Legislative Framework

CCF Act 1980

 

Antiquities Ordinance Antiquities Ordinance 1940 /1950

Cultural Property act 1988

 

Amendment 1998
2001 UNESCO Convention on UCH World Heritage convention
   

 

Sri Lanka has three types of legislation relevant to the protection of the underwater cultural heritage. First there is the heritage-related legislation. The earliest is the Treasure Trove Ordinance of 1887 and 1891 (similar legislation exists in India), now part of the Antiquities Ordinance, which asserts the principle of State control of treasure found on private land if that treasure pertained to a period of over 100 years. The offence is the concealing of such treasure, not just discovering such a treasure. What is important is the manner of finding it, how it is you recorded and how it is reported.

Secondly there is the Antiquities Ordinance No. 9 of 1940, as amended from time to time. The Treasure-trove Ordinance 1887 and 1891 has now been incorporated into it. The Ordinance regulates any intervention such as the destruction, despoiling and removal of artefacts from any archaeological site. The Archaeological Department responsible for all tangible evidences of human activity has existed since 1890. It administers the Antiquities Ordinance, and in 1998 it was given responsibility over archaeological activity in the territorial seas. So the Department follows the same archaeological principles on land and at sea. The heritage is sacrosanct and not for sale - that is very important for the country. The 1998 amendments extended to the territorial sea, and made archaeological impact assessment (AIA) and survey compulsory. The AIAs were to be funded by developers.

The Cultural Property Act No. 73 of 1988 regulates the purchase of cultural property and the removal of cultural property from the territory of Sri Lanka.

Another sort of legislation which has a bearing upon there activities concerns the maritime area. The Maritime Zones Act Law No. 22, 1976, followed by the Proclamation and a published map, defines the maritime zones. The Coast Conservation Act regulates activities in coastal and inter-tidal zones. The National Aquatic Resources and Development Agency Act applies to all matters concerning the seabed, and that is how NARA became involved during the period before special legislation could be strengthened.

Finally there is the legislation directly involve on the underwater cultural heritage. This now includes the Antiquities Ordinance, especially with its 1998 amendments, the UNESCO heritage instruments, the United Nations Convention on the Law of the Sea 1983 and the ICOMOS Guidelines.

There is draft legislation, Protection of the Maritime Heritage Act, sponsored by the Ministries of Fisheries and Cultural Affairs: NARA comes under Fisheries, archaeology comes under Cultural Affairs and they act together. Together they will create a Maritime Cultural Authority whose principal functions will be the control, management, protection and preservation of the maritime cultural heritage of Sri Lanka. It will be headed by the Director-General of Archaeology, with the collaboration of the Director of National Museums, the Director of National Archives, the Chairman of NARA, the Ministries of Fisheries, Coast Conservation, Foreign Affairs, Defence, Shipping, Tourism, Environment, Science and Technology. The principal Receiver of Wrecks, who works under the Merchant Shipping Act, will also be represented as well as the UNESCO National Commission and five members of the public who will be people of knowledge.

Once the Authority is established it will take over the control, surveys and excavations within territorial waters, supervise them, declare protected areas, maintain registers of protected sites, carry out and co-ordinate the service to prepare such registers in a broad based decision-making process by consensus among all concerned authorities, and thereby relieve the Director of Archaeology of sole responsibility. This is an effort to bring together the many stake-holders in the seabed, avoiding any disagreements and to work under a single licensing system adopted.
Although the UNESCO 2001 Convention has not so far being ratified, its provisions are already being applied. The ‘Avondster’ project was commenced in the same month as the Convention was adopted, and so its licensing system is being followed.

 

1998 Amendment to the Antiquities Ordinance
The significant and somewhat dramatic finds of the work done during the 1990s made a national policy and a legislative framework concerning the underwater cultural heritage essential. The Department had been engaged in moving several significant amendments to the Antiquities Act. Among them was the specific power to control all archaeological work in the territorial waters of the island. In May, 1998, these amendments were passed, without division, by Parliament. Section 2 of the Antiquities Ordinance (1) was amended to include archaeological work “within the territorial sea of Sri Lanka” (and further defined as “the area declared to be the territorial waters of Sri Lanka by Proclamation under the Maritime Zones Law, No.22 of 1976”), archaeological activity within which has now been placed under the control and supervision of the Department. Provision has also been made for penal action against transgressors (such as those pirating underwater artefacts). A further piece of legislation, providing for a Maritime Cultural Heritage Authority (also under the Director General of Archaeology) is in the last stages of completion.

