Underwater Heritage
State ownership of certain Wrecks
A “relevant wreck” for the purposes of the 2023 Act as meaning a wreck 100 or more years old or otherwise of archaeological or historic interest. The Act applies the provisions of Chapter 2 of Part 4 (ownership and disposal of archaeological objects) to relevant wrecks.
It also provides that the provisions for payment of rewards to finders of archaeological objects, will apply to the finding of a relevant wreck where such finding is reportable i.e. a wreck 100 or more years old (such wrecks being deemed to be prescribed monuments and being therefore reportable. The overall effect of the provisions of the section will be to ensure consistency in the treatment of finds of archaeological objects and historic wrecks, categories that in practical terms overlap with each other.
The entitlement to State ownership of relevant wrecks with no known owner established under this section is without prejudice to any other entitlement of the State to such ownership.
No Salvage
The 2024 Act excludes the following categories from possibility of payment of non-contractual salvage rewards:
- a wreck 100 or more years old, including any object removed from the wreck whether or not having been part of the wreck,
- an archaeological object that is 100 or more years old, and
- a registered monument, including any object removed from the monument whether or not having been part of the monument.
Under the law of salvage, actions of salvors to recover material may result in an entitlement to reward from the owner (including the State where unclaimed wreck falls to it) even though the owner has not entered into a contract for provision of salvage services. The policy underlying being that it is to the public benefit that items of commercial value should be recovered from marine peril and returned to commerce.
Such a policy is not consistent with modern principles regarding protection of underwater cultural heritage, which emphasise preservation in-situ except where it is certain that recovered material can be conserved, and actually tend to incentivise inappropriate attempts to recover historic wrecks or their contents. In case law relating to the Streedagh Armada wrecks the Courts have taken the view that commercial salvage law is not appropriate for dealing with wrecks of heritage interest.
Protections
Special protection, applies automatically to wrecks 100 or more years old. This ensures that the pre-existing high level of automatic protection afforded to all such wrecks is continued, while at the same time streamlining the system of protection of wrecks with protection of monuments.
There are additional protection (i.e. additional to what would already apply under other provisions of the 2023 Act) to the following:
- a wreck 100 or more years old;
- a registered monument, or a prescribed monument, that is situated on, in or under land covered by water;
- an archaeological object situated on, in or under land covered by water.
The additional protection includes prohibition of any diving on, use or possession of survey equipment in relation to or interference with any of the specified categories without a licence under the 2023 Act.
UNESCO Convention
The 2023 Act enables the State, should the Government so determine, to ratify (i.e. become party to) the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, the text of which is set out in Schedule 7 of the 2023 Act.
While some of the Convention can be implemented through administrative action or is covered by provisions operating within the territorial seas of the State, a range of provisions under it require states parties to exercise jurisdiction over their citizens and vessels when operating in international waters, or are otherwise not provided for under existing Irish law or other aspects of the 2023 Act.
The structure of the Convention is (in broad terms) based around states parties having general jurisdiction over underwater cultural heritage landward of the outer limit of their contiguous zones (“24 mile limit”) and outside that, assuming control of what their citizens or vessels registered under their law do in international waters. The Convention does not give a state party jurisdiction over non-nationals or foreign vessels beyond its own contiguous zone other than where other relevant states have accepted this arising from that state taking on the role of “coordinating state” under the Convention.
Persons Covered & Controls
A “relevant person” covers (for the purposes of the regulatory provisions contained in the Chapter) Irish citizens and established residents, persons in command of Irish registered vessels, bodies incorporated in the State and other persons or bodies based in the State for the purpose of engaging in “activities directed at underwater cultural heritage”.
The latter term is used in the Convention to define the scope of the regulatory measures states parties must have in place, and is defined in terms of activities which may cause physical disturbance or damage to underwater cultural heritage. Such heritage, under the Convention, must be material submerged for at least 100 years (whether periodically or continuously).
There is regulatory control under the 2023 Act over relevant persons (as defined – see above) when engaging in activities directed at underwater cultural heritage beyond the contiguous zone of Ireland (the 2023 Act applies generally within the contiguous zone) but outside the territorial seas of other states. Relevant persons will have to have either a licence issued under the 2023 Act or have received appropriate authorisation from another state party under the Convention.
There are notification requirements for relevant persons who discover underwater cultural heritage, or intend to engage in activities directed at underwater cultural heritage, within the continental shelf or exclusive economic zone (“EEZ”) of the State or other states or within the “Area” (the area of seabed beyond all national jurisdiction).
Coordination
Secondly, by providing that the State will act as coordinating state under the Convention in respect of discoveries of underwater cultural heritage (or proposed activities directed at such heritage) within the State’s own continental shelf or EEZ unless the Minister decides otherwise and empowering the Minister, on behalf of the State, to agree to the State accepting appointment to the role of coordinating state under the Convention in respect of such discoveries or proposed such activities located within the continental shelves or EEZs of other states parties or within the Area.
Acting as coordinating state brings with it the role of issuing relevant authorisations, and provision is made in that regard in the 2023 Act. Provision is also included to ensure that “relevant persons” who accept an authorisation under the Convention from another state party will be bound by it under Irish law and that non-nationals who accept an authorisation under the Convention from the Minister will be bound under Irish law.
Importation
The 2023 Act completes the jurisdictional package states parties must put in place by prohibiting import of underwater cultural heritage into the State other than in accordance with a licence; this being an exercise of “port state” jurisdiction complementary to the “flag state” jurisdiction to be established under the Act. The Minister is thus able to ensure that material recovered from the seabed contrary to the standards set out in the Annex to the Convention is not brought into the State even though the location of recovery was beyond Ireland’s jurisdiction and the recovery was not carried out by “relevant persons”.