regime of law and order in the world’s oceans and seas’ and flags a future treaty on UCH in article 303(4). UNCLOS was not intended to be the only convention in oceans and seas governance, but rather to provide a general framework. At the public hearing, DCCEEW said that ‘UNCLOS does not set out a comprehensive regime for the protection of underwater cultural heritage and therefore expressly allows for a more specific international agreement.’
3.17Inquiry submissions noted that the UCH Convention builds on UNCLOS and provides necessary details relating to UCH.
3.18In outlining its measures to protect UCH, the UCH Convention refers to various maritime boundaries to define the actions that are to be taken in each area by States Parties. These boundaries are in alignment with UNCLOS. For example:
- Territorial sea baseline: This is a line from which maritime zones are measured. The type of baseline depends on the shape of the coastline in a location. UNCLOS defines baselines as generally ‘the low-water line along the coast as marked on largescale charts officially recognised by the Coastal State.’
- Internal waters: These are waters on the landward side of the baseline of the territorial sea.
- Coastal waters: This is a belt of water between the limits of the Australian states and the Northern Territory and three nautical miles seaward of the baseline of the territorial sea.
- Territorial sea: Belt of water that does not exceed 12 nautical miles in width when measured from the baseline of the territorial sea. Australia has sovereignty over the territorial sea, the associated seabed, subsoil, and the airspace. Foreign ships have a right of innocent passage in this area.
- Contiguous zone: This is a belt of water that is contiguous to the territorial sea with an outer limit that does not exceed 24 nautical miles when measured from the territorial sea baseline. Australia has some control over the contiguous zone, namely, to prevent and punish instances where there is an infringement of laws, such as customs, fiscal, immigration or sanitary laws and regulations in Australia’s territory or territorial sea.
- Exclusive economic zone (EEZ): This is an area that is beyond and next to the territorial sea zone. The EEZ extends 200 nautical miles from the territorial sea baseline. Australia has sovereign rights in the EEZ to explore, exploit, conserve and manage all natural resources in waters that are superjacent to the seabed and of the seabed and its subsoil.
- High seas: This area is beyond the zones listed above, defined in UNCLOS as ‘all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a state, or in the archipelagic waters of an archipelagic state.’
- Continental shelf: This is an area of the seabed and subsoil extending 200 nautical miles beyond the territorial sea baseline and beyond to the outer edge of the continental margin (known as the extended continental shelf). Australia has sovereign rights in this area which means that Australia can exploit and explore minerals and other non-living resources that exist in the seabed and subsoil and can do the same with sedentary organisms in this area. Australia can also conduct marine scientific research in this area.
- The Area: This is the international seabed and ocean floor and subsoil beyond the limits of national jurisdiction. The Area and its resources constitute the ‘common heritage of [human]kind’. UNCLOS states that the resources in the area are ‘vested in [human]kind as a whole’.
Source: Geoscience Australia
Reasons cited for ratification
Clarification of the law
3.19The Australian Government has said that ‘[i]n ratifying the Convention, Australia would embrace a contemporary, internationally consistent standard for collaboration and communication to protect UCH.’ The Australian Government further noted that the Annex Rules are consistent with best practice maritime archaeology and UCH management. The National Interest Analysis (NIA) explained that if Australia ratified the UCH Convention, it would be able to use the Annex Rules ‘as a common, effective professional guideline on how to intervene in, and research, UCH.’ The NIA further stated that the Annex Rules would be used to develop uniform national standards that would set out the responsibilities of different groups and individuals with respect to activities in the marine environment.
3.20Inquiry submissions noted that the UCH Convention provided clarification on interactions with UCH. As noted by the Sydney Project, this clarity responds to ‘[a]mbiguity around what constitutes underwater cultural heritage’.
3.21At the public hearing, the Sydney Project reiterated that the UCH Convention provides clarity and also guidance. They explained that ‘[w]hen the convention came up, it … really advocated for more open communication, not just with our group but with other groups as well, with regard to how we can find information, share knowledge, get our findings to government for the benefit of museums and everybody else’.
Harmonisation of legal regimes
3.22The Australian Government has noted that ratification of the UCH Convention would provide an opportunity to ‘harmonise legal regimes’ in Australia relating to the protection of UCH. The NIA said that ‘[r]atification would also facilitate the full alignment of our domestic laws with international standards governing the protection of UCH, bolstering Australia’s governance and protection of UCH.’
3.23As noted in the NIA, UCH is collaboratively protected and managed in Australia by the Commonwealth, states, and Northern Territory. This is outlined in the UCH Agreement which has the intention to ‘meet international best practice management of Australia’s underwater cultural heritage as outlined in the Rules in the Annex to the [UCH] Convention’. The NIA further noted that the UCH Act aligns Commonwealth legislation with the UCH Convention.
3.24Mr Scott Wyatt, a echnical diver, submitted that ratification would ‘help ensure a degree of harmony between the relevant state and federal legislation and with wreck site management plans’. At the public hearing, the Western Australian Department of Local Government, Sport and Cultural Industries said, ‘I think one of the benefits of the ratification is that it does bring another layer of harmonisation … the more closely we can harmonise under the convention the better’.
