UNESCO Convention on the protection of underwater cultural heritage implemented
Published on 30/05/2014
Law of 4 April 2014 concerning the protection of underwater cultural heritage
The law, published on 18 April 2014, implements the UNESCO Convention on the protection of underwater cultural heritage of 2001.(1)
Underwater cultural heritage covers heritage found in the Belgian territorial sea, in the Belgian exclusive economic zone and on the continental shelf, except wrecks and fragments of wrecks protected under the Nairobi International Convention on the Removal of Wrecks (2007).
Any find must be notified to the receiver of underwater cultural heritage appointed by the King, failing which the found object can be confiscated. The receiver must draw up a report and, if his advice is positive, the King may protect the underwater cultural property in situ and take any necessary measures, individual or regulatory, required to preserve it, after assessing any potential impact of those measures on the environment.
The governor of the province of West-Flanders has been appointed as receiver.(2) This choice is logical as the Belgian coast forms the northern border of this province situated in the North-West of Belgium.
The law innovates by elaborating a hierarchical system of appropriation to resolve the question of title to underwater finds.
The owner of the cultural property at the time of sinking is the first in line to claim title to the find, provided he can prove his title within nine months after the discovery (article 10). If this is not the case, the find may be appropriated by a public administration or a museum having expressed an interest in owning it within the same time period (article 11). If both parties compete, a dispute resolution procedure will be triggered (article 12). If the cultural property is claimed by neither party within this nine months period, title will vest in the finder (article 13). If the finder rejects it, title will vest in the Belgian State as a last resort (article 5).
The law also innovates by imposing advanced publicity measures taking into account the digital era, such as keeping an electronic register (article 7, al. 1) and the obligation to maintain a website accessible to the public (article 9, al. 1).
The law further states, literally quoting the UNESCO Convention, that “proper respect shall be given to all human remains”, which again is a novelty in a Belgian legislative text concerning cultural heritage.
Another striking feature in the new law is the general prohibition to hold or sell illicit finds (article 15). This wording seems to suggest the intention of the legislator to consider underwater cultural heritage as part of the ‘public domain’ and to submit it to the regime of ‘inalienability’ peculiar to public ownership.
The law will enter into force on 1 June 2014.(3)
(1) Belgium ratified the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage on 8 August 2013. Belgium was the 45th State to ratify this important convention on cultural heritage.
Prior to the ratification, the various Belgian federated entities had to give their assent to the Convention to make it internally binding:
- The Federal law on 6 July 2013, published on 25 October 2013;
- The Decree of the Walloon Parliament on 26 April 2013, published on 22 May 2013;
- The Decree of the French Community on 19 April 2012, published on 26 June 2012;
- The Decree of the German-speaking Community on 19 March 2012, published on 18 April 2012;
- The Ordonnance of the Parliament of the Brussels Region on 4 September 2008, published on 30 September 2008;
- The Decree of the Flemish Parliament on 16 July 2010, published on 9 August 2010.
(2) Article 1 of the Royal Decree of 25 April 2014 on the protection of underwater cultural heritage, Moniteur belge of 14 May 2014.
(3) Article 4 of the abovementioned Royal Decree of 25 April 2014.