Dr Hayley Roberts, Senior Lecturer in Public International Law, Bangor University – Written evidence (UNC0027)

International Relations and Defence Committee, House of Lords:

UNCLOS: fit for purpose in the 21st century?

The LOSC and the Protection of Underwater Cultural Heritage: UK Policy Concerns

Dr Hayley Roberts, Bangor University

November 2021

Introduction

I am an international lawyer specialising in the law of the sea, in particular, underwater cultural heritage, climate change, and Section 1 Part XV relating to dispute settlement. In the context of this submission, I have expertise in both the UN Convention on the Law of the Sea (LOSC) and the UNESCO Convention on the Protection of the Underwater Cultural Heritage, and have published several articles, reviews and comments in high-ranking journals on both.[1] I am currently PI on an AHRC-funded project examining the protection of marine cultural heritage and climate adaptation in Tanzania, and have a monograph on ‘State-owned Shipwrecks in International Law’ forthcoming in 2023 (University of Wales Press). I am also Commissioner (Vice Chair) to the Royal Commission on the Ancient and Historical Monuments of Wales, however I do not make this submission in that capacity.

I submit this evidence to bring the issue of the protection of the UK’s underwater cultural heritage to the attention of the Committee. The LOSC contains some references to the protection of archaeological objects, however in practice, the provisions are vague and largely ineffective. The UK should ratify the UNESCO Convention without delay, which specifically serves to protect underwater heritage. Wrecked warships and State-owned vessels are used as a particular example of how the UNESCO Convention could facilitate improved protection for underwater heritage.

Parts of this submission are based on material from a previously published journal article, of relevance to the points I am making (citations in footnotes).

Submission

1. Underwater cultural heritage (UCH) is a non-renewable resource that provides vital testimony to past lives and our shared history, yet it faces severe threats that serve to jeopardise its existence. Tolerating the destruction of this heritage is to allow humankind to be deprived of the knowledge and values it possesses, and so effective management of this resource on a global scale is required to ensure its sustainability.

2. However, UCH is a complex regulatory issue, given that it is subject to conflicting interests and legislative regimes. For example, it can have both archaeological and commercial value, creating tension between in situ preservation and recovery for profitable purposes, or even scientific value, e.g., providing key data on past climatic events. Many WWI and WWII wrecks have also completely disappeared, salvaged for scrap metal, the bodies of servicemen still aboard.[2] In some cases, the heritage may even be the threat - there is evidence that some shipwrecks are slowly leaking oil and there is concern that thousands more are effectively ticking environmental time bombs.

3. This is further complicated by property rights, particularly where a State is the owner (e.g., wrecked WWI warships). Wrecked warships are controversial for several reasons: national security, onboard munitions, or as environmental and safety hazards. Some of these sites may also be considered as ‘gravesites’ and so subject to significant public and personal interest. The UK has a large number of State wrecks - approximately 3,500 date up to 1945, with 45% of those located in other jurisdictions.[3]

4. The general purpose behind the UN Convention on the Law of the Sea 1982 (LOSC)[4] was the codification and development of international law relating to the sea. It sets out a tiered system of regulation in its maritime zones, meaning that State control over activities and resources varies depending on geographical location.

5. The LOSC only refers to archaeological objects in two broad and vague articles: Article 149 states that all objects of an archaeological nature found in the Area (deep seabed) shall be preserved or disposed of for the benefit of mankind as a whole. Article 303 provides that States have the duty to protect objects of an archaeological nature found at sea and shall cooperate in doing so, also giving States jurisdiction over such objects in their contiguous zone.

6. This means that, although there is theoretically some protection in the Area and the contiguous zone, the LOSC does not say how this should be achieved. Archaeological objects are also effectively left vulnerable to unregulated interference on a State’s continental shelf and in its EEZ beyond the contiguous zone. Shipwrecks in internal waters and the territorial sea will be subject to the laws of the coastal State, but these may vary greatly from State to State.