Development of international law
3.25The Australian Government noted that UNCLOS obliges states to cooperate to protect archaeological and historical objects found at sea. However, as has been noted, UNCLOS does not set out a comprehensive regime to provide protection. The NIA explained that ‘[b]y contrast, the [UCH] Convention clearly articulates the practical mechanisms of protection, cooperation and information sharing required to globally elevate the protection of UCH to its equivalent on land.’ With respect to existing international law, the NIA further noted that ratification would have no impact on treaties in relation to UCH that are already in existence.
3.26At the public hearing, Professor Craig Forrest, Director of the Marine and Shipping Law Unit at the University of Queensland, confirmed that ‘the Convention on the Law of the Sea, to which Australia is a party, requires us to protect underwater cultural heritage. This convention is mainly the extension of that existing international engagement.’
Technological advancement
3.27Technological advancement has made UCH more accessible, but also more at risk of damage. New technologies can be used in the sharing of the location of UCH and assist in its preservation. Technological developments are highlighted in the NIA, with the Australian Government noting that the UCH Convention encourages States Parties to enter into agreements to manage UCH cooperatively. The NIA stated this is ‘increasingly important as technological developments during the 20th century have facilitated access to the seabed, which has resulted in unprecedented destruction of this UCH.’
3.28Inquiry submissions noted the role of emerging technologies and the increasing ability to access UCH, rendering UCH vulnerable to exploitation. At the public hearing Professor Craig Forrest noted that ‘technology has allowed various entities to come into contact with underwater cultural heritage—either intentionally, because that's what they're looking for, or unintentionally, because they're in exploration for mining interests.’
International co-operation and information sharing
3.29The importance of cooperation to the UCH Convention was outlined by the Australian Government in the NIA, which noted the UCH Convention ‘clearly articulates the practical mechanisms of protection, cooperation and information sharing required to globally elevate the protection of UCH to its equivalent on land.’
3.30The Australian Government further stated that cooperation through ratification of the UCH Convention ‘would … better position Australia to share its rich knowledge base around maritime archaeology and the protection of UCH, and advocate for increased protection of UCH globally.’
3.31The NIA noted that the UCH Convention encourages agreements between States Parties ‘to ensure that UCH is managed cooperatively and appropriately’. However, the UCH Convention does not outline a process for negotiating further annexes or a protocol to the UCH Convention.
3.32DCCEEW confirmed at the public hearing that ratification would ‘enable effective international cooperation on the subject matter of underwater cultural heritage’.
Protection in the exclusive economic zone and on the continental shelf
3.33The Australian Government outlined that the UCH Convention ‘provides a legal basis for Australia to protect UCH beyond its territorial sea and contiguous zone, out to its EEZ and continental shelf, from actions inconsistent with international law and Australia’s domestic legal regime.’ The NIA explained ‘Australia currently has limited enforcement powers over foreign nationals and vessels’ in the protection of UCH in its EEZ.
Protection beyond Australia’s jurisdiction
3.34The UCH Convention would enable Australia to be involved in the protection of UCH outside of its own jurisdiction. To this end, the Australian Government noted ‘Australia has significant UCH located in the waters of other countries, including sovereign vessels from the First World War and Second World War’. However, the UCH Convention only applies to sites that have been underwater continuously or periodically for at least 100 years, therefore the World War II relics would not currently be covered by the UCH Convention.
3.35According to the NIA, Australian UCH sites are or are potentially located in Egypt, Indonesia, Libya, Papua New Guinea, the Philippines, Solomon Islands, Sri Lanka, Timor-Leste, Turkey, the Federated States of Micronesia, Malaysia, the Republic of Korea, and Vietnam. The NIA stated that ‘[t]aking into account lost vessels carrying Australian Prisoners of War, lost military aircraft, merchant navy ships, merchant vessels and passenger vessels, the list of countries that have Australian UCH in their waters increases significantly.’ As noted by the Australian Government however, not all of the countries where Australian UCH is located have ratified the UCH Convention.
Human remains
3.36The UCH Convention respects human remains in maritime waters. The NIA noted that through ratifying the UCH Convention, Australia would ‘demonstrate, both domestically and internationally, the value Australia places on UCH, including the associated remains of Australia’s military personnel.’
3.37DCCEEW told the Committee at the public hearing that there were considerable human remains in World War II shipwrecks that had been looted in the South China Sea, advising that‘[i]n 2017 it was reported that ships in this area which contain the remains of approximately 4½ thousand Australian, British, American, Dutch and Japanese servicemen have been impacted.’DCCEEW confirmed they meet regularly on an as-needs basis with the Department of Veterans’ Affairs and the Royal Australian Navy Sea Power Centre.
