RTE reported recently on the re-discovery of a shipwreck on Portmarnock Strand. This discovery led researchers to discover three new wrecks that were unknown to them. Newly released State papers also cast light on Ireland’s efforts to negotiate the return of cannon allegedly stolen from a shipwreck in Irish waters. Shipwrecks form part of Ireland’s cultural heritage, and are protected in a similar way to monuments under the National Monuments Acts, and also have a dedicated section in the new Historic and Archaeological Heritage and Miscellaneous Provisions Act 2023 (“the Act”). This part of the Act has not commenced yet.
I thought this would be a good opportunity to briefly look at what protections underwater cultural heritage now enjoys and how it will change once the relevant sections of the Act are commenced. RTE reports that “all wrecks over 100 years are automatically protected”. This is correct, although wrecks that do not meet this criterion may be subject of an underwater heritage order as explained below, affording similar protections.
Section 3 of the National Monuments (Amendment Act) 1987 (the 1987 Act) sets out the current position although there have been slight amendments since. “Wreck” is defined in the 1987 Act as:
a vessel, or part of a vessel, lying wrecked on, in or under the sea bed or on or in land covered by water, and any objects contained in or on the vessel and any objects that were formerly contained in or on a vessel and are lying on, in or under the sea bed or on or in land covered by water.
So, a wreck need not be 100 years old. Section 3 allows the Commissioners of Public Works (as they were then known) to make an “underwater heritage order” if they deem an underwater site where a wreck or archaeological object lies, or once lay, to be of such archaeological or artistic importance that the site needs protection. It will then become a restricted area. This prohibits people from removing objects, tampering with the wreck, or carrying out diving or salvaging operations etc.
If a wreck is 100 years old or more, it automatically obtains the protections that are mentioned above. If such a wreck is found (or an underwater archaeological object), it must be reported to a member of the Garda Síochána within 4 days, or the Director of the National Museum in the case of an object. If you fail to do this, you are guilty of an offence.
And what of the changes that the 2023 Act will bring in? The Acts sets out the provisions related to underwater cultural heritage in Part 5. First, it defines “wreck” as:
any form of watercraft or vessel (whether intended for use above or below the surface of the water) or aircraft or any part or element thereof, lying on, in or under the sea bed or land covered by water, and any things contained in or on such watercraft, vessel or aircraft, or any objects which were formerly so contained and are lying on, in or under the sea bed or on or in land covered by water;
The Act also defines a “relevant wreck” as a wreck of 100 or more years old, or, a wreck that is otherwise of archaeological or historic interest.
The provisions that apply to finds of archaeological objects on or in the land, also apply to a relevant wreck by virtue of section 133. This means that ownership is vested in the State, and that the State may pay a reward at its discretion.
Certain activities are prohibited at the site of a “relevant wreck” without a licence. There is no diving, use of salvage equipment, dumping, or interference of any kind allowed. This also applies to a registered monument, or a prescribed monument, that is situated on, in or under land covered by water.
Finally, the Act introduces measures to allow for the ratification on the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage. This convention deals with a broad definition of underwater cultural heritage; not just wrecks. It covers “all traces of human existence having a cultural, historical or archaeological character” which have been under water for over 100 years. This could be anything from lost cities to burial sites, and includes wrecks of course. The Convention aims to promote inter-State cooperation, and to preserve and protect underwater cultural heritage in situ if possible. It also aims to promote awareness, and to clamp down on unauthorised trade of looted objects.
There are millions of underwater wrecks around the world, and it is important that they be preserved and studied if possible. It is yet another realm of cultural heritage that may not immediately spring to mind and as I said, the relevant sections of the 2023 Act that apply to underwater wrecks in Irish waters have not yet been commenced. However, the sections which allow for the ratification of the 2001 Convention (sections 137-147) were commenced on the 12th December 2024.
Another area of cultural heritage that may not be very obvious, is space. I listened to a podcast where M.C. Sungila brought up the various items and machines left at the moon landing site, and described that site as an important cultural heritage spot. It is worth remembering that cultural heritage travels with humans as they expand every frontier, whether by sea, space, or land.
Art Law in Ireland 