UK Legislation on Maritime Cultural Heritage

How does current UK legislation define and value maritime Cultural heritage?

Abstract

The paper investigates UK maritime law with regards to its definition of maritime cultural heritage and the value placed upon this issue. Acts such as the 1973 Shipwrecks Act and the 1996 Treasure Act show that there are large gaps in UK maritime law and that the value placed upon maritime cultural heritage protection in the UK is lower than that placed upon commercial salvage concerns. In addition, international law has had little effect due to the UK rejection of the 2001 UNESCO Convention. Current events also show that the UK government is prepared to put commercial concerns before maritime cultural heritage protection. A survey is conducted to show the lack of knowledge in the UK regarding maritime law, but the desire from society for increased protection. Recommendations are made to scrap current legislation in order to put in new, unified legislation that offers blanket protection for wrecks. The proposal is similar to the current Swedish model of maritime cultural law.

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Historically, as one of the world’s foremost shipping and naval countries, Great Britain has a huge amount of maritime culture and heritage. In order to protect this heritage, there are a large number of laws in place. However, there is much discussion as to whether or not these laws adequately protect and value maritime cultural heritage above other concerns such as economics, politics, and land protection. The aim of this essay is to look at the current UK legislation and see how it defines and values maritime cultural heritage.

This subject is important, because maritime cultural heritage is an important part of our society, and can give us a sense of pride in our nation’s achievements. Maritime cultural heritage is part of our national pride and identity – part of what it means to be English. With this in mind, it is important that this heritage is protected.

The first section will consist of a literature review of UK maritime law and how it values maritime heritage. This will involve looking at a wide variety of government legislation from both the UK and worldwide law.

The second section will continue a review of literature regarding how best to protect and guard maritime cultural heritage, and how these theories interplay with the law in practice.

In order to gain an understanding of how the UK legislation compares to other maritime laws worldwide, there will be a comparison of UK law and policy with the policies of Australia and Sweden. These countries have been chosen along with the UK because of their significant maritime heritage.

A news and views section will outline some of the recent issues and developments in maritime cultural heritage to show how legislation is currently being used in practice. This will include a look at the recent Spain vs. Odyssey conflict and its significance to the protection of maritime cultural heritage.

The next section will include a survey so as to determine the public’s knowledge of current affairs within the UK regarding maritime cultural heritage. This will be a chance to understand the problems and advantages of maritime cultural heritage protection and law in today’s Britain.

The penultimate section will outline recommendations on how, in light of the literature review findings and survey results, the current legislation could be changed to further protect maritime cultural heritage in the UK and worldwide. This may involve the changing of current laws or the creation of new laws with regards to maritime heritage protection. The last section will conclude all of the findings of the paper.

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Before the literature review begins, it is important to give a basic definition of what is meant by maritime cultural heritage, so that it can be understood what the protection of it means. This will also be useful to compare with how the UK and worldwide legislation defines maritime cultural heritage. One good definition of so-called ‘underwater cultural heritage’ is put forward by Sokal, who says that underwater cultural heritage:

“…Refers to all remains of human activities lying on the seabed, on riverbeds, or at the bottom of lakes. It includes shipwrecks and other objects lost at sea, as well as prehistoric sites, sunken towns, and ancient ports that were once on the dry land and were eventually submerged due to climatic or geological changes.”^[1]

However, this does not fully cover maritime cultural heritage that has since been salvaged or put on display, as many of the most precious items have already. The reason for this is that it is generally understood that once artefacts are salvaged they are then governed under usual artefact and heritage law. The protection of the maritime heritage is to do with the maintenance and protection of relics that are underwater rather than those that have already been retrieved. ^[2]

Although there is no standard definition of cultural heritage, many of the UN drafts and resolutions include terms such as “Objects of an archaeological and historical nature found at sea”. Although it is hard to fully decide what this should include, it is fairly clear that in the most basic sense underwater cultural heritage has to do with historical remains or evidence of human existence in any body of water around the world, particularly if that evidence is of cultural significance.^[3] In the next section this definition can be compared to the definition of maritime cultural heritage put forward in UK legislation.

The problem at present is that our maritime cultural heritage is protected by an assortment of UK legislations, none of which were specifically designed or created for the sole purpose of protecting and conserving our maritime cultural heritage. This means that only around sixty sites have been protected of an estimated thirty or forty thousand in the UK. This is because the laws are heavily value laden, and this diminishes any powers of protection offered.