Public awareness and education
3.38Awareness and education are raised in the NIA as key elements of the UCH Convention. The Australian Government said ‘[e]ducation is one of the main methods through which the Convention seeks to facilitate the protection of UCH, with States Parties required to raise public awareness about UCH and cooperate in training in conservation techniques’. The NIA noted that cooperation and sharing of best practices among States Parties would benefit Australian universities.
3.39At the public hearing DCCEEW clarified that ‘[t]hrough increased cooperation with state parties to the convention, Australian universities will benefit and be more competitively positioned to attract international students and deliver world-leading best practice education.’
Research value
3.40The Australian Government noted that the Annex Rules provide an ‘effective professional guideline’ on how to (among other objectives) research UCH. The NIA noted that a number of journal articles have been published by researchers in the area of UCH, which are supportive of Australia’s ratification.
3.41More broadly, the International Committee on the Underwater Cultural Heritage (ICUCH) reflected on the valuable research derived from UCH, stating ‘‘[i]ncreasing responsible, respectful treatment of this important source of information about our collective past opens up many areas of valuable research into the history of commerce, defence, evolution of technology and individual achievements.’
Further benefits
3.42Further benefits of ratification include the potential assistance with criminal investigations in relation to UCH and economic benefits from tourism, which were noted by submitters.
Key provisions in the UCH Convention
Future generations and cultural heritage of humanity
3.43The UCH Convention notes ‘the importance of underwater cultural heritage as an integral part of the cultural heritage of humanity and a particularly important element in the history of peoples, nations, and their relations with each other concerning their common heritage’. Commencing the UCH Convention in this way frames its subsequent provisions as being in the pursuit of this acknowledgment.
3.44From an overarching sense of the significance of UCH to a more concrete goal, the preamble notes that States Parties act ‘[r]ealizing the importance of protecting and preserving’ UCH. In practical terms, the UCH Convention was developed with a view that UCH is threatened by unauthorised activities and there is therefore the need for stronger measures to prevent these actions. The preservation of UCH is a key component of the UCH Convention, with States Parties required to ensure its preservation in situ of UCH as the first option. When UCH is recovered it is to be ‘deposited, conserved and managed in a manner that ensures its long-term preservation.’ Thus in both instances preservation is the priority.
3.45States Parties must individually or jointly take all appropriate measures in conformity with the UCH Convention and international law to protect UCH, using the best practicable means at their disposal. States Parties must also use the best practicable means to prevent or mitigate the adverse effects from activities under its jurisdiction that incidentally affect UCH.
3.46Consistent with the UCH Convention, inquiry submissions recognised the value of UCH to future generations.
Definition of underwater cultural heritage
3.47The clarification and expansion of the law relating to UCH in the UCH Convention includes providing a definition of UCH, as ‘all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years’. This focus on ‘at least 100 years’ means that as of 2022, UCH from World War II and more recent wars, including those Australia has been involved in regionally such as Korea and Vietnam would not fall under the terms of the UCH Convention at this time.
3.48Examples of UCH provided for in the UCH Convention include ‘sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context’, in addition to ‘vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context’, and ‘objects of prehistoric character’.
3.49Professor Craig Forrest has published on issues relating to the UCH Convention’s definition of UCH. Professor Forrest noted that ‘the definition of what is to be protected lacks some clarity’. Professor Forrest however conceded that the definition ‘generally provides a sufficiently wide net to catch the most of what is regarded as archaeologically and historically valuable that is found beneath the oceans.’ Professor Forrest has also pointed out in his research the difficulties with the 100-year period in the UCH Convention. He said, ‘it is not entirely clear from which point this time period is measured.’ He went on to explain that ‘[a]s one of the aims of the Convention is to promote in-situ preservation, it may be presumed that this should be calculated from the time that any activity directed at the underwater cultural heritage is contemplated, and not merely from the time of discovery.’
3.50Mr Scott Wyatt in his submission noted the relevance of the 100-year definition, explaining that ‘although the Convention applies to cultural heritage at least 100 years old, jurisdictions, in the spirit of the Convention, should be encouraged to protect, if not doing so already, more recent, historically significant sites’.
Preservation in situ
3.51As noted above, the UCH Convention requires that preservation of UCH in situ is the first option before allowing or engaging in activities directed at the site. The Annex Rules further provide requirements, again noting that UCH must be preserved in situ as a first option. This means that the preference is for UCH to remain in place rather than to be extracted and preserved, which while possible is not the first option.
Domestic measures
3.52The UCH Convention provides that States Parties must ‘individually or jointly as appropriate, take all appropriate measures in conformity with this Convention and with international law that are necessary to protect underwater cultural heritage’. In line with this, if Australia ratifies the UCH Convention, Australia’s laws and practice should be in alignment with the provisions of the UCH Convention to protect UCH.
Existing international law
3.53The preamble to the UCH Convention notes that States Parties act realising that there is a need to codify and develop rules relating to UCH in conformity with international law. This is connected to article 2(4) of the UCH Convention which, as identified above, requires States Parties to take all appropriate measures individually or jointly in conformity with the UCH Convention and international law to protect UCH.