7. However, this does not necessarily render the LOSC unfit for purpose; the aim of the LOSC was to provide a general constitution for the oceans. The LOSC itself anticipates that further legislation is created for protecting underwater heritage: Article 303(4) states that the provision “is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.”

8. The UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001 (UNESCO Convention)[5] provides an international framework that effectively regulates activities directed at UCH in all maritime zones. A link with the LOSC can clearly be seen, with Article 3 of the UNESCO Convention stating that the treaty shall generally “be interpreted and applied in the context of and in a manner consistent with international law, including [LOSC].” There is wide support for its general principles but even so, the UK has not ratified the agreement.[6]

9. This is the key concern for the UK: while it is fair to say that the LOSC itself is too broad to offer sufficient protection for underwater heritage, the UK Government has failed to ratify the UNESCO Convention, which does offer this protection. The UK had previously committed to review its position on ratification, but in 2017, the Department for Digital, Culture, Media and Sport (DCMS) noted that they had to reconsider their priorities and ability to carry out a review in light of changing circumstances, stating that they “have decided to defer the review while we focus our efforts and resources on delivering new and more immediate priorities.”[7]

10. This leaves underwater heritage at risk, particularly in waters beyond the UK’s jurisdiction - as noted above, 45% of the UK’s State wrecks are located in other jurisdictions, for example.[8] However, it seems that the UK considers the status quo sufficient to protect this particular heritage without the need to ratify the UNESCO Convention – the UK believes that sunken State vessels retain their sovereign immunity,[9] even when they are located beyond the UK’s jurisdiction. This means that a coastal State could not permit any activities directed at the wreck without the express authorisation of the flag State.

11. The customary nature of this rule is likely, but unconfirmed.[10] Even so, despite the UK’s confidence that the principle sufficiently protects the UK’s State-owned shipwrecks beyond its jurisdiction, this is not always the case. Sovereign immunity may not protect sunken State vessels if they have been abandoned, for example, sold for scrap at some point after sinking, as most States view immunity to be lost when title is abandoned (the UK included).[11]

12. Many sunken military wrecks have already been sold for scrap by the UK, such as those lost in the Battle of Jutland. When the UK became aware of the unauthorised salvage of Jutland wrecks, HMS Indefatigable and HMS Queen Mary, by a Dutch company in 2010 and 2011 respectively, it determined that no action could be taken as ownership had been transferred.[12]

13. Domestic laws are also insufficient to protect these wrecks beyond the UK’s maritime limits. Even though military wrecks can be designated under the Protection of Military Remains Act 1986, irrespective of where they are located, the statute only applies to British citizens and vessels. The DCMS and the Ministry of Defence have also published a guidance document on the treatment of historic military wreck sites outside UK territorial waters,[13] but this is not legally binding and other States would be under no obligation to comply.

14. Yet, the UNESCO Convention would facilitate the protection of WWI wrecks, for example, as its definition of State vessels in Article 1(8) makes reference to the ship’s ownership and/or usage at the time of sinking.[14] This provides that a ship’s status as a ‘warship’ (or non-commercial State usage) is a fact that cannot be changed by abandonment. This enables these wrecks to be protected as State-owned vessels even where ownership has later been transferred.

15. Relying on the LOSC, customary international law and domestic law, rather than a regime like the UNESCO Convention, also means that the UK may not benefit from the co-operative regime and reporting mechanisms of the UNESCO Convention. For example, informal conversations have taken place between Spain and Mexico, Japan, Chile and the Philippines with regard the status of several Spanish sunken vessels in their respective territorial waters.[15]

16. In summary, the LOSC does not provide a comprehensive framework for protecting our underwater heritage, but the UNESCO Convention facilitates improved protection, inter-State cooperation, and is compatible with the LOSC. The loss of our underwater heritage should be a significant concern for the Government. The UK should review its position on ratifying the Convention as a matter of priority.