One of the earliest laws related to cultural heritage is the Ancient Monuments Act of 1882. This act was put in place so that ancient monuments could be ‘guarded’ or looked after by the people who own them, and also so that the government could potentially buy monuments that they felt needed better protection. Although this act sets a good early example in that it lists punishments for potential defacers of such monuments, there is a significant loophole. Anyone who owns such a monument but has not been given the title of ‘guardian’ of that monument is not liable to such punishments. This means that anyone who takes possession of or owns a piece of heritage or monument could in fact use it for commercial purposes or sell its valuable parts without punishment, so long as they had not been officially labeled as a guardian of the monument. This is significant because it is likely that anyone who was labeled a guardian would have been given this title because of their commitment to the monument. Those unlabelled owners would be perhaps more likely to deface or use the monument, yet could escape punishment for doing so.^[4] Another problem with this act is that it does not specifically mention maritime cultural aterfacts as being monuments, and talks more about land-based monuments and their maintenance. Although the act was updated in 1979, it still retained the core problem of determining what ‘monuments’ were in fact Only those monuments listed on a ‘schedule’ were truly protected by this law, meaning that thousands of locations of maritime cultural heritage were left out and exposed to harm.^[5]

One of the next acts to be created with regards to maritime cultural heritage is the 1949 Coastal Protection Act. This act is concerned with the maintenance and protection of land that is being encroached upon by the sea, to stop valuable pieces of land being destroyed by coastal erosion. The way in which this act helps to protect underwater cultural heritage is that permission is required in tidal waters to dredge or remove objects. This means that underwater heritage sites cannot be touched without permission.

However, it also means that any works for maintenance of these sites requires permission, and may be refused if this work interferes with navigational safety in any way. Also, the main point of this act is to stop land destruction, and the prohibition of removal of materials does not specifically mention cultural artefacts. It also says that removal of minerals more than fifty feet below the surface is allowed. The act also offers no protection to artefacts or wrecks in non-tidal or inland waters, as these are not considered part of the realm of ‘coastal protection’.

Again, whilst the Coastal Protection Act does make it harder for some artefacts to be removed, it also has many flaws because the act is not targeting cultural heritage protection.^[6]

Perhaps the first real attempt to create a law that takes into account cultural heritage sites is the 1973 Protection of Wrecks Act. This act when combined with the Ancient Monuments Act has helped at least 15 wrecks to be protected in parts of Scotland.^[7] It has in total protected around 60 wrecks under section 1 of the Act.

This act is an improvement on the Ancient Monuments Act because it does need have the requirement of scheduling a monument. Rather, for a wreck to be protected it needs to be of historical, archaeological or artistic value. The problem here of course is defining this ‘value’, and this is why so many wrecks have been ignored. There is no specific definition of what constitutes this artistic, historical or archaeological value, and in fact 2 items on the original list of 60 have been removed. This law is helping to protect culturally significant wrecks, but with its vague definition of what this means there are countless other wrecks not being protected. Another problem is that with the correct licenses people are still allowed to regularly dive with these wrecks, although not take anything away. The problem here is that there is potential for damage or removal of objects without the knowledge of those charged with guarding the wrecks if anyone with a correct license can be allowed access to the wreck.^[8] Another issue is that whilst the act stops designated wrecks being unduly disturbed, it does not mention anything with regards to the maintenance of such wrecks and how they are to be preserved for future generations – an integral part of maritime cultural heritage.

In 1986 there came the Protection of Military Remains Act. The primary goal of this act is to prevent disturbance of human remains that are still present in military aircraft or vessels. This is an act that applies both to UK and international waters, although vessels of foreign origin only count within UK waters. The act categories places as either ‘protected’, where diving is allowed with a license, or ‘controlled’, where no-one is allowed to visit. The historic significance of a site is one of the most important criteria when deciding if a site is eligible for protected or controlled status under the law.

Although there are currently 16 vessels protected by this law in UK waters and at least 5 more in international waters as of 2001, the major loophole is obviously that the sites are only being protected whilst the human remains stay at these locations. Once these remains are gone then under this law the vessels will not be offered protection. Also, the definition of what constitutes historical significance is not clear.^[9]

The Merchant Shipping Act of 1995 is somewhat different, and is based upon the 1989 International Convention on Salvage. This Shipping law states that all items of wreck found in UK waters must be reported to the Receiver of Wreck – an official of the British government. Once reported the person who finds the wreck then has rights of salvage. These rights of salvage mean that once reported, the wreck is to be detained by the Receiver until a valuation is completed, at which time the individual(s) who salvaged the wreck will need to pay up to £5,000 to release the wreck into their custody. The government can then hold the vessel until an owner is established.