3.54Article 3 of the UCH Convention outlines the relationship of the UCH Convention with UNCLOS, noting that ‘[n]othing in this Convention shall prejudice the rights, jurisdiction and duties of States under international law, including the United Nations Convention on the Law of the Sea.’ Further, in terms of international law more generally, the UCH Convention is to be interpreted and applied consistent with international law including UNCLOS. Article 6(3) of the UCH Convention notes that the UCH Convention does not alter the rights and obligations of States Parties in relation to sunken vessels with respect to other bilateral, regional, or multilateral agreements.
3.55The UCH Convention also provides for the protection of sovereignty. The UCH Convention notes that no act or activity undertaken pursuant to this Convention will constitute grounds for claiming, contending, or disputing any claim to national sovereignty or jurisdiction. Further, warships and other government ships or military aircraft with sovereign immunity that are operated for non-commercial purposes are not obligated to report discoveries of UCH, however States Parties are to ensure that they comply as far as reasonable and practicable with the relevant provisions of the UCH Convention relating to reporting UCH. Reporting obligations are discussed further below.
Advancement of technology
3.56The preamble to the UCH Convention notes that States Parties are ‘[a]ware of the availability of advanced technology that enhances discovery of and access to underwater cultural heritage’. Other sections of the UCH Convention note the relevance of technology in UCH, such as article 19(2) where States Parties undertake to share ‘pertinent scientific methodology and technology’. Further, article 21 requires States Parties to cooperate with respect to the transfer of UCH technology.
Protection from exploitation
3.57The provisions of the UCH Convention focus on protecting UCH from exploitation, as noted in the preamble, whereby States Parties express concern as to the ‘increasing commercial exploitation of underwater cultural heritage, and in particular … activities aimed at the sale, acquisition or barter’ of UCH. The UCH Convention further provides that UCH must not be commercially exploited.
3.58Rule 2 also notes that commercial exploitation of UCH is prohibited.It provides that ‘[t]he commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage.’ This means that UCH cannot be ‘traded, sold, bought or bartered as commercial goods.’ This ‘commercial exploitation’ does not include professional archaeological services and the deposition of UCH recovered during a research project.
International cooperation and information sharing
3.59The preamble to the UCH Convention notes that it is essential for the protection of UCH that there be ‘cooperation among States, international organizations, scientific institutions, professional organizations, archaeologists, divers, other interested parties and the public at large’. The preamble further notes that states are the primary cooperative entities under the UCH Convention, with States Parties ‘[r]ealizing the importance of protecting and preserving the underwater cultural heritage and that responsibility therefor rests with all States’.
3.60The UCH Convention starts by outlining that ‘States Parties shall cooperate in the protection of underwater cultural heritage.’ The UCH Convention then reiterates that States Parties must cooperate and assist one another in the protection and management of UCH. Where practicable, States Parties are to collaborate in investigations, excavation, documentation, conservation, study, and presentation of UCH.
3.61States Parties are encouraged to enter bilateral, regional, and other multilateral agreements to preserve UCH. The UCH Convention also provides for meetings of States Parties and the peaceful settlement of disputes, both of which are collaborative measures contained in the UCH Convention.
3.62States Parties undertake to share information with each other on UCH which includes the discovery and location of UCH, and UCH excavated or recovered contrary to the UCH Convention or international law. States Parties must also share scientific methodology and technology, and legal developments relating to the UCH. This information shall be kept confidential (where compatible with national legislation) and reserved to competent authorities of States Parties where disclosure might put at risk preservation.
3.63States Parties must take all practicable measures to disseminate information, including where feasible through international databases, about UCH excavated or recovered contrary to the UCH Convention and international law. The Rules note that international cooperation regarding activities directed at UCH are to be encouraged, including the exchange or use of archaeologists and other professionals.
3.64At the public hearing, the Australasian Institute for Maritime Archaeology (AIMA) expressed a view that ratification would open ‘new international cooperative opportunities with other states, particularly where we have shared heritage.’
Techniques and methods
3.65Pursuant to the UCH Convention, activities directed at UCH must not adversely affect UCH more than is necessary for the project objectives. Non-destructive techniques and survey methods must be preferred in activities directed at UCH, including as far as possible as part of necessary excavation and recovery of UCH for scientific study or protection. These methods must contribute to the preservation of the remains.
3.66The Rules state that regulations must be put in place to ensure that when activities are directed at UCH there is a recording of cultural, historical, and archaeological information. Further, the methodology must comply with the project objectives, and the techniques used are to be as non-intrusive as possible.
Human remains
3.67Respect for human remains located in maritime waters is required by States Parties under the UCH Convention. Further, the Annex Rules note that when activities are directed towards UCH, they must avoid the unnecessary disturbance of human remains or venerated sites.