The Amendments referred to above have introduced several benchmark criteria which are significant in terms of maritime archaeology. They provide for the financing of urgent archaeological projects such as the Galle Project. To permit development to take place while yet protecting the heritage, and without placing an additional financial burden on the government, the Amendments provide a mechanism for funding cultural environmental impact assessment surveys, by the Department, of any sites being considered for development work (either by the Government or other). The cost of such surveys and of the work involved in preservation, conservation, recording etc. will be borne by the developer who shall set apart one per cent of the total cost of the development work for this purpose. There should, therefore, be no more need to solve problems like those that beset the Galle Project. The assessments would have to be completed within a required time frame. Since the material and personnel available within the Dept. may be strained by this requirement, provision has also been made for the delegation of the Director General’s powers to “any person possessed of special expertise and resources in, or for the exploration, excavation, conservation and restoration or maintenance….” Under this proviso, it would be possible to call upon the special expertise and resources from outside the country, should it be necessary. This has a significance in relation to areas of expertise not fully developed in Sri Lanka, one such being maritime archaeology.

Up to now, two initial cultural impact assessments (incorporated within the Terms of Reference of the Environmental Impact Assessments specified under the Coast Conservation Act) have been undertaken in respect of the (revised) Regional Port of Galle and the Colombo South Port respectively. In the case of Galle, the location of the currently proposed facility was largely influenced by the work done by the archaeologists, and the historic harbour area has been given the protection it deserves. In the case of Colombo, where the Asian Development Bank funded study by an Australian firm, the Assessment has succeeded to the extent that the “Drunken Sailor” site has been placed outside the proposed area of construction and the group of buildings of over 150 years old has been designated, in the plan, as a “historic precinct”, without hindrance to the activity of the proposed port.

Some of the Local Acts and Authorities related to the Underwater Archaeology.
Antiquities Ordinance 1940/1950 (No. 09)
Antiquities (Amendment) Act 1998 (No. 24)
Galle Heritage Foundation 1994 (No. 07)
CCF Act (No. 57)
Urban Development Authorities Act (No. 41)
Cultural Property Act 1988 (No. 73)
Coast Conservation Act 1981 (No. 57)
Tourist board Act 1968 (No. 14)
National Environmental Act 1980 (No. 47)

International laws and Conventions
At international level as a member of ICOMOS, Sri Lanka with a member on its Scientific Committee abides by all the ICOMOS guidelines on the conduct of archaeological activities and conservation, including maritime archaeology in national waters, drawn up by ICUCH. Sri Lanka has been represented, by Devendra, on the International Committee on the Underwater Cultural Heritage (ICUCH) since its inception and has participated in the drawing up of the guidelines which were accepted at the Sofia Conference and which now form the Rules of the UNESCO Convention on the Protection of the Underwater Cultural Heritage, as well as the provisions of UNCLOS III in this regard.

United Nations Convention of Low Of the Sea (UNCLOS)
UNCLOS I (held at Geneva in 1958)
UNCLOS II (held at Geneva in 1960)
UNCLOS III (1982)

A 1982 treaty that creates a structure for the governance and protection of all the sea including the airspace above and seabed and subsoil below in particular UNCLOS provides a framework for the allocation of jurisdiction, right and duties among states that carefully balanced the interests of states in controlling activities off their own coasts and the interests of all states in protecting the freedom to use ocean spaces without undue interference. It recognizes the maritime zone, dealing with recourses in these areas, and protecting the marine environment.

The Territorial Sea - Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.

Internal Waters - landwards of the baselines along the cost. They include lakes, rivers and manly bays.

Archipelagic Waters - encircled by archip. baseline established by independent archip. States.

Contiguous zone - The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. The coastal State may exercise the control necessary to (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

The Exclusive Economic Zone - The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the relevant provisions of this Convention govern the rights and jurisdiction of the coastal State and the rights and freedoms of other States. This shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

The Continental Shelf - The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.


High Seas - The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone.

2001 UNESCO Convention on Protection of the Underwater Cultural Heritage
The UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001) was adopted on 2 November 2001 by the General Conference of UNESCO. It is designed to help with the protection and preservation of cultural sites and artefacts that have been totally or partially underwater for at least 100 years for current and future generations. It became UNESCO's fourth cultural heritage convention. Australia voted in favour of the Convention and was one of 87 nations to vote in favour, with only 4 nations voted against.

The 2001 UNESCO Convention represents an international regulation specific to underwater cultural heritage. As any treaty, the Convention and this specific regulation are effective only among States Parties (i.e. States that have joint the Convention). The 2001 Convention does not prejudice the rights, jurisdiction or duties of states under international law, including UNCLOS 03. Every state may become a party to the 2001 Convention, regardless of whether it is a State Party to UNCLOS or not.