However, the problem with this legislation is again that it was not designed with the protection of maritime cultural heritage at its core. Although it means that all wrecks, no matter their significance are reported, it also means that if no owner comes forward or is found the person who found the wreck has rights to it once the salvage costs are paid. Although the Receiver has the rights to refuse this salvage right, this has been rarely carried out in the UK, if at all.

Another factor is that the entire legislation is concerned with property ‘value’ in money terms rather than any cultural or historical significance. Whilst a wreck may appear of little monetary value, it may be of significant cultural or historical interest. This law only helps maritime cultural heritage in the sense that more wrecks need to be reported. However, it does not help wrecks from being removed or taken into possession by those who salvage them, whatever their intentions are for the wreck.^[10]

However, the Treasure Act of 1996 is a law created to deal with artefacts collected or found, and has more significance for maritime cultural heritage protection. This act creates a legal obligation for anyone who finds an object of ‘treasure’ as defined in the act to report it to their local coroner within fourteen days. The coroner will then determine whether or not the item constitutes treasure. If the item is seen as treasure then the person who found it must offer to sell it to a museum at a price set by an independent board of antiquities experts. If the item is found to not be treasure or the museum does not want to purchase it, then the finder may retain the object.

In this law, the definition of treasure is generally set out to deal with items that are gold or silver of at least ten per cent and precious coins that are at least 300 years old. Items that are older than 200 years and are deemed by the State to be of historical or cultural value are also included. The problem with this is that any item outside of the usual scope of ‘treasure’ can only be classed as treasure through a special order. This sort of order may only be granted in circumstances where significant cultural value is identified.

Another problem with this law is that it does not really preserve heritage directly. It demands that any treasure found be valued and that a museum have to pay the full price for such treasure. This means that for extremely valuable items it may be beyond the means of museums to purchase everything. This leaves maritime cultural heritage in the hands of people who may only be interested in the monetary value of an item and have no desire to preserve the item beyond this.

However, most significantly the law focuses on metallic items of over 300 years old and any other culturally significant items of over 200 years old. This means items under 200 years old may not be protected, and the wrecks where the treasure is found may be damaged or discarded in favour of collecting the treasure itself.

It must be said that this law, like the Merchant Shipping Act, does mean that more treasure and historical items are reported and discovered, allowing museums the opportunity to collect more material than might be possible otherwise. However, it does also encourage those who actively seek treasure of value, for they know a price will be set for it. More emphasis in the law should be put upon the cultural and historical significance of the item. The flipside of this is of course that people are more likely to report treasure knowing they will get money for it, rather than just keep it for themselves.^[11]

The most important of recent UK laws in this field though is the National Heritage Act of 2002, which is an update of the 1983 Act. This act is important because it includes UK heritage agencies in the protection of ancient monuments in or under the seabed within the territorial sea adjacent to England. Wales and Scotland have similar administrative responsibilities in their devolved administrations under Cadw and Historic Scotland respectively.^[12]

This is a welcome law as it enables English Heritage to take over responsibility for maritime cultural heritage protection from the Department of Culture, Media and Sport.^[13] This means that the protection of monuments and promoting the public’s enjoyment and awareness of such monuments is all handled by one agency. Whilst there was obviously a transition period to move control from one agency to another, it has meant that archaeological sites from low water to the 12 nautical mile territorial limit around England are all dealt with by English Heritage.^[14]

Whilst this law is a step in the right direction by attempting to join up the laws governing maritime cultural heritage protection, the Acts themselves have too many gaps and too little direct focus on heritage protection to adequately protect our maritime cultural heritage.

In addition to these UK laws however, cultural protection and heritage is governed by the UNESCO laws of 1972, 1981 and 2001. These laws have a significant influence on how cultural heritage is protected.

The World Heritage Convention was adopted by UNESCO in 1972 and links nature conservation and preservation of cultural heritage. It helps to define the sort of sites that can be considered for the World Heritage List, and any country that signs the list pledges to protect not only their World Heritage Sites in their territory but their national heritage as a whole.

By signing this list the UK has pledged to protect our national heritage, a large part of which is our maritime cultural heritage.

However, it is the 1982 Law of the Sea Convention that really began to create a universal concept and law of maritime cultural protection. It is Articles 303 and 149 of this law that are of most interest. Article 303 says that ‘States have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose’. ^[15]

One problem with this part of the law is that it does not give any details of what these duties might involve. The law also says that it is not in contradiction or prejudice to any other international agreements on cultural protection, thus leaving the way open for future laws such as the 2001 convention.