Public access
3.68States Parties act ‘[c]onvinced of the public’s right to enjoy the educational and recreational benefits of responsible non-intrusive access to in situ underwater cultural heritage, and of the value of public education to contribute to awareness, appreciation and protection of that heritage’. The UCH Convention provides that ‘[r]esponsible non-intrusive access to observe or document in situ underwater cultural heritage shall be encouraged to create public awareness, appreciation, and protection of the heritage except where such access is incompatible with its protection and management.’ This is affirmed by the Annex Rules, which subject to the same exception, require public access to UCH in situ be promoted.
Requirements in specific maritime areas
Internal waters, archipelagic waters, territorial sea and contiguous zone
3.69States Parties have the exclusive right to regulate and authorise activities that are directed at UCH in their internal and archipelagic waters and territorial sea. States Parties must require the Annex Rules be applied to any activities directed towards UCH in these areas.
3.70In a state’s archipelagic waters and territorial sea, States Parties should inform the flag State Party and other states with a link (cultural, historical, or archaeological) when there is a discovery of an identifiable state vessel or aircraft.
3.71States Parties can regulate and authorise activities directed at UCH in their contiguous zone but must require that the Annex Rules are applied.
Exclusive economic zone and on the continental shelf
Reporting and notification
3.72The UCH Convention provides for rules relating to the protection of UCH in a State Party’s EEZ and on the continental shelf. Pursuant to the UCH Convention, it is the responsibilities of States Parties to protect UCH in their EEZ and on the continental shelf. A State Party must require that when its national or a vessel flying its flag discovers UCH or intends to engage in activities directed at UCH in its EEZ or continental shelf they must report the discovery or activity.
3.73Further, States Parties must require their nationals or vessels in another State Party’s EEZ or continental shelf to report a discovery or activity to their own state and to the other State Party, or alternatively they can report the discovery or activity to their own state who will communicate the report to other States Parties. States Parties must declare which manner of reporting they will undertake when they deposit their instrument (of ratification in the case of Australia).
3.74States Parties must also notify the Director-General of UNESCO of discoveries and activities. The Director-General will then provide this information to States Parties.
3.75A State Party can declare to another State Party if there is UCH in the other state’s EEZ or continental shelf, an interest in being consulted as to the effective protection of that UCH. There must be a verifiable link, for example cultural, historical, or archaeological.
Protection of underwater cultural heritage
3.76A State Party with UCH in their EEZ or continental shelf can prohibit or authorise any activity directed at the UCH to stop interference with the country’s sovereign rights or jurisdiction. Upon discovery of UCH in a State Party’s EEZ or continental shelf, or when an activity is intended to be directed towards UCH in a State Party’s EEZ or continental shelf, the State Party must consult with all other States Parties with a declared interest on how to protect the UCH. The State Party must also coordinate these consultations unless it does not want to do so, in which case another state with a declared interest will be appointed.
3.77The coordinating state may take all practicable measures to prevent immediate damage to the UCH including from human activities or another cause, such as looting. Assistance can be requested from other States Parties. The coordinating state must implement protection measures agreed by the consulting states and issue necessary authorisations for such agreed measures.
3.78Necessary preliminary research on the UCH may also be conducted by the coordinating state. They must inform the Director-General of UNESCO of the results of the research who will notify the States Parties.
3.79The coordinating state must act on behalf of all States Parties, not just in its own interests. No activity can be directed against state vessels and aircraft without the agreement of the flag state and without the coordination of the coordinating state.
The Area
3.80States Parties must require that a national or vessel flying their flag report discoveries of UCH and report intentions to engage in activities directed at UCH in the Area. States Parties shall then notify the Director-General of UNESCO and the Secretary-General of the International Seabed Authority of this discovery or activity, and the Director-General will then notify all States Parties. If a State Party has a verifiable link to the UCH, such as preferential rights of states of cultural, historical or archaeological origin, that State Party may declare to the Director-General its interest in being consulted on how to ensure the effective protection of the UCH.
3.81To protect UCH in the Area, the Director-General of UNESCO will invite all States Parties who have declared an interest in the UCH in that location to consult on its protection and to appoint a State Party to coordinate the consultations. The Director-General will also invite the International Seabed Authority to participate.States Parties may take all practical measures before consultations to avoid immediate danger to the UCH.
3.82The coordinating state will coordinate consultations, take agreed measures of protection, and issue authorisations for such measures, and may conduct any necessary preliminary research on the UCH. In doing so, the coordinating state will act for the benefit of humanity as a whole, on behalf of all States Parties. Particular regard will be given to the preferential rights of states, in relation to the UCH in question, of cultural, historical, or archaeological origin. Further, no State Party can undertake or authorise activities that are directed at state vessels or aircraft in the Area unless the flag state gives consent.
3.83Inquiry submissions, noted the value of the UCH Convention in ensuring the protection of Australian UCH outside of its jurisdiction, specifically the declaration of interest and consultation provisions. ICUCH said that ‘Australian shipwreck property … in international waters is currently vulnerable … Commercial salvage and dispersal of Australian underwater cultural heritage … has, taken place without any reference to Australia.’
