A new law implementing the Convention on the protection of the underwater cultural heritage - September 2021
Published on 08/09/2021
News Article Release – A new law implementing the Convention on the protection of the underwater cultural heritage - September 2021
The UNESCO Convention on the Protection of Underwater Cultural Heritage, adopted in Paris on 2 November 2001 (hereinafter the Convention), was ratified by Belgium on 5 August 2013 and entered into force on 5 November 2013 in the country. It marks a significant development in the Convention’s history as it illustrates the growing support for the protection of submerged heritage. This landmark instrument is the leading response to the destruction of underwater archaeological sites by treasure-hunters and certain industrial activities. It aims to strengthen the legal protection, cooperation, awareness-raising and capacity-building of underwater archaeological heritage internationally. The increasing number of states party to the Convention reflects the ever-growing recognition that underwater cultural heritage requires protection.
In 2021, the Convention came under scrutiny, where procedural gaps and ambiguities therein became apparent. As such, Belgium reintroduced the law on 23 April 2021 which addressed these, designed to improve upon and protect shipwrecks in Belgian maritime zones. The law of 23 April 2021, implementing the Convention on the protection of the underwater cultural heritage and the protection of valuable wrecks (hereafter the New UCH Law) came into effect on the 4 June 2021. It abolishes the previous law that was transposed in 2014.
The New UCH Law covers key aspects of the protection of underwater cultural heritage. The law reconfirms that the protection of underwater discoveries is under the territorial jurisdiction of the federal state, that is in the Belgian territorial sea or the Belgian Exclusive Economic Zone. Where under Belgian law, a designated federal administration known as the Directorate-General Shipping at the Federal Public Service for Mobility and Transport may intervene in its conservation and or disposal.
Under the New UCH Law, the individual or person to discover the underwater treasure or shipwreck, must notify the original owner or last known entity in proprietary ownership. The notification for discovery is then forwarded to the federal body assigned to implement the provisions of the Convention. However, an exception exists to the notification rule, ships of war and Belgian sovereignty ships, are not obligated to disclose where such information is detrimental to an ongoing operation, operational capabilities of its vessels and or the preservation of information classified under Chapter II of the Belgian Law of 11 December 1998 on classification and security clearances, security certificates and security opinions.
In order to protect underwater cultural heritage, a crucial role has been assigned to the Governor of West Flanders (referred to as the ‘receiver’ under the Convention), appointed by the King to execute the Convention’s provisions. Moreover, the Minister holds certain powers in relation to underwater cultural heritage. The Minister, upon discovery of underwater heritage, with the aid of an investigation report, can decide whether the heritage may be protected in situ. This investigation report details all the advantages and disadvantages to be considered in whether protection should apply. Moreover, the Minister may proceed to protect such treasures without such a report if there is sufficient and or compelling reasons. The Minister may also intervene with a state vessel or aircraft where underwater cultural heritage is threatened or in immediate risk of danger by human activity, such as looting.
An interesting provision of the New UCH Law which differs from the 2014 regime, pertains to shipwrecks. Here, if the wreck has been submerged for over 100 years, undisturbed, it will automatically be deemed underwater cultural heritage if it meets the necessary cultural, historical or archaeological characteristics. The ultimate recipient of the goods must draw up a report on the investigation of the wreck with a view to assimilating it to underwater cultural heritage or protecting it in situ. The New UCH Law also provides for a new definition of ‘wrecks’ which includes ‘new’ underwater cultural heritage submerged for less than 100 years.
A significant addition to the Convention is that the New UCH Law also regulates the ownership of shipwrecks, contrary to the Convention. Here, the submerged treasure will remain the property of the owner who was known at the time of the wreck. If the latter cannot be found, then the discoverer of the goods becomes the legal owner. Conversely, if underwater cultural heritage is found during ongoing work for an environmental permit, it will become property of the Belgian state. Moreover, public administrations, public interest organisations or Belgian museums have the right to purchase such goods. It is also the duty of the discoverer to inform the Director-General of UNESCO of the underwater cultural heritage found. In addition to this, human remains that are found must be respected, an unusual provision in Belgian cultural heritage legislation, clearly paying homage to the past which must be treated with utmost care. There is also a register for existing and newly found underwater cultural heritage, updated by the recipient of the underwater goods through the site www.vondsteninzee.be.
In terms of enforcement, underwater cultural heritage and wrecks may not be used for commercial exploitation purposes. It is prohibited to hold, import, export or sell underwater cultural heritage or wrecks obtained not in accordance with the Convention or the New UCH Law. If an individual infringes the provisions under the New UCH Law, it is punishable by a fine between 100 and 10,000 euros. Where a violation concerns a state ship or a state aircraft, it is punishable by a fine of 1,000 to 20,000 euros.
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 Loi du 4 avril 2014 relative à la protection du patrimoine culturel subaquatique / Wet van 4 april 2014 betreffende de bescherming van het cultureel erfgoed onder water (MB, 18-04-2014).
 Loi du 23 avril 2021 relative à la mise en oeuvre de la Convention de l'UNESCO du 2 novembre 2001 sur la protection du patrimoine culturel subaquatique et la protection d'épaves de valeur / Wet van 23 april 2021 tot implementatie van het UNESCO-verdrag van 2 november 2001 ter bescherming van het cultureel erfgoed onder water en de bescherming van waardevolle wrakken (MB, 25-05-2021).
 Loi du 11 décembre 1998 relative à la classification et aux habilitations, attestations et avis de sécurité / Wet van 11 december 1998 betreffende de classificatie en de veiligheidsmachtigingen, veiligheidsattesten en veiligheidsadviezen (MB, 07-05-1999).
 Article 14 of the New UCH Law.
 Article 18 of the New UCH Law.
 Article 17 of the New UCH Law.
 Article 22 of the New UCH Law.