Article 149 says that:

“all objects of an archaeological and historical nature found in the Area [that is, on the seabed underneath the high seas] shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin”.

The problem with this is that the law is limited to the high seas, and there is a large gap between the high seas and the zones such as the contiguous zone closer to territorial waters.^[16]

As the most comprehensive of all the international maritime laws, it is a surprise that only two sections are linked to cultural protection. The problem is that these issues were only discussed at a late stage and the primary focus of the law is on fishing, the environment and trade.

This law was ratified by 146 nations and came into effect in 1994. Of those nations that did not accept initially such as the USA, much of this was to do with deep seabed mining and other natural resource management concerns rather than with the issue of underwater cultural heritage – most likely because the Convention had so little in it about this topic.^[17] However, it wasn’t long after this that new draft resolutions began to deal with the future of underwater cultural heritage, as it was felt that not enough was being done to deal with this issue. There was to be a look at cultural management, and these draft resolutions culminated in the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage.^[18]

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This law was certainly needed, for the 1982 law was an ambiguous and rushed attempt to deal with underwater cultural heritage protection. The problem is that past 24 nautical miles there is little protection for cultural heritage in the 1982 law, and the protection of cultural heritage is then left up to the freedom of the open seas.^[19]

The 2001 Convention was adopted by 87 votes for to 4 against, with 15 abstentions. However, in these 15 abstentions were the UK, and at the time the US was not part of UNESCO and so could not vote. This immediately causes problems, as although the UK has adopted the 1989 Salvage Convention, they have not adopted the 2001 Underwater Cultural Heritage Convention.

The reason for this is that the 2001 Convention actually attempts to provide blanket protection for all maritime cultural heritages, and the way in which State vessels and warships were to be protected was different to the plans of the UK. Britain has such a huge amount of wrecks that it has been felt that only those of the most significance should be focused on. If this Convention were signed then all wrecks of any historical or cultural significance would need to be protected. Britain believes that diverting resources to the most important wrecks and then educating people about maritime cultural heritage is more important. ^[20]

However, this is not a view that the researcher ascribes to, as it seems extremely important that we preserve our entire maritime cultural heritage so that we may understand both the good and bad events that Britain has been a part of. Funding is obviously integral to this, and perhaps at this time it has not been possible for Britain to offer such large resources to the protection of all wrecks. Whilst this may be monetarily prudent, it may prove to be a costly mistake in the future as wrecks continue to be salvaged without consideration for the protection of cultural heritage.

The law itself is having an effect on our cultural heritage protection though as the UK becomes increasingly pressured to meet the demands of this convention and give blanket protection to historical wrecks. The problem with this though is obviously providing resources to meet these demands, which may result in protection resources being spread too thin. Also, blanket protection of all wrecks may result in us being too nostalgic about certain aspects of our maritime cultural heritage, in particular the perspective our Britain’s associations with the sea during times of conflict. It is questionable as to whether significant amounts of money should be spent on protecting all historically significant wrecks, even if these wrecks were associated with darker activities and times in our history.^[21]

However, the 2001 convention doesn’t offer nearly as much protection as it first seems. The fact that there is a 100 year minimum time limit on artefacts excludes a lot of more recent wrecks that may be historically or culturally significant, such as the Titanic and wrecks from World War 1 and World War 2. This fact was made abundantly clear when the wreck of the Titanic was uncovered in 1985 and it became apparent that there was no way to protect it from salvage. With more advanced equipment today the problem is even greater, and anything under 100 years old is simply not adequately protected by the law. ^[22]

Despite this, the law does have some good points. It aims at a universal plan of in situ preservation of wrecks, meaning they are less open to invasive procedures that would damage their condition and prevent us studying them in detail in the future. Another very important aspect of the Convention is in Article 4 which declares that the rules of salvage and finds will not be applicable to underwater cultural heritage. Although salvors do not obtain ownership rights, they gain the right to large compensation. This means that anything labeled as underwater cultural heritage cannot be sold commercially or traded. ^[23]

Of course, the major problem with this law is its ineffectiveness unless more nations sign onto it. With the UK not accepting its terms it means that whilst the UNESCO Convention is good in principle, it cannot particularly influence UK law at this stage. The UK still looks to the Protection of Wrecks Act as the way to preserve cultural heritage.