Other State Party obligations
3.84In terms of further obligations relating to territory, States Parties must prevent entry into their territory, as well as the dealing in and possession of UCH that is illicitly exported and/or recovered when its recovery was contrary to the UCH Convention.
3.85The UCH Convention further requires States Parties to prohibit the use of their territory in support of any activity directed at UCH not in conformity with the UCH Convention. States Parties must take all practicable measures to ensure their nationals and vessels flying their flag do not engage in activity directed at UCH that is not in conformity with the UCH Convention.
3.86Sanctions are to be imposed by States Parties for violations of measures taken to implement the UCH Convention and States Parties must cooperate to implement sanctions.
3.87States Parties must also take measures providing for the seizure and disposition of UCH if it has been recovered in a manner not in conformity with the UCH Convention. There are requirements to protect the seized UCH, notify the Director-General of UNESCO and States Parties with a verifiable link, and ensure disposition be for the public benefit.
Public awareness and education
3.88The UCH Convention outlines that public awareness and education are key measures to protect UCH. The preamble to the UCH Convention notes that States Parties act in an environment of ‘growing public interest in and public appreciation of underwater cultural heritage’.
3.89The preamble further notes that States Parties act ‘[c]onvinced of the importance of research, information and education to the protection and preservation of underwater cultural heritage’, and ‘[c]onvinced of … the value of public education to contribute to awareness, appreciation and protection of that heritage’. Article 20 requires that States Parties take all practicable measures to raise public awareness regarding UCH and the importance of its protection under the UCH Convention.
3.90The Annex Rules further provide that UCH projects must provide for public education and popular presentation of the project results where it is appropriate.
3.91In his submission to the inquiry, Professor Craig Forrest said ratification and participation with other States Parties in UCH would ‘enable and engage Australia’s educational capacity in maritime archaeology, regulation and law.’
Training and expertise
3.92Training and the need for expertise in the field of UCH is noted in the UCH Convention. The preamble explains the importance of training in UCH, noting that States Parties act ‘[c]onsidering that survey, excavation and protection of underwater cultural heritage necessitate the availability and application of special scientific methods and the use of suitable techniques and equipment as well as a high degree of professional specialization’. To that end, the UCH Convention requires States Parties to cooperate in training in underwater archaeology, techniques to conserve UCH, and the transfer of UCH technology.
3.93Related to training is the concept of expertise connected to UCH projects. The Annex Rules note that activities directed at UCH must be undertaken under the direction and control of a qualified underwater archaeologist with scientific competence appropriate to the project.
3.94The Annex Rules further provide that project design for activities directed at UCH must be submitted to competent authorities and will be peer reviewed. This project design will include elements such as methodology and techniques; the composition of the team including qualifications, responsibilities and experience; collaboration with museums and other institutions; and an environmental policy. The project design must be reviewed and amended if there are unexpected discoveries. Interim and final reports are also necessary.
Research value
3.95As noted above, the preamble to the UCH Convention provides that States Parties act ‘[c]onvinced of the importance of research, information and education to the protection and preservation of underwater cultural heritage’. Further provisions refer to research as part of adhering to the UCH Convention, such as when seizing and disposing of UCH. When referring to the establishment and work of competent authorities, research is also mentioned. The Annex Rules state that activities directed towards UCH shall be authorised consistent with its protection. Further, the purpose for its authorisation may include making a significant contribution to protection, knowledge or enhancement of UCH.
Competent authorities
3.96The UCH Convention requires States Parties to establish competent authorities or reinforce existing ones to provide for the implementation of the UCH Convention, including the establishment, maintenance and updating of an inventory of UCH. These authorities must engage in the effective protection, conservation, presentation, and management of UCH, and also research and education.
Annex Rules
3.97As identified above, the Annex Rules are annexed to UCH Convention and provide further clarification to the law of UCH. The UCH Convention notes that the Rules form an ‘integral part’ of the Convention and that ‘unless expressly provided otherwise, a reference to this Convention includes a reference to the Rules.’ Accordingly, the Annex Rules are binding treaty provisions and are not just a code of practice or guidelines.
Procedural mechanisms
Entry into force
3.98The UCH Convention enters into force for a state three months after the date they have deposited their instrument (of ratification in the case of Australia).
Declaration as to inland waters
3.99States Parties can declare that the Rules shall apply to inland waters not of a maritime character.
3.100The NIA stated that the Australian Government has agreed with the states and Northern Territory that it would not make a declaration under this article of the UCH Convention. This means that the UCH Convention would not apply to Australia’s inland waters not of a maritime character.
Limitations in geographical scope
3.101A state may make a declaration to the depositary that the UCH Convention shall not be applicable to specific parts of its territory, internal waters, archipelagic waters or territorial sea, and in doing so shall identify the reasons. The state is still required to promote conditions under which the UCH Convention will apply to the areas specified in its declaration and withdraw its declaration in whole or in part as soon as that has been achieved. With the exception of this provision, no other reservations may be made to the UCH Convention.