Main articles and rules of the UNESCO Convention.
This Convention was declared at the General Conference of the UNESCO held in Paris from 15 October to 3 November 2001, as its 31st Session, regarding the following facts,
• Acknowledging the importance of underwater cultural heritage as an integral part of the cultural heritage of humanity and a particularly important element in the history of peoples, nations, and their relations with each other concerning their common heritage.
• Realizing the importance of protecting and preserving the underwater cultural heritage and that responsibility therefore rests with all States.
• Noting growing public interest in and public appreciation of underwater cultural heritage.
• Convinced of the importance of research, information and education to the protection and preservation of underwater cultural heritage.
• Convinced of the public’s right to enjoy the educational and recreational benefits of responsible non-intrusive access to in situ underwater cultural heritage, and of the value of public education to contribute to awareness, appreciation and protection of that heritage.
• Aware of the fact that underwater cultural heritage is threatened by unauthorized activities directed at it, and of the need for stronger measures to prevent such activities.
• Deeply concerned by the increasing commercial exploitation of underwater cultural heritage, and in particular by certain activities aimed at the sale, acquisition or barter of underwater cultural heritage.
• Aware of the availability of advanced technology that enhances discovery of and access to underwater cultural heritage.
• Considering that survey, excavation and protection of underwater cultural heritage necessitate the availability and application of special scientific methods and the use of suitable techniques and equipment as well as a high degree of professional specialization, all of which indicate a need for uniform governing criteria.
Having decided at its twenty-ninth session that this question should be made the subject of an international convention.

Some of the main Articles of the convention
Article 2 – Objectives and general principles
1.This Convention aims to ensure and strengthen the protection of underwater cultural heritage.
2.States Parties shall cooperate in the protection of underwater cultural heritage.
States Parties shall preserve underwater cultural heritage for the benefit of humanity in conformity with the provisions of this Convention.
5.The preservation in situ of underwater cultural heritage shall be considered as the first option before allowing or engaging in any activities directed at this heritage.
6.Recovered underwater cultural heritage shall be deposited, conserved and managed in a manner that ensures its long-term preservation.
7.Underwater cultural heritage shall not be commercially exploited.

Article 3 – Relationship between this Convention and the United Nations Convention on the Law of the Sea
Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under international law, including the United Nations Convention on the Law of the Sea.

Article 7 – Underwater cultural heritage in internal waters, archipelagic waters and territorial sea
1.States Parties, in the exercise of their sovereignty, have the exclusive right to regulate and authorize activities directed at underwater cultural heritage in their internal waters, archipelagic waters and territorial sea.

Article 11 – Reporting and notification in the Area
1.States Parties have a responsibility to protect underwater cultural heritage in the Area. Accordingly when a national, or a vessel flying the flag of a State Party, discovers or intends to engage in activities directed at underwater cultural heritage located in the Area, that State Party shall require its national, or the master of the vessel, to report such discovery or activity to it.
States Parties shall notify the Director-General and the Secretary-General of the International Seabed Authority of such discoveries or activities reported to them.

Activities directed at underwater cultural heritage - Project design
Rule 9. Prior to any activity directed at underwater cultural heritage, a project design for the activity shall be developed and submitted to the competent authorities for authorization and appropriate peer review.
Rule 10. The project design shall include:
(a) An evaluation of previous or preliminary studies - An assessment that evaluates the significance and vulnerability of the underwater cultural heritage and the surrounding natural environment to damage by the proposed project, and the potential to obtain data that would meet the project objectives.
(b) The project statement and objectives;
(c) The methodology to be used and the techniques to be employed - The methodology shall comply with the project objectives, and the techniques employed shall be as non-intrusive as possible.
(d) The anticipated funding;
(e) An expected timetable for completion of the project;
(f) The composition of the team and the qualifications, responsibilities and experience of each team member - Activities directed at underwater cultural heritage shall only be undertaken under the direction and control of, and in the regular presence of, a qualified underwater archaeologist with scientific competence appropriate to the project.
(g) Plans for post-fieldwork analysis and other activities;
(h) A conservation programme for artefacts and the site in close cooperation with the competent authorities - The conservation programme shall provide for the treatment of the archaeological remains during the activities directed at underwater cultural heritage, during transit and in the long term. Conservation shall be carried out in accordance with current professional standards.
(i) A site management and maintenance policy for the whole duration of the project - The site management programme shall provide for the protection and management in situ of underwater cultural heritage, in the course of and upon termination of fieldwork. The programme shall include public information, reasonable provision for site stabilization, monitoring, and protection against interference.
(j) a documentation program;
(k) A safety policy - A safety policy shall be prepared that is adequate to ensure the safety and health of the project team and third parties and that is in conformity with any applicable statutory and professional requirements.
(l) An environmental policy;
(m) Arrangements for collaboration with museums and other institutions, in particular scientific institutions;
(n) Report preparation;
(o) Deposition of archives, including underwater cultural heritage removed; and
(p) A programme for publication.
Rule 12. Where unexpected discoveries are made or circumstances change, the project design shall be reviewed and amended with the approval of the competent authorities.
Rule 13. In cases of urgency or chance discoveries, activities directed at the underwater cultural heritage, including conservation measures or activities for a period of short duration, in particular site stabilization, may be authorized in the absence of a project design in order to protect the underwater cultural heritage.