However, should more nations accept the Convention then this would surely be a major step towards further protecting the maritime cultural heritage of all countries. Just like the 1982 Convention, acceptance of this Convention would help reduce piracy and crime that damages maritime cultural heritage.^[24]

The problem with all of the laws in the UK and the rejection of the 2001 UNESCO Convention is that there is a lack of value placed upon maritime cultural heritage. The next section will briefly examine how, despite efforts to promote maritime cultural heritage protection, the UK laws still place little value on this concept above financial concerns and traditional property rights and salvage law.

An example of how maritime law in the UK fails to focus on maritime cultural heritage preservation can be found in a study conducted by Mike Williams, a senior law studies lecturer at Wolverhampton University. Williams found that in places like the south-west of England, the rights to a wreck were based upon non-law conventions such as rights based on being able to see out to the distance that the wreck is from the shore.

Although Williams show that Britain does know the importance of underwater cultural heritage and that is why it adopted the Valetta Convention, the Shipwrecks Act of 1973 has many flaws. It does not include protection for items that are not ships such as wrecks of Warplanes, and it stops people from having access to historical sites, which almost defeats the point of protecting them. The problem is that salvors can still claim possession of such historical wrecks, as seen by the 1990’s case of the Hanover, which was designated a wreck after discovery because it was supposed to carry gold. The salvors took the government to court and won the right to salvage. This shows the law is does not value cultural heritage as much as the traditional rights of salvage.^[25]

The fact is that when on land, historical artefacts are protected much better than those in the water. Although there have been a number of shipwrecks or maritime archaeological remains found on land, this is rare and the core of our maritime cultural heritage is beneath the water.^[26]

The problem can be seen in the cases where politicians get involved to try and protect wrecks or bring them to the attention of the public. This is necessary because the law itself, or at the very least the application of the law, is not focused on maritime cultural heritage. A case in 2002 was highlighted when Baroness Blackstone called for protection from the law for the 18^th century warship the Bonhomme Richard.

Although this wreck was eventually protected thanks to an urgent Designation Order under the Protection of Wrecks Act, it is only because of quick work by the Baroness that this occurred. The issue was that if salvors had got to the wreck first there was little the law could have done to prevent their rights of possession. If more value was placed upon cultural heritage protection in the law, then these temporary emergency measures would not be needed to protect important historical sites such as that of the Bonhomme Richard.^[27]

Another problem occurring in the UK system is that it is becoming increasingly difficult to find new and profitable uses for the port system. This means it is becoming harder to maintain these avenues of maritime cultural heritage, an example of which can be seen in the collapse of the coal ports in South Wales. The problem is that a balance between economic viability and cultural heritage is trying to be created. With architecturally important yards such as the Royal William Yard in Plymouth being left unused, it is becoming hard to see how economics can mix with cultural heritage. At the moment it seems that the force of economics is winning out. ^[28]

The state of law at the moment is that cultural heritage is still put behind economic concerns of both salvors and the government. The law still favours salvors, and the government is unwilling to change laws to protect all wrecks because it would be too costly at this time. Therefore, by protecting a small number of high-profile wrecks it can be seen that something is being done. However, this is not enough and until these laws are changed it is clear that protection for maritime cultural heritage in the UK will remain inadequate.^[29]

To show how the UK maritime laws compare to other countries in terms of valuing cultural heritage, the next section will look at the legislation on maritime heritage in Sweden and Australia against that of the UK.

Australian maritime law is perhaps more focused on maritime boundary zones than on preserving cultural heritage.^[30] After ratifying the 1982 UNESCO Law of the Sea in 1994, they also put in a 200 nautical mile Exclusive Economic Zone to help protect their interests around their complex shoreline.^[31]

However, this is not to say that Australian law doesn’t take into account maritime cultural heritage. The 2001 UNESCO Convention has had an effect on Australian law, although policies to protect cultural heritage in Australian waters have been in place for around 25 years. However, the problem in Australia is that only the Federal Government can help to initiate such changes as put forward by the Convention. This is difficult because it is the Territories who often put in practice many of the initiatives regarding cultural heritage protection.

Despite this, in 2001 a promise to review the 1976 Commonwealth Historic Shipwrecks Act would be put in place, although this has taken some time to complete. The Historic Shipwrecks Act works very much like the UK Shipwrecks Act in that it protects historic shipwrecks rather than other relics. The review since the 2001 UNESCO Convention would aim to change this so that all historical artefacts would be preserved. However, like the UK there is opposition to this from salvors as well as divers, with Australia being particularly popular with wreck divers. They believe that new laws would limit the access to wrecks for the general public. In truth, these ‘concerned’