Australian declaration
3.102In accordance with article 29 of the UCH Convention, Australia proposes to make a declaration which outlines that the Convention would not be immediately applicable to areas subject to the laws of each Australian state and the Northern Territory, namely internal waters and would not be applicable in full to specific parts of the territorial sea.
3.103The NIA stated that this declaration ‘would ensure that each State and the Northern Territory has an appropriate period of time to amend its legislation to enable the Convention to apply fully outside these areas.’ The Australian Government has said that Australia would withdraw its declaration once the relevant state and territory legislation has been amended.
Meeting of States Parties
3.104A meeting of States Parties is to be convened by the Director-General of UNESCO at least once every two years. As well as deciding on its functions, responsibilities, and rules of procedure, the meeting of States Parties may also establish a Scientific and Technical Advisory Body to assist them, which is comprised of experts who are nominated by the States Parties.
Peaceful settlement of disputes
3.105Article 25 of the UCH Convention provides for the peaceful settlement of disputes between States Parties. If such negotiations do not settle a dispute, there is scope for the dispute to be referred to UNESCO for mediation and/or apply the dispute settlement provisions in UNCLOS.
Implementation
3.106The NIA advised Australia is ‘already substantially compliant’ with the UCH Convention. This is through the UCH Act and the Protection of Movable Cultural Heritage Act 1986 (Cth). Further, the Annex Rules are said to align with current government policy and the UCH Agreement. However, the Australian Government acknowledged that ratification of the UCH Convention would require administrative measures and amendments to the UCH Act, which includes:
- referring to implementation of the UCH Convention as an object of the UCH Act
- empowering subordinate legislation to give effect to the Annex Rules
- referring to the UCH Convention in relation to matters the Minister must have regard to when issuing a permit.
- clarifying the powers and obligations of the Minister to seize protected UCH
- enabling the Australian Government to form agreements with States Parties to jointly manage UCH (article 6)
- prohibiting the use of territory to support activities directed at UCH that are not in conformity with the UCH Convention (article 15)
- a mechanism for Australia to: report to UNESCO; consult, cooperate and share information with States Parties; prohibit Australian nationals and vessels from impacting UCH not in alignment with the UCH Convention; raise public awareness; cooperate with States Parties in training; and recognise a competent authority (articles 9, 10, 11, 12, 18, 19, 20, 21 and 22).
- The Australian Government noted that further legislative amendments would be required by the states and the Northern Territory to ensure compliance with the UCH Convention, including the application of the Annex Rules when assessing a proposed action in coastal waters.
Costs
3.108The Australian Government has said that ratification of the UCH Convention would not create any additional costs, while noting that minor costs could arise if an Australian expert participated in the Scientific and Technical Advisory Body. The NIA further noted that the introduction of nationally consistent requirements, including permits in the offshore environment, is projected to save industry approximately $1.2 million per annum through regulation streamlining of information for and reporting on UCH.
Amendment
3.109Amendments to the UCH Convention can be proposed by a State Party through written communication to the Director-General of UNESCO. Article 31 sets out the process for adoption and entry into force.
3.110The Australian Government noted that ‘[a]s technological changes are increasingly giving easier access to deep-water wreck sites and other UCH to more individuals, there is potential for the Annex Rules in the future to be amended through the Article 31 process’. The NIA confirmed amendments would be subject to Australia’s domestic treaty-making requirements.
Withdrawal or denunciation
3.111A State Party can denounce the UCH Convention by written notification to the Director-General of UNESCO. This would take effect 12 months after the date of the receipt of notification unless the notification contains a later date.
Consultation
3.112The NIA noted that there has been consultation with state and territory governments, Commonwealth agencies, industry members, industry groups and non-governmental organisations. The Australian Government highlighted that particular support for the UCH Convention was given by the Department of Veterans’ Affairs and Defence.
Further areas raised in the inquiry
Regional importance
3.113The Asia-Pacific is the least represented region out of the 72 States Parties to the UCH Convention. Australia’s ratification of the UCH Convention would communicate to the region that Australia identifies UCH as being an issue of importance. A larger number of Asia-Pacific countries joining the UCH Convention could better facilitate regional agreements and initiatives on UCH as there would be a shared understanding and accessible framework.
3.114During the public hearing the Australia International Council on Monuments and Sites (Australia ICOMOS) talked about regional significance, noting Australia’s influence ‘in its own particular neighbourhood’. Australia ICOMOS added, ‘I think that is where Australia's lead will particularly help countries in our region. They will look to Australia for guidance not only to consider and ratify but also on the implementation of the convention.’
3.115Also at the public hearing, Dr Wendy van Duivenvoorde, Associate Professor in Maritime Archaeology at Flinders University, said that ratification would be beneficial ‘because being a regional lead and player on the international scene—and also the neighbourhood effect—would also really increase the capacity and the ease with which we work internationally with our neighbours and with other people in the region and abroad’. Dr Mark Staniforth, a maritime archaeology expert, similarly stated, ‘[w]hen Australia ratifies, it will have an opportunity to play a leadership role in the Asia-Pacific region.’
Aboriginal and Torres Strait Islander underwater cultural heritage
3.116In Australia, instances of Aboriginal and Torres Strait Islander cultural heritage exist not just on land, but also underwater. This, often intangible, UCH has significant and continued importance to Aboriginal and Torres Strait Islander peoples and, consistent with Article 31.1 of the United Nations Declaration on the Rights of Indigenous Peoples, Aboriginal and Torres Strait Islander peoples have the right to maintain, control, protect and develop their cultural heritage, including heritage that may now be underwater. Academics have noted that 2 million square kilometres of Australia’s continental landmass has become submerged over the past 20,000 years, meaning that the cultural heritage on that landmass is now underwater. As Aboriginal and Torres Strait Islander peoples have been inhabitants of Australia for over 65,000 years, preserving UCH is therefore significant to preserving Aboriginal and Torres Strait Islander cultural heritage in Australia.
3.117The UCH Convention does not specifically refer to Aboriginal and Torres Strait Islander peoples nor indigenous peoples, however the provisions protect the UCH of Aboriginal and Torres Strait Islander peoples through their general application and the overarching intention of the UCH Convention to protect UCH.
3.118While Aboriginal and Torres Strait Islander UCH was not focused on in the NIA, the Australian Government noted that ratification of the UCH Convention would potentially provide greater protection for Aboriginal and Torres Strait Islander UCH. The NIA explained that this is because discussions between Commonwealth, state and territory governments would take place to ‘harmonise legal regimes’ in Australia to protect UCH. The Australian Government explained that this process would facilitate ‘developing a consistent protection and management regime for Aboriginal and Torres Strait Islander UCH’.
3.119The existence of Aboriginal and Torres Strait Islander UCH in Australia was noted by submitters to the inquiry. However, in supplementary evidence provided to the Committee, DCCEEW reported that of the 8,000 entries “there is currently one First Nations underwater cultural heritage site registered on the Australasian Underwater Cultural Heritage Database (AUCHD): Brewarrina Aboriginal Fish Traps.” AIMA told the Committee at the public hearing that Aboriginal and Torres Strait Islander UCH is ‘a very developing area at the moment that’s getting a lot of focus amongst professionals’, but acknowledged ‘there's still a lot of work to be done’. The Australian Institute of Marine Science were able to set out for the Committee the unique way it responds to Aboriginal and Torres Strait Islander UCH.
Committee view
3.120The Committee notes that ratification of the UCH Convention would be a timely and important development in the protection of Australian and global UCH. UCH is part of the cultural heritage of humanity and to this end, the UCH Convention seeks to protect and preserve UCH, in situ as a first option, whilst providing for responsible non-intrusive access to UCH for observation and enjoyment where possible.
3.121Australia was involved in the negotiations and drafting of the UCH Convention and has become a leader in the field. The Committee believes ratification would bolster Australia’s international reputation in UCH. The UCH Convention would enhance Australia’s engagement with other States Parties and put it in a position to share and further develop its already extensive knowledge of maritime archaeology and UCH protection.
3.122The UCH Convention complements and extends existing international law, namely UNCLOS, through providing specific mechanisms to protect UCH. Importantly the Convention would provide a legal basis for Australia to extend its protection of UCH out to its EEZ and continental shelf, but notably would also allow Australia to play an active role in the preservation of Australian UCH found in the jurisdictions of other States Parties.
3.123The Committee believes the protection and preservation of Aboriginal and Torres Strait Islander UCH is of vital importance to Australia and welcomes the evidence provided by a range of academic subject matter experts that Australia can and should do more to identify, protect, and learn from the UCH of Aboriginal and Torres Strait Islander peoples. While the UCH Convention does not specifically refer to Indigenous UCH, the Committee is satisfied Aboriginal and Torres Strait Islander UCH would be protected through the general application of the UCH Convention.
3.124The Committee acknowledges that Australia has already been working towards implementing the changes necessary for Australian laws to be in conformity with the UCH Convention. However, further legislative amendments are required, including at the state and territory level, which would require Australia to make a declaration limiting the geographical application of the UCH Convention. The Committee encourages the Australian Government to work with the states and Northern Territory to bring their legislation into alignment with the UCH Convention so the declaration can be withdrawn in a timely manner should Australia proceed with ratification.
3.125The Committee agrees that ratification of the UCH Convention will provide an opportunity for Australia to lead by example and encourage other states in the region to become States Parties, as well as lead on implementation and UCH initiatives in the region.
3.126The Committee was pleased to hear from a range of stakeholders as part of the inquiry into the UCH Convention, and notes the broad support for ratification including from government, non-government organisations, academics and other specialists in the field.
3.127Taking all evidence into consideration, the Committee has formed the view that it is in Australia’s national interest to proceed with ratification of the UCH Convention.
3.128The Committee supports the Convention on the Protection of the Underwater Cultural Heritage and recommends that binding treaty action be taken.
Mr Josh Wilson MP
Chair
16 March 2023